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.”

The U.S. Chamber of Commerce (via its American Tort Reform Foundation) has issued the 2018-19 version of its annual “Judicial Hellholes” report. Of special note this year, the report concludes some hellholes are threatening to appear in “red states,” including Georgia. The entire report is online at this page; pasted below are excerpts about a newly named entrant (the Twin Cities of Minnesota), and the watch list, which includes the Georgia Supreme Court and the Montana Supreme Court.

__________________________

“#9 TWIN CITIES, MINNESOTA A newcomer to the Judicial Hellholes report, the Twin Cities’ position was solidified after the attorney general mishandled a lawsuit against a large Twin Cities employer and a Hennepin County trial judge stripped a company’s defenses. The lower courts appear to be following the lead of the state’s high court after it subjected property owners to expanded liability in 2018 and rejected a measure intended to remove “junk science” from the state’s courts.

WATCH LIST

Beyond the Judicial Hellholes, this report calls attention to seven additional jurisdictions that bear watching due to their histories of abusive litigation or troubling developments. Watch List jurisdictions fall on the cusp—they may drop into the Hellholes abyss or rise to the promise of Equal Justice Under Law.

COLORADO SUPREME COURT Liability-expanding decisions and rulemaking by the court coupled with prospects of a pro-plaintiff legislative agenda in 2019 has created an unfair and unbalanced environment for defendants in the Centennial State.

GEORGIA SUPREME COURT Georgia’s Supreme Court in recent years has issued decisions that significantly expanded civil liability, and that troubling trend continued in 2018.

MONTANA SUPREME COURT The Montana Supreme Court’s penchant for expanding liability, judicial activism, and defiance of U.S. Supreme Court precedent once again landed it on the Judicial Hellholes Watch List.

NEWPORT NEWS, VIRGINIA Perhaps most notable in 2018 is the lack of cases to go to trial in Newport News. Plaintiffs and defendants alike have sought to litigate asbestos cases in federal court, as a result, it is hard to know whether problems and inequities that have manifested themselves in the past will persist. Newport News has been known for its evidentiary double standards, unsound legal rulings and lack of transparency in asbestos litigation.

OHIO EIGHTH DISTRICT COURT OF APPEALS–CUYAHOGA COUNTY A newcomer to the Watch List, the district has developed a reputation for handing down large damage awards and being a “haven” for class action lawsuits. It has developed a troublesome pattern of issuing unbalanced plaintiff-friendly decisions, which had to be overturned multiple times by the Ohio Supreme Court.

PENNSYLVANIA SUPREME COURT The high court issued a series of liability expanding decisions and has been selective, at best, in following U.S. Supreme Court precedent, inexplicably opening its doors to out-of-state plaintiffs.

WEST VIRGINIA SUPREME COURT OF APPEALS In an unprecedented move, West Virginia lawmakers voted to recommend the impeachment of all sitting members of the state’s highest court in 2018. Prior to the impeachment chaos, the court also issued a disappointing class certification decision that rejects U.S. Supreme Court precedent and encourages plaintiffs’ lawyers from all over the country to flock to West Virginia courts to file class action lawsuits. The 2018 elections did bring about some encouraging news with the election of U.S Representative Evan Jenkins and former House of Delegates Speaker Tim Armstead to fill the vacancies on the court.

 

It’s an interesting week for thinking about risk. As it happens, I’m presenting on lethal diseases and “real world evidence” at the annual meeting of the Society for Risk Analysis. Meanwhile, the General Counsel of Praedicat recently published an interesting article on:  “What’s the risk in learning about risks?” It’s well worth reading. The article starts out as follows:

“In talking with product stewardship and risk management professionals, we occasionally see a fear of too much knowledge.  You may believe that knowing about a specific risk means being held legally responsible if the risk manifests.  Unfortunately, that’s true.

Proving liability when a harm results requires showing that the risk was reasonably foreseeable.  And known risks are by definition reasonably foreseeable.  In product liability cases in particular, a manufacturer has a duty to warn consumers of any risks that it knows about or reasonably should know about.”

 

 

Age of exposure to toxins is receiving increasing attention from researchers. Below, the abstract from an interesting study of arsenic drinking water exposures in Chile.

https://academic.oup.com/aje/article-abstract/187/11/2297/5063615#.W98xc7qmSq8.email

“Abstract

Arsenic in drinking water is known to cause cancer and noncancer diseases, but little is known about its association with age at exposure. Here, we investigated age at arsenic exposure and mortality in Antofagasta, Chile, 30螔years after a distinct period of very high water arsenic concentrations (1958). We calculated standardized mortality ratios (SMRs) comparing Antofagasta with the rest of Chile for 2001by sex and age at potential first exposure. A remarkable relationship with age at first exposure was found for bronchiectasis, with increased risk in adults 30螔years after exposure being confined to those who were in utero (SMR = 11.7, 95% confidence interval (CI): 4.3, 25.4) or aged 1蝶years (SMR = 5.4, 95% CI: 1.1, 15.8) during the high-exposure period. Increased SMRs for lung, bladder, and laryngeal cancer were evident for exposures starting at all ages, but the highest SMRs were for exposures beginning at birth (for bladder cancer, SMR = 16.0 (95% CI: 10.3, 23.8); for laryngeal cancer, SMR = 6.8 (95% CI: 2.2, 15.8); for lung cancer, SMR = 3.8 (95% CI: 2.9, 4.9)). These findings suggest that interventions targeting early-life arsenic exposure could have major impacts in reducing long-term mortality due to arsenic 30螔years after exposure ends.” 

A new article consolidates information on the use of chapter 11 by Catholic dioceses. The author is a Penn State law professor, Marie Reilly. The article  is posted in SSRN, Catholic Dioceses in Bankruptcy. Hat tip to Private Law Theory blog for flagging the article.

The abstract states:

“The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based on reported decisions, pleadings, plans, and disclosure statements. It explains the key characteristics of Catholic dioceses under canon and secular organization law and the bankruptcy contexts in which these characteristics became hot button issues. It offers an analysis of the legacy of the Catholic cases for bankruptcy law, religious liberty, and for the relationships among entities within a Catholic diocese.”

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.”

 

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:

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.

 

 

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.

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.