Asbestos compensation in China? That’s the topic of an interesting but sort of rough article, which is online and open access – here. The cite is Sustainability 2017, 9(8), 1431; doi:10.3390/su9081431.
Imagine being jailed for two years for a “vehicular homicide” that arose when you and your car drove into another car, causing deaths and devastating injuries. Imagine the guilt for the harm caused. Imagine the anguish of going through a criminal trial and conviction even though you and the family member passengers in your car staunchly proclaimed that you tried to brake but the car went out of control on its own. Imagine later finding out that the car you were driving (a Camry) appears to have had defects that match to your statement of what happened. Imagine being freed from jail after two years because of new evidence of the alleged product defect in the Camry.
That incredible fact pattern is real. I stumbled on it while reading an August 15, 2017 post at the Weil product liability blog. That post focuses on the legal issue of admitting evidence of other “similar” events, and is worth reading on that point. The point here, however, is to highlight the incredible fact pattern. The facts pasted below are taken from the district court opinion in Adams v. Toyota Motor Corp., No. 10-2802 ADM/JSM, 2015 U.S. Dist. LEXIS 76903 (D. Minn. June 15, 2015), aff’d, Adams v. Toyota Motor Corp., 859 F.3d 499 (8th Cir. 2017).
A. The Crash
Nine years ago, on June 10, 2006, Koua Fong Lee (“Lee”) was driving his 1996 Toyota Camry eastbound on Interstate 94 in St. Paul, Minnesota. With him in the car were his then-pregnant wife Panghoua Moua, his daughter Jemee Lee, his brother Nong Lee, and his father Nhia Koua Lee. Reilly Decl. [Trice Docket No. 313] Ex. 7 65-66. As Lee progressed up the Snelling Avenue exit ramp from the interstate, he alleges pressing the brake pedal, only to find the brakes unresponsive. Id. at 71-72.
At the apex of the Snelling Avenue ramp, which merges with Concordia Avenue, an Oldsmobile Ciera was idling at a red light controlling the intersection of Concordia and Snelling Avenues. Javis Trice-Adams was the driver of the Ciera. With him were Quincy Ray Adams, an adult, as well as Javis Adams, Jr., Jassmine Adams, and Devyn Bolton, all minors. The occupants of the Ciera were all members [*5] of the same extended family. Pls.’s 2d Am. Compl. [Block Docket No. 103] (“Block Compl.”) ¶¶ 20-21.
Lee’s Camry continued up the ramp and struck the Ciera at a high rate of speed. The Ciera sustained severe structural damage and the impact forced the car into oncoming traffic. Block Compl. ¶¶ 23-27. Javis Trice-Adams and his son, Javis Adams, Jr., died at the scene of the collision. Jassmine and Quincy Adams suffered serious injuries, but survived. Bolton, six years old at the time, was rendered a quadraplegic and subsequently died in October 2007. All of the occupants of the Camry survived the crash.
Lee was charged and eventually convicted of seven counts of vehicular homicide and injury, and one count of careless driving despite his testimony that the Camry’s brakes had failed. Block Compl. ¶ 34. In October 2007, Lee was sentenced to eight years in prison.
In 2009 and 2010, Toyota issued recalls for vehicles with “unintended acceleration.” Although these recalls did not include 1996 Camrys, the model year of Lee’s Camry, the recalls renewed interest in Lee’s defense that a vehicle defect caused the crash. Lee petitioned for, and was ultimately granted, post-conviction relief. The county [*6] attorney subsequently decided not to appeal or re-file criminal charges. Lee was released from prison after over two years of incarceration. Id. ¶ 52.
In June 2010, the surviving occupants of the Ciera and trustees for the next of kin of the deceased filed suit against Toyota. On October 25, 2010, Lee and his family moved to intervene in the Trice action. Mot. to Intervene [Trice Docket No. 51]. Toyota ultimately stipulated to the inclusion of the Lees and further stipulated that their insurance company, American Family Insurance Company (“American Family”), could also intervene in the Trice action as the Lees’ subrogee. Stipulation [Trice Docket No. 78].
The Plaintiffs and Lees filed a collection of claims against Toyota grounded in six different legal theories: (1) design defect, (2) failure to warn, (3) negligence, (4) fraud/misrepresentation, (5) negligent infliction of emotional distress, and (6) breach of warranty. After summary judgment motions were decided, only design defect and negligent infliction of emotional distress claims remained for trial.2
B. The Trial [*7] The trial commenced on January 7, 2015 and the jury began deliberating on January 28, 2015. Over the course of the trial, the jury heard testimony from 26 witnesses, viewed hundreds of photographs and other exhibits, and observed witnesses illustrate their testimony through the use of numerous models and other demonstrative exhibits. In total, the jury was in session for nearly 75 hours of trial time.
Succinctly, Plaintiffs’ theory of defect was that the accelerator control system was defective because it was assembled with heat sensitive components that, under certain conditions, will stick or bind, causing the throttle control system to remain stuck even after the driver releases their foot from the accelerator pedal.
C. Jury Verdict and Judgment
On February 3, 2015, after deliberating five days, the jury reached a verdict finding: (1) Toyota’s design of the 1996 Camry resulted in a defective product that was unreasonably dangerous to Plaintiffs and was a direct cause of Plaintiffs’ injuries; (2) Koua Fong Lee was negligent in his operation of the 1996 Camry and Lee’s negligence was a direct cause of Plaintiffs’ injuries; and (3) Toyota was 60% at fault and Lee was 40% at fault for Plaintiffs’ [*8] injuries. See Verdict [Trice Docket No. 550].
Adams v. Toyota Motor Corp., No. 10-2802 ADM/JSM, 2015 U.S. Dist. LEXIS 76903 (D. Minn. June 15, 2015), aff’d
Adams v. Toyota Motor Corp., 859 F.3d 499 (8th Cir. 2017).
It’s an amazing world out there when one thinks about mass tort claims, corporate m&a, and due diligence. Some people “get” the issues, and others do not. From the outside, it’s hard to know what was done – or not done – when m&a was contemplated. The point came to mind this week because of a report that Amex Foster Wheeler had acknowledged asbestos-litigation reserves of around $310 million after giving effect to hoped for insurance recoveries. On seeing that story, I went back to check on when Amec Foster Wheeler was created. The deal was done in 2014, according to the “history” page at the web site. One wonders if the deal makers had the proper numbers in sight when negotiating.
The current situation is as follows, according to an August 14, 2017 story at builder.co.uk:
“The firm’s half-yearly results, released last week, stated: “The legacy Foster Wheeler business is exposed to significant numbers of claims relating to alleged exposure to asbestos. The quantum of these claims is actuarially forecast each year and provisions are held against these loss projections. However there is a risk that these loss projections will be exceeded and the provisions could be inadequate to meet the liabilities.”
The claims relate to various subsidiaries in the UK and US, where people were allegedly exposed to asbestos primarily in connection with equipment allegedly manufactured during the 1970s or earlier, according to the company.
Amec Foster Wheeler has asbestos-related liabilities of £420m. These include estimates of indemnity amounts and defence costs for current and future claims expected up until 2050, according to the report. Insurance recoveries relating to asbestos claims are estimated at £110m – leaving the firm with a bill of at least £310m.
Its latest annual report, released just a few weeks ago, warned: “We expect to have net cash outflows of $30.4m as a result of asbestos liability indemnity and defence payments in excess of insurance proceeds during 2017. This estimate assumes no additional settlements with insurance companies and no elections by us to fund additional payments.”
The company admitted that predicting the costs of future asbestos claims “is subject to a number of uncertainties that may result in significant changes in the current estimates.” These include things such as the number and type of claims filed as well as “uncertainties surrounding the litigation process” in different jurisdictions and cases.
In the US, which accounts for the “overwhelming majority” of cases, many of which are for mesothelioma or lung cancer, there were 3,800 claims made in 2016 – up from 3,420 in 2015.
The annual report said: “Increases in the number of claims filed or costs to resolve those claims could cause us to increase further the estimates of the costs associated with asbestos claims and could have a material adverse effect on our financial condition, results of operations and cash flows.”
Some of the company’s subsidiaries are defendants in “numerous asbestos-related lawsuits and out of court administrative claims in which the plaintiffs claim damages for bodily injury or death alleged to have arisen from exposure to asbestos,” it added.
Although the company has insurance cover in place, some of its arrangements are for “fixed monetary amounts and/or provide cover only for claims made before a specified future date.”
How to think about the future, and the past? Some proclaim “certainty” essential and demand “proof” with confidence intervals at .05% or above. Others suggest we need more discussions about “scenario” instead of communicating about probabilities. Outcomes related to Father Andrew’s car accident are used in a July 20, 2017 article in the NEJM to provide a powerful example of the value of describing and thinking about scenarios instead of communicating about risk probabilities. The article is Schwarze ML, Taylor LJ. Managing Uncertainty – Harnessing the Power of Scenario Planning. N Engl J Med. 2017 Jul 20;377(3):206-208. doi: 10.1056/NEJMp1704149.
The Schwarze and Taylor article includes a useful reminder of some of the eye opening scenario planning papers that resulted from people at “big oil” thinking about various possibilities. “In the turbulent 1970s, Pierre Wack, an economist for Shell Oil, popularized “scenario planning” to translate vast probabilistic information and facilitate strategic decisions.3,4 Rather than emphasizing precise prognostication, this technique generates multiple plausible futures. Each scenario helps decision makers visualize what might happen under various sets of assumptions — discovery of new oil fields, say, or turmoil in the Middle East — challenging their view of reality. By considering a range of scenarios, Shell’s managers could perceive how interrelated events influenced longer-term outcomes and could anticipate major changes.”
The articles are:
Wack P. Uncharted waters ahead. Harvard Business Review, September 1985 (https://hbr.org/1985/09/scenarios-uncharted-waters-ahead).
Wack P. Shooting the rapids. Harvard Business Review, November 1985 (https://hbr.org/1985/11/scenarios-shooting-the-rapids).
A take away? Parties and persons involved in mass tort claims might benefit from more scenario planning.
A new “toxic tort” blog (by Bill Ruskin) launched with an interesting mini-review of the use of Value Assurance Plans as a means for defendants to resolve claims involving possible diminution in value of “contaminated” property. The review is in a July 27, 2017 post at the blog bearing his name.
Late in June, SCOTUS knocked out “American Pipe” equitable tolling in a securities case, as explained in a June 27, 2017 post at Faegre Baker Daniels. This is a typical 5-4 Roberts court “bright line” ruling based on the literal language of the statute, with the usual justices on the usual side of the ruling. The dissent pointed out the usual factors that rationalized tolling.
The outcome also illustrates a typical “be careful what you wish for” situation. For one company, a win. For others, maybe not. Expect more opt out suits by more plaintiffs.
Interesting topics are raised by a motion by Takata for appointment of Roger Frankel as a futures representative in Takata’s chapter 11 case. The case arose from Takata paying out massive amounts to pay for products recalls demanded by governments and car companies.
In the motion, Takata refers to appointment of Mr. Frankel to advocate for future personal injury claimants. That proposed as counsel raises interesting topics since the car companies seem to be much larger claimants for product recalls, but they also likely will be claiming claims against Takata in future personal injury cases. In a related view, other manufacturing entities may well sued when wrecks happen. And, Medicare and health insurers may assert liens against funds paid out to personal injury claimants. For which interests can/should Mr. Frankel advocate?
Does new science matter? Ask the NFL. “A neuropathologist has examined the brains of 111 N.F.L. players — and 110 were found to have C.T.E., the degenerative disease linked to repeated blows to the head,” as described in a July 25, 2017 NYT article by Joe Ward, Josh Williams and Sam Manchester. It’s an “interactive” story with various charts.
But, keep in mind selection bias is at work in this situation. As noted in the article: “The set of players posthumously tested by Dr. McKee is far from a random sample of N.F.L. retirees. “There’s a tremendous selection bias,” she has cautioned, noting that many families have donated brains specifically because the former player showed symptoms of C.T.E.”
Despite the many who said Europe would never allow class actions, it has happened, in varying ways and to varying degrees. The big news of late is a UK ruling disallowing an opt-out class action. The ruling, and other UK developments, are summarized in a July 23, 2017 post at D & O Diary. The first two paragraphs are pasted below; the entire article (and the opinion) should be read.
“The highest-profile attempt to utilize the new U.K. regime for consumer class actions has come to a grinding halt. The case involved a claim alleging that MasterCard’s fee structure had resulted in overcharges to tens of millions of U.K. consumers. On July 21, 2017, the Competition Appeal Tribunal, newly re-organized to oversee the consumer class action regime, declined to grant the necessary collective proceedings order that would have allowed the action to go forward. The tribunal’s ruling is highly fact-specific and its decision to decline the collective proceedings order very much reflects the specific features of the claims against MasterCard, but the ruling nevertheless does raise concerns about the viability of the class action regime and its attractiveness to prospective claimants in other cases. A copy of the Tribunal’s July 21, 2017 order can be found here.
In 2015, the U.K. Parliament enacted The Consumer Rights Act of 2015, which represented a comprehensive overhaul of the U.K.’s consumer protection and unfair trade practices laws. Among many other changes, the Act introduced an “opt-out” collective action mechanism. In particular, the Act broadens the jurisdiction of the Competition Appeal Tribunal, including the introduction of procedures for the tribunal to hear damages claims on an “opt-out” collective action basis. The Act also includes provisions for collective settlements and collective redress schemes.”
Finally, an article highlighting the lawlessness of many “disruptive” businesses. From SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2880818
"Forthcoming in The Handbook of Law and Entrepreneurship in the United States, Cambridge University Press 2018, D. Gordon Smith & Christine Hurt, eds.
22 Pages Posted: 10 Dec 2016 Last revised: 2 Jul 2017
Loyola Law School Los Angeles
Date Written: June , 2017
What explains the growing number of collisions and collaborations between law and entrepreneurs? How is the startup community responding? What are the implications for regulatory governance of innovative technology? This chapter explores these questions, demonstrating the growing importance of regulatory affairs and political activity for many startup companies, how politically savvy experts have become a part of the startup ecosystem, and the impact these developments may have on law and entrepreneurship.
Beginning with recent history and startup culture, the chapter identifies four developments contributing to the rise of regulatory affairs in innovative startups. First, with mature technology and widespread Internet connectivity, recent startups have focused on innovations in the physical world, disrupting industries that are situated in webs of regulations. Second, a generation of engineers has grown up in a culture of “hacking” problems and pursuing “permissionless innovation,” which has fostered a willingness to create technology that challenges existing legal frameworks. Third, leaders in the technology industry have demonstrated increasing political engagement, normalizing such activity in an industry that had not previously been known for it. Fourth, changing market trends and regulations have helped startups raise millions, even billions, of dollars that can be used to fund efforts to change laws, engage experts, and battle incumbents and regulators who stand in their way. Further, the chapter examines how the startup community has responded to these developments by bringing in and creating new opportunities for individuals with government and policy expertise and connections. Finally, the chapter takes up one of the fascinating implications of startups colliding with regulations and having the expertise to navigate politics and policy — that the story of legal change is not as simple as sometimes portrayed, with the law always lagging behind technology. This chapter contends the “lagging law” story is worth reexamining in light of private and public collaboration in the governance of innovative technology.
Keywords: Startup, entrepreneurship, innovation, regulation, regulatory affairs, corporate political, lobbying, new governance, startup companies, unicorn, regulatory entrepreneurship, Uber, Airbnb, FinTech
JEL Classification: L26, M13, A33, G38, K20, K22, P16″