This BBC article reports on damages recently awarded in a mesothelioma death case in Scotland involving a 66 year old man who worked for a construction company in an unspecified job. The articles sets out the damages awards as follows:

"Following expert medical evidence Lord Doherty said he proceeded on the basis that, but for the condition, Mr Wolff could have expected to live for another 17 years.

Mrs Wolff sued both as an individual and as executor following the death of her husband. The judge granted her a total award of £258,520, including £65,000 for the suffering of Mr Wolff - who had experienced "exceptional pain".

The judge also awarded damages to the couple's three daughters totalling £52,317. The couple's granddaughter was awarded £7,084.

Claims made by other family members have already been settled."

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In Egypt, asbestos is in the news for increasing cancer rates and concern that a ban on asbestos use is being ignored. 

In Thailand, asbestos is in the news due to concern regarding whether there is adequate enforcement of a ban on asbestos use.

In Korea, asbestos is in the news due to its presence in the grounds of professional baseball fields. Apparently closed asbestos mines are now being used to generate rock used for commercial installations. 

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The litigation industry includes myriad lawsuits regarding alleged misdealing by various financial houses with respect to the issuance of auction rate securities. This article from AmLaw Litigation Daily includes quotes indicating that plaintiff's counsel prefer FInancial Industry  Regulatory Authority arbitrations over lawsuits because in the arbitrations, evidence is quickly put on the table and motions to dismiss are not the endgame. Specifically, the article states:

"WVUH's lead lawyer, Jim Swanson of Fishman Haygood Phelps Walmsley Willis & Swanson, has been involved in ARS cases against JPMorgan Securities and Merrill Lynch, and he said that both of those institutions also tried to avoid FINRA arbitration (his side prevailed in Manhattan federal district court against JPMorgan, but didn't fare so well against Merrill Lynch). Swanson said arbitration is advantageous for issuers because it forces the parties to put their evidence on the table quickly. "You don't resolve arbitration on motions to dismiss," said Swanson. "From my perspective, when you get the entire context of what was going on in this market, it makes for a compelling case from the municipality side. They were really badly injured by this product."

The  comment highlights the reality that numerous lawsuits have stalled or failed because federal courts moved away from the usual pleading rule of Conley v. Gibson (allegations are assumed to be true) and moved instead to the heightened pleading standard set out in Iqbal and Twombly. Go here for a scholarly but brief discussion of the changes and their consequences. 

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Good, bad, or otherwise, it's a fact of life that there is significant business in marketing views on both sides of the litigation industry.

Today, for example, Google popped up a new example mesothelioma litigation for victims. It's a  recent example of Internet-based marketing tied to people trying to make their way into outdoor camera range for the "Today Show" in conjunction with "Mesothelioma Awareness Day."  

Then, on the other side, Google also popped up this article on a "pro-business" group paying $ 70k for ads in Louisiana to tout imposing unstated limits on civil lawsuits. 

For many years, plaintiff's lawyer Joe Rice has astutely and dryly commented on the reality that asbestos litigation always become a popular topic during time periods prior to elections.  As he spoints out time and again, asbestos litigation may well be the best ever source for "evergreen" campaign contributions. And that arises today because of something around 2,000 - 3,000 annual mesothelioma deaths  in the US, depending on the numbers used.

Imagine what happens when toxic tort litigation really takes hold as to some of the other 497,000 cancer deaths that occur each year in the US. Some might think that the "asbestos litigation" controversies are really more about future waves of cancer litigation for various other cancers, as predicted by the American Conference Institute. Consider, for example,  the blood and lymph cancers that some tie to exposure to various chemicals. The numbers are stunning - every ten minutes, someone in the US dies of a blood cancer, and the incidence rate for some cancer types has been increasing about 2% per year for each and every year since 1974.  

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AmLaw Litigation Daily includes this interesting post by David Bario on recurring litigation patterns and tactics in securities fraud litigation regarding Chinese entities, as well as related lawsuits against short sellers who game the market with phony news. Note especially the perceived strategic importance of avoiding discovery. Key excerpts are set out below:

"Silvercorp's preemptive strike against the short-sellers represents a bold new twist in the unfolding China securities litigation. But the company's strategy is also risky. By potentially compelling the defendant Web sites and analysts to disclose any evidence they gathered concerning fraud at Silvercorp, the company could be undermining its own ability to defend against future securities fraud claims.

"Every client always asks, 'can we, should we, and when should we file a defamation action [against short-selling analysts]'" said DLA Piper's Perrie Weiner, who represents a dozen companies, auditors, and other China-linked defendants in class action and regulatory securities matters. "Our standard response is, 'not until after the class action is at least past the motion to dismiss stage.'" (Weiner is not involved in litigation related to Silvercorp and emphasized that he was speaking only in general terms.)

Crucially for defendants, Weiner said, under the Private Securities Litigation Reform Act all discovery is stayed under after motions to dismiss are decided. "We do not think it's an advisable position for issuers in China-related fraud cases to be filing defamation actions until they are at least past the motion to dismiss stage," he said. "If you sue the analysts, you motivate the analysts to come up with all the information and all the diligence they've done in China, which is really hard for a plaintiffs lawyer in the U.S. to ever get at, and you're giving the plaintiffs lawyers a shot at discovery that they never would have had otherwise."

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Amazing how some of our elected representatives think their religious abstractions are an excuse to seek to take us backwards in science. Thus, this year once again sees a host of Republicans (21) - and Democrat Dan Lipinksi of Chicago - sponsor a bill that would downgrade and slow funding for research using embryonic stem cells. The current bill is here; a Hill article is here, a current announcement from the Republican "leader" is here, and here is a prior statement from Rep. Lipinski's office. Hat tip to Paul Knoepfler, a stem cell scientist who blogs, here is the main page for his blog, and here is the relevant post. 

It's a shame these purported leaders fail to read - or respect - science. Time and again, researchers have shown that induced stem cells have problems that are not found in embryonic stem cells.  (Induced stem cells (iPS cells) are the supposedly "ethical" alternative to embryonic stem cells.) Thus, for example, this past spring, the leading  science journal known as Nature published a major article detailing genomic flaws in iPS cells. The flaws include alterations in genes associated with cancer. Does this mean iPS cells can never work? No, but it means more steps and research are needed, and answers and outcomes arrive more slowly. Delay may seem ok to legislators wrapped up in their own beliefs and busy pandering to right wingers, but it's not ok for people who are suffering or dying today. 

The ScienceDaily summary of the research is here; key excerpts are set out below:

"A new study -- published in the March 3 issue of the journal Nature and led by scientists at the University of California, San Diego in collaboration with other leading stem cell research groups -- finds that the genetic material of reprogrammed cells may in fact be compromised, and suggests that extensive genetic screening of hiPSCs become standard practice before these stem cells are used clinically.

A national team of researchers, co-directed by Kun Zhang, PhD, an assistant professor of bioengineering in the UC San Diego Jacobs School of Engineering, examined 22 different hiPSC lines obtained from seven research groups that employed different methods to reprogram skin cells into pluripotent stem cells. In all of these cell lines, the researchers found protein-coding point mutations, an estimated six mutations per exome. The exome is the part of the genome that contains the genetic instructions for making proteins and other gene products.

"Every single stem cell line we looked at had mutations. Based on our best knowledge, we expected to see 10 times fewer mutations than we actually observed," said Zhang, a faculty member of the Institute for Genomic Medicine and the Institute of Engineering in Medicine, both at UC San Diego.

The findings help answer the question of whether reprogramming adult mammalian cells into hiPSCs affects the overall genome at the fundamental level of single nucleotides. They do. Zhang called the mutations "permanent genome scars."

The scientists said while some of the mutations appeared to be silent, the majority did change specific protein functions, including those in genes associated with causative effects in cancers. (emphasis added). 

"Reprogrammed stem cells provide an important new tool in the fight against human disease, but to use these cells directly in the clinic, we must ensure that they are safe and that we are able to define their structure and behavior in the most precise terms," said Lawrence S.B. Goldstein, PhD, professor in the Department of Cellular and Molecular Medicine at the UCSD School of Medicine and co-director of the study with Zhang. Goldstein is also director of the UC San Diego Stem Cell Program.

More after the jump ....

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Please forgive a moment of crankiness associated with middle-aged eyes, and frustration with graphic design work by 20 or 30 somethings who either do not care about, or do not bother to think about, middle-aged eyes. The suggestion ? Try actually testing your design work with real people, including middle-aged people with the endemic bad eye sight that arrives between 50 and 55 for most people. 

Example number 1. My American Express card has the centurion graphic pasted across 5 of the account numbers, rendering it impossible to read in most forms of light. And, the card number printed on the back is written in microdot. Lose the centurion, or move the location - there's plenty of room for both.

Example number 2. Because of a litigation conference, I recently stayed at the Peninsula hotel in Chicago. It's a nice place, but the rooms feature "high-tech" light switches and thermostats with tiny words not visible to middle-aged eyes in the day, much less at night. So, all the supposedly great feature become useless, and in fact are counter-productive. 

Example number 3. Small print on drug boxes and package inserts. I've not yet seen a lawsuit over the small print, but ....  An unreadable warning is less useful than a poor warning. 

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Here's the link to an eye-opening NYT article on the process of competition and federal judges hiring law clerks. The article, by Catherine Rampell, describes a frenzy quite unlike the process back when I was a baby lawyer almost 30 years ago. 

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Courtesy of this post at Marginal Revolution, here's the link to a story on progress on a computer controlled car being tested in Berlin, with apparent success.  But, of course, lawyers are probably not yet involved, much. Two interesting excerpts are:

"However, he said, that besides the technological issues, the legal challenges would be another issue that needed to be regulated: "Who will be responsible when there's an accident — the owner or the passenger of the computer-controlled car or the company that produced it?"

***

Ideally, the car will respond to orders by remote control, for example on an iPad or an iPhone. With a click or a touch, the passenger can call the car to his personal location and then order the car to drop him off at his desired destination.

"This kind of car is actually perfect for car sharing," said Rojas. "There will be no more need for owning a car — once the automobile has dropped off its passenger it will drive on to the next passenger."

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Google today dragged up three related stories.  One is this relatively detailed article on efforts to continue asbestos-mining in Canada - a topic covered here before, and by Jon Stewart and the team of The Daily Show. The basic thesis of the would-be miner is that "controlled use" is just fine. 

The related article is here. It's an article from a newspaper in Sri Lanka regarding an asbestos cement factory. According to the article, the local factory suffered a breakdown which distributed factory dust over the surrounding community.  For grins, I googled the factory.  The Mascons website is here. This page displays a wide range of asbestos-cement products it's been producing since 1956.  This page shows the inside of the plant. Apparently related companies grow tea and grow roses and other flowers.  It's an interesting world out there. Mascons probably does not consider itself a future asbestos-defendant.

Finally, there's this article on asbestos-related litigation - in Scotland - arising from a renovation project gone bad. The "greedy plaintiff" (humor intended) is an order of monks which filed suit to recover expenses incurred to clean up an asbestos mess that arose after a renovation project disturbed in-place asbestos-containing materials connected to their chapel. 

Risks and realities end up being balanced, and present jobs and goods carry benefits that some see as outweighing long term risks for which they may or may not have to pay. One wonders, for example, if the Sri Lankan factory owner has insurance, and if it contains an asbestos-exclusion. What about coverage for future "premises liability" claims ?  And, for those thinking in detail about future litigation, here's what Wikipedia provides for an overview of law in Sri Lanka:

"Judicial: Sri Lanka's judiciary consists of a Supreme Court - the highest and final superior court of record,^[209] a Court of Appeal, High Courts and a number of subordinate courts. Its highly complex legal system reflects diverse cultural influences.^[210] The Criminal law is almost entirely based on British law. Basic Civil law relates to the Roman law and Dutch law. Laws pertaining to marriage, divorce, and inheritance are communal.^[211] Due to ancient customary practices and/or religion, the Sinhala customary law (Kandyan law), theThesavalamai and the Sharia law too are followed on special cases.^[212] The President appoints judges to the Supreme Court, the Court of Appeal, and the High Courts. A judicial service commission, composed of the Chief Justice and two Supreme Court judges, appoints, transfers, and dismisses lower court judges."

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Reputation and financial risk are once again headline news as the CEO of UBS has now resigned because of the latest "rogue trader" scandal.  

The label "rogue trader" is interesting and great corporate spinning. But, how many times can traders be called "rogues" when there are compliance departments, and traders are placing trades for a bank, in its name? One has to wonder if the more accurate label would be "badly monitored trader." Some USB history is told in this apparently not flattering book. 

Key excerpts follow: 

"GENEVA (AP) — UBS chief executive Oswald Gruebel has resigned over a $2.3 billion rogue trading loss, the bank said Saturday. The move ends days of speculation about whether Gruebel could retain his position following the latest scandal to hit Switzerland's biggest bank.

***

London-based UBS trader Kweku Adoboli was arrested last week and charged with fraud and false accounting for the $2.3 billion loss. A judge ordered him Thursday to be held in jail until a hearing next month.

***

The announcement also noted that the board, which met in Singapore this week, would seek to put in place measures to prevent a similar rogue trading loss from recurring."

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This lawyer does not see too many opinions on treasure salvaged from Spanish galleons, so I'll mention one that popped up this week. This popular press article by Mitch Stacy summarizes an 11th Circuit ruling holding that treasure salvors must turn over the massive  treasure they found on a Spanish galleon. The treasure must be turned over to Spain based on a form of sovereign immunity arising from the ship . The opinion is here. 

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Are parens patriae lawsuits by state attorneys general removable  to federal court under the Class Action Fairness Act - CAFA? The National Law Journal today includes an interesting summary article by a solid expert. She is:

"Georgene Vairo is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She serves as a member of the board of editors of Moore's Federal Practice, for which she writes chapters on removal, venue and multidistrict litigation. She also serves on the board of ­overseers of the Rand Institute for Civil Justice."

The entire article deserves reading. Here's her conclusion after reviewing the law:

"In my view, the Caldwell dissent and the 4th Circuit approaches are more persuasive. If the complaint is brought in the name of the state alone, and state law provides for cases to be brought in a parens patriae capacity, then, as master of the complaint, the AG ought to be entitled to do so without risking removal to federal court. There is no question that the majority's approach in Caldwell reflects congressional intent to interpret CAFA's expanded jurisdictional provisions broadly. However, if the state, which was the only plaintiff named in the complaint, was not the real party in interest, the case should have been dismissed, because there were no proper plaintiffs before the court and there was no attempt to join any new plaintiffs. Or the case ought to have been remanded to state court because that would have done less violence to principles of federalism than the majority's recharacterization of the case as a mass action subject to CAFA jurisdiction. The attorney general should not have been stuck in federal court.

The controversy here is that some state attorneys general employ private plaintiffs' lawyers to prosecute these cases. So, to a defendant, if the case walks like a duck it is a duck — and these are the very types of cases that were the target of CAFA. Nonetheless, the 4th Circuit was right to look to the language of CAFA and not its purpose. If a case is not brought as a class action, it cannot be removed under CAFA. If the case is not brought by more than 100 named plaintiffs, the case cannot be removed as a mass action under CAFA. This approach is preferable because it correctly honors the letter of CAFA, the basic principle that the plaintiff is the master of the complaint, and, perhaps most importantly, principles of federalism."

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The September 22, 2011 New York Times includes this interesting article on the aggregate value of bankruptcy claim trading. The numbers provide at least a small insight into the litigation industry specific to chapter 11 cases in the US.  The key section is pasted below. 

Bankruptcy Claims Trading Slows in August

By REUTERS

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In this post (and others linked in it), Kevin Jon Heller at OpinioJuris continues to savage the legal analysis of US circuit courts as to international law standards for "aiding and abetting" liability.  The criticism seems on point and powerful, but I'm certainly not an international law scholar. The big picture point here is that American lawyers need to recognize that the views of our courts are not necessarily representative of international law.  

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The Virginia Supreme Court has held that there is no coverage for underlying global warming claims when the plaintiff alleged intentional emission, and did not allege that the emissions were negligent. The opinion is here, and is summarized here by Marten Law. 

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Update to Post of September 11, 2011:

Insurers have now dismissed - without prejudice - their new lawsuit involving 9/11. AmLaw has the story here. Counsel for the insurers declined to explain the dismissal, so the story is not much of a story. The prior post also is pasted below. 

__________________________________________________________________________________

The September 11 attacks and resulting deaths are remembered today in many human ways far more important than money. But for the insurance industry, any disaster also is about the money.  New articles and lawsuits illustrate the money side of the September 11 attacks, and the roles of smart trial lawyers representing insurance industry plaintiffs and human victims. One especially interesting aspect is the insurance industry renewing ist efforts at obtaining claim-specific legislation. 

On the human side, Motley Rice has been after terrorists sponsors for much of the decade, and has won some issues and lost some issues. This prior post from 2009 links to other articles on fascinating information and discovery-related battles. A partial update on the litigation is found in Michael Goldhaber's September 9, 2011 article in AmLaw's Litigation Daily.

Mr. Goldhaber's article focuses mainly on the insurance industry side of the September 11 litigation, and provides a fine reminder that the insurance industry side of the litigation industry is a multi-headed creature. One head puts out daily, perhaps hourly, messages to paint a picture of a horrible litigation industry purportedly controlled by "greedy trial lawyers"  who make money, they say, just by representing sympathetic plaintiffs. But another head of the insurance industry creature is very different. That head portrays insurance industry giants as sympathetic, financial naifs bamboozled and defrauded by Wall Street financial houses, and acts as plaintiff seeking to recoup investment losses. Thus, Allstate this summer filed multiple lawsuits against Wall Street entities to recover investment losses. The complaints embraced the plaintiff-side tactic of including in the complaint allegations vilifying the defendants as bad actors; thus: 

"In truth, and as Allstate and the world would only later discover, the originators whose loans collateralized the Morgan Stanley [residential mortgage-backed securities] purchased by Allstate were among the worst of the worst culprits in the subprime lending industry," the complaint says. "These originators have since folded up their operations, filed for bankruptcy or been shut down by regulators, and are the subject of numerous governmental investigations and private lawsuits alleging misconduct arising out of pervasive illegal and improper mortgage lending practices and other violations of law."

Now, because of its massive payouts from the September 11 attacks, the insurance industry plaintiffs are embracing several tactics. One is to continue litigation, including filing this new complaint against the Saudi government, various princes and various financial entities.  On that front, Mr Goldhaber asserts that the insurance industry is bringing in Carter Phillips to serve as plaintiff's counsel. ("The plaintiffs have brought in Sidley Austin appellate star Carter Phillips to argue before the Second Circuit ...") Mr. Carter is indeed a star, and its ironic to see him as plaintiff's counsel seeking money for insurer plaintiffs because he usually  is counsel relentlessly defending corporate America against supposedly bad plaintiff lawyers. Thus, in asbestos litigation defense, Mr. Phillips said, for example:

 "Plaintiff's lawyers stoke the passions of jurors with arguments regarding [an exposed worker's] risk of deadly cancers," says Carter Phillips in his brief to the court on behalf of Norfolk and Western. "The common results are massive verdicts for relatively healthy plaintiffs."

With the motivation provided by the massive September 11 financial losses, the insurance industry creature has grown another head. That head is now embracing the plaintiff side tactic of seeking claim-specific legislation to assist the insurance industry in recovering its financial losses from Saudis and others. Thus, according to Mr. Goldhaber's article, the insurance industry's as plaintiff is lobbying to obtain a leg up through a hoped-for new state statute in Pennsylvania to be sponsored by Sen. Charles Schumer.  

"Second, Cozen [counsel for the insurers] said that Sen. Charles Schumer will soon reintroduce a bill, known as the Justice Against Sponsors of Terrorism Act, that would effectively overrule the Second Circuit's obstructive rulings on sovereign immunity and personal jurisdiction and allow a new action to be filed against Saudi Arabia. Cozen O'Connor's lobbying materials make clear that its preferred endgame is to force Saudi Arabia into a massive executive agreement, on the model of Libya's 2008 settlement of terror claims."

Conclusion? Litigation is an industry, and it's mainly about money, not justice.

More evidence for the conclusion? During my legal youth, I spent 1983-1984 as a law clerk forHoward C. Ryan,  a smart and respected conservative to middle of the road justice of the Supreme Court of Illinois.  Judge Ryan was a trial lawyer and then trial judge before moving to the intermediate appellate court and then to the supreme court. As of my clerkship in 1983-1984,  the "liability crisis" of the 1980s was said to be beginning, and the court received myriad defense side briefs arguing that the sky was about to fall in because of plaintiff's lawyers and Madison County was starting to attract attention as a plaintiff friendly jurisdiction. Meanwhile, amicus briefs and ordinary briefs also flowed in for cases from plaintiff's lawyers railing against evil insurers and companies said to be concerned only about money. Important opinions were being issued and drafted. As an impressionable baby lawyer fresh out of school and an editorial position on a law review, I tended to ask Judge Ryan a lot of questions. Some questions flowed from uncritically accepting as true various unsupported factual assertions set out in law reviews and other "scholarly writing."  Judge Ryan's advice was great:

"You will learn not to believe it all, and during your career, you will over time learn which lawyers you can trust. That's part of why we decide one case at a time, based on a record of facts, and why trials and trial judges are so important. Most everyone in litigation has a financial interest, and those interests are not really about justice." 

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The BBC has the story on new dust and lung injury litigation filed in London on behalf of South African miners. The suit is the latest in a string of suits brought by Leigh Day for persons living in Africa. The key excerpts are as follows:

_______________________________________________________________________________________

"Dust levels were high and they suffered massive rates of silicosis, a known hazard of gold mining for the last century."

Leigh Day & Co said the workers faced the health risks up to 1998 - four years after white minority rule ended.

"Black miners known to have contracted silicosis were allowed to continue working in underground dusty conditions," it said.

The law firm alleged that workers from South Africa's Eastern Cape province and neighbouring countries, including Lesotho and Botswana, had fallen ill.

"Communities in areas of Eastern Cape and Lesotho have been decimated by what one leading South African medical expert has referred to as a river of disease flowing out of South African gold mines," it said.

The firm said the case was similar to the one South African asbestos miners brought about a decade ago against UK multinational, Cape Plc

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It seems obvious that athletes go faster when competing against marginally better competitors. Now it's been proven in an experiment explained here in this NYT 'Personal Best" article by science writer Gina Kolata. But there are limits, it seems, to how much faster. 

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NERA publishes an annual summary of big picture findings on asbestos litigation. The 2011 update was issued in July, and is online here. The paper is free for downloading, and includes useful big picture observations on claim filing rates, claim resolution amounts and resolution rates,  and reserving by companies and insurers.  

NERA's complete compilation of asbestos papers is here. 

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This post by Dr. Wendy Harpham provided a link to an interesting article in Atlantic related to a new book on intense beliefs perhaps leading to death. The book, by Shelley Adler, is  Sleep Paralysis: Night-mares, Nocebos, and the Mind Body Connection. 

Wendy is always brief, and explained the story as follows:

"The Dark Side of the Placebo Effect: When Intense Belief Kills is a fascinating piece about the work of Shelley Adler, a professor at the University of California, San Francisco. She explored why otherwise healthy young men (median age 33 years old) who were immigrants from southeast Asia were dying in their sleep without any obvious cause of death. Puzzled doctors called it Sudden Unexpected Nocturnal Death Syndrome (SUNDS).

Adler "comes to a stunning conclusion: In a sense, the Hmong were killed by their belief in the spirit world, even if the mechanism of their deaths was likely an obscure genetic cardiac arrhythmia that is prevalent in southeast Asia."

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The US Chamber of Commerce and others frequently advocate to limit or abolish punitive damages evidence and awards. An example is this amicus brief in Eden Electrical v.  Amana Company.  (But if punitive damages are awarded, the Chamber wants the award  to be deductible as ordinary business expenses, as stated here by the Chamber.)

Oft used phrases that come quickly to mind are "jackpot justice" and "litigation lotteries."  So, it's interesting to note this AmLaw story that  DuPont is seeking $ 52 million in punitive damages plus attorney's fees on top of a $ 920 million compensatory damages award for theft of trade secrets. The facts of the case described in the article do indeed seem egregious, and so one understands why DuPont is after punitive damages from a Korean competitor that apparently blatantly acted badly an destroyed evidence. The good news for the Chamber is that the requested punitive damages fit within the oft-cited 10X ratio between compensatory damages and punitive damages.  

Here's the key excerpt from the article as to DuPont's hopes:

"Kolon and its lawyers have promised to appeal the verdict, which DuPont is still seeking to augment with more than $52 million in punitive damages and more than $30 million in attorney fees. (A hearing on punitive damages is scheduled for November.) DuPont's lawyers will also get a chance to play defense next March, when a trial is set on antitrust counterclaims brought by Kolon accusing DuPont of monopolizing the market for para-aramid fibers." 

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Amazing what's out there. This blog post by patent lawyer and molecular biologist  Kevin E. Noonan describes litigation over a tobacco company patent aimed at reducing carcinogens in tobacco. After decades of industry denial that cigarettes caused cancer, this seems rather surreal. Here's a key excerpt:

"The Federal Circuit reaffirmed the primacy of the factual disclosures used to establish obviousness, and how deficiencies thereof can defeat an obviousness claim, in reversing an invalidity determination in Star Scientific, Inc. v. R.J. Reynolds Tobacco Co.  It also showed how persistently defendants pursue the tarnish of inequitable conduct even under circumstances where the Federal Circuit has held that no inequitable conduct occurred.

The patents-in-suit, U.S. Patent Nos. 6,202,649 and 6,425,401 (filed as a continuation of the '649 patent), were directed to methods for curing tobacco in a way that reduced the amount of a carcinogen, tobacco-specific nitrosamines (TSNAs), in the cured product used in cigarettes and other tobacco-containing products.  The patents were specifically directed to "indirect" flue curing with gas or propane heaters.  Former methods used "direct" flue curing that mixed the exhaust gasses with the tobacco, but this resulted in an oxygen-free environment that fostered the growth of bacteria on the leaves, leading to production by the bacteria of the carcinogenic TSNAs.  The patented methods can be used with either direct or indirect curing methods by using "controlled conditions" involving humidity, temperature, rate of temperature exchange, carbon monoxide levels, carbon dioxide levels, oxygen levels, and how the tobacco plants are arranged in the curing shed.  The claims specify "controlling conditions" by "determining and selecting" the "appropriate" values for these variables that results in the reduction of TSNA production "at least one").  However, the patents admit that the choice of these conditions are "more art than science," so need to choose the appropriate combination of these variables; however, the important consideration is maintaining an aerobic environment that prevents bacterial growth. (emphasis added)

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I'm shocked, just shocked, that a judge could think inside information and lack of disclosure could have tainted a chapter 11 case (sarcasm intended).

The opinion is here  -  a Dealbook summary is below. 

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 Please use this link and a minute of your time to join with LIVESTRONG and others to reach out to world leaders gathering soon at the UN to work on plans to better cope with and solve the massive problem of non-communicable diseases. The diseases  are many - they are ALS, diabetes, and cancer, to name but a few.  

Consider cancer.  Massive waves of cancers are sickening and killing our lovers, children parents and friends. 500,000 cancer deaths each year in the US. Every 10 minutes, a person in the US dies from a blood cancer. Then there are the new cancers. In the next 10 years, new US cancer diagnoses  will equal the populations of the cities (not suburbs) of LA, NY and Chicago. (That's 1.6 million per year, per the American Cancer Society). Imagine the reaction in government money and attention if Al Quaeda threatened that it would in the next decade slowly, viciously and painfully kill everyone in those 3 cities.  But, the budget of our National Cancer Institute is stalled at an annual  $ 5 billion, as described here.  Meanwhile, the budget is over 10x greater for "Homeland Security" at over $ 50 billion; it's budget is described here.  

Here’s what the American Society of Oncologists sees ahead on a global scale:

"The Top Global Killers: Cancer and Other NCDs

Each year, an estimated 7.6 million people die from cancer – more than from HIV/AIDS, malaria and tuberculosis combined. It is estimated that the incidence of cancer will continue to increase during the next decade, from 12.7 million annual cases in 2008 to more than 20 million by 2030, with the majority of new cases occurring in low- and middle-income countries. Cancer and other NCDs, such as diabetes and heart disease, account for a combined 36 million deaths each year, or an estimated 63 percent of all annual deaths worldwide, according to a recent report from the World Health Organization. These global statistics are staggering and represent what UN Secretary General Ban Ki Moon has called “a public health emergency in slow motion.”"

Dear Kirk, I’m about to leave for New York to take part in the UN Summit on non-communicable diseases. And when I get there, I want to see your face. Join me and more than 150,000 LIVESTRONG supporters in telling world leaders that cancer is a global health crisis, and the time has come to Face Up To It. Add your face to LIVESTRONG’s Face Up To It mosaic by midnight tonight, and you could be included in our bold new video that we’ll be running in Times Square during the UN Summit. In addition to displaying the faces of thousands of our supporters in Times Square, we’re going to confront world leaders with the strength of our movement all over Manhattan. Your face could appear on mobile bicycle billboards circling the UN and in our New York Times ad delivered to Heads of State in their morning paper. From the moment they wake up, our leaders will see the faces of our global movement staring back at them everywhere they turn. Our bold public statement will be impossible to ignore and I want you to be a part of it. Add your face before midnight to be included in powerful public displays in Times Square and around New York: http://FaceUpToIt.LIVESTRONG.org This is a truly historic opportunity to make unprecedented advances in the fight against cancer around the world. I hope I can count on you in New York. LIVESTRONG, Lance Armstrong P.S. If you’re on Facebook, you can use our simple app to add your face here.

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The posturing and faux debating is ongoing here (plaintiff side) and here (defense side) as to whether or how the federal government could pass a law governing medical malpractice. It's certainly ironic that some on the defense side suggest the federal government cannot require purchase of health insurance, but do suggest that it regulate an area of tort law traditionally controlled by the states. 

These faux debates lack a key ingredient. A knowledgeable referee pushing both sides to the real issues instead of sending out a stream of soundbites and position papers that argue about strawmen. 

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Another cool new science tool. Now scientists at Caltech and Howard Hughes are starting to be able to see inside a cell during the moment of division.  

How?  Here's the explanation from ScienceDaily: 

"Jensen's group is one of just a few in the world that uses electron cryotomography (ECT) to image biological samples. Unlike traditional electron microscopy -- for which samples must be dehydrated, embedded in plastic, sectioned, and stained -- ECT involves plunge-freezing samples so quickly that they become trapped in a near-native state within a layer of transparent, glasslike ice. A microscope can then capture high-resolution images of the sample as it is rotated, usually one degree at a time.

One limitation of ECT is that samples cannot be thicker than 500 nanometers -- otherwise the electron beam cannot penetrate the sample sufficiently. Therefore, ECT studies have focused on small bacteria and viruses. But Jensen's group wanted to extend the technique to observe eukaryotic cells, which are typically much bigger. So they located the smallest known eukaryote, Ostreococcus tauri, and imaged it with ECT."

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The Financial Times today includes an article focusing on Basel and capital requirements for uber banks.  Written by Tom Braithwaite in New York and Patrick Jenkins in London, the article closes with Jamie Dimon commenting on perhaps 3-10 years of litigation for banks and other financial houses:

"US banks are struggling to deal with new regulations and litigation, both stemming from the financial crisis. Mr Dimon said it could be “three to 10 years” before the industry emerged from lawsuits brought by investors looking for compensation for the losses incurred on structured products underpinned by bad mortgages.

He said he was ready to agree a settlement over lax servicing and foreclosure standards that is expected to see the industry pay $20bn in penalties. But he said banks could not be placed in “double jeopardy” and needed an appropriate release from legal liability."

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Reuters' Unstructured Finance blog  has now published thoughts/a fairly detailed article on using the asbestos trust solution for the toxic torts of the banks and other financial houses. See Bank of Asbestos. The publication is written by Matthew Goldstein, Jennifer Ablan, Daniel Wilchins, and Kristina Cooke.  They trace their writing back to the zerohedge blog and it's similar post here. Zerohedge also was paying attention back when GM used chapter 11 and issues were raised about the constitutionality of the trust.  

 The thought has made it at least as far as to the China Post; the article is here; the introduction to that article is pasted below. 

"BofA may need litigation trust for lawsuits

NEW YORK -- It worked for asbestos, so why not for toxic mortgages?

When some analysts look at all of the litigation arising from Bank of America's (BofA) big role in the U.S. mortgage mess, they start thinking of asbestos and how thousands of lawsuits arising from that cancer-causing product brought down many manufacturers more than a decade ago.

The solution back then to dealing with claims filed by more than 750,000 workers exposed to asbestos was the creation of dozens of “asbestos settlement trusts,” which have paid out tens of billions dollars in damages. Some of them are still going strong today.

The asbestos trusts were seen as an innovative approach to deal with seemingly endless litigation and provide a measure of compensation to sick workers and their families. The system for dealing with claims also allowed some of the hobbled manufacturers to emerge from bankruptcy largely free of the crushing weight of lawsuits.

Now some investors in soured mortgage-backed bonds sold by BofA and advocates for struggling homeowners are wondering whether a similar strategy can be used to deal with litigation claims that Wall Street analysts estimate could cost the nation's biggest bank more than US$50 billion." 

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Apparently we've now thoroughly Americanized Iran. The Tehran Times newspaper now includes mesothelioma marketing. Click here to view it. 

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This New York Times article reports on initial follow-up studies on disease among firefighters who worked at the 9/11 site. The conclusion?  A decade later, it's still too early to draw conclusions. 

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The September 11 attacks and resulting deaths are remembered today in many human ways far more important than money. But for the insurance industry, any disaster also is about the money.  New articles and lawsuits illustrate the money side of the September 11 attacks, and the roles of smart trial lawyers representing insurance industry plaintiffs and human victims. One especially interesting aspect is the insurance industry renewing ist efforts at obtaining claim-specific legislation. 

On the human side, Motley Rice has been after terrorists sponsors for much of the decade, and has won some issues and lost some issues. This prior post from 2009 links to other articles on fascinating information and discovery-related battles. A partial update on the litigation is found in Michael Goldhaber's September 9, 2011 article in AmLaw's Litigation Daily.

Mr. Goldhaber's article focuses mainly on the insurance industry side of the September 11 litigation, and provides a fine reminder that the insurance industry side of the litigation industry is a multi-headed creature. One head puts out daily, perhaps hourly, messages to paint a picture of a horrible litigation industry purportedly controlled by "greedy trial lawyers"  who make money, they say, just by representing sympathetic plaintiffs. But another head of the insurance industry creature is very different. That head portrays insurance industry giants as sympathetic, financial naifs bamboozled and defrauded by Wall Street financial houses, and acts as plaintiff seeking to recoup investment losses. Thus, Allstate this summer filed multiple lawsuits against Wall Street entities to recover investment losses. The complaints embraced the plaintiff-side tactic of including in the complaint allegations vilifying the defendants as bad actors; thus: 

"In truth, and as Allstate and the world would only later discover, the originators whose loans collateralized the Morgan Stanley [residential mortgage-backed securities] purchased by Allstate were among the worst of the worst culprits in the subprime lending industry," the complaint says. "These originators have since folded up their operations, filed for bankruptcy or been shut down by regulators, and are the subject of numerous governmental investigations and private lawsuits alleging misconduct arising out of pervasive illegal and improper mortgage lending practices and other violations of law."

Now, because of its massive payouts from the September 11 attacks, the insurance industry plaintiffs are embracing several tactics. One is to continue litigation, including filing this new complaint against the Saudi government, various princes and various financial entities.  On that front, Mr Goldhaber asserts that the insurance industry is bringing in Carter Phillips to serve as plaintiff's counsel. ("The plaintiffs have brought in Sidley Austin appellate star Carter Phillips to argue before the Second Circuit ...") Mr. Carter is indeed a star, and its ironic to see him as plaintiff's counsel seeking money for insurer plaintiffs because he usually  is counsel relentlessly defending corporate America against supposedly bad plaintiff lawyers. Thus, in asbestos litigation defense, Mr. Phillips said, for example:

 "Plaintiff's lawyers stoke the passions of jurors with arguments regarding [an exposed worker's] risk of deadly cancers," says Carter Phillips in his brief to the court on behalf of Norfolk and Western. "The common results are massive verdicts for relatively healthy plaintiffs."

With the motivation provided by the massive September 11 financial losses, the insurance industry creature has grown another head. That head is now embracing the plaintiff side tactic of seeking claim-specific legislation to assist the insurance industry in recovering its financial losses from Saudis and others. Thus, according to Mr. Goldhaber's article, the insurance industry's as plaintiff is lobbying to obtain a leg up through a hoped-for new state statute in Pennsylvania to be sponsored by Sen. Charles Schumer.  

"Second, Cozen [counsel for the insurers] said that Sen. Charles Schumer will soon reintroduce a bill, known as the Justice Against Sponsors of Terrorism Act, that would effectively overrule the Second Circuit's obstructive rulings on sovereign immunity and personal jurisdiction and allow a new action to be filed against Saudi Arabia. Cozen O'Connor's lobbying materials make clear that its preferred endgame is to force Saudi Arabia into a massive executive agreement, on the model of Libya's 2008 settlement of terror claims."

Conclusion? Litigation is an industry, and it's mainly about money, not justice.

More evidence for the conclusion? During my legal youth, I spent 1983-1984 as a law clerk for Howard C. Ryan,  a smart and respected conservative to middle of the road justice of the Supreme Court of Illinois.  Judge Ryan was a trial lawyer and then trial judge before moving to the intermediate appellate court and then to the supreme court. As of my clerkship in 1983-1984,  the "liability crisis" of the 1980s was said to be beginning, and the court received myriad defense side briefs arguing that the sky was about to fall in because of plaintiff's lawyers and Madison County was starting to attract attention as a plaintiff friendly jurisdiction. Meanwhile, amicus briefs and ordinary briefs also flowed in for cases from plaintiff's lawyers railing against evil insurers and companies said to be concerned only about money. Important opinions were being issued and drafted. As an impressionable baby lawyer fresh out of school and an editorial position on a law review, I tended to ask Judge Ryan a lot of questions. Some questions flowed from uncritically accepting as true various unsupported factual assertions set out in law reviews and other "scholarly writing."  Judge Ryan's advice was great:

"You will learn not to believe it all, and during your career, you will over time learn which lawyers you can trust. That's part of why we decide one case at a time, based on a record of facts, and why trials and trial judges are so important. Most everyone in litigation has a financial interest, and those interests are not really about justice." 

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110 years ago, in 1901, West Publishing created and distributed "Law Books by the Million,"  a self-laudatory but enjoyable and relatively detailed account of the early years of West publishing the casebooks that were part of my legal youth. The Green Bag journal, supported by the George Mason University School of Law, recently brought the article to life by publishing it in the Spring 2011 issue (Vol. 14, #3). If you like history, the article is interesting and includes some great old photos of the workers and devices. Ross E. Davies penned a helpful and enjoyable introduction. You can see the entire compilation at SSRN, at this page. 

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Advocates need to stay focused and credible. When that rule is ignored, the advocacy becomes useless, and sometimes even counter-productive. 

A lesson on this rule arises from yesterday's House committee hearing on secrecy in asbestos bankruptcies. Instead of staying with a focused, credible message solely about secrecy in the trusts, the hearing received a grand title focused on asbestos, jobs, and fraud. Jobs of course are the hot button political issue of the year. And, the insurance industry spends about 24/7 trying to say fraud as often as possible in the hope that someday it will convince the world that all litigation is fraud (except of course when the insurance industry is the plaintiff). So, the following  grand title was applied to the hearing:

"Hearing on: How Fraud and Abuse in the Asbestos Compensation System Affect Victims, Jobs, the Economy, and the Legal System"

How well did the title play? Consider the reaction set out in this post by Alison Frankel, a book author and a smart, former senior editor and writer for American Lawyer. Ms. Frankel now writes "On the Case" and it's quite good. As you will see on reading her post, she was amused - as opposed to impressed - by the grand title and scope of the hearing. 

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A reminder of today's House Committee hearing on secrecy in the asbestos bankruptcy trusts. The hearing is described online here.

Now online are the witness list (pasted below) and a button that will link you to a video feed of the hearing. The witness testimony is not yet online. I'm attending the hearing.

Hearing on: How Fraud and Abuse in the Asbestos Compensation System Affect Victims, Jobs, the Economy, and the Legal System

Friday 9/9/2011 - 10:00 a.m.

2141 Rayburn House Office Building

Subcommittee on the Constitution

By Direction of the Chairman

Witness List

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No introduction is needed to understand the following excerpts from this post by Kevin Jon Heller, a legal scholar focused on many aspects of international law, including ATS litigation. His criticism of the 11th Circuit does leaves one to wonder just what the panel  was thinking in not bothering to cite any law:

"Against my better judgment, I read the 11th Circuit’s opinion in Mamani v. Berzain, the Bolivian ATS case.  I say against my better judgment because reading American judges on international law is kind of like listening to Kevin Costner play Robin Hood — you vaguely recognize the referent, but it is still painful to the ear.  It’s bad enough that American judges consistently get international law wrong, as evidenced by the woeful Talisman Energy decision about the mens rea of aiding and abetting.  But at least the Second Circuit tried to get the law right — it didn’t understand the international materials it cited, but at least it identified and addressed them.  The 11th Circuit, by contrast, makes the Second Circuit seem like Ian Brownlie.  It made no attempt at all to grapple with the international materials on crimes against humanity.  Indeed, reading the opinion, you would have no idea that any such materials exist: although the court says that “[t]o determine whether the applicable international law is sufficiently definite, we look to the context of the case before us and ask whether established international law had already defined defendants’ conduct as wrongful in that specific context (pp. 16-17), there is not a single citation in the entire decision to any international source.  No case.  No convention.  No UN report.  No international-law scholar.  Nothing. (emphasis added and Brownlie link inserted)

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This recent Madison County Record article illustrates two continuing trends - more lawsuits claiming that asbestos caused lung cancer, and more asbestos-related lawsuits in St. Clair County. Both trends reflect efforts to expand the market in claims and trial dates. Plaintiff's lawyers are, after all, entrepreneurial. 

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A House Committee will hold a hearing this Friday, September 9, on secrecy in the asbestos bankruptcy trusts and other topics. The hearing is described online here, but the witness list and documentation are not yet online. The hearing apparently will be viewable online. 

Hearing Information

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Critics of the litigation industry often complain that lawsuits are used to create change instead of leaving all issues to other branches  of government. Consider that thought in the context of this recent article on the US using litigation to slow down the use of Switzerland in its race to the bottom laws which make it a "tax haven." Instead of using that euphemism, some would say that the Swiss government aids and abets criminal acts. Swiss banks are not happy at losing that status. 

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In Australian asbestos litigation, a recent $1.15 million jury verdict against James Hardie is reported here. The suit was by a former employee who developed mesothelioma. The key excerpts state:

"A Victorian Supreme Court jury has awarded compensation of more than $1 million to a man exposed to asbestos nearly 40 years ago.

Eric King, 62, developed mesothelioma after he was exposed to asbestos at a James Hardie factory in Western Australia in 1972.

Mr King's lawyer, Andrew Dimsey, says his client was awarded $1.15 million, despite attempts by James Hardie to have the jury dismissed.

"This is a case where every issue was in dispute, from James Hardie's duty of care, to its breach of duty of care, to the cause of the cancer and the damages claim by Mr King. So every issue was hard fought," he said."

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There are many ironies and inconsistencies in the world of arguments on tort law and "tort reform." One of the ironies is that proponents of "tort reform" often are inconsistent in their approach to evidence and outcomes.

How so ? For one, "tort reform" advocates typically also are fond of demanding that juries and courts make decisions based only on "gold standard" evidence. That is, they object to admitting anecdote, animal studies or other information unless backed by double-blind empiric studies. That, they say, is "evidence." For evidence, see most any defense-side Daubert challenge in any case.

When it comes to arguing for tort reform, the advocates often argue that imposing strict limits on medical malpractice claims will reduce health care costs by reducing so-called "defensive" medicine. But where is the evidence to prove these arguments? To my knowledge, there is no such evidence, and I do keep my eye open while reading. But what one does find is evidence indicating that "medical malpractice reform" in fact does not lower health care costs.

For the most recent example, see this New York Times article of today by Kevin Sack, and this new study from four law professors. And, happily, the study focuses on Texas, a state much in the news today because of Mr. Perry's many claims. The abstract states:

Abstract:      
Will tort reform “bend the cost curve? Health care providers and tort reform advocates say ‘yes.’ They insist that defensive medicine is responsible for hundreds of billions of dollars in health care spending every year. If providers and reform advocates are right, once non-economic damages are capped and lawsuits are otherwise restricted, defensive medicine will substantially decline and health care spending will fall dramatically. 

We evaluate the potential of tort reforms to reduce health care spending by studying how Medicare spending in Texas changed after the state adopted a comprehensive package of tort reforms in 2003, including a fairly strict cap on non-economic damages. Using longitudinal data on med mal claim rates and on health care spending, we first compare spending trends in Texas to spending trends in neighboring states and the nation as a whole. Post-reform, we find no evidence of reduced Medicare spending in Texas relative to these comparison groups. We then compare health care spending in Texas hospital service areas (HSAs) with high med-mal pressure to Texas HSAs with low med-mal pressure. Pre-reform, we find no evidence that Medicare spending was higher in high-pressure HSAs than low-pressure HSAs, and no evidence that spending grew faster in high-pressure HSAs. Post-reform we find no evidence that high-pressure HSAs experienced any change in spending trends, relative to low-pressure HSAs. 

In sum, we find no evidence that Texas’ 2003 tort reforms “bent the cost curve.” (emphasis added)

Keywords: defensive medicine, medical malpractice risk, tort reform

JEL Classifications: I11, I18, K13, K23, K32

Working Paper Series

____________________________________________________________________________________

Please let me know if you know of any contrary "evidence" - I'll be glad to publish it in an updated post.

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Insurers often claim that STOLI policies are illegal - see this prior post on STOLI policies. So, it's kind of amusing to see that insurance and banking giant UBS was working with Rick Perry and staff to create a giant STOLI investment in Texas, as is detailed  here in Huffington Post. 

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Mass tort litigation includes some interesting moments. This article describes the Delaware "asbestos judge" ordering a special Sunday session due to frustration with the parties. The story starts this way:

"WILMINGTON -- A Delaware judge apparently had enough of what she saw as attorneys' childish bickering in a civil case this week and called them all in to serve detention on Labor Day weekend, advising them to bring their "teddy bears and jammies."

Superior Court Judge Peggy L. Ableman, in an unusually blunt Sept. 1 letter, told attorneys involved in a pair of asbestos personal-injury cases to report to the New Castle County Courthouse on Sunday at 10 a.m. for "a 'special' emergency refresher course in first year ethics and civility ... this gathering is mandatory."

"Attendees are encouraged to bring sleeping bags, toothbrushes, teddy bears and jammies, as the agenda will be exhaustive," she wrote, adding in a footnote, "these terms reflect the court's impression of the childish level to which this litigation has stooped."

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Story telling with pictures is powerful, and data visualization is only getting better. Courtesy of the Marginal Revolution, consider the power of this graphic view of  a micro-finance success story. 

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The debate and acrimony continue on in Canada as to exporting asbestos, as illustrated by this new NYT guest editorial from the friend of a man who died of mesothelioma created by a Navy exposure. According to the story, the Canadian Tories had the bad judgment to have a lawyer write and complain when the widow used the party's  logo on her website arguing against the Tories' support for continuing export of asbestos fibers. The lawyer's letter of course was turned back against the party by the widow, and produced a small firestorm of bad publicity for the party. A timely reminder that lawyers can worsen a touchy situation by failing to "get" the big picture. 

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Mexico is implementing class action law. The new law is briefly summarized by Nathan Koppel of the Wall Street Journal's in this Law Blog post, with links to more detailed analyses. Also, the post begins with one of the most enjoyable first sentences ever used in a law-related writing.

Despite opposition from "big business," class action laws continue to expand around the globe. Not so long ago, some said it would never happen. Here's a current quote froma lawyer at a defense side law firm, Shook Hardy:

“Mexico is the latest in a string of countries in Europe and Latin America to enact class action laws,” Shook Hardy partner Bill Crampton told the Law Blog. 

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The NYT story is here.  One can assume that day-traders and  hedge funds will be busy shorting bank stocks and otherwise betting on the litigation impacts. 

The key excerpts are:

By NELSON D. SCHWARTZ

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Updated

The NYT now includes this Nicholas Wade article on the new science described below. The article provides history and context on the Black Death. 

________________________________________________________________________

Some parts of history increasingly involve science. Last month there was news of "museumomics" - using DNA from museum samples to look back in time by obtaining and analyzing old DNA from museum samples of Tasmanian Devils, an animal now facing a vicious cancer spread by a virus.  Now there is news from ScienceDaily of scientists finding and analyzing remnants of 600 year old human teeth in order to find and prove the pathogen responsible for "the Black Death."  

The full article is available here through the genius of freely available scientific information provided by the Proceedings of the National Academies of Science. Here are key excerpts from the ScienceDaily summary:

"Previous genetic tests indicating that the bacterium was present in medieval samples had previously been dismissed as contaminated by modern DNA or the DNA of bacteria in the soil. Above all, there was doubt because the modern plague pathogen spreads much more slowly and is less deadly than the medieval plague -- even allowing for modern medicine.

The international team of researchers has for the first time been able to decode a circular genome important for explaining the virulence of Y. pestis. It is called pPCP1 plasmid and comprises about 10,000 positions in the bacterium's DNA. The sample was taken from skeletons from a London plague cemetery. The working group in Tübingen, led by Dr. Johannes Krause used a new technique of "molecular fishing" -- enriching plague DNA fragments from tooth enamel and sequencing them using the latest technology. In this way, the fragments were connected up into a long genome sequence -- which turned out to be identical to modern-day plague pathogens. "That indicates that at least this part of the genetic information has barely changed in the past 600 years," says Krause.

The researchers were also able to show that the plague DNA from the London cemetery was indeed medieval. To do that, they examined damage to the DNA which only occurs in old DNA -- therefore excluding the possibility of modern contamination. "Without a doubt, the plague pathogen known today as Y. pestiswas also the cause of the plague in the Middle Ages," says Krause, who is well known for his DNA sequencing of ancient hominin finds, which help trace relationships between types of prehistoric man and modern humans."

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This recent Gina Kolata article in the NYT recently highlighted transformative scientific change - molecular epidemiology for bacteria and viruses. In short, it means the ability to in just a few days (or less) actually prove the source of bacterial diseases or even a virus.

How?  By using fact investigation, plus great hardware and software to sequence genomic structures, and compare them to databased genomes. Note below the stunning drops in time and price for the work. 

Consequences for litigation ? Well, it's probably not here quite yet, but think about possibilities general and specific.

On specifics, think about the next wave of illness suspected to be associated with contaminated food. (For background, see this page from the Centers for Disease Control.) Using the tools described below, the contamination perhaps will be traceable by science that may not be disputable. If that happens, the suspected source may run out of room to express doubt about the cause of an outbreak.  Instead, it may face comparison of bacteria at its facility to bacteria found in sick people. When that happens and people want compensation, there may not be any causation issues left for debate.

On a large scale, think about epidemiology in general. Defendants often argue that a bad outcome is not "scientifically proven" until large scale epidemiology confirms cause and effect in a double-blinded, long term study which correlates logically to other scientific proof . That can take months, years or decades, depending on the substance and disease at issue.  And, the study may be confounded by variables and may not yield a conclusion. See this defense side post for a long explanation of epidemiology and litigation tactics.

Plaintiff's lawyers, on the other hand, will have to think about whether they can/should bring claims if a test was not run on a given person. They can argue an inference from others, but ...

Think also about the act and expense of ordering testing. Should doctors order tests to determine the precise source, even if it seems obvious when the 20th patient has just been seen ? Should a heath insurer pay the bill ? Should/could the paying health insurer have a remedy against the source for all expenses of tests caused by the contamination? 

Key excerpts are set out below on the exponential nature of the scientific change. Read the entire article for examples of the tools in action - the examples are powerful. 

___________________________________________________ 

"It is the start of a new age in microbiology, Dr. Musser and others say. And the sort of molecular epidemiology he and his colleagues wanted to do is only a small part of it. New methods of quickly sequencing entire microbial genomes are revolutionizing the field.

The first bacterial genome was sequenced in 1995 — a triumph at the time, requiring 13 months of work. Today researchers can sequence the DNA that constitutes a micro-organism’s genome in a few days or even, with the latest equipment, a day. (Analyzing it takes a bit longer, though.) They can simultaneously get sequences of all the microbes on a tooth or in saliva or in a sample of sewage. And the cost has dropped to about $1,000 per genome, from more than $1 million.

In a recent review, Dr. David A. Relman, a professor of medicine, microbiology and immunology at Stanford, wrote that researchers had published 1,554 complete bacterial genome sequences and were working on 4,800 more. They have sequences of 2,675 virus species, and within those species they have sequences for tens of thousands of strains — 40,000 strains of flu viruses, more than 300,000 strains of H.I.V., for example.

With rapid genome sequencing, “we are able to look at the master blueprint of a microbe,” Dr. Relman said in a telephone interview. It is “like being given the operating manual for your car after you have been trying to trouble-shoot a problem with it for some time.”

Dr. Matthew K. Waldor of Harvard Medical School said the new technology “is changing all aspects of microbiology — it’s just transformative.”

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