Ms. Gina Kolata is back with another important but depressing New York Times article on the failure of our national policy for addressing cancer. Her series started with a late April article. I mentioned it here in a post that provided links to sources showing that more people die in the US every two days due to cancer than died on 9/11/01, and that a careful, extended study showed that the direct costs of cancer treatment are exceed by indirect costs of cancer at a ration of about 2.3 to 1 by the indirect costs.
The gist of her new article is to demonstrate that our nation fails to fund research on new ideas and instead strongly tends to fund new research in old areas. Doing so of course has its advantages in that little risk is taken, but the article also explains that taking risks and following new ideas is often how we make real progress. Indeed, just think of where we might be if Dr. Salk had been stuck thinking in conventional ways. Ironically, the later online version of the Sunday NYT includes a new article reporting on success in battling cancer in animals through some unusual techniques developed in Australia that take advantage of leaks in tumor blood vessels to deliver minicells that mark the area for treatment.
For a dramatic, detailed and easy to read example of why new thinking is a MUST for cancer, read Dr. Folkman's War. http://www.amazon.com/Dr-Folkmans-War-Angiogenesis-Struggle/dp/0375502440
The book tells the story of how a stint doing pathology and seeing tiny tumors throughout bodies ultimately caused Dr. Judah Folkman to reach the profound insight that all solid tumors need blood vessels to grow, and that something in the body must turn on and off the ability to generate blood vessels. As the book details, Dr. Folkman and his ideas were rejected and indeed even ridiculed. But after many years , his unorthodox theories ere proven correct. Research continues today into how to delay or stop tumor growth using some of the principles he developed, and some promising results have been obtained.
In short, there is much to be done to create a strong national or global strategy for solving or managing the myriad types of cancer. Indeed, I've come to the view that all the walkathons and charities are in a way counterproductive. Why? Because they implicitly send the message that cancer has to be solved through relatively modest hard-earned donations instead of through a massive national and international funding of efforts to find cures for cancers.
Finding ways to cure or manage cancer should be a priority of our government for both objective and subjective reasons. On the objective side, the direct and indirect costs of cancer are huge as detailed by the study mentioned above, and our economy needs the short term and long term jobs that new science may create (which would blue collar jobs as well because fermenting yeast to grow medicines is much like brewing beer, except even cleaner). For subjective reasons to find answers for cancer, consider that every two days, over 4,000 people will die from cancer. Our government, however, has not spent hundreds of billions of dollars a year to avenge the thousands of the thousands of "homeland" cancer deaths that occur every day.
For data for cancer for 2009, see:
http://www.cancer.org/docroot/STT/STT_0.asp
Saturday, June 27, 2009
Efforts to Resolve GM Product Liability Claims Through Negotation with the Obama Administration - Will They Do Better Than the Asbestos Bankruptcies?
Non litigation alternatives are indeed being pursued in GM to try to settle pending and future product liability claims, as is evidenced by a Friday's June 26 Wall Street Journal article my Mike Spector and Jeffrey McCracken regarding state attorney generals trying to negotiate with the Obama administration over the treatment of product liability claims in GM. The article does not provide any specifics on where the money would come from, but my bet is still on the concept of asking the government to turn over some of its ownership rights in "new GM" to a product liability trust created to pay claims.
The article does not mention multiple key issues that would have to be addressed if a trust is created. One would be: how will someone decide whether or when future product liability payments would be made. Would the claims be made be made through a trust with money set aside to pay claims? Would claims be processed administratively without a trial ? Would the bankruptcy court delegate to state courts the job of trying cases to resolve claims through actual trials ?
Beyond those direct issues, consider also the important rights and interests of the myriad other entities who are routinely sucked into product liability cases with GM when cars are in crashes. Let's assume a trust is set up to pay future product liability claims from a financial base comprised of some cash and stock, as is typically done in asbestos bankruptcy trusts. If a trust is created, then multiple issues arise.
One issue when and how the trust coordinates with state court tort system claims and the rights of other tort system defendants. Suppose, for example, that a car crash victim driving a GM car claims that he is a quadriplegic because a seat malfunctioned. Assume also that the claimant cannot sue GM due to the bankruptcy court having issued an injunction purporting to prohibit future product liability claims against New GM, and old GM has no money. Suppose the quadriplegic does not sue either Old or New GM and instead files a state court lawsuit that names as defendants the entity that manufactured and sold the car seat system to GM, the manufacturer of a component of the seat, and the car dealer that sold the GM car.
In that state court lawsuit, can those defendants do what they would normally do in the state court tort system, which is to bring a contribution or indemnity claim against GM (or the trust) if GM designed and specified the car seat system and/or the characteristics of the component? What are the rights of the car dealer who argues that she should not have to pay any money because all she did is sell the car? Can her company obtain indemnity from that trust or GM ? Can the plaintiff file a claim against the trust and keep it a secret from the parties to the state court litigation on the grounds that processing a trust claim is "a settlement?" Can the plaintiff take the state court case to trial, win money and then later obtain additional money from the trust?
All of these issues are very real, and exemplify problems that have been dealt with badly in asbestos bankruptcy cases where the rights of co defendants have been given at best nominal treatment, and trusts have frequently failed to honor the rights of co defendants. The problems are exacerbated by the reality that many but not all members of the plaintiff"s bar have been gaming the overall compensation system by bringing a state court claims for asbestos injuries, but trying terribly hard to keep the state court defendants from learning anything about claims submitted to any of the many asbestos trusts that collectively hold something in the vicinity of $30 billion. The problems also are made worse by terms in many of the asbestos bankruptcy trusts that purport to allow the plaintiff's lawyers and their clients to resolve the state court claim in full and to then later bring claims against the trusts, thereby obtaining compensation twice in some but not all cases.
Why have these lousy situations emerged in asbestos bankruptcies ? There are a variety of answers and factors, including the plaintiff's bar and debtors trying to keep co defendants and insurers from being allowed to exert any rights in bankruptcy. Another problem is that the bankruptcy court lawyers and judges in general have little or no understanding of the intricacies of product liability claims. Yet another problem is that the bankruptcy code was not designed in terms of its intersection with product liability claims, in part because product liability as we know it today did not really take off and become a major issue until the 1970s. And, when an asbestos bankruptcy code section was added in 1994, the section was very poorly done and bears much of the blame for the asbestos bankruptcies. Yet another problem is that insurance that might be used to pay such claims is often compromised through "an insurance policy buyout" in which an insurance company agrees to pay a fixed amount of money in return for the insured company releasing all of its rights under the product liability insurance. To the dismay of product liability claimants, the money generated by such buyouts typically is not put into a trust and instead of the money may be used for any other purpose, including trying to stave off bankruptcy by paying fees to lawyers and/or investment bankers, or may be be used to pay off secured creditors, leaving no source of funds for product liability victims. And, cynics have said that bankruptcy courts are out of control and so pro-debtor that they will do anything to get a debtor out of chapter 11, including trampling the due process rights of co defendants and tort victims.
One hopes that a much better solution will be created for the GM and Chrysler bankruptcies. One hopes that a better solutions will then be implemented for past and future asbestos bankruptcy trusts. Some but not all of the existing asbestos trusts have failed to respect the rights of tort system of co defendants, and have left the remaining manufacturers to beat he financial burdens created by the bankruptcies of other defendants. This would be a great time to start fixing some of the myriad problems created by the intersection of "long tail liability" claims and chapter 11 cases.
Here are a key excerpts from the Wall Street Journal article:
"The case law is unclear and ambiguous on the issue of future product-liability claims. So when the case law is all over the map, a lot of times it makes sense for both sides to settle," said one administration official."
***
Last year, GM set aside $921 million for product-liability litigation, and in 2007 it had $1.1 billion available.
"Everyone agrees there has to be some access to the courts," said Maryland Attorney General Douglas Gansler, a Democrat who co-chaired Mr. Obama's presidential campaign in the state.
The auto task force has been caught off guard by the recent outcry from attorneys general and consumer groups. The task force modeled GM's bankruptcy plan after Chrysler's, without giving much weight to the potential fallout from leaving product-liability claims behind, said people familiar with the matter."
"In opposing GM's product-liability plan, state attorneys general are raising a number of complex legal issues, ranging from the power of federal bankruptcy courts to supercede state law to constitutional due-process rights of Americans to sue GM if they're injured by the auto maker's vehicles in the months and years ahead."
The article does not mention multiple key issues that would have to be addressed if a trust is created. One would be: how will someone decide whether or when future product liability payments would be made. Would the claims be made be made through a trust with money set aside to pay claims? Would claims be processed administratively without a trial ? Would the bankruptcy court delegate to state courts the job of trying cases to resolve claims through actual trials ?
Beyond those direct issues, consider also the important rights and interests of the myriad other entities who are routinely sucked into product liability cases with GM when cars are in crashes. Let's assume a trust is set up to pay future product liability claims from a financial base comprised of some cash and stock, as is typically done in asbestos bankruptcy trusts. If a trust is created, then multiple issues arise.
One issue when and how the trust coordinates with state court tort system claims and the rights of other tort system defendants. Suppose, for example, that a car crash victim driving a GM car claims that he is a quadriplegic because a seat malfunctioned. Assume also that the claimant cannot sue GM due to the bankruptcy court having issued an injunction purporting to prohibit future product liability claims against New GM, and old GM has no money. Suppose the quadriplegic does not sue either Old or New GM and instead files a state court lawsuit that names as defendants the entity that manufactured and sold the car seat system to GM, the manufacturer of a component of the seat, and the car dealer that sold the GM car.
In that state court lawsuit, can those defendants do what they would normally do in the state court tort system, which is to bring a contribution or indemnity claim against GM (or the trust) if GM designed and specified the car seat system and/or the characteristics of the component? What are the rights of the car dealer who argues that she should not have to pay any money because all she did is sell the car? Can her company obtain indemnity from that trust or GM ? Can the plaintiff file a claim against the trust and keep it a secret from the parties to the state court litigation on the grounds that processing a trust claim is "a settlement?" Can the plaintiff take the state court case to trial, win money and then later obtain additional money from the trust?
All of these issues are very real, and exemplify problems that have been dealt with badly in asbestos bankruptcy cases where the rights of co defendants have been given at best nominal treatment, and trusts have frequently failed to honor the rights of co defendants. The problems are exacerbated by the reality that many but not all members of the plaintiff"s bar have been gaming the overall compensation system by bringing a state court claims for asbestos injuries, but trying terribly hard to keep the state court defendants from learning anything about claims submitted to any of the many asbestos trusts that collectively hold something in the vicinity of $30 billion. The problems also are made worse by terms in many of the asbestos bankruptcy trusts that purport to allow the plaintiff's lawyers and their clients to resolve the state court claim in full and to then later bring claims against the trusts, thereby obtaining compensation twice in some but not all cases.
Why have these lousy situations emerged in asbestos bankruptcies ? There are a variety of answers and factors, including the plaintiff's bar and debtors trying to keep co defendants and insurers from being allowed to exert any rights in bankruptcy. Another problem is that the bankruptcy court lawyers and judges in general have little or no understanding of the intricacies of product liability claims. Yet another problem is that the bankruptcy code was not designed in terms of its intersection with product liability claims, in part because product liability as we know it today did not really take off and become a major issue until the 1970s. And, when an asbestos bankruptcy code section was added in 1994, the section was very poorly done and bears much of the blame for the asbestos bankruptcies. Yet another problem is that insurance that might be used to pay such claims is often compromised through "an insurance policy buyout" in which an insurance company agrees to pay a fixed amount of money in return for the insured company releasing all of its rights under the product liability insurance. To the dismay of product liability claimants, the money generated by such buyouts typically is not put into a trust and instead of the money may be used for any other purpose, including trying to stave off bankruptcy by paying fees to lawyers and/or investment bankers, or may be be used to pay off secured creditors, leaving no source of funds for product liability victims. And, cynics have said that bankruptcy courts are out of control and so pro-debtor that they will do anything to get a debtor out of chapter 11, including trampling the due process rights of co defendants and tort victims.
One hopes that a much better solution will be created for the GM and Chrysler bankruptcies. One hopes that a better solutions will then be implemented for past and future asbestos bankruptcy trusts. Some but not all of the existing asbestos trusts have failed to respect the rights of tort system of co defendants, and have left the remaining manufacturers to beat he financial burdens created by the bankruptcies of other defendants. This would be a great time to start fixing some of the myriad problems created by the intersection of "long tail liability" claims and chapter 11 cases.
Here are a key excerpts from the Wall Street Journal article:
"The case law is unclear and ambiguous on the issue of future product-liability claims. So when the case law is all over the map, a lot of times it makes sense for both sides to settle," said one administration official."
***
Last year, GM set aside $921 million for product-liability litigation, and in 2007 it had $1.1 billion available.
"Everyone agrees there has to be some access to the courts," said Maryland Attorney General Douglas Gansler, a Democrat who co-chaired Mr. Obama's presidential campaign in the state.
The auto task force has been caught off guard by the recent outcry from attorneys general and consumer groups. The task force modeled GM's bankruptcy plan after Chrysler's, without giving much weight to the potential fallout from leaving product-liability claims behind, said people familiar with the matter."
"In opposing GM's product-liability plan, state attorneys general are raising a number of complex legal issues, ranging from the power of federal bankruptcy courts to supercede state law to constitutional due-process rights of Americans to sue GM if they're injured by the auto maker's vehicles in the months and years ahead."
Global Warming Litigation - California Dismisses its Claims on Appeal
Here is Walter Olson's recent post linking to articles and underlying documents regarding California's voluntary dismissal of its appeal in its global warming lawsuit against car makers. Here, Jenner & Block provides some older commentary on other rulings in the area. For pro plaintiff coverage, see the warminglaw blog that is here and an old post here includes a link to the district court's opinion.
Friday, June 26, 2009
Two New Examples of Winning/Avoiding Litigation in Other Forums - Autism Treatment/Insurers and Chinese Drywall
More and more, entities with a stake in actual or potential litigation are taking different paths to an outcome regarding the costs suffered by persons harmed by defective products. My personal bet is that soon there will be requests to Congress to use some of the government's shares of New Chrysler and New GM to provide the financial basis to create a fund to pay the product liability claimants against Chrysler or GM for whom apparently will be no money to pay whichever of the claims are valid. Indeed, in a hearing yesterday, tort claimants made no forward progress with Judge Gerber.
Two recent examples of creative solutions are set out below. In one, legislators are asking for tax deductions for homeowners with Chinese drywall problems. In the other example, states have specifically legislated that health insurers must pay for some autism treatments that insurers such as Blue Cross of Michigan had refused to cover, and now Blue Cross has agreed to settle the claims AND is now selling a special form of coverage for intensive autism therapy. The message of course is: think creatively. See below for more specifics.
_______________________________________________________________Here is the link to the article on the Chinese drywall.
Lawmakers Ask IRS for Chinese Drywall DeductionWashington, D.C.(June 22, 2009)
By WebCPA StaffFour Southern congressmen have written to the IRS asking for casualty loss deductions for homeowners whose property has been damaged by installations of defective Chinese drywall.Sens. Mark Warner, D-Va.; Jim Webb, D-Va.; and Bill Nelson, D-Fla., along with Rep. Glenn Nye, D-Va., wrote to Floyd Williams, national director of legislative affairs at the IRS, to point out the problems that their constituents have experienced with the drywall.Sen. Jim WebbThey noted that many homes with Chinese drywall have shown evidence of extreme corrosion of pipes, air conditioning coils and electrical appliances.
________________________________________________________________
Here (very detailed) and here are links to articles about autism and Blue Cross Blue Shield of Michigan
In a settlement, Michigan insurance company agrees to pay for autism treatments Tresa Baldas June 22, 2009In what plaintiffs' lawyers are calling a landmark autism case, a Michigan insurance company has agreed to reimburse at least 100 families for costs involving treatments for their autistic children.The $1 million class action settlement from Blue Cross Blue Shield of Michigan comes amid a legislative wave in which a growing number of a states are passing laws that require insurance companies to pay for autism treatments and screenings. To date, 13 states have such laws, the most recent being Connecticut, Colorado and Nevada. New Jersey is currently considering an autism bill, and Pennsylvania's law goes into effect July 1.
Two recent examples of creative solutions are set out below. In one, legislators are asking for tax deductions for homeowners with Chinese drywall problems. In the other example, states have specifically legislated that health insurers must pay for some autism treatments that insurers such as Blue Cross of Michigan had refused to cover, and now Blue Cross has agreed to settle the claims AND is now selling a special form of coverage for intensive autism therapy. The message of course is: think creatively. See below for more specifics.
_______________________________________________________________Here is the link to the article on the Chinese drywall.
Lawmakers Ask IRS for Chinese Drywall DeductionWashington, D.C.(June 22, 2009)
By WebCPA StaffFour Southern congressmen have written to the IRS asking for casualty loss deductions for homeowners whose property has been damaged by installations of defective Chinese drywall.Sens. Mark Warner, D-Va.; Jim Webb, D-Va.; and Bill Nelson, D-Fla., along with Rep. Glenn Nye, D-Va., wrote to Floyd Williams, national director of legislative affairs at the IRS, to point out the problems that their constituents have experienced with the drywall.Sen. Jim WebbThey noted that many homes with Chinese drywall have shown evidence of extreme corrosion of pipes, air conditioning coils and electrical appliances.
________________________________________________________________
Here (very detailed) and here are links to articles about autism and Blue Cross Blue Shield of Michigan
In a settlement, Michigan insurance company agrees to pay for autism treatments Tresa Baldas June 22, 2009In what plaintiffs' lawyers are calling a landmark autism case, a Michigan insurance company has agreed to reimburse at least 100 families for costs involving treatments for their autistic children.The $1 million class action settlement from Blue Cross Blue Shield of Michigan comes amid a legislative wave in which a growing number of a states are passing laws that require insurance companies to pay for autism treatments and screenings. To date, 13 states have such laws, the most recent being Connecticut, Colorado and Nevada. New Jersey is currently considering an autism bill, and Pennsylvania's law goes into effect July 1.
Thursday, June 25, 2009
Argentine Manufacturing Plant Workers Assert Asbestos Exposure Claims Against DuPont In Delaware
Per this article from Delaware Online:
June 25, 2009
DuPont sued over asbestos in ArgentinaEx-Lycra plant workers say they were exposed
By ANDREW EDER and AARON NATHANS
The News Journal
DuPont Co. exposed workers in Argentina to asbestos until the late 1990s despite knowing the risks of the material, according to three lawsuits filed Wednesday in Delaware.
The lawsuits came from former workers at a Lycra spandex plant in Mercedes, Argentina, that was part of DuPont until the sale of its textile unit in 2004.
DuPont knew that exposure to asbestos could harm workers as early as 1964, the complaints said, but the company continued to use asbestos in the heat pipes and machinery of its Argentina facilities until the late 1990s.
The workers, Cristian Dematei, Juan Carlos Laborda and Ceferino Ramirez, are represented by the Wilmington law firm Jacobs & Crumplar. The law firm said more lawsuits would follow.
Dematei, who worked at the facility for 11 years, suffers from asbestosis, a chronic condition that causes shortness of breath and an increased risk of lung cancer, the complaint said.
Laborda worked at the plant from 1968 to 1980, according to his complaint, and suffers from asbestosis and asbestos-related lung cancer.
Ramirez worked at the facility for 32 years before retiring in 1993. He has been diagnosed with asbestos-related laryngeal cancer and asbestosis, his lawsuit said.
The lawsuits allege that workers were never warned of the dangers of asbestos exposure or given respiratory protection.
Amanda Velazquez, asbestos medical paralegal for Jacobs & Crumplar, said: "They need to break the double standard," referring to DuPont stopping using asbestos in U.S. plants earlier.
DuPont spokesman Dan Turner said, "While we have not had the opportunity to review the filing yet, and cannot comment on the specifics, we do find it puzzling that the plaintiff's attorneys have filed the compliant in Delaware rather than the country of origin. The safety and health of our employees, our neighbors and our community has and continues to be DuPont's highest priority."
Velazquez said it makes sense to sue a company in the place where it is based.
June 25, 2009
DuPont sued over asbestos in ArgentinaEx-Lycra plant workers say they were exposed
By ANDREW EDER and AARON NATHANS
The News Journal
DuPont Co. exposed workers in Argentina to asbestos until the late 1990s despite knowing the risks of the material, according to three lawsuits filed Wednesday in Delaware.
The lawsuits came from former workers at a Lycra spandex plant in Mercedes, Argentina, that was part of DuPont until the sale of its textile unit in 2004.
DuPont knew that exposure to asbestos could harm workers as early as 1964, the complaints said, but the company continued to use asbestos in the heat pipes and machinery of its Argentina facilities until the late 1990s.
The workers, Cristian Dematei, Juan Carlos Laborda and Ceferino Ramirez, are represented by the Wilmington law firm Jacobs & Crumplar. The law firm said more lawsuits would follow.
Dematei, who worked at the facility for 11 years, suffers from asbestosis, a chronic condition that causes shortness of breath and an increased risk of lung cancer, the complaint said.
Laborda worked at the plant from 1968 to 1980, according to his complaint, and suffers from asbestosis and asbestos-related lung cancer.
Ramirez worked at the facility for 32 years before retiring in 1993. He has been diagnosed with asbestos-related laryngeal cancer and asbestosis, his lawsuit said.
The lawsuits allege that workers were never warned of the dangers of asbestos exposure or given respiratory protection.
Amanda Velazquez, asbestos medical paralegal for Jacobs & Crumplar, said: "They need to break the double standard," referring to DuPont stopping using asbestos in U.S. plants earlier.
DuPont spokesman Dan Turner said, "While we have not had the opportunity to review the filing yet, and cannot comment on the specifics, we do find it puzzling that the plaintiff's attorneys have filed the compliant in Delaware rather than the country of origin. The safety and health of our employees, our neighbors and our community has and continues to be DuPont's highest priority."
Velazquez said it makes sense to sue a company in the place where it is based.
Wednesday, June 24, 2009
Email Subscription Option, and Blog Technical Problems
In response to some requests, there is now an email subscription that allows you to receive an email of every new post. If that is of interest to you, look at the top left hand corner of the blog.
As to technical issues, even Google screws up. In fact, Google is having problems getting posts to actually show up on the blog when scheduled to appear. So, for that reason, two new posts showed up at about the same time today. The same posts may repeat themselves in the future. If that happens, I apologize but I cannot control when Google gets the problem fixed.
As to technical issues, even Google screws up. In fact, Google is having problems getting posts to actually show up on the blog when scheduled to appear. So, for that reason, two new posts showed up at about the same time today. The same posts may repeat themselves in the future. If that happens, I apologize but I cannot control when Google gets the problem fixed.
Amphibole Asbestos Fibers - Increased Mesothelioma Deaths In Towns in Israel and Italy
Current articles here and here follow up on a conference in Israel regarding a town there with high mesothelioma rates. Asbestos campaigners long-ago reported here that the town included an asbestos-cement plant that used the amphibole asbestos fibers known as crocidolite and amosite. A detailed report with pictures is available here at World Asbestos Report. The company operating this plant is said here to have been Eitanit, formerly known as Isabest; wit the town and factory located in Nahariya, in the Western Galilee.
According to one of the articles above:
"The choice of topic by Asbestos Consultant Andy Oberta was particularly relevant to Greece - a country in which asbestos-cement products are still being manufactured. The case study An Asbestos-Cement Plant in Israel: Contamination, Clean-up and Dismantling detailed Mr. Oberta’s involvement with a project in the City of Nahariya, Northern Israel. For nearly fifty years, amosite, crocidolite and chrysotile had been used at this site during the manufacture of asbestos-cement pipes and sheet products. The factory owners distributed asbestos waste to local people for use on their driveways, paths and farms throughout western Galilee. Although the plant shut in 1997, friable and non-friable waste material was still lying on the beach and by the roads which bordered the factory site. Town councilors thought a good use for the area would be a children’s amusement park and plans were developed to build this tourist attraction. A series of photographs illustrated the hazards of such a plan and Mr. Oberta explained the process by which negotiations with the Israeli Ministry of the Environment and local people resulted in the rejection of this idea."According to an old article you can find online through various paid sources:
COPYRIGHT 1991 Israel Business TodayEitanit Set to Re-enter U.S. Market The U.S. Federal Court recently canceled the ban on asbestos products initiated by the EPA in 1989. The decision opens the way for Eitanit, formerly called Isasbest, to reenter the U.S. market. The company is the only manufacturer of asbestos products in Israel and anticipates sales of $25 million in 1991. Managing Director Uri Peled says the company has invested significant sums in reducing health hazards to its 200 employees. Eitanit is owned by the Federman family.
Old manufacturing plants also have created issues'>http://www.eia-usa.org/forum/viewtopic.php?id=14">issues in the Chicago area as an old Manville plant that used amphibole fibers was located in Waukegan near an Illinois public beach and state park.
9/11 Tort Litigation - Sovereign Immunity and Secrecy Issues
Do not miss a fascinating June 24 article in the New York Times regarding the tort litigation seeking damages from the Saudi royal family for the 9/11 attacks, and make sure to click back through the prior articles and briefs linked to in the past articles. One issue of course is sovereign immunity. Another issue is secrecy - the article quotes from documents said to help prove the claim that some members of the royal family provided financial support to groups said to be linked to terrorists. So far, the immunity defense is prevailing. There also is an ongoing battle about whether the documents can be made public since they were apparently leaked to one of the plaintiff's firms, the Motley Rice firm of asbestos and tobacco fame.
Tuesday, June 23, 2009
Asbestos Campaigners 1,200 Mile Bike Ride in the UK
Asbestos campaigners in the UK have embarked on a 1,200 mile bicycle trip to publicize the need for more medical research into asbestos-related cancers and to publicize asbestos issues. The trip is the subject of a blog known as "Breath-Taking Journey" and is found here. The ride is to end on July 4.
Monday, June 22, 2009
Updated - Reactions to Travelers Manville Asbstos Bankruptcy Opinion
An article here provides a quick comment from Elizabeth Warren and mentions law students who helped Prof. Isacharoff.
A Law360 article here includes the following quotes:
"Gary Svirsky, a partner in O’Melveny & Myers LLP’s securities litigation practice who has been observing the case, said in an e-mail that the Supreme Court “opted to rule on the narrowest of grounds.” The court may have opted to keep its decision narrow “so as not to unduly limit the court’s flexibility in addressing complex problems that might be raised in future bankruptcies,” such as the recently filed bankruptcies of U.S. automakers, Svirsky said.“While beyond the scope of this report, the issues posed by nonderivative claims remain open and alive after this decision in our opinion,” he said.
The court “seems to have gone out of its way to not adjudicate the actual merits of the dispute and just say that it has to progress in an orderly fashion from the bankruptcy court,” said Samuel Issacharoff, a New York University law professor who represented asbestos claimants in the case before the Supreme Court.serving the case, said in an e-mail that the Supreme Court “opted to rule on the narrowest of grounds.”
An Am Law blog article by Alison Frankel reminds readers of prior exuberant comments by Travelers' counsel, Mr. Ostrager, and quotes him as follows:
Ostrager told the Litigation Daily by e-mail that the Supreme Court ruling is "100 percent in our favor." He added: "Every aspect of the Second Circuit's substantive legal reasoning was rejected (either expressly or by implication). It is, therefore, a complete and total victory."
A Law360 article here includes the following quotes:
"Gary Svirsky, a partner in O’Melveny & Myers LLP’s securities litigation practice who has been observing the case, said in an e-mail that the Supreme Court “opted to rule on the narrowest of grounds.” The court may have opted to keep its decision narrow “so as not to unduly limit the court’s flexibility in addressing complex problems that might be raised in future bankruptcies,” such as the recently filed bankruptcies of U.S. automakers, Svirsky said.“While beyond the scope of this report, the issues posed by nonderivative claims remain open and alive after this decision in our opinion,” he said.
The court “seems to have gone out of its way to not adjudicate the actual merits of the dispute and just say that it has to progress in an orderly fashion from the bankruptcy court,” said Samuel Issacharoff, a New York University law professor who represented asbestos claimants in the case before the Supreme Court.serving the case, said in an e-mail that the Supreme Court “opted to rule on the narrowest of grounds.”
An Am Law blog article by Alison Frankel reminds readers of prior exuberant comments by Travelers' counsel, Mr. Ostrager, and quotes him as follows:
Ostrager told the Litigation Daily by e-mail that the Supreme Court ruling is "100 percent in our favor." He added: "Every aspect of the Second Circuit's substantive legal reasoning was rejected (either expressly or by implication). It is, therefore, a complete and total victory."
CSX Moving Towards Trial on Claims Against West Virginia Asbestos Plaintiff's Firm Peirce, Raimond & Coulter and Radiologist Ray Harron
An article by Steve Korris in the Madison County Dail Record provides an update on CSX's lawsuit targeting the Pittsburgh-based Peirce, Raimond plaintiff's law firm and radiologist Ray Harron, one of the doctors identified by many as facilitating bogus claiming. The case is set for trial in August on CSX's claims that in essence accuse the law firm and doctor of manufacturing bogus law suits. Here are some key excerpts from the article:
"Baylor's case was a sham," CSX lawyer Marc Williams of Huntington, W.V. wrote to U.S. District Judge Frederick Stamp on June 16.During his May 11 deposition, Baylor "had virtually no knowledge of the circumstances" around his representation by Peirce, Raimond and Coulter of Pittsburgh, Williams wrote.
He wrote that Peirce firm lawyers "consistently acted without his authorization."He wrote that at his deposition Baylor identified his own signature on a questionnaire but said handwriting on the asbestos exposure section belonged to someone else.
Stamp plans to start trial Aug. 11 on CSX's fraud conspiracy suit against the Peirce firm, owner Robert Peirce, and radiologist Ray Harron of Bridgeport, W.V."
The Record, as its known, is a great source for general information about litigation developments in some well-known venues for tort litigation. The information comes with a definite but disclosed pro-defense view, as explained here. Different iterations of the Record focus on different "plaintiff-friendly" jurisdictions, including West Virginia (go here) and southeast Texas (go here).
"Baylor's case was a sham," CSX lawyer Marc Williams of Huntington, W.V. wrote to U.S. District Judge Frederick Stamp on June 16.During his May 11 deposition, Baylor "had virtually no knowledge of the circumstances" around his representation by Peirce, Raimond and Coulter of Pittsburgh, Williams wrote.
He wrote that Peirce firm lawyers "consistently acted without his authorization."He wrote that at his deposition Baylor identified his own signature on a questionnaire but said handwriting on the asbestos exposure section belonged to someone else.
Stamp plans to start trial Aug. 11 on CSX's fraud conspiracy suit against the Peirce firm, owner Robert Peirce, and radiologist Ray Harron of Bridgeport, W.V."
The Record, as its known, is a great source for general information about litigation developments in some well-known venues for tort litigation. The information comes with a definite but disclosed pro-defense view, as explained here. Different iterations of the Record focus on different "plaintiff-friendly" jurisdictions, including West Virginia (go here) and southeast Texas (go here).
Sunday, June 21, 2009
The Entrepreneurial Litigation Industry
What will the global litigation industry look like in 10 years? My bet is that it will look increasingly entrepreneurial, and more like the litigation industry as it presently exists outside the US.
In Australia, a personal injury law firm known as Slater & Gordon went public back in May 2007, as it describes on its history page. That development caught the eye of the WSJ - see here.
In Europe, there is an interesting variation on that theme as corporate law firms already include groups of lawyers working on contingent fees for personal injury claimants. Thus, Field Fisher Waterhouse looks like and is a corporate law firm with offices across Europe, as you can see by visiting its home page. In addition, however, the firm also has an apparently active, successful practice representing personal injury claimants in a wide range of claims. The website page for personal injury claims is here, and describes the firm representing plaintiffs in medical malpractice litigation and in asbestos litigation.
In the US, the move to entrepreneurial litigation is today the subject of a growing number of discussions about moving away from the billable hour to flat fees and contingent fees for litigation and corporate work. Indeed, there is an already active alternative entrepreneurial approach used by boutique law firms (e.g. Bartlit Beck; Valorem Law Group; Boies Schiller ) and some large law firms (e.g. Robins Kaplan for some time, with Saul, Ewing and Kirkland & Ellis now saying they are doing the same) working for corporations on contingent fees and various forms of flat fees. And, firms such as Robins Kaplan sort of took on personal injury litigation as plaintiffs when it represented the state of Minnesota in tobacco litigation. Take a read through the websites and note the wide range of cases handled for corporate Americas as plaintiffs.
In Australia, a personal injury law firm known as Slater & Gordon went public back in May 2007, as it describes on its history page. That development caught the eye of the WSJ - see here.
In Europe, there is an interesting variation on that theme as corporate law firms already include groups of lawyers working on contingent fees for personal injury claimants. Thus, Field Fisher Waterhouse looks like and is a corporate law firm with offices across Europe, as you can see by visiting its home page. In addition, however, the firm also has an apparently active, successful practice representing personal injury claimants in a wide range of claims. The website page for personal injury claims is here, and describes the firm representing plaintiffs in medical malpractice litigation and in asbestos litigation.
In the US, the move to entrepreneurial litigation is today the subject of a growing number of discussions about moving away from the billable hour to flat fees and contingent fees for litigation and corporate work. Indeed, there is an already active alternative entrepreneurial approach used by boutique law firms (e.g. Bartlit Beck; Valorem Law Group; Boies Schiller ) and some large law firms (e.g. Robins Kaplan for some time, with Saul, Ewing and Kirkland & Ellis now saying they are doing the same) working for corporations on contingent fees and various forms of flat fees. And, firms such as Robins Kaplan sort of took on personal injury litigation as plaintiffs when it represented the state of Minnesota in tobacco litigation. Take a read through the websites and note the wide range of cases handled for corporate Americas as plaintiffs.
Where will this end up in the US ? Hard to say due to state by state ethics rules, but plainly the American liitigation industry will become even more entrepreneurial, as it already is around the globe. And, with more and more corporations acting as plaintiffs, some traditional positions are going to become harder to sustain. It will be, for example, harder for corporate America to complain credibly about contingent fees and "trial lawyers" when corporate America is using the same approach.
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