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

Tobacco Suits Rising

Posted in Asbestos, Cancer, Litigation Industry, Tobacco

More and more suits are aimed at big tobacco. Set out below is a press release on two new suits, with more suits said to be on the way.

Boston Non-profit Takes Cigarette Companies to Court

March 26th, 2015
For Immediate Release
Contact: Mark Gottlieb – 617-373-2026

The Public Health Advocacy Institute (“PHAI”) announced today that its newly formed Center for Public Health Litigation has filed lawsuits against two major tobacco companies and several local distributors on behalf of the families of two former smokers who suffered devastating disease from smoking cigarettes.

“This is the first time a non-profit organization has directly taken on the tobacco industry in court,” said Richard Daynard, University Distinguished Professor at Northeastern University School of Law and the President of PHAI. “Big Tobacco kills more than 50% of the people who buy its products, and it has for years tried to deny its legal responsibility for this public health calamity. The Center for Public Health Litigation is going to ask the Massachusetts courts to hold the tobacco companies accountable in these two cases, and in more cases to be filed soon.”

The two cases were filed yesterday afternoon in the Middlesex Superior Court in Woburn. The first was brought for the family of James E. Flavin, Jr., a former executive of Filene’s and Staples, who died of lung cancer in 2012 after smoking Newport cigarettes for over 40 years. Mr. Flavin had tried repeatedly to quit smoking, using almost every method he could find, including nicotine patches, hypnosis, and numerous other cessation products. The companies named as defendants in Mr. Flavin’s case are Lorillard Tobacco Company, manufacturer of Newport cigarettes, and two local distributors, Garber Bros, Inc. of Stoughton and Albert H. Notini & Sons, Inc. of Lowell.

The second case was brought for Patricia Greene, a Newton realtor, who was diagnosed with lung cancer in 2013, even though she had stopped smoking 25 years earlier. Ms. Greene, like many others, had begun smoking as a result of being given free Marlboro cigarettes in downtown Boston when she was a teenager. The companies named as defendants in Ms. Greene’s case are Philip Morris USA, Inc., manufacturer of Marlboro, and Star Markets Company, Inc. of West Bridgewater, owner of the store where Ms. Greene bought her cigarettes for years.

According to Andrew Rainer, the Director of the Center for Public Health Litigation, “Massachusetts is now the best state in the country in which to bring suit against the manufacturers and sellers of cigarettes, because of a 2013 ruling by the Massachusetts Supreme Judicial Court.” In that 2013 case, Evans v. Lorillard Tobacco Co., the Court ruled that a manufacturer of cigarettes could be held responsible for the death of one of its customers, because it could have manufactured a cigarette that was safer and less addictive, but chose not to. The high Court’s decision also upheld an award of damages to the deceased customer’s family of $35 million plus interest. The case was later settled for $79 million.


“Civil Justice” – A Federal Magsitrate Judge Appoints Counsel for a Destitute Civil Defendant in Ill Health

Posted in Litigation Industry

It’s hidden behind a paywall, but an interesting March 17, 2015 article from the Chicago Daily Law Bulletin (by Patricia Manson) notes the following:  “In a rare move, a federal judge appointed a lawyer to defend an ill and “nearly destitute” man against a lawsuit filed in a business dispute.” According to the judge, the defendant  had not asked for appointment of counsel but was trying to represent himself. Based on the court’s observation, the defendant “is facing a plaintiff, Seaga Manufacturing Inc., that apparently is attempting to “squeeze blood from a stone.” ….“   In its discretion, the court believes the stone should be able to fairly defend itself during that attempt. ”  The case is Seaga Manufacturing Inc. v. Intermatic Manufacturing Ltd., No. 13 C 50041 (N.D. Ill.).


More Intersections Between Professionals from Divergent Fields – “U. of I., Carle moving forward with the first engineering-based college of medicine”

Posted in Cancer, Offtopic, Science

As an alum and a former Champaign-Urbana”townie,” I am delighted to see the University  of Illinois at the front of this new intersection point through a medical school that brings together medical and engineering professionals across multiple disciplines. Bioinformatic engineers, for example,  are a key part of multi-disciplinary teams that are rocking the world these days as part of teams making new discoveries in molecular biology in general and cancer in particular. Indeed, the U of I’s Bluewaters supercomputing system is world-class. Here’s a key quote from the press release pasted in full below:  “This ground-breaking approach will integrate the university’s unparalleled assets in engineering, technology and supercomputing with Carle’s nationally recognized, comprehensive health care system.”

My father was an engineering professor at the U of I, and opened our eyes to all kinds of possibilities as to science. So did a long-time fellow bartender and college friend who pursued a biomedical engineering education and career. Both are no longer in this world, but no doubt would be proud today.


“U. of I., Carle moving forward with the first engineering-based college of medicine

CONTACTS: Robin Kaler, University of Illinois at Urbana-Champaign, 217-333-5010, Jennifer Hendricks Kaufmann, Carle Health System, 217-326-8501, CHAMPAIGN, Ill. —

Partners in a first-of-its-kind medical college on the University of Illinois’s Urbana-Champaign campus are advancing to the next phase of development, having completed a key administrative step today. The University of Illinois Board of Trustees voted unanimously Thursday to establish the nation’s first college of medicine focused, from the beginning, on the intersection of engineering and medicine. This will be the first new college created at Urbana in 60 years. The college will be a partnership between the University of Illinois at UrbanaChampaign and Carle Health System that is specifically designed to train a new kind of doctor. This ground-breaking approach will integrate the university’s unparalleled assets in engineering, technology and supercomputing with Carle’s nationally recognized, comprehensive health care system. More information about the college is available at”

Looking for Causation by Seeking Patterns in Somatic Mutations in Tumors

Posted in Cancer, Causation - Cancer

Researchers continue to seek out “fingerprint” patterns in tumor mutation patterns in order to look back towards causation and source of disease. A recent study in France looked at somatic mutation patterns in lung cancers in never smokers who may have been exposed to “passive” tobacco smoke.   See No impact of passive smoke on the somatic profile of lung cancers in never-smokers, published online before print March 5, 2015, doi:10.1183/09031936.00097314ERJ March 5, 2015 ERJ-00973-201 (2014). 

The abstract states:


EGFR and HER2 mutations and ALK rearrangement are known to be related to lung cancer in never-smokers, while KRAS, BRAF andPIK3CA mutations are typically observed among smokers. There is still debate surrounding whether never-smokers exposed to passive smoke exhibit a “smoker-like” somatic profile compared with unexposed never-smokers.

Passive smoke exposure was assessed in the French BioCAST/IFCT-1002 never-smoker lung cancer cohort and routine molecular profiles analyses were compiled.

Of the 384 patients recruited into BioCAST, 319 were tested for at least one biomarker and provided data relating to passive smoking. Overall, 219 (66%) reported having been exposed to passive smoking. No significant difference was observed between mutation frequency and passive smoke exposure (EGFR mutation: 46% in never exposed versus 41% in ever exposed; KRAS: 7%versus 7%; ALK: 13% versus 11%; HER2: 4% versus 5%; BRAF: 6%versus 5%; PIK3CA: 4% versus 2%). We observed a nonsignificant trend for a negative association between EGFR mutation and cumulative duration of passive smoke exposure. No association was found for other biomarkers.

There is no clear association between passive smoke exposure and somatic profile in lifelong, never-smoker lung cancer.”

Whistleblowing and the Litigation Industry – A Review of Costs and Benefits

Posted in Litigation Industry

What costs and benefits does whistleblowing create for the litigation industry?  Some detailed data and thoughts on the subject are reviewed in a March 9, 2015 post at D&O Diary. That post is a review and summary of a larger post/article:

“As discussed in a March 4, 2015 post on the Harvard Law School Forum on Corporate Governance and Financial Regulation entitled “The Impact of Whistleblowers on Financial Misrepresentation Enforcement Actions” (here), which in turn described their longer academic paper of the same title (here), four academics have examined the impact of whistleblowing activity on the outcome of regulatory enforcement actions for financial misrepresentation. The four authors are Andrew Call of the Arizona State University School of Accountancy, Gerald Martin of American University Business School, Nathan Sharp of Texas A&M University Accountancy Department, and Jaron Wilde of the University of Iowa Business School.”

Labels and SCOTUS

Posted in Constitutional Law/Mass Tort Law

Here is a cogent article on why broad use of labels for judges often fails to provide much help in understanding decisions from SCOTUS, and other courts. The article is by Professor Tim O’Neill and appeared in the March 4, 2015 issue of the Chicago Daily Law Bulletin. The article is in part a commentary/book review for “Overruled: The Long War for Control of the U.S. Supreme Court,” by Damon Root.

Legacy Liability and “Skeletons in the Closet” – the Uber Bank Version

Posted in Fraud, Litigation Industry

Uber banks in Europe (e.g. HSBC) are under increasing scrutiny for creating or aiding and abetting various forms of tax fraud and other financial frauds.  As one result, the litigation industry will continue to grow and thrive.  Another result is increasing use of the term “legacy liability” with respect to financial houses. For example, consider this reference from a February 18, 2015  Financial Times article about a dawn raid to seize computers and paper records from HSBC:

Guenther Dobrauz, head of legal and regulatory services at the Zurich office of PwC, the consultancy, said he expected further scandals and investigations of this nature at other Swiss institutions in the coming months.

“There are still a lot of legacy issues from historical business models that will increasingly come to the fore,” said Mr Dobrauz. “I am expecting [a development in this area] every other day as cleaning up history usually takes a bit of time. I expect there are still quite a few of those skeletons around, but just because one thing pops up, I would not say the whole [system] is bad.”


National Registry to Be Created for Results from Low Dose CT Scans Paid for by CMS/Medicare

Posted in Asbestos, Cancer, Litigation Industry, Science

More on CMS paying for low dose CT scans for some people, as described yesterday.

As part of its announcement, CMS explained that Medicare reimbursement will be available only when the radiography facility contributes resulting data to one or more national registries that will be be put into operation. The rationale and specifics were explained as follows, and deserve careful consideration as to the short and long term implications for toxic tort litigation and precision medicine.

The primary purpose for requiring the submission of data to the registry is to document compliance with the coverage criteria that are not evidenced on the health care claim.  Furthermore, based on the public comments and the evidence reviewed, we strongly believe that the registry will serve as an aid to those seeking to study the clinical benefits of this screening.   The registry and the other criteria required in this NCD are supported by the evidence reviewed, including the NLST.  The registry will help ensure that only eligible beneficiaries will receive this screening service since only beneficiaries that meet the eligibility requirements will benefit from such screening.    

Furthermore, we recognize the impact of this criterion for imaging facilities.  We will only require production of the minimum number of data elements to carry out this payment function in an effort to reduce burdens.  Therefore, we are modifying the data registry elements, based on our review of the evidence and feedback received from commenters.  As amended, the data elements are limited to those required to determine whether an individual has met the coverage criteria for the LDCT lung cancer screening service, that is, whether their receipt of the service was “reasonable and necessary” and “appropriate.”  Data collected and submitted to a CMS-approved national registry must include, at minimum, all of the following elements: 

Data Type Minimum Required Data Elements
Facility Identifier
Radiologist (reading) National Provider Identifier (NPI)
Patient Identifier
Ordering Practitioner National Provider Identifier (NPI)
CT scanner Manufacturer, Model
Indication Lung cancer LDCT screening – absence of signs or symptoms of lung cancer
System Lung nodule identification, classification and reporting system
Smoking history Current status (current, former, never), 
If former smoker, years since quitting, 
Pack-years as reported by the ordering practitioner, 
For current smokers, smoking cessation interventions available. 
Effective radiation dose CT Dose Index (CTDIvol)
Screening Screen date
   Initial Screen or 
   Subsequent Screen

Additionally, national registries are strongly encouraged to collect data on lung nodules (for example:  clinically significant non-lung cancer findings, the number and types of nodules, and size and location of each nodule), subsequent diagnostic testing, adverse events, and intermediate and long term health outcomes, in order to inform practices and policymakers about the ability to implement a LDCT lung cancer screening program broadly in multiple settings across the country, and achieve positive outcomes, consistent with the NLST.  We recognize that these other data elements are extremely important to establishing the benefit of these screening services and improvement in health outcomes.  We strongly encourage submission of such data elements to registries in addition to the minimum elements required under this NCD.  These data will not only verify that screening leads to improved health outcomes for the Medicare population, but will also serve as the basis to refine and improve screening in practice, and serve the quality improvement purposes of screening facilities.  We believe that multi-society stakeholders are in the best position to determine the appropriate data elements for reaching these goals, and to adjust the particular elements over time.”