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

Fourth Circuit Ruling Improves the Odds for Overturning the Garlock Secrecy Orders

Posted in Uncategorized

Alison Frankel reported yesterday on a Fourth Circuit ruling that may well make it easier  to undo the veil of secrecy imposed on secret trial proceedings in the Garlock asbestos bankruptcy case. The entire article is well worth reading; in the opening paragraph, she explained:

“I plow through a lot of appellate opinions. Few of them make me want to stand up and read aloud in the Reuters newsroom. But a couple of sentences, from a ruling Wednesday by the 4th U.S. Circuit Court of Appeals, just about pushed me out of my chair. “A corporation very well may desire that the allegations lodged against it in the course of litigation be kept from public view to protect its corporate image, but the First Amendment right of access does not yield to such an interest,” the three-judge 4th Circuit panel wrote. “Whether in the context of products liability claims, securities litigation, employment matters or consumer fraud cases, the public and press enjoy a presumptive right of access to civil proceedings and documents filed therein, notwithstanding the negative publicity those documents may shower upon a company.”

Pulitzer Prizes and Toxins – the Links Between The Two Topics

Posted in Uncategorized

Are we in a new age of investigative journalism, and so are reputation risks even higher for companies involved with stories that are not favorable ? The question arises because Pulitzer prizes were announced yesterday, and two relate to actual or alleged toxins. One Pulitzer went to the Center for Public Interest for its reporting on the fiasco that is black lung litigation. Another went to Dan Fagin for his book, Toms River: A Story of Science and Salvation. It’s a non-fiction telling of the story of a river, pollution by Ciba-Geigy, and years of action and inaction.

ACI Chemical Litigation Conference

Posted in Litigation Industry, Uncategorized

Time to head to Chicago. Yes, it was a long winter in Chicago but it is warmer now, and so toxic tort lawyers should think about attending ACI’s Chemical Products litigation conference on April 30 and May 1.

The first panel’s agenda says a lot about where toxic tort litigation is headed, with some emphasis added:

8:15 Defeating the Causal Link between Subdiseases and Low Dose Exposure to Injury: The Latest Developments in Causation and Dose

Larry Chilton
Chilton Yambert & Porter LLP (Chicago, IL)

Stephen C. Dillard
Fulbright & Jaworski LLP (Houston, TX)

Lawrence Riff
Steptoe & Johnson LLP (Los Angeles, CA)

  • Understanding the ramifications of the $7.5M Kinder Morgan verdict (Lewis, et al. v. Kinder Morgan Energy Partners)
    • What does the future of toxic torts look like with low dose exposure on the table?
  • Defending against the new onslaught of cases with multiple myeloma and Myelodysplastic Syndrome claims
  • Comprehending the importance of the Schnatter study linking benzene and MDS and its impact on future litigation
    • Low dose exposure and blood cancers
  • Using IARC studies to your advantage: specific diseases linked to specific chemical exposure
  • Preparing for the fallout from the IARC study listing diesel as a human carcinogen
  • Creating defenses for the increased plaintiffs’ focus on the benzene docket to link new disease subtypes and low dose causation
  • What is the current state of EPA IRIS and how will this affect litigation that relied on EPA studies?

Also note that Howard Jarvis and others will be talking about actually using genomics in the courtroom. Howard is well out ahead of most in this area.

The conference also includes a panel on securities fraud and products litigation – it’s good to see more conversations between defense lawyers and securities lawyers, as well as discussion of Caremark duties.

11:00 From $10M in Damages to $100M: Avoiding Securities Fraud Claims in Products Liability Litigation by Meeting SEC Disclosure Requirements

Gregory G. Little
White & Case LLP (New York, NY)

Jeremy D. Mishkin
Partner & Chair of Litigation Department
Montgomery, McCracken, Walker & Rhoads LLP (Philadelphia, PA)

  • Avoiding non-disclosure liability
    • What must you report to the SEC?
    • When must you file the SEC report?
  • Determining how much to disclose once a problem or potential cause of action is identified
  • Risk assessment does not equal causation: preventing plaintiffs’ attorneys from creating a link
  • Damage control: what to do if you have disclosed too much
    • The in-house counsel dilemma

“Why insurers should fund medical research, By Dr John Moore-Gillon British Lung Foundation”

Posted in Asbestos, Asbestos Trusts, International Asbestos

It’s good to see more people openly suggesting that insurers should be funding medical research on mesothelioma. The same principles also apply more broadly. Mesothelioma research should be funded by asbestos trusts, futures representatives, asbestos defendants, and unions. Set out below are excerpts from an article on the subject from the BBC on Sunday April 13. See

“One solution is to work with the insurance industry. If, each year, insurers invested in mesothelioma research just a tiny fraction of the amount they will end up paying out in compensation – for example, just 0.05% of that £11bn – it would absolutely transform mesothelioma research.

What is loose change for a multi-billion pound global industry could prove life-saving for thousands.

And what is more, as treatments improve, and more mesothelioma patients live healthy, fulfilling and economically productive lives, the amount of compensation insurers would have to pay out would fall.

It’s a win-win situation that should save the industry money.”



Fitch Estimates Asbestos Litigation Insurers are Under-reserved by $2-9 billion

Posted in Uncategorized

Yesterday, Fitch issued a “Dashboard Report”  (registration required) estimating liability insurers are under-reserved for asbestos litigation by $2-9 billion. The report begins as follows, but is worth reading in its entirety and includes some graphics:

“Asbestos Reserves Remain Deficient
Fitch Ratings estimates U.S. property/casualty (P/C) industry statutory asbestos
reserves to be deficient by $2 billion−$9 billion at year-end 2013, based on estimated
ultimate industry losses of $85 billion, total paid losses of $53 billion and current
reserves totaling $23 billion. Asbestos reserves make up nearly 4% of total industry
reserves. The industry 2013 survival ratio was 10.2x versus Fitch’s target of 11x−14x.
Berkshire Hathaway, Inc. has assumed a large portion of industry reserves through
retroactive reinsurance agreements, which is reflected in its GAAP results.
Continued Steady Incurred Loss Expansion
U.S. P/C insurers’ reported incurred losses relating to asbestos exposures averaged
approximately $2 billion annually for the last five years. Domestic companies with
material asbestos-related incurred losses in 2013 include Liberty Mutual Holding Co.,
Inc. ($236 million), The Travelers Companies, Inc. ($190 million) and Factory Mutual
Insurance Company ($152 million).”

Asbestos Fiber Size – Does It Matter for Lung Cancer?

Posted in Asbestos

A 2014 article from John Dement et al  covers the topic of asbestos fiber size and lung cancer causation.     Occup Environ Med 2014;71:353-357 doi:10.1136/oemed-2013-101965.

The abstract states:

“Background Asbestos is a known carcinogen. However, little is known about the differential effects of size-specific asbestos fibres. Previous research has examined the relationship with lung cancer of each fibre group in the absence of others. Attempts to model all fibre groups within a single regression model have failed due to high correlations across fibre size groups.

Methods We compare results from frequentist models for individual fibre size groups, and a hierarchical Bayesian model that included all fibre groups to estimate the relationship of size-specific asbestos fibre groups to lung cancer mortality. The hierarchical model assumes partial exchangeability of the effects of size-specific asbestos fibre groups to lung cancer, and is capable of handling the strong correlation of the exposure data.

Results When fibre groups are modelled independently with a frequentist model, there appears to be an increase in the dose-response with increasing fibre size. However, when subject to a hierarchical structure, this trend vanishes, and the effects of distinct fibre groups appear largely similar.

Conclusions This is the first occasion where distinct asbestos fibre groups have been assessed in a single regression model; however, even the use of a hierarchical modelling structure does not appear to overcome all the statistical fluctuations arising from the high correlations across fibre groups. We believe these results should be compared with other occupational cohorts with similar fibre group information. Finally, results for the smallest fibre group may be suggestive of a carcinogenic potential for nanofibres.”