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

Thalidomide Compensation Continues to Evolve In Canada

Posted in Mass Tort Issues

In March 2015, the Canadian government acknowledged that known victims of thalidomide needed services and medical care they could not possibly afford, and agreed to provide money for such programs. A program was established under the name the Thalidomide Survivors Contribution Program; it has a more or less “official” web site at

Subsequently, the program was criticized for not covering some persons due to their inability to meet relatively stringent criteria despite facts that strongly suggested in fact they had suffered injuries from thalidomide. Some of the arguments are described in an October 23, 2016 article at the CBC news web site. The article reports that one apparent victim, Ms. Jenkins, engaged a geneticist to comment on her hand deformities. It states:  “Jenkins arranged for clinical geneticist Gudrun Aubertin at Victoria General Hospital to carefully assess her hands. Aubertin determined that Jenkins’ deformed hands were in all likelihood the result of being subjected to thalidomide in the womb. “The history fits,” Aubertin said. “The timing of the pregnancy. The fact that there was a history of anti-nausea medication. Common sense would dictate that this person is deserving the compensation.”

Legislative hearings were held in 2017, which included testimony from the plan administrator (Crawford & Co.) on persons covered or not covered and the reasons for decisions. The hearings and recommendations are described in a June 8, 2017 letter from the House of Commons Standing  Committee on Health to Jane Philpott, Minister of Health. Next steps apparently are still in process.

K&L Gates Explains: Who Will Be Handling Your [Asbestos] Claims Under Berkshire Hathaway’s Latest Retroactive Reinsurance Deals?

Posted in Asbestos, Insurance, Resolute

Berkshire’s appetite for asbestos claim revenue has generated numerous interesting deals, to the least. The latest pair of deals received some public analysis in a July 13, 2017 web site article by insurance coverage lawyers at K & L Gates.  The introduction describes the deals reviewed; see the full article for the conclusions.

“Earlier this year, NICO announced that it had entered into two new retroactive reinsurance transactions –one with various AIG group insurers (the “AIG/NICO Deal”) and the other with the Hartford group insurers (the “Hartford/NICO Deal”). These two recent transactions differ from many of NICO’s prior retroactive reinsurance deals ─in which NICO and its affiliated claims-handling entity, Resolute Management Inc. (“Resolute”), had been given claims-handling responsibility ─ in that the recent transactions do not purport to give control of claims handling to NICO (and Resolute).

Despite representations in the press releases from AIG and Hartford announcing these deals that they (and not NICO) will maintain control of claims handling, a careful reading of the transactional documents for the AIG/NICO Deal and the Hartford/NICO Deal reveals that NICO gained important rights related to claims handling which, if fully exercised, could significantly impact how policyholder claims are handled and resolved (and, ultimately, whether those claims are paid). This Alert discusses how policyholders may be impacted by NICO’s exercise of the claims-handling related rights provided to it under the AIG/NICO Deal and the Hartford/NICO Deal.”

Cells – as Recorders of Events

Posted in Cancer, Science

The molecular revolution continues, with continuing implications for improving our understanding of how external events effect our cells.  As part of that journey, a group of researchers recently used CRISPR to embed a video into DNA and then retrieve it from the DNA, as described in a July 12, 2017 article at Stat News.  Why? One goal of this work is to learn how to get cells to record what happens to them. A key quote: “With this work, Shipman said they eventually want to create “molecular recorders,” which are living cells that could sense things in the environment, like toxins or heavy metals, and record and store that information within their DNA.”

Ancient Product Liability and/or Prehistoric Risk Assessment? “Scientists recreate Californian Indian water bottles to study ancient exposure to chemicals”

Posted in Science

A recent article caught my eye as it in some ways bridges older and newer lines of thinking and living.  The article describes current researchers testing an old Indian bottle making process for risks related to the use of bitumen. The article is summarized in a June 23, article at Science Daily. The introduction explains the points; note that the scientific paper is open access. The paper is titled: “Ancient water bottle use and polycyclic aromatic hydrocarbon (PAH) exposure among California Indians: a prehistoric health risk assessment.”

“Water bottles replicated in the traditional method used by Native Californian Indians reveal that the manufacturing process may have been detrimental to the health of these people. The study is published this week in the open access journal Environmental Health.

The researchers wanted to know if bitumen — a material derived from petroleum — could have had an impact on the health of ancient Californian Indians. Bitumen consists of polycyclic aromatic hydrocarbons (PAHs), which are associated with a range of health problems including cancer, hormone imbalance, organ damage and developmental impairments. Modern humans are commonly exposed to PAHs through burning of fossil fuels, food processing and tobacco smoking.

Archaeological evidence and ethnohistorical records show that bitumen was used by Native Californian Indians for a variety of purposes including as a sealant for water containers, fixing arrowheads, and as a material for producing smoke signals. Ancient skeletal remains show that Native Californians suffered a health decline over time, but bitumen use as a health risk factor has not been explored until now.”

Sabrina B. Sholts, Kevin Smith, Cecilia Wallin, Trifa M. Ahmed, Sebastian K. T. S. Wärmländer. Ancient water bottle use and polycyclic aromatic hydrocarbon (PAH) exposure among California Indians: a prehistoric health risk assessment. Environmental Health, 2017; 16 (1) DOI: 10.1186/s12940-017-0261-1

BMS is Out; Personal Jurisdiction Narrowed for “Mass Tort” Cases

Posted in Jurisdiction, Litigation Industry, Mass Tort Issues

As expected, SCOTUS used the BMS case to narrow the rules for the assertion of personal jurisdiction against a defendant.  Bexis provided the short version summary in a June 19, 2017 post at Drug & Device blog. Some defendants will be pleased but others are not pleased. Ditto for lawyers, on both sides. Inevitably, this outcome seems likely to lead to more lawsuits in more states. In turn, that may also lead to more use of AI in order to coordinate between actions. Interesting times ahead.

Takata Is Headed for Chapter 11 Due to Exploding Air Bags

Posted in Bankruptcy

It’s been a long time coming, but it appears Takata is now headed for chapter 11 to address the many problems arising from its exploding airbags, as explained in a June 15, 2017 article from Reuters. If the numbers in the article are accurate, this could prove an interesting contrast to the typical “mass tort” chapter 11 cases. Why? The major creditors are car manufacturers instead of personal injury claimants.

“Attorney-Client Privilege and Corporate E-Mail: Navigating the Morass of Personal Communications in Investigations”

Posted in Litigation Industry, Privileges

The ubiquity of email and 24/7 work are creating new privilege issues. Some are addressed  an interesting June 9, 2017 JD Supra article by King & Spalding on a recent New York trial court opinion on issues arising from “personal” use of business computers and email accounts.

Manville Trust Transparency – Data from David Austern

Posted in Asbestos, Asbestos Bankruptcy, Cancer

In the good old days, there was more asbestos trust transparency as to overall statistics for the Manville Trust. One reason for the transparency was presentations by David Austern at asbestos litigation conferences. As an example, consider this detailed set of data showing claims by disease for the “pre-1995 period” up through 2001.  The data was presented at the 2002 Mealey’s Asbestos Bankruptcy Conference.