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

SCOTUS and a Well Told Fish Story – Kudos to Brian Murray and Meghan Sweeney

Posted in Humor

It’s great when lawyers mix humor into tight legal analysis. Therefore, I’ve taken the liberty of posting below an article that otherwise is caught behind a paywall that guards the November 20, 2014 issue of the Chicago Daily Law Bulletin.


Top court reels in Sarbanes-Oxley fish case

By Brian J. Murray

Brian J. Murray is a partner at Jones, Day, where he leads the Chicago office’s issues and appeals practice. He also teaches complex litigation at The University of Chicago Law School. He can be reached at On Nov. 5, the U.S. Supreme Court heard arguments in Yates v. U.S., which asks the court to decide a momentous legal question of our times — whether a fish called a red grouper is a “tangible object” under an obstruction statute passed as part of the Sarbanes-Oxley Act in the wake of the Enron scandal in 2002.What does a red grouper have to do with Sarbanes-Oxley, you ask? Though it sounds fishy, the answer lies in the lower courts’ broad interpretation of the particular statute at issue.The facts of the case, as set out by the 11th U.S. Circuit Court of Appeals, are straightforward. John L. Yates was the captain of the Miss Katie, a fishing vessel operating off the coast of Florida. On Aug. 23, 2007, Officer John Jones, a federally deputized Florida Fish and Wildlife Conservation Commission officer, boarded Yates’ boat and noticed red grouper that appeared to be less than the 20-inch minimum.Jones measured the fish and placed those that were clearly under the legal size limit into wooden crates. He issued Yates a civil citation for catching undersized red grouper in federal waters and instructed him not to disturb the undersized fish, which would be seized by federal officials when the Miss Katie returned to port.Though Jones told Yates to bring the undersized fish to the dock, Yates instead instructed his crew to throw them overboard.At trial, Yates was found guilty of knowingly disposing of undersized fish to prevent the government from taking lawful custody and control of them, in violation of 18 U.S.C. Section 2232(a), and destroying or concealing a “tangible object with the intent to impede, obstruct or influence” a federal investigation, in violation of 18 U.S.C. Section 1519. He was sentenced to, and served, 30 days in jail.Only the second count is at issue before the Supreme Court, where the parties disagree whether a fish should be considered a “tangible object” for purposes of 18 U.S.C. Section 1519.The entire statute states: “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies or makes a false entry in any record, document or tangible object with the intent to impede, obstruct or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”The 11th Circuit held that under the plain language of the statute, a fish qualifies as a tangible object, since the Black’s Law Dictionary definition of “tangible” is “[h]aving or possessing physical form.” Thus, the court refused to consider any contrary statutory purpose and declined to apply the rule of lenity.The key to the outcome of this case will be the method of statutory interpretation that the Supreme Court uses. Yates argues that “tangible object” should be read in light of its surrounding terms, “record” and “document” to mean “a thing used to preserve information, such as a computer, server or similar storage device.”In addition, Yates argues that Congress’ purpose in enacting Sarbanes-Oxley, to prevent any “systematic campaign” like that taken by “Enron and its auditor, Arthur Andersen, to purge records and documents in anticipation of a federal investigation” informs the meaning of “tangible object” to exclude fish.

The government, on the other hand, argues that “tangible object” is unambiguous and should be interpreted based on its plain meaning. The government also claims that this Sarbanes-Oxley provision was an attempt by Congress to “close loopholes in the existing destruction-of-evidence regime,” and its clear language reflects that purpose — to “prohibit the destruction of all physical evidence.”

While the government argues that Yates’ “illogical” reading “prohibits a murderer from destroying his victim’s diary, but not the murder weapon,” the National Association of Criminal Defense Lawyers and the American Fuel & Petrochemical Manufacturers, who filed a friend-of-the-court brief in support of Yates, argue that his conviction under a broad reading of what they call an “anti-shredding provision,” is “but one more example of the overcriminalization epidemic.”

This epidemic, they argue, is a result of imprecisely drafted legislation resulting in individuals being subject to “penalties far in excess of those penalties set by Congress for the underlying crime.”

Thus, Yates, like last term’s Bond v. U.S. (see my column “Vengeance, poison and the treaty power — all in one high court case,” July 3), poses an interesting statutory construction question about whether the plain meaning of statutory language should control when such an interpretation poses constitutional and other policy concerns.

Those interested in issues of statutory construction must wait with … eh … bated breath to see which school of statutory interpretation wins out in Yates — a broad construction, or one motivated by a search for the true porpoise.

Sincere thanks to Jones, Day associate Meghan E. Sweeney for her contributions to this column.

Asbestos Litigation Goes More Molecular – Germline BAP1 Mutation Issues Are Said to Exist in 5 Cases

Posted in Asbestos, Cancer, Causation - Cancer, Mass Tort Issues

Some say that change is the predominant theme in asbestos litigation. For 2014, some of the change arrives in the form of at least five mesothelioma cases where the presence or absence of a germline  BAP1 mutation is becoming an issue. As it happens, the five cases are scattered around the country: California (3), Missouri, and New York. Thus, 2014 becomes the year mesothelioma litigation undeniably entered the age of precision scientific analysis aimed at a particular person’s genomics, and related molecular characteristics. The five cases are listed in an August 18, 2014 declaration of Ms. Andrea Huston – online here. Ms. Huston is an experienced lawyer with an Oakland based asbestos plaintiff’s firm – Kazan McClain et al.

Ms. Huston’s declaration indicates the five cases are the only known cases in which germline BAP1 issues are known to have emerged. The declaration of course is limited to Ms. Huston’s best knowledge, after some unspecified amount of communication among some members of the asbestos plaintiff’s bar. So, it is of course possible there are germline BAP1 issues emerging in some other cases. The cases identified by Ms. Huston are:

  • Ortwein v. CertainTeed Corp., et al., Alameda County Superior Court No. RG13701633
  • Perez v. ArvinMeritor, Inc., et al. , Alameda County Superior Court No. RG13689541
  • McCarthy v. Baltimore Aircoil Co., et al., Los Angeles County Superior Court No. BC464985
  • Bergstrom v. 84 Lumber, et al., Missouri Circuit Court (22nd Cir.) No. 1322-CC09325
  • Bernard v. Colgate-Palmolive Co., New York Supreme Ct., New York County, No. 107211/08

More ahead this week and next week on further specifics about the germline BAAP1 issues in these cases.


A Soon to Arrive End to Some Causation Questions for Food Illnesses – Spraying DNA Bar Codes onto Food

Posted in Litigation Industry, Science

Causation questions generate lots and lots of issues and fees in litigation regarding contaminated food. One can foresee an end to many of the factual questions with soon to arrive (next year) DNA bar codes sprayed on to food. The creator of this new product? A federal lab working on defense issues. Really. For all the specifics, see this Nov. 19, 2014 article from


Delaware’s Fee Shifting Debate

Posted in Uncategorized

Various litigation industry interests are involved in ongoing Delaware law debates about rules for shifting fees for litigation.  Also at stake are the interests of transactional lawyers. Oh yes, companies also may care too, and at least some say they care. Some uber business lobbying groups also say these are critical issues. The diverse interests – and the views of Professor Bainbridge – are highlighted and linked in an interesting November 19, 2014 post at the Conglomerate.

Corporate Web Site Blunders – The Wall Street Journal Example

Posted in Offtopic

Like so many of my friends, I’m very, very  tired of corporate America wasting the time of millions of users of computers through buggy software and buggy web site changes.  Indeed, as a small business owner, I consider bad software and bad web sites a FAR greater problem than any government regulation.  The latest example of a buggy web site arises from the Wall Street Journal web site. I’ve been an online subscriber for many, many years, and have been using the same user name and password since June 2011. Since then, nothing has changed at my end for that account – zip, nothing, nada. And I use password keeping software (Dashlane) in order to avoid sign-in hassles. So, imagine my surprise when on Monday November 17, 2014, I suddenly could NOT sign in to the WSJ from my main office computer (which has not changed for well over a year.)  After much wasted time, a “help” person on “chat” finally said I should reset the cookie by going to the address bar and typing in:   I followed the instructions and then was able to get back in to the web site. But not for long.

Tuesday evening (Nov. 18),  I tried to log in to the Journal, from home, on my desktop computer at home (it too has not changed for over a year).  But,  of course, you guessed it, I was once again locked out of the WSJ site. So, back to more time wasting with the WSJ chat line. Needless to say, I inquired rather pointedly about what changes were made to the WSJ web site to suddenly cause this problem on two different computers.  But of course, there was no answer. Just malarkey from a chat person, who denied any changes, but the chat person of course has no clue what has been done or not done to the relevant servers. The chat is pasted below, in full.

The bottom line? The once-proud and useful WSJ  now falls even further. If it were an upstanding company, it would warn users – up front –  that changes were made, and that users must enter a new password. Instead, however, the WSJ failed to do that, and left users to waste their time trying to understand and get by the problem. So, here’s a 1 finger salute to Rupert and his tech minions. Meanwhile, I’m still locked out and have NOT received the promised telephone call from a “supervisor.” If I could get in, all this text would be going to the Editor at the WSJ. But of course, that’s not possible when locked out.


Wall Street Journal Logo Live Help

You are now chatting with JOY Kirk: My name is Kirk Hartley and the email is The Problem – yesterday and again today is that your website refuses to allow me in even though I’ve been a subscriber for 15 years. FIX IT! JOY: Hi, Kirk. JOY: I understand that you are inquiring about your WSJ Digital access. JOY: I’m sorry about the inconvenience. JOY: I’ll be happy to assist you. Can you confirm the account holder’s name please? Kirk: Read the above Joy – I did this yesterday too so I know the drill JOY: I apologize. Kirk: Also useless – fix the problem JOY: Please try to delete cookies, by typing on the address bar. Kirk: I did that yesterday. It worked for less than 24 hours. What have you done to change the system – why does this keep happening? JOY: What browser are you using? Kirk: Chrome Kirk: Actually, I just did what you said, and it STILL will not let me in. JOY: What errors are you receiving? JOY: You need to delete cookies to remove the information websites have stored on your computer. Kirk: Error message says “we were unable to find this email/username and password combination.” I have had the same name and password for a decade – this IS a problem at your end. Kirk: I know what a cookie is Joy, and I just deleted it with your words but your system still does not let me in. JOY: Our records indicate that you have an active WSJ Digital account registered under Login JOY: To alleviate your access issues, an email containing the password reset link has been sent to This link will be valid for 30 days. Please remember, your chosen password must be 5-15 characters in length, may not include symbols, and is case sensitive. Kirk: That’s been true for years – thanks for the newsflash (sarcasm intended). JOY: Please be aware that the password is case sensitive. Kirk: Joy – what have you at the WSjJ done to screw this up and waste my time on your problem. I already have a password that matches those rules. JOY: I’m just basing it under the errors that you have received, Kirk. Kirk: I use password keeping software – it does not make mistakes on the case, nor do I. So, back to my question – what has the WSJ done to screw this up and waste my time, and no doubt the time of others. Kirk: ????? JOY: I apologize, I am having some system issues. JOY: Please try to log out and log back in. Kirk: I want an answer to the question Joy. JOY: We did not do anything with your account, Kirk. Kirk: I’m sure you did not. But what have you done to your servers and/or other computers to cause this problem that did not exist for the last few years? JOY: Nothing has changed, Kirk. Kirk: Nonsense. Machines do not work on day 1 and fail to work on day 2 unless something has changed. Go talk to your boss and get an accurate answer. JOY: We are trained about this job and I assure you that we know what we are doing. Kirk: Then tell me oh learned one why this suddenly happens after years of working perfectly? JOY: As you have mentioned, the error that you are receiving is about not being able to find the email/username and password combination. Kirk: And I am using the same username and password I’ve been using for years and have not changed. So, obviously, your system has a sudden memory problem caused by some change at your end. So, please go get a real answer from your boss. JOY: Alright. Can you hold while I look for an available supervisor? Kirk: Yes. JOY: Thank you for holding. Kirk: It is now 8:53 CST. JOY: I am sorry for the trouble. What is the best phone number that you can  be contacted right now to rectify this issue? Kirk: 708-364-1883 JOY: Thank you. Please wait for my supervisor’s call, Kirk. JOY: Is there anything else I may assist you with? Kirk: BTW, you are about to be on the web – I am publishing our exchange on my blog tomorrow morning to highlight the flaws of the WSJ. Look at Good bye.

Would Be Lawyers Should Earn Science Degrees – The Seattle Genetics Example

Posted in Litigation Industry, Offtopic, Science

Young people thinking about law school should consider first earning one or more degrees in science. Proof? See the following  press release regarding the new General Counsel of Seattle Genetics, a great new drug company. One of its accomplishments is Adcetris,  a wonderful new precision drug targeting specific cancers in persons with specific molecular conditions. Note the degrees held by the new General Counsel, Jean I. Liu:  ”Ms. Liu obtained her B.S. in Cellular and Molecular Biology with highest distinction from the University of Michigan, her M.S. in Biology from Stanford University and her J.D. from Columbia University where she was a Harlan Fiske Stone Scholar.”

Seattle Genetics Names New General Counsel and Executive Vice President, Legal Affairs
BOTHELL, Wash.–(BUSINESS WIRE)–Nov. 18, 2014– Seattle Genetics, Inc. (Nasdaq:SGEN) today announced the appointment of Jean I. Liu, as General Counsel, Executive Vice President, Legal Affairs and Corporate Secretary. Ms. Liu brings more than 20 years of professional experience advising pharmaceutical and biotechnology companies on a broad range of corporate, intellectual property, compliance and general legal matters. She will report to Clay Siegall, President and Chief Executive Officer. Ms. Liu replaces Kirk Schumacher, who has been with Seattle Genetics since 2004 and is retiring.“Jean brings tremendous legal and public biotechnology company experience to Seattle Genetics, and will be a strong addition to our executive team,” said Clay B. Siegall, Ph.D., President and Chief Executive Officer of Seattle Genetics. “We look forward to her contributions as we continue to execute on our corporate priorities, including the commercialization and broad clinical development of ADCETRIS, advancing our pipeline of targeted therapies for cancer and building our leadership position in the field of antibody-drug conjugates.”Dr. Siegall added, “I would also like to thank Kirk for his dedication and service to Seattle Genetics for the past decade. He provided valuable guidance to the company on numerous corporate milestones, business development transactions and equity financings.”Prior to joining Seattle Genetics, Ms. Liu served since 2011 as Vice President and General Counsel at Halozyme, a publicly traded biotechnology company. Prior to Halozyme, from 1998 to 2011 she held a number of legal roles at Durect Corporation, most recently as Chief Legal Officer and Corporate Secretary. Ms. Liu’s early career included work at Pillsbury, Madison & Sutro (now Pillsbury Winthrop) and Venture Law Group where she focused on broad areas of legal advisory for early-stage companies, including technology transfer, licensing, patents, and copyright and trademark litigation. Ms. Liu obtained her B.S. in Cellular and Molecular Biology with highest distinction from the University of Michigan, her M.S. in Biology from Stanford University and her J.D. from Columbia University where she was a Harlan Fiske Stone Scholar.About Seattle GeneticsSeattle Genetics is a biotechnology company focused on the development and commercialization of innovative antibody-based therapies for the treatment of cancer. Seattle Genetics is leading the field in developing antibody-drug conjugates (ADCs), a technology designed to harness the targeting ability of antibodies to deliver cell-killing agents directly to cancer cells. The company’s lead product, ADCETRIS® (brentuximab vedotin), is an ADC that, in collaboration with Takeda Pharmaceutical Company Limited, is commercially available for two indications in more than 45 countries, including the U.S., Canada, Japan and members of the European Union. Additionally, ADCETRIS is being evaluated broadly in more than 30 ongoing clinical trials. Seattle Genetics is also advancing a robust pipeline of clinical-stage ADC programs, including SGN-CD19A, SGN-CD33A, SGN-LIV1A, SGN-CD70A, ASG-22ME and ASG-15ME. Seattle Genetics has collaborations for its ADC technology with a number of leading biotechnology and pharmaceutical companies, includingAbbVie, Agensys (an affiliate of Astellas), Bayer, Genentech, GlaxoSmithKline and Pfizer. More information can be found at

Source: Seattle Genetics, Inc.

Seattle Genetics, Inc.
Peggy Pinkston, 425-527-4160
Tricia Larson, 425-527-4180

Some Snowballs Grow: More on Sandy-Related Fraud by Insurance Defense Lawyers and Their Engineers

Posted in Fraud, Insurance, Litigation Industry, Mass Tort Issues

Too often in litigation, unfair things are happening, but it’s difficult to get one judge in one case to pay serious attention because the judge can not and does not see the big picture from one particular case. MDLs and consolidations can help/force one judge to see the big picture. For example, last week, I wrote about Magistrate Judge Brown’s opinion sanctioning an insurer and its lawyers after an investigative hearing into fraud involving engineering  reports prepared in connection with multiple Sandy-related insurance claims. Judge Brown (and other judges) have been working on hundreds of Sandy-related cases, and so he was motivated to and did hold an evidentiary hearing to try to cut through to see the big picture. More on that will unfold over the next few weeks.

Once the snowball starts moving, it can grow, quickly. Asbestos lawyers have seen that movie with the Garlock asbestos bankruptcy case, and that snowball continues to grow, with more expansion perhaps occurring this week. Now the snowball is growing for the Sandy cases. Paul Barrett of Newsweek subsequently wrote a story on the insurance company fraud in the Sandy cases. After that, an online commenter on the article posted a link to another, earlier story that predated Magistrate Judge Brown’s hearing and ruling. Thus, this October 2014 article from Metropolitan Engineering and Forensics goes into some detail about how part of the fraud was uncovered. Meanwhile, E& E news service had a related story on October 16, 2014. Then, returning to the present, Chip Merlin added a November 14, 2014 blog post with more background facts, and links to other news articles on the topic. Meanwhile, a New Jersey Senator is calling for an investigation, and a plaintiff’s lawyer is asking New Jersey judges to enter an order of the sort entered by Magistrate Judge Brown for cases in New York. And other media also are carrying the story – just google “sandy and fraud.”

Creating change is difficult. To get there, it’s important to present the big picture story, accurately, and with real factual proof, as opposed to rumors and spin.


Scientific Surprises – New Questions, New Tools and New Findings

Posted in Science

More and more, it makes sense to expect the unexpected, at least when it comes to molecular findings. Said another way, science today is rocketing forward in new directions, and sometimes produces real surprises when someone asks a new question, perhaps supported by one or more new scientific tools. For an example of a recent surprise making its way through the media, take a read through David Oliver’s November 10, 2014 post at Mass Torts: State of the Art. The post provides an excellent summary of the recent news stories about the surprise findings related to a  ”virus that makes you dumb.” For another example, read David’s May 14, 2014 post regarding a unique new method (emphasis on “method”) to seek to “fingerprint” the source of perchlorate in groundwater, and a related Daubert opinion.

For yet another example, take a look at a this Nov. 13, 2014 ScienceDaily story about neonatologists who asked interesting new questions about chemical exposures to “preemies” from many plastic devices used in their care. The initial findings show chemical exposure levels exponentially above regulatory limits, for adults:

“The new research finds that the total daily exposure for a two-kilogram (four-pound) critically ill infant can reach 16 mg/kg per day. The largest sources are blood products, and endotracheal tubes placed in the airway to deliver breathing support with a ventilator. In analyzing toxic thresholds, the researchers determined that daily DEHP intakes are approximately 4,000 times higher than desired to prevent a type of male reproductive toxicity, and 160,000 times higher than desired to prevent liver injury. They say that a lower DEHP exposure could be one reason why preemies who can be managed without a ventilator seem to have better lung outcomes.”


“Asbestos Exposure, Pleural Plaques and the Risk of Death from Lung Cancer”

Posted in Asbestos, Asbestos Bankruptcy, Lung Cancer Claims

A new abstract on pleural plaques and subsequent lung cancers. Longer term studies do matter. So do more CT scans.

Am J Respir Crit Care Med. First published online 10 Nov 2014 as DOI: 10.1164/rccm.201406-1074OC
Asbestos Exposure, Pleural Plaques and the Risk of Death from Lung Cancer
Jean-Claude Pairon , Pascal Andujar , Mickael Rinaldo , Jacques Ameille , Patrick Brochard , Soizick Chamming’s , Bénédicte Clin , Gilbert Ferretti , Antoine Gislard , François Laurent , Amandine Luc , Pascal Wild , and Christophe Paris
+ Author Information.
Corresponding Author: Jean-Claude Pairon, Email:

Rationale: Although asbestos is a well-known lung carcinogen, the association between pleural plaques and lung cancer remains controversial. Objective: The present study was designed to examine this association among asbestos-exposed workers. Methods and measurements: An 6-year follow-up was conducted to study lung cancer mortality in the 5,402 male subjects participating in an asbestos-related diseases screening program organized between October 2003 and December 2005 in four French regions. Chest computed tomography (CT) scan was performed in all subjects with randomized, independent, double reading of CT scans focusing on benign asbestos-related abnormalities. Survival regression based on the Cox model was used to model lung cancer mortality according to the presence of pleural plaques, with age as the main time variable adjusting for smoking and cumulative exposure index to asbestos. All statistical tests were two-sided. Main results: Thirty-six deaths from lung cancer were recorded. Lung cancer mortality was significantly associated with pleural plaques in the follow-up study in terms of both the unadjusted hazard ratio (HR) = 2.91 [95% confidence interval (CI) = 1.49 to 5.70 and the adjusted HR = 2.41 [95%CI = 1.21-4.85] after adjustment for smoking and cumulative exposure index to asbestos. Conclusions: The presence of pleural plaques may be an independent risk factor for lung cancer death in asbestos-exposed workers and could be used as an additional criterion in the definition of high-risk populations eligible for CT screening.
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