GlobalTort

GlobalTort

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

Competition to Resolve Civil Law Issues: “Dutch lawyer warns companies against using British system for disputes

Posted in Litigation Industry

Various forums continue to compete to resolve civil law issues and/or offer specialized “business friendly” laws (e.g tax shelters). Notably, the offering forums often are relatively small jurisdictions and/or lack other resources to sell. Think about, for example, Delaware, South Dakota, Panama, Switzerland, Ireland and the various islands that offer well-protected shell companies and “privacy.”

In that vein, The Netherlands continues to “up its game” as a place to resolve civil law issues. Specifically, the country is putting in place a civil law court where English will be the language, as is reported in a November 17, 2017 post at the Global Legal Post. The article explains:

“Noting that the Netherlands Commercial Court (NCC) will be established in Amsterdam in 2018 with English as the standard language when it comes to litigation on complex international trade disputes, [a lawyer} says the Dutch have a world-class reputation when it comes to accessibility, affordability, enforcement of judgement and the lack of discrimination, unreasonable legal deadlines and corruption or governmental interference. The country also holds the #1 position on the world justice project ranking list for civil justice.”

To tout the court, a Dutch law firm provides this web site with information. A Google search for Netherlands Commercial Court will bring up many more articles.

Mass Tort Missiles and Counter-Missiles – The GM Chapter 11 Asbestos Claim Example

Posted in Asbestos, Asbestos Bankruptcy, Litigation Industry

It’s interesting to watch the missiles and counter-missiles used by “repeat players” in “mass tort” litigation. A prime example arose in the asbestos personal injury claim portion of the General Motors chapter 11 case. There, GM (debtor) launched subpoenas seeking discovery of claimant-specific discovery from a wide set of asbestos trusts. As a counter-punch, the Asbestos Creditors Committee filed papers asserting the intention to take discovery against GM entities and to send subpoenas seeking claimant-specific information from a wide set of friction product defendants, and some other defendants.  (Until the case ends, the docket is available online at http://www.motorsliquidationdocket.com/index.php3.  The paper quoted below was Docket No. 6382.  It also is online here.

The ACC explained the situation as follows:

“II. Discovery of Certain General Motors Co-Defendants

20. The Creditors’Committee has sought and this Court has permitted, discovery of electronic claims information concerning claims made by as many as 7500 individuals against seven asbestos personal injury trusts. These trusts are successors in liability to reorganized companies who made and distributed asbestos-containing products in industries other than the automotive industry. The Creditors’Committee represented that the information requested was vital to its efforts to prove, among other things, that GM was a “peripheral”defendant that suffered a temporary “spike”in asbestos-related expenditures because of the bankruptcies of those seven “traditional”asbestos defendants. See Reply of the Official Committee of Unsecured Creditors of Motors Liquidation Company in Further Support of Its Motion for and Order Pursuant to Bankruptcy Rule 2004 Directing Production of Documents by (I) the Claims Processing Facilities for Certain Trusts Created Pursuant to Bankruptcy Code Section 524(g) and (II) General Motors LLC and the Debtors, at 4.

21. The ACC strenuously opposed the Creditors’Committee’s discovery requests. It continues to believe that the UCC’s discovery is misplaced. More properly, the task of estimating the Debtors’aggregate liability for pending and future asbestos claims calls for discovery focused on their own products and activities involving asbestos and their own experience in receiving and resolving claims for asbestos-related diseases, all as affected by the economic and legal forces affecting its approach to the claims and that of other relevant actors. The UCC, however, is pressing its third-party discovery, and the Court has allowed it to issue subpoenas to the trusts, subject only to its eventual rulings on objections filed on behalf of individuals whose claims are the subject of the information demanded in those subpoenas. Now, therefore, the ACC is compelled to seek discovery designed to challenge the Creditors’ Committee’s various theories on their own terms.

22. The issue in estimating Old GM’s aggregate liability is what it would cost the Debtors to resolve all pending and future asbestos claims against them in the tort system if there were no bankruptcy. See, e.g., In re Armstrong World Indus., Inc., 348 B.R. 111, 123 (D.Del. 2006). The Creditors’Committee’s goal is to produce an unrealistically low estimate of that cost so as to maximize the share of the estates that will be distributed to non-asbestos creditors. It is therefore preparing to present an unrealistically narrow theory. The Creditors’ Committee would have the Court believe that the bankruptcy of other defendants is the key to understanding the patterns that emerge from Old GM’s claims data for the decade of the 2000s and to forecasting accurately the number and value of claims it would face in the future if it were not being liquidated. In actuality, though, Old GM’s claims experience was shaped by a full spectrum of interacting forces and cross-currents in the tort system, some exerting upward pressure on the number and value of claims and others tending in the opposite direction. To refute the Creditors’Committee’s simplistic view, the ACC wishes to take third-party discovery of the same kinds of claims data and payment information that their adversary is pursuing, but to do so from asbestos defendants who are still litigating asbestos claims in the tort system.

23. The ACC therefore seeks discovery from the following asbestos defendants

(“Certain Asbestos Defendants”):

ArvinMeritor, Inc.

BorgWarner, Inc.

Carlisle Cos., Inc.

Cooper Indus., Inc.

Crane Co.

Dana Companies, LLC

ExxonMobil Corporation

Ford Motor Company

Georgia Pacific Corporation

Goodyear Tire & Rubber Company

Kelley Moore Paint Co., Inc.

Pneumo-Abex LLC

Owens-Illinois, Inc

Tenneco Inc.

Union Carbide Corporation

Volkswagen Group of America, Inc.

These defendants include manufacturers of friction products, as well as other companies whose experience in resolving asbestos claims may be compared and contrasted to that of Old GM.

24. Specifically, the ACC seeks the information these co-defendants maintain in electronic form about (i) the plaintiffs in all asbestos personal injury cases filed against GM prior to the Petition Date in which any plaintiff alleged that he or she suffered from mesothelioma (“Mesothelioma Claimants”) who have brought asbestos personal injury claims against the co-defendant, (ii) information about the claims of the Mesothelioma Claimants, including claim status, and (iii) the amounts that these co-defendants have paid to settle or otherwise resolve claims of the Mesothelioma Claimants. This discovery would be subject to the current Confidentiality Order and Anonymity Protocol, with appropriate modifications as needed.”

Until the case ends, the docket is available online at http://www.motorsliquidationdocket.com/index.php3. [Docket No. 6382]

The paper is:

Application of the Official Committee of Unsecured Creditors Holding Asbestos-Related Claims (the “Asbestos Claimants Committee”or “ACC”) for an Order Pursuant to Bankruptcy Rule 2004 Authorizing the Taking of Document Discovery and Deposition Testimony from the Debtors and from General Motors, LLC, its Subsidiaries and Affiliated Companies (the “Application”) [Docket No. 6382].

“Reduction in Price for Company Facing Litigation Is Discoverable”

Posted in Privileges

Can discovery be taken about a sale price discount for a company  when the discount purportedly is to account for litigation risk? Yes, according to a late 2016 decision in the Northern District of Illinois in a case involving Juno Lighting. The decision “highlighted the contrast between the fact of a negotiated sale, a discoverable fact, and an attorney’s opinion about trial strategy, and a privileged opinion,” as explained in an April 28, 2017 article from the ABA Litigation News.

Federal Litigation Database – Basic Data Back to 1970

Posted in Uncategorized

From a November 1, 2017 post at Data is Plural.

“The U.S. Federal Judicial Center’s “Integrated Data Base” contains a longitudinal record of all federal criminal, civil, and appellate court cases going back to the 1970s, as well as bankruptcy cases going back to late 2007. Each dataset contains dozens of detailed fields — including each case’s jurisdiction, name, docket number, relevant legal statutes, and more — accompanied by explanatory codebooks. You can download single-year snapshots and cumulative files, or interactively select specific slices of data to export. Related: “How the Bankruptcy System Is Failing Black Americans,” an investigation by ProPublica that used the IDB’s data on bankruptcy cases for its analysis.”

The database is at https://www.fjc.gov/research/idb.

Law and Science Intersections – Agent Orange Back in the News

Posted in Agent Orange, Cancer

Agent Orange. Two words that drove massive litigation and helped to drive increased scientific research, including the Human Genome Project.  Some say Agent Orange has caused tens of thousand of injuries in US soldiers. Others focus on multiple generations of profoundly deformed people who live in Vietnam.

Agent Orange is back in the news at a science and law intersection point. The news arises because of yet more delay by the VA in making additional decisions on compensation for veterans.  Further specifics are provided in a November 2, 2017 article by Pro Publica.  No matter what the decision, expect controversy.

When Your Blog Post Becomes a YouTube Item: The Mesothelioma Advertising Example

Posted in Asbestos, Litigation Industry

Amazing, and improper.  On October 6, 2015, I posted about MesoLawyersCare.   Recently, I stumbled onto a YouTube video that puts my words to music.

Below, screenshots of part of the YouTube, and the text of my prior post.

 

“Meso Lawyers Care ” New Cooperative Marketing by Four Prominent Plaintiff Firms, and Some Investment in Mesothelioma Research

By Kirk Hartley on October 6, 2015Posted in Asbestos, Cancer, Litigation Industry, Science

Change is a constant in asbestos litigation. One new change for 2015  is four prominent plaintiff firms banding together for the the online marketing of mesothelioma claims. And, their web site includes a pledge to invest in mesothelioma research an unstated percentage of future legal fees earned. Of course, it would be interesting to know all the thinking and deals behind the cooperative marketing arrangement, but ….The firms? Some well known names. They are the Cooney & Conway firm based in Chicago, the Kazan McClain firm based in Oakland, the Nemeroff firm with roots in Texas and New York and the Levy Konigsberg firm based in New York.Also notable is the name adopted for the marketing effort: “Meso Lawyers Care,” located at http://www.mesolawyerscare.org/.The website for the group includes a page that highlights a collective $10 million of past contributions to mesothelioma research. There’s nothing much known to me about the prior mesothelioma research investments efforts of two of the firms. But, I have seen mentions of the Kazan McLain firm providing some grants to the iMig medical group for its biannual meeting of some of the world’s best mesothelioma researchers and treating doctors. Also, the Kazan McClain firm has a web page that reports aggregate mesothelioma research payments of over $ 6 million, and an aggregate total of over $20 million in all charitable gifts.  As to Cooney & Conway, there are some more detailed public facts about at least some of the money Cooney & Conway has invested in research regarding mesothelioma. For example, in 2012, the national insulators union issued a July 25, 2015 press releaseshortly after “declaring war on mesothelioma” at an annual meeting. Tucked away in the press release were the following two lines, for which the lawyers and law firms deserve kudos:“Terry Johnson, Esq., along with two attorneys from the national asbestos firm of Cooney and Conway (John Cooney and Kevin Conway), announced a multi-million donation to the Insulators Tissue Bank.  The firms will contribute current legal fees totaling one million dollars, and add to that two-percent of all future collected legal fees involving cases where workers suffer from mesothelioma and related asbestos-causing diseases.”

A web page at Meso Lawyers Care is tabbed as “Giving Back,” and includes the following statement and pledge:

“Like experience, success and expertise, giving back is an ever present and growing part of what we all do and will continue to do as MLC grows.
We have in the past all given to a wide range of medical facilities and support organizations throughout the country and combined, have donated in excess of $10 million.
Mesothelioma is a rare cancer and as such research has long been underfunded and overlooked by government and organizations.
We will continue giving back to organizations involved in medical research and patient care throughout the United States to do what we can to help.
We will do this primarily by pledging a percentage of legal fees recovered solely for donations to these worthy organizations.”

Some say investing money and time research against cancer is  the nation’s best investment. Whether it’s the best of course is beside the point; what does matter is that is a good investment in hope, and that’s especially now that the pace of discovery is rapidly accelerating because of the ongoing revolution in molecular biology.

Of course, some will seek to diminish the giving by pointing out the fact of these lawyers and firms making plenty of money from the awful diseases we call mesothelioma. That’s of course true. But it’s also true that plenty of defense firms and lawyers have become wealthy from asbestos litigation. So, these lawyers who actually are investing in mesothelioma research deserve recognition and credit because in fact they are giving something back. In contrast, plenty of other people and firms give nothing back.  The latter outcome needs to change.

“Breakthrough may lead to ability to diagnose CTE in living football players”

Posted in Mass Tort Issues, Science

Yet another example of how biomarkers evolve, and could matter for litigation over alleged or actual injuries, as set out in a September 26, 2017 article in the Washington Post.
“By Rick Maese September 26 at 2:00 PM

In one of the biggest breakthroughs to date, researchers from Boston University School of Medicine have discovered a key biomarker for chronic traumatic encephalopathy that they hope marks the first step toward being able to diagnose and ultimately treat the neurodegenerative disease in a living football player.

Dr. Ann McKee, the neuropathologist credited with some of the most high-profile CTE diagnoses, said she was buoyed by the recent discovery, calling it “the first ray of hope” in a years-long effort to understand the disease.

“To me, it feels like maybe now we can start going in the other direction,” she said. “We’ve been going down, and everything has just gotten more and more depressing. And now it’s like, ‘Yeah, we’re going to actually find some answers here.’”

In a new study published Tuesday in the journal PLOS ONE, researchers from BU and the VA Boston Healthcare System studied the brains of 23 former football players who were diagnosed with CTE, in addition to those of 50 non-athletes who suffered from Alzheimer’s disease and 18 non-athlete controls. They found significantly elevated levels of a protein related to inflammation called CCL11 in the group of ex-players compared with the non-athletes. The levels were even higher in those who played the game longer.

“It’s a unique disease, and it’s going to have unique proteins that are modified in this disease, and this is the first indication that we’ve found one of the unique proteins,” said McKee, the director of BU’s CTE Center and senior author of the new study.

****

Of the 23 brains studied, 19 belonged to professional football players — including 18 who played in the NFL — and four others who reached the college level. The age range was 25 to 87 with a mean age of 62. The early findings do not necessarily allow researchers to determine how early they eventually might be able to detect the disease in a living person, McKee said. Of the samples studied, one came from a 49-year-old ex-player and another from a 53-year-old. Both of those subjects were diagnosed with Stage II (out of four stages) CTE.”

The PLOS One article is online here.

Abstract

“CCL11, a protein previously associated with age-associated cognitive decline, is observed to be increased in the brain and cerebrospinal fluid (CSF) in chronic traumatic encephalopathy (CTE) compared to Alzheimer’s disease (AD). Using a cohort of 23 deceased American football players with neuropathologically verified CTE, 50 subjects with neuropathologically diagnosed AD, and 18 non-athlete controls, CCL11 was measured with ELISA in the dorsolateral frontal cortex (DLFC) and CSF. CCL11 levels were significantly increased in the DLFC in subjects with CTE (fold change = 1.234, p < 0.050) compared to non-athlete controls and AD subjects with out a history of head trauma. This increase was also seen to correlate with years of exposure to American football (β = 0.426, p = 0.048) independent of age (β = -0.046, p = 0.824). Preliminary analyses of a subset of subjects with available post-mortem CSF showed a trend for increased CCL11 among individuals with CTE (p = 0.069) mirroring the increase in the DLFC. Furthermore, an association between CSF CCL11 levels and the number of years exposed to football (β = 0.685, p = 0.040) was observed independent of age (β = -0.103, p = 0.716). Finally, a receiver operating characteristic (ROC) curve analysis demonstrated CSF CCL11 accurately distinguished CTE subjects from non-athlete controls and AD subjects (AUC = 0.839, 95% CI 0.62–1.058, p = 0.028). Overall, the current findings provide preliminary evidence that CCL11 may be a novel target for future CTE biomarker studies.”

 

Jurisdictional Arguments to Delaware Supreme Court: Are Conditions Appropriate in Dismissal Orders in Cross Border Toxic Tort Cases?

Posted in Asbestos, Jurisdiction, Litigation Industry

Jurisdiction for toxic tort suits remains a “hot topic.”  A new example arises from oral argument in a Delaware Supreme Court case involving claims of disease in Argentine farm families. The suit was filed by well known US plaintiff firms against big tobacco entities.

The substantive issues go to whether an order of dismissal should be conditional in any way, according to a September 21, article in LAW360. For example, must defendant confirm it can be sued in the alternative jurisdictions it identified? Also, can/should there be conditions about statutes of limitations? In view of Delaware’s role in the corporate world, it will be especially interesting to see how they answer the questions.

The plaintiff firms are an interesting set for those of us in asbestos litigation. Per the article, “the farmers and their families are represented by Ian Connor Bifferato, Richard S. Gebelein and Thomas F. Driscoll III of The Bifferato Firm, Charles S. Siegel of Waters Kraus & Paul LLP,  Phillips Paolicelli LLP, and Thornton Law Firm.”

“Asbestos Stopped Neil deGrasse Tyson From Becoming An Exotic Dancer”

Posted in Asbestos, Humor

An automated daily Google search drags up some amazing references to asbestos. One follows. It’s real. I watched the video just to make sure it was not “fake news.”

The video is a series of vignettes; the pertinent one starts at 4:06. The article and video are online in a September 12, 2017 article at Civilized.  The text is pasted below, with thanks.

“Asbestos Stopped Neil deGrasse Tyson From Becoming An Exotic Dancer

By James McClure  |  Sep 12, 2017  |  CultureEntertainment

Few scientists are bigger than Neil deGrasse Tyson – the American astrophysicist who has gone from studying the stars in the galaxy to hanging out with stars on earth by appearing on shows like ‘The Big Bang Theory‘ and ‘The Simpsons.’ But like any celebrity, he spent years scraping by, and the pressure to make ends meet made him consider moonlighting as an exotic dancer to supplement his earnings as a teaching assistant in grad school.

“I was in really good shape,” Tyson told Pitchfork recently. “I was a performing member of two different dance companies. And one of my fellow dancers, upon hearing of my financial woes, said, ‘Come on down?’ ‘Down to what?’ ‘Oh, we dance at night at this male strip club. And the women put money in your thing.’ I said, ‘Alright, I’ll have a look.'”

But what he saw at the club turned him off exotic dancing forever.

“I go down there, and they come out dancing with asbestos-lined jockstraps that had been ignited. And they come out shaking and dancing to Jerry Lee Lewis’ ‘Great Balls of Fire.’ In that instant, I said, ‘I think I’ll be a math tutor.'” 

Check out the full story, plus Tyson’s thoughts on the Miss Universe Pageant and GZA of Wu-Tang Clan.”