Drug and Device Law - Top 10 Worst Cases from a Defense Perspective

The post is here. Well worth reading.

UK Government Still Pondering Whether to Reinstate Claiming for Pleural Plaques

The UK government continues to ponder a consultation posing questions including whether to reinstate tort claiming for pleural plaques and/or whether the government should make payments to all persons with plaques. The latest pronouncement from the UK government was made yesterday (12/15/09) and is here. The statement does not commit to a decision date. The original planned answer date was over a year ago.

For eight detailed, prior posts on the UK pleural plaques topic, look to the left for the category "pleural plaques." Here is a detailed opposition paper (37 pages) I submitted to the UK government outlining my view opposing payments for pleural plaques. The gist of the argument is that money and time is best spent supporting research to prevent, manage, or full cure cancer instead of making payments because of the presence of a marker (a pleural plaque) of past inhalation of asbestos fibers. Making payments for "markers" is unwise social policy because today's exploding science almost daily generates new data and finds new "markers" for past exposures. The markers include, for example, genetic changes caused by past exposures to various substances. The following two paragraphs from my submission provide specific examples of the growing prevalence of "markers."

"10.3 Scientific Journals Regarding Markers: Markers of past events and/or future risks
are now common enough that scientific journals are devoted specifically to the
discussion of markers for conditions and risks. Indeed, two of these journals are
sensibly known as Disease Markers and Cancer Biomarkers. See generally
http://www.iospress.nl/loadtop/load.php?isbn=02780240.

10.4 Exponential Increase In Genomic Testing: Thanks to continuing and
exponentially increasing advances in science, literally hundreds of tests are now
available to identify persons with genomic patterns that include a particular set of
characteristics that may mark a risk of future disease. According to one legal
commentator, “[a]s of August, 2007, there were 1300 facilities performing tests
relating to more than 700 genetic conditions, compared to 110 facilities and 111
conditions in 1993.” See generally Robert Milligan, Coverage and
Reimbursement for Pharmacogenomic Testing, 48 Jurimetrics The Journal of
Law, Science & Technology, No. 2, 137, 142 (Winter 2008) (Symposium: Law
and the New Era of Personalized Medicine). Thus, there is truly an exponential
rate to the increase in methods for and facilities involved in identifying “markers”
for potential risks.

The Supreme Court Takes Unusual Action on Chrysler - Future Tort Impact Requires Some Thought

The Supreme Court acted in unusual fashion yesterday on Chrysler, and the actions create some issues that need further thought as to their implications for underlying tort claimants and for due process. Specifically, in this order, the Court granted certiorari, but then immediately vacated the judgment and AND vacated as moot the Second Circuit's opinion that explained its reasons for affirming the district court. The Second Circuit's opinion was germane to mass tort claims and due process because of its language to the effect that future tort claimants would not be bound by the bankruptcy court rulings. See below for the exact wording of the order.

I'll readily admit that I'm not a Supreme Court scholar. That said, this all seems rather odd, and makes one wonder about the motivations and thoughts behind these actions. Are these actions unique to the odd facts and pressures of Chrysler? Are the actions related to Justice Robert's avowed interest in making a name for this Court by taking and resolving more "business issues" ? Do these actions in any way reflect hat the Court thinks it learned or held about bankruptcy court finality in its Travelers/Manville bankruptcy case ruling that remanded the Manville case back to the Second Circuit for further proceedings (which have been briefed and argued)?

I look forward to learning what others think. I think this means that everyone is now back to lower court orders which also include language suggesting that future claimants are not bound. For now, with a hat tip, here are excerpts from the commentary on LAW360, with quotes from Chrysler's counsel:

“The order makes clear the case is over,” attorney Todd R. Geremia of Jones Day, which represents the Chrysler debtors, said Monday. “There's nothing for another day.”

The high court's ruling vacated a 53-page ruling in the Second Circuit affirming the sale as legal under the Bankruptcy Code but declining “to delineate the scope of the bankruptcy court’s authority to extinguish future claims” until a claim for injury caused by Old Chrysler could be brought under successor liability law.

While the court vacated the Second Circuit ruling, it did not necessarily disagree with it. The court invoked a precedent from a case known as United States v. Munsingwear Inc. that allows it simply to vacate and remand cases that become moot on their way up.

“Nothing in this order today reflects any disagreement with the Second Circuit,” Geremia said. “It's an order that arises from the application of Munsingwear.”

_________________________________________________________________________________

The Supreme Court's order states:

" IN POLICE PENSION TRUST, ET AL. V. CHRYSLER LLC, ET AL.
The motion of Washington Legal Foundation, et al. for leave
to file a brief as amici curiae is granted. The petition for a
writ of certiorari is granted. The judgment is vacated, and the
case is remanded to the United States Court of Appeals for the
Second Circuit with instructions to dismiss the appeal as moot.
See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

Mass Tort Claiming and Resolution - Lots of Great Posts and Links at the Mass Tort Litigation Blog

I'd love to take a few days to read and write about interesting thinking on mass torts and claims resolution issues. But that's not possible right now. I do, however, have time to urge readers to spend some time on the November and December posts at the Mass Tort Litigation Blog.

At the blog, you will find lots of interesting thinking and writing, including open-minded thinking on where we are and what's ahead. Specifically, lots of defense side people today are busy praising and/or asking for the demise of tort-related class actions. That may be a great outcome to preclude "greenmail" settlements forced simply by the size of an aggregated risk, as Judge Posner explained years ago in the Rhone-Poulenc litigation. But as a couple of the posts point out, the world outside class actions may be worse as companies take repeated, major hits in individual cases. Thus, smoking verdicts post-Engle and two recent Prempro verdicts are examples presented in recent posts. On the human side, real people face horrible diseases that can bring intense suffering, mental and physical disability, and death.

What about individual trials - is that the answer ? Not really, for many reasons for both sides. Indeed, the individual trial process drives Wall Street and companies crazy because they want predictable cash flow, but they cannot obtain consistency with myriad trials. The result ? Stock price goes way down, and so management looks for a way to get back to cash flow certainty. Chapter 11 often becomes the answer, and that's a mixed bag at best. Today, all sides (plaintiffs, futures representatives, defendants, and insurers, plus judges) are involved in creating some real public policy travesties in chapter 11 asbestos bankruptcies. Why ?Because for many reasons, the various sides mainly take short-term views and do what's expedient to get to a resolution "for this case."

Huge new issues are ahead. Why ? For one, tort litigation is exploding around the globe, and will continue to do so as nations develop. Meanwhile, as science continues to move at a blistering pace, more and more causes and effects can be proven at the cellular level. Tragically, many cancer rates (not cancer death rates, but rates of disease) are soaring here in the US and around the globe. In addition, scientists are finding more problems, such as chemical-induced endocrine system disruption, and chemical-induced genomic changes that cause harms across multiple generations of humans and animals. Over time, there will be many more succesful claims for medical monitoring. And, now that science is exploding with new tools and new answers, the monitoring claims will result in requests for funds to pay for new research, and/or to pay for individual genomic therapy. Those payments will be large, but may less expensive than paying for intense suffering followed by disability or death. In short, over the next 20 years, there will be massive claims for massive injuries, and courts will be asked to resolve issues regarding whether there is "liability" (however that is defined), and will be asked to decide what to do when liability is proven or claims are settled.

So, that takes this all back to where this post started. If you want to look ahead in the world of mass torts, spend some time pondering some of the great posts and links at the Mass Tort blog. The blog is here. Enjoy.

Eternit Trial Has Opened in Italy - Civil and Criminal Charges Related to Asbestos-Cement Manufacturing

Trial is now underway in Italy on combined civil and criminal charges regarding senior corporate officials of Eternit allegedly having recklessly disregarded health risks related to asbestos. The charges and claims involve injuries or premature deaths suffered by about 2.200 employees or former employees. Eternit entities manufactured a range of asbestos-cement products.
A BBC article is here. Swiss articles are here and here.



For prior posts on the topic, look to the left to the topic line for "Eternit."

Non-Obvious Issues Arising from Corporate Problems and Subsequent Statements About the Scope/Impact of the Problem

Risk managers and lawyes have to think even more about divergent types of fallout from a corporate problems. The point is illustrated by this great post from Kevin LaCroix at D & O Diary. in the post, he airs various non-obvious liability, risk and D & O issues rising from Siemen's problems with corporate bribery. One of the non-obvious problems is a subsequent securities suit that arose from later statements by Siemens about the revenue impacts that would or would not follow from stopping the use of bribery.

Propensity to Claim - By the Government - What's Ahead ?

Lawyers thinking about mass tort policy and legal issues inevitably end up thinking and talking about private claimants and their propensity to claim. A growing topic today is the federal government's propensity to claim.

During the Bush II years, much of corporate America had little fear regarding civil or criminal claims from the US government. Now, however, that is changing, and one might well wonder about the larger implications for tort and other claims. Look for example at the federal government's activities this week, and consider the implications for future civil claims.


On Monday, the SEC continued its assault on the business methods of subprime mortgage lenders. It charged "three former top officers of New Century Financial Corporation with securities fraud for misleading investors as New Century's subprime mortgage business was collapsing in 2006. At the time of the fraud, New Century was one of the largest subprime lenders in the nation." The SEC's press release and teh charges are here.


On Tuesday, as reported here by Ben Hallman from AmLAw, the goverment made plain that it has problem with the business model for "a lot of hedge funds." Specifically, a securities litigation conference included the following comments by David Rosenfeld, the associate regional director of the SEC's New York office:

Rosenfeld said that insider trading, after a downturn over the past two decades, "has come back in force." Rosenfeld described what his agency was seeing as more than one-off, opportunistic activity, but a "determined business" based upon collecting information from corporate insiders. He said his agency is "aggressively pursuing" these bad actors, and he specifically singled out hedge funds. "A lot of hedge funds have been making huge returns because they were cheating," he said. (emphasis added)


How many future civil suits will result from these charges and investigations? I'm sure I don't know. I'm also sure that I would be looking afresh at my litigation and regulatory risks if I were a general counsel working in those industries.