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Now Online – The 2016 Version – New Science and Law in Asbestos Litigation, and Under-Re

Back in 2008, this blog started up because of my view that new and increasing intersections between science and law would drive many events, including the development and expansion of asbestos litigation.  Today, following and understanding the relevant science is even more daunting and complex  because of the exponential explosion in molecular science data and peer reviewed papers. Therefore, a multi-disciplinary team approach is needed to truly understand the intersections between scientific findings and the law, and the inter-related impacts that drive current asbestos litigation as it exists now, and will exist tomorrow.  The continuing new developments  in both science and law are part of why so many liability insurers are under-reserved for asbestos litigation and continue to incur larger than projected charges for defending and resolving asbestos litigation.  E.g. here, here, and here. Unlike individual defendants that have unique settings, most liability insurers have broad portfolio risk and so find it difficult to avoid adverse developments in any notable aspect of the litigation.

Therefore, last year, I partnered with an actuary and scientifically trained experts to publish the 2015 edition of New Science and Law in Asbestos Litigation. There, we correctly predicted more overlarge charges by insurers, and identified key aspects of developing science and law. Two of us then spoke in Atlanta at the 2015 version of the annual gathering of casualty actuaries, and enjoyed the significant attendance by actuaries and others. We suggested the need for updating of some models used by others, and we’ve been glad to see some (e.g Willis Towers Watson) take some of the suggested steps. Later this month, two of us will speak at the 2016 edition of the conference, along with friends from Praedicat. This year’s conference is in Chicago; my talk will highlight new science and my view that multi-disciplinary teams are increasingly needed because no one profession has the tools needed to understand and apply all of the relevant information.

Now, a year later, we’ve partnered again and published the 2016 edition of New Science and Law in Asbestos Litigation. . Once again, our view is the insurance industry remains notably under-reserved. And, we highlight key changes in science and law that we see driving future asbestos litigation.The press release is pasted below. The 100+ page paper is available for purchase online at Assured Research, the actuarial firm component of our effort. On the science side, Innovative Science Solutions once again is a co-author. The price is $1,500 for up to 5 viewers.

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“In the just-released, second edition of their successful series, New Science and Law in Asbestos Litigation, a team of cross-discipline collaborators provide unique data and insights into why asbestos litigation continues to drive increasing expenses for most insurers. One factor, they explain, is the continuing flow of cancer claims well above the predictions from traditional models. The team describes the new science and key molecular cancer research that is progressing at a breakneck speed and scale. They describe new rulings in which courts are increasingly allowing admission of molecular evidence and are declining to defer to old-form epidemiology, thereby undercutting typical defense arguments. They also provide in depth explanation of the past year’s explosion of lawsuits claiming that ovarian and uterine cancers arise from alleged asbestos-contaminated talc. Moreover, as they note, talc also has been, and still is, widely used in industrial applications, such as manufacturing ceramic, wire and other products.

And yet, as to insurers, much remains unchanged, as the authors point out.

“The insurance industry’s track record on reserving for asbestos claims remains dismal,” according to Assured Research, an insurance research firm and co-contributor to the paper. “This second edition of our paper makes clear that the fusion of science and the law could turn insurers into the patsy at this high stakes financial table,” according to Assured Research president Bill Wilt.

Last year’s first edition white paper introduced many legal and financial readers to the scale and speed of some of the many advancements in genomic, molecular, and biomarker science. This year’s report digs deeper into matters such as individual genetic variability and susceptibility to cancers, as well as the science related to talc, asbestos and ovarian cancers. “The scientific literature certainly includes molecular data that provide concrete reasons to think carefully not only about mesothelioma from asbestos exposure, but also about many alleged asbestos-related “other cancers” as well as cancers alleged to be linked to talc,” according to report co-author David Schwartz, Ph.D. and founder of Innovative Science Solutions.

The team also goes behind headlines about recent jury verdicts that go both ways, with some juries finding for defendants and others awarding tens of millions to plaintiffs alleging that talc caused their ovarian cancers. The team points out that the more important point is the potential scale and expense of the claiming; the current suits may be just the tip of the iceberg. Report co-author Kirk Hartley, founder of the LSP Group, notes: “The surge in talc claims has broader implications; the annual U.S. numbers for most cancers are many times larger than the annual number of mesotheliomas.” And consequently, according to Mr. Hartley, “If, or when, science proves that a type of cancer is caused by asbestos or some other “toxin,” the claim quantities and risks can be orders of magnitude greater than they are for claims related to mesothelioma. Think 22,000+ annual ovarian cancers. Think 220,000+ annual lung cancers.”

Yet according to the report, “Too many insurers appear to be relying on outdated actuarial models or are reluctant to invest the time and resources to stay abreast of these scientific developments.” In that case, those companies could be “blindsided” in the years ahead according to the paper, which also forecasts a multi-billion reserve deficiency for the industry.

This collaborative research effort is available for purchase at the website of Assured Research.

Members of the press can contact Alan Zimmermann at 908.277.6980 or at alan.zimmermann(at)assuredresearch(dot)com with inquiries.

Assured Research is a property/casualty focused research firm that strives to provide unique, leading edge insights to insurance and investment professionals.

Innovative Science Solutions is a leading scientific consulting firm that provides expert knowledge to both lawyers and litigants, and also provides scientific consulting to the worldwide pharmaceutical, biotechnology, and medical device industries.

LSP Group LLC is a law firm that brings together 30+ years of experience in toxic tort claims and business law with a uniquely deep understanding of the genetic and molecular science related to cancer.”

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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