The Intersection Among Torts, Science, Corporate Law, Insurance & Bankruptcy

“Securities Class Actions Around the World”

Posted in Litigation Industry, Mass Tort Issues

Time has passed and securities class actions are now global in many ways, a topic to be covered in an ABA webinar  described online. It explains:

“In the recent years after Morrison, securities class actions have expanded around the world. This program features a distinguished panel of speakers from the Netherlands, U.K., Canada, and the U.S. who have been involved in landmark decisions. They will share their knowledge and thoughts on the different venues and their varying appeal to potential class action plaintiffs, as well as trends affecting the development of securities class action procedures outside the U.S.”

Globalization was plainly foreseeable; as I pointed out when Morrison was decided. A 2016 article by Professor Coffee lays out many of the developments.

No Enforcement for an Old, Outmoded Arbitration Clause

Posted in Litigation Industry

With thanks for the cogent analysis by Steve Garmisa on an unusual issue, here’s the opening paragraph from a March 6, 2017 Chicago Daily law Bulletin article. It’s about a ruling on an unusual fact pattern involving an old, outmoded arbitration clause:

“With one justice dissenting, the Illinois Appellate Court ruled the arbitration rider in a 1999 contract between Rosemary Keefe and Allied Home Mortgage — which called for arbitration “governed by” Sections 1 through 4 of the Federal Arbitration Act and the National Arbitration Forum’s 1999 code — was unenforceable because: (1) the NAF stopped handling consumer cases in 2009; (2) there was an “implicit” agreement “to arbitrate their disputes exclusively before the NAF, governed by the 1999 version of the NAF code”; (3) the rider didn’t incorporate Section 5 of the FAA, which provides procedures for picking a substitute arbitrator; and (4) the defendants failed to provide the court with a copy of the 1999 NAF code. Keefe v. Allied Home Mortgage Corp., 2016 IL App (5th) 150360 (Nov. 28, 2016).”

Got 500k Leukemia and Lymphoma Genomes?

Posted in Cancer, Litigation Industry, Mass Tort Issues

Imagine all the data, hypotheses and conclusions that will emerge from sequencing 500k biobanked leukemia and lymphoma tumors … Imagine the implications for workers compensation and civil litigation if there are associated work histories.

Pasted below is the full text of the March 8, 2017 press release.


Munich Leukemia Laboratory Selects IBM Watson and Illumina for Research Collaboration to Advance Diagnostics and Develop Personalized Treatment Tools for Leukemia & Lymphoma

Watson Takes on Hematology Research in First Collaboration in Germany; Effort Marks Illumina’s First European Adopter of NovaSeq™

CORRECTION…by Munich Leukemia Laboratory

March 08, 2017 03:52 AM Eastern Standard Time

MUNICH–(BUSINESS WIRE)–Please replace the release with the following corrected version due to multiple revisions.

The corrected release reads:


Watson Takes on Hematology Research in First Collaboration in Germany; Effort Marks Illumina’s First European Adopter of NovaSeq™

Munich Leukemia Laboratory (MLL), a state-of-the-art leukemia and lymphoma diagnostic and research laboratory based in Munich, has teamed up with IBM (NYSE: IBM) and Illumina, Inc. (NASDAQ: ILMN) to help build a new cognitive technology prototype that aims to help researchers improve leukemia treatment.

The prevalence of leukemia is on the rise in Europe, with 15,000 new diagnoses each year in Germany alone.(1) MLL will use NovaSeq technology from Illumina, the global leader in next-generation sequencing technology, to sequence samples from its biobank of more than 500,000 cases. MLL researchers then plan to use Watson to help interpret the genomic data alongside other data sources. The project intends to include innovative testing processes such as automated phenotyping and genotyping including whole genome sequencing (WGS) and transcriptome sequencing (RNA-Seq) in 5,000 cases.

The ultimate goal is to develop a Watson-based technology prototype that can analyze genomic and phenotypic data alongside medical literature, guidelines and study results, providing clinicians with information relevant to leukemia care. Following successful development, the tool could also be made available to other laboratories in the future.

Prof. Torsten Haferlach, co-founder and CEO of MLL, states, “We at MLL are excited to combine our data and knowledge, IBM’s cognitive computing tools, and Illumina’s new sequencing platform to create a new era of insights in leukemia biology that will also drive more personalized treatment strategies.”

“As a company committed to improving human health, we are delighted to welcome MLL as our first European customer to adopt the NovaSeq platform,” said Paula Dowdy, Senior Vice President and General Manager, Illumina, Europe, Middle East, and Africa. “MLL’s strategic decision to create a future path for whole-genome sequencing to help promote better health outcomes, reflects one of Illumina’s key strategies to connect genomics to the everyday lives of those living with cancer.”

MLL will utilize Illumina’s BaseSpace Informatics Suite to be able to streamline data analysis, storage, data curation and aggregation. The BaseSpace Sequence Hub Frankfurt site will help MLL manage the data as the project scales and facilitates data transfer to IBM Watson. Additional tertiary analysis with BaseSpace Cohort Analyzer and BaseSpace Correlation Engine allows MLL’s genomic data to be combined with other clinical data to enhance interpretation results.

“Cognitive computing is critical to help providers unlock the insights hidden in large data pools and scale their expertise in a global market through digital services,” said Bart de Witte, director of digital health, IBM. “This research collaboration is indicative of the growing global market to create and implement new cognitive approaches to data-driven challenges for health systems that are increasingly overwhelmed by data.”


(1) European Leukemia Network:

About MLL

The Munich Leukemia Laboratory was founded in 2005 to take diagnostic responsibility for patients with leukemia and lymphoma for both in-patient and out-patient settings. The team of 150 hematologists, researchers and technicians works to optimize and refine diagnostics, including automation of laboratory procedures and improvements according to the established norms of EN ISO 15189 as well as national and international involvement in scientific projects and research trials. MLL is committed to expanding and improving high-quality diagnostics of hematological neoplasms, at the highest scientific and technical levels.

About IBM

IBM Watson is the first commercially available cognitive computing capability representing a new era in computing. The system, delivered through the cloud, analyzes high volumes of data, understands complex questions posed in natural language, and proposes evidence-based answers. Watson continuously learns, gaining in value and knowledge over time, from previous interactions. The IBM Watson Health unit helps improve the ability of doctors, researchers and insurers to innovate by surfacing insights from the massive amount of personal health data being created and shared daily. For more information on IBM Watson, visit: For more information on IBM Watson Health, visit:

About Illumina, Inc.

Illumina is improving human health by unlocking the power of the genome. Our focus on innovation has established us as the global leader in DNA sequencing and array-based technologies, serving customers in the research, clinical and applied markets. Our products are used for applications in the life sciences, oncology, reproductive health, agriculture, and other emerging segments. To learn more, visit and follow @illumina.


MLL Media Contact
Torsten Haferlach, +49 89 990170
IBM Media Contacts
Annette Fassnacht, +49 151 65136642
IBM Watson Health
Christine Douglass
Illumina, Inc. Contacts
Rebecca Chambers, 858-255-5243
David Robertson, +44 1223 824909
(Europe, Middle East, and Africa)
Jen Carroll, 858-882-6822

Not One, But Two, State Supreme Courts Uphold Strict Application of Daimler Last Week

Posted in Asbestos, Litigation Industry, Mass Tort Issues

A guest post from three of the many smart lawyers at Maron Marvel Bradley Anderson & Tardy LLC. Unlike me, they can keep up, and the knowledge and posts are very much appreciated.

March 3, 2017

Not One, but Two, State Supreme Courts Uphold Strict Application of Daimler This Week
by Stephanie A. Fox, Antoinette D. Hubbard and Donald R. Kinsley

Two decisions issued this week by state supreme courts show the upheaval that is taking place in personal jurisdiction, and are representative of the legal questions being pondered by attorneys and within many federal and state courts across this nation since January 2014.      Does Daimler apply to my case?   Will its application benefit the final outcome of my litigation?    In the now-seminal Daimler AG v. Bauman , 134 S. Ct. 746 (2014) opinion, the Supreme Court revisited the issue of personal jurisdiction in a way not seen since Int’l Shoe Co. v. Washington , 326 U.S. 310 (1945) and  Pennoyer v. Neff , 95 U.S. 714 (1878) and confirmed unequivocally that a court cannot assert general jurisdiction over a corporation unless that corporation (1) is either incorporated or principally based in that forum; or (2) has affiliations with the forum that are “so continuous and systematic as to render it essentially at home” there.  Id. (quotation marks and brackets omitted) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 US 915 (2011).   If nothing else, Daimler was an attempt to maintain restrictions on the exercise of general jurisdiction, not to expand it, and to provide corporations some predictability on where they may be sued.   Since Daimler, many courts have been presented with motions by defendants seeking dismissal based upon lack of general personal jurisdiction.    Some state courts have vigorously supported the application of Daimler, while others have found factual differences to deny such personal jurisdiction challenges.   Numerous opinions have been issued in the past two (2) years, but what remains uncertain is the long- term application going forward.    That may become clearer when the Court decides the two cases being argued next month:   BNSF Railway Co. v. Tyrrell , No. 16-405, and Bristol-Myers Squibb Co. v. Superior Court of Californi a, No. 16-466.  Oral arguments for both are scheduled for April 25, 2017.

This week, however, non-resident defendants sued in Missouri and Oregon were given more clarity on Daimler‘s impact, at least for the immediate future.   On February 28, 2017, the Missouri Supreme Court issued its ruling in State ex rel. Norfolk So. Ry. Co. v. Hon. Colleen Dolan, No. SC95514, applying a strict reading of Daimler.  The Court held that Missouri courts do not have personal jurisdiction (specific or general) over Norfolk Southern Railway Company.   Russell Parker, an Indiana resident, brought a Federal Employer’s Liability Act (FELA) suit in St. Louis County, alleging injury as a result of his years of employment by Norfolk Southern in Indiana.   Norfolk Southern Railway is a Virginia corporation with its principal place of business in Virginia.  Norfolk moved for lack of personal jurisdiction, which was overruled (without opinion) by the trial court.    A petition for writ of prohibition or, in the alternative, a writ of mandamus, was subsequently denied by the Missouri Court of Appeals.    Further appeal was made by Norfolk to the Missouri Supreme Court.

Parker argued that Missouri courts had both general and specific jurisdiction over Norfolk, and, alternatively, that Norfolk consented to personal jurisdiction by registering to do business in Missouri and appointing a Missouri agent for service of process, or that FELA conferred specific personal jurisdiction over a railroad in any state where the railroad owned or operated tracks.   The Missouri Supreme Court rejected all of Parker’s arguments,  holding  that, while prior to Daimler, Norfolk’s “continuous and systemic” business in Missouri would have supported general jurisdiction, post Daimler that, “…is no longer the law.”  Slip op. at 6. Instead, the Court found Norfolk’s contacts insufficient to establish general jurisdiction. Applying Daimler, the Court held that courts can only exercise general jurisdiction over a corporation if that corporation’s place of incorporation or its principal place of business is in the forum state, or in exceptional cases, where the corporation’s activities are so substantial and of such a nature as to render the corporation essentially at home in that forum state.  Applying the analysis of both Daimler and Brown v Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016), the Missouri Supreme Court found Norfolk’s activities in Missouri insufficient to confer general jurisdiction in that they represent only a tiny portion of Norfolk’s entire nationwide business.  (Norfolk’s business in Missouri is only 2% of its nationwide business.  Norfolk owns or operates some 400 miles of track, generates $232 million in revenue, and employs 590 people in Missouri. It generates greater revenue in 11 other states, and has track in 22 others, and more employees in 13 other states.) Norfolk’s activities in Missouri are quite distinct from the nerve center of activities the U.S. Supreme Court posited might be sufficient to make it, essentially, Norfolk’s home state.

Parker further argued that Norfolk is subject to specific jurisdiction since Norfolk purposely availed itself of the opportunity to do business in Missouri – the injuries in Indiana were injuries “arising from or related to” the same “type” of activities as Norfolk’s Missouri activities – and that FELA itself provides specific jurisdiction any place a railroad corporation has tracks.   Accepting such an analysis, according to the court, would go beyond the pre-Daimler approach to general jurisdiction.    It would turn specific jurisdiction on its head as every state would then have specific jurisdiction over every national business.     As to FELA, the court recognized that Parker’s relied-upon provision in FELA only references “venue” and does not address personal jurisdiction.

Finally, Parker argued that Norfolk consented to personal jurisdiction by complying with Missouri’s foreign corporation registration statutes and appointing an agent.  The court specifically rejected this argument and stated that, to the extent the holdings or dicta of its prior cases may suggest otherwise, they should not be followed.  The court specifically held that the Missouri registration statute does not provide an independent basis for broadening Missouri’s personal jurisdiction to include the corporation’s forum activities when the usual bases for general jurisdiction are not present.

In the second state high court decision this week applying a strict reading of Daimler, the Oregon Supreme Court issued its ruling in Barrett v. Union Pacific Railroad Co., CC 15CV27317; SC S 063914 (March 2, 2017).  The Court held that Oregon courts do not have personal jurisdiction over Union Pacific Railroad Company for claims unrelated to the railroad’s activities in the state.  Christopher Barrett, an Oregon resident, brought an action in Oregon to recover for injuries he sustained while working for Union Pacific as a spiker machine operator near Minidoka, Idaho.   Union Pacific is a Delaware corporation with its principal place of business in Omaha, Nebraska.   It operates railroads in 23 states, including Oregon and has been engaged in business in Oregon on an ongoing basis for a substantial period of time.  Indeed, one of its now-merged subsidiaries first began operating in Oregon in 1863.   Oregon forms a significant part of Union Pacific’s business (the company owns approximately 32,000 miles of track in 23 states, with approximately 3.4% of those tracks in Oregon, and Oregon is ninth in terms of number of employees and fourteenth among the states in revenues generated for the railroad company).   Barrett argued that Oregon has general jurisdiction over Union Pacific under FELA and, because of Union Pacific’s actions in Oregon were “so substantial and of such a nature as to justify suit against [Union Pacific] on causes of actions arising from dealings entirely distinct from those activities.” (quoting Goodyear).     The trial court ruled that it could exercise general jurisdiction over Union Pacific.   Union Pacific sought a writ of mandamus to the trial court, which adhered to its initial ruling after an alternative writ was issued by the Supreme Court to the trial court.  On review, Barrett also argued that Oregon has specific jurisdiction over Union Pacific.

The Oregon Supreme Court recognized that there was no dispute that “Union Pacific has engaged in a ‘substantial, continuous, and systematic course of business’ in Oregon.”   However, while substantial, the activities are only a small part of its larger business activities in 23 states.   The court applied the same reasoning as applied in Daimler, that if the state exercised general jurisdiction over Union Pacific because that company’s activities in Oregon are substantial and continuous, then every state in which Union Pacific has engaged in similar activities could simultaneously assert general jurisdiction over the company – thus placing it at odds with the Due Process Clause.   Barrett advanced three interrelated reasons why Daimler does not foreclose Oregon from exercising general jurisdiction; contending that (1) there is no unfairness to subjecting Union Pacific to general jurisdiction in light of its substantial and continuous business presence; (2) Union Pacific employs 1,700 persons in Oregon, has annual payroll in Oregon in excess of $144.6 million, owns and operates almost 1,100 miles of track in the state and generates over $645 million annual revenue; and (3) the case is factually distinguishable from Daimler since it does not require attributing the activities of an in-state agent to a foreign corporation.    The court appreciated the distinctions raised by Barrett, but was not persuaded that Daimler can be so easily distinguished.

Barrett also relied upon section 56 of FELA for the proposition that general jurisdiction is proper.    The 1910 codification by Congress added what is now section 56 of FELA which provides that “Under this chapter an action may be brought in a [District Court of the United States], in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such an action.   The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.”  36 Stat 291; see 45 USC § 56.    Barrett relied upon Baltimore & Ohio R. Co. v. Kepner, 314 US 44 (1941) and Miles v. Illinois Central R. Co., 315 US 698 (1942), both of which predated Daimler.  Like the Missouri court in State ex rel. Norfolk So. Ry. Co., the Oregon court was not persuaded by this argument, stating simply that section 56 of FELA addresses venue and subject matter jurisdiction; not personal jurisdiction.

Finally, Barrett argued that the relationship among Union Pacific, the forum, and this litigation were sufficient to give Oregon specific jurisdiction over Union Pacific.   This was not raised in the court below and the factual record with regard to specific jurisdiction was not fully developed.   The Oregon court noted that the only Oregon-specific fact before the trial court was that Barrett was a resident of Oregon.    The Oregon Supreme Court indicated that, without more, it could not say that the trial court had specific jurisdiction over Union Pacific.

Justice Walters dissented, suggesting that Oregon should have authority to adjudicate a FELA claim brought by one of its residents against a railroad that has laid tracks and conducted its unique interstate railway business in the state for over 100 years.   Justice Walters concluded that this would be one of the “exceptional” cases referred to in Daimler, and undertook a detailed analysis of the history of FELA.   Justice Brewer joined in the dissenting opinion.

These decisions certainly serve as a fitting backdrop for the upcoming decisions by the U.S. Supreme Court coming later this year.

Maron Marvel Bradley Anderson & Tardy LLC


Genomics, DNA and Asbestos Litigation – Don’t Miss the Perrin Conference on March 6-7

Posted in Uncategorized

The March 6-7 Perrin Asbestos Litigation conference will be valuable, as always. I’m especially looking forward to this panel:

“3:45 PM – The Role of DNA in Asbestos Litigation

 Arnold R. Brody, Ph.D., Professor Emeritus, Department of Pathology, Tulane University School of Medicine – New Orleans,

LA Joshua D. Lee, Esq., Riley Safer Holmes & Cancila LLP – Chicago, IL

Lisa L. Oberg, Esq., Dentons US LLP – Oakland, CA

Gilbert L. Purcell, Esq., Brayton Purcell LLP – Novato, CA

Len M. van Zyl, Ph.D., ArrayXpress – Raleigh, NC E.

Robert Wassman, MD FACMG, FAAP, Principal, Life Designs Ventures – Park City, UT”

Jurors In Toxic Tort Litigation Take Genetics Seriously

Posted in Asbestos, Cancer, Litigation Industry, Mass Tort Issues, Science

In the shameless self-promotion department, another article on “omics” and torts. LAW360 kindly published this on February 21, 2017.  In my view, it’s critical for trial lawyers to get focused on a range of topics related to “omics” and toxic torts.

Jurors In Toxic Tort Litigation Take Genetics Seriously

Law360, New York (February 21, 2017, 11:46 AM EST) —

David Schwartz

Kirk Hartley

Can jurors grasp the role of genetics in personal injury claims alleged to arise from exposure to specific chemicals? Can judges grasp the issues well enough to really help expert witnesses present the issues clearly, and to help jurors understand?

Not long ago, we saw the first asbestos trial making explicit reference to a plaintiff with BAP1 mutations and the alleged role of those mutations in the causation story. The point of this article is to provide some more specific information from that trial with respect to the genetic information described and to highlight the message that jurors take genetic testimony seriously.

The first mesothelioma trial emphasizing the role of genetics in establishing a causal link between asbestos exposure and mesothelioma involved a plaintiff named Holly Ortwein. The case (No. RG13701633) was tried to a jury in the Alameda County Superior Court before Brad Seligman, a judge who has tried multiple asbestos cases.

According to lawyers from the trial, the jury consisted primarily of college graduates, and included at least two jurors with advanced degrees.

The lone defendant at trial was CertainTeed, a maker of pipe that contained blue (crocidolite) asbestos fibers. CertainTeed was represented by Frank Belfield and Jennifer Lee of Dentons US, and Elizabeth Geise and Neil Lloyd of Schiff Hardin. Holly Ortwein (and then her estate) was represented by Joe Satterley, Justyn Bosl and Andrea Huston of the Kazan firm.

The genetic issue in the Ortwein trial revolved around the BAP1 mutation, and its role in mesothelioma. Normally, all persons have two working copies of the BAP1 gene. The undisputed fact in this case was that Holly Ortwein was not “normal” because she inherited from her parents one mutated copy of the BAP1 gene; her BAP1 mutation prevented the production of “normal” amounts of the BAP1 protein that works (along with other proteins) to suppress cancers by repairing defects in cell DNA.

Also, in the tumor itself, Ortwein’s “normal” BAP1 gene was missing because it had been “knocked out.” Thus, in the cells that comprised Ortwein’s mesothelioma, there were zero normal copies of the BAP1 gene, and therefore little or no BAP1 protein was being manufactured (i.e., “expressed”) in those cells.

Sadly, Holly Ortwein was from a family heavily affected by mesothelioma. In fact, mesothelioma had previously killed three other members of her first generation family. Thus, Ortwein was the fourth family member killed by mesothelioma.

At trial, Ortwein’s trial team presented the first ever trial testimony of Joseph Testa, PhD. Dr. Testa is one of the lead authors on some of the seminal papers on the role of BAP1 in mesothelioma and one of the world’s most accomplished researchers in this area.

Testa testified on Jan. 14, 2016, and was presented by Justyn Bosl. After he testified, Judge Seligman followed the desirable practice of allowing the jury to submit written questions, which Judge Seligman first discussed with counsel in chambers and then presented to Testa in open court.

The questions and answers are pages 163-173 of the daily transcript. The jurors’ questions, as asked by Judge Seligman, are set out below, with some very slight editing.

Q1. So the first is, is there a BAP1 genetic mutation that disables both genes versus just one copy of a gene?

Q2. You said there were 10 to 12 or 5 to 6 additional mutations that were required to move from Stage II to Stage III in the diagram, talking about your earlier diagram about how cancer develops. Can you clarify the number, and does this difference matter?

Q3. Asbestos — this is a question. Asbestos exposure causes the additional mutations alone or does the cancerous growth itself cause the mutations as well?

Q4. There was some testimony about children getting mesothelioma under 10. And the question, I think, is, for those children where there’s no history of asbestos exposure, do you believe that there, in fact, must have been asbestos exposure, natural or environmental, that we just don’t know about or that this was caused some other way? [edited slightly]

Q5. You noted that asbestos can both initiate and promote the development of mesothelioma. Are some types of asbestos more aggressive initiators and/or promoters of mesothelioma?

Q6. Can you say anything about the degree to which crocidolite is more aggressive in the presence of a BAP1 mutation?

Q7. There’s — would you agree that there’s no evidence — that there’s no evidence showing an increase in mesothelioma in the general population among people with a BAP1 mutation?

Q8. And I guess this is a follow-up, which is, is there sufficient evidence to conclude that BAP1 mutation is a risk factor for a number of cancers, but, in the absence of asbestos exposure, it would not on its own cause mesothelioma?

Q9. You agree that those who are aware they have a BAP1 syndrome would do well to closely monitor their health for specific malignancies. But if BAP1 syndrome is so rare, how would anyone ever know to be screened for it, especially if they appear to be otherwise healthy?

In our view, the questions asked by the jury are excellent. They highlight the view that the jury is engaged with the genetic testimony and is trying to appropriately utilize that testimony.

That’s important because good science arises from asking good questions. Indeed, Dr. Testa, started his answer to Q3 by saying: “That’s an extremely interesting question.”

And we think the same principle applies to good verdicts. So, what did the Ortwein jury decide about the role of BAP1 in the causation of mesothelioma associated with asbestos exposure?

There was no jury verdict; the case settled shortly before it would have been sent to the jury.

Two more comments seem apt. First, we applaud Judge Seligman for letting jurors submit questions in follow up to expert testimony and then for taking those questions seriously enough to present to the expert.

Second, we hope trial lawyers are thinking about the big picture questions regarding juries and the topics of cancer, genetics and disease causation. We predict these topics will become more and more important in the near future.

—By David Schwartz, Innovative Science Solutions LLC, and Kirk Hartley, LSP Group LLC

David Schwartz, Ph.D., is head of scientific support to counsel at Innovative Science Solutions, where he helps clients defend and support pharmaceuticals, industrial chemicals, medical devices, foods and dietary supplements in the courts, the regulatory arena and the market place. 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.

Simmons Hanly Names New Partners in Mass Tort Cases

Posted in Asbestos, Litigation Industry, Mass Tort Issues

From the January 17, 2017 Issue of the Chicago Daily Law Bulletin. It’s interesting to see practice areas as defined by a plaintiff’s firm.

“Simmons Hanly Conroy LLC named Karoline B. Carstens, Warren Brent Copple, Kenneth P. Danzinger, Suvir Dhar, Ryan Dickherber, Michael Cody Favilla, John J. Foley, Courtney E. Harashe Gregory, Ryan J. Kiwala, Christopher J. Levy, John E. Richardson Jr. and Andrew S. Williams as shareholders.

Carstens, Danzinger, Dhar, Dickherber, Gregory, Levy and Richardson practice on helping those affected by asbestos-related diseases, such as mesothelioma.

Copple works as an asbestos and mesothelioma attorney.

Favilla practices on discovering and exposing what asbestos companies knew about the dangers of asbestos exposure and their failure to protect their employees.

Foley practices on protecting the rights of victims harmed by dangerous pharmaceutical drugs, such as Yaz, Reglan, Chantix, Actos and Depakote and medical products like transvaginal mesh.

Kiwala has 11 years of experience developing mesothelioma cases against defendants that neglected to protect workers from exposure to asbestos.

Williams practices on representing cases in pharmaceutical injury litigation.

All of the newly named shareholders are based in the firm’s Alton office except Danzinger, who works from Chicago.”

Order on Damages in a UK Mesothelioma Case

Posted in Asbestos, Caps on Damages, Damages, International Asbestos

Comparing mesothelioma cases damages in the UK to similar damages in the US usually produces some amazement. A January 13, 2017 UK trial court ruling is online here, and well worth reading for comparative purposes. The case involves a successful entrepreneur, now in mid-70s, and fated to die of pleural and peritoneal mesothelioma from tradesman work on boilers in his early twenties. The court delayed ruling on damages, which plaintiff’s counsel at Leigh Day characterized as a win for plaintiff in a February 8, 2017 blog post. The arguments about economic loss are all about numbers in the low 6 figures. As described in paragraph 19 of the order, “[t]he figure of £90,000 was agreed as the correct assessment for pain, suffering and loss of amenity.”

Sole Proximate Cause in Illinois – the Journey Continues

Posted in Asbestos, Litigation Industry

The journey continues in Illinois on “sole proximate cause.” In Madison County, an ongoing trial presents contested issues regarding “sole proximate cause” in the context of asbestos litigation. The case is described in a February 15, 2017 article at Madison-St. Clair record.

The journey also is ongoing in more general cases at the appellate level. The Supreme Court of Illinois last week issued a decision on FELA and sole proximate cause in Wardwell v. Union Pacific Railroad, which is online here. The case involved an automobile wreck  involving a drunk driver. Not surprisingly, the Court held the jury could find the drunk driver was the sole cause of the wreck. Perhaps most interesting is the special concurrence, which addresses jury instructions for FELA cases.

Update on SCOTUS and GM’s Bid for Certiorari in the Ignition Switch Cases

Posted in Constitutional Law/Mass Tort Law, Due Process, Futures Reps

According to this page of the SCOTUS web site, underlying plaintiffs timely filed their briefs opposing GM’s bid for certiorari on February 16, 2017. The page shows the briefs as follows (but does not include links to the briefs). So far, the briefs also are not on LAW360.


No. 16-764
General Motors LLC, Petitioner
Celestine Elliott, et al.
Docketed: December 15, 2016
Lower Ct: United States Court of Appeals for the Second Circuit
  Case Nos.: (15-2844, 15-2847)
  Decision Date: July 13, 2016
  Rehearing Denied: September 14, 2016
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Feb 16 2016 Brief of respondents Ignition Switch Pre-Closing Accident Plaintiffs and Groman Plaintiffs in opposition filed.
Dec 13 2016 Petition for a writ of certiorari filed. (Response due January 17, 2017)
Jan 3 2017 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioner.
Jan 3 2017 Waiver of right of respondents Participating Unitholders to respond filed.
Jan 6 2017 Order extending time to file response to petition to and including February 16, 2017, for all respondents.
Jan 6 2017 Waiver of right of respondents Doris Powledge Phillips, Individually and as Represenative of the Estates of Adam Powledge, Rachel Powledge, Isaac Powledge, Christian Powledge and Jacob Powledge, all deceased to respond filed.
Jan 17 2017 Brief amicus curiae of The Product Liability Advisory Council, Inc. filed.
Jan 17 2017 Brief amicus curiae of National Association of Manufacturers filed.
Jan 17 2017 Brief amici curiae of The Chamber of Commerce of The United States of America, et al. filed.
Feb 16 2017 Brief of respondent Wilmington Trust Company in opposition filed.
Feb 16 2017 Brief of respondents Ignition Switch Pre-Closing Accident Plaintiffs and Groman Plaintiffs in opposition filed.