Interesting topics are raised by a motion by Takata for appointment of Roger Frankel as a futures representative in Takata’s chapter 11 case. The case arose from Takata paying out massive amounts to pay for products recalls demanded by governments and car companies.

In the motion, Takata refers to appointment of Mr. Frankel  to advocate for future personal injury claimants. That proposed as counsel raises interesting topics since the car companies seem to be much larger claimants for product recalls, but they also likely will be claiming claims against Takata in future personal injury cases.  In a related view, other manufacturing entities may well sued when wrecks happen. And, Medicare and health insurers may assert liens against funds paid out to personal injury claimants. For which interests can/should Mr. Frankel advocate?


According to this page of the SCOTUS web site, underlying plaintiffs timely filed their briefs opposing GM’s bid for certiorari on February 16, 2017. The page shows the briefs as follows (but does not include links to the briefs). So far, the briefs also are not on LAW360.


No. 16-764
General Motors LLC, Petitioner
Celestine Elliott, et al.
Docketed: December 15, 2016
Lower Ct: United States Court of Appeals for the Second Circuit
  Case Nos.: (15-2844, 15-2847)
  Decision Date: July 13, 2016
  Rehearing Denied: September 14, 2016
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Feb 16 2016 Brief of respondents Ignition Switch Pre-Closing Accident Plaintiffs and Groman Plaintiffs in opposition filed.
Dec 13 2016 Petition for a writ of certiorari filed. (Response due January 17, 2017)
Jan 3 2017 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioner.
Jan 3 2017 Waiver of right of respondents Participating Unitholders to respond filed.
Jan 6 2017 Order extending time to file response to petition to and including February 16, 2017, for all respondents.
Jan 6 2017 Waiver of right of respondents Doris Powledge Phillips, Individually and as Represenative of the Estates of Adam Powledge, Rachel Powledge, Isaac Powledge, Christian Powledge and Jacob Powledge, all deceased to respond filed.
Jan 17 2017 Brief amicus curiae of The Product Liability Advisory Council, Inc. filed.
Jan 17 2017 Brief amicus curiae of National Association of Manufacturers filed.
Jan 17 2017 Brief amici curiae of The Chamber of Commerce of The United States of America, et al. filed.
Feb 16 2017 Brief of respondent Wilmington Trust Company in opposition filed.
Feb 16 2017 Brief of respondents Ignition Switch Pre-Closing Accident Plaintiffs and Groman Plaintiffs in opposition filed.

I’d love to take a few days to read and write about interesting thinking on mass torts and claims resolution issues. But that’s not possible right now. I do, however, have time to urge readers to spend some time on the November and December posts at the Mass Tort Litigation Blog.

At the blog, you will find lots of interesting thinking and writing, including open-minded thinking on where we are and what’s ahead. Specifically, lots of defense side people today are busy praising and/or asking for the demise of tort-related class actions. That may be a great outcome to preclude “greenmail” settlements forced simply by the size of an aggregated risk, as Judge Posner explained years ago in the Rhone-Poulenc litigation. But as a couple of the posts point out, the world outside class actions may be worse as companies take repeated, major hits in individual cases. Thus, smoking verdicts post-Engle and two recent Prempro verdicts are examples presented in recent posts. On the human side, real people face horrible diseases that can bring intense suffering, mental and physical disability, and death.
What about individual trials – is that the answer ? Not really, for many reasons for both sides. Indeed, the individual trial process drives Wall Street and companies crazy because they want predictable cash flow, but they cannot obtain consistency with myriad trials. The result ? Stock price goes way down, and so management looks for a way to get back to cash flow certainty. Chapter 11 often becomes the answer, and that’s a mixed bag at best. Today, all sides (plaintiffs, futures representatives, defendants, and insurers, plus judges) are involved in creating some real public policy travesties in chapter 11 asbestos bankruptcies. Why ?Because for many reasons, the various sides mainly take short-term views and do what’s expedient to get to a resolution “for this case.”
Huge new issues are ahead. Why ? For one, tort litigation is exploding around the globe, and will continue to do so as nations develop. Meanwhile, as science continues to move at a blistering pace, more and more causes and effects can be proven at the cellular level. Tragically, many cancer rates (not cancer death rates, but rates of disease) are soaring here in the US and around the globe. In addition, scientists are finding more problems, such as chemical-induced endocrine system disruption, and chemical-induced genomic changes that cause harms across multiple generations of humans and animals. Over time, there will be many more succesful claims for medical monitoring. And, now that science is exploding with new tools and new answers, the monitoring claims will result in requests for funds to pay for new research, and/or to pay for individual genomic therapy. Those payments will be large, but may less expensive than paying for intense suffering followed by disability or death. In short, over the next 20 years, there will be massive claims for massive injuries, and courts will be asked to resolve issues regarding whether there is “liability” (however that is defined), and will be asked to decide what to do when liability is proven or claims are settled.
So, that takes this all back to where this post started. If you want to look ahead in the world of mass torts, spend some time pondering some of the great posts and links at the Mass Tort blog. The blog is here. Enjoy.
The Ad Hoc Committee seeking to represent the interests of asbestos claimants in GM filed a motion [Docket 478] requesting appointment of a futures representative to represent future asbestos claimants.
The Ad Hoc Committee has now expanded; footnote 1 of the motion identifies the committee members as consisting of asbestos claimants with lawyers described as follows:

“The Ad Hoc Committee of Asbestos Personal Injury Claimants is comprised of William J.

Lewis, a mesothelioma claimant with a settled but unpaid claim, represented by

SimmonsCooper LLC; Maureen Tavaglione, Personal Representative of the Estate of Robert

J. Tavaglione, represented by Waters & Kraus; Terry Roth, a lung cancer claimant,

represented by Brayton Purcell LLP; Jene Moore, Sr., a mesothelioma claimant represented

by Early Ludwick & Sweeney L.L.C.; Edward Levitch, a mesothelioma claimant represented

by Paul & Hanley LLP; and asbestos personal injury claimants represented by Cooney and

Conway; The Lanier Law Firm PLLC and Weitz & Luxemberg, P.C. Steven KazMcClain, Lyons, Greenwood & Harley, PLC, serves as an ex oficio member.”

In support of their motion, the claimants cite GM’s SEC filings that state a reserve of $ 627 million for the next 10 years of asbestos claims:

General Motors’ most recent Quarterly Report (Form 10-Q) filed with the

Securities and Exchange Commission admits that it has hired the firm of

“Hamilton Rabinovitz & Associates, Inc., a firm specializing in estimating

asbestos claims, to assist us in determining our potential liability for pending

and unasserted future asbestos personal injury claims.” After noting that

their estimates are “inherently subject to certain uncertainties” and that

their data sources and assumptions “may not prove to be reliable predictors

with respect to claims asserted against us,” General Motors states that its

“liability recorded for asbestos-related matters was $627 million, $648 million

and $628 million at March 31, 2009, December 31, 2008 and March 31, 2008


The Claimants argue the estimate is too low and fault the Auto Task Force:

Experience suggests that these figures fall on the extreme low side of likely future asbestos liability.

Thus the magnitude of General Motors’ projected ongoing asbestos liability

has been a matter of public knowledge and should have been addressed by

both General Motors and the Auto Task Force in their restructuring


The claimants filed motions [Docket 479][Docket 506] seeking an expedited June 18 hearing on the motion, arguing:

9. As stated in the Motion, to ensure that General Motors’

acknowledged future asbestos claimants are vigorously and faithfully

represented, a legal representative for future asbestos personal injury

claimants (a “Future Claimants’ Representative”) should be appointed at the

earliest possible date in order to take an “active and aggressive role” in

protecting their interests “at every step [of the] litigation.” Findley v. Falise

(In re Johns-Manville Corp.), 898 F.Supp. 473, 565 (S.D.N.Y. 1995).

Similarly, because the Sale Motion now before this Court seeks to affect the

rights of current asbestos claimants as well as future asbestos demand

holders, an Official Committee of Asbestos Personal Injury Claimants (an

“Asbestos Committee”) should be appointed as early in this bankruptcy case

as is practicable.

11. With the fast track schedule to which the Debtors are

committed, delaying appointment of a Future Claims’ Representative and an

Asbestos Committee would, in effect, deny unknown future asbestos

claimants the protections to which they are entitled and deny current

asbestos claimants any meaningful participation in these cases.

Judge Gerber denied the motion in an order [Docket 507] that consists of a sentence written on the face of the motion, saying that adequate cause had not been shown. Therefore, the hearing is now set by notice [Docket 637] for June 25 at the 9:45 am hearing, which is 5 days before the June 30 sale hearing is scheduled to occur.