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GlobalTort

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

Virtues of Open Access to Big Data on Claiming and Payment Systems

Posted in Asbestos, Asbestos Bankruptcy, Fraud by Insurers and Their Lawyers, Health Insurer Discrimination Against Persons with Chronic Diseases, Insurance, Litigation Industry, Mass Tort Issues, Science

Access to “big data” is important to multiple aspects of claiming and payments systems. For example, secrecy in data helps some health insurance companies avoid analysis and compilation of data on how often they deny access to stem cell transplants to persons with cancer. Blocking access to data also helps health insurers make it harder for patients and/or doctors to learn if they’ve been systematically cheated out of payments.  Similarly, some property damage insurers seek to block access to “data” on claims and payments after “big storms,” and rewriting of expert reports to deny payments to persons with damaged property. Secrecy also is thought to help litigants on all sides of many issues as they try to take advantage of actual or perceived asymmetries in access to information. In view of these realities, it is therefore no surprise that litigants on all sides tend to seek and argue for data secrecy that blocks access by groups interested in examining “big data” for whatever it may reveal about claims for and payments of money.

Sadly, the desire for secrecy is especially strong among the asbestos bankruptcy trusts that hold the most “big data” on asbestos claiming. This is especially frustrating because once upon a time, David Austern (of the Manville Trust) and some other trusts actively disseminated the “big data” they held on asbestos claiming. Indeed, back in 2009, I described in detail the Manville Trust’s regrettable retreat into secrecy through actions of its Trustees (not David), and cited to some of the obligatory references on the value of sunlight.

It is easy to doubt that society benefits from secrecy on the longest running and most costly “mass tort” in history, which in general has failed to serve the interests of “future claimants.” In other contexts, the federal government and others seek to increase disclosure of big data to encourage more intelligent and wide-spread scrutiny of claiming and payments for systems intended to serve the interests of current and future claimants.  Indeed, back in 2010, the Obama Administration announced plans to release Medicare data so that private “bounty hunters” could root out fraud, as described in a March 29, 2010 article at FierceHealth IT . More recently, much more Medicare data was released, and the Obama Administration (CMS) June 1, 2015 statement went on at length as to the virtues of  releasing massive amounts of Medicare data for analysis by interested persons. There, CMS explained the following regarding the vast scale and scope of Medicare data disclosures:

“As part of the Administration’s efforts to promote better care, smarter spending, and healthier people, today CMS is posting the third annual release of the Medicare hospital utilization and payment data (both inpatient and outpatient) and the second annual release of the physician and other supplier utilization and payment data. The announcement was made at the annual Health Datapalooza conference in Washington, DC.

“These data releases will give patients, researchers, and providers continued access to information to transform the health care delivery system,” said acting CMS Administrator Andy Slavitt. “It’s important for consumers, their providers, researchers and other stakeholders to understand the delivery of care and spending under the Medicare program.”

The Medicare hospital utilization and payment data consists of information for 2013 about the average amount a hospital bills for services that may be provided in an inpatient stay or outpatient visit. The hospital data includes payment and utilization information for services that may be provided in connection with the 100 most common Medicare inpatient stays and 30 selected outpatient procedures at over 3,000 hospitals in all 50 states and the District of Columbia. The top 100 inpatient stays represented in the hospital inpatient data are associated with approximately $62 billion in Medicare payments and over 7 million hospital discharges.
  
The Medicare Part B physician, practitioner, and other supplier utilization and payment data consists of information on services and procedures provided to Medicare beneficiaries by physicians and other healthcare professionals. The data also shows payment and submitted charges, or bills, for those services and procedures by provider. It allows for comparisons by physician, specialty, location, types of medical services and procedures delivered, Medicare payment, and submitted charges. The new 2013 dataset has information for over 950,000 distinct health care providers who collectively received $90 billion in Medicare payments. Hospitals, physicians, and other health care providers determine what they will charge for services and procedures provided to patients and these “charges” are the amount the hospital or provider generally bills for the service or procedure, but the amount paid is determined by Medicare’s physician fee schedule or other payment methodologies. CMS protects beneficiaries’ personal information in all its data releases.

“Data transparency facilitates a vibrant health data ecosystem, promotes innovation, and leads to better informed and more engaged health care consumers,” said Niall Brennan, CMS chief data officer and director of the Office of Enterprise and Data Analytics. “CMS will continue to release the hospital and physician data on an annual basis so we can enable smarter decision making about care that is delivered in the health care system.”

The Administration has set measurable goals and a timeline to move Medicare toward paying providers based on the quality, rather than the quantity, of care they give patients. These data releases are part of a wide set of initiatives to achieve better care, smarter spending, and healthier people through our health care system. Open sharing of data securely, timely, and more broadly supports insight and innovation in health care delivery.  

Today’s data release adds to the unprecedented information recently released on Medicare Part D prescription drugs prescribed by physicians and other health care providers.”

 

SCOTUS, Overreach, and Be Careful What You Wish For

Posted in Litigation Industry, Policy Issues

The past week’s rulings at SCOTUS are bad news for at least some who (accurately or not) label themselves as “conservatives.”  Some lawyers are now explicitly arguing that overreach is hurting “conservative” causes at SCOTUS because “cause” lawsuits are resulting in litigation of extreme, overreaching views/arguments. That’s the thesis of this June 25 NYT article.

In a perhaps related vein, one might also note Justice Scalia’s dissents and language have resulted in mocking web sites and articles at Slate and elsewhere about “the Scalia insult generator.”

 “Be careful what you wish for” may be at work, yet again.

Nanotubes and Molecular Pathways of Invaders into Cells in Lungs

Posted in Asbestos, Cancer, Science

Research continues on the molecular pathways that are affected as lungs are invaded particles. One can and should look for parallels between invaders. A new abstract provides information on pathways affected by carbon wall nanotubes.

“Biological oxidative responses are involved in the toxicity of multiwall carbon nanotubes (MWCNTs), which may cause asbestos-like pathogenicity. Superoxide dismutase 2 (SOD-2) has been proposed as a biomarker of early responses to mesothelioma-inducing fibers. This study was conducted to investigate the alteration of SOD-2 expression in the human mesothelial cell lines Met-5A after exposure to nontoxic doses of MWCNTs and the potential signaling pathway. The parameters measured included the viability, morphological change, superoxide formation, extracellular signal-regulated kinase 1/2 (ERK1/2) phosphorylation, and messenger RNA (mRNA)/protein levels of SOD-2. Our results showed that MWCNTs upregulated SOD-2 expression at both mRNA and protein level. Coincidently, both superoxide formation and ERK1/2 phosphorylation were observed in Met-5A cells exposed to MWCNTs and were diminished by pretreatment with the reactive oxidative species (ROS) scavenger, N-acetyl-L-(+)-cysteine (NAC). To further investigate the role of ROS/ERK1/2 in MWCNTs-induced SOD-2 overexpression, prior to MWCNTs exposure, cells were pretreated with the Mitogen-activated protein kinase kinase 1/2 (MEK 1/2) inhibitor (U0126) or with NAC. Both pretreatments decreased the MWCNTs-induced overexpression of SOD-2. These results suggest that upregulation of SOD-2 in Met-5A cells exposed to MWCNTs is mediated by ROS formation and ERK1/2 activation.”

  1. Published online before print June 25, 2015, doi:10.1177/1091581815591223International Journal of Toxicology June 25, 2015 1091581815591223

Garlock’s Tort System Trial Record – 2014 Summary by Bates White

Posted in Asbestos, Asbestos Bankruptcy, Litigation Industry

There’s much spin by many sides as to the Garlock chapter 11 outcome.  Facts are more useful. This link provides two pages from a fall 2014 presentation by Bates White as to Garlock’s trial record in the tort system. One  page identifies the presentation, and the second page provides an easy to read chart summarizing Garlock’s trial record in the tort system. (I cannot claim to have fact checked the numbers; I assume Bates White accurately summarized the record.)

 

Big Tobacco Moving into Positive Science?

Posted in Cancer, Science, Tobacco

Big tobacco asserts it’s now trying to use science in a positive way, instead of simply using them to create “doubt.” The story is told in a June 23, 2015 story from Reuters. The intro is pasted below:

WASHINGTON (Reuters) – Scientists who have devoted years developing medicines to cure disease are now working for tobacco companies to make e-cigarettes.

Philip Morris International Inc has hired more than 400 scientists and technical staff at its research facility in Neuchatel, Switzerland, including toxicologists, chemists, biologists, biostatisticians and regulatory affairs experts.

Altria Group Inc, makers of Marlboro, has recruited dozens of scientific and healthcare experts, as have independent e-cigarette companies such as NJOY. They bring experience developing inhalation devices and navigating the U.S. Food and Drug Administration, valuable knowledge in the new world of electronic cigarettes.

They say they’re trying to improve public health.

“We were looking at drugs that make people very ill and maybe extend their life by 12 to 14 weeks,” said Gizelle Baker, a PMI biostatistician based in Neuchatel who previously worked at the cancer drug developer Poniard Pharmaceuticals. “If you have a product that prevents cancer in the first place you can have a much bigger impact on public health.”

The goal is to improve the current generation of e-cigarettes and, where possible, provide evidence that they reduce the risk of disease. Companies that succeed could have an advantage in a market that Bonnie Herzog, an analyst at Wells Fargo Securities, sees surpassing combustible cigarettes in the U.S. within the next decade.
Read more at http://newsdaily.com/2015/06/in-twist-scientists-join-tobacco-companies-to-fight-cancer/#7giK2s4zyXgekAQ2.99

More Deja Vu All Over Again – Benzene Litigation and Insurance Company Arguments

Posted in Asbestos, Benzene, Insurance, Litigation Industry

Yogi Berra probably never dreamed of the number of times his line would reused. In any event, it applies well to insurance companies dancing around coverage issues for benzene litigation, as they’ve done many times in asbestos litigation. HarrisMartin’s Benzene publication provides an example (paywall) in a June 4, 2015 article.  The summary provided in the article (see below) reads as if the arguments were lifted directly from brief on asbestos coverage issues:

“Continental and National Union issued commercial general liability policies to Valspar between 1971 and 2004. In 2006, Continental began incurring costs associated with the defense of Valspar in four benzene lawsuits alleging exposure to products manufactured by the company. The lawsuits implicated policies issued by both insurers based on the alleged exposures, which occurred between 1966 and 1990.

Continental sued National Union, seeking contribution under a theory that it owed Valspar a duty to defend against the underlying benzene claims and therefore had an equitable obligation to contribute to defense costs incurred by another insurer in connection with the lawsuits.

In March 2013, the court awarded partial summary judgment to Continental, determining that National Union had a duty to defend Valspar and, as a result, a duty to contribute to defense costs incurred by Continental. However, the court’s ruling left open the question of how much National Union was required to reimburse Continental.”

Good News: “Dramatic Response with Novel microRNA Replacement Therapy in Malignant Pleural Mesothelioma”

Posted in Asbestos, Cancer, Science

MicroRNA illustrate the incredible pace of new knowledge and change as to molecular biology and cancer. As of 2000, the world’s molecular research community barely knew they existed, in 2,000 or more different versions. Over time, it became known that microRNA are many and varied, and regulate gene expression, among other things. Because of their unique nature and roles, Rosetta Genomics has for years been using microRNA to identify tumors of unknown primary, and to test for mesothelioma in particular. (Disclosure: I’ve been for some time now supporter of things microRNA in general, and Rosetta in particular. See, e.g., this prior post. Indeed, these days I invest in Rosetta and other biotech stocks, with a focus on uses involving cancers of various kinds. I also continue to urge that our nation should invest more in cancer research, and litigants and asbestos trusts should be investing in finding treatments and/or cures for mesothelioma.)

For several years now, microRNA have been part of research and clinical trials aimed at deploying microRNA against cancer because of their power to regulate genes. For example, in 2006, Rosetta joined with others to begin work on deploying microRNA against liver cancer, among other efforts. Others have been seeking to use microRNA against mesothelioma.  It’s VERY, VERY early days, but it’s nonetheless good to see some initial encouraging news on the use of microRNA as a therapy against mesothelioma in particular. The full press release is pasted below, but the short highlights version is as follows:

  • “The case study, titled, “A significant metabolic and radiological response following a novel targeted microRNA-based treatment approach in malignant pleural mesothelioma,” reported on the remarkable results of a 51-year old male who was diagnosed with MPM in May 2013. After eventually failing three chemotherapy regimens, he entered the MesomiR-1 study. The patient was one of the six patients recruited into the first cohort, which received eight weekly infusions of 5×109 EDV™ nanocells packaged with miR-16a, coined TargomiRs for this study.  At the end of the eight-week study period, a near-complete response was evident on the patient’s PET and CT scans, and which was confirmed four weeks later. In addition, the patient had a significant improvement in respiratory function. During the treatment, the patient experienced only minor Grade 1 toxicities, including transient chills, low-grade fever, fatigue and headache. ***
  • Of the five additional patients in the first cohort, four have achieved stable disease and one progressive disease. Overall, TargomiRs were well tolerated during the treatment period, with the majority of patients reporting a period of shivering/rigor 80-90 minutes following infusion with TargomiRs, sometimes associated with a burning/painful sensation in the area of disease.”

The full press release is pasted below; hopefully the responses will prove durable,  and more good outcomes will follow:

NEW YORK and SYDNEY, June 15, 2015 /PRNewswire/ — EnGeneIC Ltd, an emerging biopharmaceutical company focused on developing its proprietary EDV™ nanocell platform for the targeted delivery of cancer therapeutics, announced today that, together with the Asbestos Diseases Research Institute (ADRI), a patient case study from the MesomiR-1 Phase 1 clinical trial of its EDV™ nanocells packaged with a miR-16-based microRNA for the treatment of malignant pleural mesothelioma (MPM) has been published in the peer-reviewed journal American Journal of Respiratory and Critical Care Medicine.

The case study, titled, “A significant metabolic and radiological response following a novel targeted microRNA-based treatment approach in malignant pleural mesothelioma,” reported on the remarkable results of a 51-year old male who was diagnosed with MPM in May 2013. After eventually failing three chemotherapy regimens, he entered the MesomiR-1 study. The patient was one of the six patients recruited into the first cohort, which received eight weekly infusions of 5×109 EDV™ nanocells packaged with miR-16a, coined TargomiRs for this study.

At the end of the eight-week study period, a near-complete response was evident on the patient’s PET and CT scans, and which was confirmed four weeks later. In addition, the patient had a significant improvement in respiratory function. During the treatment, the patient experienced only minor Grade 1 toxicities, including transient chills, low-grade fever, fatigue and headache.

TargomiRs consist of EnGeneIC’s antibody-guided EDV™ nanocells packaged with miR-16-based microRNAs, which were discovered to be missing in MPM cells by Professors Glen Reid and Nico van Zandwijk of the ADRI. To deliver the missing microRNAs to the cells, the EDV™ nanocells are designed to specifically target the epidermal growth factor receptor found on MPM cells.

Medical oncologist Dr. Steven Kao from Chris O’Brien Lifehouse (Sydney, Australia), said, “It’s an amazing response for this patient. The mesothelioma is now almost invisible and the condition of my patient has also improved. It probably goes without saying that he is very happy.”

Associate Professor Nick Pavlakis from the Northern Cancer Institute and one of the six medical oncologists involved in the trial, added a cautious remark, “While we are all very excited about this result and of course delighted for the patient, we must stress that this is a very early observation and requires confirmation in the next phase of clinical testing.”

Of the five additional patients in the first cohort, four have achieved stable disease and one progressive disease. Overall, TargomiRs were well tolerated during the treatment period, with the majority of patients reporting a period of shivering/rigor 80-90 minutes following infusion with TargomiRs, sometimes associated with a burning/painful sensation in the area of disease.

Dr. Himanshu Brahmbhatt, Joint-CEO of EnGeneIC, said, “In addition to showcasing the potential of TargomiRs in MPM, the results also serve to demonstrate the platform nature and versatility of EnGeneIC’s targeted EDV™ nanocells, as in previous Phase I clinical studies the EDVTM nanocells have been used to also deliver cytotoxic drugs.”

The MesomiR-1 trial is an open-label, exploratory Phase 1 study of TargomiRs administered in escalating doses by intravenous infusion in patients with MPM who failed to respond to standard of care therapy. The primary study objectives are to establish the optimal dose of TargomiRs and to detect early signs of disease stabilization. The study is the first time a targeted nanotherapeutic approach to microRNA replacement is being tested in patients with MPM.

The trial is a cooperative project involving ADRI, EnGeneIC, Chris O’Brien Lifehouse, the Northern Cancer Institute, Royal Prince Alfred Hospital, Concord Repatriation General Hospital and The University of Sydney.

About ADRI The Asbestos Diseases Research Institute (ADRI) was opened in January 2009 in response to the increasing incidence of malignant mesothelioma in Australia. The Institute focuses on basic and clinical science, as well as epidemiological and psychosocial research into asbestos-related diseases.

About Chris O’Brien Lifehouse Chris O’Brien Lifehouse is a world-class cancer treatment and research facility providing care and support services to public and private patients. Our mission is to improve the quality of life for cancer patients, carers and their families by advancing the understanding, diagnosis, treatment, cure and prevention of the disease. Lifehouse is an independent not-for-profit institution. Any operating surplus received by the hospital is re-invested in the Lifehouse hospital to continually innovate and improve services.

About Northern Cancer Institute Northern Cancer Institute, St Leonards is a privately run cancer treatment and clinical research facility (affiliated with North Shore Private Hospital and Sydney University). Its aim is to provide holistic care in an environment that is designed to be as pleasant and as comfortable as possible. It has had longstanding clinical research links with Royal North Shore Hospital, and in 2014 opened its own Clinical Trials Unit, in which clinical trials have since commenced in a variety of tumour types.

About EDV™ Nanocell TechnologyEnGeneIC’s bacterially-derived EDV™ nanocells are a powerful nanoparticle drug or siRNA or miRNA delivery system designed to directly target and effectively kill tumor cells with minimal toxicity, while at the same time stimulate the immune system’s natural anti-tumor response. Intravenously injected EDV™ nanocells exit the leaky vascular system only within tumors and attach to cancer cells via a specially designed, targeted bi-specific antibody. Once attached, the nanocell is able to enter the tumor cell and deliver intracellularly a drug or siRNA or miRNA payload. In parallel, the bacterial cell wall of the nanocells stimulates key components of the immune system, which are then activated to seek out and destroy cancer cells.

About EnGeneIC, Ltd.EnGeneIC is an emerging biopharmaceutical company focused on developing its proprietary EDV™ nanocell platform for the targeted delivery of cancer therapeutic and other therapeutic molecules.  The company’s lead technology platform, EDV™ utilizes antibody-targeted, bacterially derived, non-living “nanocells” to release high concentrations of chemotherapeutic agents, molecularly targeted drugs, and RNA-interference molecules directly into targeted tumor cells.  In doing so, EDVTM nanocells enable current cancer treatments to be more potent and far less toxic, while also offering a potential new means for treating drug-resistant cancers.  EnGeneIC is currently planning to undertake clinical trials in several cancer indications in Australia and USA.

For more information please visit www.engeneic.com

For EnGeneIC:Himanshu Brahmbhatt, Ph.D.Joint-CEO and Directorhbrahmbhatt@engeneic.com+61-438-020-856

U.S. Investor Contact:Tiberend Strategic Advisors, Inc.  Joshua Drumm, Ph.D. +1-212-375-2664jdrumm@tiberend.com

U.S. Media Contact:Tiberend Strategic Advisors, Inc.  Amy S Wheeler+1-646-362-5750awheeler@tiberend.com

Australia Media Contact:Felicity Moffatt+61-418-677701felicity@mdmedia.net.au

To view the original version on PR Newswire, visit:http://www.prnewswire.com/news-releases/engeneic-and-asbestos-diseases-research-institute-announce-encouraging-results-from-mesomir-1-phase-1-trial-in-late-stage-mesothelioma-patients-300098861.html

SOURCE EnGeneIC, Ltd.

 

New York Changes Judicial Appointment Process and Transfers Judges to Upgrade Commercial Bench to Jockey with Delaware for More Big Cases

Posted in Asbestos, Elected Judges, Litigation Industry

In another indicator of the importance of the litigation industry, New York and Delaware courts continue to compete for big commercial cases. A recap of some of New York’s recent moves is set out in a June 6, 2015 AmLaw Daily article about Barry Ostrager taking the bench in New York. The article includes, however, the following bigger picture observations about the jockeying between Delaware and New York. The new  focuses on, among other things, how New York is appointing judges to its Court of Claims, and then moving them to a new commercial litigation bench in Manhattan:

“The Court of Claims appointment would seem a curious fit for Ostrager, who’s among the most experienced and best-known commercial litigators in the country. Altogether, Ostrager estimates he’s handled 65 trials and more than 50 appeals, including more than a dozen before the U.S. Court of Appeals for the Second Circuit and two before the U.S. Supreme Court.

“That’s more trials than the entire litigation department at many firms,” said Sullivan & Cromwell’s Robert Giuffra Jr., who most recently collaborated with Ostrager in a 2014 defense victory for UBS AG and various underwriters in a $113 billion federal securities class action—one of the largest bank stock-drop suits ever.

Ostrager’s appointment may have everything to do with a larger push by New York to compete with other states—Delaware in particular—for a larger share of the country’s choicest commercial litigation. Since the financial crisis, the need for upgrades to the state’s Commercial Division has become urgent. The court has been handling a vastly larger and more complex docket of high-value disputes at the same time that its budget has steadily declined since 2009, leading to delays.

In 2012, New York Chief Judge Jonathan Lippman created a task force of top litigators, state court judges, academics and senior in-house counsel to look into ways to strengthen the Commercial Division. The first recommendation of the task force, co-chaired by former New York Chief Judge Judith Kaye (now of counsel at Skadden, Arps, Slate, Meagher & Flom) and Wachtell, Lipton, Rosen & Katz name partner Martin Lipton, was to increase the number and experience level of judges in the division.

The task force advised the legislature to amend the Court of Claims Act to add six additional judges, whom the chief judge could then reassign to the Commercial Division. Amending the law would enable the governor to directly designate judges “qualified and eager to resolve complex commercial disputes,” the report’s authors concluded. In the past, most judges were elected to the Supreme Court seats and appointed to the appellate court positions.

***

At least three other judges originally appointed to the Court of Claims have been moved to the Commercial Division. They include Melvin Schweitzer, a former Rogers & Wells corporate partner appointed to the Court of Claims in 2005 and later designated an acting Supreme Court justice, who recently retired; State Supreme Court Justice O. Peter Sherwood, a former Manatt, Phelps & Phillips litigation partner appointed to the Court of Claims in 2008; and Lawrence Marks, appointed in 2009 to the Court of Claims, and now the second-ranking administrative judge in the state court system.”

Lyondell Claims Benzene Claims are Barred by Prior Chapter 11 Plan and Injunction

Posted in Asbestos Bankruptcy, Bankruptcy, Benzene, Constitutional Law/Mass Tort Law, Litigation Industry

Defendants related to uber-sized Lyondell Chemical are now seeking to use a recent chapter 11 injunction to try to bar claims that benzene caused a blood cancer. The defense motion makes no mention of the chapter 11 proceeding including any “futures representative” type of person acting on behalf of future claimants. The motion also makes no pretense of any effort to notify persons previously exposed to benzene. It will be interesting to see if the history of asbestos bankruptcy outcomes repeats itself in benzene litigation.

In light of the orders entered as to Agent Orange claims and various other types of claims,  it’s hard to imagine how these bankruptcy court orders can be deemed constitutionally proper when they take away state law tort claim rights through government action with no futures representative, no meaningful notice and no payment for the property rights taken from claimants. The claimants include both co-defendants and underlying tort claimants.  This prior post discusses some of the many authorities (which are not mentioned by Lyondell, in its motion papers).

Lyondell’s motion is online.