Here is the Madison County Record's weekly report on new asbestos claims filings. The article lists fourteen new claims. Five of the claims are for lung cancer.
I've not done a meaningful analysis comparing the rate of lung cancer filings, but my gut is telling me that there is a developing uptick in the rate of lung cancer claims in asbestos litigation.
The Internet is an amazing thing for marketing related to actual or potential legal claims. Here is a Madison County Record article that educated me to the existence of Whocanisue.com. It is in essence a referral source for plaintiffs, but also includes a button to hire defense counsel. The site seems to be limited to claims in the US.
It would be fascinating to know the pricing and structure for referral fees and the criteria that determine which counsel is recommended for a particular, serious case.
Readers - does anyone know of a similar website outside of the US?
Milk intentionally altered with melamine sickened around 300,000 thousand children in China The aftermath includes civil suits in China and criminal convictions.
The NYT reported yesterday that civil trial is underway against one of the producers and the retailer. Earlier this year, about 20 involved persons were convicted of criminal charges. Two of them were executed, as reported here. The primary seller went into bankruptcy and was sold at auction, as reported here. Ultimately a compensation fund was set up by the government.
As pointed out by the NYT, more details and news stories are available from an English language paper, China Daily. Some recent stories are here, and here.
A China Daily reporter, Cui Xiaohuo provided the following account of the first hearing:
"A lawsuit filed by a family that was a victim of the melamine-tainted milk scandal saw its day in court on Friday - the first trial for the families suing the milk company since the incident broke out more than one year ago.
Several courts nationwide have previously accepted compensation cases from parents of sickened children who were not satisfied with the government-led compensation, but no court has ever held a public hearing against the company until Friday.
Ma Xuexin, father of a 20-month-old boy from Henan province, requested compensation totaling 55,184 yuan ($8,080) from collapsed dairy maker Sanlu Group in Hebei province and a Beijing-based supermarket, where he bought the Sanlu-brand infant formula milk powder before the scandal went public last year.
The 30-year-old also requested that the medical costs for his son, until he reaches adulthood, be covered by the 1.1 billion yuan State-run compensation fund, of which 900 million was paid by Sanlu Group last December.
"Since my son was born last March, he has suffered from a stone in his left kidney after consuming hundreds of packages of Sanlu-brand infant formula milk powder," Ma said in the hearing.
The two defendants, the bankrupted Sanlu Group and the Longhua supermarket in the Shunyi district, both said they should not be held responsible for the plaintiff's requests because the central government has already set up the fund for victim families.
"There is no official document from the hospitals showing the direct link between melamine-tainted milk powder and the child's kidney problem," said Zhou Xiaolong, a lawyer with the Jimin Law Firm from Hebei province, where Sanlu Group was formerly located.
The hearing came just three days after two criminals were executed by injection in Hebei for their roles in producing and selling toxic milk, which killed six children and made more than 300,000 sick nationwide.
There was not a flurry of media attention at the hearing on Friday. Only representatives from the plaintiff and the defendants were sitting in the small No 9 courtroom at the Shunyi district court, about 30 km northeast of downtown Beijing.
"Being the first case held by a Chinese court, more such cases may have a chance to be heard in the near future," said Xu Zhiyong, a Beijing-based law scholar.
The hearing lasted just two hours without a verdict. The judge, Zhang Nan, said that both sides need to bring more evidence when the trial continues on Dec 9.
Here is an interesting paper from the Lehman bankruptcy. It is a motion for discovery against the UK's Financial Services Authority and PwC. (Hat tip to Am Law Daily for publishing this article on the topic, with a link to the motion. ) The opening paragraph is pasted below:
__________________________________________________________________
"The Official Committee of Unsecured Creditors (the "Committee")
appointed in the above-captioned chapter 11 cases of Lehman Brothers Holdings Inc.
("LBHI") and its affiliated debtors and debtors in possession (collectively, the "Lehman
Debtors"), by and through its undersigned counsel, hereby files this Motion (the
"Motion"), pursuant to section 105(a) of title 11 of the United States Code, 11 U.S.C. §§
101-1532 (as amended, the "Bankruptcy Code"), and the Hague Convention of 18 March
1970 on the taking of Evidence Abroad in Civil or Commercial Matters, 28 U.S.C. §
1781 (the "Hague Convention"), for the issuance of two Letters of Request for
International Judicial Assistance in the form annexed hereto as Exhibit A (the "Letters of
Request") to the High Court of Justice of England and Wales (the "U.K. Court") to
compel the production of documents by the following entities located in the United
Kingdom: the Financial Services Authority ("FSA"), Barclays' regulator, and
PricewaterhouseCoopers LLP and PricewaterhouseCoopers International Limited
(collectively "PwC"), Barclays' auditors."
This prior post referred to a then-upcoming seminar and mentioned the question: what does the US Chamber of Commerce think about litigation funding. Thanks to an article today at Pointoflaw, we now know the unsurprising answer is: the Chamber does NOT like litigation funding. Go here for the Chamber's paper.
What's in the paper? Parts of it are fairly helpful reviews of litigation funding in Europe, Australia and elsewhere. Other parts are pretty shallow arguments that do not explore a wide range of interesting possibilities, some of which could even benefit defendants. But that's an argument for another day - no need to give anyone in the US heartburn just before Thanksgiving.
Best wishes to all for a joyous holiday, with time to pause and reflect There are, after all, real people behind the statistics and data points, and some are real tort victims suffering from brutal cancers or other terrible diseases.
For some, Thursday will be a bittersweet day as they will have no choice but to acknowledge that they almost certainly will never again gather with their loved ones to celebrate Thanksgiving here on earth.
This post by Ashby Jones at the WSJ law blog updates on another big financial house moving away from imposing arbitration clauses. Some would say this is good news and others would say it is bad news. Plainly it does mean that there will be more changes in the litigation industry as new models evolve for dispute resolution.
Here is a link to Pat Lamb's post about an airline customer exacting great revenge for the absence of good service. Great service is the focus for Pat 's blog, and also is the focus for Pat and the other great lawyers at Valorem Group.
Disclosure: Pat and I grew up together as lawyers and were partners for many, many years. Ultimately, the timing of life events caused him to make a move I could not join.
It was just a matter of time. Seeking a civil remedy for the oft-criticized credit ratings issued by the various ratings agencies, The Ohio Attorney General retained private counsel and has filed suit "on behalf of the Ohio Public Employees Retirement System, the State Teachers Retirement System of Ohio, the Ohio Police & Fire Pension Fund, the School Employees Retirement System of Ohio and the Ohio Public Employees Deferred Compensation Program.""Attorney General Cordray is drawing on the expertise of the law firms Entwistle & Cappucci LLP; Lieff Cabraser Heimann & Bernstein LLP; and Schottenstein Zox & Dunn Co., LPA to assist with the litigation." The Lieff Cabraser firm is well-known for its class action work for plaintiffs. The Entwistle firm has significant experience in securities claims for pension funds and others. The Schottenstein firm is an Ohio commercial law firm. No doubt others will explore all the political connections. The complaint is here. The claims are for negligent misrepresentation and violation of Ohio statutes. The suit is in federal court, so one assumes the first issues will be Iqbal/Twombly motions. I went through the complaint this morning and it seems to this observer more than adequate in laying out a compelling and logical claim backed by evidence garnered during Congressional investigations.Big picture conclusions/thoughts/questions ? This suit is the latest example of how investigations by federal and state officials and agencies are increasingly used to generate evidence and facts to survive Iqbal/Twombly motions. Second, my personal belief is that there ultimately will be a flood of these lawsuits. with many filed by overseas entities. One question is whether and how these claims will be expanded to include "aiding and abetting" claims against law firms and other professionals. "Choice of law" questions also seem inevitable.
More great new science at the observable cellular level. As described below, scientists used tools to observe cellular level shapes, and then figured out a way to "staple" some proteins to better take on the needed shape to fit cellular receptors. How cool and important is this discovery? Very - the science is so good it was published in Nature this month. Go here to Science Daily for the broader whole story; excerpts are below.
Why does this relate to law? As these techniques are used to actually implement ways to "turn off" cancer, they will become the remedies sought by persons facing cancer allegedly or actually caused by particular substances.
_________________________________________________________________
"ScienceDaily (Nov. 12, 2009) -- Scientists have devised an innovative way to disarm a key protein considered to be "undruggable," meaning that all previous efforts to develop a drug against it have failed. Their discovery, published in the November 12 issue of Nature, lays the foundation for a new kind of therapy aimed directly at a critical human protein -- one of a few thousand so-called transcription factors -- that could someday be used to treat a variety of diseases, especially multiple types of cancer.
****
Based on his work as an oncologist, Bradner became deeply interested in a human protein called NOTCH. The gene encoding this protein is often damaged, or mutated, in patients with a form of blood cancer, known as T-ALL or T-cell acute lymphoblastic leukemia.
Abnormal NOTCH genes found in cancer patients remain in a state of constant activity, switched on all the time, which helps to drive the uncontrolled cell growth that fuels tumors. Similar abnormalities in NOTCH also underlie a variety of other cancers, including lung, ovarian, pancreatic and gastrointestinal cancers.
Even with this deep scientific knowledge, drugs against NOTCH -- or any other transcription factor -- have traditionally been extremely difficult, if not impossible, to develop. Most current drugs take the form of small chemicals (known as "small molecules") or larger-sized proteins, both of which have proven impractical to date for disabling transcription factors.
A few years ago, Bradner and his colleagues hatched a different idea about how to tame the runaway NOTCH protein. Looking closely at its structure as well as the structures of its partner proteins, they noticed a key protein-to-protein junction that featured a helical shape.
"We figured if we could generate a set of tiny little helices we might be able to find one that would hit the sweet spot and shut down NOTCH function," said Bradner.
Creating and testing these helices involved a team of interdisciplinary researchers, including Greg Verdine, Erving Professor of Chemistry at Harvard University and director of the Chemical Biology Initiative at Dana-Farber Cancer Institute, as well as scientists at Brigham and Women's Hospital and the Broad Institute's Chemical Biology Program, which is directed by Stuart Schreiber.
Verdine invented a drug discovery technology that uses chemical braces or "staples" to hold the shapes of different protein snippets. Without these braces, the snippets (called "peptides") would flop around, losing their three-dimensional structure and thus their biological activity. Importantly, cells can readily absorb stapled peptides, which are significantly smaller than proteins. That means the peptides can get to the right locations inside cells to alter gene regulation."
Posts to The Epicurean Dealmaker (TED) blog are infrequent but have been especially wonderful this month. The best is this week's post skewering the government's pre-election decisions on AIG and Goldman. The post was good enough that Paul Krugman cited and quoted it for this recent column that followed up on the SIGTARP report on AIG, Goldman and TARP.
This post at Kevin LaCroix's D & O Diary covers an interesting new decision from Canada on global choice of law issues arising from D & O policies, and identifies contract clauses that might be changed to obtain better outcomes. Here's an excerpt:
"The November 12 Opinion
In his November 12, 2009 decision (here), Justice Walker determined that British Columbia law is the proper law to be applied to the interpretation of the policy.
He began with the determination that the parties intended different laws to apply to different parts of the policy (a choice of law principle known as dépeçage). In reaching this conclusion, Justice Walker referenced several different parts of the policies at issue, including in particular the primary policy's definition of "Loss," which contained a provision specifying that the policy's coverage for punitive and exemplary damages would be determined under the law most favorable to the insured. Justice Walker also referenced the policy's Oregon state amendatory endorsements, which specified that Oregon law would govern any disputes regarding alleged misrepresentations in the insurance application.
Justice Walker determined that given these clause-specific choice of law provisions, and given the absence from the policies of any general choice of law provisions, the "proper law" governing the disputes arising under other policy provisions "is left to be determined by the court hearing the dispute to find based on the application of its own laws, taking into account the directing language in the policies."
Reviewing these circumstances in this light, and discounting the policies' various connection to jurisdictions in the United States, and applying British Columbia choice of law principles, Justice Walker concluded that "the policies have the closest and most substantial connection with BC," and therefore BC law governs the coverage dispute presented by the receiver.
In substantiating this decision, Justice Walker stated that given the importance of the Canadian subsidiary, "most of the claims could be expected to arise from Canadian operations," and he stressed that the P&T Ltd. employees' wage claims are "unique to Canadian operations" and have "no equivalent in Oregon," as a result of which Justice Walker concluded that "the proper law of the policies to determine the carriers' coverage obligations for these claims is BC law."
He added that the parties "would reasonably have expected BC law to apply to determine the insurers' coverage obligations."
Here is an interesting NLJ article on the state secrets privilege from a law professor and dean with an impressive background in both public interest litigation and academics. The law professor, Alan B. Morrison, currently is the Lerner Family Associate Dean for Public Interest and Public Service Law at the George Washington University School of Law. In short, he suggests that the price for exercising the privilege should be that the government pays for the harm caused. Here are two key paragraphs:
"The problem to date has been that the arguments have all been about whether the claims of secrecy are actually justified and who should decide that. The best way around that debate is for Congress to pass a law saying to the intelligence community, "You can keep your secrets, but you (the U.S. Treasury) must pay the claimant's damages if you won't allow the case to be tried in the ordinary fashion." That's what the law says will happen if the government wants to take my land to build a military base, and that same principle should apply in these cases as well.
Here's how such a law might work. Cases would be filed in the usual way, and if the government contended that state secrets might have to be divulged if the case were tried, it would make whatever efforts it could to dismiss the case on nonstate secrets grounds. But if that failed, the attorney general could formally invoke the state secrets privilege. At that point, the case would be transferred to the Court of Federal Claims, which hears claims against the government that it has taken someone's property without compensation. However, once the government invoked the state secrets defense, it would lose its right to contest its liability: The only issue remaining would be the proper amount of actual, but not punitive, damages."
Here is an update on the Toyota situation. The claims of the former inside counsel have been sent to arbitration, and RICO claims were dismissed.
Wondering what the Daubert case law will look like in a few years as great new science pushes past epidemiology as new machines and techniques make cause and effect more or less directly observable ? Worried about Alzheimer's perhaps being part of your future and wondering what's ahead? Wondering why nations need to invest more n fundamental science at national laboratories such as Brookhaven and Argonne ? If any of those topics are in mind, consider reading a short article that reports on a new molecular level discovery made by scientists at the storied Cold Springs Harbor Laboratory using the National Synchrotron Light Source at Brookhaven National Laboratory. For the article online, go to ScienceDaily (Nov. 13, 2009). Key excerpts are below:
"A team of scientists at Cold Spring Harbor Laboratory (CSHL) reports on Thursday their success in solving the molecular structure of a key portion of a cellular receptor implicated in Alzheimer's, Parkinson's, and other serious illnesses
***
"Without a highly detailed molecular picture of the ATD, however, efforts to rationally design inhibitors cannot proceed. Hence the importance of Furukawa's achievement: a crystal structure revealed by the powerful light source at Brookhaven National Laboratory, that shows the ATD to have a "clamshell"-like appearance that is important for its function. The results are published in a paper appearing online Thursday ahead of print in The EMBO Journal, the publication of the European Molecular Biology Organization. (emphasis added)
The team obtained structures of the ATD domain with and without zinc binding to it. Zinc is a natural ligand that docks at a spot within the "clamshell" in routine functioning of the NMDA receptor. Of much greater interest is the location and nature of a suspected binding site of a small molecule type that is known to bind the ATD and inhibit the action of the NMDA receptor.
These inhibitor molecules are members of a class of compounds called phenylethanolamines which "have high efficacy and specificity and show some promise as neuroprotective agents without side effects seen in compounds that bind at the extracellular domain of other receptors," Furukawa explains. Now that his team has solved the structure of the ATD domain of the NR2B subunit, it becomes possible to proceed with rational design of a phenylethanolamine-like compound that can precisely bind the ATD within what Furukawa and colleagues call its "clamshell cleft," based on the crystal structure they have obtained."
A US bankruptcy court in Delaware ruled that an overseas company that files for chapter 11 in the US will be subject to discovery regardless of the law of its home country. This ruling could be big in some particular mass tort situations since it might make available myriad corporate records that would not otherwise be available.
Here is a Mayer Brown article on the ruling. The key excerpts from the article are as follows:
"In a decision that highlights the uncertain terrain faced by US litigants involved in overseas discovery, the United States Bankruptcy Court for the District of Delaware held on October 28 that the Federal Rules of Civil Procedure trump a French "Blocking Statute" that restricts discovery. The Blocking Statute, French Penal Code Law No. 80-538, imposes criminal penalties on any French national or corporation that engages in discovery under a foreign judicial system without using the procedures of the Hague Evidence Convention--letters rogatory or letters of commission. In In re Global Power Equipment Group, Inc., No. 06-11045, 2009 WL 3464212 (Bankr. D. Del. Oct. 28, 2009), the court ordered a claimant in the Global Power bankruptcy proceeding, Maasvlakte Energie B.V., to produce documents and personnel for depositions from its French affiliate. It ordered production even though Maasvlakte had claimed, belatedly, that this discovery would violate the French Blocking Statute and expose its affiliate to prosecution in France.
In response to the bankruptcy plan administrator's discovery requests, Maasvlakte initially agreed to produce documents and witnesses, and identified its affiliate's French documents as likely to be relevant, without mentioning the Blocking Statute. Maasvlakte first raised the French Blocking Statute only three days before it was scheduled to produce documents, arguing that the statute required the administrator to follow Hague Convention procedures to obtain discovery in France. After the administrator moved to compel Maasvlakte to produce the documents and deponents, the court rejected Maasvlakte's position. It held that the Blocking Statute did not prevent it from applying the Federal Rules, and it ordered Maasvlakte to produce the documents and witnesses.
The court emphasized the fact that when Maasvlakte filed its bankruptcy claim it had submitted to the court's jurisdiction, and that using the Hague Evidence Convention procedures would slow resolution of the claim. The court held that considerations of comity established by the Supreme Court in Société Nationale Industrielle Aérospatiale v. United States Dist. Court for S.D. Iowa, 482 U.S. 522 (1987), weighed in favor of application of the Federal Rules, particularly in light of the fact that the subject matter of the disputed claim was centered in the Netherlands, rather than in France."
Courtesy of a friend in Australia, here is a link to a story on new radiotherapy science developed in Australia that is bringing some new hope for perhaps two more years of life for persons suffering from mesothelioma. Key excerpts are as follows:
Breakthrough in fight against mesothelioma
By Lindy Kerin for AM
AM abc.net.au/am
Posted Fri Nov 13, 2009 11:11am AEDT
Updated Fri Nov 13, 2009 11:22am AEDT
A new radiation technique can improve the life expectancy for sufferers.
A new radiation technique can improve the life expectancy for sufferers. (www.sxc.hu: Adam Ciesielski, file photo)
Australian experts are offering new hope to mesothelioma sufferers, claiming a breakthrough in the treatment of the aggressive cancer.
Specialists at the Austin Health Centre in Victoria have discovered a new radiation technique which can improve the life expectancy for sufferers.
Every year, around 700 Australians find out they have mesothelioma. The deadly cancer, which attacks the lungs, is mostly caused by exposure to asbestos.
On average sufferers are given just two years to live after diagnosis.
Dr Malcolm Feigen, a Radiation Oncologist at the Austin Health Centre in Victoria, has for the past seven years been developing new techniques for treating mesothelioma, involving high doses of radiotherapy.
"Gradually with new technologies and better equipment we've been able to increase our doses and look at the results by doing PET scans before they start the radiotherapy and PET scans after they've finished to see what difference we've made," he said.
"And we've been very impressed that in most cases there's a considerable improvement in the activity of the tumour masses that we've given high doses of radiotherapy. And most patients have got through the course of treatment with no major side effects and some have had long-term benefits."
Dr Feigen says patients treated only with chemotherapy mostly have short-term benefits and then the cancer comes back.
"But with radiotherapy it doesn't come back in the same area and if we find patients early enough we may be able to stop any further developments of their disease," he said.
All up, 13 patients were involved in the pilot program.
Are cord blood donations important ? You bet ! Great new science documents that children and others with leukemia (and perhaps other lymph cancers) may obtain cures through transplants of two units of cord blood even when there is no perfect match available. This is promising news because today's increasing diversity means that children from diverse marriages have more difficulty in finding perfect matches for marrow stem cell donations. The published medical article is in the journal Blood and can be downloaded here for personal use. Set out below is summary from Science Daily.
University of Minnesota (2009, November 15). Two Units Of Umbilical Cord Blood Reduce Risk Of Leukemia Recurrence. ScienceDaily.
Two Units Of Umbilical Cord Blood Reduce Risk Of Leukemia Recurrence
ScienceDaily (Nov. 15, 2009) -- A new study from the Masonic Cancer Center, University of Minnesota shows that patients who have acute leukemia and are transplanted with two units of umbilical cord blood (UCB) have significantly reduced risk of the disease returning. This finding has the potential to change the current medical practice of using one unit of UCB for treatment of patients who are at high risk for recurrence of leukemia and other cancers of the blood and bone marrow.
Michael Verneris, M.D., and John Wagner, M.D., who specialize in research and treatment of children with cancer, led the research team on this breakthrough study. The results are published in the current issue of the scientific medical journal Blood. This study was funded with grants from the National Cancer Institute and the Children's Cancer Research Fund.
Verneris and his colleagues studied 177 patients treated at the University of Minnesota Medical Center, Fairview and the University of Minnesota Amplatz Children's Hospital between 1994 and 2008. The average age of the patients in this study was 16 years. Eighty-eight patients had acute lymphoblastic leukemia (ALL) and 89 had acute myeloid leukemia (AML).
"Our analysis showed that patients in first or second remission from the leukemia had a significantly lower likelihood of leukemia recurrence if they were transplanted with two UCB units than if they were transplanted with one (19 percent vs. 34 percent)," says Verneris.
"We believe our finding provides evidence that using two units of UCB for transplantation may be more effective in preventing leukemia relapse and gives hope to patients with hematological malignancies so that they may live cancer-free," he says.
Blood and marrow stem cell transplantation has been a mainstay treatment for patients with high risk leukemia and other hematological malignancies for the past 30 years. In the last decade, the blood in the placenta and umbilical cord has been collected and banked for public use. Now, UCB is routinely used throughout the world as an alternative to bone marrow transplantation.
However, because of the limited number of cells in UCB, this stem cell source has been reserved for young children and small adults. The practice of using two UCB units (from two different individuals) was pioneered at the University of Minnesota approximately 10 years ago. By using two UCB units, nearly all patients can now use this stem cell source for transplantation.
Previous research studies have also shown that about 25 to 30 percent of patients suffer leukemia relapse after transplant. The relapse or disease recurrence rates are similar regardless of whether the stem cells used for transplantation are from bone marrow, peripheral blood, or umbilical cord blood.
Verneris and his colleagues compared the outcomes of patients who were transplanted with one verses two UCB units. Forty-seven percent of the patients received one unit of UCB; the remaining patients received two units. The choice to receive one versus two units was based on the number of stem cells contained in the UCB. Since the number of stem cells needed for a successful transplant varies with the patient's weight, older patients and those who weigh more need more stem cells than infants and young children.
"Given that adult patients were more likely to receive two UCB units and that they tend to have more aggressive leukemia, we think that the lower relapse rates with two UCB units is remarkable," says Verneris. He notes that while promising, these results will have to lead to a national study comparing one verses two cord blood units in children with leukemia.
"Prior to the research done by my predecessors, the co-infusion of two UCB units had not previously been performed," says Verneris. "We now know that without this double transplantation procedure, the majority of the patients treated would have had no other reasonable treatment option for their leukemia. The fact that they had less leukemia relapse was a wonderful surprise." (emphasis added)
Set out below is the abstract from the medical article.
Relapse risk after umbilical cord blood transplantation: enhanced
graft-versus-leukemia effect in recipients of 2 units
Michael R. Verneris,1,2 Claudio G. Brunstein,2,3 Juliet Barker,2,3 Margaret L. MacMillan,1,2 Todd DeFor,1,2 David H. McKenna,4 Michael J. Burke,1 Bruce R. Blazar,1,2 Jeffrey S. Miller,2,3 Philip B. McGlave,2,3 Daniel J. Weisdorf,2,3 and John E. Wagner1,2
1Department of Pediatrics, 2Blood and Marrow Transplant Program, 3Department of Medicine, and 4Department of Laboratory Medicine and Pathology,
University of Minnesota Medical School, Minneapolis
Umbilical cord blood (UCB) transplantationis potentially curative for acute leukemia. This analysis was performed to identify risk factors associated with leukemia relapse following myeloablative UCB transplantation. Acute leukemia patients (n 177; 88 with acute lymphoblastic leukemia and 89 with acute myeloid leukemia) were treated at a single center. Patients received a UCB graft composed of either 1 (47%) or 2 (53%) partially human leukocyte antigen (HLA)-matched unit(s). Conditioning was with cyclophosphamide and total body irradiation with or
without fludarabine. The incidence of relapse was 26% (95% confidence interval [CI], 19%-33%). In multivariate analysis,relapse was higher in advanced disease patients (> third complete remission [CR3]; relative risk [RR], 3.6; P < .01), with a trend toward less relapse in recipients of 2 UCB units (RR 0.6; P .07). However, relapse was lower for CR1-2 patients who received 2 UCB units (RR 0.5; P < .03). Leukemia-free survival was 40% (95% CI, 30%-51%) and 51% (95% CI, 41%-62%) for single- and double-unit recipients, respectively (P .35). Although it is known that transplantation in CR1 and CR2 is associated with less relapse risk, this analysis reveals an enhanced graft-versus-leukemia effect in acute leukemia patients after transplantation with 2 partially HLA-matched UCB units. This trial was registered at http://clinicaltrials. gov as NCT00309842. (Blood. 2009;114: 4293-4299).
Here (but subscription required) is a Chicago Daily Law Bulletin article regarding an interesting ruling on two aspects of entrepreneurial claiming. The opinion holds that a 40% contingent fee is a reasonable fee for contingent patent fee claims. The case also holds that since patent law claims arise under federal law, the federal courts also are the proper place for legal malpratice claims involving patent law. By Pat Milhizer When law firms are hit with legal-malpractice claims involving patent disputes, those claims should be handled in federal courtrooms -- instead of state courts -- since that's where the underlying patent dispute began, the 1st District Appellate Court has held in a ruling that's the first of its kind in Illinois. In the same opinion issued this week, the appellate justices also said that a law firm that prosecuted several patent claims for one client on the condition that the attorneys would get 40 percent of all of the potential settlements and verdicts was being reasonable and didn't violate any rules of professional conduct. ***** When they were hired, the attorneys inked a contingency fee agreement with Premier that they would bill for reasonable and necessary expenses. In addition, the contract stated that the lawyers would get 40 percent of any payments that the company received as a result of licenses, settlements, judgments and other related court decisions through the life of the patents. The deal included a termination clause for either party, and if that happened, the lawyers would be eligible for quantum meruit pay, meaning a judge or jury would decide how much they would be paid for unfinished work. The lawyers secured several settlements and millions of dollars for Premier, according to an attorney who represented the firm on appeal in the malpractice claim. In one of the cases, the company hired the lawyers to prosecute a patent claim against Lucent Technologies regarding a system that amplifies telephone signals. But that lawsuit got shot down. A federal judge granted summary judgment to Lucent, and the decision was affirmed by a federal appeals panel in an unpublished opinion. Premier then sued the law firm for legal-malpractice, saying that the lawyers failed to use scientific evidence that it was provided with to rebut a claim made by Lucent. Premier said that if the lawyers had used the information, it would have won the federal lawsuit. The law firm filed a motion to dismiss the malpractice suit with prejudice due to a failure to state a cause of action, and Cook County Circuit Judge Kathy M. Flanagan did dismiss it -- but on the basis that she lacked jurisdiction. Flanagan also found that the contingent fee was valid and enforceable. Both sides filed appeals, and in a 12-page opinion released Tuesday, an appellate panel affirmed the circuit court decisions. The decision was written by Appellate Justice Joy V. Cunningham; Justices Thomas E. Hoffman and Themis N. Karnezis concurred. Premier alleged that the contingent fee deal with the law firm violated the Illinois Rules of Professional Conduct, which requires that attorney fees be reasonable. The appellate justices also read Premier's complaint to say that the law firm violated the conduct rules by entering into a business transaction with the company. The justices held that there was no business transaction and that the agreed-upon fee wasn't unreasonable. "The facts of the underlying case suggest the need for highly skilled legal representation in a very technically narrow area of patent practice," Cunningham wrote. "Premier obviously had confidence in Stadheim's ability to represent its interests in this narrow, technical area of patent law." The panel then addressed the question of whether legal-malpractice actions must yield to federal jurisdiction when the malpractice action requires a resolution of patent law issues. The court relied on three cases in other states to reach its conclusion, ruling that "because the federal court has exclusive jurisdiction over patent cases, this jurisdiction also extends to cases in which the plaintiff's right to relief necessarily depends upon the resolution of a substantial question of patent law."
The article also is pasted below, in part:
Law Bulletin staff writer
One learns many things at asbestos litigation conferences. This year's learning includes being told about a collection on flickr of well over 500 pictures of asbestos-containing products. Here is a picture of a box of asbestos snow. The related collection will appear to the right if you pull up that link. Or go here for an overview of the collection.
Here is an article from Japan this week that reports on finding Libby Mines vermiculite in buildings in Japan. The article claims the material was installed Zonolite. How can Judge Fitzgerald's orders in the WR Grace case bind these building owners if they were not given effective notice in a language they understand ?
Note also that the article indicates SEM (scanning electron microscopy) is now being used overseas to find fiber types.
_________________________________________________________________
Highly toxic asbestos found in four buildings across Japan; current testing flawed
A widely-used building material has been found to contain asbestos in Tokyo, Hokkaido and Kagawa, in the first discovery of amphibole asbestos, the rarer and more dangerous variety of the toxic mineral, in buildings in Japan.
Asbestos fibers were found in at least four buildings: three community centers, one in Hokkaido and two in Kagawa Prefecture, and the ceiling of a private building in Tokyo. The latter three all used a vermiculite-based insulation called Zonolite. Measures to prevent the asbestos from scattering have already been taken at all the four buildings.
The findings were made by the Tokyo Occupational Safety and Health Center (TOSHC). Examining vermiculite containing relatively low-toxic serpentine asbestos using scanning electron microscopes, they found amphibole asbestos at concentrations of 0.1 to 1.5 percent -- enough to designate it an asbestos-containing material.
The center also found that trace impurities of aluminum and sodium matched those of a vermiculite sample taken from a mine in Libby, Montana. A study there found that 18 percent of residents of Libby tested after complaining about various health problems were suffering from chest-lining abnormalities.
A standard method of testing for asbestos used in construction materials was introduced in June last year, which local governments and other organizations have used to conduct their own studies. However, center expert Naoki Toyama points out, "We detected (asbestos) using the ISO method. Under the standard method, however, asbestos could be overlooked."
Australian law firm Clayton Utz explains the situation here.
Here is a Law.com article by Andrew Longstreth regarding the defense view on whether a major securities class action should be litigated in the US or India. What outcome would you want as GC?
The article explains that PwC and others would prefer to litigate in India. A key excerpt is set out below:
"The Satyam scandal may have worsened India's already poor reputation for corruption, but Satyam's auditors--PricewaterhouseCoopers and Lovelock & Lewes--would still like to see the case handled in India rather than the U.S. Their motion, filed by Wilmer Cutler Pickering Hale and Dorr, argues that virtually all of the key evidence, witnesses, and defendants are located in India. But it also claims that Indian courts, "which have a history of expediting legal matters of national significance," are more than prepared to take on the case. They say India has a securities fraud statute in which victims of a fraud on the market can be compensated. And since the matter of Satyam--in which more than $1 billion in assets were misstated--is India's Enron, it will get be a top priority.
"Quite simply, what is arguably the highest-profile legal matter in India, will command the attention of the Indian judiciary and proceed swiftly," wrote the Wilmer lawyers. "This case belongs in India." (The lawyers have also filed a separate motion to dismiss the case on more traditional grounds.)
Mayer Brown includes Herbert Zarov and other well regarded defense lawyers focused on toxic tort claims. Mr. Zarov and his colleagues recently published this DePaul Health Care Law Review article that sets out a defense perspective on the issues regarding medical monitoring claims in Illinois.
The outcome in Illinois will matter because Illinois holds an outsized role in the world of tort litigation in the United States. Why ? Two Illinois venues - Madison County and Cook County. Madison County is especially famous/infamous for processing hundreds of asbestos trial settings per year, a process loved by the plaintiff's bar because trial dates result in outcomes and payments.
So, where and when are US tort and securities judgments binding on persons who live outside the US, and why should does it matter? Let's start with the latter question - why does it matter. Suppose, for example, a US bankrupcty court purports to enter a global injunction that bars future asbestos claims that anyone in the world might hold against particular entities? Is that injunction really enforceable if challenged in other nations or even here? Or, suppose global res judicata issues arise because of securities claims involing stocks sold around the world to persons from many nations?
As usual, the answers are going to emerge first in securities claims because the amounts at issue in any one case are enough that squadrons of lawyers are deployed to argue the issues. Answers are starting to arrive and indeed one could say the pot is boiling in the world of securities and D & O litigation as lawyers ponder and argue about various current lawsuits.
For example, some wonder and argue about whether the U. S. Supreme Court will or or should consider a discretionary appeal from a 2d Circuit ruling on jurisdictional issues in the context of alleged global securities fraud. This AmLaw article by Andrew Longstreth presents the issues and links to the Justice Department's brief invited by the Court in the Morrison case. The government urged the Court NOT to take the case (one wonders how that will view will sit at the Court when considered in the light of Chief Justice Robert's expressed interest in building the legacy of his court by reaching out to decide business cases).
The topic also is addressed on the excellent D & O Diary blog by Kevin LaCroix, in a recent guest post (here) from a Cozen & O'Connor lawyer, who, presumably, represents insurance companies. Another example arises from the ongoing more or less global Vivendi securities fraud trial, which is covered in general here by Mr. LaCroix, with many helpful links to source documents, with links to undelrying rulings on the global class action issues. The Vivendi class action opinion is here, and provides a helpful discussion on what courts in overseas countries might have to say about the res judicata nature of a US judgment on the securities law issues in the context of a purported class action.
Conclusion ? Concrete answers will take many years to evolve. But plainly some of the judgments entered to date will never be enforced because overseas claimants were not given anything close to adequate notice or representation.
Here is defense lawyer Russell Jackson's post summarizing the ruling and providing a link to the opinion that he characterizes as dispensing with a need to prove physical symptoms or expert proof.
This late 2008 post from the Beck and Herrmann Drug and Device Law blog is a good jumping off point for researching or arguing the legal issues regarding informal contacts with physicians.
Here is an April 15, 2009 post on state and federal law on medical monitoring from the Beck and Herrmann blog on Drug and Device Law.
Here is a Corporate Counsel that provides an update on and links to documents regarding Toyota's issues with its former inside counsel who claims that documents were wrongfully destroyed regarding alleged defects in cars.
With a hat tip to Mondaq, this article from Proskauer summarizes a recent 2d Circuit ruling holding that forum selection clauses may be enforced against successor entities in the context of an entity 90% owned by the Argentine government. The case arises in the context of business to business litigation, but the same principles presumably will apply to consumer claims where a contract terms is interposed as a substantive defense or as controlling forum. That may be a mixed blessing for corporations as choosing one forum or law may actually foster class action claims because it will simplify otherwise extant issues regarding choice of law and/or forum.
The article's key excerpt explains the following:
"On October 23, 2009, the Second Circuit definitively ruled in Aguas Lenders Recovery Group LLC v. Suez, S.A (ALRG) that U.S. forum selection clauses are enforceable against successors in interest under ordinary principles of contract law - even when the successor is a non-U.S. entity. The opinion ( found here) clarifies this key legal issue, further strengthening predictability in international transactions. Applying ordinary successorship law to forum selection clauses prevents a defaulting successor from escaping liability on a jurisdictional theory when substance and jurisdiction were negotiated as one contractual package.
In ALRG, Proskauer represents the Plaintiff-Appellant in claims against an Argentine entity, AySA. ALRG sued AySA to recover on more than $125 million in loans made to Aguas Argentinas - a now-defunct Argentine entity that ran Buenos Aires' water and sewage system. ALRG alleges that AySA is Aguas' successor in interest. Among other things, ALRG alleges that AySA (owned 90% by the Argentine government) was specifically created to, and did, take over Aguas' contracts and operations after Aguas' shareholders opted to get out of their arrangement with Argentina and that, as part of that takeover, AySA received the physical assets that had been built, improved or acquired using money borrowed by Aguas, the accounts receivable, and assumed various of Aguas' employment and other contracts - yet shirked its obligations under Aguas' loan agreements (which were expressly binding on all successors). Proskauer filed claims against AySA (and others) in the Southern District of New York based, in part, on express forum selection clauses in the operative agreements."
Here is an interesting AmLaw post on the Korean government seeking to deregulate legal services and end restrictions on nonlawyers investing in and providing legal services. The key excerpts say:
"The Korean government is planning a major deregulation of the nation's legal and other professional services markets, the Korea Herald reports.
At a government meeting Tuesday, Finance Minister Yoon Jeung-hyun explained the move as a way to boost employment in the high-value services sector.
"The government will lower entry barriers to the professional service market to spur competition and to boost the size of the market," Yoon said.
A number of measures aimed at reducing regulation have been recommended to the government by the Korean Development Institute, a think tank. Perhaps most controversially, the KDI has proposed that non-lawyers and conglomerates be permitted to own stakes in law firms. The institute has also recommended an end to restrictions on lawyers, patent agents and certified public accountants practicing together."
You may recall this prior post regarding Spain's high court striking down a statute prohibiting contingent fees. A friend and Spanish law school instructor, Albert Azagra, was kind enough to to provide the following additional specifics on the ruling. I posed the questions and Albert provided the answers, with a caveat that he is not an expert on the issues and I edited a word here and there:
(1) Was the source of the restriction based on what American lawyers
would call legal ethics rules?
Yes. Section 16 of the Code of Professional Responsibility of the Spanish
Bar Association expressly banned contingency fees as the sole form of
compensation. It only allowed a fraction of the compensation to be linked
to the results and, in any event, the client had to pay at least the costs
of rendering the service. Note further that the rule prohibiting
contingency fees was also included in a national regulation governing
lawyers - albeit not an Act of Parliament- that had been upheld by the
Supreme Court some years ago. This makes the November decision even more
important.
(2) Did the court strike down the rule based on some "constitutional"
grounds or based on EU or Spanish laws on restrictions on competition.
The Court struck down the rule mainly on the grounds of Spanish competition
law.
(3) How wide an impact might we expect from this decision. (eg is this a precedent for all EU countries) and whether the outcome can be changed by, for example, an amendment to existing legislation?
Spanish statutes and case law are generally not very influential in other European countries. Actually, traditionally we copy the French and, to a lesser extent, the German, and the Italian. German and US law are becoming more and more influential.
Also, generally speaking, in the Civil Law tradition decisions by the courts of other Civil Law countries do not constitute precedent. Of course, EU courts and the European Court of Human Rights decisions are a different story.
Spanish Law Review and Blog
Albert also sent word this weekend about a website and blog that cover tort law issues in Spain, with the website including a section in English for some but not all of the papers. Here's what he explained, and the links:
"My research group is now launching a blog. It publishes brief analytical comments on bills, judgments, legal education and other topics. The blog is called Abogares (http://www.abogares.com/) and it is the blog of InDret (http://www.indret.com), our SSRN-listed electronic law review with more than 3,000 subscribers from around 30 countries. The law review has published 77 of its 708 articles entirely in English, and we expect the blog to have posts in English, too."
Albert is a great person and quite learned - you can find him on LinkedIn.
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