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

“Tort Reform” Was: Letting the Parties Testify?

Posted in Litigation Industry, Mass Tort Issues

Who knew? So far as I can recall, I’ve never heard the assertions below. Kudos to Professor Robinette for spreading the following word via an August 24, 2016 post at TortPorfsBlog:

“Ken Abraham & Ted White have posted to SSRN The Transformation of the Civil Trial and the Emergence of American Tort Law.  The abstract provides:

“Everyone agrees that American tort law expanded significantly in the late nineteenth century. But the story of that change, as usually told, is radically incomplete. One important precondition of tort law as we now know it was a major change in evidence law, one that only began to emerge after 1850. Before then, plaintiffs, defendants, and other “interested” parties were almost universally prohibited from testifying in civil trials. With this prohibition on party testimony, what the jury knew about the facts underlying a tort action was derivative and incomplete. Far fewer tort actions were brought at all, because often the only evidence available to the plaintiff was his or her own account of what had happened, and that was inadmissible. But with the change, victims of personal injury were now able to describe, before juries, the circumstances in which they had been injured. They were able to talk about what they had done, what the entities they were suing had done or not done, and how they had suffered. They no longer needed the fortuitous presence of third-party witnesses to elicit testimony about how had they had been injured. The abolition of the prohibition on party testimony, in short, made it much easier to succeed in personal injury lawsuits.

At stake in this transformation was the very epistemology of the civil trial. With the admission of party testimony, civil trials went from being pre-modern efforts to resolve disputes whose outcomes were affected by the spiritual weight assigned to oaths taken by third-party witnesses, to the modern searches for factual truth that we now (incorrectly) assume they always have been. Without this transformation, other factors that later brought about modern tort liability could not have exercised the influence that they did have. The transformation created the very conditions under which modern tort law could, and then did, emerge. Yet the transformation and its significance for tort law have gone largely unrecognized. Modern tort scholars appear to be completely unaware of the prohibition on party testimony, and have therefore failed for more than a century to take it into account in the way they have written and taught about the development of the law of torts. Because the rules and practices that preceded the transformation have now completely disappeared from modern torts cases, what it accomplished may appear, incorrectly, to have always been the case. But it is lack of visibility, rather than lack of responsibility, that has actually been at work in hiding the significance of the transformation for the emergence of modern tort law.”

Indictments Against Engineering Firm Hired by Insurance Company Lawyers for Superstorm Sandy Claims

Posted in Fraud by Insurers and Their Lawyers, Insurance, Litigation Industry

It took some time, but 50 indictments finally emerged for the engineering firm hired by property damage insurance company lawyers to knock down damages for policyholders crushed by Superstorm Sandy. It’s good to see fraud prosecuted, regardless of which side is committing the fraud. Interestingly, however, the insurance industry and the US Chamber of Commerce have not covered the story (that I can find) despite the fact that alleged fraud in litigation is one of their favorite topics.

These indictments arose because in part because a determined judge ordered some hearings, looked across a larger group of cases, and issued a detailed opinion. Media coverage followed. Then more judges became involved and issued more findings. It’s good to see judges speak out when they see corruption in litigation.

Asbestos Litigation, Investing in Data, and the Law and Science of Cancer Causation

Posted in Asbestos, Cancer, Science

For today, some comments on investing in objective scientific data and translating science into law, as well as pointing to a useful presentation on “magic words” and causation in asbestos cases.

Causation is of course a key issue in any tort case. In some cases, it’s an easy to resolve, such as when a car rams into a pedestrian and a leg is broken.  Other fact patterns create more difficult issues; Mrs. Palsgraf’s complex fact pattern of course comes to mind.

For asbestos litigation, proof of causation remains key and complex, especially in cases where a “low dose” may be at issue. Various fact patterns can arise. For example, the total dose may be “low.” Or, a person may have received some massive doses (e.g. working in a ship’s engine room as a pipe fitter) and some relatively low doses (e.g. changing brake linings a few times). To succeed, the defendants in the low dose claims face the daunting task of convincing judges and jurors the low doses did not matter.

In some instances, defense lawyers declare “low dose” victory by winning appellate rulings tied to the use (or non-use) of”magic words” thought to aid the defense cause as to expert testimony and proof of causation. However, David Oliver and I have publicly commented we see very little in the way of a win for the defense in some of those rulings, and think the rulings actually may be adverse in some ways. In some of the same articles (which are not coordinated), we also have called for more joint efforts by lawyers, doctors, and scientists  to develop objective exposure data, and to better understand the language used by each profession in order to translate science into words. David also has pointed out some risks and issues related to a “duty to mine big data.”

On the translational topic, the possibly magic words “every exposure” have attracted much defense attention for some years, such as here, here and here. But where have the “victories” really taken the defense,  and how have plaintiff experts responded to challenges to magic words? By adopting new words that express essentially the same outcome but in different words. On those topics, this fall 2015 presentation by Mort Dubin of Orrick provides  examples of the changes and the pyrrhic nature of some of the purported defense victories.

A take away? For asbestos cancer causation issues, insurers and defendants need to invest tens of millions so that scientists can perform tests and experiments to generate more objective scientific data about actual or alleged asbestos -related cancers. Investing in science and more certainty certainly seems more useful than spending hundreds of millions per year on verdicts and settlements despite supposedly having won some fights over magic words.


Applied Science Saving Lives: Airplane Crash Avoidance

Posted in Mass Tort Issues, Offtopic, Science

Errors in manufacturing and science sometimes draw lots of lawsuits and negative attention. But great successes also exist, and sometimes are taken for granted. The latter point is highlighted by a recent synopsis of how determined engineers (Don Bateman and friends) and Sundstrand/Honeywell created a system that stopped airplanes from flying into mountains, among other problems. The story is told in an August 10, 2016 article in Bloomberg by Alan Levin.

Hartford is Thinking About “Bigger Solutions” to “More Forcefully Address” Still Rising Asbestos Expenses

Posted in Asbestos, Cancer, Litigation Industry, Science, Uncategorized

Will insurers and analysts ever stop being surprised by the demographics and science of asbestos litigation? See below for a quote from a sell side analyst’s August 7, 2016 take on Hartford and its upsized asbestos charges, and thinking of a “more forceful” approach. It’s from Keefe, Bruyette & Woods:

“Asbestos and Environmental: Although HIG’s 2Q16 $269 million A&E reserve charge materially exceeded our projected $150 million charge, we view its overall A&E reserve development as directionally consistent with industry-wide trends. Mr. Swift noted that asbestos attorneys are pursuing older asbestos claimants, which lowers average claim size but has translated into slower claim count declines amongst a subset of claimants, and that given recent years’ worse-than-expected trends, HIG is now more open to considering “bigger” solutions (which could include transferring latent tort liabilities to a reinsurer, adopting a more conservative point estimate for A&E reserves, etc.) to more forcefully address the issue.”

2,000 Talc Cases for Southern California?

Posted in Cancer, Litigation Industry, Talc Litigation

HarrisMartin reports, in an August 9, 2016 article (paywall) that a state court judge in Los Angeles expects that perhaps 2000 talc cases may be filed in southern California. However, the basis for the court’s expectation is not explained in the article or the order. According to part of the HarrisMartin article:

“A petition to create a coordinated docket for California’s growing number of talcum powder claims has been granted, according to a recent ruling. In an Aug. 2 ruling, Judge Ann I. Jones of the Los Angeles Superior Court found that “coordination will promote the ends of justice.” “Given the expected magnitude of the cases (i.e., approximately 2,000) and Petitioners’ representation that the majority of the Plaintiffs will be from Southern California, the Court recommends that the site of the coordinated proceedings be Los Angeles County,” the ruling stated.”

A hearing to address the petition was held on July 29 in Los Angeles County. Johnson & Johnson Talcum Powder Cases, No. JCCP4872 (Calif. Super. Ct., Los Angeles Cty.).”

The order is online.

Where Will the Courts Draw the Lines for Caremark Claims Related to Science and Law Issues?

Posted in Mass Tort Issues, Science

As law and science intersect more and more often, increasing opportunities arise for Caremark claims against corporate directors if they fail to see and monitor the intersections as relevant to their business. Therefore, I read with interest an August 3, 2016 blog post at Morris James, and the linked new Delaware Chancery opinion  exploring the extent of the “red flags” needed (or not) to pursue a Caremark claim without a prior demand. In this instance, the red flags and disregard were deemed not adequately alleged despite some concerns about conduct violating antitrust laws. It’s interesting to see where courts draw the lines, and will be fascinated to see how courts apply the law when considering suits against directors regarding science and law issues.

As a reminder of the basic standard for Caremark claims, the court explained:

A breach of fiduciary duty claim that seeks to hold directors accountable for the consequences of a corporate trauma is known colloquially as a Caremark claim, in a tip of the hat to Chancellor Allen’s  landmark decision In re Caremark International Inc. Derivative Litigation.”


“In Stone v. Ritter, the Delaware Supreme Court restated the bases on which directors may be found liable for a breach of their fiduciary duties under Caremark: We hold that Caremark articulates the necessary conditions predicate for director oversight liability: (a) the directors utterly failed to implement any reporting or information system or controls; or (b) having implemented such a system or controls, consciously failed to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention. In either case, imposition of liability requires a showing that the directors knew that they were not discharging their fiduciary obligations. Where directors fail to act in the face of a known duty to act, thereby demonstrating a conscious disregard for their responsibilities, they breach their duty of loyalty by failing to discharge that fiduciary obligation in good faith.”

Another Long Swim for ALS Research

Posted in Offtopic, Science

ALS, a vicious disease, has hit hard the McConnell family from west suburban Chicago. But they hit back with intelligence and guts aimed at bringing in more money for ALS research. Five years ago, Doug McConnell swam the English Channell, supported by the familial team,  as a fundraiser and personal challenge. Karma appeared and on the day Doug reached land in France, a major new paper on ALS was published in Nature, with the work undertaken at a lab at Northwestern supported by Doug and his family.

Today, Doug is back in the water for another long swim, this time trying to become only the 39th person to ever cross between two Hawaiian islands about 27 miles apart. Go team go. You can watch and/or donate at A Long Swim on Facebook.