The Intersection Among Torts, Science, Corporate Law, Insurance & Bankruptcy

Contrasts in Access to Data – Asbestos Bankruptcies and Underlying Litigation, versus Concussion Litigation

Posted in Asbestos, Class Actions/Aggregate Litigation, Constitutional Law/Mass Tort Law, Discovery, Due Process, Global Tort Litigation, Litigation Industry, Mass Tort Issues, Secrecy

In the NFL concussion litigation, the federal judge overseeing the case has now ordered release of supporting financial calculations for the preliminarily approved class action settlement. The order follows motions for access by players and media.

Contrast that disclosure order against the approach in asbestos litigation. Asbestos bankruptcies are de facto class action proceedings. Nonetheless, bankruptcy judges routinely approve stipulations to hide financial information, and parties on all sides are involved in sealing up the data. The recent Garlock trial sealing order is the poster child example of sealing run amuck. Meanwhile, the same thing happens in the underlying asbestos litigation – settlement information is hidden, and so judges and lawyers operate on a combination of myths, facts, and rumors.

Will mass tort litigation ever become fully transparent?

Advice for Independent Counsel on Dealing with Insurer Guidelines

Posted in Asbestos, Conflicts of Interest in Mass Torts, Insurance Coverage for Tort Claims, Litigation Industry, Mass Tort Issues

A new article from policyholder counsel at Neil Gerber  (Seth Lamden) “offers advice to independent defense counsel (often referred to as “Peppers counsel” in Illinois) on identifying and resolving some of the potential ethical and financial pitfalls that can arise when an insurer conditions payment of legal bills on the attorney’s compliance with billing guidelines.”

Lawyers on All Sides Soon Will See More and More Reports on Tumor Mutations

Posted in Asbestos, Cancer, Cancer Research, Litigation Industry

Changes in the world of science mean that tort lawyers of today and tomorrow soon will see and learn far more about genomic mutations in tumors. Why? Because genomic analysis of tumors is becoming even more common place, and concrete steps are underway to increase the amount of and efficacy of genomic testing of tumors.

Today, Foundation Medicine is by far the leading national business providing genomic analysis of tumor material. Tests of that sort are now the standard of care at teaching hospitals, although some of them run their own tests, as opposed to having Foundation Medicine run the tests. Tomorrow, genomic testing will grow even more, and there will be more providers of testing services. The latest push in that direction arrived this week as four of the nation’s five best cancer centers agreed to join with Illumina in helping to define the standards for the next generation of genomic testing of tumors.

Set out below is the press release from Illumina – it is well worth reading in full, more than once, in order to see where the future will be going. And make no mistake, the future will go there, and far faster than most would imagine.


“Actionable Genome Consortium Forms with Cross Disciplinary Leaders from World-Renowned Cancer Institutions

Dana-Farber Cancer Institute, Fred Hutchinson Cancer Research Center, MD Anderson Cancer Center, Memorial Sloan Kettering Cancer Center and Illumina are Founding Members
Consortium Will Recommend Standards for Applying Next-Generation Sequencing to Cancer Tumors

BOSTON & SEATTLE & HOUSTON & NEW YORK & SAN DIEGO–(BUSINESS WIRE)–Sep. 8, 2014– World-renowned cancer centers and Illumina, Inc. (NASDAQ:ILMN) today announced the formation of the Actionable Genome Consortium (AGC), an effort to recommend openly published standards for the widespread use of next-generation sequencing to guide decision-making in clinical oncology. The core remit of the AGC is to define the principles and content of the “cancer actionable genome” — a comprehensive description of genomic alterations that define individual patients’ tumors. Once defined, the actionable genome will help oncologists and pathologists determine optimal therapeutic and testing strategies to improve patient outcomes.
Currently, the definition of what is actionable varies, and clinical interpretation of genomic tests is challenging even for experts. Further, the majority of patients lack access to multidisciplinary Tumor Boards, such as those at major cancer centers, which define what constitutes an actionable event in a tumor.
“Oncology is as ready as any area of medicine to see the genomic revolution become the core of medical practice. Advances made over the past several decades, including those in next-generation sequencing, have set the stage to re-think how cancer should be diagnosed, classified and treated,” said Charles Sawyers, M.D., chair of the Human Oncology and Pathogenesis Program at Memorial Sloan Kettering Cancer Center and a Howard Hughes Medical Institute Investigator. “Patients will be more likely to receive the proper targeted course of therapy from the outset when the community oncologist is aware of standard molecular testing procedures and how to interpret these test results.”
“It is clear that solutions to cancer lie with the combined resources of leading cancer research institutions. The AGC is an exciting model for bringing together shared discoveries and wisdom to benefit cancer patients,” said Gordon Mills, M.D., Ph.D., chair of the Department of Systems Biology at The University of Texas MD Anderson Cancer Center.
“The AGC is paving the way to truly transform cancer care by enabling the combination of clinical and molecular data at an unprecedented scale. The AGC is part of a national effort to promote this transition and get it right,” said Eric Holland, M.D., Ph.D., director of Solid Tumor Translational Research at Fred Hutchinson Cancer Research Center.
“Developing standards that will facilitate the use of genomics in personalized treatment is an exciting advancement that will lead to real benefits for patients,” said Barrett Rollins, M.D., Ph.D., Chief Scientific Officer at Dana-Farber Cancer Institute.
The AGC has developed and will publish a list of actionable events, including recommendations for:

  • best practices for biopsy, sample storage and transport, and extraction;
  • technical performance standards for DNA sequencing;
  • standards for variant calling, annotation and interpretation; and,
  • guidelines for the format and content of clinical reports.

Once adopted into medical guidelines, the recommendations of the AGC will pave the way for the development of in vitro diagnostics, additional information to support regulatory oversight of genomic testing for cancer, and reimbursement of tests that will improve patient outcomes. Additionally, the AGC will include a research arm that will leverage the scientific, clinical and technical capabilities of the member institutions for novel collaborative, cross-institutional projects aimed at grand challenges in molecular oncology.

“The AGC represents an extraordinary gathering of experts and decision-makers in clinical and molecular oncology, pathology and technology who, by proposing the standards by which every tumor will be sequenced, will move the field of clinical oncology into the era of precision,” said Rick Klausner, M.D., former Director of the National Cancer Institute and current Senior Vice President & Chief Medical Officer at Illumina. “Widely available, standardized genomic testing of tumors can be the means by which precision oncology and therefore precision medicine begins to live up to its promise.”

New Data on Second Hand Smoke Remaining in the Air

Posted in Asbestos, Tobacco

A new study provides data on second hand smoke remaining in residences. The article is  Semple et al, How Long Does Secondhand Smoke Remain in Household Air: Analysis of PM2.5 Data From Smokers’ Homes, Tob Res (2014) 16 (10): 1365-1370. doi: 10.1093/ntr/ntu089.

The abstract states:

“Introduction: More than 80% of secondhand smoke (SHS) is invisible to the human eye, and smokers are often unaware of how much SHS is produced when they smoke at home. Very little is known about how long SHS particles remain suspended in the air within household settings.

Methods: Data from a series of studies where fine Particulate Matter (PM2.5) concentrations were measured every minute in homes were used to identify the PM2.5 peak produced by SHS from the last cigarette smoked of the day. The time taken for this peak to reduce by 50% was calculated, as was the time between the peak and a return to the World Health Organization’s (WHO) 24-hr guidance value for PM2.5 of 25 µg/m3.

Results: From more than 230 days worth of 1-min resolved PM2.5 data gathered from 103 smoking households, 140 suitable peaks were identified. The median (interquartile range [IQR]) for the time for the SHS peak to decay by 50% was 55 (23–116) min, and the median (IQR) for the peak to reduce to the WHO guidance value for PM2.5 was 160 (90–313) min.

Conclusions: SHS remains in household air for a considerable period after smoking a cigarette. This information is likely to be of use in public health information campaigns and in interventions to encourage smokers to make their home smoke-free.

Cyberheists, and Government and Private Standards and Investigations

Posted in Cyber law issues, D + O Issues

As the cyberheists continue at Home Depot and JPMorgan, an sort of site exists to sell the stolen credit cards, as detailed by Mr. Krebs. Meanwhile back in the world of law,  articles continue to accelerate regarding litigation risks, including D&O claims regarding a failure to ask questions about and invest in  ”secure web sites.” A September 4, 2014 guest post at D&O Diary reviews federal government actions aimed at more understanding of the extent of the security failures. As with asbestos and other mass litigation, there is a long latency period – the annual Black Hat security conferences date back to 1997.

Takeaways? There are significant risks and costs in not investigating issues related to the manner in which business operations are conducted, ranging from product sources to product safety to the soundness of business systems. And, there are further risks when using boilerplate warnings instead of factual disclosures.

D&O Liability Issues – A Look Ahead

Posted in D + O Issues, SEC Disclosures

Kevin LaCroix published a September 3, 2014 post with his prognostications about a range of D&O issues. Of note, he included litigation about the lack of adequate environmental disclosures. And, of course, it takes little imagination to extend that thought to disclosures about mass tort claims and risks.

Set out below is the introduction to his section on environmental disclosures – the entire post is well worth reading.

“Will Environmental Liability and Climate Change Emerge as Important D&O Liability Issues?: During the financial crisis, many issues and concerns that previously had loomed large moved further down the agenda. Even though the recovery from the crisis is still uneven, some of the issues that fell by the wayside are moving back up the list of priorities. Environmental liability issues are among these concerns. Among other things, this has meant an uptick in D&O litigation arising from environmental issues.

In recent months, there have been a number of securities class action lawsuits filed based on alleged misrepresentations of the defendant company’s environmental compliance. On August 7, 2014, the securities suit filed against Exide Technologies and certain of its directors and officers based on the defendants’ allegedly misleading statements about the company’s compliance with environmental regulations became the latest environmental disclosure securities suits to overcome the initial pleading hurdles. A copy of Central District of California Judge Stephen V. Wilson’s August 7, 2014 order denying the defendants’ motion to dismiss can be found here.”