GlobalTort : Commentary from lawyers and experts on mass torts, law, insurance and science

Burford Capital, a litigation funding business, is back in the news, with success. Here is an AmLaw Daily article by Andrew Longstreth regarding the firm's apparent 40% share of a $ 110 million verdict. Here is Burford's latest press release with general data on it's overall portfolio results since it went public last fall on the AIM market. The company's shares trade as  BUR.

Note that the successes of the client and Burford are in part a function of being embraced by Wall Street law firms in general, and by a lawyer who often represents the insurance industry. Thus, a major New York law firm, Simpson Thacher,  was the law firm that introduced its client to Burford. Second, the AmLaw article attributes the introduction to one of Simpson Thacher 's senior partners, Barry Ostrager. Mr. Ostrager is very well known as a lead lawyer for the insurance industry.  According to the website at the firm:

"Mr. Ostrager has been prominently involved in supervising the firm's major insurance and reinsurance practices in both its New York and Los Angeles offices.  He has been lead trial counsel in more than a dozen major insurance coverage cases, including Shell Oil Co. v. Winterthur Swiss Insurance Company, a multi-billion dollar environmental insurance coverage dispute in which the jury returned a verdict for the insurers after a sixteen-month trial."

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For years, scientists involved in "toxic tort" cases focused mainly on the dose, and less so on the timing and volume of particular doses. Accordingly, toxic tort lawyers focused in the same places with respect to "exposure" to alleged toxins.However, the focus on overall dose can be misleading. Indeed, today, more and more science focuses on the timing of the dose, and the volume of a particular dose.

Consider, for example, DES given to pregnant mothers. The lesson learned from DES is that the adverse consequences of DES use were significantly worse when the drug was taken during the first trimester, as illustrated by this study of "DES sons."  

The same principle also applies to some medical treatments. Thus,ScienceDaily today brings an example from the treatment of lupus. For years, the standard of care was to provide intravenous steroids, followed by monthly high doses. Now, however, cellular level research is suggesting that the standard of care may we ll be wrong. Instead, the better treatment may be more frequent, high doses when the disease first appears. 

Why ? Apparently the higher, earlier doses do a better job of killing the cells causing the disease symptoms. Thus, the article explains:

"They found that pulse doses of intravenous steroids kill off the cells -- called plasmacytoid dendritic cells -- producing interferon alpha, a protein that promotes this inflammation. Oral corticosteroids given at much lower doses did not have this effect.

"Now we have the biological rationale for why pulsing is often more effective than standard therapy," said Dr. Tracey Wright, assistant professor of pediatrics at UT Southwestern and another study co-author."

 Conclusion?  Both lawyers  and scientists need to remember to test old assumptions and beliefs.

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A couple of observations on the Lehman bankruyptcy fees now that the case is back in the news as total professional fees approach $ 850 million, and Weil's fees edge just over $ 200 million. The fees rankle many because lawyers are being paid stunning hourly rates, such as over $ 1,000 for partners, and over $ 500 for young lawyers. Those numbers make no sense when much of it is for  work that's nothing more or less than complex commercial litigation that could be done by many of the thousands of really good commercial litigation lawyers in the United States. 

One observation is that the issues here are not new; the scale is simply bigger. Because this is not a new issue, critical thoughts and ideas are out there, and have been for some time. Indeed,  expert ideas and commentary readily available from Professor Lynn LoPucki and others. Consider, for example, the following information stated on Professor LoPucki’s website page at UCLA Law: 

“LoPucki has engaged in empirical research on large public company bankruptcies for the past twenty-five years and has been quoted in several hundred news articles on the topic in just the past five. His Bankruptcy Research Database http://lopucki.law.ucla.edu provides data for much, if not most, empirical work on the topic. LoPucki’s book, Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Courts (University of Michigan Press 2005) shocked the bankruptcy world with empirical evidence regarding the effects of forum shopping and court competition. The debate over those allegations has dominated recent scholarship in the field. LoPucki and his frequent coauthor, Joseph W. Doherty, are currently working on another book, Controlling Professional Fees in Corporate Bankruptcies, under contract with Oxford University Press.” (emphasis added).

Some defend the fees by saying the leaders of the estate are adding value, often by bringing lawsuits to recover money. What that really means is that the Lehman bankruptcy estate is the world's biggest litigation funder for litigation from one entity, and the US bankruptcy court system is the world’s biggest collection of litigation funders.. Unfortunately, the US Trustee's office and the judges apparently lack the resources or desire needed to manage the fees paid to bring lawsuits. So, in place, there is a bankruptcy cartel in which a few judges and lawyers take most of the big cases and work. That's possibly the least free market approach one could devise, except that it is at best problematic to see courts competing for cases. 

So, why not bring free market principles into play for doing the litigation? District judges overseeing class action cases innovated competitive bidding and selecting among competing legal representatives, as described here, and here, back in 2006. The Federalist Society was pushing the concept back in 2002. Also see this paper on awards to class representatives.

Bankruptcy courts can and should at least be demanding competitive bids for doing litigation, and perhaps even to represent the estate. Yes, some will argue that the debtor should get its choice of counsel, but ask: why? The business went badly enough that it cannot operate with government court help. What reason is there to think the current owners and managers will make a good choice on counsel?  

In sum, there are plenty of reasons why some say it's  well past time to end the bankruptcy court cartels created by a few firms and courts, with forum shopping as a big part of the equation. For more on the forum shopping and competition between courts, see Professor LoPucki’s book, Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Courts (University of Michigan Press 2005).  Hopefully the new book on controlling fees will be out soon !!

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Today’s post highlights an upcoming academic conference as it relates to the use of asbestos in developing nations. Perhaps some of you have answers or thoughts to contribute to the conference.

As is illustrated by the work of investigative reporters referred to in this post from Friday, it is plain that that companies in so-called “developing nations” are repeating asbestos-related public health failures that previously occurred in the United States, Europe and Australia. Any compassionate, thinking person has to ask why the mistakes are being repeated, and what can be done to chart a different course.

Plainly, one part of the answer is that people need work. Over the years, I heard  scores of former asbestos-workers acknowledge that they knew their were some hazards, but they went ahead and worked with asbestos despite knowing of “dangers.” Simply put, they needed the work to support their families. Much the same story no doubt will be told in future years in the many different languages of Russia, China and South America.

Consider also this prior post with the same kinds of statements from Russians working with mammoth tusks, and at risk from the tusks. They stayed with the work because it included extra pay for working with a hazard.

One would hope that that corporations and developing nations would do better than repeating past mistakes, but that does not appear to be happening. Accordingly, it was strangely coincidental to read this Conglomerate post that describes a relevant October 29 and 30 academic conference aimed at addressing some of those types of questions. The conference is at Emory University School of Law, and is  titled:   Vulnerability and the Corporation. The conference’s call for papers is here, with an August 15 deadline. The conference is sponsored by the Vulnerability and the Human Condition Initiative and The Feminism and Legal Theory Project.

One possible topic mentioned  for conference papers is directly relevant to the subjects highlighted by the reports on asbestos use and/or working with dusty mammoth tusks. That topic is:

“Regulatory responses to the vulnerabilities produced by corporations including, in particular, questions of worker welfare, protection and environmental justice.”

The conference website page describes the conference as follows:

“Vulnerability, understood as a universal and constant part of the human condition, is an important paradigm within which to consider and evaluate the ways in which states respond (or fail to respond) to individual, structural and community catastrophes. This workshop will build on the notion of a responsive state and consider the relationship between corporate structures, vulnerability, and state responsiveness. In the first instance, we recognize that increasingly corporations—whether operating on a local, national or transnational basis—act in ways that can either exacerbate or alleviate human vulnerability. Corporations can cause or complicate the inherent vulnerability of their employees and their dependents, as well as exploit the ecology and vulnerability of our natural and created environments. How should the state respond to this powerful potential for benefit or harm that is lodged in a “private” institutional actor? In addition, corporations may themselves be conceptualized as vulnerable entities. The corporation itself has been recognized as a “person” under the US Constitution, entitled to legal rights and protections and as a holder of human rights under the European Convention on Human Rights. How does the concept of corporate personhood differ from that of the natural person in law and what are the implications of those differences for state responsiveness and regulatory policy?”

The conference website also provides a range of possible topics. The complete list is:

The identification as corporations as rights-bearers and the implications of the disembodiment of rights protection;

The transfer of power from the state to the corporation and implications for individuals as citizens/consumers/subjects/objects of state-like power;

The implications of the conceptualisation of corporations as legal persons with standing;

Regulatory responses to the vulnerabilities produced by corporations including, in particular, questions of worker welfare, protection and environmental justice;

State, regional and international responses to perceived corporate and market vulnerability and the vulnerabilities that may emerge from such responses;

Distinctions between human vulnerability and corporate vulnerability and implications of such distinctions for appropriate state responses;

The potential for the Corporate Social Responsibility and Business and Human Rights movements to enhance theories of appropriate state and corporate responses to vulnerability;

Connections and disconnections between experiences of vulnerability by and of the corporation between the Global North and the Global South.

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Today continues the look at sources of  global information regarding the burgeoning industries using asbestos, and their connections to sovereign governments. Here's the story behind the story. The resources below are well worth a look and contemplation.

The Center for Public Integrity is the website host for a massive collection of information on the global asbestos trade, with a focus on Brazil, Canada, China, India, Mexico, Russia, and the United States.  That extensive cache of information was created through joint efforts described below in this quote from the CPI website:

"In the fall of 2009, the International Consortium of Investigative Journalists began looking into the global trade in asbestos, a cancer-causing fiber banned or restricted in much of the industrialized world but aggressively marketed in developing countries. What evolved was a nine-month investigation of an international lobby, much of it coordinated from Canada, which promotes the use of asbestos in construction materials and other products.

ICIJ joined with reporters and producers with the BBC's International News Services to document the asbestos industry’s activities in Brazil, Canada, China, India, Mexico, Russia, and the United States. Our investigation concluded that the industry has spent nearly $100 million since the mid-1980s to keep asbestos in commerce. The team’s reporting reveals close relationships among the industry, governments and scientists, and cites predictions from health experts that new epidemics of asbestos-related disease will emerge in the coming decades. Some experts believe that by 2030, asbestos will have taken as many as 10 million lives around the world.

Dangers in the Dust: Inside the Global Asbestos Trade is based on extensive research in eight countries. The team relied on thousands of pages of documents, including court filings, scientific studies, and financial records, as well as on interviews with health officials, industry representatives, scientists, victims, lawyers, and activists."

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Information popping up lately on the BBC and elsewhere indicates that evidence is being gathered today for tomorrow’s claims against the non-US entities that are increasing involved in using asbestos. One example is this July 21 BBC article and video presentation regarding asbestos use in Russia. Preceding days included features on asbestos use in China, and in India.

In general, the pictures and videos show that assertions about “safe use” practices for asbestos are in general assertions of myths and theories that have virtually nothing to do with reality. Some parts of these news stories no doubt will be end up as evidence for future claims against the entities and governments involved in the short-sighted decisions to ignore the realities of the specific risks involved in asbestos use. It is true that the white, serpentine types of chrysotile fibers are much, much less toxic than the amphibole blue (crocidolite) and brown (amosite) fibers. However, many (but not all) chrysotile  deposits include tremolite asbestos fibers that are essentially amphibole fibers. Therefore, the mined chrysotile fibers also include some small amount of tremolite fibers. Accordingly, it's not accurate or enough to argue simply that it's safe to use the white fibers. 

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Spain. As readers may recall, its Supreme Court last year approved the use of contingent fees, as described in this prior post.  More recently, asbestos litigation  took a new turn in Spain through last week’s judgment  in favor of persons living in relatively close proximity to an asbestos-cement factory that used and spewed out asbestos fibers.   According to this brief news article,  “Spanish construction materials firm Uralita was ordered to pay 3.9 million euros (4.9 million dollars) to 45 people who for decades lived near its factory in a Barcelona suburb, for "damage to the lungs, leading in some cases to death", according to the ruling obtained by AFP Wednesday.”  Thus, Spanish law now includes a recovery for a so-called “neighborhood exposure.”

More specifics on the proceedings are kindly provided by Albert Azagra, a Spanish lawyer and law school teacher with a long-standing interest in asbestos litigation. Set out below is the informative abstract for an article he’s writing on the judgment; the abstract includes a link to the opinion. The full article is expected to be published shortly in InDret. The abstract states:

“Recent developments mark a turning point in Spanish asbestos litigation. Aggregate litigation, non-occupational exposure, and pleural plaques are posing challenges familiar to lawyers and

scholars from other jurisdictions.

The Judgment of the 46th Trial Court of Madrid, July 5th 2010 (J. Javier Sánchez-Beltrán) is the latest example. A manufacturer of asbestos-cement products was found liable for injuring neighbors of a factory located in the province of Barcelona. The relevance of the judgment among reported decisions on asbestos litigation is, at least, six-fold: (i) environmentally-exposed victims are awarded damages for the first time; (ii) domestic exposure is considered to trigger liability for the second time; (iii) the award ranks among the highest so far: 3.918.594,64 €; (iv) the interests of as many as forty-seven neighbors -or their relatives- were at stake; (v) most of the neighbors were asymptomatic or suffered only minor injuries; (vi) the judgment was delivered by a civil court applying a three-year statute of limitation and combining negligence and strict liability criteria, while labor courts deciding on occupational exposure cases generally apply a one-year statute of limitation and a negligence rule.

This article comments on the judgment and analyzes practical and theoretical problems that may arise both from aggregate litigation and pleural plaques litigation. It also points out some likely consequences of having environmentally-exposed victims as plaintiffs in an increasing number of cases.”

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Here is an article reporting on  Los Angeles Superior Court Judge Victoria Chaney ruling on the contentious issues regarding a jury verdict involving six people who claimed to have suffered personal injuries from having worked at a Dole banana plantation in Nicaragua.  Judge Chaney overturned a jury verdict, and said she would issue a written opinion soon. The opinion probably will make for interesting reading.

The Dole situation illustrates the ways in which merits issues for "good" plaintiffs can be corrupted by the actions of "bad" plaintiffs.  The ongoing saga also illustrates the amount of spin that is endemic to major mass tort cases, and why detailed coverage and questions would help readers make better judgments. For example, in prior chapters in this saga, Dole sued a filmmaker in Europe for defamation, but  then dismissed the lawsuit after complaints by consumers and others.

The lawsuits arise from a situation that Dole created by using overseas a pesticide that was the subject of great concern in the US, and indeed was later banned in the US before Dole stopped using it in Nicarauga.  Dole defends use of the pesticide on the grounds that doing so was still "legal" in Nicaragua. Decisions that are "legal" may still constitute bad decisions that may result in liability for negligent or willful conduct, and so Dole appears to be hardly an innocent. The following excerpts from a prior post  link to an August 19, 2009 Wall Street Journal article by Steve Stecklow that provides an overview of why the issues exist at all. The facts reported by the WSJ do not paint a pretty picture of Dole, to say the least. But, a current reader about the "bad" plaintiffs might never know of those realities because the current article does not revisit the general factual setting. As per the WSJ:

" DBCP, short for dibromochloropropane, was widely used around the world in the 1960s and 1970s to control microscopic worms called nematodes that attack roots and destroy crops. "The first year after we used" the pesticide, "the bananas were huge," says Isaias Paz, who worked for years as a foreman on a Dole-operated banana plantation outside Chinandega.
In 1977, California health officials discovered that workers at a DBCP manufacturing plant there had become sterile. Another manufacturer, Dow Chemical Co., one of Dole's suppliers for Central America, stopped production and announced a recall.

Dole, which began using the pesticide in Nicaragua in 1973, had a contract to purchase DBCP for another two years. It threatened Dow with breach of contract for stopping deliveries, stating there was no evidence that plantation workers who apply DBCP had been rendered sterile, according to records in a lawsuit later filed by Dow against a Dole unit in Michigan circuit court. In 1978, Dow agreed to sell Dole some of its remaining stocks only after the fruit company agreed to hold Dow harmless from any injury claims.

In 1979, the U.S. Environmental Protection Agency banned DBCP in the U.S. for nearly all uses, including bananas, stating that "farm workers, pesticide applicators and the public at large...run varying degrees of risk of cancer, gene and chromosomal damage" and male infertility. Dole stopped using the pesticide in Nicaragua in 1980, according to Scott A. Edelman, a Dole attorney. The company's "use of the remaining stocks" of DBCP from 1978 to 1980 "was legal," he says."

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The litigation industry is full of spin and efforts to create headlines that influence outcomes. Many of the stories make it to press without much context or detail. So, it's interesting to see the inside documents behind the headlines.  To that end:

This link is to about 4 million  collected on-line documents regarding the tobacco industry.

This link is to an Overlawyered blog post that includes links to some of the documents related to Dickie Scruggs' conviction.

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The insurance industry continues to create new structures to complicate and limit the risks of paying defense or indemnity for third party tort claims. Thus, set out below is the text of this on-line press release from Continental/CNA this morning. The bottom line is that Continental/CNA is seeking to transfer the financial risk of its asbestos and environmental insurance obligations. The transferee will be Warren Buffet/Berkshire's  National Indemnity Company.

The transfer is to be accomplished through a new reinsurance contract that is said to be subject to a top end cap at $ 4 billion. If the transaction is concluded, Berkshire will then have an even more massive share of the asbestos litigation risk.

Berkshire previously took on similar but more massive risk for London insurance vehicle Equitas (today is known as Resolute) in a $ 7 billion deal, as is described here in general and here in some detail. Much of Berkshire's insurance risk acquisition took place after Buffet/Berkshire bought Johns-Manville through a deal announced back in 2000. 

Is this deal "good" or "bad." ? Many answers are possible, depending on one's perspective. The bottom line, however, is that the risk transfer deals are happening frequently, and most regulators, insureds and tort claimants are doing very little to scrutinize the deals in any material way. One might argue there are parallels to the failure of regulation for markets for CDOs and derivatives. Why ? Among other things, the deals are complex, and the results may  not be fully felt for many years. Then again, the results may come to roost sooner, depending on what happens in the litigation industry.

One should consider Warren Buffet's 2005 statements on why he loves insurance and how key it is to the Berkshire empire. The bottom line is that insurers love to take in premiums (money), and make more profits if they do not pay claims, or pay very slowly. Thus, as quoted in this Insurance Journal article,  Mr. Buffet said:

 ___________________________________________________________________________________________________________

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Perspective certainly matters when it comes to influencing the development of legal systems around the globe.

On one side, consider some of the arguments from "big oil."  Thus, In its blog and other writings attacking tort litigation and justice in Ecuador, Exxon Mobile has complained bitterly about efforts by plaintiff's lawyers to influence how tort law developed in that country.  Is that a legitimate complaint?

Some would say no. Why? All around us are efforts to influence how law develops in other countries and in the US. Consider, for example, today's NLJ article about "big business" testimony asking Congress to try to influence what China does with its nascent antitrust law. Thus, the article  states:

"But, they said, the U.S. government should act to influence how Chinese agencies implement the law. They suggested creating a high-level task force of U.S. antitrust officials and trying to help train Chinese regulators who are new to antitrust law. They also emphasized transparency, so that U.S. companies know why Chinese officials made their decisions."

One has to wonder what the record would show if plaintiff's lawyers were allowed to take full discovery on all of ExxonMobile's efforts to influence the development of laws around the world.

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Another day, and another company makes strategic use of chapter 11 to cleanse itself of tort claims, with these claims arising from asbestos litigation.  Today's company ? Circor's  Leslie Controls, a past maker of pumps used on Navy ships.  The WSJ article  is here, and the company's press release is here. Unlike the last two filings, this one is a prepack.

Once upon a time, law professors taught law students that tort law was a subject controlled by the states under the genius of the dual federal/state system. One certainly hopes they've amended their lectures to review and explain the federal bankruptcy court takeover of a significant portion of tort  claiming. 

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 This AmLaw article by Andrew Longstreth addresses a new opinion on privilege in the context of case with litigation-funding in place. The article is well worth reading for background, but seems to me a bit gloomier than is warranted as to the impact for litigation funding. The article also is amusing for the addition of a later comment offered by the US Chamber of Commerce, which is NOT  a fan of litigation-funding.

The opinion is an appeal from a ruling by a magistrate judge, so of course review was limited and deferential.  The district court opinion is here. I've not yet obtained the prior ruling, but will add it when possible.  The key exceprts on privilege are as follows, and indicate that Judge Farnan sees the law as open to development in this area:

 "Judge Stark noted that the state of the law regarding common interest is unsettled and that this case presented a close question. (Tr. at 65:24 66:3.) He then conducted a survey of cases demonstrating the differing views within the Third Circuit on "how common the supposed common interests have to be," and noted the apparent trend favoring Facebook's position. (Tr. at 66:4-68:5; 69:15-18.) Although Leader summarily contends that the Order was clearly erroneous because documents were exchanged after a common interest was created, Leader has made no argument, and the Court has no basis on which to conclude, that Judge Stark misapplied the relevant law. Moreover, Judge Stark took into consideration that Leader had the burden of establishing the exisstence of the privilege, and the numerous policy considerations, including the need for litigation financing companies and the truth-seeking function of litigation. (Tr. at 69:19-70:16.) Additionally, Judge Stark looked to ethical guidelines from both Pennsylvania and New Jersey suggesting that privilege  may be waived in a situation such as this. (Tr. at 70:17-71:22.) Aside from disagreeing with the outcome, Leader has failed to argue that there are any specific deficiencies or flaws in the ruling. In light of the thorough and well-reasoned analysis conducted by Judge Stark, the Court cannot conclude that the March 12, 2010 Order was clearly erroneous."

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Wow !  This article from the Howard Hughes Institute explains - and shows images from - new microscopes that can watch and record the evolution of life as cells begin dividing at moment one. This technology did not exist two years ago, but now it exists and works well.  Go here to see video of the process, and video generated from the process.

According to the article, this technology will soon be commercially available. Imagine the uses. One might be to compare the evolution of creatures with and without genetic damage. Who will need epidemiology if cause and effect can be osberved and recorded ?

Here are key excerpts:

"Using the new set-up, Keller’s team captured zebrafish development for 58 hours, generating a microscopy data set that comprises one million high-resolution images, as well as early development of a fly embryo. Reconstructing cell positions in the live fly recording by automated computer algorithms allowed the scientist to create a Digital Fly Embryo. It will be easy to implement the technique in other developing animals, he says, because the striped patterns can be adjusted during the experiments to get the maximum amount of information from the changing embryo.

Keller says that the technology will be commercially available soon, making it possible to get a systems-level understanding of how cells are behaving and interacting with each other and forming the various different tissues and organs in an organism. Multiple levels of molecular biology, such as genes and proteins, can be examined in real time in the context of the entire developing embryo."

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Public government corruption surely is one of the most venal of all misdeeds.   A weekend NYT article by Elisabeth Malkin covered in brief an interesting story regarding an innovative  UN project to root out public corruption and organized crime in Guatemala through a prosecution partnership known as CiCig. The program is detailed in full at the CiCig website. In short, the CiCig program brings in "outsider"  laywers to partner with existing government agencies to investigate and prosecute corruption.

The following excerpt from the website provides an overview: 

"CICIG's mandate, as established in the Agreement, is comprised of three principal objectives:

• First, CICIG shall investigate the existence of illicit security forces and clandestine security organizations that commit crimes that affect the fundamental human rights of the citizens of Guatemala, and identify the illegal group structures (including links between State officials and organized crime), activities, modes of operation and sources of financing.
• Second, CICIG's professional personnel shall support the work of Guatemalan institutions, principally the Attorney General in his work to investigate and prosecute the individuals involved in the illegal groups. Additionally, CICIG will make recommendations to the Government for the adoption of new public policies mechanisms and procedures directed at the eradication of these groups and will strengthen the State's capacity to protect the basic human rights of its citizens.
• Third, the Commission shall provide technical assistance to Justice Sector institutions in order to leave the Public Prosecutors Office and National Civilian Police better equipped to fight organized crime even after the conclusion of CICIG's mandate.

As provided in the Agreement, CICIG has the legal ability to support the Public Prosecutors Office in criminal prosecutions, and participate as complementary prosecutor (querellante adhesivo) in the prosecutorial process, in conformity with the Code of Criminal Procedure. The Commission also has legal standing to make administrative complaints against public officials, in particular when officials have committed acts with the purpose to obstruct the fulfillment of CICIG's mandate, and can act as an interested third party in disciplinary procedures initiated against such officials."

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Here's some information that has implications for the roles of futures representatives for class action. The subject in general is multigeneration effects of carcinogens. The context in this instance is tobacco. This summary from ScienceDaily brings word that another study confirms that second hand tobacco smoke exposure for a pregant woman causes genetic mutations in the fetus.  So, more phyical harm caused by tobacco, and it effects more than one generation.

The key paragragh states:

"In the current study, Dr. Grant confirmed smoke-induced mutation in another gene called glycophorin A, or GPA, that is representative of oncogenes -- genes that transform normal cells into cancer cells and cause solid tumors. The GPA mutation was the same level and type in newborns of mothers who were active smokers and of non-smoking mothers exposed to tobacco smoke. Likewise, the mutations were discernable in newborns of women who had stopped smoking during their pregnancies, but who did not actively avoid secondhand smoke."

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