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

When Your Blog Post Becomes a YouTube Item: The Mesothelioma Advertising Example

Posted in Asbestos, Litigation Industry

Amazing, and improper.  On October 6, 2015, I posted about MesoLawyersCare.   Recently, I stumbled onto a YouTube video that puts my words to music.

Below, screenshots of part of the YouTube, and the text of my prior post.


“Meso Lawyers Care ” New Cooperative Marketing by Four Prominent Plaintiff Firms, and Some Investment in Mesothelioma Research

By Kirk Hartley on October 6, 2015Posted in Asbestos, Cancer, Litigation Industry, Science

Change is a constant in asbestos litigation. One new change for 2015  is four prominent plaintiff firms banding together for the the online marketing of mesothelioma claims. And, their web site includes a pledge to invest in mesothelioma research an unstated percentage of future legal fees earned. Of course, it would be interesting to know all the thinking and deals behind the cooperative marketing arrangement, but ….The firms? Some well known names. They are the Cooney & Conway firm based in Chicago, the Kazan McClain firm based in Oakland, the Nemeroff firm with roots in Texas and New York and the Levy Konigsberg firm based in New York.Also notable is the name adopted for the marketing effort: “Meso Lawyers Care,” located at website for the group includes a page that highlights a collective $10 million of past contributions to mesothelioma research. There’s nothing much known to me about the prior mesothelioma research investments efforts of two of the firms. But, I have seen mentions of the Kazan McLain firm providing some grants to the iMig medical group for its biannual meeting of some of the world’s best mesothelioma researchers and treating doctors. Also, the Kazan McClain firm has a web page that reports aggregate mesothelioma research payments of over $ 6 million, and an aggregate total of over $20 million in all charitable gifts.  As to Cooney & Conway, there are some more detailed public facts about at least some of the money Cooney & Conway has invested in research regarding mesothelioma. For example, in 2012, the national insulators union issued a July 25, 2015 press releaseshortly after “declaring war on mesothelioma” at an annual meeting. Tucked away in the press release were the following two lines, for which the lawyers and law firms deserve kudos:“Terry Johnson, Esq., along with two attorneys from the national asbestos firm of Cooney and Conway (John Cooney and Kevin Conway), announced a multi-million donation to the Insulators Tissue Bank.  The firms will contribute current legal fees totaling one million dollars, and add to that two-percent of all future collected legal fees involving cases where workers suffer from mesothelioma and related asbestos-causing diseases.”

A web page at Meso Lawyers Care is tabbed as “Giving Back,” and includes the following statement and pledge:

“Like experience, success and expertise, giving back is an ever present and growing part of what we all do and will continue to do as MLC grows.
We have in the past all given to a wide range of medical facilities and support organizations throughout the country and combined, have donated in excess of $10 million.
Mesothelioma is a rare cancer and as such research has long been underfunded and overlooked by government and organizations.
We will continue giving back to organizations involved in medical research and patient care throughout the United States to do what we can to help.
We will do this primarily by pledging a percentage of legal fees recovered solely for donations to these worthy organizations.”

Some say investing money and time research against cancer is  the nation’s best investment. Whether it’s the best of course is beside the point; what does matter is that is a good investment in hope, and that’s especially now that the pace of discovery is rapidly accelerating because of the ongoing revolution in molecular biology.

Of course, some will seek to diminish the giving by pointing out the fact of these lawyers and firms making plenty of money from the awful diseases we call mesothelioma. That’s of course true. But it’s also true that plenty of defense firms and lawyers have become wealthy from asbestos litigation. So, these lawyers who actually are investing in mesothelioma research deserve recognition and credit because in fact they are giving something back. In contrast, plenty of other people and firms give nothing back.  The latter outcome needs to change.

“Breakthrough may lead to ability to diagnose CTE in living football players”

Posted in Mass Tort Issues, Science

Yet another example of how biomarkers evolve, and could matter for litigation over alleged or actual injuries, as set out in a September 26, 2017 article in the Washington Post.
“By Rick Maese September 26 at 2:00 PM

In one of the biggest breakthroughs to date, researchers from Boston University School of Medicine have discovered a key biomarker for chronic traumatic encephalopathy that they hope marks the first step toward being able to diagnose and ultimately treat the neurodegenerative disease in a living football player.

Dr. Ann McKee, the neuropathologist credited with some of the most high-profile CTE diagnoses, said she was buoyed by the recent discovery, calling it “the first ray of hope” in a years-long effort to understand the disease.

“To me, it feels like maybe now we can start going in the other direction,” she said. “We’ve been going down, and everything has just gotten more and more depressing. And now it’s like, ‘Yeah, we’re going to actually find some answers here.’”

In a new study published Tuesday in the journal PLOS ONE, researchers from BU and the VA Boston Healthcare System studied the brains of 23 former football players who were diagnosed with CTE, in addition to those of 50 non-athletes who suffered from Alzheimer’s disease and 18 non-athlete controls. They found significantly elevated levels of a protein related to inflammation called CCL11 in the group of ex-players compared with the non-athletes. The levels were even higher in those who played the game longer.

“It’s a unique disease, and it’s going to have unique proteins that are modified in this disease, and this is the first indication that we’ve found one of the unique proteins,” said McKee, the director of BU’s CTE Center and senior author of the new study.


Of the 23 brains studied, 19 belonged to professional football players — including 18 who played in the NFL — and four others who reached the college level. The age range was 25 to 87 with a mean age of 62. The early findings do not necessarily allow researchers to determine how early they eventually might be able to detect the disease in a living person, McKee said. Of the samples studied, one came from a 49-year-old ex-player and another from a 53-year-old. Both of those subjects were diagnosed with Stage II (out of four stages) CTE.”

The PLOS One article is online here.


“CCL11, a protein previously associated with age-associated cognitive decline, is observed to be increased in the brain and cerebrospinal fluid (CSF) in chronic traumatic encephalopathy (CTE) compared to Alzheimer’s disease (AD). Using a cohort of 23 deceased American football players with neuropathologically verified CTE, 50 subjects with neuropathologically diagnosed AD, and 18 non-athlete controls, CCL11 was measured with ELISA in the dorsolateral frontal cortex (DLFC) and CSF. CCL11 levels were significantly increased in the DLFC in subjects with CTE (fold change = 1.234, p < 0.050) compared to non-athlete controls and AD subjects with out a history of head trauma. This increase was also seen to correlate with years of exposure to American football (β = 0.426, p = 0.048) independent of age (β = -0.046, p = 0.824). Preliminary analyses of a subset of subjects with available post-mortem CSF showed a trend for increased CCL11 among individuals with CTE (p = 0.069) mirroring the increase in the DLFC. Furthermore, an association between CSF CCL11 levels and the number of years exposed to football (β = 0.685, p = 0.040) was observed independent of age (β = -0.103, p = 0.716). Finally, a receiver operating characteristic (ROC) curve analysis demonstrated CSF CCL11 accurately distinguished CTE subjects from non-athlete controls and AD subjects (AUC = 0.839, 95% CI 0.62–1.058, p = 0.028). Overall, the current findings provide preliminary evidence that CCL11 may be a novel target for future CTE biomarker studies.”


Jurisdictional Arguments to Delaware Supreme Court: Are Conditions Appropriate in Dismissal Orders in Cross Border Toxic Tort Cases?

Posted in Asbestos, Jurisdiction, Litigation Industry

Jurisdiction for toxic tort suits remains a “hot topic.”  A new example arises from oral argument in a Delaware Supreme Court case involving claims of disease in Argentine farm families. The suit was filed by well known US plaintiff firms against big tobacco entities.

The substantive issues go to whether an order of dismissal should be conditional in any way, according to a September 21, article in LAW360. For example, must defendant confirm it can be sued in the alternative jurisdictions it identified? Also, can/should there be conditions about statutes of limitations? In view of Delaware’s role in the corporate world, it will be especially interesting to see how they answer the questions.

The plaintiff firms are an interesting set for those of us in asbestos litigation. Per the article, “the farmers and their families are represented by Ian Connor Bifferato, Richard S. Gebelein and Thomas F. Driscoll III of The Bifferato Firm, Charles S. Siegel of Waters Kraus & Paul LLP,  Phillips Paolicelli LLP, and Thornton Law Firm.”

“Asbestos Stopped Neil deGrasse Tyson From Becoming An Exotic Dancer”

Posted in Asbestos, Humor

An automated daily Google search drags up some amazing references to asbestos. One follows. It’s real. I watched the video just to make sure it was not “fake news.”

The video is a series of vignettes; the pertinent one starts at 4:06. The article and video are online in a September 12, 2017 article at Civilized.  The text is pasted below, with thanks.

“Asbestos Stopped Neil deGrasse Tyson From Becoming An Exotic Dancer

By James McClure  |  Sep 12, 2017  |  CultureEntertainment

Few scientists are bigger than Neil deGrasse Tyson – the American astrophysicist who has gone from studying the stars in the galaxy to hanging out with stars on earth by appearing on shows like ‘The Big Bang Theory‘ and ‘The Simpsons.’ But like any celebrity, he spent years scraping by, and the pressure to make ends meet made him consider moonlighting as an exotic dancer to supplement his earnings as a teaching assistant in grad school.

“I was in really good shape,” Tyson told Pitchfork recently. “I was a performing member of two different dance companies. And one of my fellow dancers, upon hearing of my financial woes, said, ‘Come on down?’ ‘Down to what?’ ‘Oh, we dance at night at this male strip club. And the women put money in your thing.’ I said, ‘Alright, I’ll have a look.'”

But what he saw at the club turned him off exotic dancing forever.

“I go down there, and they come out dancing with asbestos-lined jockstraps that had been ignited. And they come out shaking and dancing to Jerry Lee Lewis’ ‘Great Balls of Fire.’ In that instant, I said, ‘I think I’ll be a math tutor.'” 

Check out the full story, plus Tyson’s thoughts on the Miss Universe Pageant and GZA of Wu-Tang Clan.” 


Scientific Testing – Talc Example

Posted in Mass Tort Issues, Science

Talc litigation is providing yet another example of the reality that product liability litigation can be complicated by multiple parties seeking access to limited amounts of materials. The materials may be biopsy materials from people or samples of products. An August 28, 2017 article from LAW360 provides the headline story, with a couple of quotes below.  J&J opened the topic with a motion. Plaintiff’s opposed the motion – here. A reply brief from J&J rounds out the set. Hopefully the court will handle the situation well.

Law360, New York (August 28, 2017, 6:43 PM EDT) — Johnson & Johnson on Friday told the New Jersey judge overseeing multidistrict litigation over its allegedly dangerous talcum powder products that there are limited amounts of “historical” products related to the litigation, and they’ll run out of they’re distributed on a “first come, first served” basis.
J&J said its not trying to prevent the women from ever testing the samples, which are related to its baby powder products, instead it is asking the court to hit pause and take temporary control over the samples until a process is worked out for the fair allocation of materials, and it’s decided what testing methods will be used. Once that process is approved by the court, the samples can be distributed for testing without disrupting the pending suits, J&J said.
“If the J&J defendants are compelled to produce and exhaust the materials contained in the artifacts, the J&J defendants will be harmed in their defense of the cases in this MDL and elsewhere, and plaintiffs in this MDL and those at the back of the line in thousands of pending and to-be-filed cases across the country will also be harmed by having no voice in decisions and orders regarding testing that may eliminate their chance to do so,” the company said.

Ted Frank Topples Stupid Subway Sandwich Settlement

Posted in Class Actions, Litigation Industry

Thanks to the seldom bashful Seventh Circuit, Ted Frank has toppled the stupid Subway settlement. Kudos to Ted, on this one (as opposed to some of his other actions). I for one am very tired of receiving useless notices in securities class actions where in fact I was ripped off by a company’s lack of disclosure, but the class relief is illusory and only the lawyers (both sides) make out well. The Subway opinion is open access online here.

A couple of key quotes are set out below:

“After the settlement, just as before, the rare sandwich that falls short of the full 12 inches will still provide the customer the same amount of food as any other.”  

“After the settlement — despite the new measuring tools, protocols, and inspections — there’s still the same small chance that Subway will sell a class member a sandwich that is slightly shorter than advertised.”

“The injunctive relief approved by the district judge is utterly worthless.”


“Estimated future incidence of malignant mesothelioma in South Korea: Projection from 2014 to 2033”

Posted in Asbestos, Cancer

A recent article explains that mesotheliomas in South Korea are projected to increase over the years ahead, mainly because of demographics, according to these authors. The article is  “Estimated future incidence of malignant mesothelioma in South Korea: Projection from 2014 to 2033.”

The abstract explains:

“Malignant mesothelioma is a malignant tumor on the pleura or the peritoneum caused mostly by asbestos. Although asbestos is not currently used in South Korea, the incidence of mesothelioma is increasing due to its long latent period. This study predicted the incidence of malignant mesothelioma in South Korea over the next 20 years using an age-period-cohort (APC) model. Data regarding mesothelioma incidence from 1994-2013 were acquired from the Korea Central Cancer Registry (KCCR). Demographic data, including prospective resident data, were acquired from the Korean Statistical Information Service (KOSIS) for 1994-2033.

An APC model with Møller’s power-link function was utilized to predict the incidence of mesothelioma. It was predicted that 2,380 and 1,199 new cases of mesothelioma in men and women, respectively, would occur over the next 20 years. For both sexes, the mesothelioma incidence rate was predicted to be greater in 2029-2033 compared to that in 2009-2013 (men, 0.282 vs 0.563; women, 0.155 vs 0.217). For men, the age-standardized incidence rate was predicted to be slightly greater in 2029-2033 relative to the rate in 2009-2013 (0.228 vs 0.235), while the age-standardized incidence rate in women decreased within the same timeframe (0.113 vs 0.109).

The changes in mesothelioma incidence were mostly caused by changes in the population structure due to aging and not by changes in the mesothelioma risk ratio. The results of this study project a continuous increase in mesothelioma incidence in South Korea over the next 20 years. Although the projected increase in mesothelioma incidence was not related to an increase in the mesothelioma risk ratio, continuous preventive efforts are necessary to reduce the exposure to asbestos and prevent the trend from worsening.”

The article is online and open access:  Kwak KM, Paek D, Hwang SS, Ju YS. Estimated future incidence of malignant
mesothelioma in South Korea: Projection from 2014 to 2033. PLoS One. 2017 Aug
17;12(8):e0183404. doi: 10.1371/journal.pone.0183404.

Imagine Being Criminally Convicted and Jailed for Two Years Because of Acceleration Defect of a 1996 Camry

Posted in Criminal Law and Torts

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.2Link to the text of the note

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).

Amec Foster Wheeler – 2014 Deal – Asbestos Reserves

Posted in Asbestos, Product Liability

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

“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.”