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

Global Obstetricians and Gynecologists Go Big on Statements Regarding Adverse Impacts from Prenatal Exposures to Chemicals

Posted in Cancer, Litigation Industry, Mass Tort Issues, Science

Professional medical societies usually are not thought of as radical groups. Therefore, it’s especially notable that a large, global group of obstetricians and gynecologists last week issued a stark statement on adverse impacts of prenatal exposures to chemicals. The statement issued in connection with a series of women’s health papers issued shortly prior to the group’s international meeting. The statement is online here (open access), and pasted below in full:

“Global Ob-Gyn Group Urges Greater Efforts to Prevent Toxic Chemical Exposure Reproductive Health Professionals Say Links Between Prenatal Exposure to Chemicals and Poor Health Outcomes Are Increasingly Evident

Dramatic increases in exposure to toxic chemicals in the last four decades is threatening human reproduction and health, according to the International Federation of Gynecology and Obstetrics (FIGO), the first global reproductive health organization to take a stand on human exposure to toxic chemicals. FIGO, which represents ob-gyns from 125 countries/territories, published the opinion in the International Journal of Gynecology and Obstetrics on October 1st, just prior to its XXI World Congress in Vancouver, BC, where more than 7,000 clinicians and scientists will explore global trends in women’s health issues Oct. 4-9. “

We are drowning our world in untested and unsafe chemicals and the price we are paying in terms of our reproductive health is of serious concern,” said Gian Carlo Di Renzo, MD, PhD, Honorary Secretary of FIGO and lead author of the FIGO opinion. According to Di Renzo, reproductive health professionals “witness first-hand the increasing numbers of health problems facing their patients, and preventing exposure to toxic chemicals can reduce this burden on women, children, and families around the world.”

Miscarriage and still birth, impaired fetal growth, congenital malformations, impaired or reduced neurodevelopment and cognitive function, and an increase in cancer, attention problems, ADHD behaviors, and hyperactivity are among the list of poor health outcomes linked to chemicals such as pesticides, air pollutants, plastics, solvents,1 and more, according to the FIGO opinion, written by a team of ob-gyns and scientists from the major global, US, UK, and Canadian health professional societies and the University of California, San Francisco.

“What FIGO is saying is that physicians need to do more than simply advise patients about the health risks of chemical exposure,” said Jeanne A. Conry, MD, PhD, a co-author of the FIGO opinion and pastpresident of the American College of Obstetricians and Gynecologists which issued an opinion on chemicals and reproductive health in 2013. “We need to advocate for policies that will protect our patients and communities from the dangers of involuntary exposure to toxic chemicals.” 

Chemical manufacturing is expected to grow fastest in developing countries in the next five years, according to FIGO. In the U.S. alone, more than 30,000 pounds of chemicals per person are manufactured or imported and yet the vast majority of these chemicals have not been tested. Chemicals travel the globe via international trade agreements such as the Transatlantic Trade and Investment Partnership, which is being negotiated between the European Union and the United States. Environmental and health groups have criticized the proposed agreement for weakening controls and regulations designed to protect communities from toxic chemicals. “Exposure to chemicals in the air, food and water supplies disproportionately affect poor people,” said Linda Giudice, MD, PhD, MSc, a FIGO opinion co-author, Past President of the American Society for Reproductive Medicine (ASRM), and chair of the UCSF’s Department of Obstetrics, Gynecology, and Reproductive Sciences. “In developing countries, lower respiratory infections are more than twice as likely to be caused by chemical exposures than in developed countries.”

Exposure to toxic environmental chemicals is linked to millions of deaths and costs billions of dollars every year, according to the FIGO opinion, which cites the following examples:

• Seven million people die each year because of exposure to indoor and outdoor air pollution;

• Pesticide poisonings of farmworkers in sub-Saharan Africa is estimated to cost $66 billion between 2005-2020;

• Health care and other costs from exposure to endocrine disrupting chemicals in Europe are estimated to be at a minimum of 157 billion Euros a year; and,

• The cost of childhood diseases related to environmental toxins and pollutants in air, food, water, soil and in homes and neighborhoods was calculated to be $76.6 billion in 2008 in the United States.

“Given accumulating evidence of adverse health impacts related to toxic chemicals, including the potential for inter-generational harm, FIGO has wisely proposed a series of recommendations that health professionals can do to reduce the burden of unsafe chemicals on patients and communities,” said FIGO President Professor Sir Sabaratnam Arulkumaran, who is also past president of the British Medical Association. FIGO proposes physicians, midwives, and other reproductive health professionals advocate for policies to prevent exposure to toxic environmental chemicals; work to ensure a healthy food system for all; make environmental health part of health care; and, champion environmental justice. The FIGO opinion was authored by an international group of physicians and scientists from the American College of Obstetricians and Gynecologists, American Society for Reproductive Medicine, International Federation of Gynecology and Obstetrics, Royal College of Obstetricians and Gynaecologists, Society of Obstetricians and Gynaecologists of Canada, UCSF’s Program on Reproductive Health and the Environment, and the World Health Organization. These and numerous other reproductive health organizations have either endorsed or formally supported FIGO’s opinion.

The FIGO opinion has also been applauded by health and advocacy groups including the Health and Environment Alliance (HEAL), Women in Europe for a Common Future (WECF), Healthcare Without Harm, and Physicians for Social Responsibility.

The International Federation of Gynecology and Obstetrics (FIGO) is a non-profit organization that brings together obstetrical and gynecological associations from 125 countries/territories worldwide. It is dedicated to the improvement of women’s health and rights and to the reduction of disparities in healthcare available to women and newborns, as well as to advancing the science and practice of obstetrics and gynecology. Based in London, the organization hosts a triennial World Congress that draws more than 7,000 women’s health scientists, clinicians, and other allied health professionals to present the latest science and best clinical practice in obstetrics and gynecology. This year’s XXI World Congress will be held in Vancouver.”

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

Posted 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

The 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 release shortly 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.

Judicial Messaging: Delaware’s Chief Justice Speaks to a Conference of Directors

Posted in Asbestos, Litigation Industry, Policy Issues, Transparency

Today, a fact of life is that judges are invited to and do speak at conferences that gather persons interested in a topic. Sometimes the judges show up with a message. Thus, this week’s Perrin conference on asbestos litigation included a panel composed of “asbestos judges” from some of the key venues for asbestos litigation. Some plainly had messages they sought to deliver, and the messages were in fact delivered (e.g. you lawyers need to work out more discovery issues). Other judges were relatively more passive, and mainly answered questions. Meanwhile, Delaware Chief Justice Leo Strine was speaking to a conference of corporate directors, as described in a September 30, 2015 article. Judging by the article, he plainly had messages to deliver.

For some years now, I’ve been one of the many people wondering if the presence of judges at conferences is “good,” “bad” or otherwise. The overall answer is still not plain to me, and perhaps there is no one answer. But it is plain the situation is now firmly a part of the litigation process, and it needs to be considered and managed by litigants and their lawyers.

2013 and 2014 Asbestos Case Filing Data from ALRA

Posted in Asbestos, Cancer, Litigation Industry

People always seem to be seeking data on the volume and location of asbestos litigation.  A June 2015 paper provides summary information on asbestos cases filings in various states in 2013 and 2014. The paper is online at no cost. As the authors explain:  “The ALRA Group is pleased to announce the publication of its White Paper, “Asbestos Claims and Litigation: Update and Review: 2013 and 2014 New Case Filing Summary and Analysis.” This paper is a continuation of the annual proprietary analysis performed by the ALRA Group of the new asbestos cases filed in 2013 and 2014 in significant jurisdictions involved in the asbestos litigation. It follows similar papers beginning in 2005.”

Who is ALRA? The “about” section of the web site explains:

“The Asbestos Liability Risk Analysis (ALRA) Group serves clients who require timely and accurate information and analysis of the risks posed by asbestos-related liabilities and the asbestos litigation. The ALRA Group provides counsel to companies, financial institutions, insurers and others making decisions involving the rapidly-evolving landscape of asbestos liability.

Prior to forming the ALRA Group, its members operated as the Asbestos Trust Fund Services (ATFS) Group. ATFS was organized to provide counsel and guidance in the interpretation and implementation of the asbestos bodily injury claims process under the national Fairness in Asbestos Injury Resolution, “FAIR” Act. This Act proposed a radically different and new process for the resolution of asbestos-related bodily injury claims in the United States. Under the provisions of the Act, payment of such claims would now be paid exclusively by a mandatory trust fund privately funded by former Defendants in asbestos litigation, together with their domestic and foreign insurance companies.

While some believe that the 2006 shift to Democratic Congressional control and the further shifts resulting from the 2008 and 2010 national elections spelled the end to the FAIR Act, caution is in order. Current Senate Judiciary Committee Chairman, Senator Patrick Leahy (D.-Vt.), was a strong ally to Senator Spector (R-Pa.) on the bill as its co-sponsor, as were other prominent Senators who remain on the Judiciary Committee. The ALRA Group continues to closely monitor the situation.

After activity surrounding the FAIR Act subsided, members of the ALRA Group have found their counsel in demand by former FAIR Act constituencies and others in the business, insurance and financial communities, for assistance in providing information about and providing projections as to future asbestos liability and risk.

As a result, the ALRA Group shifted its focus to providing these services. In recognition of this shift in its role, the ATFS Group changed to its new name, Asbestos Liability Risk Analysis (ALRA) Group.”

Motley Rice and a Focus on Lung Cancer

Posted in Asbestos, Cancer

At a Perrin asbestos litigation conference a couple of years back, Joe Rice commented on the continuing increases in the filing of  lung cancer cases said to be related to asbestos intake. The continuing focus on lung cancer (not mesothelioma) is illustrated by a September 17, 2015 post by Anne McGinness Kearse at the Motley Rice blog. Among other things, the post points out the following:

“Asbestos’ Role in Lung Cancer is Often Overlooked

There are three main diseases caused by exposure to asbestos: mesothelioma, asbestosis and lung cancer. While mesothelioma and asbestosis are almost always linked with exposure to asbestos, lung cancer victims often don’t realize the impact asbestos may have had on their disease. Smoking has rightly been attributed as the leading cause of lung cancer in the United States, but the combination of smoking with exposure to asbestos leads to an even greater danger. A 2012 study by McCormack, published in the British Journal of Cancer, claims that there are “3.2 to 4 lung cancer deaths in the U.S. for every mesothelioma death among individuals exposed to asbestos.” These statistics show that lung cancer is an even greater threat than mesothelioma or asbestosis to people who have been exposed to asbestos. This is despite the fact that lung cancer related to asbestos exposure often goes unreported.”

VW’s Global Software Fiasco Illustrates Global Scale Problems and Inadvertently Support Justice Breyer’s New Book: The Court and the World

Posted in Comparative Law, Litigation Industry, Mass Tort Issues, Policy Issues

Software and data operate in binary code that changes very little, if at all, for borders (excluding homeland security issues for some software). Therefore, global problems are generated by defects in data or software. VW is the current poster child for this reality as it now has acknowledged global issues involving some 11 million cars, and billions in new reserves. VW’s share price also is down some 30-40%.

Consider the possibilities ahead for this and other, future global scale failures in software and/or data. And in thinking about data, keep in mind the massive amounts of data associated with drugs, diagnostics. As for software, keep in mind the amounts of software and information now imbedded in other manufactured goods; think especially about future self-driving cars from Google, Apple, Tesla or others.  Think also about the ever-growing volume of communications between devices via the Internet of things.

Shareholder lawsuits could be filed in many nations. Recalls may be ordered by regulators in many nations. D&O claims could be made around the world. Directors and officers of affiliate entities may disclaim any knowledge of actions that perhaps took place only at world headquarters, and may seek indemnities or other remedies. Criminal sanctions also may be proper. Suppose one country wants to jail the guilty for life (VW’s CEO  has said “grave errors” were made by a few); what happens to civil cases around the world if the guilty cannot be called to testify at trial because they are in jail outside the US?

In a fine irony, VW’s woes arise at the same time Justice Breyer is promoting his new book: The Court and the World. VW’s woes prove his point; the US is not an island and the Justices of SCOTUS must be cognizant of and willing to seriously consider and respect legal rules enunciated by other nations.

Delaware and More Change in the Civil Litigation Industry; “Intergalactic Releases” and Disclosure Only Deals

Posted in Litigation Industry, Policy Issues

Some naive lawyers (e.g. me) long ago thought civil litigation was about truth, justice and the American way. Not so; the University of Chicago law and economics focus plainly is correct; civil litigation is about money. Therefore, it’s not a surprise that Delaware Chancery judges now issue opinions with warnings about their thoughts on future lawsuits. Alison Frankel covers the latest set of Chancery Court warnings and opinions  in a September 18, 2015 blog post.  As is detailed in her post, the Chancery Court comments and warnings are so blunt they almost feel like public company guidance on future earnings. Ms. Frankel wraps up with the paragraphs below; note the overt focus of all commenters on economic drivers for corporate litigation. Civil litigation is indeed all about money and predictability, in many ways.

“If Delaware won’t approve settlements with these “intergalactic” releases, might corporations prefer litigating in a forum where they can still buy cheap deal insurance? Corporationsfought hard to tame multijurisdictional M&A shareholder litigation through forum selection clauses in charters and bylaws. Most of those provisions, at least for Delaware corporations that have adopted them, require shareholders to litigate in Delaware. It’s up to defendants to enforce the provisions, though, so if corporations decide they can’t get what they want from Chancery Court, they could presumably choose not to move to dismiss shareholder M&A suits in other jurisdictions where they can obtain broad releases in exchange for just disclosures and fees for plaintiffs’ lawyers.

I ran that hypothesis past a couple of very wise corporate defense lawyers. They were of the mind that Chancery Court judges are aware of that possibility – and are going to give defendants a reason to continue funneling cases to Delaware. Chancery Court can do that by becoming more aggressive about dismissing unfounded M&A class actions early and being stingier about expediting dubious cases.

Delaware judges have been saying since the M&A litigation boom began that they will reward plaintiffs’ lawyers who bring strong cases, as we saw most recently in Laster’s $148.2 million judgment against Dole’s CEO and former general counsel. But if they want defendants to keep exercising forum selection clauses, they have to be willing to discourage shareholder firms from pursuing dubious cases. In the long run, plaintiffs’ lawyers won’t sink money into litigation that doesn’t pay.”


GM’s Long Journey With a Defect; What Would the Overall Numbers Say?

Posted in Litigation Industry, Mass Tort Issues, Science

GM’s long journey continues. This week it obtained arguably favorable outcomes with settlements with the government, shareholders and some others. But, many ignition switch claims remain open, as highlighted by a September 17, 2015 article in Carrier Management.

It would be interesting to see someone compute the total expense to GM from the ignition switch situation. It would be even more interesting to see that set of numbers compared to whatever set of numbers someone might offer as offsetting “gains or savings” achieved by not timely and forthrightly addressing the problem.