About the time I finished the post below on global choice of law issues, I received an email from the American Bar Association's Mass Tort Committee inviting new ideas, and new members of course are always welcome. The group is a good one, and includes a subgroup focused in international mass tort issues. So, if you are looking for a forum to get further involved in global tort litigation, go the committee's website or follow up with the committee chairs, who are shown on the email text pasted below.
The following is the full text of the email mentioned above ______________________________________________________________
Dear Committee Members:
Strategic planning allows any group, including the Mass Torts Committee, to focus on what matters to its members and what benefits them. This is a relatively young committee and it is time to revisit what the Committee delivers to its members in terms of useful information in their practices and in terms of opportunities to participate and network.
One of the initiatives under consideration is revisiting the subcommittee structure. As you know, we have subcommittees that are directed to committee products and process (newsletters, website, programming, hot topics, young lawyers and membership). We also have subcommittees directed to specific substantive areas (international, class actions, pharmaceutical & medical device and toxic torts). Some of the substantive areas mirror the topics covered by other Section of Litigation committees and other organizations that we all belong to in one combination or another. One consideration here is revisiting subcommittee structure to put in place (along with the substantive area subcommittees) a focus on handling of mass tort litigation as a matter of process – not organized along substantive areas of law. That could include such things as case management, evidence and procedure, experts, etc.
We would like to get your feedback on that concept and your thoughts as to what particular topic areas might be appropriate for such additional subcommittees, so please e-mail your thoughts to either or both of us.
Thank you,
John Manard
manardj@phelps.com
Byron Mason
byron.mason@bakerd.com
Mass Torts Litigation Committee Co-Chairs
Friday, March 13, 2009
Mr. Madoff and Global Choice of Law
A prior post on this blog described some of the global choice of law issues arising from the Madoff fiasco. One set of issues will revolve around which nation's law should be applied to decide claims regarding whether investment advisers had a duty to investigate Madoff's operations, and how much investigation is required.
The facts and claims continue to expand, and choice of law will become ever more complex, subject of course to choice of law clauses and whether they can or will be enforced. Thus, even as Mr. Madoff was pleading guilty this week, the WSJ was running articles this week describing ongoing investigations into money transfers between various Madoff entities in London and New York. Meanwhile, more claims have been filed with cross-border parties.
For example. a Lawcom article describes a suit filed in the State of Washington, and goes on to say:
"[The plaintiff] Dennis, an American living in Switzerland, alleges that FutureSelect invested his money with the Rye Fund, part of a group of hedge funds owned by Rye, New York-based Tremont Group Holdings Inc., and that the Rye Fund in turn place the money with Madoff. The derivative lawsuit was filed on behalf of Dennis by Steve Berman, an attorney with the law firm Hagens Berman Sobol Shapiro in Seattle."
The facts and claims continue to expand, and choice of law will become ever more complex, subject of course to choice of law clauses and whether they can or will be enforced. Thus, even as Mr. Madoff was pleading guilty this week, the WSJ was running articles this week describing ongoing investigations into money transfers between various Madoff entities in London and New York. Meanwhile, more claims have been filed with cross-border parties.
For example. a Lawcom article describes a suit filed in the State of Washington, and goes on to say:
"[The plaintiff] Dennis, an American living in Switzerland, alleges that FutureSelect invested his money with the Rye Fund, part of a group of hedge funds owned by Rye, New York-based Tremont Group Holdings Inc., and that the Rye Fund in turn place the money with Madoff. The derivative lawsuit was filed on behalf of Dennis by Steve Berman, an attorney with the law firm Hagens Berman Sobol Shapiro in Seattle."
Thursday, March 12, 2009
Product Liability Prevention - New Work from an Expert
Product liability litigation draws lots of ink and html. Product liability prevention draws far less of both but of course is a strategy that makes sense. Maybe prevention it would obtain more attention if it product liability losses were made the subject of exchange-traded derivative products that constitute bets on the extent of a company's future product liability losses.
Anway, the point of this entry is that a new overview article on prevention is available online from Ken Ross, who is one of the most respected lawyers focused on product liability prevention. His website collects many of his articles and links to other resources on preventing product liability problems. The new article also explains why prevention matters even more in tough economic times.
Anway, the point of this entry is that a new overview article on prevention is available online from Ken Ross, who is one of the most respected lawyers focused on product liability prevention. His website collects many of his articles and links to other resources on preventing product liability problems. The new article also explains why prevention matters even more in tough economic times.
Wednesday, March 11, 2009
Update - Manville Trust Explains Actions Regarding Not Collecting Social Security Numbers from Claimants
A prior post on this blog (Friday March 6, 2008) provided information regarding the Manville Trust 1) reducing data available from the trust and 2) ending its requirement that claimants submit social security numbers. The Trust's CRMC administrator has now advised that the reason it dropped the social security number requirement was to comply with an opinion from legal counsel, with the opinion apparently focused on persons who work in the United States without a social security number (which to me would seem to be "illegal aliens.") His email also states that "product identification" evidence is required from the claimant, that duplicate checking is performed at the Manville Trust, and that three such claims have been filed to date.
So, that's an interesting explanation. Now the question is: will the Manville Trust return to its prior practice of licensing its data to outside experts and disclosing country-specific data regarding "foreign" claims. so that they use as it as in the past.
Note also that the CRMC website no longer contains the previously posted notice regarding social security numbers. The website instead now has a notice that explains the policy change in more detail - it states the following:
"Updated on 11/11/08
--- The Manville Trust changed its policy with respect to requiring a SSN for claimants exposed in the United States. This position was based on a legal opinion that individuals without SSN’s who were exposed to Johns-Manville asbestos in the United States may file a claim against the Trust. This can occur in unusual instances, such as when a claimant is a foreign citizen who worked temporarily in the United States. Claimants in such circumstances are subject to increased evidentiary requirements to support their asbestos exposure allegations. If you are an electronic filer you will receive a notice via the message board indicating that a MV-Exposure Document is required. Examples of evidence that would be sufficient for meeting this requirement would include: work history records, deposition materials, affidavits, etc. Furthermore, claimant duplicate checking continues using the claimant’s first name, middle initial, last name and date of birth. "
__________________________________________________________________
The specifics of the communications were as follows.
I followed up on the March 6, 2009 blog entry by sending an email to the trust with the link to the blog entry regarding the trust's changes. Mr. Garelick, counsel for CRMC, responded with a March 10 email (full text pasted below) providing additional information on the trust's action regarding social security numbers.
___________________________________________________________________
Dear Mr. Hartley,
Thank you for bringing to my attention your March 6, 2009 blog entry regarding Manville Trust claims data. I believe you misunderstood the reason for, and impact of, the Trust’s recent policy change regarding submission of claimant Social Security numbers ("SSNs").
In November of 2008, the Manville Trust changed its policy with respect to requiring an SSN for claimants exposed in the United States. This position was based on a legal opinion that individuals without SSN’s who were exposed to Johns-Manville asbestos in the United States may file claims against the Trust. This can occur in unusual instances, such as when a claimant is a foreign citizen who worked temporarily in the United States. Claimants in such circumstances are subject to increased evidentiary requirements to support their asbestos exposure allegations.
When such a claim is filed, the law firm filing on behalf of the claimant, or the claimant, is required to provide evidence to the Trust of exposure to Johns-Manville asbestos in the United States. If the documentation is approved the claim is processed accordingly. Examples of evidence that would be sufficient for meeting this requirement would include: work history records, deposition materials, affidavits, etc. Furthermore, claimant duplicate checking continues using the claimant’s first name, middle initial, last name and date of birth. To date, three (3) claims have been filed without SSNs.
--Jared Garelick
Jared S. Garelick
Senior Attorney
Claims Resolution Managment Corporation (CRMC)
3110 Fairview Park Drive, Suite 200
P.O. Box 12003
Falls Church, VA 22042-0683
Tel. (703) 205-0836
Fax (703) 205-6248
So, that's an interesting explanation. Now the question is: will the Manville Trust return to its prior practice of licensing its data to outside experts and disclosing country-specific data regarding "foreign" claims. so that they use as it as in the past.
Note also that the CRMC website no longer contains the previously posted notice regarding social security numbers. The website instead now has a notice that explains the policy change in more detail - it states the following:
"Updated on 11/11/08
--- The Manville Trust changed its policy with respect to requiring a SSN for claimants exposed in the United States. This position was based on a legal opinion that individuals without SSN’s who were exposed to Johns-Manville asbestos in the United States may file a claim against the Trust. This can occur in unusual instances, such as when a claimant is a foreign citizen who worked temporarily in the United States. Claimants in such circumstances are subject to increased evidentiary requirements to support their asbestos exposure allegations. If you are an electronic filer you will receive a notice via the message board indicating that a MV-Exposure Document is required. Examples of evidence that would be sufficient for meeting this requirement would include: work history records, deposition materials, affidavits, etc. Furthermore, claimant duplicate checking continues using the claimant’s first name, middle initial, last name and date of birth. "
__________________________________________________________________
The specifics of the communications were as follows.
I followed up on the March 6, 2009 blog entry by sending an email to the trust with the link to the blog entry regarding the trust's changes. Mr. Garelick, counsel for CRMC, responded with a March 10 email (full text pasted below) providing additional information on the trust's action regarding social security numbers.
___________________________________________________________________
Dear Mr. Hartley,
Thank you for bringing to my attention your March 6, 2009 blog entry regarding Manville Trust claims data. I believe you misunderstood the reason for, and impact of, the Trust’s recent policy change regarding submission of claimant Social Security numbers ("SSNs").
In November of 2008, the Manville Trust changed its policy with respect to requiring an SSN for claimants exposed in the United States. This position was based on a legal opinion that individuals without SSN’s who were exposed to Johns-Manville asbestos in the United States may file claims against the Trust. This can occur in unusual instances, such as when a claimant is a foreign citizen who worked temporarily in the United States. Claimants in such circumstances are subject to increased evidentiary requirements to support their asbestos exposure allegations.
When such a claim is filed, the law firm filing on behalf of the claimant, or the claimant, is required to provide evidence to the Trust of exposure to Johns-Manville asbestos in the United States. If the documentation is approved the claim is processed accordingly. Examples of evidence that would be sufficient for meeting this requirement would include: work history records, deposition materials, affidavits, etc. Furthermore, claimant duplicate checking continues using the claimant’s first name, middle initial, last name and date of birth. To date, three (3) claims have been filed without SSNs.
--Jared Garelick
Jared S. Garelick
Senior Attorney
Claims Resolution Managment Corporation (CRMC)
3110 Fairview Park Drive, Suite 200
P.O. Box 12003
Falls Church, VA 22042-0683
Tel. (703) 205-0836
Fax (703) 205-6248
Tuesday, March 10, 2009
Litigation Financing & Structured Settlement Buyouts
As the litigation funding business grows in popularity, it becomes apparent that new issues will arise in terms of how to deal with the rights to collect on settlements and judgments. In that vein, here's an interesting newspaper article describing two federal appellate decisions relating to problems with a company that buys out structured settlements that is said to buyout settlements without following state law rules that require judicial approval of such buyouts. One wonders if all litigation funding agreements are structured to avoid the problem.
Sunday, March 8, 2009
Pleural Plaques Legislation in Scotland - Enactment and Insurer Challenge Ahead
A prior post on this blog provides background on potential UK legislation regarding whether there should be payments for pleural plaques.
A new article In the Scottish press indicates that Scotland will move ahead this week to enact legislation that would reauthorize lawsuits to recover compensation for pleural plaques. The same article indicates that insurers are readying a legal challenge.
I won't try to predict the outcome of the litigation. I will, however, predict that the Scots are materially underestimating the number of plaques claims that will be filed and paid.
I've previously posted here a detailed 34 page outline previously submitted by me to London as to why it is bad policy to pay compensation for pleural plaques and other conditions that do not involve impaired or measurable risk. Simply put, there are too many such conditions to pay them all, and many more will soon be recognized as science moves ahead. The better policy, in my view, is to invest in science to understand, manage and some day cure or delay diseases that actually cause impairment or death.
A new article In the Scottish press indicates that Scotland will move ahead this week to enact legislation that would reauthorize lawsuits to recover compensation for pleural plaques. The same article indicates that insurers are readying a legal challenge.
I won't try to predict the outcome of the litigation. I will, however, predict that the Scots are materially underestimating the number of plaques claims that will be filed and paid.
I've previously posted here a detailed 34 page outline previously submitted by me to London as to why it is bad policy to pay compensation for pleural plaques and other conditions that do not involve impaired or measurable risk. Simply put, there are too many such conditions to pay them all, and many more will soon be recognized as science moves ahead. The better policy, in my view, is to invest in science to understand, manage and some day cure or delay diseases that actually cause impairment or death.
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