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

Commentary on a “Third View” on “Bare Metal” Issues

Posted in Asbestos

A new commentary article addresses the so-called “third view” of the “bare metal” defense; the commentary is from the defense side and is online at JD Supra in an October 25, 2016 article by Kevin Penhallegon of Miles & Stockbridge. It also is online at the law firm. The article includes the following discussion, which manufacturers and lawyers need to understand:

“if the component part manufacturer goes beyond that and was substantially involved in the integration of the component part into the design of the finished product, the manufacturer could be held liable in both negligence and strict liability if that integration results in a defective product that harms the plaintiff. Additionally, the component part manufacturer can be held liable for negligence if it supplies a component part that it knows or has reason to know will be used in a manner involving unreasonable risk of physical harm or if it recommends the use of a hazardous part in conjunction with the manufacturer’s component part. Bell, 2016 U.S. Dist. LEXIS 137547 at *28-29.”

Germany – A Judicial Hellhole, for VW

Posted in Global Tort Litigation, Litigation Industry

As Professor Coffee pointed out in his new article, mass tort claiming has indeed gone global, as some of us expected. More evidence of that reality arrived with new data about $9 billion of claims through about 1,400 lawsuits –  in Germany – against VW. The numbers are from a September 21, 2016 article in the WSJ. The number of claims is 1/2 the usual annual total for the district court, so the US Chamber of Commerce doubtless will declare the court a litigation hellhole. The article introduction states the following:

“BERLIN—Investors are seeking around €8.2 billion (around $9.10 billion) in damages from Volkswagen AG on losses suffered when the German car maker’s shares plunged after U.S. authorities disclosed a year ago that the company had cheated on emissions tests, a German district court said Wednesday.

The Braunschweig district court, which has jurisdiction over Volkswagen claims in Germany, said it had received 1,400 claims against the car maker so far, including law suits filed by U.S. pension funds, asset funds from German states, and individual investors. U.S investors that are part of the German claim include CalPERS.

The court said the number of claims against Volkswagen so far was equal to half the civil claims the court usually receives in an entire year. Because lawyers aren’t allowed to file such claims electronically in Germany, the court said it had to acquire additional warehouse facilities to accommodate the massive amount of files.”

Cancer and Aging: Big Picture Numbers

Posted in Cancer, Litigation Industry

Are you wondering about the future of toxic tort cancer litigation over the next few decades?  Consider these numbers from an article in Cancer Today from the head of the Kimmel cancer center at Johns Hopkins.

“The American Cancer Society forecasts that nearly 
1.7 million new cancer cases (more than 4,600 each day) and nearly 596,000 cancer deaths will occur in the United States in 2016. An emerging driver of the cancer epidemic is the aging of the population.
 In the 2010 census, slightly more than 57 million people were 60 and older, up from nearly 46 million in the 2000 census. During the same period, the number of people 80 and older grew from about 9.2 million to 11.2 million. In the year 2050, more than 112 million people in the U.S. will be at least 60 years old, according to projections. This is cause for concern, in that some 79 percent of cancer deaths occur among men and women 60 and older, and the 80-and-older bracket accounts for about 29 percent of all cancer deaths.”

Local Media Story: Welding Rod Verdict for Mesothelioma Plaintiff Due to Asbestos Content

Posted in Asbestos, Cancer, Litigation Industry

Welding rods with asbestos are back at issue, with a new loss for the defense side in a mesothelioma case, if one accepts as accurate a media story from Friday, Oct0ber 21, 2016. Specifically, the story identifies the defendant and product at issue as follows:

“According to a statement from McKinney’s lawyer, Andrew Kelly with Wylder Corwin Kelly, “the jury found that Hobart Brothers had knowledge of the hazards of asbestos and negligently failed to warn Charles McKinney about the hazards of the asbestos in the flux of its welding stick electrodes.”

The full story is pasted below:

“Jury awards $4.6 million in asbestos case

Edith Brady-Lunny

Oct 21, 2016

BLOOMNGTON — A McLean County jury awarded $4.6 million Friday to a Colfax man who developed cancer after he was exposed to asbestos while working for a Bloomington firm more than 50 years ago.
The jury ruled in favor of Charles McKinney, 73, in his claim against Hobart Brothers Co. McKinney worked for Portable Elevator Co. at age 19.

According to a statement from McKinney’s lawyer, Andrew Kelly with Wylder Corwin Kelly, “the jury found that Hobart Brothers had knowledge of the hazards of asbestos and negligently failed to warn Charles McKinney about the hazards of the asbestos in the flux of its welding stick electrodes.”

McKinney developed mesothelioma, a cancer directly linked to exposure to asbestos.

The jury deliberated about six hours following a two-week trial.

Follow Edith Brady-Lunny on Twitter: @pg_blunny”

Plaintiffs Continue to Probe the Limits of Bankruptcy Court Injunctions in Mass Tort Cases

Posted in Asbestos, Asbestos Bankruptcy, Insurance

Plaintiffs continue to probe the limits of bankruptcy court injunctions, an effort that is even more interesting while the Second Circuit’s GM decision makes it way up to SCOTUS. As to the probes, this week brought two new rulings in the WR Grace chapter 11 proceedings. One partially succeeded and one did not succeed at all. Both sets of claims were direct action “failure to warn” claims against insurers that provided workers’ compensation insurance to WR Grace for the Libby Montana manufacturing plant, which included vermiculite processing. The two opinions do not address any due process issues, or whether there was any actual effort to protect the rights of the claimants. Instead, the opinions proceed on the assumption that section 524(g) injunctions are proper. From that perspective, the court barred direct action claims against CNA but allowed direct action claims against Maryland Casualty. The opinions are in many ways identical and the differing outcomes depend on the wording of particular documents from the final chapter 11 plan. The CNA opinion is here and the Maryland Casualty opinion is here.

Analysis of a Brake Lining Ruling: “California Appellate Court Upholds “Every Exposure” Theory”

Posted in Asbestos, Daubert type rulings, Science

A post from defense lawyers evaluates the March 2016 decision in Davis v. Honeywell Int’l Inc., 199 Cal.Rptr.3d 583 (Cal. Ct. App. 2016). Davis is a case arising from asbestos in brake linings allegedly causing mesothelioma; see this August 8, 2016 post at Beveridge & Diamond, by Daniel Krainin.

In the Davis opinion, plaintiff’s expert offered “every fiber” and “low dose” testimony to establish causation of a mesothelioma for a person who performed brake work for about 15 years. For full context, it’s useful to read the full article and the opinion. But pasted below are two key statements:

“Deferring to the role of a jury in resolving questions of competing scientific theories, a California appeals court upheld a trial court’s ruling allowing expert testimony based on the “every exposure” theory, calling it “the subject of legitimate scientific debate.” 


Defendant appealed, arguing that the expert testimony relying on the every exposure theory should have been excluded as speculative and devoid of evidentiary and logical support. In upholding the trial court’s decision to allow the testimony, the Court held that although the trial court has a duty to act as a “gatekeeper” in excluding “clearly invalid and unreliable” expert opinion, its role is not to choose between expert opinions. Id. at 590. The Court found that the theory could be reconciled with the defense expert’s opinion that mesothelioma and other asbestos-related diseases are dose dependent. Therefore it was up to the jury, not the judge, to decide which opinion to apply.”

The defense tried to appeal, with amicus support from the US Chamber of Commerce. However, the California Supreme Court denied review in May 2016, and also denied depublication of the opinion.

Europe’s Focus on Asbestos Continues to Increase

Posted in Asbestos

As to asbestos, Europe is interesting in having been both ahead and behind of the US in addressing concerns and issues. Today, Europe’s focus continues to increase, with Yvonne Waterman as one of the people making that happen. For one example, see this video summary from one part of an ongoing series of workshops. For more specifics, see