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

Scenario Planning Versus Demanding Purported Certainty

Posted in Litigation Industry, Mass Tort Issues

How to think about the future, and the past? Some proclaim “certainty” essential and demand “proof” with confidence intervals at .05% or above. Others suggest we need more discussions about “scenario” instead of communicating about probabilities.  Outcomes related to Father Andrew’s car accident are used in a July 20, 2017 article in the NEJM to provide a powerful example of the value of describing and thinking about scenarios instead of communicating about risk probabilities. The article is Schwarze ML, Taylor LJ. Managing Uncertainty – Harnessing the Power of Scenario Planning. N Engl J Med. 2017 Jul 20;377(3):206-208. doi: 10.1056/NEJMp1704149.

The Schwarze and Taylor article includes a useful reminder of some of the eye opening scenario planning papers that resulted from people at “big oil” thinking about various possibilities.  “In the turbulent 1970s, Pierre Wack, an economist for Shell Oil, popularized “scenario planning” to translate vast probabilistic information and facilitate strategic decisions.3,4 Rather than emphasizing precise prognostication, this technique generates multiple plausible futures. Each scenario helps decision makers visualize what might happen under various sets of assumptions — discovery of new oil fields, say, or turmoil in the Middle East — challenging their view of reality. By considering a range of scenarios, Shell’s managers could perceive how interrelated events influenced longer-term outcomes and could anticipate major changes.”

The articles are:

Wack P. Uncharted waters ahead. Harvard Business Review, September 1985 (

Wack P. Shooting the rapids. Harvard Business Review, November 1985 (

A take away? Parties and persons involved in mass tort claims might benefit from more scenario planning.

1979 – 2017 – Value Assurance Plans for “Toxic” Property Damage Situations

Posted in Damages, Litigation Industry, Mass Tort Issues

A new “toxic tort” blog (by Bill Ruskin) launched with an interesting mini-review of the use of Value Assurance Plans as a means for defendants to resolve claims involving possible diminution in value of “contaminated” property. The review is in a July 27,  2017 post at the blog bearing his name.

“American Pipe” Tolling Takes a Hit at SCOTUS; Consequences to be Determined

Posted in Litigation Industry, Mass Tort Issues, Statutes of Limitation

Late in June, SCOTUS knocked out “American Pipe” equitable tolling in a securities case, as explained in a June 27,  2017 post at Faegre Baker Daniels. This is a typical 5-4 Roberts court “bright line” ruling based on the literal language of the statute, with the usual justices on the usual side of the ruling. The dissent pointed out the usual factors that rationalized tolling.

The outcome also illustrates a typical “be careful what you wish for” situation. For one company, a win. For others, maybe not. Expect more opt out suits by more plaintiffs.

Takata Has Moved for a Futures Representative, But Who Are The Constituents?

Posted in Futures Reps, Mass Tort Issues, Policy Issues

Interesting topics are raised by a motion by Takata for appointment of Roger Frankel as a futures representative in Takata’s chapter 11 case. The case arose from Takata paying out massive amounts to pay for products recalls demanded by governments and car companies.

In the motion, Takata refers to appointment of Mr. Frankel  to advocate for future personal injury claimants. That proposed as counsel raises interesting topics since the car companies seem to be much larger claimants for product recalls, but they also likely will be claiming claims against Takata in future personal injury cases.  In a related view, other manufacturing entities may well sued when wrecks happen. And, Medicare and health insurers may assert liens against funds paid out to personal injury claimants. For which interests can/should Mr. Frankel advocate?


New Science Matters – NFL Players and CTE – 110 Out of 111 Show CTE, in a Not Random Set

Posted in Mass Tort Issues, Science

Does new science matter? Ask the NFL.  “A neuropathologist has examined the brains of 111 N.F.L. players — and 110 were found to have C.T.E., the degenerative disease linked to repeated blows to the head,” as described in a July 25, 2017 NYT article by Joe Ward, Josh Williams and Sam Manchester.  It’s an “interactive” story with various charts.

But, keep in mind selection bias is at work in this situation. As noted in the article: “The set of players posthumously tested by Dr. McKee is far from a random sample of N.F.L. retirees. “There’s a tremendous selection bias,” she has cautioned, noting that many families have donated brains specifically because the former player showed symptoms of C.T.E.”

Developments in Consumer Class Actions in the UK

Posted in Class Actions, EU Developments

Despite the many who said Europe would never allow class actions, it has happened, in varying ways and to varying degrees. The big news of late is a UK ruling disallowing an opt-out class action. The ruling, and other UK developments, are summarized in a July 23,  2017 post at D & O Diary. The first two paragraphs are pasted below; the entire article (and the opinion) should be read.

“The highest-profile attempt to utilize the new U.K. regime for consumer class actions has come to a grinding halt. The case involved a claim alleging that MasterCard’s fee structure had resulted in overcharges to tens of millions of U.K. consumers. On July 21, 2017, the Competition Appeal Tribunal, newly re-organized to oversee the consumer class action regime, declined to grant the necessary collective proceedings order that would have allowed the action to go forward. The tribunal’s ruling is highly fact-specific and its decision to decline the collective proceedings order very much reflects the specific features of the claims against MasterCard, but the ruling nevertheless does raise concerns about the viability of the class action regime and its attractiveness to prospective claimants in other cases. A copy of the Tribunal’s July 21, 2017 order can be found here.


In 2015, the U.K. Parliament enacted The Consumer Rights Act of 2015, which represented a comprehensive overhaul of the U.K.’s consumer protection and unfair trade practices laws. Among many other changes, the Act introduced an “opt-out” collective action mechanism. In particular, the Act broadens the jurisdiction of the Competition Appeal Tribunal, including the introduction of procedures for the tribunal to hear damages claims on an “opt-out” collective action basis. The Act also includes provisions for collective settlements and collective redress schemes.”

Disruption by Ignoring Law – The Story of Many “Disrupters”

Posted in Law, Law Review Articles

Finally, an article highlighting the lawlessness of many “disruptive” businesses. From SSRN:

"Forthcoming in The Handbook of Law and Entrepreneurship in the United States, Cambridge University Press 2018, D. Gordon Smith & Christine Hurt, eds.

Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-43

22 Pages Posted: 10 Dec 2016 Last revised: 2 Jul 2017

Elizabeth Pollman

Loyola Law School Los Angeles

Date Written: June , 2017


What explains the growing number of collisions and collaborations between law and entrepreneurs? How is the startup community responding? What are the implications for regulatory governance of innovative technology? This chapter explores these questions, demonstrating the growing importance of regulatory affairs and political activity for many startup companies, how politically savvy experts have become a part of the startup ecosystem, and the impact these developments may have on law and entrepreneurship.

Beginning with recent history and startup culture, the chapter identifies four developments contributing to the rise of regulatory affairs in innovative startups. First, with mature technology and widespread Internet connectivity, recent startups have focused on innovations in the physical world, disrupting industries that are situated in webs of regulations. Second, a generation of engineers has grown up in a culture of “hacking” problems and pursuing “permissionless innovation,” which has fostered a willingness to create technology that challenges existing legal frameworks. Third, leaders in the technology industry have demonstrated increasing political engagement, normalizing such activity in an industry that had not previously been known for it. Fourth, changing market trends and regulations have helped startups raise millions, even billions, of dollars that can be used to fund efforts to change laws, engage experts, and battle incumbents and regulators who stand in their way. Further, the chapter examines how the startup community has responded to these developments by bringing in and creating new opportunities for individuals with government and policy expertise and connections. Finally, the chapter takes up one of the fascinating implications of startups colliding with regulations and having the expertise to navigate politics and policy — that the story of legal change is not as simple as sometimes portrayed, with the law always lagging behind technology. This chapter contends the “lagging law” story is worth reexamining in light of private and public collaboration in the governance of innovative technology.

Keywords: Startup, entrepreneurship, innovation, regulation, regulatory affairs, corporate political, lobbying, new governance, startup companies, unicorn, regulatory entrepreneurship, Uber, Airbnb, FinTech

JEL Classification: L26, M13, A33, G38, K20, K22, P16″

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.”