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

Group of 60 Carillion Paralegals Acquired by Big Law (Clifford Chance)

Posted in Litigation Industry

More or less buying and selling legal services continues to expand, at least outside the US.  Yet another example of this aspect of the litigation industry – and its financing and movement –  is embodied in the news that Clifford Chance “acquired” a 60 paralegal practice from the failing Carillion. The gist of the news is as follows; more specifics are in a February 15, 2018 post at Global Legal Post. 

“The in-house legal arm of failed contractor Carillionhas been acquired by Clifford Chance in a surprising move by the magic circle law firm. Newcastle-based Carillion Advice Services (CAS), which provides paralegal and commodity managed legal services, will be fully integrated with Clifford Chance. The move comes after the contracting giant went into administration last month. Commenting, Michael Bates, managing partner for Clifford Chance in the UK said: ‘Our priority is always to ensure that we are best placed to provide the optimum service to our clients.  By working with the CAS team, we will enhance our ability to provide extremely cost-effective, efficient and high-quality service on a range of low complexity legal tasks as an integral part of our overall client offer.'”


Jurors Attitudes in 2018, After the Many 2017 Attacks on “Leaders,” Institutions and “Science”

Posted in Juries, Litigation Industry, Science

2017 was quite the year for attacks on and perceptions of “leading” public figures and institutions. In view of the new indictments by Mr. Mueller and other evenst, there are ample reasons to think  2018 will exceed 2017 as to attacks and perceptions of “leaders” and institutions. And, there also have been many arguments about and/or attacks on “science.” How are jurors reacting to these events? That’s a question I’ve been wondering about more and more as the molecular revolution brings more science into civil and criminal law cases, including mass tort cases.

Some jury consultants are publishing on these or related topics, and the results are notable. For example, juror consultant Melissa Gomez published a February 8, 2018 LAW360 “expert analysis article. The article needs to be read for all of its findings and conclusions. But highlighted below a couple of findings that especially caught my attention for purposes of thinking about mass tort claims involving products:

“The statistically significant change in opinions seems more related to a company’s direct impact on, and communications with, the public. Specifically, since 2017, about half (48 percent[3]) of respondents agreed that companies lie to the public about their products’ safety. This is a statistically significant increase from the 31 percent[4] who agreed to this perception in the prior years.[5]

The most telling thing about the shift in attitudes is the message potential jurors want to send with their verdicts. While some core opinions may have remained somewhat stable, recent respondents are less willing to compromise, and they are more willing to use damage awards to voice their discontent with vigor. Specifically, since in 2017, 20 percent[6] of respondents indicated that they believed that damage awards in lawsuits have gotten too high. This is a statistically significant[7] decrease from the 28 percent[8] who believed so in prior years. This data becomes even more compelling when we consider it next to the barrage of large verdicts in the news.” (footnote references omitted)



Predicting Outcomes at SCOTUS – AI and the Old Fashioned Way

Posted in Artificial Intelligence (AI), Comparative Law

SCOTUSblog includes a February 16, 2018 announcement of two interesting events as to predicting outcomes at SCOTUS. The entry is pasted below in full since the point seems to be to spread the word.


“Event announcement: The Supreme Court and wisdom of the crowds

On February 21 at 12:45 p.m. PST, Stanford University’s CodeX will host a presentation by Daniel Martin Katz entitled, “How Crowdsourcing Accurately and Robustly Predicts Supreme Court Decisions.” More information about this event, which will include remote access, is available at this link.

Relatedly, this blog is collaborating with Good Judgment to offer the SCOTUS Challenge, which invites forecasters to predict the outcomes of Supreme Court cases from this term. This opportunity for readers is available on the SCOTUS Challenge page.”

Biomarkers and Injury Move Forward – “FDA authorizes marketing of first blood test to aid in the evaluation of concussion in adults”

Posted in Mass Tort Issues, Science

Biomarkers are changing many aspects of science and litigation. The field is still young, but promising. The point is exemplified by FDA’s February 14, 2018 announcement of authorization of a biomarker test to assist in identifying concussions. The test is not considered definitive by itself, but adds additional information for consideration during diagnosis. FDA’s approval press release is here, dated February 14, 2018, and is pasted below.


“The U.S. Food and Drug Administration today permitted marketing of the first blood test to evaluate mild traumatic brain injury (mTBI), commonly referred to as concussion, in adults. The FDA reviewed and authorized for marketing the Banyan Brain Trauma Indicator in fewer than 6 months as part of its Breakthrough Devices Program.

Most patients with a suspected head injury are examined using a neurological scale, called the 15-point Glasgow Coma Scale, followed by a computed tomography or CT scan of the head to detect brain tissue damage, or intracranial lesions, that may require treatment; however, a majority of patients evaluated for mTBI/concussion do not have detectable intracranial lesions after having a CT scan. Availability of a blood test for concussion will help health care professionals determine the need for a CT scan in patients suspected of having mTBI and help prevent unnecessary neuroimaging and associated radiation exposure to patients.

“Helping to deliver innovative testing technologies that minimize health impacts to patients while still providing accurate and reliable results to inform appropriate evaluation and treatment is an FDA priority. Today’s action supports the FDA’s Initiative to Reduce Unnecessary Radiation Exposure from Medical Imaging—an effort to ensure that each patient is getting the right imaging exam, at the right time, with the right radiation dose,” said FDA Commissioner Scott Gottlieb, M.D. “A blood-testing option for the evaluation of mTBI/concussion not only provides health care professionals with a new tool, but also sets the stage for a more modernized standard of care for testing of suspected cases. In addition, availability of a blood test for mTBI/concussion will likely reduce the CT scans performed on patients with concussion each year, potentially saving our health care system the cost of often unnecessary neuroimaging tests.”

According to the U.S. Centers for Disease Control and Prevention, in 2013 there were approximately 2.8 million TBI-related emergency department visits, hospitalizations and deaths in the U.S. Of these cases, TBI contributed to the deaths of nearly 50,000 people. TBI is caused by a bump, blow or jolt to the head or a penetrating head injury that disrupts the brain’s normal functioning. Its severity may range from mild to severe, with 75 percent of TBIs that occur each year being assessed as mTBIs or concussions. A majority of patients with concussion symptoms have a negative CT scan. Potential effects of TBI can include impaired thinking or memory, movement, sensation or emotional functioning.

“A blood test to aid in concussion evaluation is an important tool for the American public and for our Service Members abroad who need access to quick and accurate tests,” said Jeffrey Shuren, M.D., director of the FDA’s Center for Devices and Radiological Health. “The FDA’s review team worked closely with the test developer and the U.S. Department of Defense to expedite a blood test for the evaluation of mTBI that can be used both in the continental U.S. as well as foreign U.S. laboratories that service the American military.”

The Brain Trauma Indicator works by measuring levels of proteins, known as UCH-L1 and GFAP, that are released from the brain into blood and measured within 12 hours of head injury. Levels of these blood proteins after mTBI/concussion can help predict which patients may have intracranial lesions visible by CT scan and which won’t. Being able to predict if patients have a low probability of intracranial lesions can help health care professionals in their management of patients and the decision to perform a CT scan. Test results can be available within 3 to 4 hours.

The FDA evaluated data from a multi-center, prospective clinical study of 1,947 individual blood samples from adults with suspected mTBI/concussion and reviewed the product’s performance by comparing mTBI/concussion blood tests results with CT scan results. The Brain Trauma Indicator was able to predict the presence of intracranial lesions on a CT scan 97.5 percent of the time and those who did not have intracranial lesions on a CT scan 99.6 percent of the time. These findings indicate that the test can reliably predict the absence of intracranial lesions and that health care professionals can incorporate this tool into the standard of care for patients to rule out the need for a CT scan in at least one-third of patients who are suspected of having mTBI.

The Brain Trauma Indicator was reviewed under the FDA’s De Novo premarket review pathway, a regulatory pathway for some low- to moderate-risk devices that are novel and for which there is no prior legally marketed device.

The FDA is permitting marketing of the Brain Trauma Indicator to Banyan Biomarkers, Inc.

The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products.


Fraudulent Conveyances to Overseas Trusts To Avoid Possible Medical Malpractice Claims

Posted in Fraudulent Conveyance, Litigation Industry

Amazing what shows up in the news everyday. One is a Valentine’s Day 2018 lawyer ad/article kind of thing promoting return to the US of overseas “asset protections trusts.”  It provides a “real life” fact pattern of a doctor with apparently plenty of money, and a possible medical malpractice problem. The answer? Zip the money into an overseas trust for 10 years, at which point it will be white-washed. See text pasted below.

“A real-life story

Here is a client example: Dr. Veronica G. developed a specific medical procedure to fix an ongoing condition and for several years she had successfully helped more than 75 patients overcome their medical issue. One day while watching the news, Dr. G. saw a commercial in which a law firm advertised that it would sue doctors who injured patients who had the procedure performed and who may have sustained injuries.

Dr. G. began to realize that although this procedure was successful, there could be some larger liability than her malpractice policy would cover. This prompted her to consult with a lawyer who specialized in comprehensive estate planning with asset protection and resulted in her establishing foreign asset protection trusts.

Fordham Law Workshop: “Civil Litigation Reform in the Trump Era:  Threats and Opportunities”

Posted in Litigation Industry, Mass Tort Issues

An upcoming workshop looks interesting as to class action and “tort reform” topics. The agenda is online here, and pasted below.  A hat tip is owed to the Tort’s Prof blog for a February 9, 2018 post about the workshop.

Civil Litigation Reform in the Trump Era:  Threats and Opportunities

Friday, February 23, 2018
Check-in 8:45–9:15 a.m.
Program 9:15 a.m.–4:45 p.m.


In the first year of the Trump presidency, several litigation reform bills passed the House of Representatives. The fate of these bills remains uncertain, but the set of issues they raise will not disappear anytime soon. Legal reform advocates see an opportune moment to pursue an aggressive reform agenda, while critics view the bills as threats to civil justice. In addition, the Trump administration has been at the center of a swirl of litigation, raising issues about the role and processes of civil justice. This one-day symposium will address the prospects of civil litigation reform in the Trump era, taking seriously both the threat to the justice system and the opportunities for improving the litigation process.

Mark Behrens, John Beisner, Andrew Bradt, Stephen Burbank, Scott Dodson, Howard Erichson, Sean Farhang, Jonah Gelbach, Maria Glover, Deborah Hensler, Alexandra Lahav, Judge Lee Rosenthal 


Fordham Law School
Skadden Conference Center  |  Costantino Room
150 W 62nd Street, New York, NY 10023


Register Here


8:45–9:15 a.m.: Check-in & Breakfast 

9:15–9:30 a.m.: Welcome Remarks
Matthew Diller, Dean and Paul Fuller Professor of Law, Fordham University School of Law
Howard Erichson, Professor of Law, Fordham University School of Law

9:30–11:00 a.m.: Understanding the Landscape
(1.5 professional practice CLE credits)

Rights and Retrenchment in the Trump Era
Stephen Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School
Sean Farhang, Professor of Law and Associate Professor of Public Policy and Political Science, University of California Berkeley
Beyond “Alternative Facts”: Uncovering the Truth About Federal Class Actions
Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School
Jonah Gelbach, Professor of Law, University of Pennsylvania Law School
Defendant-Centric Jurisdiction
Scott Dodson
, Associate Dean for Research and James Edgar Hervey Chair in Litigation, UC Hastings College of Law
Moderator: Benjamin Zipursky, James H. Quinn ’49 Chair in Legal Ethics and Professor of Law, Fordham University School of Law

11:00–11:15 a.m.: Break

11:15 a.m.–12:30 p.m.: Understanding the Current Legislative Proposals
(1.5 professional practice CLE credits)

Howard Erichson, Professor of Law, Fordham University School of Law
John Beisner, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
J. Maria Glover, Associate Professor of Law, Georgetown University Law Center

12:30–1:30 p.m.: Lunch

1:30–3:00 p.m.: Multidistrict Litigation Reform
(1.5 professional practice CLE credits)
The Looming Fight for the Soul of MDL
Andrew Bradt, Assistant Professor of Law, University of California Berkeley
Information Economics of MDL
Alexandra Lahav, Ellen Ash Peters Professor of Law, University of Connecticut School of Law
MDL Rules
Honorable Lee Rosenthal
, Chief Judge, United States District Court, Southern District of Texas
MDL Reform: Defendant Perspective
John Beisner
, Partner, Skadden, Arps, Slate, Meagher & Flom LLP

3:00–3:15 p.m.: Break

3:15–4:15 p.m.: The Bigger Picture
(1.0 professional practice CLE credits)
State and Federal Civil Litigation Reform
Mark Behrens
, Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon L.L.P.
Nationwide Injunctions
Honorable Lee Rosenthal, Chief Judge, United States District Court, Southern District of Texas

4:15–4:45 p.m.: Closing Thoughts
All Panelists 
Moderator: Howard Erichson, Professor of Law, Fordham University School of Law

Possible Fraudulent Conveyances and Corporate Transactions After Alleged Mass Torts – New Complexities from Pre-Transaction Lawsuits – The Weinstein Example

Posted in Fraudulent Conveyance, Litigation Industry, Mass Tort Issues

After an alleged or actual mass tort, some companies move voluntarily into chapter 11 proceedings to cope with the claims. However, some seek to salvage value via other paths, such as a move to new ownership through a sale or other corporate transaction.  The decision-making process between the two paths (or other paths) may become more difficult as social media events foster fast and furious sets of allegations and claims, and lawsuits sometimes follow in short order.

The difficulties are exemplified by a lawsuit filed on Sunday February 11, 2018 by the New York Attorney General to – apparently – stymie or alter the course of an apparently imminent sale of Weinstein entities. Those entities have been much in the news due to claims of sexual discrimination by Harvey Weinstein, and alleged lack of action by the Board of Directors despite alleged knowledge of various claims and confidential settlements. The lawsuit alleges numerous acts of potentially compensable discrimination, and seeks to stymie a possible or actual fraudulent conveyance of assets that could thwart the collection of judgments by tort claimants. Specifically, the closing prayer for relief (at page 37, subparagraph 4) seeks, among other things, an order:

“prohibiting any corporate or financial transaction that would enable Respondents to evade the continued jurisdiction of the Attorney General and this Court, undermine compliance with the terms of any judgment, or conceal proceeds of any sale of TWC or any of its assets;”

The Weinstein case of course is not a typical mass tort in the sense that it involves alleged discrimination instead of sales of allegedly harmful products or pollution of water, ground or air. However, there is no obvious reason why an AG might not take the same action regarding a sale or other transfer of assets involving a company facing pending or threatened claims arising from allegedly defective products or pollution of water, ground or air.

For more specifics about the suit, see the AG’s press release here, and/or the complaint, here. The proposed sale collapsed after the suit was filed, according to a February 11, 2018 WSJ article.