Thanks to information contributed by professional contacts, more information is coming out regarding the previously described "Palermo" claim to the Manville Trust, and a related federal court lawsuit against the DII Trust by the same claimant. The claims are unique because they are being made over the last four or so years, some 37 years after Mr. Palermo’s death in 1966. This window into the asbestos trust world was opened by public publishing of opinion in Gail Garner v. DII Industries, 2010 U.S. Dist. LEXIS 9583 (Feb 4. 2010).

Here is an image of the complaint mentioned in the federal district. The complaint includes some very interesting correspondence with the Manville Trust regarding the claims raised.

Here  is an online post that appears to be by the claimant, who says she is Mr. Palermo’s daugher. The post is to a public website.

In short, it appears the daughter of Mr. Palermo is an active pro se litigant seeking money for his estate from at least 7 trusts. And, judging by the attachments to the complaint, there are multiple other unusual "extraordinary circumstances" claims to the chapter 11 asbestos trusts.

One can certainly appreciate the logic and reasons for the claims asserted by Ms. Garner on behalf of the estate. On the other hand, it’s pretty amazing to see this happening and think about the defense side consequences. The claims also shed some light on propensity to claim, and various factors related to the appropirate amounts of compensation of claims so long after death. The claims also raise issues about whether and how much lawyers are needed for claims to chapter 11 trusts.

Most importantly, taken as a whole, the papers provide yet a precise example of why the actions of the chapter 11 trusts and the trustees should be transparent instead of cloaked in secrecy. The public and the policy makers of our day should have access to the facts. On secrecy, here’s another plug for a 2009 law review article written by Stephen Wm. Smith, a United States Magistrate Judge in the Southern District of Texas, Houston division. See "Kudzu in the Courthouse: Judgments Made in the Shade," 3 Fed. Cts. L. Rev. # 2, 177 (2009). The full text article is available here, and is free.

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From: http://www.deanamartin.com/Ask/ask_may05.asp

Dear Deana:

I just read your book in 2 sittings. I enjoyed it. It surprised me. There was much heartbreak as there was much enjoyment. My life was similar. My dad, Angelo Palermo, (Italian American) was away at work a lot (spray coating asbestos) and he lost a daughter (my sister) in a tragedy (she drowned), four years before he died. He died at age 51 of cancer. While I was reading your book, on page 198 you stated ‘Dad, inhaling deeply on his Kent cigarette…’ I have an old ad about Kent cigarettes having asbestos filters. Thirty-four (34) years after the death of my father, I put in a claim against Johns-Manville, a large asbestos company. No attorney would take the case but I did it on my own, and won. I now have 6 more claims in against other asbestos companies. I believe you have a case to sue for asbestos wrongful death. There is no statue of limitation (discovery rule). I can help you and I would like some assistance in how I can publish a book about my case. Please respond. Really enjoyed your book. Our family, including my father, loved your father.

Sincerely,

Gail Palermo Garner

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Remember those controversies about biased doctors misreading reading x-rays to find asbestosis or “pleural changes consistent with exposure”  to asbestos or silica ?  New science will bring new controversies – see below for a recent article on using biomarkers in exhaled breath to find asbestosis. Here is the online source of the abstract pasted below.

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Exhaled breath condensate biomarkers in asbestos-related lung disorders.

Sharron Chow, Charlotte Campbell, Alessandra Sandrini, Paul S Thomas, Anthony R Johnson, …Deborah H Yates show all

Respiratory Medicine (2009)

Volume: 103, Issue: 8, Pages: 1091-1097

PubMed ID: 19520561

Abstract

OBJECTIVES: Asbestos induces generation of reactive oxygen and nitrogen species in laboratory studies. Several such species can be measured non-invasively in humans in exhaled breath condensate (EBC) but few have been evaluated. This study aimed to assess oxidative stress and lung inflammation in vivo. METHODS: Eighty six men were studied: sixty subjects with asbestos-related disorders (asbestosis: 18, diffuse pleural thickening (DPT): 16, pleural plaques (PPs): 26) and twenty six age- and gender-matched normal individuals. RESULTS: Subjects with asbestosis had raised EBC markers of oxidative stress compared with normal controls [8-isoprostane (geometric mean (95% CI) 0.51 (0.17-1.51) vs 0.07 (0.04-0.13) ng/ml, p<0.01); hydrogen peroxide (13.68 (8.63-21.68) vs 5.89 (3.99-8.69) microM, p<0.05), as well as increased EBC total protein (17.27 (10.57-28.23) vs 7.62 (5.13-11.34) microg/ml, p<0.05), and fractional exhaled nitric oxide (mean+/-SD) (9.67+/-3.26 vs 7.57+/-1.89ppb; p<0.05). EBC pH was lower in subjects with asbestosis compared with subjects with DPT (7.26+/-0.31 vs 7.53+/-0.24; p<0.05). There were no significant differences in exhaled carbon monoxide, EBC total nitrogen oxides and 3-nitrotyrosine between any of the asbestos-related disorders, or between these and controls. CONCLUSION: In asbestos-related disorders, markers of inflammation and oxidative stress are significantly elevated in subjects with asbestosis compared with healthy individuals but not in pleural diseases

A hat tip to Business Insurance for an email alert on Friday advising that a Scottish trial court had just issued an opinion rejecting insurer challenges to Scottish legislation reinstating claiming for pleural plaques. The article is here; it mainly says the insurers are not happy and may appeal. The opinion is online here at the court’s website.

For those interested only in outcome, this is a potentially huge loss for both insurers and, in my view, for society. Set out below are some detailed comments on the opinion, and arguments apparently not made by the insurers. The short story is that the trial judge predictably upheld the law as a rational exercise of legislative judgment despite claims that the legislation violates Scottish law and EU law. Also bear in mind that the statute applies beyond pleural plaques and thus explicitly allows claiming compensation for “pleural thickening” and “asbestosis.”

For more specifics on the opinion and some commentary see below. My personal view is that the legislation is misguided because societies have so many more pressing needs that we cannot afford to pay compensation for all biomarkers/conditions. Specifically, it seems to me lines must be drawn, and that societies and companies should not pay compensation for biomarkers/conditions that mark past “exposure” but do not impair day to day life, do not impair ordinary bodily function in general, and do not involve changes to the cellular mechanisms that actively regulate cells and, thus, regulate cancers and the endocrine system. Compensation instead should be reserved for the approaching waves of claims arising from new science and medical monitoring claims related to genetic alterations that really do matter.
On the topic of future claims and science, see Gary Marchant‘s many papers, which are for the most part collected here. Mr. Marchant is a lawyer, scientist, and former Kirkland litigator. He is now a professor of law at Arizona State University. His roles there include: Executive Director & Faculty Fellow, Center for the Study of Law, Science, & Technology, and Lincoln Professor of Emerging Technologies, Law and Ethics. See especially Marchant, Personalized Medicine and the Law, 44 Ariz. Att’y 12 (2007). See also Gary Marchant See Gary E Marchant, Robert J Milligan, & Brian Wilhelmi, Legal Pressures and Incentives for Personalized Medicine, 3 Personalized Medicine 391 (2006)(related topics in terms of litigation pressures)(the article is available here).

Overview

The opinion by Lord Emslie is long — it runs about 116 pages and consists of 248 numbered paragraphs. The first 70 pages are devoted to some procedural history, and a significant amount of analysis regarding standing, with the latter encompassing analysis under applicable EU directives and UK law. The opinion also includes some interesting history and analysis regarding the role of the Scottish Parliament as a result of changes in the structure between the UK countries and the advent of EU law. For a US lawyer, the discussion was educational.

The scope of the legislation needs to be understood. To that end, here are key excerpts from the opinion.

“I. Introduction

General background

“[1] In these proceedings for judicial review the petitioners are major insurance companies. Together they challenge the lawfulness of a recent Act of the Scottish Parliament which came into force on 17 June 2009. Both prospectively and retrospectively the Damages (Asbestos-related Conditions) (Scotland) Act 2009 bears to make pleural plaques and certain other asbestos-related conditions actionable for the purposes of claims of damages for personal injuries. According to the petitioners, this unfairly burdens them with additional liabilities under indemnity insurance policies to the extent of hundreds of millions – perhaps billions – of pounds, and they now seek declaratory and reductive orders from the court in that connection. This is resisted by the compearing respondents who are (first) the Lord Advocate as representing the Scottish Ministers, and (third to tenth) a number of individuals with diagnosed pleural plaques who seek, or at least intend to seek, damages on that account from their former employers. A First Hearing on the parties’ competing contentions has now taken place before me over periods totalling 22 days.”

[11] So far as relevant for present purposes, the Damages (Asbestos-related Conditions) (Scotland) Act 2009 provides as follows:

“1. Pleural Plaques

(1) Asbestos-related pleural plaques are a personal injury which is not negligible.

(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.

(3) Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.

(4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.

2. Pleural Thickening and Asbestosis

(1) For the avoidance of doubt, a condition mentioned in sub-section (2) which has not caused and is not causing impairment of a person’s physical condition is a personal injury which is not negligible.

(2) Those conditions are –

(a) asbestos-related pleural thickening; and
(b) asbestosis.

(3) Accordingly, such a condition constitutes actionable harm for the purposes of an action of damages for personal injuries.

…..

3. Limitation of Actions

(1) This section applies to an action of damages for personal injuries –

(a) in which the damages claimed consist of or include damages in respect of –

(i) asbestos-related pleural plaques; or

(ii) a condition to which section 2 applies; and

(b) which, in the case of an action commenced before the date this section comes into force, has not been determined by that date.

(2) For the purposes of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973 … (limitation in respect of actions for personal injuries), the period beginning with 17 October 2007 and ending with the day on which this section comes into force is to be left out of account.

4. Commencement and Retrospective Effect

….

(2) Sections 1 and 2 are to be treated for all purposes as having always had effect.

(3) But those sections have no effect in relation to –

(a) a claim which is settled before the date on which subsection (2) comes into force (whether or not legal proceedings in relation to the claim have been commenced); or (b) legal proceedings which are determined before that date.”

[12] As regards Scotland only, therefore, the Act confers on pleural plaques and on two other asymptomatic asbestos-related associated conditions the status of non-negligible and thus actionable injury. It is true that this mirrors the position de facto conceded in many claims over the previous twenty years or more but, given the asymptomatic, non-disabling, non-disfiguring and non-causative nature of these conditions, the petitioners now challenge this development as an unwarranted contravention of the established need for real or material “damage” in order to complete a cause of action in negligence. In this respect, according to the petitioners, the Scottish Parliament in passing the Act has contrived to do the opposite of many foreign legislatures which, faced with an intolerable escalation of claims by “… the worried well”, have brought in measures to negate the actionability of pleural plaques. And, it is said, the Parliament has done so by means of a blatant controversion of established (and indeed agreed) medical fact.”

Commentary

Insurers Held Back on Specifics

The opinion indicates the insurers held back on providing specifics on their policies, and on their estimates of the future amounts that will be paid as a result of this legislation. Thus, Lord Emslie explained as follows:

78] Another contention forcefully advanced by the respondents was to the effect that issues of locus standi could not be determined where the petitioners’ position as insurers had not been the subject of detailed and precise averment, submission or vouching. Deficiencies in this area had, it was said, been flagged up months ago; calls for further specification had been made in the respondents’ Answers; yet the petitioners had stubbornly declined to reveal their true hand. Even now only specimen policies had been produced (productions 6/65-68); there was no way of telling what policy terms would actually apply in any individual case; for the future, the petitioners had sought to reserve their position on the construction and application of policies; and, significantly, the proper law of relevant insurance contracts could not be ascertained. If such contracts were not subject to Scots law, so the argument ran, they might not even be engaged by the 2009 Act which had effect only in Scotland.

***
[218] Massive unresolved uncertainties as to cost levels: In the debate before me it was, I think, acknowledged on all sides that estimation of the overall costs associated with this legislation was far from straightforward. Given the long latency period for asbestos-related conditions including pleural plaques, it was hard to estimate the number of individuals who might have been exposed in past decades. Moreover no-one could predict what proportion would develop asbestos-related conditions, nor what percentage of asymptomatic conditions would actually come to light. Judging the number of pleural plaques claims which might emerge in future years was thus an inexact science with many uncertain variables. Even the approximate cost per claim was hard to pin down – understandable, perhaps, now that claims are apparently being intimated at levels several times higher than the preRothwell average. Against that background, the Scottish Government’s approach was largely based on evidence of the current situation as modified by actuarial and demographic considerations. The insurance industry, on the other hand, sought to rely on UK Government estimates (which were themselves uncertain) before taking a percentage which was said to represent Scotland. The latter approach may have allowed individual insurers to withhold commercially sensitive data which might be of value to competitors. In these circumstances, overall estimates ranged from perhaps £100 million, on the Government side, to the insurers’ potential maximum of £8.6 billion. If the Scottish percentage were to be reduced, the figure of £8.6 billion would come down as well, but that would still leave an “order of magnitude” difference between the competing estimates.
(emphasis added)

The Insurers Standard Approach Produced a Predictable Result

The opinion is a disappointment in the sense that there is really very little that is “new” in the opinion for persons familiar with the debate regarding whether compensation should be paid for pleural plaques, and so the legislation was not struck down. The trial judge, Lord Emslie, of course is not responsible for whether the parties present anything new or instead simply present the usual arguments. The absence of anything new in the opinion gives one the impression the insurers simply presented the usual arguments without attempting to present NEW evidence or argument on science and pleural plaques as it relates to the number of pleural plaques cases waiting to be identified, and the potential costs. Plainly, the insurers made a conscious decision not to present a comprehensive analysis of the potential loss, a decision one assumes is driven by concerns regarding public disclosures, financial statements, and general reticence to commit to a particular position on a particular topic.

I certainly will not claim expertise on Scottish law or EU law, and so my comments are worth the price you are paying for the analysis. That said, the opinion presents in essence a question that is familiar to US lawyers — when will a court strike down a legislative act? The opinion uses some words and phrases different than we might use in the use in arguing that issue here, but makes plain the reality that deference is owed to the judgments of the elected legislative branch. Indeed, from the words and analysis, I took away the impression that UL law calls for even more deference than is shown under US law. I also was left with the opinion that the insurers merely put forth a pro forma challenge to delay a probably inevitable affirmance of the legislation, and so are managing the process so that litigation expenses are far less than the savings obtained from delaying or inhibiting the future onslaught of pleural plaques claiming.

What else might have been done by the insurers? From the perspective of this armchair quarterback, the insurers might have had a real chance to win – and might have done some societal good – if they presented a compelling case on the science to show that society cannot afford to pay for the presence of biomarkers (plaques) that are biologically inactive and instead are mere markers of a past exposure, much like a scar marks a past physical insult. On that basis, one could (I think) rightly distinguish pleural plaques from biomarkers that show actual cellular level changes that actually disrupt ordinary bodily functioning (e.g. genomic changes caused by chemical). One might also try to help the Court see that thousands of biomarkers out there, and to understand the differences between pure markers of past exposure, and genomic changes that disrupt cell function. A small part of that potential argument is laid out at section X (pages 31-33) of this paper I submitted in opposition to the pleural plaques Consultation in England.

The argument I would have pressed also would have shown that there are ample reasons to expect that pleural plaques claiming in the UK actually may be far worse than it is has been in the US. Why? In short, because the UK has had such a large shipbuilding industry that used so much asbestos, because amphiboles were widely used in the UK thanks to Cape Industries and T & N (among others), because EU use of asbestos vastly exceeded use in North America, because new CT scanners find 60% plaques far better than do x-rays, and because pleural plaques claiming is driven by lawyers and entrepreneurial behavior instead of science. Id at sections 2.2, 3.1-3.3, 7.10.1, 9.8.

Finally, the opinion (and thus, apparently, the insurers’ arguments) do not address the availability of payments from asbestos trusts (chapter 11 trusts, the T & N trust in the UK, or private trusts). Id. at sections 5.1-5.3.

Here is the online image of Munich Re’s recent, comprehensive report on asbestos litigation, Asbestos: Anatomy of a Mass Tort. The 112 page report is authored by Nicholas Roenneberg, and is Order number 302-06142. The report can be downloaded and printed from this page.
The same page, on the right hand side, allows you to order a printed copy at no charge.

The report is quite good. It begins with a review of asbestos litigation in North America. The report goes on to explain and explore various factors relevant to reinsurers such as Munich Re.

Beginning at page 58, the report addresses asbestos claiming in other nations in the context of employers’ liability. The report covers the UK, Ireland, Italy, Spain, France, Czech Republic, Japan and Brazil. These country-specific reports are well worth reading to better understand the global asbestos claiming situation.

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I owe a hat tip and thanks to Christian Lahnstein of Munich Re for bringing the report to my attention this past fall, and for provding value contributions to dialog regarding mass tort claiming. Christian is a very thoughtful thinker and speaker on the subject of asbestos claiming and its consequences. Indeed, he is thoughtful enough that at a dinner before an international asbestos conference this past fall in London, a smart plaintiff’s lawyer listened to Christian for a while and then commented that he was surprised to learn that Christian works in the insurance industry.

Lawyers thinking about mass tort policy and legal issues inevitably end up thinking and talking about private claimants and their propensity to claim. A growing topic today is the federal government’s propensity to claim.

During the Bush II years, much of corporate America had little fear regarding civil or criminal claims from the US government. Now, however, that is changing, and one might well wonder about the larger implications for tort and other claims. Look for example at the federal government’s activities this week, and consider the implications for future civil claims.

On Monday, the SEC continued its assault on the business methods of subprime mortgage lenders. It charged “three former top officers of New Century Financial Corporation with securities fraud for misleading investors as New Century’s subprime mortgage business was collapsing in 2006. At the time of the fraud, New Century was one of the largest subprime lenders in the nation.” The SEC’s press release and teh charges are here.

On Tuesday, as reported here by Ben Hallman from AmLAw, the goverment made plain that it has problem with the business model for “a lot of hedge funds.” Specifically, a securities litigation conference included the following comments by David Rosenfeld, the associate regional director of the SEC’s New York office:

Rosenfeld said that insider trading, after a downturn over the past two decades, “has come back in force.” Rosenfeld described what his agency was seeing as more than one-off, opportunistic activity, but a “determined business” based upon collecting information from corporate insiders. He said his agency is “aggressively pursuing” these bad actors, and he specifically singled out hedge funds. “A lot of hedge funds have been making huge returns because they were cheating,” he said. (emphasis added)

How many future civil suits will result from these charges and investigations? I’m sure I don’t know. I’m also sure that I would be looking afresh at my litigation and regulatory risks if I were a general counsel working in those industries.

When reading other blogs, I tend to miss comments on the posts, so te purposed of this post is to highlight a “comment” provided yesterday by Mr. Wolfe, of whocanisue.com. See the comment below yesterday’s post or the full text is pasted below:

Curtis Wolfe said…

I’m the founder of whocanisue.com. I want to clarify something, lawyers do not pay referral fees on wcis, they pay to advertise (like the Google model) to wcis users. Most importantly, wcis does not decide which counsel is recommended for a particular case, the user decides. The site supplies the users as much information as possible so that the user can make an educated decision on which counsel is best for them. The user can contact one or more lawyers or firms to ask case specific questions, and then decide if and when the user wants to hire a firm. There is no other site that allows the users to control the entire process like whocanisue.com. In fact, our site has technology that would allow the user to chat with someone from each firm before making a decision. Unfortunately, the law firms are not quite ready to use this technology, so it is disabled until some future date when we hope the firms will be ready to use all of the site’s functionality.

Curtis Wolfe

Here is the Madison County Record’s weekly report on new asbestos claims filings. The article lists fourteen new claims. Five of the claims are for lung cancer.

I’ve not done a meaningful analysis comparing the rate of lung cancer filings, but my gut is telling me that there is a developing uptick in the rate of lung cancer claims in asbestos litigation.

The Internet is an amazing thing for marketing related to actual or potential legal claims. Here is a Madison County Record article that educated me to the existence of Whocanisue.com. It is in essence a referral source for plaintiffs, but also includes a button to hire defense counsel. The site seems to be limited to claims in the US.

It would be fascinating to know the pricing and structure for referral fees and the criteria that determine which counsel is recommended for a particular, serious case.

Readers – does anyone know of a similar website outside of the US?

Today was not a good day for the tobacco industry or certain other “mass tort” defendants and/or insurers involved with cancer claiming. Why? Despite opposition briefs from almost every major defense group in the US (see n.4), the Massachusetts Supreme Court today issued a unanimous opinion approving a tort claim to obtain medical monitoring using low dose CT scans to seek to find lung cancer very early for a class of people at meaningful risk of cancer due to many pack years of prior or current smoking of Marlboro cigarettes. See below for the elements of the claim.

The opinion also is noteworthy for two other reasons. First, it includes a ruling on when and how a defendant can win a statute of limitations defense. It will not be easy for the defense since the opinion to a large degree suggests a focus on what a physician has told the plaintiff. The opinion also includes a ruling to protect plaintiffs against splitting a cause of action. The latter ruling is that if cancer does manifest itself, the plaintiff can bring a new claim even if he or she already made a claim for medical monitoring. The opinion is is Donovan v. Philip Morris USA, Inc., — N.E.2d —-, 455 Mass. 215 (2009). Go here for my prior post predicting this type of outcome and providing data and facts on cancer that help to explain why this ruling will, over time, become quite important.

The elements of the approved medical monitoring claim are:

“In conclusion, each plaintiff must prove the following:

(1) The defendant’s negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.”

Here are key excerpts from the opinion as to the Court’s rationale:

“Modern living has exposed people to a variety of toxic substances. Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure. Some people so exposed may never develop an illness or disease, but some will. Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring. Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff’s reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes. We leave for another day consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary although no symptoms or subclinical changes have occurred. Here, the physiological changes with the attendant substantial increase in risk of cancer, and the medical necessity of monitoring with its attendant cost, may adequately establish the elements of injury and damages.

Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent. See Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 977 (Utah 1993). When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort. No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change. Id. at 979-980. This should address any concern over false claims, see Payton v. Abbott Labs, supra at 552-555, yet permit a genuinely injured person to recover legitimate expenses without having to overcome insurmountable problems of proof in this difficult and complex area. In this respect, medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease. The expense of medical monitoring is thus a form of future medical expense and should be treated as such.”

I’m back to work after enjoying about 10 days of travel in Europe. Each day of the trip revolved around law in one way or the other and provided some great opportinuties for learning It was great to meet new people and exchange ideas and information about legal systems and law around the world. On and off over the next couple of weeks, some posts here will provide brief comments on some of the exchanges relevant to tort litigation. If interested, read after the line below for more specifics on reasons for the trip and the resulting learning opportunities.

One new piece of knowledge gained is that Spain’s Supreme Court ruled last November that contingency fees can not be prohibited and so are now legal in Spain. This news was provided by Albert Azagra Malo, a Spanish law school instructor who has written extensively on mass tort issues and this year was in Chicago to obtain an LLM from the University of Chicago. Albert is a great person and quite learned – you can find him here on LinkedIn.

Overall, the ruling in Spain makes the point that it’s time to forget the old bromide that Europe will never allow contingent fees. UK countries and others already allow “uplift” fees that provide a modest fee through a fee multiplier, and the countries are are under increasing pressures to embrace pure contingency fees. Indeed, I spoke with an excellent UK defense lawyer who said he expects to see contngency fees adopted in the UK within the next few years. The ruling in Spain adds to the pressures because the gist of the ruling is that prohibiting contingency fees unduly restricts competition and imposes a minimum fee requirement. Here is a paper – in Spanish – that provides more specifics on the opinion. The SSRN abstract for the paper calls the ruling a revolutionary decision and explains the ruling as follows:

“Contingent fees have been traditionally prohibited in the Spanish legal system. However, on November 4th, 2008, the Spanish Supreme Court rendered a revolutionary decision on the issue. Under Competition Law, the Court quashed the prohibition under the reasoning that it affected competition by restricting the attorney and its client to freely set the price of the legal assistance and, therefore, imposing indirectly a minimum fee.”

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Among other things, two organized events provided opportunities for learning. One event was an asbestos litigation conference I chaired in London on asbestos claiming around the globe. The conference was attended by lawyers from Australia, UK, Switzerland, Germany, Italy, Spain and France. We made the conference quite interactive and so everyone learned even more.

The second opportunity for learning was a meeting of 99 lawyers from 49 countries for the annual meeting of international law group known as the International Business Law Consortium. The IBLC provides global contacts and resources for medium and small law firms around the world. My law firm has been a member for about 4 years and the meetings, calls and emails offer a great way to meet excellent lawyers and learn more about what’s happening in the real world. We also seek to refer work to each other, and thus last month I spent some time working with a lawyer in the Netherlands on trademark issues.