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

Hope

Philosophers say it's essential. Respected universities now teach positive psychology, and papers suggest it works.

Where do humans find hope ? There are, of course, multiple sources, including the mystical. But for many, genuine hope flows primarily from science.  Hope is the possibility of finding less brutal treatments to  buy more time for cancer patients. Hope is the possibility of understanding genes, epigenomes and proteins. Hope is the possibility of understanding, or at least managing, the myriad diseases which inflict so much suffering.

The tight ties between science and hope are exemplified by Dr. Jonas Salk, certainly a legendary figure in science. Although he once was leaning towards law,  Dr. Salk changed course, moved into science, and then went on to drive the creation of the polio vaccine which bears his name. In addition, Dr. Salk joined with others (such as  Frances Crick of DNA fame), to found one of the world's great research institutes, The Salk Institute for Biological Studies.  On walking into this bastion of science, located in a minimalist and stunning complex on the Pacific seacoast, the eye is drawn to an inscribed message of hope. The message is one of Dr. Salk's more famous quotes.  The message from Dr. Salk to his fellow scientists ?

"Hope lies in dreams, in imagination and in the courage of those who dare to make dreams into reality."

Let''s hope that 2011 brings a much greater voice for science, and much less attention to the religious extremists who condemn others to death and suffering by prohibiting various forms of the science that is hope.  Let's hope our nation and the world actually provide ample funds and praise for the brave,  smart and compassionate souls who work in labs, hospitals and clinics to find answers, to blunt suffering, and to provide continued life.  And, let's hope we invest in the  economic reality that  science and hope can and do create new industries and jobs.   

Is there reason for real hope that that 2011 will bring a greater voice for science ? Yes.  Increasingly, scientists are explicitly calling for speaking out on matters of science and policy. Examples? Consider this Nature editorial  which named scientist  Jane Lubchenco as Newsmaker of the Year for her role in bringing science to bear on the Gulf oil rig fiasco. Here are key excerpts:

"The United States could do with more scientists like Lubchenco, with the skills and the dedication to speak out on issues that matter. The need will be particularly acute next year, when the Republican Party takes over the US House of Representatives. Although Republicans have generally supported basic science, incoming House leaders have made it clear that they are hostile to certain areas of research. Some have pledged to hold hearings on climate science, which they argue is seriously flawed and has overstated the evidence for global warming. Adrian Smith (Republican, Nebraska) introduced the YouCut Citizen Review, which calls on the US public to search the National Science Foundation website list of peer-reviewed grants for those they consider wasteful. And Darrell Issa (Republican, California), the incoming head of the powerful Committee on Oversight and Government Reform, last year led an effort to revoke funding from the National Institutes of Health for studies of substance abuse and HIV risk in other countries (see Nature 460, 667; 2009).

Scientific leaders in the United States must stand up against such attacks. As a first step, they should try to meet with incoming House members from both parties to voice their concerns and explain the rationale behind research in controversial areas. Recognizing that all politics is local, scientists will need to make clear why climate change or HIV research matters for the communities represented by members of Congress. They should take along science-savvy business leaders and locally elected officials to help make their case.

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Best wishes to all for a New Year of peace, joy, love and hope !

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When I'm outside the US and involved in political discussions, a frequent question/comment revolves around the way US voters elect  state court judges, and why the process is so polarized these days. I'm of course unable to explain exactly how we ended up as we are today. 

It is easier, however, to highlight examples of right-wing extremism at work on state court judges. Here's a new one on the efforts of right-wing extremists to raise money to try to force out more justices from the Iowa Supreme Court. They may also try having a few new zealot legislators hold "hearings" on the issues perceived by the right-wingers.  They will fail, but the effort exemplifies the extremism and why lawyers must have a thick hide in order to decide to become state court judges. 

One wonders how many good potential judges now refuse to even consider becoming a state court  judge. It's surely a large number.

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The Economist recently teed off on the foolishness of trying to suppress embryonic stem cell research. Such a shame that church and conservative "leaders" can't figure out that their  vague abstractions are sentencing people to deaths and misery that perhaps could  be made avoidable.  

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Like other EU countries, Spain is implementing a wider range of criminal sanctions for corporate misdeeds, including "environmental" crimes.  This NLJ article provides a broad overview.  For some deeper background, see this 2002  Maastricht summary of criminal law in Europe with respect  to environmental issues. Environmental justice also is a growing topic for legal education, as described here. The T.M.C. Asser  Institute includes this network focused on environmental law. Given the sometimes enormous consequences of pollution, it''s good to see more countries creating risk and sanctions for companies that fail to act responsibly.  

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Nature compiled this series of great images from science in 2010. My favorite, of course, is a photo of the Hartley 2 comet which streaked the Milky Way this past year, as described by Wikipedia.

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Epigenetics.

What is it? It's a part of science which is going to matter to tort lawyers. In short, it's what we presently label as the control system which can alter the instructions programmed into our genes. 

Why does it matter? Because alterations to the epigenome can alter the behavior of the genome, producing, for example, extreme changes (e.g. cancers; see this Nature article on melanomas) and more subtle changes (coloration; obesity). Of significance, the alterations are at least sometimes marked and observable at the cellular level. Imagine what these markers can do for toxic tort litigation and insurance coverage issues.

The changes wrought by epigenomic changes may be multi-generational. Examples ?  Consider  this December 2010 Nature article by Farooq Ahmed which describes in lay terms how starvation of parents appears to have altered genomes for their children.  Or take a look at this Nature article by Anna Petherick on how the contents of breast milk in mammals differ throughout nursing.  Or this Nature article on the emerging science of "nutrigenomics." For something much darker, note this Time article on research suggesting that the stresses induced by the Nazi have caused genetic changes in children of the parents who were tortured. 

For more on epignetics in general,  this Time article from late 2009 marked the first wide mapping of a part of the human epigenome by Salk Lab scientists, as reported here in Nature. Or, enjoy this January 2010 John Cloud article in Time,  titled  Why Your DNA Isn't Your Destiny. The article includes helpful illustrations.

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The latest article in Amy Harmon's continuing NYT series on cancer research is a wrenching article she titles:   Enlisting the Dying for Clues to Save Others.  The article focuses on doctors using tumor tissue samples to test theories on why cancer relapses occur. The article deserves reading for many reasons. One is to understand the promising science. Another reason is to understand that science sometimes is being stymied by the absence of funding for expenses as littile as $5,000 for a tumor biopsy. 

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Merry Christmas

Best wishes for all to receive the  the gifts of good health, peace, joy, love and hope !! 

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This WSJ Deal Blog article provides an insightful account of Bank of America buying up predictable web site names that could be used to vilify various officers and senior executives. One assumes this recent flurry of activity implicitly confirms that Wikileaks will indeed be releasing  Bank of America documents which may further expose various misdeeds at the bank. 

The names being purchased are not hard to imagine.  For example:

[boardmembername]sucks.com

The point ? Bad press matters. Winning litigation wars requires significant attention to media.    And, there are many consultants who can help any side win the war.

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The tobacco wars have moved another couple of  steps. A new AmLaw article by Susan Beck covers 1) a Florida appellate court affirming a $ 28 million plaintiff's verdict, and 2) a  $ 152 million verdict in Massachusetts in a lung cancer death case pushed by the Tobacco Litigation Project at Northeastern Law School. The AmLaw article includes various helpful links, including a link to a sister publication which televised the trial.

One wonders about future spinoff products from a televised trial.  Perhaps YouTube segments will follow ?  

One other thought to consider.  Should the Tobacco Litigation Project be considered a positive example of  "litigation funding" ?

As to the new verdict, here are key excerpts from Ms. Beck's article:

The Evans verdict appears to be largest  compensatory verdict ever in a individual smoking case. It's also notable because it occurred in Massachusetts, which, in contrast to Florida, is not exactly a hotbed of smoking litigation. In fact, according to plaintiffs lawyer Frisardi, this is the first tobacco plaintiffs verdict in Massachusetts and just the second smokers case to go to trial in the state. Frisardi stressed that this jury found that cigarettes were unreasonably defective. "That's an important milestone," he said.

Marie Evans, who died at age 54, claimed she was lured into a smoking habit when she was 13, after accepting free cigarettes handed out in the largely African American community of Roxbury. Under Massachusetts law, the plaintiffs were not allowed to ask for a specific amount of damages. The $71 compensatory award consists of $21 million for her son for the loss of companionship of his mother, and $50 million to Ms. Evans's estate for her pain and suffering.

Professor Philip Howard of Northeastern University School of Law, who worked on the plaintiffs legal team, told the Litigation Daily that this verdict is strategically important in the fight against the tobacco industry. "We brought this case in Massachusetts to establish additional fronts for tobacco to defend on," Howard told us. "This is an effort to light a fire in another region of the country." (Northeastern Law School is the home of the Tobacco Products Liability Project, which assists tobacco litigation around the country.)
 

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Nature is the source for this new article reporting success in turning stem cells into small, three dimensional structures much like the basics of human intestinal tissues. To get to that point, the researchers used various growth factors believed to be involved in signaling inside human cells. ScienceDaily has the story here.

Hard to believe some people still oppose unlimited stem cell research.  

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Big law now sees global  tort litigation as a big deal. For example, Gibson Dunn just issued a press release touting its global tort work for Dole and Enron.  In a similar vein, Shook Hardy has been working and marketing in that space for some time by leveraging its US-based tobacco defense work into global work defendant tobacco litigation.  Orrick likewise is marketing its global mass tort defense skills. Hat tip to Law.com for the  this article  highlighting Gibson Dunn's press release.  

Gibson Dunn's press release is set out below, and is notable for its effort to create an impression of widespread fraud in claiming. This approach mirrors the insurance industry's efforts to create an impression that fraud dominates claiming.  Certainly there has been fraud in claiming, and it should be blocked. But, focusing on fraud also is part of a macro insurance industry effort  to avoid paying meritorious claims, and to reduce claim payment amounts, as is detailed in a great book, Delay, Deny, Defend.  And, now, the Gibson Dunn press release highlights some repeat defendants adopting a similar macro strategy of creating an impression of widespread fraud.

 It's fascinating to watch the evolution of the global litigation industry.   

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Susan Beck from AmLaw reports here on the ABA creating a working group to look at litigation funding. The ABA announcement is here. Comments are due by February 15, 2011.

The ABA paper presents a sensible set of issues and ethical concerns. For example, consider this Delaware ruling on privilege in the context of litigation funding. 

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How is North Dakota like Turkey ? Both areas include a mineral known as erionite. That's noteworthy because certain Turkish villages are known as "cancer villages" because so many residents die from the vicious cancer known as mesothelioma.  Mesothelioma cancers are often - but not always - attributable to inhalation of amphibole-type asbestos fibers. This article from Nature News reports on brand new studies finding that North Dakota's erionite is much like the erionite found in the Turkish villages, and "environmental exposures" likely are occuring. So, far, however, no one has found clusters of disease

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The holidays are here. For too many children, the days and nights will be spent in hospital beds while their bodies, their families and their doctors try to stave off or control leukemias, lymphomas and other cancers.  Their journey is daunting. Go here to read about how some cope through Beads of Courage.  The gist? Set out below  is the synopsis provided by Dr. Wendy Harpham, a doctor, blogger and long-time cancer survivor who writes brief but powerful  posts On Healthy Survivorship.

"Children make bead necklaces, where each bead represents one challenge they've overcome. So, for example, a white bead represents a chemo treatment and a red bead a transfusion. Children have beads for losing their hair, having surgery, undergoing bone-marrow biopsies, and so on."

If you have the courage, go here to see a 7 minute video of the children who earn Beads of Courage. Moved? You can click here to join the Leukemia and Lymphoma Society in asking Congress to increase funding for cancer research. Today, the National Cancer Institute's budget is $ 5 billion.  That's less than 1% of the over  well over  $ 600 billion the US  annually spends on defense even though cancer kills far more people than do wars. In fact, cancer kills 500,000 Americans each year.

Click here to read the great science the NCI would like to invest in with an addtional $ 2 billion. What better investments are possible when children are dying, and we as a society need to greatly reduce the human and financial costs of cancer? 

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It's back to Australia. There, an important new appellate court opinion affirms a verdict for a brake mechanic who won a trial court judgment that his mesothelioma was caused by inhalation of chrysotile asbestos fibers from automotive brake linings.  A popular press article is here regarding the plaintiff, John Booth. The appellate opinion is here. The trial court opinion is here.

The appellate court opinion is noteworthy in multiple ways, and not all are covered here. Of note to me, the US Supreme Court's Daubert opinion was acknowledged as interesting, but was not followed. Second, the Court rejected defendants demand for epidemiological proof. Third, it reached the obvious - but not always stated - conclusion that  tort damages may be awarded when scientists can explain some - but not all parts  - of exactly how a disease is caused. 

Key passages are set out below; the Australian system of numbering paragraphs makes it easy to find the quoted sections.

62 The objection must ultimately be resolved by reference to the contention that Professor Henderson failed to engage with the epidemiological evidence said to demonstrate that there was no causal link between exposure to asbestos in the course of undertaking brake repairs and mesothelioma. That proposition, however, fails at two levels. First, it fails because it assumed that epidemiological evidence is both relevant and dispositive of, or at least superior to, other evidence of causation. Secondly, it fails because Professor Henderson did not disregard the epidemiology.

63 The role of epidemiology in causation inquiries was explained by Spigelman CJ in Seltsam Pty Ltd v McGuiness at [93] in the following terms:

“With respect to many diseases, medical science is able to give clear and direct evidence of a causal relationship between a particular act or omission and a specific injury or disease. There are, however, fields of inquiry where medical science is not able to give evidence of that character. There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility. Epidemiological evidence may be able to fill the gap. It is of particular potential utility in the field of what is often referred to as ‘toxic torts’, especially in case of diseases with long latency periods.”

64 Professor Henderson’s evidence in terms supported a causal relationship; accordingly, the epidemiological evidence was not essential or dispositive. (emphasis added).

 The opinion also includes a notable,  brief discussion of whether it matters that science cannot yet explain every part of the biological process that results in the cancer.  The Court emphatically said "no," and explained the holding as follows:

116 It is convenient to deal first with the challenge to the “biological process” evidence. The appellants submitted that such evidence was “incapable” of supporting a finding in favour of the respondent, for three reasons. First, it was said that the biological processes remain “incompletely understood”. That assessment of scientific understanding may be accepted; but it takes the appellants nowhere. The civil standard of proof, on the balance of probabilities, permits a yawning gap between complete understanding and sufficient understanding. There may be an even greater gap between that which is “capable” of supporting a finding on the balance of probabilities and that which the appellants would accept “does” support such a finding. The submission misconceives the nature of the proceedings. (emphasis added).

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The expansion of the Madoff litigation is big news these days. Go here for an AmLaw summary, and here for the NYT's coverage of the biggest claim yet; $ 19.6 billion against an Austrian who allegedly aided and abetted the ponzi scheme.   No doubt the news will become even louder when complaints are, hopefully, unsealed. One hopes the claims go well, and discourage future aiders and abetters who decide to look the other way.  

Some might say the litigation is a product of litigation funding. Why ? The litigation is being paid for by government funds and fee requests are overseen by the bankruptcy court.  The funding source is the Securities Investor Protection Corporation.

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A respected medical journal, Lancet, has joined those pressuring Canada to stop exporting asbestos fibers to the world.  The article is here. It's good to see scientists speak out, and the media listening, as illustrated by this article. Litigation can obtain payments for harm, but it often takes knowledge, media and public pressure to achieve real change. Hopefully media pays attention and learns to ask better questions on science and business issues.

 One can wonder if governments should be deemed amenable to lawsuits when they support sales of  potentially dangerous products ?  Will we see more global rules of law for these situations? Globalization is bringing many changes and many new issues.

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This past week, asbestos bankruptcies received some discussion in an academic setting. George Mason University's Law and Economics center on Monday held its 5th Annual Judicial Symposium on Civil Justice Issues. The panels included respected judges, and influential lawyers from the plaintiff's side, the corporate/defense side, and the insurance side.The full agenda is here, and includes other interesting topics and speakers.

Asbestos bankruptcies were discussed by a panel of four. Judge Mark Davidson was the jurist.  Lloyd Dixon of RAND was one of the panel members. Lloyd is the lead author for RAND's ongoing study of asbestos bankruptcies.  Jim Stengel of Orrick spoke for the corporate/defense side.  For plaintiffs, Nathan Finch took the place of his former partner, Elihu Inselbuch. This past year, Nate left Caplin Drysdale to become a partner in Motley Rice. 

I'm told the discussion was great, and that the conference was recorded and will be put online at some point.

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Here's an article from a defense-oriented publication regarding Judge Daniel Stack retiring and being nominated to become a Trustee of the Flinkote asbestos bankruptcy trust. Judge Stack is perhaps better known generically as the Madison County "asbestos judge" who in 2004 took over the docket from Judge Bryon. According to the article, some person or entity has objected to the nomination. Certainly, different people will have different spins on the particular subject of Judge Stack's nomination.

One could think the larger picture issue should be a discussion of the who, how and why of selecting Trustees for bankruptcy trusts. These jobs are important. Why? The asbestos trusts are collectively administering  over $ 20 billion of capital to be paid out over decades ahead  - that's a lot of money in most anyone's book.  To date, however, the appointment of trustees has in general been controlled by a small group of lawyers, and then approved by a limited number of judges. See generally the 2010 RAND asbestos bankruptcy study referenced in this prior post, and available here from RAND  for free online reading or downloading.  It seems hard to swallow the notion that a small club should effectively control so much, with no meaningful benchmarks or criteria as to how/why particular persons should be or are chosen to become trustees, and with so little transparency into trust actions.

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This Mayer Brown Global Insurance bulletin includes an interesting but disturbing section on insurance insolvencies and swaps.  The gist is that some states are enacting statutes which in essence give some financial creditors a preferred position ahead of insureds when an insurer becomes insolvent. The preference is granted via statues which give legal effect to set-off provisions  in financial swap contracts.  AIG, of course, is infamous for almost collapsing under the burden of credit default swaps it wrote.

No doubt the financial industry offers plenty of rationales for why they should be so favored. Unfortunately, a resulting reality is that preferred positions and specialized treatments tend to leave policyholders unpaid. The ongoing AMBAC insolvency, described in this post, is an example of certain assets and liabilities receiving specialized treatment, arguably to the detriment of policyholders in general.  Policyholders are thus being disfavored by state legislatures.  In essence, the offsets create a new class of almost secured creditors, but policyholders are not given notice of or compensation for the taking of their rights. A cynic might argue that due process and takings clauses are being ignored when it comes to policyholder rights and insurance. 

Hat tip to Lexology for broadcasting this news of the subpart of the bulletin.

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Yesterday's Sunday NYT included this front page article by Binyamin Appelbaum. The article  presents the latest chapter in an ongoing series on litigation funding. This article focuses on litigation funding in divorce cases.

A sidebar note explains:

"Articles in this series — which is a collaboration between the Center for Public Integrity, a nonprofit journalism group in Washington, and The Times — are looking at the growing practice of investing in lawsuits." 

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Human rights law continues to expand,  and is an increasing part of international tort claiming.    Set out below are the lead in paragraphs from a new post at a Foley Hoag blog known as Corporate Social Responsibility and the Law.  The entire post is quite helpful, and includes other related links.

The U.N. Special Representative for Business and Human Rights, John Ruggie, has released the long-awaited draft of his final report, the Guiding Principles for the Implementation of the United Nations "Protect, Respect and Remedy’" Framework (.pdf).  The Guiding Principles are the culmination of the Special Representative’s mandate, which began in 2005, and which will conclude when the final report is delivered to the U.N. Human Rights Council in June 2011.  The draft is open for public comment until January 31, 2011.

 The Guiding Principles build on the Special Representative’s previous reports and are organized around the three-pillar “Protect, Respect and Remedy” policy framework first set forth in his 2008 report (.pdf).  Under this framework:

• States have a duty to protect against human rights abuses by third parties, including companies;
• Companies have a responsibility to respect human rights; and
• Victims of human rights abuses must have access to effective remedies.

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 The power of widely shared information has been very much in the news this week thanks to the Manning/WikiLeak' disclosures of US government documents.  So, this seems like a good time for a new example of how much  it matters that today's scientific tools and  computers generate incredible amounts of information  which can can be shared globally in a virtual instant in open access databases filled with tens of millions of datapoints generated from locations around the world.  Here's what some scientists said with respect to recent discoveries described in this website release, which is summarized here in ScienceDaily:

"These discoveries were only possible thanks to the collaboration of a large team of scientists with expertise in different disciplines from around the world," emphasizes Dr. Melnick, "and thanks to an unusual alliance between multicenter clinical trials groups from Europe and the United States. This spirit of cooperation allowed for the collection and analysis of the massive genomic datasets required for these discoveries to be made. Working together, it will be possible to accelerate the pace of discovery and development of better treatments."

How did they make the discoveries ?

"The large-scale, international, collaborative research effort scrutinized the genomes of 750 AML patients from the United States and Europe for chemical clues to better understand how leukemia arises from normal bone marrow cells. Using computational tools to sift through millions of data points, they discovered a unique chemical signature in the genomes of patients with mutations in either of two enzymes called IDH1 and IDH2, which occur frequently in AML."

What was discovered by this global group of doctors and researchers from prestigious universities, and authors of this article in the heavyweight journal, Cancer Cell ?    An unexpected  new insight into casuation for one of the many vicious leukemias that kill tens of thousands of people every year, when counted on a global scale. And, the insight likely applies to other types of cancer.

NEW YORK (Dec. 2, 2010) — There is new hope for people with acute myelogenous leukemia (AML), a fast-growing cancer of the blood and bone marrow. Research led by Weill Cornell Medical College and published today in the online edition of the journal Cancer Cell reveals a surprising and unexpected cancer-causing mechanism. The investigators discovered that newly identified mutant enzymes in AML create a chemical poison to cause leukemia. Their findings should prove useful in treating patients by providing a molecular target against which to develop new drugs against one subset of AML as well as other cancers.

What is the signficance of the finding ?  It proves that the our genetic variations are subject to profound further epigenetic differences created, at least often, by environmental sources. Click here for the full scientific summary of the signficance of the study.

How much does environment matter? It's huge, at least in some cases.  Proof ? Read this summary of an elegantly simple but powerful experiment in which varying environments lead to to  widely different outcomes for a simple yeast with four main genetic variations.

And, to close, what did they do with the paper and the data. The paper is sitting on the web here, widely and freely accessible. And, the article materials include this link  to help others find and use all the data  in this free online resource. 

The value of setting information free for sharing ? Beyond measure, and growing every day.

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Updated with link and opening comments in bold

Click here to read James Stengel's great paper, described below:  Litigating in the Field of Dreams: Asbestos Cases in Madison County, Illinois.

Jim's paper is a " must read" for any lawyer or expert  interested in the actual working of the mass tort system. The paper is especially valuable for highlighting the pervasive power of one outlier jurisdiction when its judges choose to operate outside existing legal rules.  For a strikingly similar example of the problem of extreme outlier jurisdictions and judges who went out of control, consider the awful results which have flowed from the Delaware bankruptcy courts creating their own field of dreams for Wall Street and Delaware businesses and lawyers. For the short story, see this prior post, but the much better course is to invest the time to read   Professor Lynn LoPucki's  2005 book:  Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts. 

Now that I've seen the full paper, I want to note that Jim's full article explicitly notes that the reality of Madison County going out of control was aided and abetted by  "short-sighted" thinking on the defense side.  That's a subject I covered below when I'd not yet seen the entire paper, and so could write only as to press excerpts. 

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Madison County courts are back in the news in litigation industry media as the national forum of choice for processing mesothelioma cancer claims. The numbers make it plain that Madison County is indeed the national claims processing venue of choice for mesothelioma claims.

Why is Madison County so popular ? The first answer is:  trial dates. 400 or 500 hundred every year. Enough trial dates to resolve 1/6 to 1/4 of the national number of mesothelioma claims brought each year.

A  second answer as to why Madison  County is so busy is that many defendants and insurers fail to actively oust claims that have absolutely no basis for venue in Illinois, much less Madison County. The implicit message ? The defendants and/or their insurers  are, apparently, at least roughly satisfied with Madison County as a nation forum for processing mesothelioma claims.   

The numbers ?  According to this article quoting Madison County's Chief Judge, Ann Callis, the numbers are as follows. Note especially the abundance of 520  trial dates. Trial dates are the key factor in causing cases to resolve. 

"Last year there were 814 asbestos cases filed in Madison County. In 2008, there were 639; in 2007 there were 455 and in 2006 there were 325. In 2003, cases peaked at 953.

The number of asbestos trial slots have also have been increasing. In 2009, there were 424 trial slots scheduled; in 2010, 490; and in 2011, there are 520 scheduled.

Callis said that as of Oct. 27, there have been 650 asbestos cases filed year to date in Madison County.

"This number is a significant trend downward from last year," she said.

Callis pointed out that there are approximately 100,000 cases filed in Madison County per year.
A  defense view of these numbers?  One view was presented at a US Chamber of Commerce gathering. The view was articulated by an excellent and experienced corporate-side trial lawyer, Jim Stengel of Orrick. His paper is titled: "Litigating in the Field of Dreams: Asbestos Cases in Madison County, Ill."   Jim's presentation was covered here by media  indirectly owned in part by the Chamber of Commerce. Some key quotes are as follows: 

"They [the numbers] speak volumes as to how tort litigation is conducted these days," Stengel said.

At the beginning of the century, a series of jury awards helped Madison County become a favorite target for plaintiffs lawyers, Stengel said. In 2000, a single plaintiff was awarded $34.1 million, and a husband and wife were awarded $16 million in 2001.

Two years later, a single plaintiff who alleged he was exposed to asbestos while working in Indiana was awarded $250 million, including $200 million in punitives.

"Judges in Madison County are elected, and the plaintiffs' trial bar was a reliable source of contributions for favored trial judges," Stengel wrote.

"There was obvious economic interest on the part of the plaintiffs bar which would derive a substantial benefit from locating this litigation in Madison County."

Even defense attorneys benefited from the increased amount of lawsuits, which provided a steady stream of work, Stengel says.

The Madison County Circuit Court adopted procedures to process asbestos claims faster than other jurisdictions, and the court presides over one-sixth of the mesothelioma deaths in America.

Stengel says the number of lawsuits being filed is increasing after a dip in the middle of the decade. There were 424 trial slots scheduled for 2009, 490 scheduled in 2010 and 520 scheduled for next year.

Out-of-state law firms can collect clients, then pass them on to local counsel and earn a referral fee or participate in a fee-splitting agreement, Stengel said. He called it a "hybrid structure as to who harvests these claims."

"After a false dawn in the mid-2000s, the county has continued along the path of a magnet or clearinghouse jurisdiction, adopting and maintaining procedural, and in some cases substantive, rules which attract large numbers of cases to the jurisdiction to the benefit of select local plaintiffs counsel and to the detriment of fairness and the due process right of defendants forced to litigate there," Stengel wrote.

Mr. Stengel's comments are right on the money in terms of  the modern litigation industry practices regarding how claims are harvested and how fees are shared between plaintiff's firms. The quotes, however,  miss my  point. That point is that  some insurers and defendants are complicit in allowing Madison County to take on the role it holds today. Why are they complicit ?  They failed  to push back fast enough or effectively enough when Madison County started attracting many mesothelioma claims.  

Why did insurers and defendants  fail to push back quickly or effectively? Three big causes are lack of a big picture view, lack of a long term view, and wishful thinking (" we are only a peripheral defendant - someone else will take care of that problem"). Other causes include laziness and aversion to creative thinking and risk taking. Defendants and insurers also were driven by short term budget constraints,  and fears that "rocking the boat" would cause of short term reprisals from plaintiff's firms, which can and have targeted  particular defendants when they  caused too many waves. (The answer for defendants of course was to be ready for being targeted, to stay the course, and to win, but all of that takes ample amounts of money, creativity, and courage).  All of the factors are still at work today as new generations of asbestos defendants and insurers move into becoming players.   

The overall result ? There was enough time and money to create and use the the field of dreams.  

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Asbestos litigation in Japan continues to grow. On December 1, 2010,  Honda lost in a mesothelioma claim,  and was ordered to pay 54 million yen in compensation, which is about $ 650,000. A Japan Today article reporting the judgment  is here, and is pasted below.

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A  new lawsuit filed by Greenpeace provides the latest example of the extreme and illegal measures used by some (but far from all) companies which are trying  to control media, spin and public attitudes on  matters  of public interest. For a prior example, recall Hewlett-Packard's widely reported illegal spying activities.  The subject also has spawned recent books. See Broker, Trader, Lawyer, Spy: The Secret World of Corporate Espionage, by Eamon Javers.  I've not read it, but it received this supportive review from John Fialka, a former Wall Street Journal reporter who wrote his own  1997 book on economic espionage. Consider also this professional science journal article by Ruth Malone on the tactics used by the tobacco industry to monitor public health groups. Much of the tobacco information came to light through the tobacco lawsuits, as described here in a story on a faux science writer created by the tobacco industry.

The latest example arises from media arguments and litigation related to sale and use of "toxic" chemicals. The story is in the news because Greenpeace this week filed a RICO complaint in federal court alleging that its offices, dumpsters, cell phones and computers were invaded by human and digital spies. The spies?  According to the complaint, they were investigators hired by public relations firms working for and paid by chemical giant Dow, and a vinyl chloride maker, Sasol.  The "Green" blog from the NYT covers the  Greenpeace story in a detailed post by John Collins Rudolf.  The post includes links to various helpful resources, including the complaint filed by Greenpeace and a prior story from Mother Jones on the skullduggery against Greenpeace

HP settled with the New York Times and various individuals without litigation. My bet is that Greenpeace will not settle lightly since the lawsuit itself provides a means to investigate the scope of the activities Dow directed against Greenpeace, and apparently other groups.

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