GlobalTort

GlobalTort

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

Cardno Chem Risk Writes on Talc and Anthophyllite

Posted in Asbestos, Cancer, Talc Litigation

It appears Cardno ChemRisk may have been engaged to work for a talc defendant. Or maybe the company just sees a booming litigation topic ahead. Either way, pasted below is the link to and abstract for a new article by three of Cardno’s scientists, and a University of Michigan epidemiologist who is not David Garabrant. She is Rebecca Hazan, who this spring obtained a Masters in Public Health from the University of Michigan, previously interned for Cardno, and also consults for biotech, according to her LinkedIn profile.

J Appl Toxicol. 2016 Jul 11. doi: 10.1002/jat.3356. [Epub ahead of print]

Anthophyllite asbestos: state of the science review.

Gaffney SH1, Grespin M2, Garnick L1, Drechsel DA2, Hazan R3, Paustenbach DJ4, Simmons BD1.

Author information

  • 1Cardno ChemRisk, San Francisco, CA, 94105, USA.
  • 2Cardno ChemRisk, Boulder, CO, 80301, USA.
  • 3Department of Epidemiology, University of Michigan, School of Public Health, Ann Arbor, MI, 48109, USA.
  • 4Cardno ChemRisk, Jackson, WY, 83002, USA.

“Abstract

Anthophyllite is an amphibole form of asbestos historically used in only a limited number of products. No published resource currently exists that offers a complete overview of anthophyllite toxicity or of its effects on exposed human populations. We performed a review focusing on how anthophyllite toxicity was understood over time by conducting a comprehensive search of publicly available documents that discussed the use, mining, properties, toxicity, exposure and potential health effects of anthophyllite. Over 200 documents were identified; 114 contained relevant and useful information which we present chronologically in this assessment. Our analysis confirms that anthophyllite toxicity has not been well studied compared to other asbestos types. We found that toxicology studies in animals from the 1970s onward have indicated that, at sufficient doses, anthophyllite can cause asbestosis, lung cancer and mesothelioma. Studies of Finnish anthophyllite miners, conducted in the 1970s, found an increased incidence of asbestosis and lung cancer, but not mesothelioma. Not until the mid-1990s was an epidemiological link with mesothelioma in humans observed. Its presence in talc has been of recent significance in relation to potentialasbestos exposure through the use of talc-containing products. Characterizing the health risks of anthophyllite is difficult, and distinguishing between its asbestiform and non-asbestiform mineral form is essential from both a toxicological and regulatory perspective. Anthophyllite toxicity has generally been assumed to be similar to other amphiboles from a regulatory standpoint, but some notable exceptions exist. In order to reach a more clear understanding of anthophyllite toxicity, significant additional study is needed. Copyright © 2016 John Wiley & Sons, Ltd.”

 

Perrin Webinar – Wednesday July 20 – Insurance Coverage for Talc Claims

Posted in Asbestos, Litigation Industry, Talc Litigation

The burgeoning roster of talc and ovarian cancer claims continues to grow. And now there are at least two uterine cancer claims. The underlying cases raise related insurance coverage issues. The coverage issues in turn raise questions about the science relevant to how injury is defined and how insurance triggers are defined.

There are both old and new aspects to the science. New issues because scientists today know vastly more about cancer than they did when asbestos coverage cases were being litigated back in the 1970s up through the Keasbey trial in the mid-200s. Heck, some of the front line cancer researchers today know much more than they did last year.

Another obvious variable is the cancers at issue. Ovarian cancer is different than mesothelioma in both quantity (22,000+ per year in the US) and links to genetic mutations and other factors.  Moreover, IARC and others are of the view that “asbestos” causes ovarian cancer. But is it really “asbestos” that some people find in talc, and has anyone tested that material for its ability to cause cancer of any kind?

These and other topics  will be covered in a Perrin Conference webinar on Wednesday July 20, 2016. You can register here. Yours truly will address some of the many sciences issues related to talc claims. And, insurance coverage veterans will address coverage law and theory.  It should be interesting.

The program overview is pasted below.

“TALC – INSURANCE COVERAGE IMPLICATIONS

Wednesday, July 20th, 2016
2:00 – 3:30 PM EST

Speakers:

Kirk T. Hartley, LSP Group LLC, Chicago, IL
Stephen Hoke, Esq., Hoke LLC, Chicago, IL
Wayne S. Karbal, Esq., Karbal, Cohen, Economou, Silk & Dunne, LLC, Chicago, IL
Alan M. Posner, Esq., Karbal, Cohen, Economou, Silk & Dunne, LLC, Chicago, IL

Outline:

Underlying Litigation – Current Status and Future
Differences and Similarities With Asbestos Coverage Issues
Trigger of Coverage / Allocation
Fortuity, Exclusions and Punitive Damages
Impact of SIR’s, Deductibles, Claims-Made and Fronting
Registration:

Cost is $129 per registration. This includes unlimited listeners from one phone line. Each registration includes one CLE application for one state.
Additional CLE applications are $25 per state.
Additional phone lines are $29 each.

CLE Credit: 1.5-2.0 CLE credits, depending on state requirements.

Applications are being made to all CLE states as requested by attendees. Please contact Kelsey Minerd with questions regarding CLE: kminerd@perrinconferences.com

For more information about registration, contact Bethany Corio at bcorio@perrinconferences.com”

The Ubiquity of Cancer: Another British Open Ends with a Prominent Connection to Cancer

Posted in Cancer, Litigation Industry, Science

The ubiquity of cancer is stunning, as illustrated at yet another British Open. The British Open of 2016 brought a truly great and record setting golf competition between Phil Mickelson and the winner, Henrik Stenson.  Golf tlak, one would think, would have crowded out everything else. But, in reality, Mr. Stenson ended his brief acceptance comments by dedicating the win to a long-time friend who just died of cancer, Mike Gerbich. And, runner up Phil Mickelson knows cancer too well through his wife, as previously pointed on this blog when the 2011 British Open came down to a battle between two men with wives stricken by cancer at young ages.

The point? Jurors, judges, and lawyers are surrounded by cancer. Decision-makers need to keep that in mind when considering product liability risks, product design and testing, insurance purchases, risk management and trial decisions. Scientists are racing to figure out the many diseases we call cancer, with the White House devoting major effort to pushing science forward. In my view, there will be significant long term benefits to companies that invest effort and money to understanding cancer, and doing the best they can to limit the impacts and spread of The Emperor of All Maladies.

 

Commentary on Mesotheliomas Around the World: “A Global View of Mesotheliomas and Asbestos Litigation: Both Are Many Years Away From Peaking When Looking Outside the US”

Posted in Asbestos, International Asbestos

The global toll of mesothelioma is daunting, and has been detailed by Julian Peto, PhD, in a range of articles and presentations. The article and presentations by Peto are wonderful, but complex to the point some find them hard to use. Therefore, back in 2012, Jessica Horewitz and I worked together to write an article presenting the gist of the data in format suited to a wider audience. See Jessica B. Horewitz and Kirk T. Hartley, A Global View of Mesotheliomas and Asbestos Litigation: Both Are Many Years Away From Peaking When Looking Outside the US, 9 Mealey’s International Asbestos Liability Report, #12 (February 2012). The article is online at Scribd.  The full text of the article also is online at Mondaq. The full text also is pasted below.

A Global View Of Mesotheliomas And Asbestos Litigation: Both Are Many Years Away From Peaking When Looking Outside The US

[Editor’s Note: Jessica B. Horewitz and Kirk T. Hartley are Directors with Gnarus Advisors LLC with offices in Arlington, Alexandra, Boston, Chicago, Los Angeles and Palo Alto. Dr. Horewitz holds a PhD in Economics from the University of Virginia, and is frequently involved in liability estimation, claims analysis, claim projections, and cash flow analysis in asbestos and other mass tort matters. As a trial lawyer and consultant, Mr. Hartley’s almost 30 years of experience have been concentrated on mass torts and other intersections between law and science. Commentary and opinions are personal to the authors, and do not reflect the opinions of Gnarus Advisors LLC, LSP Group LLC, or any of their clients. Copyright # 2012 by Jessica B. Horewitz and Kirk T. Hartley. Responses are welcome.]

Asbestos-caused disease – and resulting personal injury litigation – are sometimes viewed as uniquely American phenomena. But in fact asbestos-caused disease is growing around the world, resulting in several nations enacting asbestos compensation funds, and various nations experiencing increasing amounts of litigation seeking compensation for asbestos-caused injuries. The rising incidence of asbestos-related disease arises from historic patterns of use of the naturally-occurring mineral fiber. And, over the recent decades, asbestos use expanded in Asia, Africa, Russia1 and South America,2 thus setting in motion events predicted to cause future disease. The global spread of asbestos compensation payments and litigation is in turn a function of increasing disease, the increasingly global nature of tort litigation, and the power of the Internet, as well as alliances between lawyers and NGOS around the world.

I. Examples of Global Claiming

There are widespread examples of global asbestos claiming. Japan has both national asbestos compensation legislation,3 and lawsuits seeking damages for asbestos disease allegedly resulting from work at railroads and other employers.4 Korea also pays asbestos compensation. 5 The UK’s Supreme Court’s recently disappointed insurance companies by approving national legislation in Scotland to allow more asbestos-related litigation.6 Specifically, in Axa General Insurance Ltd. & Ors v. Lord Advocate & Ors [2011] UKSC 46,7 the court approved lawsuits to obtain compensation for pleural plaques, a condition associated with past asbestos inhalation, but which in general does not produce impairment of daily function. Elsewhere in Europe, France8 and Spain9 are experiencing increases in lawsuits seeking compensation for asbestos disease. South American workers exposed to asbestos also are increasingly involved in claiming; some have filed lawsuits in the U.S.,10 and victim’s rights groups continue to emerge and grow in Brazil and other nations.11

II. Mesotheliomas

Historic patterns of asbestos use are the root cause of today’s increasing rates of asbestos-related disease, and mesothelioma tumors are generally considered a signature disease arising from inhalation of asbestos. Mesothelioma is a highly lethal cancer arising in mesothelial cells. Most mesothelioma tumors arise in the lining around the lungs, and are referred to as pleural mesothelioma. Pathology and epidemiology in both humans and animals have tightly tied most of those tumors to past inhalation of asbestos fibers. There appears to be, however, some background rate of mesotheliomas that arise for presently unknown reasons.

Today, mesothelioma tumors increasingly arise in both men and women, and more and more of the mesothelioma tumors arise in the lining encasing organs in the abdomen. These ”peritoneal” mesothelioma tumors are more frequently appearing in women. Some of the women suffering from the tumors plainly did inhale asbestos fibers through their own work or through ”secondary exposures,” such as laundering the clothes of a family member who worked with asbestos fibers. But, in other instances, the women, researchers, and lawyers are able to identify few, if any, circumstances for past asbestos inhalation. Therefore, some lawyers, clinicians and researchers debate the number of peritoneal mesotheliomas actually caused by asbestos or whether the tumors arise from or are related to some other cause.12 In the United States, the vast majority of mesothelioma tumors end up in litigation (perhaps 2,000 per year), and defendants and insurers are paying claims for both pleural and peritoneal mesotheliomas.

III. Growing Frequency of Mesotheliomas Outside the United States

Mainstream thinking is that mesotheliomas have peaked in the U.S.13 In contrast, outside the U.S., the number of mesothelioma tumors is projected to continue increasing well into the 2020s, with some countries experiencing a disease rate almost 5 times greater than the disease rate in the United States. Around the globe, there are growing waves of mesothelioma tumors, and scientists predict the waves will continue to grow until at least 2040, as is detailed infra. The waves are expected to arrive in different nation at different times and with varying intensities. The variables arise from different patterns in terms of the types of asbestos fibers used, and the timing and amount of the use. For example, UK workers are suffering from mesothelioma tumors at a rate almost five times higher than the rate in the U.S., and the volume of tumors is predicted to continue to rise for many years.14 Naturally, questions are asked about why the rate of mesotheliomas is so much higher in the UK than in the U.S.

Some answers to the questionsmay be gleaned fromthe work of Dr. Julian Peto, a London-based epidemiologist with world-class skills,15 honors16 and reputation arising from decades of work on various health issues, with many involving cancers.17 Dr. Peto’s publications identify multiple factors as causing the increasing waves of mesotheliomas, and include a 1999 paper in Nature, titled the European Mesothelioma Epidemic.18 That paper was updated in 2004 by others involved in the 1999 paper.19 A 2009 paper for the HSE provides even later data.20

One factor is widespread use of asbestos-containing products in the UK well into the 1980s. In contrast, U.S. asbestos exposures apparently were reduced significantly in the 1970s due to federal regulations such as OSHA workplace rules and NESHAP regulations to restrict release of asbestos fibers during building demolition and renovation. Ironically, the UK had enacted asbestos limits21 earlier than they were put in place in the U.S., but the regulations were less stringent than in the U.S.,22 and did not cause the markets to more broadly eliminate the use of asbestos-containing products.

IV. Amosite Fiber Use

Among other things, various of Dr. Peto’s papers relate the higher UK’s higher mesothelioma rate to its larger and later use of amosite fibers, a brown-colored asbestos fiber that is part of a class of asbestos fibers known as amphibole fibers. The fibers were mined primarily in South Africa,23 and indeed the word amosite is a loose anagram for asbestos from mines of South Africa. The amosite fibers are generally considered far more carcinogenic than are white (chrysotile) fibers. The amphibole fibers are in general thought to be more potent because of much higher ”biopersistence,” meaning the time the fibers remain inside living creatures before they are removed by bodily defense mechanisms. The amphibole fibers also are needle-like in structure, and contain higher contents of minerals such as iron, which some suspect may play a role in the disruption of cellular signaling systems related to development of cancer.

The variables, however, are still the subject of study. And, arguments about carcinogenicity are complicated by the fact that some white (chrysotile) fibers are mined from ore said to be ”pure” while other chrysotile fibers are said to include some degree of ”contamination” by small amounts of amphibole fibers present in the ore. But, the broader point made by Dr. Peto is that the amphibole fibers unquestionably are more ”toxic,” and there also is plain documentation to prove that relatively large amounts of amosite fibers were in use in theUK until at least 1980, with many of the fibers used in asbestos-cement boards used in building construction. As a result, carpenters and other tradesman in the UK face mesothelioma disease rates far higher than counterparts in other countries. Thus, a 2009 paper by Dr. Peto and others includes the following comment: ”An important factor underlying the very high risk in British construction workers, particularly carpenters, is likely to be the widespread use of power tools on amosite insulation board, which continued with no effective dust control until the 1980s.”24

V. Global Mesothelioma Projections

Dr. Peto has at various times presented calculations setting out curves projecting mesothelioma deaths around the world. The numbers of course are not gospel, and various models can be used to project cancers in general and mesothelioma in particular. But Dr. Peto’s projections draw on years of work, including detailed scientific publications in peer-reviewed journals. During 2008 and 2009, Dr. Peto traveled and presented talks25 and informal PowerPoint presentations for discussion and consideration by other medical professionals. His July 24, 2009 presentation in Boston26 included a PowerPoint presentation with projections based on a model that assumes that after asbestos exposure has largely stopped, the mesothelioma rate in each birth cohort follows the same age-distribution in all countries.27

Dr. Petos’s 2009 presentation at Harvard includes a chart projecting approximately 447,000mesotheliomas in some but not all countries of the world during the period from 2000 – 2049.28 Those significant numbers do not include projections for China, Indonesia, India or Russia, which all are significantly involved in mining of asbestos fibers ormanufacturing of products containing asbestos. Therefore, the aggregate number of mesotheliomas will surely go well past half a million deaths over 50 years, which means an annual average of at least ten thousand mesotheliomas – and probably deaths – unless science can find a way to slow, stop or repair the pathways to cancer. The aggregate regionalized projections are set out in the table below:

IMAGE A

VI. Projected Peak Years

Dr. Peto’s presentation also included curves projecting the years in which regions may see the peak waves of mesotheliomas, the approximate numbers at the peak, and curves projecting the annual rate at whichmesotheliomas will continue but decline. The curves are simply that, and are not tables of precise numbers. Numbers derived from observation of the curve are set out in the table below, and are for male deaths only based on an assumption of largely no asbestos exposure for men born after either 1970 or after 1960. The curves are not identical, and so the numbers below are approximate interpretations from viewing the tables.

IMAGE B

Numbers of the sort above are only projections, and other scientists derive other numbers using different modeling assumptions. But the numbers are all significant, and are drawing increasing attention fromgovernments, insurers, victims, persons at risk, corporate risk managers, corporations facing evolving accounting rules regarding disclosures of contingent risks, and lawyers and businesspersons in all phases of the modern, global litigation industry.

VII. Asbestos Use and Asbestos Bans

In view of the number of the sort above, an NGO (International Ban Asbestos Secretariat – IBAS) has for more than a decade worked for and achieved asbestos use bans in many countries.29 Nonetheless, asbestos use also is continuing and expanding in some countries. Thus, asbestos use is growing in China, India, Indonesia and other developing countries, especially through asbestos-cement building products.30 Due to increased demand for asbestos fibers, investors are trying to reopen old chrysotile fiber mines in Canada31 and Africa,32 and existing mines continue operations in places such as Asbest, a mining town in the Russian Ural Mountains. The Uralasbest mine annually generates a half million metric tons of fiber from its 1,000 foot deepmine that is about half the size ofManhattan – its length is 11 km (7 miles) and its width is 2.5 km 5 miles).33

The arguments on asbestos use are difficult. At least in theory, the products can be safely manufactured in well-run facilities, and users would always exercise caution when installing the products or remodeling a building containing asbestos-cement board. But theory is not always reality, and the world literature includes numerous examples of ongoing, horrific conditions in manufacture and use.34 Therefore, mistaken judgments may well produce many deaths and significant suffering.

VIII. Growth in Asbestos Claiming Outside the US

The growing disease rates are accompanied by increasing claiming arising in a variety of ways and in part driven by global linkages through the Internet and alliances between firms. In civil law countries such as France and Italy, more claiming is occurring, including former employees pursuing claims against former employers. In Italy, two former Eternit officers recently were found guilty of criminal charges involving dangerous working conditions, and were held liable for civil claims involving hundreds of former employees of Eternit plants involved in manufacturing asbestoscement products.35 In the Eternit proceedings, damages for civil claimants were set at ?30,000 for all deceased victims and ?35,000 for current claimants. The Eternit decision also included an award of damages to an Italian government agency (INAIL) which had asserted cost recovery claims related to amounts paid out for pensions and medical payments.

NGOs and law firms also are driving increasing claiming. One U.S. plaintiff’s firm sponsors the World Asbestos report, a website devoted to asbestos use and claiming around the world.36 Meanwhile, IBAS also has organized ”victim’s rights” groups around the world.37 Meanwhile, international disease claims can flow into some but not all asbestos trusts created during bankruptcy proceedings in the U.S. and the UK,38 as well as into private trusts created to resolve claims from African asbestos miners.39 Accordingly, there are asbestos-focused plaintiff’s firms around the globe, including Australia’s Slater & Gordon,40 and the UK’s Leigh Day and Co.41 Other firms mention Spanish language skills42 or sponsor Spanish language websites which promote asbestos-claiming.43

Meanwhile, prominent U.S. plaintiff’s firms increasingly promote their global alliances of lawyers. Thus, South Carolina based Motley Rice uses its website to describe a ”global network of lawyers” able to represent clients ”anywhere in the United States and several countries around the world.”44 On the west coast, the home page of the website for the Kazan McClain firm refers to having represented clients ”across the United States, and in Canada,Mexico and the United Kingdom.”45

A recent merger between an Australian law firm and a UK law firm further highlights the increasing globalization of personal injury litigation. On January 30, 2012, Australia’s Slater and Gordon announced its GBP 53.8 million acquisition of Russell Jones & Walker, a UK law firm.46 Both firms were built around personal injury claims, including asbestos claims. RJ & W also owns a brand known as Claims Direct – a process for attracting and managing litigation for individuals, and the third most recognized legal brand in personal injury litigation in the UK.47 Asbestos claiming no doubt will be part of future growth of the combined firms.

IX. Conclusion

With asbestos use and disease increasing around the world, the asbestos litigation industry inevitably will continue to expand. Like multinational manufacturers, plaintiff’s firms are entrepreneurially looking around the world for ways to grow their business. The claiming may not all take place through litigation – some governments and private companies have created compensation funds as alternatives to litigation. Overall, however, it appears inevitable that both mesotheliomas and litigation will continue to increase for many years.

Footnotes

1. http://www.publicintegrity.org/investigations/asbes tos/consumption/

2. http://www.globaltort.com/2011/08/asbestosmining- and-production-of-chrysotilecontainingproducts- is-going-full-bore-in-brazil-/

3. http://ibasecretariat.org/lka-support-japan-asbestosvictims- 2011.php((last visited February 10, 2012).

4. http://ibasecretariat.org/lka_leg_vict_railway_ wrkrs_japan.php

5. http://www.jniosh.go.jp/en/indu_hel/pdf/IH_47_ 2_113.pdf (last visited February 10, 2012).

6. http://www.scotland.gov.uk/News/Releases/2011/ 10/12104558

7. http://www.supremecourt.gov.uk/docs/UKSC_ 2011_0108_Judgment.pdf

8. http://www.lexology.com/library/detail.aspx?g= 61671856-e9ef-485a-b2f5-e6d485c8969d

9. http://www.globaltort.com/2010/07/spanish-trialcourt- enters-judgment-for-plaintiffs-in-a-lawsuitregarding- neighborhood-exposure-to-asbestos-froma- factory/

10. http://www.martindale.com/environmental-law/ article_Edwards-Angell-Palmer-Dodge-LLP_106 2278.htm

11. http://www.publicintegrity.org/investigations/asbes tos/articles/entry/2186/

12. http://www.hse.gov.uk/research/rrpdf/rr696.pdf

13. http://www.cdc.gov/mmwr/preview/mmwrhtml/ mm5815a3.htm

14. http://www.hse.gov.uk/research/rrpdf/rr696.pdf

15. http://www.medicine.manchester.ac.uk/oeh/abou tus/events/lane/petohondoctoralcitation.pdf

16. http://www.icr.ac.uk/press/press_archive/press_ releases_2010/15143.shtml (press release on IARC’s 2010 Medal of Honour for Dr. Peto)

17. http://www.ph.ucla.edu/epi/faculty/zhang/Webpa ges/zhang/session-1-3-peto-j.pdf

18. http://www.nature.com/bjc/journal/v79/n3/abs/ 6690105a.html

19. http://www.nature.com/bjc/journal/v90/n5/full/ 6601638a.html

20. http://www.hse.gov.uk/research/rrpdf/rr696.pdf

21. http://www.parliament.uk/documents/commons/ lib/research/rp99/rp99-081.pdf (at 25)

22. http://www.ncbi.nlm.nih.gov/pubmed/9689805

23. http://hesa.etui-rehs.org/uk/newsevents/files/Asbes tosminingSA.pdf

24. http://www.hse.gov.uk/research/rrpdf/rr696.pdf

25. http://archive.uninews.unimelb.edu.au/view-56 023.html (web site announcement of talk, and highlights)

26. http://www.brighamandwomens.org/Departments_ and_Services/surgery/services/ thoracicsurgery/servi ces/mesothelioma/International_Mesothelioma_ Program_Seminars.aspx?sub=3

27. The presentation was at one time online at the source cited in the preceding footnote. A copy is on file with the authors of this paper.

28. Id.

29 http://ibasecretariat.org/

30. http://www.publicintegrity.org/investigations/asbes tos/consumption/

31. http://www.globaltort.com/2011/10/the-cana dian-asbestos-mining-saga-goes-on-a-letter-fromthe- would-be-ownerinvestor-what-laws-shouldapply/

32. http://www.globaltort.com/2011/10/asbestosmine- in-zimbabwe-also-is-viewed-as-a-source-forjobs/

33. http://www.publicintegrity.org/investigations/asbes tos/articles/entry/2187/

34. http://www.publicintegrity.org/investigations/ asbestos/

35. See http://asbestosinthedock.ning.com (website devoted to Eternit trial).

36. http://worldasbestosreport.org/

37. http://ibasecretariat.org/ (see sidebar – support groups)

38. http://www.bwasbestostrust.com/news_details.asp? nid=83 (see approved site lists)

39. http://www.asbestostrust.co.za/index.htm

40. http://www.slatergordon.com.au/

41. http://www.leighday.co.uk

42. http://www.floridamesotheliomahelp.com/

43. http://www.mesoteliomaespanol.com/

44. http://www.motleyrice.com/co-counsel-resources

45. http://www.kazanlaw.com/

46. http://www.abajournal.com/news/article/austra lias_slater_gordon_snaps_up_uk_personal_injury_ firm_russell_jones_wal/

47. http://www.claimsdirect.co.uk/injury-claims

Average Mesothelioma Financial Recoveries? “Looking Further Behind The Curtain: Examples of Mesothelioma Claim Stories Derived from a Limited Dataset from the Garlock Chapter 11 Case, and Some Resulting Questions”

Posted in Asbestos, Asbestos Bankruptcy, Cancer

One hears plenty of assertions about “average” or “typical” recoveries in mesothelioma cases, but one always has to wonder about the validity of the numbers. Some of the assertions are based on a dataset of 845 mesothelioma cases; the set was created from discovery in the Garlock chapter 11 case.   For various reasons, I reviewed the dataset and ultimately wrote a commentary article about the dataset and questions raised by the data. It is:  Kirk T. Hartley, Looking Further Behind The Curtain: Examples of Mesothelioma Claim Stories Derived from a Limited Dataset from the Garlock Chapter 11 Case, and Some Resulting Questions, 30 Mealey’s Litigation Report: Asbestos: #22 (Dec. 16, 2015). On occasion, the article is freely available from Lexis in digital format.  The article always is online at Scribd in its published format. The full text of the article also is pasted below.

Looking Further Behind The Curtain: Examples of Mesothelioma Claim Stories Derived from a Limited Dataset from the Garlock Chapter 11 Case, and Some Resulting Questions

Mealey’s (December 11, 2015, 5:56 PM ET) — By Kirk T. Hartley
[Editor’s Note: Kirk T. Hartley is a lawyer (LSP Group LLC), and has represented various different defendants in asbestos litigation at times dating back to 1984. Mr. Hartley also has been involved in multiple commercial lawsuits related to underlying asbestos litigation. Mr. Hartley is a Director of a national consulting firm (Gnarus Advisors LLC) that provides consulting services related to underlying asbestos litigation. Mr. Hartley is an unpaid director for a not-for-profit entity (Triage Cancer) that provides information to persons facing cancer. Mr. Hartley also provides unpaid advocacy for persons with cancer facing situations in which insurance companies have denied payments for or access to treatments for cancer, and for efforts by groups seeking to obtain better outcomes for persons facing cancer. Additional specifics are available at the “about” section of Mr. Hartley’s blog (www.GlobalTort.com), or by e-mail request to the author at khartley@lspgrp.com. Any commentary or opinions do not reflect the opinions of LSP, Gnarus, or LexisNexis, Mealey’s. Copyright © 2015 by Kirk T. Hartley. Responses are welcome.] Short Stories and QuestionsSometimes we learn more through a few short stories than from analyzing massive quantities of data. And, asking good questions about stories also is important for distinguishing between fact and fiction. This commentary seeks to use both concepts to foster more critical thinking about the variability of mesothelioma recoveries in the tort system and the trust system. The stories below show that some particular underlying lawsuits and trust claims produced very different outcomes by some very different paths. And, some of the data may be seen as providing some insights into the wide range of payments for mesothelioma cases.As to the mesothelioma claiming stories, this commentary reports the visible parts of only some of the many short stories that can be derived from a dataset drawn from a spreadsheet from the mesothelioma estimation trial in the Garlock chapter 11 case. The spreadsheet summarizes data from 845 mesothelioma cases. Set out immediately below is one example of a short story drawn from the dataset.  Also pointed out immediately below are examples of some of the many questions that may flow from one or more of the 845 short stories.Galiher Derobertis & Ono

The dataset reports 3 mesothelioma cases handled by the Galiher firm.  The firm has the highest tort system recovery shown in the dataset, with a reported $12.6 million recovered from 16 tort system payors in the Barney Rio case (claim no. 72915).

On reading the short story above, one wonders: what did Mr. Rio do for work, and when? How old was he when the mesothelioma became known; was he a younger person with large economic losses? Did he serve on a Navy ship?  Did he have several dependents? Was the mesothelioma peritoneal or pleural?  Was there a trial, or an imminent trial date? Which defendants paid, and how much per defendant? Were there later trust system recoveries, and if so, what were the specifics of the trust system recoveries?

Answers to those questions cannot be found in the spreadsheet that provided the source data. Instead, the spreadsheet collects only a very limited amount of information about each claimant. As to demographics, the datasheet provides only the name of the case, two different claim tracking numbers, and the name of a plaintiff firm involved as counsel for the plaintiff.  As to values, the spreadsheet shows the total number of tort system payors, and the total amount paid, and the number of and total amount of trust system recoveries. The spreadsheet – and the source data sheets – do not identify payors, do not provide any work history, and do not provide information on the jurisdiction in which suit was filed.

Further Specifics and Background on Garlock Datasheet

The mesothelioma claiming stories are drawn from the spreadsheet titled “Total Recovery Data” for 845 mesothelioma cases drawn from the “PIQ” dataset of mesotheliomas that were explored through discovery and questionnaires in the Garlock chapter 11 case. The dataset set is shown in a publicly available Adobe (.pdf) version of a spreadsheet apparently generated by persons acting for the Debtors. The spreadsheet is part of the data made public after a sealing order was lifted from the Garlock chapter 11 trial proceedings.1 

As explained in the recent Looking Behind the Curtain paper by Abelman, Kelso and Scarcella, the further background is as follows:

“PIQ Data: Approximately 4,000 responses to the mesothelioma Personal Injury Questionnaire (‘‘PIQ’’) submitted by plaintiff law firms representing Garlock claimants, plus more than 30,000 supporting documents including deposition testimony, work histories, named defendants’ information, and trust claim disclosures.

Total Recovery Data: 845 pending mesothelioma claimants subject to the PIQ were asked to provide a Supplemental Settlement Payment Questionnaire, which included information on the total number and amount of trust payments and the total number and amount of payments received from tort defendants or other settling parties.”

After the Garlock trial record was unsealed, the parties went through various processes to compile data and documents from the trial, and make most of them publicly available. Ultimately, Legal Newsline reported on the unsealing developments,2  and then published at least much of the material online at: legalnewsline.com/garlock. On reaching that location, a user can scroll through a list of available materials to find a menu item for “databases.” The spreadsheet is in that section, and in particular is located at:  2013.02.01 Total recoveries data_Redacted_xlsx.pdf.  That “spreadsheet, ” however, actually is not a “live” Excel file, and instead is a .pdf file of a spreadsheet. The pdf image file is difficult to read due to poor printing that does not produce a nice outcome when run through OCR. However, at least much of the data can be figured out and cleaned up, and source data can be checked, with significant effort.3
  
Further Caveats About the Dataset

The stories and numbers herein are provided with the caveat that the dataset plainly is limited and imperfect. The limitations begin with the fact that the dataset represents only a very small subset of all national mesothelioma cases over many years. The data also is now relatively “old.” There also are some obvious data problems or omissions for particular cases; examples are provided below.4

Another limitation is the dataset does not reveal the method used to attribute a particular case to a particular plaintiff law firm.  For example, in any given asbestos case, there in fact may be a “national” plaintiffs counsel and a “local” plaintiffs counsel.  The dataset, however, only shows one plaintiff firm for each case, and does not on its face reveal what if any process was used to investigate whether multiple plaintiff firms were involved in a particular case.

Another limitation is that the dataset provides only a “snapshot” of recoveries as of a moment in time.  The dataset shows some persons received very large amounts of money from many asbestos trusts, but others received very little if any money through the trust system. It is impossible to determine from the dataset whether a lack of trust system recoveries represents the ultimate final outcome of claiming for that person, or whether the data instead simply presents a misleading “snapshot” before trust claiming occurred in any meaningful way for that particular person.  One also cannot see the years in which the trust claims were submitted, and whether the person happened to claim shortly before or after a large reduction in the payment percentage for one or more trusts. The dataset also does not reveal the timing of trust system claiming versus tort system claiming, and/or trial dates.

Examples of Interesting Stories

The short stories set out below are only a few of the 845 cases described in the dataset. The stories are interesting because they suggest the variability of claiming outcomes and claiming patterns for mesothelioma cases. Objectively, the dataset reflects a wide range of outcomes across different cases. In some instances, the tort systems recoveries are exponentially greater than trust system recoveries. For others, the exact opposite is true. And, for all of the claims, it is impossible to know – from the spreadsheet – whether later claims were or were not filed with one or more trusts or whether monies were recovered. Looking at the short stories and dataset as a whole, one can conclude that it is difficult (or perhaps impossible) to identify a truly “typical” or “representative” outcome for trust and tort system claims arising from a mesothelioma.  Moreover, as noted earlier, the entire dataset itself is quite limited and consists of data that is now relatively “old.”

Numbers of Cases Reported for Each Plaintiff Firm

The dataset shows some disparate and surprising numbers in terms of the number of cases reported for a particular plaintiff firm.  For example, the dataset attributes 74 cases to the Simmons Browder firm (a/ka/ Simmons Cooper), a well known plaintiff’s firm that some see as one of the largest mesothelioma case filers in the nation.  On the other hand, the dataset attributes 127 cases to the Lanier Law Firm.  The disparity seems odd in view of the typical understanding of the two firms in terms of the relative number of cases filed each year in the tort system.  One wonders how this outcome occurred; there are multiple plausible explanations, but the datasheet does not provide answers.

Big Picture Observations on Overall Numbers of Trust Claims

The dataset shows 30 as the highest number of trust fund recoveries obtained in a single case.  It is the Joseph Maguire case (claim no. 65986) filed by Brent Coon & Associates.  The 30 recoveries are listed as totaling $662,000.

452 cases are reported to have achieved only from 1 up to 9 trust recoveries.  But of course the dataset does not explain where those 452 cases stand in terms of progress through the tort system and the trust system.

A total of 30 cases are shown as achieving 20 or more trust recoveries.  One might have expected more, or less, such cases, depending on what one assumes about trust system recoveries.

Big Picture Observations on Tort System Recoveries

Two cases tied for the lead in terms of the largest number of reported tort system recoveries, with both cases showing recoveries from 72 payors.  The cases are the John Murphy case (claim no. 70195) filed by Cooney & Conway, and the Richard Cotirell case (claim no. 14295) filed by Zamler Mellen & Shiffman.  The aggregate recoveries are very different.  The dataset shows tort system recoveries of $3.9 million for Mr. Murphy and $244,000 for Mr. Cotirell.

Of all the cases in the dataset, 17 are reported to have resulted in tort system recoveries between $3 million and $4 million. 

The Lanier Law Firm is reported to have recovered $7 million from 4 tort system payors in the Ronald Killibrough case (claim no. 105736). 

20 cases are reported as achieving tort system recoveries that were only between $1,000 and $10,000.  These all appear, however, to be relatively immature cases because they show between 1 and 3 tort system recoveries.  But the dataset cannot demonstrate the truth or falsity of the “immature case” hypothesis.

7 cases are reported as achieving tort system recoveries from between 40 and 49 tort system defendants.  For the 7 cases, the total amounts recovered range from a high of $2.1 million to a low of $203,000.

1 case is reported to have resulted in recoveries of $4.97 million from 26 tort system payors, but $0 trust fund recoveries.  The case is Elodie Granier Rome (claim no. 97246) filed by the Roussel & Clement firm.

Big Picture Observations on Disparate Recoveries Between the Tort and Trust Systems

Some of the cases show significant numbers for trust system recoveries but relatively little from the tort system. For example, Michie Hamleti Lowry Rasmussen & Tweel is listed as counsel for the Ruby Link case (claim no. 90773). The case is reported to have achieved $502,000 of trust system recoveries from 22 trusts, but only $5600 of tort system recoveries from 2 defendants.

Similarly, the Dennis Landis case (claim no. 78306) is a case that reportedly achieved $527,000 in trust system recoveries from 11 trusts, but only 1 tort system recovery for $6,500.

A relatively different result is shown in the Elman Lansdowne case (claim no. 98168) filed by the Shein Law Center.  For that case, the dataset shows $2.5 million of trust system recoveries from 13 trusts, and $244,000 of tort system recoveries from 11 tort system payors.

Another case with a large range between systems is the Rubert Minton case (claim no. 94276) filed by Patten Wornom Hatten & Diamonstein.  The dataset shows $0 trust system recoveries and $2.4 million of tort system recoveries from 18 payors.

There also is an additional story on the Minton case, and one wonders how the datasheet story relates to the larger story, which involved trial and subsequent appeals and a remand.  Specifically, in March, 2011, a jury returned a $25 million verdict for the Mintons, involving Mr. Mintons work on repair operations for ships at Newport News Shipbuilding.  (Bert Minton v. Exxon Mobil Corp., No. CL0901505F-15, Va. Cir., Newport News). Mealey’s reported the jury award consisted of $12 million in compensatory damages, $12.5 million in punitive damages and $430,961 in medical damages, plus interest. As reported by Mealey’s, the case was filed under the Longshore and Harbor Workers’ Compensation Act (LHWC), and claimed exposure while employed as a repair supervisor on 17 commercial Exxon vessels at Newport News Shipbuilding from 1966 to 1977.  During the three-week trial, Exxon argued that under the LHWC, the duty to protect the workers fell to the shipyard and not the ships’ owner, sources said. On post-trial motions, the punitive damages verdict was reduced to $5 million. Then, In January 2013, the Virginia Supreme Court vacated the award and remanded for a new trial. Plaintiff sought certiorari to the Supreme Court of the United States, but did not succeed.  

A search of the cases cited in this article by the editor of the Mealey’s Litigation Report: Asbestos, suggests the Minton case is the lone one to go to trial.

A broad range also is shown in a case that resulted in $105,000 of trust system recoveries from 6 trusts, as contrasted to $3.5 million of tort system recoveries from 19 tort system payors.  The case is shown as filed by Galliher Derobertis & Ono on behalf of Ernest Sakamoto (claim no. 72908).

Another broad range is reported in the Robert Fogarty case (claim no. 112178) filed by Wilentz Goldman & Spitzer.  For that case, the dataset shows 0 trust system recoveries and tort system recoveries of $2.6 million from 20 tort system payors.

Baggett McCall Burgis Watson & Gaughan

One case appears for the Louisiana based Baggett firm, which is the Floyd LeBouef case (claim no. 58735).  The case shows a $950,000 tort system recovery from 1 defendant, and $164,000 recovered in the trust system from 5 trusts.  An obvious question is why one payor paid so much.

Baron & Budd

For Baron & Budd, 37 cases are shown. But there is no monetary recovery data for any of the cases. 

Belluck & Fox

There are 21 case entries for Belluck & Fox, but 7 case entries do not contain any data on monetary recoveries. The highest listed tort system recovery is $2.8 million in the Sidney Goldstein case (claim no. 60530) from 22 tort system defendants.  An additional $317,000 was recovered for Mr. Goldstein from 14 trusts.

At the low end, the Edward Seier case (claim no. 60240) showed a $10,000 tort system recovery from 1 defendant, and no trust system recoveries.  Presumably this matter was relatively “young,’ but one cannot confirm that from the dataset.

Bevan & Associates

Ten cases are shown for the Bevan firm. Two cases are at the high end and show tort system recoveries of $760,000 and $458,000.  The low end of the tort system recovery is listed at $0.  On the trust system side, the low end is $0 and the high end is a $339,000 recovery.

On specific cases, the high end recovery is about $474,000 in the Robert Zgangar case (claim no. 61278), which shows a $328,000 tort system recovery from 15 defendants, and a $146,000 trust system recovery from 6 trusts.   The Charles Gilchrist case (claim no. 61803) shows a tort system recovery of $458,000 from 6 defendants, and a trust system recovery of $94,000.

Interestingly, the Jerome Glueck case (claim no. 61704) shows $105,000 recovered in the trust system from 7 trusts, and only $32,500 recovered in the tort system from 3 defendants. Thus, at least for this case, it may be that trust system recoveries were attempted before a tort suit was filed. Other explanations also are possible.

Brayton Purcell

13 cases were originally attributed to Brayton Purcell, but notes in the dataset suggest the firm only actually represented 11 of the claimants.  One wonders how/why that disparity exists. For the remaining 11 cases, there are some interesting variations.  For example, in the Judith D. Black case (claim no. 63784), the data shows a $3.3 million tort system recovery from 7 defendants, and $27,000 recovered from 2 trusts.

At a lower level, the data shows a $707,000 tort system recovery from 13 payors and a $585,000 trust system recovery from 17 trusts in the Raymond C. Cronin case (claim no. 64156).

Brookman Rosenberg Brown & Sadler

The dataset shows 10 cases by this firm with a wide range of recoveries.  The lowest recovery is for the Hendrik Koek case (claim no. 66679).  For that case, the spreadsheet shows $0 trust recoveries and $90,000 of tort system recoveries from two payors. 

At the high end, the spreadsheet shows a recovery of just over $5 million for Larry Bell (claim no. 66815).  That recovery is comprised of $4.48 million recovered from 19 tort system defendants, and $557,000 recovered from 14 trusts. 

Interesting comparisons can be made between the $5 million recovery for Mr. Bell (immediately above), and the recovery reported in the William Geist case (claim no. 66792). Both cases showed a relatively similar trust system recovery amount of between $400,000 and $557,000. But the cases show a very different tort system recovery for Mr. Geist than for Mr. Bell.  According to the spreadsheet, Mr. Geist was paid $1.99 million by 29 tort system payors.  Thus, Mr. Geist received about $2.48 million less in the tort system than did Mr. Bell (paid over $5 million), despite recoveries for Mr. Geist from 29 defendants instead of only 19 payors to Mr. Bell. It would be interesting to explore in detail the reasons for the differences.

Cooney & Conway

The dataset presents information for 34 Cooney & Conway cases. The largest listed tort system recovery shows $3.9 million from 72 payors in the John Murphy case.  An additional $674,000 was recovered from 20 trusts for Mr. Murphy.

Gori Julian & Associates

The dataset reports on 44 cases for the Gori Julian firm.  For non-zero cases, the highest reported tort system recovery is $2.3 million from 30 tort system payors, and the lowest recovery was $6,500 from 1 tort system defendant.  The latter case could be very “young” within the tort system, but the dataset does not explain the situation.

Harowitz & Tigerman LLP

The dataset reports on 4 cases attributed to the Horowitz & Tigerman firm.  The highest reported tort system recovery was $3.0 million from 34 tort system defendants and the lowest reported tort system recovery was $686,000 from 21 tort system defendants.  The firm’s trust recoveries ranged from a high of $584,000 from 17 trusts to a low of $170,000 from one trust.

Hobson & Bradley

The Hobson & Bradley firm is listed for 3 cases.  According to the data, the recovery in the Charlie Burgess case (claim no. 81252) was $1.8 million from 7 tort system defendants, and $224,000 from 7 trusts.

Kaiser Gornick

The Kaiser Gornick firm is shown as counsel for 17 cases.  The outcomes include a $2 million recovery from 11 tort system defendants, and $376,000 from 13 trusts, in the Michael English case (claim no. 86943).

Karst & Von Oiste

The Karst & Von Oiste firm is in the dataset for 1 case.  The entry shows $4 million recovered from 4 tort system defendants, and $26,000 recovered from 1 trust.

Kazan McClain

One case is reported for the Kazan McClain firm.  It is the Timothy Barker case (claim no. 82334) which is listed as resulting in $1.9 million of tort system recoveries from 10 defendants, and $1.1 million of trust system recoveries from 11 trusts.

Waters & Kraus

The Waters & Kraus firm is shown as counsel for 15 cases in the dataset, but the dataset presents recovery numbers for only 13 of the cases.  Case entries for Waters & Kraus are interesting for some relatively high value tort system recoveries from a relatively small number of payors. Of particular note, the dataset reports the firm obtained a tort system recovery of over $5 million from 7 defendants, and $275,000 from 5 trusts, in the Tammy Thornton case (claim no. 83010)

A Closing Comment

One can hope the short stories above will prompt further discussions about and interest in the variability of outcomes for mesothelioma cases. Plainly there are variations, but public discussions too often are limited to averages. And, discussions about the underlying asbestos litigation numbers also are often inhibited by confidentiality orders, and/or claimed or perceived client concerns about secrecy.

Endnotes
1. See generally,  Ableman, Kelso & Scarcella A Look Behind the Curtain: Public Release of Garlock Bankruptcy Discovery Confirms Widespread Pattern of Evidentiary Abuse Against Crane Co., 15 Mealey’s Asbestos Bankruptcy Report #4 (Nov. 2015).
2. See J. Karmasek, Legal NewsLine, Previously sealed Garlock bankruptcy record now available online (May 2015) (online at http://legalnewsline.com/stories/510550767-previously-sealed-garlock-bankruptcy-record-now-available-online).
3. The online data apparently includes an image file for each of the 845 “Supplemental Settlement Payment Questionnaires” that provided the source data for the datasheet.  Finding the source document is laborious because the source documents are not in alphabetic order. For some claimants, there are documents with image file names suggesting the image files include either revised questionnaire answers, and/or supplemental information provided (apparently) in connection with answering the questionnaire.
4. The dataset in the .pdf image file plainly includes a small number of errors in either the original reporting of and/or later recording of data. For example, for some cases, the dataset shows $XX of trust system recoveries, but the case entry does not list the number of trusts that made a payment. An example is the Roland Shetler case (claim no. 82051), for which the report shows total trust recoveries of $961,000, but does not state the number of trust funds from which the recoveries were achieved.  The .pdf image file also contained a few typos, various slight differences in the names of plaintiff law firms, and other minor flaws or errors of that sort.

The Tide Can Change Rapidly in Mass Tort Cases; In One Month, an Asbestos Defendant Took 2 Verdicts for $28 Million

Posted in Asbestos, Litigation Industry

For one asbestos defendant, two adverse verdicts in one month – in one state – for about $28 million.  The verdicts are described in more detail in a July 12, 2016 article at Legal NewsLine.  The verdicts illustrate how quickly things can happen that could notably effect a defendant’s fortunes  and potentially could erode and exhaust multiple insurance policies.

Mass Tort Bankruptcies Face a New Challenge: Citing Due Process Problems, 2d Circuit Overturns “Free and Clear” Asset Sale Terms for GM Bankruptcy

Posted in Asbestos, Asbestos Bankruptcy, Litigation Industry, Mass Tort Issues

In a major ruling issued yesterday, the 2d Circuit overturned portion of the the “free and clear” asset sale order entered for GM by Judge Gerber. The opinion (online here) is important for multiple reasons, including its ruling and rationale as to providing great protections for companies if they make full disclosure of product defects in the bankruptcy. The court held the contingent claimants were denied due process notice and therefore the opportunity for meaningful participation in the process. In light of the opinion, mass tort bankruptcies now face some new challenges.

I’m biased, but think the 2d Circuit’s opinion and reasoning fit rather well with my 2010 snarky comments on the death of due process during the lower court proceedings in GM. See Due Process Dies Again in Chapter 11 – District Court in GM Case Affirms Orders Cutting Off Pending Product Liability Claims of Victims and Co-Defendants: “The Voyage of the Damned” Continues.

The Newest SEER Data, and Comments, from Gnarus Advisors

Posted in Asbestos

The newest SEER data is explored in a July 12, 2016  post at the Gnarus Advisors blog on enterprise and risk management.  The analysis is by Jorge Sirgo, and he once again provides some of his “look below the surface” insights. There’s even more to the story, of course.

As a disclosure reminder,  Jorge is one of my colleagues at Gnarus Advisors.

Increasing Attention for the Recent “Exponent” Opinion in Southern Illinois Regarding Science and Law Meetings

Posted in Asbestos, Science

Today, science and law are increasingly connected in litigation.  Therefore, there are increasing numbers of intersections between lawyers and scientists, including consultants at places such as Exponent.  In a June 30, 20165 Fifth District opinion issued under Rule 23 , the intermediate appellate court in Illinois ordered unredacted disclosure of  agenda for meetings between persons at Exponent and lawyers for some defendant companies.  A July 12, 2016 story in the Madison County Record provides a terse but useful description of the events and rulings. To my knowledge, there is no word yet on any further appeals or motions.

New Jersey Supreme Court Opens the Door for Non-Spouses to Assert Claims “Take Home Exposures”

Posted in Asbestos, Mass Tort Issues

So far, 2016 has been a tough year for defendants in mass tort claims. The most recent example arises from a New Jersey Supreme Court ruling last week that plainly expanded the possibilities for “take home” claims by persons who are not spouses.  In it, the court confronted certified questions about New Jersey precedent (Olivo) and recent federal court claims arising from a woman diagnosed with beryllium disease after living in an apartment with two males who worked in plants that used beryllium. She later married one of the two, and further exposure allegedly occurred through doing laundry, etc. She also alleged having done laundry for both before marrying one of the two.

The ruling is covered in detail in a July 8, 2016 article in the New Jersey Law Journal. See the article for  more history and detail, but it explained the basics as follows:

The July 6 ruling in Schwartz v. Accuratus came through a request by the U.S. Court of Appeals for the Third Circuit, which asked the court to settle a question of law. The Third Circuit asked the court to rule whether Olivo was limited to spousal relationships only. Justice Jaynee LaVecchia, writing for the court, said the issue could not be completely addressed in a question of law.”

“While there may be situations in which household members are in contact with toxins brought home on clothing, a refined analysis for particularized risk, foreseeability, and fairness requires a case-by-case assessment in toxic-tort settings. Our response to the question asked by the Third Circuit will have to be limited to clarifying that the duty of care encompassed by Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse. …LaVecchia also was the author of the ruling in Olivo.”

 

The article also provided some “local color” in the form of comments from lawyers on both sides of the issues:

“It’s an excellent opinion that expresses our interpretation of Olivo,” said Schwartz’s attorney, Ruben Honik. “It allows us to pursue the circumstances of our own case in the Eastern District of Pennsylvania,” said Honik, of Golomb & Honik in Philadelphia.

“The court did place some restrictions and did not say that Olivo should be fully as extended as the plaintiff sought in this case,” said Accuratus’ attorney, Joseph Harraka Jr. of the Cherry Hill office of Becker LLC. “It’s a fair compromise based on various factors that would be taken into consideration, such as foreseeability and fairness.”

Mr. Harrak’s comments for the defense reflect a fine effort to find some victory in a defeat. Other defense lawyers may want to borrow his analysis when other courts take up these issues.