Interesting to see how times change. By the time I finished law school in 1983, no one had mentioned “dawn raids” or apps to address them. But now, there is indeed an app for that. It’s described in an April 10, 2017 article at the Baker & McKenzie web site.
Suppose your next jury trial involves issues about cancer. Will you be able to use AI and big data – during jury selection – to quickly find all of a possible juror’s social media comments about cancer? Check out this April 26, 2017 article at Artificial Lawyer about a firm trying to make that happen. The future will be interesting.
The litigation industry in the UK will continue to grow, according to litigation funders. Some of the projections are set out in an April 28, 2016 post at CII.ClaimsMedia. The U.S. Chamber of Commerce is not pleased by the news, as it noted in a May 1, 2017 article flagging the other article. SCOTUS, the Chamber and others can take some of the credit for turning litigation into a global industry.
Another helpful summary of SCOTUS and jurisdiction issues is set out in a May 1, 2017 post by Bexis at Drug & Device blog. As he says, tea leaf reading is tough. But assuming defendants do “win” these cases, it seems likely one outcome will be more “splitting of causes of action,” and defendants will lose the ability to complain – effectively – about the splitting. It also seems that a defendant “at home in states A and B” will lose the ability to seek to bar claims or apply collateral estoppel based on litigation outcomes in states P and Q against some other defendant that could be sued only in states P and Q. That could produce a mix of outcomes. One would think that outcome will 1) increase the absolute number of lawsuits, 2) reduce defendants per lawsuit, 3) discourage some lawsuits, and 4) increase the pressure on defendants that are sued.
The ongoing revolution in molecular science will help answer fascinating questions, such as why is there is more materially more autism among granddaughters of smokers. The answers, in turn, could have profound effects on business practices and product liability litigation. An April 28, 2017 article at Science Daily outlines the question as to smoking and autism, and how epigenetic events may trigger adverse outcomes in later generations.
“Scientists from the University of Bristol have looked at all 14,500 participants in Children of the 90s and found that if a girl’s maternal grandmother smoked during pregnancy, the girl is 67% more likely to display certain traits linked to autism, such as poor social communication skills and repetitive behaviours.
The team also found that if the maternal grandmother smoked, this increased by 53% the risk of her grandchildren having a diagnosed autism spectrum disorder (ASD).
These discoveries suggest that if a female is exposed to cigarette smoke while she is still in the womb, it could affect the developing eggs — causing changes that may eventually affect the development of her own children. Further research is now needed to find out what these molecular changes might be, and to see whether the same associations are present in other groups of people.
Unlike the analysis of autistic traits, which was based on over 7,000 participants, the 177 diagnosed with ASD were too few to analyse grandsons and granddaughters separately.
The discovery, published today in Scientific Reports, is part of an ongoing, long-term study of the effects of maternal and paternal grandmother’s smoking in pregnancy on the development of their grandchildren, who are all part of Children of the 90s. By using detailed information collected over many years on multiple factors that may affect children’s health and development, the researchers were able to rule out other potential explanations for their results.
The incidence of ASD has increased in recent years, and while some of this increase is undoubtedly down to improved diagnosis, changes in environment or lifestyle are also likely to play a role. The researchers also stress that many different factors, including genetic variation, are believed to affect an individual’s chances of developing ASD.
Past studies of maternal smoking in pregnancy and ASD in children have been inconclusive. Going back a generation has revealed an intergenerational effect, which interestingly is most clear cut when the mother herself did not smoke in pregnancy.
The reasons for this are not entirely clear but Professor Marcus Pembrey, one of the paper’s authors, says: ‘In terms of mechanisms, there are two broad possibilities. There is DNA damage that is transmitted to the grandchildren or there is some adaptive response to the smoking that leaves the grandchild more vulnerable to ASD. We have no explanation for the sex difference, although we have previously found that grand-maternal smoking is associated with different growth patterns in grandsons and granddaughters.
‘More specifically, we know smoking can damage the DNA of mitochondria — the numerous “power-packs” contained in every cell, and mitochondria are only transmitted to the next generation via the mother’s egg. The initial mitochondrial DNA mutations often have no overt effect in the mother herself, but the impact can increase when transmitted to her own children.’
Professor Jean Golding, another author, added: ‘We already know that protecting a baby from tobacco smoke is one of the best things a woman can do to give her child a healthy start in life. Now we’ve found that not smoking during pregnancy could also give their future grandchildren a better start too. We have started studying the next generation of participants (COCO90s), so eventually we will be able to see if the effect carries down from the great-grandparents to their great-grandchildren too.’
Dr Dheeraj Rai, another author, added: ‘We still do not know why many children develop autism and behaviours linked to it. The associations we observe raise intriguing issues on possible transgenerational influences in autism. Future research will help understand the meaning and mechanisms behind these findings. The National Autistic Society website contains a wealth of information about autism and details on how and where to seek advice.’
Alycia Halladay, PhD, chief science officer at the Autism Science Foundation (USA), said: ‘To date, research into the causes of autism has been limited to studying maternal or paternal exposures during pregnancy. By utilizing a birth cohort in the United Kingdom [Children of the 90s], scientists are able to go back a generation to examine the role of grandparental exposures, presumably through germ line mutations and epigenetic modifications. Hopefully, grandparental exposures will continue to be investigated to better understand this mechanism.’
Materials provided by University of Bristol. Note: Content may be edited for style and length.
Golding, J. et al. Grandmaternal smoking in pregnancy and grandchild’s autistic traits and diagnosed autism. Scientific Reports, 2017 DOI: 10.1038/srep46179″
Researchers continue to identify more and more genes that appear relevant to development of mesothelioma. Are you experts and trial team ready? If not, consider the upcoming webinar described below.
JURORS, GENOMICS AND TORT LITIGATION WEBINAR: BREAKING DOWN THE SCIENCE OF GENOMICS FOR JURORS, ATTORNEYS AND THE BENCH
Monday, May 15, 2017
2:00 – 3:30pm EST
Topics to be covered:
- Overview of tort cases where genomic evidence is being used
- Basic explanation of DNA mutations and why they matter
- Analysis of jury interest in genetic information
- Analysis of talking to juries about “alternative causes”
- Plaintiff – defense counterpoint on the changing role of epidemiology
- Plaintiff- defense counterpoint on talking about what happened (or not) with cancer in one particular person
- Costs related to genetic analysis
Kirk T. Hartley, Esq.
LSP Group LLC – Law Science Policy
James A. Lowery, Esq.,
Gordon & Rees
Yvonne Stevens, LL.M., LL.B.
Faculty, Sandra Day O’Connor College of Law
Faculty Fellow, Center for Law, Science & Innovation
Honors Faculty, Barrett, The Honors College
Arizona State University
Sandra Day O’Connor College of Law
Beus Center for Law and Society
Howard E. Jarvis, Esq.
Woolf, McClane, Bright, Allen & Carpenter, PLLC
Bill Kohlburn, Esq.
Simmons Hanly Conroy
Cost is $129 per registration. This includes unlimited listeners from one phone line. Each registration includes one CLE application for one state.
Additional CLE applications are $25 per state.
Additional phone lines are $29 each.
CLE Credit: 1.5-2.0 CLE credits, depending on state requirements.
Applications are being made to all CLE states as requested by attendees. Please contact Katie Milnes with questions regarding CLE: firstname.lastname@example.org
For more information about registration, contact Bethany Corio at email@example.com
For more on the argument at SCOTUS about jurisdiction rules as applied to mass torts, see the April 27, 2017 post by Jim Beck at Drug and Device blog.
Due process in bankruptcy has been rebooted to some degree. How? Through SCOTUS’ April 24, 2017 denial of GM’s cert petition from the Second Circuit’s ruling against GM in the intersection between GM’s chapter 11 proceedings and the ignition switch cases. GM’s cert petition had been supported by the U.S. Chamber of Commerce and the National Association of Manufacturers.
The Second Circuit ruling by Judge Chin was plainly correct, in my book, as explained back in 2016. Going further back, in a blog post back on April 16, 2010, I opined that the product liability aspects of the GM chapter 11 were unconstitutional. As I explained back then, the mass tort chapter 11 outcomes often deprive co-defendants and future claimants of their state law rights. Some co-defendants still in the tort system may want to look afresh at the issues. Indeed, in a June 26, 2016 article in LAW360, lawyers at McDermott Will made the point that the 2d Circuit ruling is a big deal. I’d guess other big firm lawyers will do so again.
If I say so only by myself, my comments of 2010 are worth repeating today:
“Apparently I missed an important day in law school. That is, I assume there was a day in which some professor explained when and how it is that bankruptcy courts were granted the power to do anything that’s expedient towards allowing the debtor to declare victory in a chapter 11 case. And, apparently that power expands exponentially if some well-paid pro-debtor partisan will put in a reed thin, practically untestable declaration asserting, in effect:
The debtor really needs this injunction to be issued to block some state law rights of other companies and people because gosh darn it, the debtor messed things up to the point it’s in a self-created crisis. The way we can do something that appears maybe useful in the short term is to just take the deal on the table, not ask too many questions, and move forward fast. It’s just too darned slow, expensive and annoying to conduct a chapter 11 case any other way.
A really candid declarant also would go on to say:
Due process is a nice concept, but it doesn’t work well in chapter 11. Providing due process takes too long, and it costs too much. The debtor is so darned messed up from its past mistakes and promises that it just can’t afford to honor them. The debtor messed up really badly and so it can’t afford the time, expense , uncertainty and cash flow hiccups of a chapter 11 case that would provide due process that respects and protects the state law rights of the tort victims and the co-defendants in the thousands of pending tort cases. That’s especially true for the rights of thousands of tort victims who we cannot quickly cut a deal with because the victims are spread out around the country, some are grievously hurt and want lots of money, and these darned claimants have not been kind enough to all hire Wall Street lawyers we like to work with to cut quick deals towards achieving the goals of the well-capitalized masters of the universe. Worse yet, the tort cases all include thousands of co-defendants who’ve made cross-claims against the debtor. They are even harder to deal with in some ways. For example, lots of those defendants have insurance company lawyers, and the insurance companies almost never let them do anything important in less than a couple of years. And, some of the insurers have annoying reinsurance treaties that offer them an excuse to claim that each case is unique instead of just a fungible commodity, even though at the end of the day we all know that the insurers only care about the money.
In short, judge, our Excel spreadsheet deal calculations depend on people being paid based on multiples of free cash flow, and those calculations produce much lower numbers if we have to factor in uncertainty. So, please help us get our deal done and earn our administrative priority fees by holding your nose, issuing that injunction, and dumping all the uncertainty onto the victims and the co-defendants. Somewhere out there there must be rule that says we should provide a fast chapter 11 process – and ignore the constitution – in order to help out the purported financial geniuses who messed up the most, and we should not worry too much about some people who have suffered crippling injuries. Besides, there are trade creditors out there, not to mention all those busy, busy hedge fund traders who are arbitraging the bonds and want to get a deal done now so they can lock in their profits on the trades and move on to the next opportunity to make some money by using chapter 11 to subvert state law and due process. The debtor really would appreciate you giving the value of certainty to the 363 sale buyer and the creditors who are easier to deal with than all these creditors involved in all those darned tort claims pending in state and federal courts around our nation.
The reason behind the above ? The opinion this week in the legal farce commonly known as the General Motors chapter 11 case. The opinion is by district judge Kaplan, and affirms the bankruptcy court’s order enjoining prosecution of tort claims pending as of the petition for chapter 11. Susan Beck’s summary article kindly includes links to the opinion and some of the briefs. Read them at your peril – the results are absurd and the reasoning has nothing to do with real due process.”
The following is a guest post from Maron Marvel Bradley Anderson & Tardy LLC. As always, the analysis is cogent and very much appreciated.
HIGH COURT HEARS PERSONAL JURISDICTION ARGUMENTS
April 25, 2017 – Washington, D.C. – Oral argument was heard today on two cases that may impact the application of the high court’s personal jurisdiction decision, Daimler AG v. Bauman.
During argument this morning in Bristol-Myers Squibb Co. v. Superior Court of California for the County of San Francisco, No. 16-466, and BNSF Ry. Co. v. Tyrrell, No. 16-405, Petitioners focused the Court upon the Due Process Clause, its protections and existing precedent. Respondents focused the Court upon the showing of systematic and continuous contacts and the risk of further burdening the courts with multiple claims. The Court was very engaged in all aspects of the arguments made by each side. Justice Neil M. Gorsuch raised the implication of Federalism and the determination of which particular state’s citizen’s rights were to be protected; plaintiff’s or defendant’s? Is a state’s interest in protecting its citizens outweighed when a plaintiff clearly does not care by filing outside of the state? Justice Anthony M. Kennedy raised whether mass tort claims required a varying solution to existing law. The Court further sought argument as to whether there were similar state and federal interests such that legislative vehicles could be used to resolve some of the perceived problems raised in these appeals.
The Court’s decisions should be issued prior to the end of the Court’s term at the end of June, and are expected to impact the future application of personal jurisdiction – and – perhaps add clarity to the diverse rulings issued since Daimler.
OF NOTE – On March 23, 2017, GlaxoSmithKline LLC (“GSK”) filed a Petition for Writ of Certiorari in the Supreme Court of the United States from a decision of the Appellate Court of Illinois, First District, Fifth Division and the Supreme Court of Illinois’ order denying petition for leave to appeal. GSK poses the question of whether there must be a meaningful causal link between the defendant’s forum-state contacts and the plaintiff’s claims for the claim to “arise out of or relate to” a defendant’s forum-state contacts and the exercise of specific personal jurisdiction. GSK suggests that the case presents the Supreme Court with an excellent vehicle to decide the causation standard in the Bristol Myers split authorities. Responses to the petition are currently due May 30, 2017.
If you have any questions about this article, please contact
Paul A. Bradley at firstname.lastname@example.org or
Stephanie A. Fox at email@example.com of
Maron Marvel Bradley Anderson & Tardy LLC or at 302-425-5177
About our Firm
Maron Marvel Bradley Anderson & Tardy LLC was founded twenty years ago in Wilmington, Delaware and has grown from a boutique toxic tort practice to a national powerhouse with 76 attorneys located in 11 offices across the United States. The firm represents public and private entities of all sizes. The firm provides litigation services to companies in the areas of business and commercial litigation, products liability, bankruptcy and creditors’ rights, environmental regulation and personal injury. The firm also acts as national trial counsel and provides national coordinating services and risk management for clients in the areas of mass toxic tort, products liability, personal injury, environmental regulation and litigation.
About The Team
Paul A. Bradley, Stephanie A. Fox, Antoinette D. Hubbard and Donald R. Kinsley bring a wealth of legal acumen and experience to our firm. Based in the Wilmington, Delaware, office, this group of skilled and dedicated attorneys regularly defends asbestos and other toxic tort claims on behalf of a number of companies sued in the Delaware courts. They also handle a wide range of commercial litigation claims in both state and federal trial and appellate courts within Delaware, Maryland and Pennsylvania.
The world continues to evolve, quickly, towards more use of AI in litigation. Recently, Fulbrook Capital and Metonomy Labs announced the intersection of AI and litigation funding for possible patent claims and cases. See this March 3, 2017 article at Artificial Lawyer.