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

“Asbestos law: insurance industry on alert as to the approach to low-level exposure”

Posted in Asbestos, International Asbestos

Over the past few years, “low level exposure” issues have loomed larger these days in both the US and the UK.  A then-current summary overview for the UK  is set out in an August 19, 2015 article from Hill Dickinson.

Much more recently,  the following headline popped up after a trial court ruling in a mesothelioma cases: “The insurance industry is on alert following the High Court ruling in Hawkes v Warmex Ltd [2018] EWHC 205 (QB).”  That’s the overall message provided in a 22 February 2018 online article from CMS Cameron. The Warmex opinion is online here. The following finding (albeit dicta) regarding  “low level exposure” to asbestos provoked the concern,  as explained by CMS Cameron:

“Most importantly, dealing with the ‘first limb’ of s.47, the judge accepted the formula laid down in Jeromson v Shell Tankers [2001] EWCA Civ 101, whilst strictly confining Williams v The University of Birmingham [2011] EWCA Civ 1242 to its context. He held that in determining breach of duty, the question is whether asbestos-related injury is foreseeable, rather than mesothelioma itself. He found that by 1946 to 1952, asbestos-related injury was a reasonably foreseeable consequence of exposure to asbestos dust even at low levels, and if the lining had been proved to contain asbestos, the defendant would have been in breach of its common law duty and s.47 of the Factories Act 1937.”




Billion Dollar Law Firms

Posted in Litigation Industry

Interesting times in the legal professions, as shown by the numbers below from a February 20, 2018 post at Above the Law. But the numbers only tell part of a more complex story.

“The Billion-Dollar Club:”

Predictive Coding In First Trial in the UK

Posted in Litigation Industry, Science

Different technologies are deployed into different courts at different times. According to a new article, predictive coding has now been used in trial in the High Court in the UK.  The story is explained in a 3 March 2018 article from Berwin Laighton Paisner. The introduction is pasted below:

“As we reported previously, in May 2016 BLP secured an order from the High Court allowing us to use Predictive Coding in defence of a substantial unfair prejudice petition against our client BCA Trading, notwithstanding the objections of the petitioner. The use of Predictive Coding had been approved for the first time by the English High Court earlier that year in the Pyrrho case, where both parties had agreed to its use.

The BCA case proceeded to a 12 day trial in October 2017 and judgment was handed down in BCA’s favour. This is the first case that we are aware of in which a disclosure exercise using Predictive Coding has been tested at full trial in England.”

Truly Amazing What People Do: Parents, Sheriff and States Attorney Found Liable In Federal Court Trial for Plotting to Take Away a Child

Posted in Civil Rights, Offtopic

Truly amazing to read and consider the facts set out in the following article from the March 2, 2018 edition of the Chicago Daily law Bulletin. In view of the newsworthy contents, I’ve pasted the article in full because you have to read it to believe it.

“Parents owe $970K to daughter in civil rights suit

By Jordyn Reiland 
Law Bulletin staff writer
A downstate federal jury has awarded nearly $1 million to a Lawrenceville woman who claimed her mother and stepfather conspired with local law enforcement to take away her child.

Plaintiff Jade Green filed a federal lawsuit in the Southern District of Illinois in July 2016 against her mother, Angela Howser, stepfather, Jack Howser, Lawrence County Sheriff Russell Adams and then-Lawrence County State’s Attorney Christopher M. Quick.

Adams and Quick settled with Green for $75,000 prior to trial, according to Green’s attorney H. Kent Heller of Heller, Holmes & Associates in Mattoon.

In August 2014, Green lived with her daughter and husband in a home owned by her mother and stepfather. When Green told her parents they planned to move out of the home, they tried to get custody of Green’s daughter, Heller said.

He said Green’s parents threatened to publish inappropriate pictures of their daughter in The Disclosure, a Calhoun-based newspaper they own.

They filed several orders of protection against Green that wouldn’t let her see with her daughter and pursued criminal charges against her in Richland, Lawrence and Saline Counties.

The lawsuit alleged Quick and Adams conspired with the Howsers and, on Nov. 5, 2014, Adams allegedly told his deputies to arrest Green at 2 a.m. on theft charges.

Heller said that at the time of the arrest Quick ordered his department to place Green’s daughter in the custody of the Howsers.

At the trial in East St. Louis, Heller argued his client was denied her right to due process when her child was taken away from her and placed in the custody of her parents without her consent.

As a result of this instance, Heller said his client had to pay significant attorney fees while she worked to get her daughter back.

The defense argued at trial that Green consented to her daughter being placed with the Howsers, Heller said.

Jurors awarded the $970,000 verdict on Feb. 22 after a two-day trial before U.S. District Judge Stephen C. Williams of the Southern District of Illinois.

The verdict comprised $250,000 in pain and suffering; $100,000 for loss of companionship; $120,000 for attorney fees and $500,000 in punitive damages.

Heller said his client was pleased with the result and looks forward to returning to her life.

“I think like everybody they are just glad to get through this chapter and get on with other matters,” he said.

Jack and Angela Howser were represented by Morgan Scroggins of Scroggins Law Office Ltd. in Granite City. He could not be reached for comment.

The case in the Southern District of Illinois is Jade Green v. Chris Quick, et al., No. 16 C 863.”

Karma – Buffet and National Indemnity Ordered to Pay $43 Million in Libby Mine Case

Posted in Asbestos, Insurance

Those who understand asbestos litigation will appreciate the karma one could see in this outcome. For the rest of you, sorry, but the story is much too long to tell. Suffice it to say it involves lots of “float” and lots of  premiums for after the fact asbestos coverage.

“Posted: Mar 05, 2018 4:11 PM CSTUpdated: Mar 05, 2018 4:11 PM CST

HELENA – A state judge says a Nebraska-based private insurer is liable for an entire $43 million state settlement of 100 asbestos claims related to Libby’s defunct vermiculite mine – and the full cost to the company is likely more.

State District Judge Holly Brown of Bozeman ruled last last week that National Indemnity Co. – a subsidiary of Warren Buffet’s Berkshire Hathaway firm – improperly tried to deny coverage from an insurance policy held by the state 45 years ago.

By breaching it “duty to defend,” National Indemnity is blocked under state law from denying coverage, and therefore is liable for the $43 million settlement that the state agreed in 2011 to pay those who contracted fatal lung disease by asbestos at the former Libby mine, the judge said.

Those injured by asbestos had sued the state of Montana, beginning in 2000, alleging the state concealed its knowledge that harmful asbestos was in dust at the mine and failed to inform workers or the public.

But the state discovered it held a policy with National Indemnity from 1973-1975, insuring the state against personal-injury and other claims. It notified National Indemnity in early 2002 about the asbestos lawsuits and potential liability, and said the company should be liable for the suits’ costs.

The Nebraska firm argued it should not be liable for the Libby asbestos claims – and, even if it was, the total amount should be limited to $3 million, or based on pro-rated costs from the two years the policy was in effect.

Brown, however, disagreed, and said National Indemnity must pay for any settlement stemming from the Libby cases – and, all of the state’s defense costs after July 2005, any pre-judgment interest related to the cases and the state’s costs of the separate case on whether National Indemnity is responsible.

Lawyers for the state weren’t immediately available for comment Monday, on the decision or its full financial implications for the state.

Attorneys for National Indemnity also could not be reached for comment Monday.

The case involves scores of claims filed by people harmed by asbestos from a Libby vermiculite mine, which had been owned and operated by W.R. Grace & Co.

The asbestos-related lawsuits, filed starting in 2000, said the state had known as early as 1942 that dust from the mining and milling operation was “greatly in excess of safe limits.”

The suits also said the state had inspected the W.R. Grace operations in the 1950s and found asbestos in the air of “considerable toxicity,” and had issued death certificates in the 1960s that cited asbestos-related health conditions as the cause.

However, the state failed to inform workers or the public of the dangers of asbestos fibers at the Libby operations, the suits said.

An attorney for the state notified National Indemnity in 2002 about its possible liability, stemming from coverage the state had bought from the company from July 1973-June 1975.

National Indemnity argued it had limited liability, but in 2009, it agreed to pay $16 million of the $43 million settlement, while a court settled the issue of who would share the liability. The company filed action in state court in 2012 to resolve the matter, and Brown’s order last week ruled for the state.

National Indemnity can appeal the ruling to the Montana Supreme Court.”

Illinois Supreme Court Moves Further into the Electronic Era – Online Briefs for Oral Argument Docket

Posted in Litigation Industry

It’s good to see the Illinois Supreme Court now providing open access copies of briefs for upcoming oral arguments. See here for briefs for the March 2018 oral argument docket.

The changes take too much time, but they do happen. Back in 1983-1984, I clerked for Howard C. Ryan, then the Chief Justice of the court. That year included two high tech innovations. First was the installation of a Lexis terminal in the chambers of all of the justices, followed by the January 1984 the installation of the first IBM word processors for use by Illinois appellate justices.

SCOTUS Cuts Back on Fraudulent Conveyance Defenses – LBOs Now More at Risk

Posted in Asbestos Bankruptcy, Fraudulent Conveyance, Litigation Industry, Mass Tort Issues

Some circuit courts had issued fairly hard to fathom opinions immunizing some corporate  transactions from fraudulent conveyance claims if banks (and others) were involved in moving money as pass-through entities. The Seventh Circuit disagreed, and created a circuit split. SCOTUS has now blessed the Seventh Circuit’s reasoning. See Supreme Court Scales Back Safe Harbor Protection for Some Pre-Bankruptcy Fraudulent Transfers, a March 2, 2018 article at the National Law Review. The case is known as Merit; online here at SCOTUS.

According to  legal commentators at Dechert, the holding creates more legal peril for entities involved in lbos. In a March  5, 2018 article, they explained as follows:

“This is probably most significant for selling stockholders in the leveraged buyout context, where there is risk that years after the LBO closed, a trustee, debtor-in-possession, or perhaps a creditors’ committee will argue that the consideration provided to the selling stockholders and other parties involved in the LBO rendered the company insolvent and thus the buyout effectuated a constructively fraudulent transfer. By overturning long-standing precedents from the Second and Third Circuits, which oversee the two districts that handle the lion share of the biggest Chapter 11 cases—the Southern District of New York and the District of Delaware (as well as reversing decisions of the Sixth, Eighth, and Tenth Circuits), the Supreme Court’s Merit decision has the potential to dramatically shift parties’ assessments of the risks associated with such transactions. 

Significantly, the decision might impact ongoing fraudulent transfer litigation stemming from Tribune media’s massive 2007 leveraged buyout. There, the litigation trustee appointed as part of Tribune’s former bankruptcy proceedings has been attempting to “claw back” approximately US$8 billion in payments made to 5,500 former Tribune shareholders as part of the buyout. While the breadth of Merit’s impact on other cases is yet to be seen, one can expect that trustees and others wielding avoidance powers will undoubtedly be vigorous in bringing avoidance actions against transferees of the debtor’s assets, especially in large, failed LBOs.

Science Week Underway Before a Federal Judge and a State Judge Regarding Monsanto’s Glysophate

Posted in Pesticides, Science

Innovative hearings continue regarding presentations of scientific data regarding alleged toxins.  The newest example is this week “science week” regarding lawsuits related to Monsanto’s glysophate. A summary of day 1 is available through a March 6, 2018 article at LAW360 (paywall). In short, plaintiff’s experts were on the stand. For a plaintiff friendly preview, see this March 5, 2018 article at the Guardian. I’ve not found an open access, defense friendly preview.

A “live updates” page is online at The source appears to be plaintiff friendly at first glance, but I’ve not studied it in any detail.

One could say many things about the hearing, the cases, the claims, the science and the law. But, for now, I’ll confine myself to noting that one fairly novel aspect of the hearing is that it is taking place before both a federal judge and a state judge court judge. Kudos to the judges for communicating and undertaking some joint efforts instead of proceeding on completely separate paths. The following excerpt from LAW360 provides the bare bones overview:

“An epidemiologist and a hematopathologist testified during the six-hour hearing before U.S. District Judge Vince Chhabria, who’s presiding over the federal multidistrict litigation, and California Superior Court Judge Ioana Petrou, who is adjudicating similar cases in state court. The experts testified that there was statistically significant evidence that people are more likely to develop non-Hodgkin’s lymphoma after prolonged exposed to glyphosate, the primary active ingredient in Monsanto’s top-selling weed killer.”

Readers of Science Magazine Outline the Future: The next generation’s Frankenstein films

Posted in Humor, Science

I’m an optimist about science and the future. But some people are not so optimist, or at least focus on negative possibilities. An open access article from Science provides a pretty good set of hypothetical future books/films that might be as groundbreaking as was Frankenstein. Gene editing plainly has plenty of people thinking about ill-intended purposes.


Science  12 Jan 2018:
Vol. 359, Issue 6372, pp. 170-171
DOI: 10.1126/science.aas9105