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

“Same But Different” – an Overview of Epigenetics

Posted in Litigation Industry, Science

Epigenetics. It’s a big deal, and is more and more becoming part of main stream conversations. For a very readable explanation, see Same but Different, from the May 2, 2016 issue of the New Yorker. The article is from the tireless Siddhartha Mukherjee, author of  Emperor of all Maladies: A Biography of Cancer, a Pulitzer prize winner in 2011.

Statutes of Repose and Asbestos

Posted in Asbestos, Litigation Industry, Mass Tort Issues

Publicity is growing in regular media regarding the Indiana Supreme Court knocking out the state’s construction statute of reposed based on state law principles of due process and access to courts. An example is here from an April 4, 2016 article in the IndyStar. This follows on 2014 events in which the Illinois legislature ended Illinois’ counterpart statute.

Defense lawyers may reflexively rue these repeals, but as defendants exit the tort system, the remaining defendants may welcome having more co-defendants in the cases. After all, mesotheliomas in the US remain over 3,000 per year, with over 2,000 lawsuits per year. Some day some (but not all) defendants may look back and wonder why they ever supported statutes of repose. Thus, another example of “be careful what you wish for.”

A Brief, Easy to Read Synopsis of Finding the BAP1 “Meso Gene,” and Then Looking Backwards for Generations

Posted in Asbestos, Cancer, Litigation Industry, Science

A brief review of the BAP1 “meso gene” discovery story is provided  – with links to key articles – in the April 1, 2016  issue of the Scientist.  The overall effort as to BAP1 and mesothelioma has resulted in backwards looking genetic investigation stretching back for centuries, as described in the excerpts below. The entire story is well worth reading. While reading, keep in mind that the BAP1 gene can be mutated in multiple different ways.

“Out of the 22 patients who met the study criteria, three—presumably unrelated individuals in Maryland, California, and Texas—had the same BAP1 mutation: a deletion that results in a truncated protein. Another patient identified in a previous study (also from Texas) carried the mutation as well.

To learn whether the four might actually be related, and if so, how, the researchers enlisted the help of a professional genealogist, Harriet “Hart” Hoffman. She was able to show that the four study participants all descended from a German couple that had immigrated to Virginia in the early 1700s and had had 10 children. Based on the pattern of cancer development within the pedigree, two of those children passed down the BAP1 mutation that, centuries later, was detected in the study participants, who are now seven and eight generations removed from the German pair.

The researchers do not know whether it was the man or the woman in the German couple who had theBAP1 mutation. They did, however, track the man’s ancestry back four more generations, to Switzerland. The scientific gumshoes even located the original house that the Swiss ancestors had lived in almost 500 years ago—and when they visited, found that descendants of the same family were still living there. “Only in Europe you can find that people still live [in] exactly the same place,” says Carbone. Now the researchers would like to test the Swiss family members for the BAP1 mutation.”

A big picture take away?  New tools are and new methods for analysis are creating major new developments, faster and faster.

“Surprising Revelations on Experts and Contingent Fees”

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

It can be interesting to peel back onion skin layers of law and find new legal rules. Consider for example the following two paragraphs on contingent fees and expert witnesses. Then go read the entire article: “Surprising Revelations on Experts and Contingent Fees.” The entire onion on that topic appears to have been nicely peeled, analyzed and explained by Michael Hoenig of Herzfeld & Rubin in a September 16, 2015 article.

“Can experts be retained on a contingency fee basis, that is, get paid a fee based on the outcome of the case? At first blush, the answer would seem to be “no.” Litigators will recall, at least in the deep recesses of their memory, that there’s something wrong about entering into contingent-fee arrangements with experts. It’s not ethical, not kosher, probably a kind of taboo. Such initial instincts or imprecise recollections are well-founded. Generally, the law does, indeed, frown upon lawyers retaining experts to be compensated depending on the outcome of the litigation.



Sounds pretty clear-cut, right? No contingency fees for experts, period! But, when one peels away the bold surface statements, one may find some nuanced questions, possibly devilish ones. So, for example, does the prohibition apply to all retained experts or only those who actually will testify? Surprise! The Restatement, Third, in §117’s comment c (“Compensating an expert witness”) starts out with the no-contingency rule but then declares: “The prohibition against contingent compensation does not apply to an expert retained only to consult and not to testify or otherwise present evidence.”

“Posner Calls Bluebook ‘Rubbish’ In Legal Profession Critique”

Posted in Offtopic

This headline made my morning:  “Posner Calls Bluebook ‘Rubbish’ In Legal Profession Critique”  It’s from a LAW360 story online here.   The story covers other more important topics too, but for those of us who suffered through Bluebook rules before word processing, the headline story is a joy to read!

“By Dani Meyer

Law360, New York (March 29, 2016, 6:34 PM ET) — All copies of the Bluebook should be burned, Seventh Circuit Judge Richard A. Posner recommended in a recent article critiquing the legal system, calling it “560 pages of rubbish” and a “terrible time waster” since readers only pay attention to whether they can find the cited material and not to the format of citations.

Judge Posner pointed out in his article titled “What is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable,” first published March 14 in the Winter 2016 edition of law journal The Green Bag, that Wikipedia contains a summary of his criticisms of the citation style guide called the Bluebook — but no defenses.

“That however is typical of legal academia. The academy rarely bothers to defend any of its antiquated and pointless practices, numerous as they are; and the cone of silence embraces the judges and the practicing lawyers as well,” Judge Posner said. “Critics of established practices typically are ignored.”

Judge Posner acknowledged in the article, the first of a two-part series, that he is known as a maverick, gadfly and faultfinder, but he said the reputation isn’t “entirely undeserved,” especially as he focuses in this article on aspects of the judicial system that are both unsound and easily corrigible without federal legislation or radical changes.

“That is not to say that anything I criticize will be changed, however convincing my critique. For law is wedded to the past as no other profession is,” Judges Posner observed. “You don’t hear doctors bragging about thirteenth-century medicine, but you hear lawyers bragging about the thirteenth-century Magna Carta (without even understanding it … ).”

The judge took aim at the Bluebook as part of a critique of appeals to the court of appeals, pointing out that cutting “for the foregoing reasons” from the end of an opinion won’t leave readers wondering if the reasons for an opinion are being concealed, or if there were no reasons, or if the reasons will be revealed at a future point in time.

Meanwhile, using the phrase “after careful consideration” implies judges are usually careless but gave the case careful consideration this time, Judge Posner said.

Beyond the “redundancy,” “superfluous flourishes” and general lack of eloquence in judicial opinions, Judge Posner also blasted the “stodginess and stuffiness of the American legal culture,” accusing judges of “forever looking backwards.”

“The problem is that the past does not contain usable solutions to contemporary problems. The eighteenth-century United States, the nineteenth century United States, and much of the twentieth-century United States might as well be foreign countries so far as providing guidance to solving today’s legal problems is concerned,” Judge Posner said.”