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

Scientific Testing – Talc Example

Posted in Mass Tort Issues, Science

Talc litigation is providing yet another example of the reality that product liability litigation can be complicated by multiple parties seeking access to limited amounts of materials. The materials may be biopsy materials from people or samples of products. An August 28, 2017 article from LAW360 provides the headline story, with a couple of quotes below.  J&J opened the topic with a motion. Plaintiff’s opposed the motion – here. A reply brief from J&J rounds out the set. Hopefully the court will handle the situation well.

Law360, New York (August 28, 2017, 6:43 PM EDT) — Johnson & Johnson on Friday told the New Jersey judge overseeing multidistrict litigation over its allegedly dangerous talcum powder products that there are limited amounts of “historical” products related to the litigation, and they’ll run out of they’re distributed on a “first come, first served” basis.
J&J said its not trying to prevent the women from ever testing the samples, which are related to its baby powder products, instead it is asking the court to hit pause and take temporary control over the samples until a process is worked out for the fair allocation of materials, and it’s decided what testing methods will be used. Once that process is approved by the court, the samples can be distributed for testing without disrupting the pending suits, J&J said.
“If the J&J defendants are compelled to produce and exhaust the materials contained in the artifacts, the J&J defendants will be harmed in their defense of the cases in this MDL and elsewhere, and plaintiffs in this MDL and those at the back of the line in thousands of pending and to-be-filed cases across the country will also be harmed by having no voice in decisions and orders regarding testing that may eliminate their chance to do so,” the company said.

Ted Frank Topples Stupid Subway Sandwich Settlement

Posted in Class Actions, Litigation Industry

Thanks to the seldom bashful Seventh Circuit, Ted Frank has toppled the stupid Subway settlement. Kudos to Ted, on this one (as opposed to some of his other actions). I for one am very tired of receiving useless notices in securities class actions where in fact I was ripped off by a company’s lack of disclosure, but the class relief is illusory and only the lawyers (both sides) make out well. The Subway opinion is open access online here.

A couple of key quotes are set out below:

“After the settlement, just as before, the rare sandwich that falls short of the full 12 inches will still provide the customer the same amount of food as any other.”  

“After the settlement — despite the new measuring tools, protocols, and inspections — there’s still the same small chance that Subway will sell a class member a sandwich that is slightly shorter than advertised.”

“The injunctive relief approved by the district judge is utterly worthless.”


“Estimated future incidence of malignant mesothelioma in South Korea: Projection from 2014 to 2033”

Posted in Asbestos, Cancer

A recent article explains that mesotheliomas in South Korea are projected to increase over the years ahead, mainly because of demographics, according to these authors. The article is  “Estimated future incidence of malignant mesothelioma in South Korea: Projection from 2014 to 2033.”

The abstract explains:

“Malignant mesothelioma is a malignant tumor on the pleura or the peritoneum caused mostly by asbestos. Although asbestos is not currently used in South Korea, the incidence of mesothelioma is increasing due to its long latent period. This study predicted the incidence of malignant mesothelioma in South Korea over the next 20 years using an age-period-cohort (APC) model. Data regarding mesothelioma incidence from 1994-2013 were acquired from the Korea Central Cancer Registry (KCCR). Demographic data, including prospective resident data, were acquired from the Korean Statistical Information Service (KOSIS) for 1994-2033.

An APC model with Møller’s power-link function was utilized to predict the incidence of mesothelioma. It was predicted that 2,380 and 1,199 new cases of mesothelioma in men and women, respectively, would occur over the next 20 years. For both sexes, the mesothelioma incidence rate was predicted to be greater in 2029-2033 compared to that in 2009-2013 (men, 0.282 vs 0.563; women, 0.155 vs 0.217). For men, the age-standardized incidence rate was predicted to be slightly greater in 2029-2033 relative to the rate in 2009-2013 (0.228 vs 0.235), while the age-standardized incidence rate in women decreased within the same timeframe (0.113 vs 0.109).

The changes in mesothelioma incidence were mostly caused by changes in the population structure due to aging and not by changes in the mesothelioma risk ratio. The results of this study project a continuous increase in mesothelioma incidence in South Korea over the next 20 years. Although the projected increase in mesothelioma incidence was not related to an increase in the mesothelioma risk ratio, continuous preventive efforts are necessary to reduce the exposure to asbestos and prevent the trend from worsening.”

The article is online and open access:  Kwak KM, Paek D, Hwang SS, Ju YS. Estimated future incidence of malignant
mesothelioma in South Korea: Projection from 2014 to 2033. PLoS One. 2017 Aug
17;12(8):e0183404. doi: 10.1371/journal.pone.0183404.

Imagine Being Criminally Convicted and Jailed for Two Years Because of Acceleration Defect of a 1996 Camry

Posted in Criminal Law and Torts

Imagine being jailed for two years for a “vehicular homicide” that arose when you and your car drove into another car, causing deaths and devastating injuries. Imagine the guilt for the harm caused. Imagine the anguish of going through a criminal trial and conviction even though you and the family member passengers in your car staunchly proclaimed that you tried to brake but the car went out of control on its own. Imagine later finding out that the car you were driving (a Camry) appears to have had defects that match to your statement of what happened. Imagine being freed from jail after two years because of new evidence of the alleged product defect in the Camry.

That incredible fact pattern is real. I stumbled on it while reading an August 15, 2017 post at the Weil product liability blog. That post focuses on the legal issue of admitting evidence of other “similar” events, and is worth reading on that point. The point here, however, is to highlight the incredible fact pattern.  The facts pasted below are taken from the district court opinion in Adams v. Toyota Motor Corp., No. 10-2802 ADM/JSM, 2015 U.S. Dist. LEXIS 76903 (D. Minn. June 15, 2015), aff’d, Adams v. Toyota Motor Corp., 859 F.3d 499 (8th Cir. 2017).


A. The Crash

Nine years ago, on June 10, 2006, Koua Fong Lee (“Lee”) was driving his 1996 Toyota Camry eastbound on Interstate 94 in St. Paul, Minnesota. With him in the car were his then-pregnant wife Panghoua Moua, his daughter Jemee Lee, his brother Nong Lee, and his father Nhia Koua Lee. Reilly Decl. [Trice Docket No. 313] Ex. 7 65-66. As Lee progressed up the Snelling Avenue exit ramp from the interstate, he alleges pressing the brake pedal, only to find the brakes unresponsive. Id. at 71-72.

At the apex of the Snelling Avenue ramp, which merges with Concordia Avenue, an Oldsmobile Ciera was idling at a red light controlling the intersection of Concordia and Snelling Avenues. Javis Trice-Adams was the driver of the Ciera. With him were Quincy Ray Adams, an adult, as well as Javis Adams, Jr., Jassmine Adams, and Devyn Bolton, all minors. The occupants of the Ciera were all members [*5]  of the same extended family. Pls.’s 2d Am. Compl. [Block Docket No. 103] (“Block Compl.”) ¶¶ 20-21.

Lee’s Camry continued up the ramp and struck the Ciera at a high rate of speed. The Ciera sustained severe structural damage and the impact forced the car into oncoming traffic. Block Compl. ¶¶ 23-27. Javis Trice-Adams and his son, Javis Adams, Jr., died at the scene of the collision. Jassmine and Quincy Adams suffered serious injuries, but survived. Bolton, six years old at the time, was rendered a quadraplegic and subsequently died in October 2007. All of the occupants of the Camry survived the crash.

Lee was charged and eventually convicted of seven counts of vehicular homicide and injury, and one count of careless driving despite his testimony that the Camry’s brakes had failed. Block Compl. ¶ 34. In October 2007, Lee was sentenced to eight years in prison.

In 2009 and 2010, Toyota issued recalls for vehicles with “unintended acceleration.” Although these recalls did not include 1996 Camrys, the model year of Lee’s Camry, the recalls renewed interest in Lee’s defense that a vehicle defect caused the crash. Lee petitioned for, and was ultimately granted, post-conviction relief. The county [*6]  attorney subsequently decided not to appeal or re-file criminal charges. Lee was released from prison after over two years of incarceration. Id. ¶ 52.

In June 2010, the surviving occupants of the Ciera and trustees for the next of kin of the deceased filed suit against Toyota. On October 25, 2010, Lee and his family moved to intervene in the Trice action. Mot. to Intervene [Trice Docket No. 51]. Toyota ultimately stipulated to the inclusion of the Lees and further stipulated that their insurance company, American Family Insurance Company (“American Family”), could also intervene in the Trice action as the Lees’ subrogee. Stipulation [Trice Docket No. 78].

The Plaintiffs and Lees filed a collection of claims against Toyota grounded in six different legal theories: (1) design defect, (2) failure to warn, (3) negligence, (4) fraud/misrepresentation, (5) negligent infliction of emotional distress, and (6) breach of warranty. After summary judgment motions were decided, only design defect and negligent infliction of emotional distress claims remained for trial.2Link to the text of the note

B. The Trial [*7] The trial commenced on January 7, 2015 and the jury began deliberating on January 28, 2015. Over the course of the trial, the jury heard testimony from 26 witnesses, viewed hundreds of photographs and other exhibits, and observed witnesses illustrate their testimony through the use of numerous models and other demonstrative exhibits. In total, the jury was in session for nearly 75 hours of trial time.

Succinctly, Plaintiffs’ theory of defect was that the accelerator control system was defective because it was assembled with heat sensitive components that, under certain conditions, will stick or bind, causing the throttle control system to remain stuck even after the driver releases their foot from the accelerator pedal.

C. Jury Verdict and Judgment

On February 3, 2015, after deliberating five days, the jury reached a verdict finding: (1) Toyota’s design of the 1996 Camry resulted in a defective product that was unreasonably dangerous to Plaintiffs and was a direct cause of Plaintiffs’ injuries; (2) Koua Fong Lee was negligent in his operation of the 1996 Camry and Lee’s negligence was a direct cause of Plaintiffs’ injuries; and (3) Toyota was 60% at fault and Lee was 40% at fault for Plaintiffs’ [*8]  injuries. See Verdict [Trice Docket No. 550].


Adams v. Toyota Motor Corp., No. 10-2802 ADM/JSM, 2015 U.S. Dist. LEXIS 76903 (D. Minn. June 15, 2015), aff’d

Adams v. Toyota Motor Corp., 859 F.3d 499 (8th Cir. 2017).

Amec Foster Wheeler – 2014 Deal – Asbestos Reserves

Posted in Asbestos, Product Liability

It’s an amazing world out there when one thinks about mass tort claims, corporate m&a, and due diligence. Some people “get” the issues, and others do not.  From the outside, it’s hard to know what was done – or not done – when m&a was contemplated. The point came to mind this week because of a report that Amex Foster Wheeler had acknowledged asbestos-litigation reserves of around $310 million after giving effect to hoped for insurance recoveries.  On seeing that story, I went back to check on when Amec Foster Wheeler was created. The deal was done in 2014, according to the “history” page at the web site. One wonders if the deal makers had the proper numbers in sight when negotiating.

The current situation is as follows, according to an August 14, 2017 story at

“The firm’s half-yearly results, released last week, stated: “The legacy Foster Wheeler business is exposed to significant numbers of claims relating to alleged exposure to asbestos. The quantum of these claims is actuarially forecast each year and provisions are held against these loss projections. However there is a risk that these loss projections will be exceeded and the provisions could be inadequate to meet the liabilities.”

The claims relate to various subsidiaries in the UK and US, where people were allegedly exposed to asbestos primarily in connection with equipment allegedly manufactured during the 1970s or earlier, according to the company.

Amec Foster Wheeler has asbestos-related liabilities of £420m. These include estimates of indemnity amounts and defence costs for current and future claims expected up until 2050, according to the report. Insurance recoveries relating to asbestos claims are estimated at £110m – leaving the firm with a bill of at least £310m.

Its latest annual report, released just a few weeks ago, warned: “We expect to have net cash outflows of $30.4m as a result of asbestos liability indemnity and defence payments in excess of insurance proceeds during 2017. This estimate assumes no additional settlements with insurance companies and no elections by us to fund additional payments.”

The company admitted that predicting the costs of future asbestos claims “is subject to a number of uncertainties that may result in significant changes in the current estimates.” These include things such as the number and type of claims filed as well as “uncertainties surrounding the litigation process” in different jurisdictions and cases.

In the US, which accounts for the “overwhelming majority” of cases, many of which are for mesothelioma or lung cancer, there were 3,800 claims made in 2016 – up from 3,420 in 2015.

The annual report said: “Increases in the number of claims filed or costs to resolve those claims could cause us to increase further the estimates of the costs associated with asbestos claims and could have a material adverse effect on our financial condition, results of operations and cash flows.”

Some of the company’s subsidiaries are defendants in “numerous asbestos-related lawsuits and out of court administrative claims in which the plaintiffs claim damages for bodily injury or death alleged to have arisen from exposure to asbestos,” it added.

Although the company has insurance cover in place, some of its arrangements are for “fixed monetary amounts and/or provide cover only for claims made before a specified future date.”


Scenario Planning Versus Demanding Purported Certainty

Posted in Litigation Industry, Mass Tort Issues

How to think about the future, and the past? Some proclaim “certainty” essential and demand “proof” with confidence intervals at .05% or above. Others suggest we need more discussions about “scenario” instead of communicating about probabilities.  Outcomes related to Father Andrew’s car accident are used in a July 20, 2017 article in the NEJM to provide a powerful example of the value of describing and thinking about scenarios instead of communicating about risk probabilities. The article is Schwarze ML, Taylor LJ. Managing Uncertainty – Harnessing the Power of Scenario Planning. N Engl J Med. 2017 Jul 20;377(3):206-208. doi: 10.1056/NEJMp1704149.

The Schwarze and Taylor article includes a useful reminder of some of the eye opening scenario planning papers that resulted from people at “big oil” thinking about various possibilities.  “In the turbulent 1970s, Pierre Wack, an economist for Shell Oil, popularized “scenario planning” to translate vast probabilistic information and facilitate strategic decisions.3,4 Rather than emphasizing precise prognostication, this technique generates multiple plausible futures. Each scenario helps decision makers visualize what might happen under various sets of assumptions — discovery of new oil fields, say, or turmoil in the Middle East — challenging their view of reality. By considering a range of scenarios, Shell’s managers could perceive how interrelated events influenced longer-term outcomes and could anticipate major changes.”

The articles are:

Wack P. Uncharted waters ahead. Harvard Business Review, September 1985 (

Wack P. Shooting the rapids. Harvard Business Review, November 1985 (

A take away? Parties and persons involved in mass tort claims might benefit from more scenario planning.

1979 – 2017 – Value Assurance Plans for “Toxic” Property Damage Situations

Posted in Damages, Litigation Industry, Mass Tort Issues

A new “toxic tort” blog (by Bill Ruskin) launched with an interesting mini-review of the use of Value Assurance Plans as a means for defendants to resolve claims involving possible diminution in value of “contaminated” property. The review is in a July 27,  2017 post at the blog bearing his name.

“American Pipe” Tolling Takes a Hit at SCOTUS; Consequences to be Determined

Posted in Litigation Industry, Mass Tort Issues, Statutes of Limitation

Late in June, SCOTUS knocked out “American Pipe” equitable tolling in a securities case, as explained in a June 27,  2017 post at Faegre Baker Daniels. This is a typical 5-4 Roberts court “bright line” ruling based on the literal language of the statute, with the usual justices on the usual side of the ruling. The dissent pointed out the usual factors that rationalized tolling.

The outcome also illustrates a typical “be careful what you wish for” situation. For one company, a win. For others, maybe not. Expect more opt out suits by more plaintiffs.

Takata Has Moved for a Futures Representative, But Who Are The Constituents?

Posted in Futures Reps, Mass Tort Issues, Policy Issues

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?