“Protection gaps” are one of the results of the failure of state regulation of most forms of insurance. The gap problem – as it exists for property insurance – will be discussed in detail at an upcoming conference at Rutgers Law School, with an interesting and economically diverse set of business community speakers, and truly astute professors and lawyers. Wish I could be there. See the agenda pasted below. To register, go to https://ipe.rutgers.edu/ipe_reg.php?event_id=611.


“A conference on

The Protection Gap in Property Insurance

Friday, March 29, 2019

Rutgers Law School, Camden, New Jersey

The protection gap is the difference between losses that are insured and losses that could or should be insured. The Rutgers Center for Risk and Responsibility at Rutgers Law School Conference on The Protection Gap in Property Insurance will address the protection gap in residential and commercial property losses and related types of losses in the United States.

The property insurance protection gap can have significant impact on individuals and communities; a property owner who does not have flood insurance may lack the resources to rebuild after a hurricane, for example, and if many property owners lack insurance, an entire community may be hard-pressed to recover.

The concept of a protection gap raises several issues:

What is a protection gap? What protection gaps exist in property insurance and what causes them? Some examples:

An entity is entirely uninsured or insurance is unavailable. This is rare in property insurance in the US, with the notable and high-profile exception of Puerto Rico, which came to light after Hurricane Maria.

Insured, but certain perils not covered. Homeowners insurance policies exclude coverage for losses caused by natural disasters such as flood or earthquake, and many homeowners fail to purchase available catastrophe insurance.

Under-insured. Three of every five homes in America are underinsured by an average of 20 percent less than full value, according to analytics firm CoreLogic.

Other exclusions or restrictions on coverage. Many homeowners and commercial property policies contain hurricane deductibles or windstorm deductibles, restrictive loss settlement provisions, or other limitations of which policyholders may be unaware.

What solutions are there for protection gaps?

Some examples:

Legislators and regulators can require information disclosures and prescribe policy terms to ensure adequate coverage. In the wake of the California wildfires, the legislature enacted a series of reforms aimed at improving consumer understanding and better coverage for homeowners.

Insurers and intermediaries can innovate products and marketing and can reduce costs to increase availability of coverage and consumer awareness. Insurtech, on-demand insurance, and parametric insurance are being offered as solutions to protection gaps.

Speakers include:

Michael Childress, Childress Loucks & Plunkett

Tom Considine, National Conference of Insurance Legislators

Jay Feinman, Rutgers Law School

Laura Foggan, Crowell & Moring

Nicholas Insua, Anderson Kill

Peter Kochenburger, University of Connecticut School of Law

R.J. Lehmann, R Street Institute

William F. “Chip”Merlin, Jr., Merlin Law Group

Sherilyn Pastor, McCarter & English

Michael Saltzman, Goldberg Segalla

Adam Scales, Rutgers Law School

Daniel Schwarcz, University of Minnesota Law School

Robert Schindler, Rutgers School of Business-Camden

Rick Swedloff, Rutgers Law School

Paul Tetrault, Insurance Library Association of Boston

Sandy Watts, United Policyholders

Harold Weston, Georgia State University

CLE credit available.

To register:  https://ipe.rutgers.edu/ipe_reg.php?event_id=611

Three new justices joined the Florida Supreme Court early in 2019 due to retirements of others. The new justices all were appointed by a Republican governor; no doubt tort system defendants are hoping the new justices alter the existing legal balance in Florida. It will be interesting to see what happens. Evelyn Fletcher Davis provides a cogent summary of the new justices here in a February 20, 2019 article.

At long last, plans are moving forward to establish a national mesothelioma patient registry in the United States. A key meeting of experts planning the registry will be held on Tuesday March 26, 2019  in Bethesda. The meeting will include panel presentations by mesothelioma experts from CDC and NIOSH, and will include a substantial opportunity for stakeholders to provide to suggestions and comments.  The long hoped for registry is moving into place after years of efforts to obtain funding to to put a national registry in place, which already has been done for other rare diseases. The funding and registry are coming to fruition because of the tireless efforts of the Mesothelioma Applied Research Foundation, mesothelioma patients, and a wide range of advocates for those patients.

For the specifics about the meeting, including links to register, please see our February 19, 2019 blog post at the ToxicoGenomica blog.

In the UK, an “overalls” case is a shorthand term for a “take home” case, as we refer to them in the US. Of greater note, a UK plaintiff recently succeeded  in such a case, as described in a February 18, 2019 post at AsbestosLaw blog, which is published by UK Barristers who acted for the claimant. The opinion includes a detailed discussion of the evidence; it is online here.

An interesting WSJ opinion article of February 15, 2019 briefly recaps the work of some of the persons involved in private forensic use of DNA databases to track down people for family reasons, to solve “cold cases” or for other reasons. One paragraph explains:

“In June police arrested a 49-year-old suspect, Raymond Rowe, a local disc jockey known as “DJ Freez.” They found him with the help of Parabon NanoLabs, a Reston, Va.-based forensic DNA company. “There was well over 1,000 people investigated for Christy’s murder, and Raymond Rowe was never on that list,” CeCe Moore, who heads Parabon’s genetic-genealogy lab, tells me. Ms. Moore, 50, has used a combination of modern genetic technology and old-fashioned family trees to help law enforcement track down criminals long on the lam.”

It’s seldom simple to plan and manage a compensation fund for personal injuries. The currents status of the September 11th Victim Compensation Fund provides yet another example of some the challenges. In short, on February 15, 2019, the Fund announced a major decrease in its payment percentage, unless it obtains additional funding; see this page at the fund website.  The changes are more generally described in a February 15, 2019 article at the Washington Post.

Interesting times ahead as Imerys filed a chapter 11 petition in an effort to try to manage the mesothelioma and ovarian cancer claims against it and other entities.  The petition and a related declaration list the top 30 plaintiff firms, which includes numerous plaintiff firms that are not “regulars” in chapter 11 asbestos cases, as well as some firms who are regulars. The list of “regulars” includes Motley Rice and the Simmons firm.

The declaration also states that negotiations have been underway for a consensual plan, and are ongoing. According to the declaration, Imerys seeks to have Jim Patton appointed as the futures representative. It will be interesting to see what DOJ does or does not say or do about any futures representative.

It’s world cancer day, a reminder of the biggest global terrorist and driver of much litigation.

The chart is from: Bray F, Ferlay J, Soerjomataram I, Siegel RL, Torre LA, Jemal A. Global cancer
statistics 2018: GLOBOCAN estimates of incidence and mortality worldwide for 36
cancers in 185 countries. CA Cancer J Clin. 2018 Nov;68(6):394-424. doi:

Lawyers involved in mass tort litigation should be aware of this January 24, 2019 article (some would say puff piece) in Science regarding Dr. David Egilman, as well as some of quotes in it. The title is:  “Expert witness David Egilman wins billions—and makes enemies—as he fights companies over public health.” The author,  Douglas Starr,  is co-director of the Boston University Science Journalism Program.

For those litigating drug cases, the NEJM just published an open access article with a broad set of data on medical marketing. It’s online here at NEJM.  The abstract is pasted below.


“Key Points

Question  How has the marketing of prescription drugs, disease awareness, health services, and laboratory tests in the United States changed from 1997 through 2016?

Findings  From 1997 through 2016, medical marketing expanded substantially, and spending increased from $17.7 to $29.9 billion, with direct-to-consumer advertising for prescription drugs and health services accounting for the most rapid growth, and pharmaceutical marketing to health professionals accounting for most promotional spending.

Meaning  There has been marked growth in expenditures on and extent of medical marketing in the United States from 1997 through 2016.


Importance  Manufacturers, companies, and health care professionals and organizations use an array of promotional activities to sell and increase market share of their products and services. These activities seek to shape public and clinician beliefs about laboratory testing, the benefits and harms of prescription drugs, and some disease definitions.

Objective  To review the marketing of prescription drugs, disease awareness campaigns, health services, and laboratory tests and the related consequences and regulation in the United States over a 20-year period (1997-2016).

Evidence  Analysis (1997-2016) of consumer advertising (Kantar Media data for spending and number of ads); professional marketing (IQVIA Institute for Human Data Science, Open Payments Data [Centers for Medicare & Medicaid Services]); regulations and legal actions of the US Food and Drug Administration (FDA), Federal Trade Commission (FTC), state attorneys general, and US Department of Justice; and searches (1975-2018) of peer-reviewed medical literature (PubMed), business journals (Business Source Ultimate), and news media (Lexis Nexis) for articles about expenditures, content, and consequences and regulation of consumer and professional medical marketing. Spending is reported in 2016 dollars.

Findings  From 1997 through 2016, spending on medical marketing of drugs, disease awareness campaigns, health services, and laboratory testing increased from $17.7 to $29.9 billion. The most rapid increase was in direct-to-consumer (DTC) advertising, which increased from $2.1 billion (11.9%) of total spending in 1997 to $9.6 billion (32.0%) of total spending in 2016. DTC prescription drug advertising increased from $1.3 billion (79 000 ads) to $6 billion (4.6 million ads [including 663 000 TV commercials]), with a shift toward advertising high-cost biologics and cancer immunotherapies. Pharmaceutical companies increased DTC marketing about diseases treated by their drugs with increases in disease awareness campaigns from 44 to 401 and in spending from $177 million to $430 million. DTC advertising for health services increased from $542 million to $2.9 billion, with the largest spending increases by hospitals, dental centers, cancer centers, mental health and addiction clinics, and medical services (eg, home health). DTC spending on advertising for laboratory tests (such as genetic testing) increased from $75.4 million to $82.6 million, although the number of ads increased more substantially (from 14 100 to 255 300), reflecting an increase in less expensive electronic media advertising. Marketing to health care professionals by pharmaceutical companies accounted for most promotional spending and increased from $15.6 billion to $20.3 billion, including $5.6 billion for prescriber detailing, $13.5 billion for free samples, $979 million for direct physician payments (eg, speaking fees, meals) related to specific drugs, and $59 million for disease education. Manufacturers of FDA-approved laboratory tests paid $12.9 million to professionals in 2016. From 1997 through 2016, the number of consumer and professional drug promotional materials that companies submitted for FDA review increased from 34 182 to 97 252, while FDA violation letters for misleading drug marketing decreased from 156 to 11. Since 1997, 103 financial settlements between drug companies and federal and state governments resulted in more than $11 billion in fines for off-label or deceptive marketing practices. The FTC has acted against misleading marketing by a single for-profit cancer center.

Conclusions and Relevance  Medical marketing increased substantially from 1997 through 2016, especially DTC advertising for prescription drugs and health services. Pharmaceutical marketing to health professionals accounted for most spending and remains high even with new policies to limit industry influence. Despite the increase in marketing over 20 years, regulatory oversight remains limited.”