Asbestos Pictures - Great McCord Museum Collection of Photos and Text on Canadian Asbestos Mining Circa 1890s -1930s

It's a long story as to why, but I stumbled across some online and historic pictures of asbestos-mining and processing. The collection is presented by the McCord Museum of Montreal, which looks to be quite an interesting place. Its online presentations include a great collection of photographs and text showing asbestos mining in Canada starting in the late 1800s and moving up through the 193os or so. The photos of the steps in processing the ore are especially interesting as they show clouds of fibers, and lots of work being done by women and children. The website has several very nice tools to view the photos as a film or individually, including a zoom feature. The presentation is well worth viewing simply as a history lesson even if you are not involved in asbestos litigation.

Elected State Court Judges in the United States

The April 10 Economist included a brief article noting the issues regarding elected state court judges, and its text is set out below as a fair use. According to the article, some or all of the judges are elected in 39 of the United States.This topic has been debated for years, but little has changed except that more and more money is being spent on judicial elections. The article has specifics on the latter.


I would add three observations to the debate; the first one comes from the judge I clerked for, Howard C. Ryan, who was an elected state court judge. His point was a pragmatic one, which is that reformers need to be flexible in their proposed solutions and cannot expect to hit a "home run" on the first try. For example, the "reform" solution that works for the hundreds or thousands of judges in Cook County, Illinois probably will not work for a "downstate" Illinois county with only a handful of judges and perhaps only dozens of lawyers. Why? Because some reform proposals aimed at Cook County called for panels of X lawyers, with X being a small number in Cook County but an unattainable number in some farming counties with modest numbers of lawyers and judges. (During my clerkship way back in 1983, the issue was somewhat "hot" in Illinois and so Judge Ryan, as a "downstate" judge, explained to us some of the very real differences between Cook County courts and the courts in the rest of the state. In my opinion, he's absolutely correct that one size does not fit all. The Judge, by the way, also was open-minded. Indeed, to further the analysis, he asked me to research and present him with a memo summarizing how various nations around the world create their judiciary.)


Second, there is in my view much merit to ensuring that many of our appellate judges have spent meaningful time as trial judges. Trial courts are dynamic places with things said and unsaid because of the exigencies of the moment and many other factors. When an appellate court gathers to decide cases, it is I think important that there are some judges in the room who have a feel for the what is really "harmless error," and the pressures of long trial days. This is not to suggest creating a black letter rule requiring trial court experience - I join with those who say that it would be a grave mistake to exclude all academics, nor do we want to exclude the lawyers who never worked as judges but spent years trying cases, and so know the nature of trials.


Third, there is the question of why the topic has produced so little substantive debate (as opposed to sound bites and posturing), and so little meaningful change. On this topic, I commend to all Robert Reich's newest book: Supercapitalism. It's an insightful look at where we as a nation are today in terms of the political process. It's also refreshing to read a book with lots of facts, footnotes to the sources, and an absence of spin.

_____________________________________________________________

Torts and courts

Apr 10th 2008 MADISON, WISCONSIN

From The Economist print edition
Life, liberty and the pursuit of a fair judiciary

JUSTICE is meant to be impartial. To this end, Britain's judges are appointed for life. In America federal judges are as well. But in 39 states some or all judges must face election and re-election, often with unbecoming hoopla. An election to the Supreme Court of the state of Wisconsin has just involved about $5.5m and more than 12,000 aired advertisements. Habeas circus, one might say.

Michael Gableman defeated Louis Butler, an incumbent on Wisconsin's Supreme Court, on April 1st, and the cacophony has not yet subsided. The scuffle has revealed two worrying traits of America's judicial elections.

First, they have become bitter contests. In 2006 91% of Supreme Court elections featured television advertisements, up from 22% in 2000, according to New York University's Brennan Centre. Second, the war over tort, or liability, reform has turned judicial elections into a nasty battlefield—especially in those states where state Supreme Court justices are directly elected. Karl Rove, once George Bush's Svengali, ascended in part by helping Texas businessmen fight trial lawyers for control of that state's highest court. The most expensive judicial race in America's history, a $9.3m fight in 2004, saw tort interests pour money into rival campaigns for a seat on the Illinois Supreme Court.
In Wisconsin the signs are troubling. The state's new era of judicial elections began last year. A series of rulings had galvanised corporate leaders, explains James Buchen of Wisconsin Manufacturers and Commerce (WMC), the state's business lobby. In one ruling in 2005, the Supreme Court overturned the state's caps on medical-malpractice cases. In another, the court ruled that a plaintiff could sue several manufacturers when he did not know which (if any) had caused him injury.
In 2007 groups from all sides poured cash into a state Supreme Court race, spending $5.8m. In this month's election one estimate is that the candidates together raised about $1m (Mr Butler outspent Mr Gableman), while outside groups such as WMC and the teachers' union spent more than $4.5m.
This year's flood of money might have drawn less censure if it had spurred a proper debate on judicial philosophy. It didn't. Mr Gableman's campaign produced an advertisement suggesting that Mr Butler, a black man, had helped free a black rapist. An advertisement supporting Mr Butler claimed that Mr Gableman was soft on paedophiles. Even WMC's advertisements were about crime. Regardless of the tenor of the campaign, money may be undermining faith in the court. A recent poll conducted for Justice at Stake, a group devoted to judicial independence, found that 78% of respondents in Wisconsin believe campaign contributions influence judges' rulings.
The question is whether to change the new dispensation and, if so, how? Comprehensive legal reform might help keep the tort war from seeping into judicial elections. But the elections themselves are unlikely to be scrapped. More feasible would be to pass reforms, such as public financing for campaigns or stricter rules to prevent conflicts of interest. In Wisconsin politicians and Supreme Court judges all work beneath the state capitol's giant dome. It is getting hard to tell the difference between them. "

Attorneys' Fee Awards in Mass Tort Litigation

Some recent attorneys' fees awards illustrate that specialized mass tort litigation is becoming ever more entrepreneurial and rewarding when claims succeed in areas such as product liability litigation. Much of the history of teh financing of contingent fee claims is very well explained by Professor Stephen C. Yeazell of UCLA in his 2001 article, "Re-Financing Civil Litigation," 51 DePaul Law Review 183 (2001). I highly recommend the article to anyone interested in understanding the economics of mass tort litigation. The article was part of a DePaul Law School symposium organized through a $ 1 million gift from Robert Clifford, one of Chicago's most-respected plaintiff's lawyers. One might also consider Prof. Yeazell's related online lecture apparently published as an honor by UCLA for distinguished work by its professors.

The recent examples? "Fen-phen" litigation produced a most recent award of $ 412 million fee award for several plaintiff's firms. The Point of Law authors note that all of the awards work out to about $1,000 per hour based on hours reported to have been billed. The Mass Tort Litigation blog authors also noted the award and provide cites for some of the key rulings in that litigation.

The Florida phase of the tobacco litigation recently produced a $ 218 million fee award for plaintiff's counsel. The award is described as providing a 5x multiplier for the risks undertaken by plaintiff's counsel, Stanley and Susan Rosenblatt. According to the news article, the trial judge who awarded the fees took pains to praise the efforts of plaintiff's counsel, saying:

''I think this is one shining example of an effort that was undertaken with diligence and for an amount of time that would have destroyed most people,'' Miller said, according to a hearing transcript. The Rosenblatts' performance is ``an example of the kind of lawyering that is done here in South Florida.''

The Dickie Scruggs Saga - a/k/a Crisis Management for State Farm

The Dickie Scruggs saga has been much hyped. Indeed, one could say it is over-hyped because although there are some lawyers who appear to have bent or broken the rules, there are many more who act ethically and do a great job for their clients.

In any event, the best summary I've seen of the Dickie Scruggs saga is by Roger Parloff of Fortune. An upcoming issue of Fortune will have a condensed article, but an extended online version is available here. In addition, Mr. Parloff's blog has further information.

W.R. Grace Asbestos Bankruptcy Settlement - WSJ Editorial

"Mass tort" and Chapter 11 are words that have frequently been used together since Johns-Manville filed for bankruptcy back in 1982. Now, as of April 7, there has been a settlement in principle of many but not all of the asbestos issues remaining in the W.R. Grace asbestos bankruptcy. The "spinners" are all hard at work on characterizing the settlement, and I'm reading with interest to see what others have to say. For now, I'm simply going to note some of the spins and add some small comments.

An April 12, 2008 WSJ editorial merits mention as they declare the settlement a good deal for Grace, with Grace said to have paid $ 2.5 billion on a $ 6 billion demand. More than the numbers, the WSJ praises Grace for having blazed a legal trail:

"By making a solid legal case that bankruptcy courts have an obligation to delve into the legitimacy of tort claims, W.R. Grace has provided a road map to other companies that want to fight dubious suits. The company has also sent a message to the plaintiffs bar that it should expect its handiwork to be examined more closely in future bankruptcy cases."

In my opinion, the praise for trail-blazing is accurate, and the WSJ's kind words are well deserved by Grace's inside and outside lawyers, not to mention management in general.

Mass Tort Claims - Do Shrinking Jobs and Insurance Benefits Increase Propensity to Claim ?

Recent news has been full of stories about rapid general inflation around the world, especially increased food costs leading to protests (and worse) around the globe. Today's news also include an article from the NYT that details soaring co-payment expenses in the US. For a tort lawyer, these articles bring to mind an ongoing tort litigation issue: the propensity to file tort claims.

The tort litigation world includes much argument and posturing regarding propensity to claim. The debate about claiming is made somewhat useless when the two sides cite extreme examples of fraud, which can be either inarguably fraudulent claiming or inarguably fraudulent corporate conduct. What it would be good to see is a meaningful article looking at the propensity to claim as a function of micro economic events, such as manufacturing plant closings, or as a function of the elimination or reduction of medical benefits by a company, especially for retirees. One also wonders of there is meaningful correlation between claiming and macro numbers for inflation of unemployment. Please speak up if you know of any research on these points - I've not seen any.

Until there is research, I'll rely on my personal observation that it seems plain that prospective plaintiffs are often-created when a business closes a plant, completely terminates its retiree medical insurance plans, or insurance benefits are materially reduced. Indeed, when manufacturing plants close, some plaintiff's firms sometimes target the former plant workers as potential plaintiffs, and medical screenings may follow if the plant included use of "toxins." Simply put, otherwise proud and independent retirees who have significant medical issues sometimes say "off the record" that tort litigation is the only means they know of to try to create cash flow sufficient to cover medical expenses. Thus, corporations and governments sometimes may actually be "the cause" behind increased tort claiming. Thinking globally, one would think that global tort claiming will increase as economic changes are harder and harder on the middle class and on those persons already at the bottom of the economic ladder.

Implications of New Research on Asbestos as a "Cause" of "Disease"

An online article published April 10, 2008 in ScienceNOW provides an overview of detailed research published in Science indicating that asbestos fibers stimulate production of a form of interleukin (IL-1β), which promotes inflammation. I've not yet read the article and so cannot say whether the article addresses asbestos fibers in the generic sense or if it distingushes between fiber types.

The article and commenters quoted in it suggest there will be future efforts to determine whether anti-inflammatory drugs can limit the biologic processes (disease, one might say), and that it may in the future become possible to test for increased levels of the implicated form of interleukin. (Wikipedia offers a nice article on interleukin, including striking color illustrations.)

So, how is this article relevant to asbestos litgation in particular and tort litigation in general? For asbestos litigation, the relevance is that scientific discoveries of this sort may lead to new tests that asbestos claimants could use to try to recover for increased future risk of contracting "disease," or for the defense side to try to use to show that a particular person person is not at "meaningful" risk of suffering from a "disease" deemed appropriate for compensation.

The research also may make its way into the factual proofs that have historically been part of the legal rationales for the "triple trigger" rationale for defining the "injuries" that courts decide are sufficient to "trigger" traditional CGL insurance coverage that was often but not always purchased by manufacturing firms prior to the advent of the so-called "asbestos exclusion" that became fairly common around 1985. The U.S. law on insurance coverage for asbestos claims is quite developed, but insurance coverage remains a wide open topic in many countries where asbestos litigation is just starting to take shape. And, depending on the scope and results of this and future research, it may add new grist for arguments about the "chrysotile defense" and/or whether a "low dose" exposure actually plays a legally meaningful role in the onset of what we define as "disease."

For tort litigation in general, this is an illustration of the type of issues that courts and lawyers will have to confront as science pushes forward at ever increasing speed. Over the coming years, it seems inevitable that courts and lawyers will spend increasing amounts of time thinking about how "disease" occurs on a biologic basis, and what can be done to prevent a biologic process from resulting in a tumor that actually causes "physical impairment." The answers may have a profound impact on the scope of new and old legal rationales for tort law claims (e.g. fear of cancer claims), and on the scope of recoverable damages.

Legislative and regulatory bodies also will have opportunties to consider and apply new science, and might even come to sensible conclusions to avoid the "wastes" inherent in litigation. But we've gone for decades without much sensible action from federal U.S. legislators, and the states have taken various approaches, mainly but not always after the federal legislators failed to act. It remains to be seen how legislators and regulators will respond in other nations. Legislative and regulatory actions related to asbestos are picking up speed outside the US, but that topic must wait for another day.

____________________________
Set out below is an excerpt from the ScienceNOW article as to the biologic process investigated:

"Tschopp and colleagues exposed to asbestos human and mouse immune cells that lurk in the lungs. They found that the material stimulated an inflammasome called Nalp3 to release interleukin-1β (IL-1β), a chemical that incites inflammation. But the real proof came from mice that were bred to lack Nalp3. When these mice were exposed to asbestos for 9 days, they produced lower levels of IL-1β and less lung inflammation than did mice with Nalp3, confirming that the inflammasome is key to triggering at least some of the negative effects of the fiber, the researchers report online today in Science. Tschopp speculates that because asbestos fibers lodge in the body, prolonged exposure causes chronic inflammation that over time could result in lung scarring and cancer. The details still need to be worked out, but the researchers note that IL-1β has been linked to other cancers."