It’s seldom simple to plan and manage a compensation fund for personal injuries. The currents status of the September 11th Victim Compensation Fund provides yet another example of some the challenges. In short, on February 15, 2019, the Fund announced a major decrease in its payment percentage, unless it obtains additional funding; see this page at the fund website. The changes are more generally described in a February 15, 2019 article at the Washington Post.
Interesting times ahead as Imerys filed a chapter 11 petition in an effort to try to manage the mesothelioma and ovarian cancer claims against it and other entities. The petition and a related declaration list the top 30 plaintiff firms, which includes numerous plaintiff firms that are not “regulars” in chapter 11 asbestos cases, as well as some firms who are regulars. The list of “regulars” includes Motley Rice and the Simmons firm.
The declaration also states that negotiations have been underway for a consensual plan, and are ongoing. According to the declaration, Imerys seeks to have Jim Patton appointed as the futures representative. It will be interesting to see what DOJ does or does not say or do about any futures representative.
It’s world cancer day, a reminder of the biggest global terrorist and driver of much litigation.
The chart is from: Bray F, Ferlay J, Soerjomataram I, Siegel RL, Torre LA, Jemal A. Global cancer
statistics 2018: GLOBOCAN estimates of incidence and mortality worldwide for 36
cancers in 185 countries. CA Cancer J Clin. 2018 Nov;68(6):394-424. doi:
Lawyers involved in mass tort litigation should be aware of this January 24, 2019 article (some would say puff piece) in Science regarding Dr. David Egilman, as well as some of quotes in it. The title is: “Expert witness David Egilman wins billions—and makes enemies—as he fights companies over public health.” The author, Douglas Starr, is co-director of the Boston University Science Journalism Program.
For those litigating drug cases, the NEJM just published an open access article with a broad set of data on medical marketing. It’s online here at NEJM. The abstract is pasted below.
Question How has the marketing of prescription drugs, disease awareness, health services, and laboratory tests in the United States changed from 1997 through 2016?
Findings From 1997 through 2016, medical marketing expanded substantially, and spending increased from $17.7 to $29.9 billion, with direct-to-consumer advertising for prescription drugs and health services accounting for the most rapid growth, and pharmaceutical marketing to health professionals accounting for most promotional spending.
Meaning There has been marked growth in expenditures on and extent of medical marketing in the United States from 1997 through 2016.
Importance Manufacturers, companies, and health care professionals and organizations use an array of promotional activities to sell and increase market share of their products and services. These activities seek to shape public and clinician beliefs about laboratory testing, the benefits and harms of prescription drugs, and some disease definitions.
Objective To review the marketing of prescription drugs, disease awareness campaigns, health services, and laboratory tests and the related consequences and regulation in the United States over a 20-year period (1997-2016).
Evidence Analysis (1997-2016) of consumer advertising (Kantar Media data for spending and number of ads); professional marketing (IQVIA Institute for Human Data Science, Open Payments Data [Centers for Medicare & Medicaid Services]); regulations and legal actions of the US Food and Drug Administration (FDA), Federal Trade Commission (FTC), state attorneys general, and US Department of Justice; and searches (1975-2018) of peer-reviewed medical literature (PubMed), business journals (Business Source Ultimate), and news media (Lexis Nexis) for articles about expenditures, content, and consequences and regulation of consumer and professional medical marketing. Spending is reported in 2016 dollars.
Findings From 1997 through 2016, spending on medical marketing of drugs, disease awareness campaigns, health services, and laboratory testing increased from $17.7 to $29.9 billion. The most rapid increase was in direct-to-consumer (DTC) advertising, which increased from $2.1 billion (11.9%) of total spending in 1997 to $9.6 billion (32.0%) of total spending in 2016. DTC prescription drug advertising increased from $1.3 billion (79 000 ads) to $6 billion (4.6 million ads [including 663 000 TV commercials]), with a shift toward advertising high-cost biologics and cancer immunotherapies. Pharmaceutical companies increased DTC marketing about diseases treated by their drugs with increases in disease awareness campaigns from 44 to 401 and in spending from $177 million to $430 million. DTC advertising for health services increased from $542 million to $2.9 billion, with the largest spending increases by hospitals, dental centers, cancer centers, mental health and addiction clinics, and medical services (eg, home health). DTC spending on advertising for laboratory tests (such as genetic testing) increased from $75.4 million to $82.6 million, although the number of ads increased more substantially (from 14 100 to 255 300), reflecting an increase in less expensive electronic media advertising. Marketing to health care professionals by pharmaceutical companies accounted for most promotional spending and increased from $15.6 billion to $20.3 billion, including $5.6 billion for prescriber detailing, $13.5 billion for free samples, $979 million for direct physician payments (eg, speaking fees, meals) related to specific drugs, and $59 million for disease education. Manufacturers of FDA-approved laboratory tests paid $12.9 million to professionals in 2016. From 1997 through 2016, the number of consumer and professional drug promotional materials that companies submitted for FDA review increased from 34 182 to 97 252, while FDA violation letters for misleading drug marketing decreased from 156 to 11. Since 1997, 103 financial settlements between drug companies and federal and state governments resulted in more than $11 billion in fines for off-label or deceptive marketing practices. The FTC has acted against misleading marketing by a single for-profit cancer center.
Conclusions and Relevance Medical marketing increased substantially from 1997 through 2016, especially DTC advertising for prescription drugs and health services. Pharmaceutical marketing to health professionals accounted for most spending and remains high even with new policies to limit industry influence. Despite the increase in marketing over 20 years, regulatory oversight remains limited.”
January 14, 2019 articles around the web describe PG&E moving to file chapter 11 due to risks and potential liabilities. One of the articles, at the WSJ, describes PG&E equipment as playing a role in some 1,500 fires, some massive.
As with numerous past filers of chapter 11, one of the key problems is failure to understand the magnitude of risk, and lack of financial resources sufficient to pay when the risks come to fruition. Indeed, that theme ripples through the WSJ’s reporting; some key quotes are pasted below:
“PG&E didn’t anticipate how quickly the drought would overtake heavily wooded areas north of San Francisco and outside Sacramento, said Stephen Tankersley, who oversaw PG&E’s vegetation-management program between 1999 and 2015. “It’s hard to believe that anybody would have predicted that it would have been like this,” said Mr. Tankersley, now a utilities consultant. “I’ve never seen anything like it.”
Conditions on the ground worsened dramatically and quickly, said PG&E spokeswoman Lynsey Paulo. She said the utility has reacted with speed and urgency. “We are very aware of the risk and we are doing everything we can to keep our customers and the communities we serve safe,” she said. “PG&E considers wildfire risk as a top-tier enterprise risk. It is evident in our actions.”
“We aspire to have absolutely no wildfires,” Ms. Williams [CEO at the time] said during a 2017 deposition in a lawsuit seeking fire-related damages from the company. She said operating thousands of miles of electrical conductors through forests created “an inherent exposure.” PG&E declined to make her available for an interview.”
Depending on perspectives, the California Supreme Court is famous (or infamous) for its rulings and is nationally influential. Accordingly, its useful to keep an eye on changes. Most recently, Joshua Groban, age 45, was confirmed to the court. He is a long time senior advisor to Governor Brown and was involved in the selection of over 600 judges for the state. His private practice career was at Munger Tolles and then Paul Weiss, as described in a December 21, 2018 post at LAW360. His confirmation gives Democrats a majority on the state high court for the first time in decades.
In addition, California Chief Justice Tani Cantil-Sakauye “dropped” her Republican Party registration, but did not register as a Democrat, as explained in a December 14, 2018 LA Times article. The Chief Justice is becoming a force, and was appointed to the courts by Republican governors; Governor Schwarzenegger appointed her to the high court in 2010, according to a May 28, 2017 article in the LA Times.
Amazing changes in the litigation industry include the real arrival of television covering trials, including plenty of “mass tort” cases. Thus, as we start out 2019, Courtroom View Network published its “top 10” list from 2018 as to plaintiff verdicts. Presumably a defense list will follow.
My automated daily google search for “asbestos” recently pulled up a link to a 90 minute video, apparently from the Library of Congress. The landing page is: https://lccn.loc.gov/91790914/dc
The page includes both the video, and the following information:
“About this Item
- The story of asbestos–illustrating the mines and factories of the H.W. Johns-Manville Company
- Other Title
- Illustrating the mines and factories of the H.W. Johns-Manville Company
- Shows the operation of asbestos mines (in Arizona and Canada) and factories (in New Jersey and New Hampshire) of Johns-Manville Co.
- Contributor Names
- United States. Bureau of Mines.
- Chazy School Collection (Library of Congress)
- Created / Published
- [United States : s.n., 1921?]
- Subject Headings
- – H.W. Johns-Manville Co
- – Asbestos
- – Manufacturing processes
- Documentary films
- Feature films
- Nonfiction films
- – Copyright: no reg.
- – LC dupe neg is reduction from 35 mm.
- – Bureau of Mines film no. 74, according to National Archives catalog card.
- – Source used: 1001 films, 1922, p. 93.
- – Received: 11/24/1992 from LC video lab; viewing copy (cassette 1); preservation, LWO-27826; Chazy School Collection.
- – Received: ca. 10/8/1998 from LC video lab; viewing copy (cassettes 2-3); preservation, REC-AT-239; Chazy School Collection.
- – Received: ca. 1969 from USDA lab; arch pos and dupe neg; gift; Chazy School Collection.
- viewing copy 3 videocassettes of 3 (ca. 67 min.) : si., b&w ; 3/4 in.
- arch pos. 6 reels of 6 (2423 ft.) : si., b&w ; 16 mm.
- dupe neg. 6 reels of 6 (2423 ft.) : si., b&w ; 16 mm.
- 1 video file (digital, MPEG-4) (ca. 67 min.) : si., b&w.
- Call Number/Physical Location
- VBP 5951-5953 (viewing copy)
- FRA 9452-9457 (arch pos)
- FRA 9458-9463 (dupe neg)
- Digital Id
- Library of Congress Control Number
- Online Format
- Shows the operation of asbestos mines (in Arizona and Canada) and factories (in New Jersey and New Hampshire) of Johns-Manville Co.
- LCCN Permalink
- Additional Metadata Formats
- MARCXML Record
- MODS Record
- Dublin Core Record
Chicago citation style:
United States Bureau Of Mines, and Chazy School Collection. The story of asbestos–illustrating the mines and factories of the H.W. Johns-Manville Company. [United States: s.n., ?, 1921] Video. https://www.loc.gov/item/91790914/.
APA citation style:
United States Bureau Of Mines & Chazy School Collection. (1921) The story of asbestos–illustrating the mines and factories of the H.W. Johns-Manville Company. [United States: s.n., ?] [Video] Retrieved from the Library of Congress, https://www.loc.gov/item/91790914/.
MLA citation style:
United States Bureau Of Mines, and Chazy School Collection. The story of asbestos–illustrating the mines and factories of the H.W. Johns-Manville Company. [United States: s.n., ?, 1921] Video. Retrieved from the Library of Congress, <www.loc.gov/item/91790914/>.
An arbitration agreement may specify confidentiality, but does that term necessarily control and require sealing of subsequent proceedings in court? “No,” usually, is the answer according to a recent federal district court ruling in CAA Sports LLC v. Dogra, No. 4:18-cv-01887-SNLJ, 2018 U.S. Dist. LEXIS 214223 (E.D. Mo. Dec. 20, 2018). The key portion of the ruling is quoted below.
“But, in the context of arbitration, courts routinely reject arguments that arbitration awards and supporting documents should be sealed merely to honor the parties’ underlying confidentiality agreement related to their arbitration. See, e.g., Grynberg v. BP P.L.C., 205 F.Supp.3d 1, 3-4 (D.D.C. 2016); Redeemer Committee of Highland Credit Strategies Funds v. Highland Capital Management, L.P., 182 F.Supp.3d 128, 132-134 (S.D.N.Y. 2016); Amerisure Mut. Ins. Co. v. Everest Reinsurance Co., 2014 U.S. Dist. LEXIS 153013, 2014 WL 5481107 *2 (E.D. Mich. Oct. 29, 2014); Century Indem. Co. v. AXA Belgium, 2012 U.S. Dist. LEXIS 136472, 2012 WL 4354816 at *13-14 (S.D.N.Y. Sept. 24, 2012); Zimmer, Inc. v. Scott, 2010 U.S. Dist. LEXIS 77409, 2010 WL 3004237 at *2-3 (N.D. Ill. Jul. 28, 2010); Zurich Am. Ins. Co. v. Rite Aid Corp., 345 F.Supp.2d 497, 504 (E.D. Pa. 2004). Indeed, as aptly stated by Judge Easterbrook of the Seventh Circuit “[p]eople who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
With these principles in mind, the Court finds little reason to seal the documents in this case. CAA Sports’ only argument is that the parties are contractually bound to confidentiality. Be that as it may, and even if the confidentiality provision, by its terms, applied both to court proceedings and the [*5] underlying arbitration, it does not bind this Court—being an agreement solely between the parties. More importantly, though, CAA Sports does nothing to explain why its interest in the secrecy of the underlying arbitration with Dogra should outweigh the public’s competing interest in free access to the judicial functioning of this Court. There is, for example, no suggestion that the arbitration award and supporting materials contain personal identifying information, implicate innocent third parties, or contain routinely protected information such as trade secrets or proprietary data. In fact, CAA Sports cites no law favoring its position—it cites no law at all.”
Hat tip to the St. Louis Record for publishing a December 25, 2018 article regarding the ruling. As some will recall, Legal Newsline previously moved for and obtained orders requiring unsealing of records in the Garlock trial. The various “Record” publications and Legal Newsline are inter-related. See this about page. The same page also explains: “Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.”