GlobalTort

GlobalTort

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

Class Actions in Europe: “Collective re-dress: all talk and now trousers”

By Kirk Hartley on Posted in Class Actions, EU Developments, Litigation Industry

Some years back, a few people (including me, in 2010) bucked conventional wisdom and predicted the rise of class actions in Europe. See, for example, my 2010 post at https://www.globaltort.com/2010/03/be-careful-what-you-wish-for-in-litigation-might-that-rule-apply-to-the-iqbaltwombly-pleading-standard/.

In fact, class actions continue to expand in Europe. For a timely and useful article providing news on the latest possible expansion, see “Collective re-dress: all talk and now trousers.”  It’s online at Cooley.com.  Among other things, the article points out the following possible expansion:

  • “More sectors in scope: the Committee proposes to significantly extend the scope of representative actions to include a much larger number of legislative instruments, primarily focussed on product safety. These include the General Product Safety Directive, and the regimes relating to low voltage equipment, radio equipment, machinery, PPE, chemicals, cosmetics, toys, foods, medicines and medical devices.”

Toxic Trio – # 3 – Formaldehyde – Per Allianz and Praedicat

By Kirk Hartley on Posted in Litigation Industry, Mass Tort Issues, Science, Uncategorized

As pointed out in Tuesday’s post (September 18, 2018),  Praedicat and Allianz recently published facts and assessments on a “toxic” trio associated with some cosmetics. Again, this is an innovative effort, and deserves careful consideration. The third member of the “toxic trio” substances is formaldehyde. The facts and assessment of the future are – again – notable:

“Formaldehyde is listed as a known carcinogen by the US National Toxicology Program and the International Agency for Research on Cancer (IARC)…. However, formaldehyde is most commonly used to make resins – precursors to many plastic and adhesive chemicals – that are used in dozens of industrial processes that eventually produce hundreds of consumer products: pressed wood, disinfectants, clothing, adhesives, laminates, insulation, paper products, and personal care products. Formaldehyde is often a component of hair straighteners used both in salons and at home.

***

Using Praedicat’s model to evaluate the current consensus and projected evolution of the peer-reviewed scientific literature, we summarize the hypothesised bodily injuries linked to formaldehyde exposure in the table.”

 

Toxic Trio – # 2 – Toluene – Per Allianz and Praedicat

By Kirk Hartley on Posted in Litigation Industry, Mass Tort Issues, Science

As pointed out in Tuesday’s post (September 18, 2018),  Praedicat and Allianz recently published facts and assessments on a “toxic” trio associated with some cosmetics. This is an innovative effort, and one that deserves careful consideration. One of the “toxic trio” substances is toluene. The report includes the following data, and Praedicat’s assessment of where the science likely will go. The report includes the following:

“Toluene is … a solvent commonly found in paints, inks, adhesives, paint thinner, stain removers, fragrances, hand and nail care products, and a wide variety of personal care products. The value of the toluene market was $16.6bn in 2016 and significant growth is projected over the coming years. The wide-ranging use of toluene as a solvent in the personal care product applications listed above presents two potential exposure routes: dermal and inhalation.

***

With exposure to toluene common from solvent-containing products, including personal care products, the potential for bodily injury is important to understand. Scientists have studied toluene fairly extensively, publishing 180 studies investigating its ability to cause bodily injury. As before, in the adjacent table we summarizes the consensus and projected evolution of the peer-reviewed scientific literature using Praedicat’s models.”

The most innovative part of Praedicat’s work is assessing the current state of the science as to disease causation, and where it will go. From the 180 studies (and more factors), Praedicat assessed the science as follows:

Allianz and Praedicat Point Fingers at “Toxic Trio” in Cosmetics – #1 is dibutyl phthalate (DBP)

By Kirk Hartley on Posted in Litigation Industry, Mass Tort Issues, Science

A few far sighted liability insurers are paying attention to molecular science as to alleged or actual toxins, often aided by the ground-breaking work at Praedicat to assess the medical and scientific literature as to various actual or alleged toxins. See this February 7, 2014  post regarding Praedicat’s work and vision.

Some also are taking their concerns public. Thus, Allianz and Praedicat just issued a trio of publications reporting on concerns related to a so-called “toxic trio” as related to cosmetics and “personal care” products.  See:

https://www.businesswire.com/news/home/20180912005640/en/%E2%80%9CToxic-Trio%E2%80%9D-Cosmetics-Creates-Emerging-Liability-Risks

https://www.agcs.allianz.com/insights/white-papers-and-case-studies/emerging-liability-risks-toxic-trio/

https://www.agcs.allianz.com/assets/PDFs/risk%20bulletins/AGCS_Praedicat_Toxic_Trio_Risk_Bulletin.pdf

What’s the gist? The following:

“CHEMICAL DANGERS IN PERSONAL CARE PRODUCTS ALLIANZ GLOBAL CORPORATE & SPECIALTY®Increasing scientific, regulatory, and consumer concerns means increasing risk for manufacturers and suppliers of various personal care products. The potential for synergistic effects of a so-called “toxic trio”of hazardous chemicals used in these products threatens to expose them to latent liabilities. This risk bulletin by Allianz Global Corporate & Specialty and Praedicat, a leading science-based risk analytics company, reviews possible risk exposures and potential impacts of this trio of chemicals to businesses and the insurance industry.

Among the widely-used chemicals today, three have gained some notoriety, primarily for their use in nail varnish: dibutyl phthalate (DBP), toluene, and formaldehyde –or the so-called “toxic trio”which are prevalent in the personal care industry.”

As to DBP, they said, among other things:

“As a result, body lotions, perfumes, and nail varnishes containing DBP, because they are applied directly to the skin, have a clear dermal exposure route that theoretically allows DBP to enter the bloodstream, although until recently it was unclear whether it actually did so. Three separate peer-reviewed studies in the last decade have shown that it does [Janjua, N.R. 2008; Pan, T.L. 2014; Sugino, M. 2017]. Collectively, this research demonstrates that DBP can cross the skin but that the transport rate is likely to depend on the activity of certain enzymes that start the process of metabolizing DBP into its breakdown products.”

As to DBP, as shown by the chart below, Praedicat sees the science worsening for defendants as to causation as to “endocrine” system diseases and conditions. To me, the most innovative part of Praedicat’s work is assessing the current state of the science as to disease causation, and where it will go.

 

 

New Study Addresses More Germline (Inherited) Variants in Genes of Persons Afflicted by Mesothelioma

By Kirk Hartley on Posted in Asbestos, Cancer, Science

Use of genomic testing continues to increase to seek to explain the reasons for and drivers of cancer. Some aspects of the newest broad study related to inherited mutations in persons with mesothelioma are summarized by David Schwartz and me in a September 6, 2018 post at the ToxicoGenomica blog.

What Will Happen to the Discovery Record – State Farm Settles Lawsuit Regarding Campaign Contributions for Illinois Supreme Court Justice Karmeier

By Kirk Hartley on Posted in Litigation Industry, Mass Tort Issues

Campaign contributions – direct and indirect, and transparent or hidden – are frequent topics for charges and counter-charges of bias and illegal campaign finance. In that light, it’s interesting to read and think about why State Farm and plaintiffs agreed to a $250 million settlement that mooted a trial of the long-pending litigation regarding campaign contributions related to the election of a member of the Supreme Court of Illinois.  Articles are everywhere – e.g. here .  The articles, however, do not address the point of greatest interest to me. That is, what are the settlement terms regarding public access  – or not – to the complete record of discovery taken in the case.

New Article Touches on Genomics and Causation as to Mesothelioma

By Kirk Hartley on Posted in Asbestos, Cancer, Mass Tort Issues, Science

It’s good to see more lawyers focused on genomics as related to causation in mass tort cases. A group from Goldberg Segalla just wrote about the topic as part of a broader paper on alternative causation issues. The article was published in Mealey’s Asbestos; it is: Defense Strategies For Alternative Causation Arguments In Asbestos Case,  33-14 Mealey’s Litig. Rep. Asb. 31 (Aug. 29, 2018). The article also is online here at Asbestos Case Tracker.  

Notable New Study and Paper on 198 Persons with Mesotheliomas and Germline Variants in Cancer Associated Genes

By Kirk Hartley on Posted in Asbestos, Cancer, Science

Some scientific findings provide both opportunities and risks for litigants in mass tort cases. The point is highlighted by a new paper by Panou and colleagues published in mid- August in the Journal of Clinical Oncology. The paper concludes that a significant proportion (12%) of patients with malignant mesotheliomas carry inherited (germline) mutations in cancer-associated genes, especially in peritoneal mesotheliomas. Overall, 24 germline mutations were identified in 13 cancer-associated genes from a cohort of 198 persons with mesothelioma. The subjects of the study were mainly persons treated at the University of Chicago during 2016-17.

The next few weeks include multiple events at which one can expect there will be discussion of the Panou paper and other topics related to genetics, asbestos and cancers of the lung:

 

Fraudulent Conveyance, Asbestos and A Very Interesting Arbitration

By Kirk Hartley on Posted in Asbestos, Mass Tort Issues

Over the years, I’ve had the good fortune to work as a trial lawyer on some very interesting issues in cases at intersections between business law, tort law and science. The outcome of the most recent trial is now public. As a member of the trial team for plaintiff, I focused on presentation and cross-examination of experts.  For now, here’s a summary from an August 30, 2018  news article at Crain’s Cleveland News:

“An arbitration panel has ordered subsidiaries of power management giant Eaton (NYSE: ETN) to pay $293 million related to claims stemming from the company’s $13 billion acquisition of Cooper Industries in 2012.

Eaton, which is based in Dublin, Ireland, but has its North American headquarters in Beachwood, said in a news release issued late Wednesday, Aug. 29, that it intends to challenge the arbitration award “on several grounds,” though it did not provide details of its planned challenge.

For now, though, Eaton said it estimates the arbitration award will lead to an after-tax expense of $205 million in the third quarter of 2018, reducing quarterly earnings per share by 47 cents.

The panel’s award was issued last Thursday, Aug. 23, and stems from claims made by Pepsi-Cola Metropolitan Bottling Co.

Eaton said in the release that the dispute is related to Pepsi’s claims that it was harmed by a 2011 asbestos settlement agreement that resolved litigation Pneumo Abex LLC had previously brought against various Cooper Industries units.

“The litigation involved, among other things, a guaranty related to Pneumo Abex’s friction products business,” Eaton said in the release. “Pepsi claimed that the value contributed to Pneumo Abex and a newly established trust in exchange for a release of the guaranty was substantially below reasonably equivalent value, and that an inability of Pneumo Abex to satisfy future liabilities may result in plaintiffs suing Pepsi under various theories.”

Eaton said there are no other pending claims related to the contributions made for the release of the guaranty.

In a July 30 filing with the U.S. Securities and Exchange Commission, Eaton provided some background on the case.

From that filing:

In November 2015, after a Texas court ruled that Pepsi’s claims should be heard in arbitration, Pepsi filed a demand for arbitration against Cooper (and Cooper subsidiaries including Pneumo and the Pneumo Abex Asbestos Claims Settlement Trust). Pepsi subsequently dropped claims against all parties except Cooper. An arbitration under the auspices of the American Arbitration Association commenced in October 2017. Pepsi’s experts have opined, among other things, that the value contributed to the Trust for a release of the guaranty was below reasonably equivalent value, and that an inability of Pneumo to satisfy future liabilities may result in plaintiffs suing Pepsi under various theories. Cooper submitted various expert reports and, among other things, Cooper’s experts have opined that Pepsi has no basis to seek any damages and that Cooper paid reasonably equivalent value for the release of its indemnity obligations under the guaranty. The arbitration proceedings closed in December 2017. On July 11, 2018, the arbitration panel made certain findings and concluded that the value contributed to the Trust did not constitute reasonably equivalent value, but ordered the parties to recalculate the amount that should have been contributed to the Trust as of the date of the 2011 transaction.

Eaton posted sales of $20.4 billion in 2017. It has about 96,000 employees worldwide and sells products to customers in more than 175 countries.