Today, more on science, cancer and law. Why do I think these topics are worth writing about for tort lawyers and perhaps some policy-makers around the world? Because science brings us a fast arriving future, as is detailed below. And, if the US actually achieves health care reform and more sophisticated rules at the FDA, cures will arrive even sooner. The results for lawyers, cancer victims and persons at risk ? Over the next few years, we will see more highly specific lawsuits seeking specific kinds of medical monitoring (tests for proteins, specific types of scans) and specific leading-edge clinical treatments. You can read here a summary of the cases Phillip Morris is fighting and note that two (in New York and Massachusetts ) are medical monitoring cases seeking CT scans for certain groups of smokers. More such suits are sure to come as science moves ahead. And, damages claims are going to increase around the world as even the poorest persons from any nation seek what they will argue is the fundamental human right to funds for and access to a meaningful chance for a cure for cancer. Thus, the financial and human stakes will continue to rise for parties to litigation and national policy-makers.
To start with, consider some numbers regarding cancer. About 2,4oo hundred or so annual mesothelioma cancer deaths in the US have caused the payment of hundreds of billions of dollars in settlement payments and legal fees. The mesothelioma rate is exploding over seas, especially in Australia and Europe where amphibole use was rampant and continued far longer than it did in the US. Meanwhile, many nations are increasing the use of asbestos, including some use of chrysotile that contains amphiboles.
Now look outside asbestos and see how small mesothelioma is in the grand scheme. Per statistics from the American Cancer Society, over 1.4 million new cancers will be diagnosed this year just in the US and 4% of Americans are cancer survivors. Every two days, more people in the US die of cancer than died on 9/11/01. Mesothelioma is a modest problem in that scale (a statement which is not to minimize the horrible and almost always fatal nature of mesothelioma.)
Now, think about another form of cancer, such as non-Hodgkin's lymphoma. The annual rate used to be over 50,000 per year (in just the US) but now has climbed to well over 60,000 diagnoses per year. Please see this prior post for links to the American Cancer Society data and for Gina Kolata's prior article summarizing the slow pace of generating cures.
In view of those numbers, consider where science is on research. Ms. Kolata last week published this important new article detailing the moribund pace and utility of clinical trials for new cancer drugs. It's depressing reading as she details multiple problems, including lack of volunteers for the trials, and design flaws that require too many participants. Yet another problem - highly relevant today - is that most existing insurance reimbursement plans financially and practically discourage doctors from helping patients find and join appropriate clinical trials. So, for policy-makers and voters, here is proof that our present system is exactly backwards as it discourages clinical trials needed to find and prove cures for cancer. Thus, we now have further objective proof that our existing health care insurance system is built to generate revenues instead of cures, and so is deeply flawed for persons with serious diseases, which of course is the group that most needs health care and insurance. Hopefully a revised system will include some clever economic choice Nudges from the conservative and creative new regulatory czar, Cass Sunstein ( go here for the blog tied to the recent and wonderful book Nudge by Messrs. Sunstein and Thaler).
But, despite those flaws, is science now at a point to make real progress and actually put in place cures for at least several cancers? Some say yes. Who says so? Nobel Prize winner Dr. James Watson, one of the two leaders of the team that explained DNA's double-helix. Go here for his powerful article explaining that mapping the genome and other advances mean that science has made enough progress so that there is now a scientific tool kit that can actually work for some people with some cancers and can be applied to an increasingly wide range of cancers. Here's the opening paragraph of his article:
"THE National Cancer Institute, which has overseen American efforts on researching and combating cancers since 1971, should take on an ambitious new goal for the next decade: the development of new drugs that will provide lifelong cures for many, if not all, major cancers. Beating cancer now is a realistic ambition because, at long last, we largely know its true genetic and chemical characteristics." (emphasis added).
Go here for Dr. Wendy Harpham's full post on Dr. Watson's article, but here is Dr. Harpham's summary of his recommendations:
"Watson believes :
The new signal-blocking drugs (e.g., Herceptin) will lead only to improved lengths of survival.
Most anticancer drugs can reach their full potential only if given in combination with other drugs.
We must change F.D.A. regulations to allow testing in combination new drugs that, when given alone, have proved ineffective.
The NCI should provide funds to smaller biotech companies doing innovative work and to major research-oriented cancer centers doing low probability-high payoff projects."
Do clinical trials and science actually translate into lives saved even while science is ongoing? Yes, sometimes. Want proof ? Go to this blog (On Healthy Survivorship) to read Dr. Harpham's personal success story. She is a physic an who was forced to give up her patient treatment practice back in the early 1990s due to repeated onsets of non-Hodgkins lymphoma. Thwarted, she refocused to writing a great series of books and a blog about cancer and healthy survivorship. Today, she is a healthy survivor because of clinical trials and monoclonal antibodies, and healthy, realistic hope, as she describes in this post in particular and her blog and books in general.
Conclusion ? I'd say defense lawyers and corporations face future waves of claims based on new science and new lawsuits seeking new remedies. Specific causation and other defenses of course will continue to exist, but when the plaintiffs can invoke names of credible scientists such as Dr. Watson, the defense side will start to see one aspect of the whittling back of science as major weapon against tort claims.
Tuesday, August 11, 2009
Monday, August 10, 2009
Decisions on Efforts to Press Legal Malpractice Claims Against Class Counsel and the Scope of the Legal Duties
DRI's blog includes this post by Shari Claire Lewis providing a concise summary of two recent appellate decisions involving attempted legal malpractice claims against class counsel by absent class members. One decision is by the New York Court of Appeals and one is from California's intermediate appellate court. Both decisions protected class counsel.
The New York decision precluded discovery into class counsel's files. This could be an important precedent so many collateral estoppel and class action cases are won or lost based on whether class counsel provided adequate representation for a group of claimants. The issues may be even more complex when global class actions are involved.
The New York decision precluded discovery into class counsel's files. This could be an important precedent so many collateral estoppel and class action cases are won or lost based on whether class counsel provided adequate representation for a group of claimants. The issues may be even more complex when global class actions are involved.
Sunday, August 9, 2009
Tort Claim Damages - The Impact of Immigration Possibilities and Claims for Lost Wages
With respect to tort claiming around the world, one frequent comment is that claiming will not increase very much because persons from developing nations may well have very limited claims for lost wages. That may be true in some cases, but the plaintiff's bar of course seeks ways to move by that barrier. One way to do that is to focus on the prospect that the claimant might have been able to or perhaps planned to immigrate to a more developed country and would have been gainfully employed in the new country. Reposted below is a Mondaq article on that topic from the Kennedys law firm. The article provides a useful example of the arguments being advanced to support and oppose claims of that sort.
_________________________________________________________
United Kingdom: Kennedys’ Settlement Of Claim Involving A Polish Citizen Highlights Tactics For Defending Claims By Migrant Workers For Loss Of The Chance Of A UK Earnings Model
28 July 2009Article by Mark Burton, Partner
Kennedys has recently settled a claim by a Polish citizen for a fraction of the amount claimed by raising arguments in relation to the assessment of loss of a chance and making use of our network of international offices to gather relevant evidence.
In 2004, the Claimant in this case was studying for a business degree in Poland. She was the victim of a very unpleasant assault by an employee of a bus company whilst on holiday in London. Kennedys was instructed by the bus company.
Liability was not in dispute but significant issues arose in relation to quantum. In particular, the Claimant alleged that from the summer of 2005 she would have come to England and found employment at the average UK graduate starting salary and remained in employment here, receiving regular salary increases
Loss Of A Chance
Kennedys argued that the career model put forward heaped speculation upon speculation to the point where the Claimant failed to satisfy the threshold test of a "real or substantial chance" as required by law on loss of a chance. The numerous imponderables thrown up by the facts of the case included:
The fact that she might have decided to stay in Poland with her family.
She might have come over to the UK, not liked it or failed to find suitable work and returned home.
She might have worked in the UK for a while, then lost her job due to the recession or started a family and opted not to go back to work.
Following the approach adopted by the Court of Appeal in Langford v Hebran [2001] Kennedys advanced a model comprising 5 career options in descending order of likelihood. We proposed that the most likely option was that the Claimant would have worked as an estate agent in Poland, in line with her pre-accident work experience. We then assigned percentages to the chances of her obtaining additional income from better paid careers in both countries. Only a 10% chance was applied to the likelihood of her spending the whole of her working career in the UK.
Importantly, we argued that the Poles who did prosper by coming to the UK were those with a trade to fill a vacuum in the British market during the boom years, especially in the construction sector between 2004 and 2007. We did not accept there was a co-existing vacuum in the graduate sector or that Polish qualifications would necessarily be sufficiently competitive in the UK graduate market.
Kennedys' London office worked on this case with our associated Warsaw office, which assisted with assessing the likely levels of income the Claimant might have attained in Poland and the significantly lower Polish rates for residual care and therapy.
Comment
The latest Government statistics show that over half a million people arrived to live in the UK in 2007. The highest inflow of any individual citizenship was from Poland, with an estimated 96,000 Polish citizens migrating into the UK that year. In this context it is not surprising that defendants and their insurers are seeing increasing numbers of claims involving migrant workers.
Invariably many of these claimants will seek to maximise their claims by alleging that their careers would have progressed in the UK. As the above case shows, it is important that defendants adopt a strong and careful approach to these claims. They should break down the possible career options and consider the realistic prospects of the claimant achieving these. If the claimant has returned home, evidence may be needed as to local rates for any residual claims. The financial difference between the two countries can often be quite striking. By these means, settlements at much more reasonable levels will be achieved
_________________________________________________________
United Kingdom: Kennedys’ Settlement Of Claim Involving A Polish Citizen Highlights Tactics For Defending Claims By Migrant Workers For Loss Of The Chance Of A UK Earnings Model
28 July 2009Article by Mark Burton, Partner
Kennedys has recently settled a claim by a Polish citizen for a fraction of the amount claimed by raising arguments in relation to the assessment of loss of a chance and making use of our network of international offices to gather relevant evidence.
In 2004, the Claimant in this case was studying for a business degree in Poland. She was the victim of a very unpleasant assault by an employee of a bus company whilst on holiday in London. Kennedys was instructed by the bus company.
Liability was not in dispute but significant issues arose in relation to quantum. In particular, the Claimant alleged that from the summer of 2005 she would have come to England and found employment at the average UK graduate starting salary and remained in employment here, receiving regular salary increases
Loss Of A Chance
Kennedys argued that the career model put forward heaped speculation upon speculation to the point where the Claimant failed to satisfy the threshold test of a "real or substantial chance" as required by law on loss of a chance. The numerous imponderables thrown up by the facts of the case included:
The fact that she might have decided to stay in Poland with her family.
She might have come over to the UK, not liked it or failed to find suitable work and returned home.
She might have worked in the UK for a while, then lost her job due to the recession or started a family and opted not to go back to work.
Following the approach adopted by the Court of Appeal in Langford v Hebran [2001] Kennedys advanced a model comprising 5 career options in descending order of likelihood. We proposed that the most likely option was that the Claimant would have worked as an estate agent in Poland, in line with her pre-accident work experience. We then assigned percentages to the chances of her obtaining additional income from better paid careers in both countries. Only a 10% chance was applied to the likelihood of her spending the whole of her working career in the UK.
Importantly, we argued that the Poles who did prosper by coming to the UK were those with a trade to fill a vacuum in the British market during the boom years, especially in the construction sector between 2004 and 2007. We did not accept there was a co-existing vacuum in the graduate sector or that Polish qualifications would necessarily be sufficiently competitive in the UK graduate market.
Kennedys' London office worked on this case with our associated Warsaw office, which assisted with assessing the likely levels of income the Claimant might have attained in Poland and the significantly lower Polish rates for residual care and therapy.
Comment
The latest Government statistics show that over half a million people arrived to live in the UK in 2007. The highest inflow of any individual citizenship was from Poland, with an estimated 96,000 Polish citizens migrating into the UK that year. In this context it is not surprising that defendants and their insurers are seeing increasing numbers of claims involving migrant workers.
Invariably many of these claimants will seek to maximise their claims by alleging that their careers would have progressed in the UK. As the above case shows, it is important that defendants adopt a strong and careful approach to these claims. They should break down the possible career options and consider the realistic prospects of the claimant achieving these. If the claimant has returned home, evidence may be needed as to local rates for any residual claims. The financial difference between the two countries can often be quite striking. By these means, settlements at much more reasonable levels will be achieved
Saturday, August 8, 2009
Judging Opinions and Other Writings Using Plagiarism Software
Great post on Conglomerate with links to lots of specifics about using plagiarim software to figure patterns and averages regarding the writing of Supreme Court opinions and other documents.
Friday, August 7, 2009
2d Circuit Issues Chrysler Opinion Explaining Prior Ruling
Wednesday, August 5, 2009
Tax Breaks for Plaintiff's Lawyers ?
Further proving that law is just another industry, LegalNewsline has an interesting article here about legislative efforts to give plaintiff's lawyers a tax break. Instead of personal injury case expenses being treated as loans to the clients, the plaintiff's lawyers want to immediately expense the amounts spent. According to the article, the hoped-for tax break was a topic at the recent national meeting of the trade association plaintiff's personal injury bar.
Monday, August 3, 2009
Signifcant Mass Tort Bankruptcy Issues in the W.R. Grace Asbestos Chapter 11 Case
Significant mass tort bankruptcy issues are being contested as the W.R. Grace asbestos chapter 11 case moves deeper into its phased confirmation hearing. Subsequent posts will touch on some of the issues and pleadings.
Two issues are of perhaps greatest overall note. First, multiple objectors are arguing that Grace in fact is solvent, and so they argue the plan is not confirmable because the payouts called for by the plan violate, they say, various subsections of code section 1129 regarding the relative rights to payments as between creditors and equity holders. In short, they say the equity owners are being allowed to keep too much in the way of assets.
Another big picture point is that the Grace case presents an unusual and wide-ranging set of plan objectors, with most or all of the challengers having apparently uncontested standing to object to the plan. So, this chapter 11 case could end as one of the few asbestos chapter 11 cases that actually ends with rulings and judgments instead of the usual bankruptcy court deals.
As a reminder of how Grace came to this juncture, recall that on April 7, 2008, W. R. Grace announced a settlement in principle of many but not all of the asbestos injury claims related to its long-running Chapter 11 case. The settlement occurred when the case was in the midst of a hotly contested trial on "liability estimation" for personal injury claims. Grace had presented significant evidence on the flaws of the "mass screened" asbestos cases, and was slated to present further evidence intended to diminish the value of future claims. Overall, Grace was putting on evidence to prove that many or most claims against were frivolous claims. Part way through that battle, Grace and the ACC (the Asbestos Creditor's Committee) reached a deal.
The prior settlement deal is described in the excerpts set out below from this article by Alison Frankel in the online American Lawyer.
Familiar Faces Central to W.R. Grace's Settlement of Asbestos Claims
The American Lawyer
By Alison Frankel
April 09, 2008
"The real driving force was not what was happening in Judge Fitzgerald's courtroom but how long it would take to reach a conclusion through litigation," says Elihu Inselbuch of Caplin & Drysdale, who was counsel to the asbestos claimants committee. "It could easily have gone on another four years, with asbestos victims getting sick and dying the whole time."
Two issues are of perhaps greatest overall note. First, multiple objectors are arguing that Grace in fact is solvent, and so they argue the plan is not confirmable because the payouts called for by the plan violate, they say, various subsections of code section 1129 regarding the relative rights to payments as between creditors and equity holders. In short, they say the equity owners are being allowed to keep too much in the way of assets.
Another big picture point is that the Grace case presents an unusual and wide-ranging set of plan objectors, with most or all of the challengers having apparently uncontested standing to object to the plan. So, this chapter 11 case could end as one of the few asbestos chapter 11 cases that actually ends with rulings and judgments instead of the usual bankruptcy court deals.
As a reminder of how Grace came to this juncture, recall that on April 7, 2008, W. R. Grace announced a settlement in principle of many but not all of the asbestos injury claims related to its long-running Chapter 11 case. The settlement occurred when the case was in the midst of a hotly contested trial on "liability estimation" for personal injury claims. Grace had presented significant evidence on the flaws of the "mass screened" asbestos cases, and was slated to present further evidence intended to diminish the value of future claims. Overall, Grace was putting on evidence to prove that many or most claims against were frivolous claims. Part way through that battle, Grace and the ACC (the Asbestos Creditor's Committee) reached a deal.
The prior settlement deal is described in the excerpts set out below from this article by Alison Frankel in the online American Lawyer.
Familiar Faces Central to W.R. Grace's Settlement of Asbestos Claims
The American Lawyer
By Alison Frankel
April 09, 2008
***
Familiarity doesn't preclude disagreement, however. W.R. Grace, which was forced into Chapter 11 bankruptcy in 2001 by asbestos liability, estimates the settlement to be worth less than $2.5 billion in present day value. The plaintiffs lawyers say its present value is closer to $3 billion.
The trust that will pay out asbestos claims will be funded by a $250 million cash contribution from Grace (payable on the company's emergence from Chapter 11); an additional $1.55 billion from Grace paid over 15 years, beginning in 2019; Grace's asbestos insurance coverage, worth an estimated $600 million; warrants to purchase Grace shares; and more than $1.2 billion in previous settlements with companies accused of fraudulently purchasing Grace assets.
Unlike previous bankrupt companies that reached deals with asbestos claimants, W.R. Grace went to trial to challenge the plaintiffs lawyers' estimation of its liability for the more than 100,000 asbestos claims it faced. Claimants estimated that liability to be $3.5 billion to $7 billion. Grace contended it owed less than $800 million, though it set asbestos reserves at $1.7 billion.
Beginning in January, Delaware federal bankruptcy court Judge Judith Fitzgerald presided over a trial to determine both the appropriate way to estimate claims and the total value of those claims. Grace had concluded its case and plaintiffs lawyers had presented their first witness when the deal was reached.
"The real driving force was not what was happening in Judge Fitzgerald's courtroom but how long it would take to reach a conclusion through litigation," says Elihu Inselbuch of Caplin & Drysdale, who was counsel to the asbestos claimants committee. "It could easily have gone on another four years, with asbestos victims getting sick and dying the whole time."
Subscribe to:
Posts (Atom)
Posts
