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

Chapter 11 After Failure to Appreciate the Scale of Risk: “PG&E Sparked at Least 1,500 California Fires. Now the Utility Faces Collapse”

Posted in Bankruptcy

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.”


California Supreme Court Changes – Bluer, It Appears

Posted in Comparative Law, Litigation Industry

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.


The Age of Trials on TV – “CVN’s Top 10 Most Impressive Plaintiff Verdicts of 2018”

Posted in Litigation Industry, Media, Law and Politics

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.

90 Minute Film – “The story of asbestos–illustrating the mines and factories of the H.W. Johns-Manville Company Illustrating the mines and factories of the H.W. Johns-Manville Company”

Posted in Asbestos

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:

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
MODS Record
Dublin Core Record

Part of







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.

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,

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, <>.

Arbitration Confidentiality Clause Does Not Control Subsequent Proceedings in Court

Posted in Confidentiality/Sealing Orders, Crisis Management, First Amendment, Media, Law and Politics, Policy Issues

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.”

Blood Spatter “Science” and Wrongful Conviction Claims

Posted in Criminal Law and Torts, Science

It is depressing to read about the havoc wreaked in some cases by apparently not credible “blood splatter science,” and some other fringe areas of “expert” testimony in criminal cases. A broad view of a wrongful conviction is set in a December 20, 2018 NYT article.   Also see this May 31, 2018 article at Pro Publica.   One wonders how many related civil suits for damages have been or will been filed for persons wrongly convicted, when cops and prosecutors should have known better.

A Valuation Question: “Value of a Statistical Life? $9.1 Million”

Posted in Litigation Industry, Policy Issues

Some recent reading reminded me that the Conversable Economist blog includes an October 23,  2013 post that provides a very useful discussion of some of the issues and data tied up in trying to value a life for purposes of statistics. It begins as follows, and includes much more.

“The costs of regulations can be measured by the money that must be spent for compliance. But many of the benefits of regulation are measured by lives saved or injuries avoided. Thus, comparing costs and benefits requires putting some kind of a monetary value on the reduction of risks to life and limb. For example, the US Department of Transportation estimates the “value of a statistical life” at $9.1 million in 2012. In a memo called “Guidance on Treatment of the Economic Value of a Statistical Life in the U.S. Department of Transportation Analyses,” it explains how this number was reached. I’ll run through the DoT estimates, and then raise some of the broader issues as discussed in a recent paper by Cass Sunstein called “The value of a statistical life: some clarifications and puzzles,” which appeared in a recent issue of the Journal of Benefit Cost Analysis (4:2, pp. 237-261).”

Bogged Down Courts – Six Judges Added To Hear Libby Asbestos Claims Backlog

Posted in Asbestos

Lots of efforts to project asbestos litigation involve efforts to understand and forecast filing patterns, and resolution rates.  On that topic, it’s worth remembering that budget cuts in state courts often always lead to fewer judge and case backlogs. A recent example can be found in the efforts to resolve “Libby asbestos cases.” A December 26, 2018 article at Montana NPR illustrates the point, as it recaps statistics on the cases and the appointment of six additional judges to hear the cases.


Montana’s Supreme Court has appointed six more judges to the state’s year-old asbestos claims court.


Court Administrator Beth McLaughlin says some people have had cases pending for more than 15 years, and without the appointment of the additional judges, “It could take decades to get these cases tried.”


Montana’s asbestos claims court has identified more than 2,200 pending cases alleging asbestos exposure against more than 40 individual defendants. The supreme court’s appointment of six more judges this month is a relief to attorneys and claimants in the thick of the battle.


The asbestos claims court was an attempt to meet the demands of both claimants and defendants. District Judge Amy Eddy in Flathead County was the first appointed to it, and she says adding six more judges only scratches the surface of the demand for legal resolutions.

“Well frankly it’s not nearly enough,” Eddy says. “We’ve got hundreds and hundreds of cases to try across primarily northwest Montana.”

Eddy says the Montana judiciary as a whole is understaffed and underfunded. The now seven judges working on the asbestos claims court are doing so voluntarily without additional compensation on top of already hefty workloads. It’s not a light undertaking.

“The Asbestos Claims Court is handling some of the most long-standing and complicated toxic exposure cases that the judiciary has handled in Montana. I’m unaware of any other litigation with this scope of complexity and history in the state courts.”


Montana’s Supreme Court anticipates an additional 200 asbestos exposure cases to crop up each year in the foreseeable future.