As work continues to change, it seems more and more cases are litigated to define when a person is an employee. The UK Supreme Court recently provided an an answer that deemed a person an “employee,” despite arguments to the contrary. The UK Supreme Court blog covered the case in a helpful June 13, 2018 post, with abundant links to the opinion, the press summary and the argument. The case happened to involve a plumbing and heating engineer, which brings to mind the possible implications of the ruling for tort law, worker’s compensation and insurance purposes.
Trial is now underway in a football player’s concussion case against a college (Texas). A June 11, 2018 article at Quartz recaps some of the facts about the plaintiff, and possible implications for the sport at the college level.
LAW360 is covering the trial, as is Courtroom View Network. A June 13, 2018 article from LAW360 includes the following excerpts about opening arguments:
Law360 (June 13, 2018, 10:54 PM EDT) — The NCAA has known since the 1930s that football could lead to brain damage, counsel for the widow of a former University of Texas defensive lineman who had chronic traumatic encephalopathy told a Dallas jury during Wednesday opening statements in the first-ever trial concerning the NCAA’s alleged responsibility for a football player’s CTE.
During the first day of the trial before District Judge Ken Molberg, Eugene Egdorf of Shrader & Associates LLP told the jury his client Debra Hardin-Ploetz’s late husband, Greg Ploetz, was never given this crucial information before he made the decision to play college football, even though the NCAA, as the sport’s governing body, had promised to protect its athletes.
The NCAA had access to medical literature 90 years ago discussing “punch drunk syndrome” and the long-term, deleterious effects of concussions and repetitive head trauma, and even hired medical experts in 1933 to create a medical handbook — and then ignored the recommendations those experts gave about minimizing head trauma.”
The molecular biomarker revolution continues and will reshape many topics at the intersections between science and law. A recent example lies in an article explaining that researchers are moving fruitfully down apath to developing a cheap, non-invasive test to predict risk of pre-term birth. How did they do that? To simplify, tesearchers took a continuing series of blood samples from women who delivered at full term, and also took a set of continuing blood samples from two groups of women expected to have early labor because of prior pregnancy events in their lives. The researchers then compare the patterns of RNA (related to DNA) in the blood from the three groups. And, voila, they found a pattern of RNA differences that was correct 80% of the time in predicting preterm deliveries and falsely predicted preterm delivery in 17%.
The numbers in the studies are fairly small, and so the study should be viewed as proof of principle. More studies will be needed to refine the analysis. Nonetheless, the point here is that the biomarker revolution is continuing, and almost certainly will prompt many future changes in the standard of care for physicians, hospitals and others. Going further and thinking about product liability and torts, imagine the implications if studies of this sort are joined with “organ on a chip” studies about the impacts for fetal development of foods consumed and the many types of “exposures to chemicals” that occur during pregnancy. In that vein, consider the possible implications of studies about the impacts when a pregnant mother takes prescription drugs, vitamins or “supplements.”
The mass tort news of the week is today’s start of the first trial against the NCAA regarding concussions. The trial is in Dallas, and features prominent plaintiff and defense lawyers. A detailed story about the plaintiff, Greg Ploetz, is provided by a May 24, 2018 post at Deadspin. Live coverage of the trial is available on Courtroom View Network for those willing to pay to watch. Meanwhile, some concussion issues are up in the Ohio Supreme Court.
These cases are important for a range of reasons, including the reaction of jurors to the science that will be presented, including biomarkers.
The Springer v. Nohl fraudulent conveyance/asbestos case in Wisconsin highlights dubious corporate side activities, and is finally over, for now, after producing a very narrow ruling.
The Springer case arose out of the shut down and asset sale of a business that sold asbestos-containing products. See this December 9, 2016 GlobalTort post for summaries of the lower court proceedings in the case. In short, true insiders (including lawyers) bought the assets and sought to limit or avoid any obligation to pay persons injured by previously sold products.
As of early this year, the case was still dragging on even though the briefs were fully submitted as of December 2016; see online here at a Wisconsin court web site. Oral arguments were in October 2017, and are online in video format. The court decided the case on May 15, 2018.
The narrow, narrow ruling is that Wisconsin’s version of the UFTA does not control common law claims in a tort case. That outcome is hardly surprising. Various summaries provide more specifics and perspectives. For example, here.
It seems to be a week for articles highlighting the more tawdry side of the plaintiff side in mass torts. In this instance, a new Forbes article (June 6, 2018) by Daniel Fisher highlights a “sinecure” obtained by an asbestos trust trustee who appears not qualified for his role. The article is insightful in some ways, but also should be taken with a grain of salt for a range of reasons. Among others, some asbestos trust trustees (e.g Eric Green) plainly are eminently qualified and were pioneers in ADR in general and in establishing asbestos trusts and their processes. On the other hand, it appears not so much can be said for a trustee who is highlighted in the article. A teaser excerpt is as follows:
“Koppelman, 78, runs CAK Entertainment, where he negotiates merchandising and finance transactions for stars like Wendy Williams, Pitbull, Nicki Minaj and Jennifer Lopez. He got his start in the entertainment industry as an Adelphi University undergraduate in the Ivy Three, a pop group whose only hit single “Yogi” made it to the Top Ten in 1960. He later became a producer of acts like Jerry Lewis and the Playboys and then rose to the top of EMI Music before branching out into other businesses, including running the eponymous businesses of Steve Madden and Martha Stewart after each was convicted of securities fraud.
Koppelman, a non-lawyer, declined to say how he came to be a member of asbestos trust boards, but he and [Perry] Weitz both sit on the board of Counsel Financial, a litigation finance firm run by former asbestos lawyer Joseph DiNardo.”
For an outlier example of some of the worst of mass tort claiming, proceed directly to Mass Torts and Mass Fraud, the June 6, 2018 post at the Drug and Device Law blog. Part of the introduction is pasted below to entice readers to go read it in full:
“Wouldn’t you know it that the day after our post last week the Sixth Circuit issued a decision, McGirr v. Rehme, ___ F.3d ___, No. 17-3519, 2018 WL 2437184 (6th Cir. May 31, 2018), that reminded us of another fraud associated with the diet drug mass tort litigation – this time involving the legal profession in a very ugly way. The case was an effort by diet drug plaintiffs to recover money from a plaintiff lawyer who had stiffed them. Their entitlement to the money had already been established. The problem was collecting on the judgment, because the plaintiff lawyer was doing a nifty job of moving his assets around. Because any further characterization by us will likely elicit accusations of schadenfreude on our part, we will rely on direct quotes from the Sixth Circuit’s opinion as much as possible.
Here is how the opinion begins: “For years, plaintiffs’ attorney Stanley Chesley appears to have been orchestrating a high-stakes shell game in an effort to escape a long overdue multi-million dollar judgment. In the process, he has defrauded hundreds of judgment creditors, many of whom are plaintiffs here.” 2018 WL 2437184, at *1. And we’re off.”
If someone can really pull off an economically efficient and safe method for recycling steel coated with asbestos, I will be truly impressed. Time will tell. See https://ciwm-journal.co.uk/safe-circular-solution-developed-for-asbestos-contaminated-steel/.
A $1 billion compensatory damages verdict last week seems to be another signal of significant unhappiness among the people who are serving on juries. An April 23, 2018 article in the NYT provides more specifics. According to the article, the trial was only on damages, perhaps after a default judgment. As described in my prior post of February 20, 2018. There, I highlighted a jury research report that emphasized that jurors are seeking to use their verdicts to send messages. According to the researchers:
“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.”
Yesterday’s punitive damages verdict against J&J arrived after interesting questions from the jury to the court. One wonders how J&J will account for the questions on a going forward basis. As reported by LAW360, the questions were as set out below:
“Law360, Los Angeles (May 24, 2018, 1:09 PM EDT) — A California jury found Thursday that Johnson & Johnson should pay $4 million in punitive damages a day after finding that asbestos in its talc baby powder was responsible for a woman’s mesothelioma and awarding the woman $21.7 million in compensatory damages.
The jury began deliberations on Thursday morning posing questions to the court, asking if any punitive damages would go to Anderson and whether they could circumvent monetary punitive damages and instead punish the defendants by requiring them to place a warning label on their products.
The court responded that yes, any punitive damages would go to Anderson, and no, the jury could not order a warning label.”