How should governments and courts decide/define when persons have a condition that should warrant payment of compensation through tort claims or through government agency programs ? The question is relevant in many settings, but the issues I know best relate to asbestos litigation. The question is presently the subject of discussion in a variety of jurisdictions and contexts.
Issues of this sort are under discussion in the UK. There, asbestos-related cancers are increasing significantly, and so are lawsuits seeking damages for the cancers. Paying compensation for cancer is easy to understand in many instances. However, some groups want to go further. Thus, some constituencies are urging the UK government (Britain and Wales, for this purpose) to use legislation to change recent case law so that payments may or will be paid to persons who can be deemed to have a condition known as "pleural plaques." Plaques are marks on a lining outside the lung, and the plaques are markers of past asbestos inhalation, but do not cause any impairment except, perhaps, in unique circumstances.
These issues arise because the House of Lords issued an opinion holding that common law compensation was not payable, concluding in essene that plaques do not constitute an injury. Subsequently, the UK Ministry of Justice issued a 9 July 2008 "Consultation" paper asking for views on whether the UK government should use legislation to allow or facilitate payment of compensation to persons with pleural plaques. The UK Consultation paper is a lengthy document setting out information about the issues, and five possible alternatives for government action, with a cost estimate for each of the five proposals. The government's Consultation paper is available online at: http://www.justice.gov.uk/publications/cp1408.htm.
Many papers were submitted on both sides of the issues, and the collection will be posted here as time permits. For now, I've posted online an image of the paper I submitted in opposition to the two most extreme aspects of the proposals set out in the Consultation paper.
The UK Government is expected to submit a reply to all the papers, and the reply is expected during November 2008.
Wednesday, November 12, 2008
Monday, November 3, 2008
Europe's REACH Regulations for Chemicals - Small and Mid-Sized US Companies Should Avoid Missing the December 1, 2008 Deadline for Registration
Lawyer friends from Europe (Hans-Josef Vogel) and the States (Dan Hull) tell me that many small and mid-sized American companies are not paying enough attention to the vast impact of Europe's new REACH regulations that apply to entities that send or import "substances" into the EU. "Substances" mainly means "chemicals" but is much broader in application since it applies to items such as incense or candles that involve chemical reactions produced by fire. So, in an article just published in Corporate Counsel magazine, I touched on the topic to try to help get the word out for those not yet paying attention to REACH and its important December 1 deadline to "register." The benefit of registering now is that it gives registered companies a chance to save potentially a lot of money down the line by avoiding regulatory hoops and instead being allowed to "piggyback" on information submitted by the large chemical companies and other.
For more specifics, go to the link above for "Hanjo's" law firm and search on REACH (yes, they have English versions), or click on the following link for a summary article explaining REACH and the rules regarding registration. Messrs. Gerhold and Roeder of the firm are the resident experts.
http://www.avocado-law.com/index.php?id=199&tx_ttnews[backPid]=119&tx_ttnews[day]=25&tx_ttnews[month]=10&tx_ttnews[tt_news]=705&tx_ttnews[year]=2007&cHash=97edacf350
For more specifics, go to the link above for "Hanjo's" law firm and search on REACH (yes, they have English versions), or click on the following link for a summary article explaining REACH and the rules regarding registration. Messrs. Gerhold and Roeder of the firm are the resident experts.
http://www.avocado-law.com/index.php?id=199&tx_ttnews[backPid]=119&tx_ttnews[day]=25&tx_ttnews[month]=10&tx_ttnews[tt_news]=705&tx_ttnews[year]=2007&cHash=97edacf350
Saturday, November 1, 2008
Go Vote - Extreme Views in Politics and Tort Litigation - We Need "Better"
With election day in the US just 2 days away, this is a plea to all to get out and vote on Tuesday, if it's not already done.
This also seems an appropriate time to comment that it seems plain that both politics and tort litigation tend to inspire extreme views, generally to the detriment of society.
Our presidential campaign this year has been marked by ads and extremist emails too often filled with either outright lies or distortions of small nuggets of truth. On top of that come blatantly extreme attacks on each contender's personal life and views. I'll add my voice to the many who are asking for "better" from our politician and parties.
Sad to say, the same is too often true for discussion of tort litigation issues. Extreme views in tort litigation are illustrated by articles built around extreme cases instead of in depth looks at the overall facts. Extreme attacks on individuals are illustrated by comments posted beneath a Wall Street Journal blog post that noted the much too young death of Fred Baron, a very successful but sometimes controversial plaintiff's lawyer who spent decades on asbestos litigation, with his early work shaped and informed by his work related to cases arising from an infamously dirty place commonly known as the Tyler Texas pipe plant. In my view, debate about tort litigation issues also needs "better" than extremism.
This also seems an appropriate time to comment that it seems plain that both politics and tort litigation tend to inspire extreme views, generally to the detriment of society.
Our presidential campaign this year has been marked by ads and extremist emails too often filled with either outright lies or distortions of small nuggets of truth. On top of that come blatantly extreme attacks on each contender's personal life and views. I'll add my voice to the many who are asking for "better" from our politician and parties.
Sad to say, the same is too often true for discussion of tort litigation issues. Extreme views in tort litigation are illustrated by articles built around extreme cases instead of in depth looks at the overall facts. Extreme attacks on individuals are illustrated by comments posted beneath a Wall Street Journal blog post that noted the much too young death of Fred Baron, a very successful but sometimes controversial plaintiff's lawyer who spent decades on asbestos litigation, with his early work shaped and informed by his work related to cases arising from an infamously dirty place commonly known as the Tyler Texas pipe plant. In my view, debate about tort litigation issues also needs "better" than extremism.
Update - Canada Adopts A Position of Silence on Chrysotile Asbestos Exports
A prior post here noted that Canadian scientists recently criticized the Canadian government for continuing to support global sales of chrysotile asbestos fibers. The industry historically was very valuable for Canada in terms of jobs, taxes and revenues - the mining itself is graphically shown in a wonderful McCord Museum set of online photos of miners and the mines that show abysmal safety practices.
According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.
This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.
According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.
This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.
Wednesday, October 29, 2008
Global Litigation Complicated by Various Jurisdictions Having Unique Evidence and Discovery Rules - Illinois' "Wacky" Rules on Depositions
As tort litigation becomes increasingly global, there is a need to know at least something about rules around the globe for collecting evidence and testimony. Many rules are more or less the same, but unique rules in particular jurisdictions present both pitfalls and opportunties. A goal is to identity some of the rules as an occasional topic for this blog.
To start, here's a link to a wonderful August 25, 2008 National Law Journal article on Illinois' "wacky rules" for depositions. The basic wackiness is that Illinois law specifies two flavors for depositions - evidence and discovery, with the latter seldom useable at trial. The substantive and humourous article is by Jerry Solovy and Bob Byman, two of Jenner & Block's many excellent trial lawyers. The article is found in full text on Jenner & Block's website.
To start, here's a link to a wonderful August 25, 2008 National Law Journal article on Illinois' "wacky rules" for depositions. The basic wackiness is that Illinois law specifies two flavors for depositions - evidence and discovery, with the latter seldom useable at trial. The substantive and humourous article is by Jerry Solovy and Bob Byman, two of Jenner & Block's many excellent trial lawyers. The article is found in full text on Jenner & Block's website.
Tuesday, October 28, 2008
Federal Judge Bars Corporate Defendant from Using Paid Google Link Related to Online Search for Information on Events Related to Ongoing Trial
The battles to shape public and others opinions related to litiagtion now include battles waged on the Internet using blogs, paid links and other teqchniques described by Richard Levick in his 2008 book on communcations strategies, as mentioned in a prior post of this blog on October 8. 2008. Now, there's a new and concrete example of this battle, including a judicial ruling on a litigant (Chevron) which used a paid Google link to direct information to persons who turn to a Google search as the means to searcg the Internet for information about the Chevron litigation.
The example arises from Chevron's ongoing trial invovling tort claims arising from its actions in Nigeria. The judge who issued the opinion is a well-regarded federal judge who once represented plaintiffs while in private practice, but who also has unhesitatingly ruled for defendants in "mass tort" cases. So, the ruling may carry a bit more than the usual clout for a trial court ruling. The full text of the Law.com article is pasted below.
__________________________________________________________
Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff's NameDan Levine10-28-2008
A widely watched trial over Chevron's Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors.
While imposing a general gag order, Northern District of California Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company. Plaintiffs objected to the link, which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.
The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued. "This new advertising strategy was launched just after the jury pool learned the names of the parties," wrote lead plaintiff attorney Dan Stormer of Hadsell Stormer Keeny Richardson & Renick.
In court Monday, defense attorney Robert Mittelstaedt of Jones Day defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff's name produced Web pages friendly to Bowoto.
"Are they sponsored links?" Illston asked.
Mittelstaedt said he didn't think so, and the judge indicated that that's what concerned her.
"To me, that's as sure a thing as giving a statement to the press," Illston said. When Mittelstaedt responded that Chevron was "way behind," the judge cut him off.
"Way behind in fighting the case in the press? We're not going to fight the case in the press," she said, adding that plaintiffs would be forbidden from participating in rallies or protests surrounding the case.
A group of Nigerian plaintiffs assert wrongful death and torture, among other claims, against Chevron for events that took place in May 1998. According to the plaintiffs, a group of villagers took over a Chevron oil platform in order to peacefully protest the company's operations in the country. The oil giant called Nigerian military forces, which shot multiple people.
However, the San Ramon, Calif.-based company argues the protest was actually a violent hostage taking. The company should not be liable for calling in the authorities to deal with an act of lawlessness, its lawyers argue.
The gag order dispute occurred immediately prior to jury selection in the case. Plaintiffs asked for the entire jury pool to be dismissed, but Illston rejected that remedy. In general, corporations have a First Amendment right to participate in public debates, said Robert Varian, an Orrick, Herrington & Sutcliffe partner who is not involved in the case. While some commercial speech -- like product pricing -- is held to a lower First Amendment standard, Varian said broader statements enjoy greater protection. "The interesting question is, when a company like Chevron -- particularly in litigation -- is being criticized, and it responds, how do you deal with that?" he said.
Plaintiffs had criticized Chevron over its broader, image-related marketing practices, including banner ads in the San Francisco Chronicle and billboards. Illston refused to prohibit those practices. She did gag all attorneys and parties from making any statements to the press for the duration of trial.
Stormer questioned jurors about Chevron's ads during voir dire, and he received varying responses. One man said that in his mind, Chevron would start a little bit ahead because of the ads. Another woman stated that the ads merely demonstrated Chevron had a lot of money to buy ads. Neither made it onto the jury.
Opening statements are slated to start today before the seven-man, two-woman panel.
The example arises from Chevron's ongoing trial invovling tort claims arising from its actions in Nigeria. The judge who issued the opinion is a well-regarded federal judge who once represented plaintiffs while in private practice, but who also has unhesitatingly ruled for defendants in "mass tort" cases. So, the ruling may carry a bit more than the usual clout for a trial court ruling. The full text of the Law.com article is pasted below.
__________________________________________________________
Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff's NameDan Levine10-28-2008
A widely watched trial over Chevron's Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors.
While imposing a general gag order, Northern District of California Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company. Plaintiffs objected to the link, which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.
The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued. "This new advertising strategy was launched just after the jury pool learned the names of the parties," wrote lead plaintiff attorney Dan Stormer of Hadsell Stormer Keeny Richardson & Renick.
In court Monday, defense attorney Robert Mittelstaedt of Jones Day defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff's name produced Web pages friendly to Bowoto.
"Are they sponsored links?" Illston asked.
Mittelstaedt said he didn't think so, and the judge indicated that that's what concerned her.
"To me, that's as sure a thing as giving a statement to the press," Illston said. When Mittelstaedt responded that Chevron was "way behind," the judge cut him off.
"Way behind in fighting the case in the press? We're not going to fight the case in the press," she said, adding that plaintiffs would be forbidden from participating in rallies or protests surrounding the case.
A group of Nigerian plaintiffs assert wrongful death and torture, among other claims, against Chevron for events that took place in May 1998. According to the plaintiffs, a group of villagers took over a Chevron oil platform in order to peacefully protest the company's operations in the country. The oil giant called Nigerian military forces, which shot multiple people.
However, the San Ramon, Calif.-based company argues the protest was actually a violent hostage taking. The company should not be liable for calling in the authorities to deal with an act of lawlessness, its lawyers argue.
The gag order dispute occurred immediately prior to jury selection in the case. Plaintiffs asked for the entire jury pool to be dismissed, but Illston rejected that remedy. In general, corporations have a First Amendment right to participate in public debates, said Robert Varian, an Orrick, Herrington & Sutcliffe partner who is not involved in the case. While some commercial speech -- like product pricing -- is held to a lower First Amendment standard, Varian said broader statements enjoy greater protection. "The interesting question is, when a company like Chevron -- particularly in litigation -- is being criticized, and it responds, how do you deal with that?" he said.
Plaintiffs had criticized Chevron over its broader, image-related marketing practices, including banner ads in the San Francisco Chronicle and billboards. Illston refused to prohibit those practices. She did gag all attorneys and parties from making any statements to the press for the duration of trial.
Stormer questioned jurors about Chevron's ads during voir dire, and he received varying responses. One man said that in his mind, Chevron would start a little bit ahead because of the ads. Another woman stated that the ads merely demonstrated Chevron had a lot of money to buy ads. Neither made it onto the jury.
Opening statements are slated to start today before the seven-man, two-woman panel.
Monday, October 20, 2008
Politics, Torts, Policy and Risk - Canadian Medical Association Takes a Stand on the Asbestos Use Exampple
The Canadian Medical Association has come out with an editorial, described here, that calls on Canada to join with other countries to further regulate "asbestsos" exports. The topic is of interest in Canada because its been a major exporter of asbestos for decades, and so the fibers produce jobs, corporate profits and tax revenue. The issue is in part caused by disputes about how safe or unsafe are the various types of asbestos fibers and their various end uses. The topic is relevant here because a recurrent issue in tort litigation no doubt will be whether and how health standards and practices in one country should effect what happens in another country or be applied in different countries.
The same issues also arise for politicans, as illustrated by the article. In the US, the issue has arisen during the US presidential election through Senator Obama has called for further and/or additional enforcement of terms intended to protect workers and "the environment" against processess that are not deemed as safe as practices in the US. Some have called it that a good idea, and others call it "protectionism." Some would say that it is short-sighted if the US and other "developed" economies do not push or "nudge" others to move towards less risky practices. Otherwise, it seems that industry is receiving a subsidy in the form of allowing it to undertake operations known not to be "safe." That said, others argue that the US should "let the free market" work and not "interfere."
Lots of room for debate in this area, and it will be interesting to see what happens.
The same issues also arise for politicans, as illustrated by the article. In the US, the issue has arisen during the US presidential election through Senator Obama has called for further and/or additional enforcement of terms intended to protect workers and "the environment" against processess that are not deemed as safe as practices in the US. Some have called it that a good idea, and others call it "protectionism." Some would say that it is short-sighted if the US and other "developed" economies do not push or "nudge" others to move towards less risky practices. Otherwise, it seems that industry is receiving a subsidy in the form of allowing it to undertake operations known not to be "safe." That said, others argue that the US should "let the free market" work and not "interfere."
Lots of room for debate in this area, and it will be interesting to see what happens.
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