A new post at the ToxicoGenomica blog provides some insights into how CRISPR cameras will – over time – reshape toxic tort litigation. Please see this February 2o, 2018 post at the ToxicoGenomica blog.
Last week’s “Facebook” discovery ruling by the New York Court of Appeals has provided some headlines. A cogent synopsis/analysis is provided by Bill Ruskin in a February 19, 2018 post at “Toxic Tort Litigation” blog.
2017 was quite the year for attacks on and perceptions of “leading” public figures and institutions. In view of the new indictments by Mr. Mueller and other evenst, there are ample reasons to think 2018 will exceed 2017 as to attacks and perceptions of “leaders” and institutions. And, there also have been many arguments about and/or attacks on “science.” How are jurors reacting to these events? That’s a question I’ve been wondering about more and more as the molecular revolution brings more science into civil and criminal law cases, including mass tort cases.
Some jury consultants are publishing on these or related topics, and the results are notable. For example, juror consultant Melissa Gomez published a February 8, 2018 LAW360 “expert analysis article. The article needs to be read for all of its findings and conclusions. But highlighted below a couple of findings that especially caught my attention for purposes of thinking about mass tort claims involving products:
“The statistically significant change in opinions seems more related to a company’s direct impact on, and communications with, the public. Specifically, since 2017, about half (48 percent) of respondents agreed that companies lie to the public about their products’ safety. This is a statistically significant increase from the 31 percent who agreed to this perception in the prior years.
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. Specifically, since in 2017, 20 percent of respondents indicated that they believed that damage awards in lawsuits have gotten too high. This is a statistically significant decrease from the 28 percent who believed so in prior years. This data becomes even more compelling when we consider it next to the barrage of large verdicts in the news.” (footnote references omitted)
SCOTUSblog includes a February 16, 2018 announcement of two interesting events as to predicting outcomes at SCOTUS. The entry is pasted below in full since the point seems to be to spread the word.
“Event announcement: The Supreme Court and wisdom of the crowds
On February 21 at 12:45 p.m. PST, Stanford University’s CodeX will host a presentation by Daniel Martin Katz entitled, “How Crowdsourcing Accurately and Robustly Predicts Supreme Court Decisions.” More information about this event, which will include remote access, is available at this link.
Relatedly, this blog is collaborating with Good Judgment to offer the SCOTUS Challenge, which invites forecasters to predict the outcomes of Supreme Court cases from this term. This opportunity for readers is available on the SCOTUS Challenge page.”
Biomarkers are changing many aspects of science and litigation. The field is still young, but promising. The point is exemplified by FDA’s February 14, 2018 announcement of authorization of a biomarker test to assist in identifying concussions. The test is not considered definitive by itself, but adds additional information for consideration during diagnosis. FDA’s approval press release is here, dated February 14, 2018, and is pasted below.
“The U.S. Food and Drug Administration today permitted marketing of the first blood test to evaluate mild traumatic brain injury (mTBI), commonly referred to as concussion, in adults. The FDA reviewed and authorized for marketing the Banyan Brain Trauma Indicator in fewer than 6 months as part of its Breakthrough Devices Program.
Most patients with a suspected head injury are examined using a neurological scale, called the 15-point Glasgow Coma Scale, followed by a computed tomography or CT scan of the head to detect brain tissue damage, or intracranial lesions, that may require treatment; however, a majority of patients evaluated for mTBI/concussion do not have detectable intracranial lesions after having a CT scan. Availability of a blood test for concussion will help health care professionals determine the need for a CT scan in patients suspected of having mTBI and help prevent unnecessary neuroimaging and associated radiation exposure to patients.
“Helping to deliver innovative testing technologies that minimize health impacts to patients while still providing accurate and reliable results to inform appropriate evaluation and treatment is an FDA priority. Today’s action supports the FDA’s Initiative to Reduce Unnecessary Radiation Exposure from Medical Imaging—an effort to ensure that each patient is getting the right imaging exam, at the right time, with the right radiation dose,” said FDA Commissioner Scott Gottlieb, M.D. “A blood-testing option for the evaluation of mTBI/concussion not only provides health care professionals with a new tool, but also sets the stage for a more modernized standard of care for testing of suspected cases. In addition, availability of a blood test for mTBI/concussion will likely reduce the CT scans performed on patients with concussion each year, potentially saving our health care system the cost of often unnecessary neuroimaging tests.”
According to the U.S. Centers for Disease Control and Prevention, in 2013 there were approximately 2.8 million TBI-related emergency department visits, hospitalizations and deaths in the U.S. Of these cases, TBI contributed to the deaths of nearly 50,000 people. TBI is caused by a bump, blow or jolt to the head or a penetrating head injury that disrupts the brain’s normal functioning. Its severity may range from mild to severe, with 75 percent of TBIs that occur each year being assessed as mTBIs or concussions. A majority of patients with concussion symptoms have a negative CT scan. Potential effects of TBI can include impaired thinking or memory, movement, sensation or emotional functioning.
“A blood test to aid in concussion evaluation is an important tool for the American public and for our Service Members abroad who need access to quick and accurate tests,” said Jeffrey Shuren, M.D., director of the FDA’s Center for Devices and Radiological Health. “The FDA’s review team worked closely with the test developer and the U.S. Department of Defense to expedite a blood test for the evaluation of mTBI that can be used both in the continental U.S. as well as foreign U.S. laboratories that service the American military.”
The Brain Trauma Indicator works by measuring levels of proteins, known as UCH-L1 and GFAP, that are released from the brain into blood and measured within 12 hours of head injury. Levels of these blood proteins after mTBI/concussion can help predict which patients may have intracranial lesions visible by CT scan and which won’t. Being able to predict if patients have a low probability of intracranial lesions can help health care professionals in their management of patients and the decision to perform a CT scan. Test results can be available within 3 to 4 hours.
The FDA evaluated data from a multi-center, prospective clinical study of 1,947 individual blood samples from adults with suspected mTBI/concussion and reviewed the product’s performance by comparing mTBI/concussion blood tests results with CT scan results. The Brain Trauma Indicator was able to predict the presence of intracranial lesions on a CT scan 97.5 percent of the time and those who did not have intracranial lesions on a CT scan 99.6 percent of the time. These findings indicate that the test can reliably predict the absence of intracranial lesions and that health care professionals can incorporate this tool into the standard of care for patients to rule out the need for a CT scan in at least one-third of patients who are suspected of having mTBI.
The Brain Trauma Indicator was reviewed under the FDA’s De Novo premarket review pathway, a regulatory pathway for some low- to moderate-risk devices that are novel and for which there is no prior legally marketed device.
The FDA is permitting marketing of the Brain Trauma Indicator to Banyan Biomarkers, Inc.
The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products.
Amazing what shows up in the news everyday. One is a Valentine’s Day 2018 lawyer ad/article kind of thing promoting return to the US of overseas “asset protections trusts.” It provides a “real life” fact pattern of a doctor with apparently plenty of money, and a possible medical malpractice problem. The answer? Zip the money into an overseas trust for 10 years, at which point it will be white-washed. See text pasted below.
“A real-life story
Here is a client example: Dr. Veronica G. developed a specific medical procedure to fix an ongoing condition and for several years she had successfully helped more than 75 patients overcome their medical issue. One day while watching the news, Dr. G. saw a commercial in which a law firm advertised that it would sue doctors who injured patients who had the procedure performed and who may have sustained injuries.
Dr. G. began to realize that although this procedure was successful, there could be some larger liability than her malpractice policy would cover. This prompted her to consult with a lawyer who specialized in comprehensive estate planning with asset protection and resulted in her establishing foreign asset protection trusts.“
An upcoming workshop looks interesting as to class action and “tort reform” topics. The agenda is online here, and pasted below. A hat tip is owed to the Tort’s Prof blog for a February 9, 2018 post about the workshop.
After an alleged or actual mass tort, some companies move voluntarily into chapter 11 proceedings to cope with the claims. However, some seek to salvage value via other paths, such as a move to new ownership through a sale or other corporate transaction. The decision-making process between the two paths (or other paths) may become more difficult as social media events foster fast and furious sets of allegations and claims, and lawsuits sometimes follow in short order.
The difficulties are exemplified by a lawsuit filed on Sunday February 11, 2018 by the New York Attorney General to – apparently – stymie or alter the course of an apparently imminent sale of Weinstein entities. Those entities have been much in the news due to claims of sexual discrimination by Harvey Weinstein, and alleged lack of action by the Board of Directors despite alleged knowledge of various claims and confidential settlements. The lawsuit alleges numerous acts of potentially compensable discrimination, and seeks to stymie a possible or actual fraudulent conveyance of assets that could thwart the collection of judgments by tort claimants. Specifically, the closing prayer for relief (at page 37, subparagraph 4) seeks, among other things, an order:
“prohibiting any corporate or financial transaction that would enable Respondents to evade the continued jurisdiction of the Attorney General and this Court, undermine compliance with the terms of any judgment, or conceal proceeds of any sale of TWC or any of its assets;”
The Weinstein case of course is not a typical mass tort in the sense that it involves alleged discrimination instead of sales of allegedly harmful products or pollution of water, ground or air. However, there is no obvious reason why an AG might not take the same action regarding a sale or other transfer of assets involving a company facing pending or threatened claims arising from allegedly defective products or pollution of water, ground or air.
Continuing this week’s posts on the scale and scope of the litigation industry, it is interesting to see some of the tech titans starting to show up as agenda items for litigation conferences focused on mass tort claims. For example, Intel and Apple. Pasted below are the some of the entries for Harris Martin’s March 28, 2018 HarrisMartin’s MDL Conference: Apple, Intel & Emerging Mass Torts Agenda.
9:00 a.m. – 10:00 a.m.
Intel: What’s It All About, How Did We Get Here, Where Are We Going, and Can You Ethically Represent Differing Plaintiffs’ Interests?
Moderator: W. Daniel “Dee” Miles III, Beasley Allen Law Firm, Montgomery, AL
J. Gerard Stranch IV, Branstetter, Stranch & Jennings, PLLC, Nashville, TN
Adam J. Levitt, DiCello Levitt & Casey, Chicago
C. Matthew Curtin, CISSP, Founder, Interhack Corporation, Columbus, OH
10:00 a.m. – 10:45 a.m.
Intel: The OEM Cases and Cases Against Other Processor Manufacturers
Moderator:Adam J. Levitt, DiCello Levitt & Casey, Chicago
J. Gerard Stranch IV, Branstetter, Stranch & Jennings, PLLC, Nashville, TN
Stuart A. Davidson, Robbins Geller Rudman & Dowd LLP, Boca Raton, FL
1:30 p.m. – 2:30 p.m.
Apple Obsolescence: What the Case is About and What Claims Are Being Asserted?
Timothy G. Blood, Blood Hurst & O’Reardon LLP, San Diego
Dina E. Micheletti, Fazio | Micheletti LLP, San Ramon, CA
Laurence D. King, Kaplan Fox, San Francisco
Lynn A. Toops, Cohen & Malad, LLP, Indianapolis
2:30 p.m. – 2:45 p.m.
2:45 p.m. – 3:30 p.m.
Apple Obsolescence: Will Apple Attempt to Seek Shelter in the Telecom Arbitration Agreements?
Moderator: Timothy G. Blood, Blood Hurst & O’Reardon LLP, San Diego
Eric Gibbs, Girard Gibbs LLP, Oakland, CA
Todd A. Seaver, Berman Tabacco, San Francisco
To continue with a theme regarding the scale of mass tort litigation, this post touches on the scale of what one can call “securities class action suits.” The numbers are set out in an open access January 2018 report by NERA, and a related January 29, 2018 commentary at the D&O Diary. Again, one needs to read the full articles to really appreciate the scale, and one needs to recall the class actions do not include myriad smaller scale securities claims filed each year, both in litigation and arbitration. However, one big picture statistic is set out below from the D&O commentary:
“According to the report, there were 432 securities suit filings in 2017, the highest number of filings since 2001 (when, largely due to a flood of IPO laddering cases, there were 508 suits filed). The 432 filings in 2017 were 84% higher than the trailing five-year average of 235 lawsuit filings.”