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

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

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

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

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

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.

$40 Million Medical Malpractice Settlement – A Child’s Life Remains Destroyed

Posted in Medical Malpractice

Caps on medical malpractice verdicts raise real issues of due process, right to trial and fundamental fairness. Therefore, it seems appropriate to occasionally publicize med mal cases and settlements that illustrate the incredible human and financial burdens created by medical errors. Accordingly, here’s the full text of  a July 24, 2018 story from the Chicago Daily Law Bulletin.

“By Sarah Mansur
Law Bulletin staff writer
The parents of a 12-year-old girl who sustained brain damage during treatment for strep throat at Highland Park Hospital reached a $40 million settlement.

That’s the highest settlement reported in Cook County Circuit Court for a brain-damage case involving a minor, according to John L. Kirkton, editor of the Jury Verdict Reporter, a division of Law Bulletin Media.

Alyssa Matney’s parents sued Highland Park Hospital, an affiliate of NorthShore University Health System, in October. The suit alleged their daughter’s brain injury could have been prevented if she were transferred to a children’s hospital and if she had received the appropriate care from staff during the five days she was treated.

Alyssa arrived at Highland Park Hospital’s emergency room on Oct. 18, 2016, and the following day she was diagnosed with strep throat and mononucleosis, according to the complaint.

Alyssa’s strep throat and mononucleosis were symptoms of an infection from an abscess deep in her throat, said Joseph W. Balesteri, a partner at Power Rogers & Smith LLP, and one of the attorneys who represents the Matneys.

“The infection source and site is really significant, and it was burrowed into her lower throat,” Balesteri said.

On Oct. 20 and 21, Alyssa was unable to ingest food or medicine by mouth. She also continued to show low blood-oxygen levels as well as abnormally rapid breathing and heart rate, according to the complaint.

Balesteri argued Alyssa’s worsening conditions on Oct. 20 and 21 should have prompted the hospital staff to consult with a pediatric intensive care unit and transfer Alyssa to a children’s hospital for further evaluation.

He argued the hospital staff should have recognized the need for a neck CT scan in light of Alyssa’s deteriorating condition that would have revealed the location of her bacterial infection and narrowed airway.

On Oct. 22, hospital staff focused on making sure Alyssa was receiving nutrition and attempted to insert a tube through her nose, down the esophagus and into her stomach. This tube coiled in the back of her throat.

In the evening of Oct. 22, hospital staff tried again to provide Alyssa with nutrition with a peripherally inserted central catheter, or PICC, according to the complaint. Alyssa was first sedated with Dilaudid and Benadryl.

After staff inserted the PICC line, they laid Alyssa on her back despite her difficulty breathing. At that point, her breathing stopped and she went into cardiac arrest, Balesteri said.

After about three to six minutes, Alyssa was resuscitated with an emergency airway. Her cardiac arrest resulted in a catastrophic brain injury, Balesteri said.

“Because she’s a kid, she survives all of that … and lives in this horrible condition of not being able to communicate or walk or engage that will go on for the rest of her life,” he said.

Balesteri argued the hospital staff could have prevented Alyssa’s heart attack and resulting brain injury if it performed a neck CT scan before inserting the nasogastric tube, then sedating her and inserting a PICC line.

He said the settlement will allow Alyssa’s parents to provide professional full-time nursing care to their daughter at home, which the family was unable to afford. Joseph A. Power Jr., of Power Rogers Smith, also represented the Matneys.

Cook County Associate Judge Allen Price Walker dismissed the case and authorized the settlement on June 27.

In Lake County Circuit Court’s Probate Division, Associate Judge Donna-Jo Vorderstrasse approved the settlement on Thursday.

NorthShore University Health System, doing business as Highland Park Hospital, is represented by Michael Slovis, a principal at Cunningham Meyer & Vedrine P.C.

“Our client has been very committed since this event occurred to do what is best for the patient and her family, and we believe that resolving this case quickly did so,” Slovis said.

The case is Angela Matney, et al., v. NorthShore University Health System, et al., 17 L 010109.

“Statute of Limitations in the Context of Prescription Drug Addiction: Case Dismissed in Northern District of New York”

Posted in Statutes of Limitation

“Statute of Limitations in the Context of Prescription Drug Addiction: Case Dismissed in Northern District of New York.” That’s the very apt title of yet another informative and fun to read article from the authors at Drug & Device Law; this one dated August 21, 2018.  As the article explains in detail, new issues are arising in opioid cases. The  case involved claims of addiction and subsequent events, including the suicide of the addict.

Kiobel – Notable Ruling on Cross-Border Discovery from Lawyers

Posted in Discovery, Litigation Industry

As litigation becomes more global, new issues arise as parties seek to use local discovery processes in aid of cases in other countries. In Kiobel, the Second Circuit reversed a district court ruling allowing discovery related to the case pending in the Netherlands. The ruling is notable for blocking the local discovery; it is summarized in a July 23, 2018 post by Jones Day.

More Change Ahead – Causation, Genes and Beyond

Posted in Asbestos, Litigation Industry, Science

For many years, astute observers  pointed out that “change” is the one constant in asbestos litigation. With that in mind, one might think about talc claims.

With the “change” factor  in mind, it’s also interesting to see what’s happening at the big picture level in molecular biology and genomics. The quote below is from a recent investment-focused biotech gathering, and a resulting August 20, 2018 article at Endpoints. The point is that looking at DNA, by itself, is becoming less useful because so many new tools now allow looking in greater depth:

“I’m a scientist at Dana-Farber and the Broad Institute. If you just think about the surge, for example, in high-throughput technologies, genome-wide sequencing, exome sequencing, high-throughput omics; in the ability to interrogate every protein in the cell—this has really emerged in a period commensurate with the increase in funding for a lot of these biotech companies.

We study in the lab molecular machines that essentially sit on the DNA and regulate the architecture of the genome. For years, these machines were just thought to play housekeeping roles in the cell, rather than any important function. Now, because of sequencing hundreds of thousands of cancer samples—of tumors from cancer patients—we now know that they play major roles in driving disease.

Only now do biologists, do we as scientists, know that this is an important area of potential therapeutic intervention. The surge in funding is commensurate with the surge in technology. At the same time, because of that surge in technology, there are so many screening results, there are so many new genes that are being sequenced where we can identify mutations that are drivers or potentially causative.” (emphasis added)