Unless there is a last minute change, the docket at SCOTUS indicates the respondents (the tort claimants) are due to respond today to the cert petition by GM from the Second Circuit’s ruling in the ignition switch cases.
For persons and entities involved in mass tort claiming and litigation with insurance companies and/or other payors, there’s a new and potentially notable ruling about access to past bills for legal work. The ruling is described in a February 14, 2017 article at JD Supra by Cozen O’Connor. Pasted below are the introduction and conclusion from the article. The entire article – and the opinion – should be read by people thinking about the long term, mass torts and insurance.
“The California Supreme Court recently held, in Los Angeles Board of Supervisors v. Superior Court(2016) that attorneys’ invoices may not be protected by the attorney-client privilege after litigation ends. The issue arose out of a lawsuit brought by the ACLU to obtain billing records by law firms representing the City of Los Angeles to defend litigation brought by jail inmates. The ACLU’s position was that these law firms engaged in “scorched earth” tactics.
There are three takeaways from this decision. The first is that this case signals a radical departure from the Court’s prior trend, as exemplified by the Costco case, of giving wide berth to attorney-client privilege, and retaining that privilege beyond the termination of the litigation. The second is that the academics on the Court may not appreciate the degree to which fee bills provide information to clients, especially insurance clients. The third is that this case has significance far beyond a Public Records Act dispute.”
Claims for legal advice privilege are becoming more difficult and narrower in the EU, according to a February 10, 2017 article published at JD Supra by Latham & Watkins. The article is: Reserving Privilege for the Few: The High Court Confirms the Narrow Interpretation of “Client” for the Purposes of Legal Advice Privilege.
The article includes links to three notable decisions. Among other things, the article explains:
“Central to the ruling [against RBS] was the finding that relevant employees did not fall within the definition of the “client” for legal advice privilege purposes. The Court also confirmed that English privilege rules should be applied in cases before the English court so that, even though the interview notes were likely to have been privileged as a matter of US law, they were not privileged in English proceedings.”
Reviews and predictions are emerging for Judge Gorsuch on product liability cases. Eric B. Wolffe of Perkins Coie published a helpful February 6, 2017 article at the firm’s web site, and elsewhere. A hat tip to Tort’sProfBlog for the link to a version of the article.
A bit of shameless self promotion for me and colleagues at Innovative Science Solutions. This week brought us 15 seconds of “fame” through publication of a February 7, 2017 article in a widely read national legal publication known as LAW360. The article focuses on the molecular biology revolution moving slowly but steadily into litigation involving sources of diseases, such as cancers. Science will continue to move far faster than the law, but some of us are pushing lawyers and judges to try to catch up.
Biomarker Exposure Tests Will Revolutionize Toxic Torts
Law360, New York (February 7, 2017, 12:01 PM EST) —
Some of the most difficult product liability cases to resolve are tough because of a lack of clarity as to the duration or amount of exposure. For example, defendants and plaintiffs sometimes take very different views of exposure in the so-called “take-home” cases where a spouse allegedly developed a cancer from a toxin in the workplace of the other spouse.
Over the next few years, some litigants will be smart enough to take advantage of the findings from new, objective tests that are arising due to the revolutionary developments in molecular biology.
Simply put, the revolution is moving towards increasingly fast, and relatively inexpensive, tools and tests usable to identify and measure objective molecular data related to mesotheliomas and other cancers.
These biomarkers are being developed because of their potential to transform disease management, including the diagnosis and prognosis of disease, and also to enhance risk stratification, therapy selection and population screening for diseases such as malignant mesothelioma (See, for example, Creaney 2015). But the tests can also provide data relevant to product liability lawyers.
What Is A Biomarker?
In 1998, the National Institutes of Health Biomarkers Definitions Working Group defined a biomarker as “a characteristic that is objectively measured and evaluated as an indicator of normal biological processes, pathogenic processes, or pharmacologic responses to a therapeutic intervention” (Biomarkers Definition Working Group 2001).
Broadly, a biomarker refers to any biological data point that is measured and quantified. Thus, biomarkers include everything from blood pressure to basic blood chemistry tests to more complex tests that measure myriad objective factors in biological fluids (e.g., blood) or tissues (e.g., solid tumor biopsy).
Some notable examples include circulating levels of prostate-specific antigen (PSA) for prostate cancer screening, genetic mutations (e.g. BRCA1/2 for breast and ovarian cancer risk estimates), and immunohistochemical analyses to predict response to therapy (e.g. HER2 expression for anti-Her2 therapy in breast cancer).
Clinical Trials, Biomarkers And Toxic Tort Litigation
Litigants seeking an edge understand that clinical trials are changing rapidly, and that more and more frequently, outcomes are based on measurement of biomarker data.
For example, some new forms of clinical trials are known as “basket trials” and some are “umbrella trials.” Both types are aimed at looking for genetic mutations involved in cancers, and making choices based on the observed mutations.
In addition, some leading scientific researchers are actively searching for biomarkers that can be used to demonstrate the presence or absence of a person’s exposure to substances such as cigarette smoke, benzene and asbestos, as well to aid in the diagnosis of disease.
When it comes to exposure assessment, some difficulty relates to the fact that these exposures may or may not create a unique biological response that can be effectively detected and/or measured in the form of a biomarker.
The presence or absence of a biomarker may be important for either plaintiff or defendant, and their most useful applications may be to confirm or deny past exposures, as well as to objectively quantify past exposures. In this sense, biomarkers may help generate more definitive proof that can implicate or exonerate an exposure, thereby validating or refuting arguments related to specific causation.
Five broad categories of biomarkers that are being actively investigated to refine our knowledge of asbestos-induced cancer are listed below:
- Genetic alterations that may provide “signatures” for past exposures
- Epigenetic alterations linked specifically to asbestos exposure
- Micro-RNA (miRNA) expression profiles (for asbestos exposure and cancer diagnosis)
- Protein biomarkers for early detection and/or cancer diagnosis
- Biomarkers in exhaled breath and tests for circulating tumor cells
A discussion of each of these types of biomarkers is beyond the scope of this article, but there are many great scientific resources that explain and expand upon each of these areas. For example, a Google search using terms from any of the categories will return a variety of resources for additional reading.
Overall, biomarkers are relevant to both causation and damages. As to causation, lawyers may view biomarkers as a way bolster or weaken specific causation arguments. For damages, earlier detection of disease may prolong survival of plaintiffs, leading to more downstream costs.
An Example Arises From New Scientific Findings Related To The HMGB1 Biomarker
New developments related to the High Mobility Group Box-1 (HMGB1) protein were recently published by Michele Carbone, Harvey Pass and other leading scientists in this area.
Briefly, HMGB1 is part of the body’s inflammatory process, and when it is released from the interior of cells into the blood, it induces inflammation via activation of immune responses.
This study describes promising steps toward generating a blood test to measure HMGB1 that may provide an objective measure of levels of past asbestos exposure. Essentially, the authors found that total HMGB1 blood levels are higher in asbestos-exposed individuals and mesothelioma patients compared to healthy (unexposed) controls.
However, more interesting were data related to a specific form of this protein (referred to as hyper-acetylated HMGB1). When the authors measured this biomarker, they found that it provided an exceptionally sensitive and specific biomarker to discriminate mesothelioma patients from individuals occupationally exposed to asbestos and unexposed controls.
Therefore, these findings provide a potential new avenue to detect asbestos-exposed individuals, and among them, those who have developed MM. Overall, this biomarker may help to distinguish asbestos exposure in individuals with and without disease.
The authors mentioned that a follow-on study on this very topic will start soon, which also confirms the view that this is a new frontier and that much research remains to be done. Some will be shocked when data arrives, but the knowledgeable will be watching the trial and anticipating the arrival of the data.
Lastly, it is interesting to note that the article reported research funding support from both a plaintiff’s law firm (Belluck & Fox) and from Honeywell. Kudos to all who are investing in research.
Research on biomarkers will certainly continue to move ahead at breakneck speed in 2017 and beyond. As scientists continue to unravel the science of biomarkers, much of the benefit will likely be reaped for advancing medical diagnoses and treatments.
However, savvy plaintiff and defense lawyers may find novel ways to apply the use of biomarkers to establish or refute causation in their cases. It also will be interesting to see which clients and lawyers plan ahead and invest in science, and which ones wait to be surprised.
—Giovanni Ciavarra, Innovative Science Solutions LLC, and Kirk Hartley, LSP Group LLC
Giovanni Ciavarra, Ph.D., is a scientific consultant supporting investment banks, attorneys, and pharmaceutical, biotechnology and dietary supplement firms. Kirk Hartley is the founder of LSP Group LLC, and has practiced law for over 30 years, with a focus on advising a wide range of corporations, associations and individuals (as both plaintiffs and defendants) on mass torts issues.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
2017 brought many new events, including various changes for claim administration for the “evergreen” Narco asbestos trust, with some new forms and publication of a 2016 “directive.” See this page of the CRMC site for an example, and see here and look in the list for other developments.
This page at the 9th Circuit provides briefs and orders for State of Washington v. Trump.
Almost 50 years of asbestos litigation have produced some iconic moments. One is the Baron & Budd witness coaching memo. The event is back in the news 24 years later, in a February 6, 2017 Forbes article built from Legal Newsline. The memo was not outed.
The label “tort reform” brings many reactions. But it’s an easy label for legislation involving “mass tort” claims. For an update on developments in Missouri, see this January 31, 2017 article in the Missouri Times. It will be interesting to see whether or how the the parties present and spin laws of this sort when SCOTUS takes on “mass tort ” jurisdiction issues in the near future. All side may want to be careful what they wish for ….
The issues in State of Washington v. Trump can be framed broadly or narrowly. If framed broadly, the issues may have notable impacts as precedent that goes to the tripartite structure of our government, and the extent to which courts can, should, or will “look behind” the actual words of an executive order. The brief filed last night by the states is online at this page of the Civil Rights Clearinghouse. Kudos to that group.
Also, we extracted the supporting Declaration of Former National Security Officials; see this page of Scribd for those pages only. We also put online a “reduced size” version of the entire 101 pages of the brief and its attachments; see this page of Scribd. The “reduced size” version is easier to download and/or email or …..