Mass Torts: State of the Art : Mass Torts Lawyer & Attorney : Vorys, Sater, Seymour & Pease Law Firm : Toxic Torts & Wrongful Death

Yesterday a Los Angeles jury awarded $8.8M in compensatory damages and $200M in punitive damages in a take-home exposure case against CertainTeed and the Los Angeles Department of Water & Power (Evans v. A.W. Chesterton, et al). Plaintiff Rhonda Evans claimed that she contracted mesothelioma as a result of exposure to asbestos fibers that had been carried home on her husband’s clothing who cut asbestos pipes manufactured by CertainTeed for the Los Angeles Department of Water & Power.

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I hope you caught tonight's Frontline episode: "The Vaccine War". For "vaccine" you could substitute "Bendectin" or "silicone" or any number of products made the target of baseless health scares over the years and get pretty much the same story; only this time Frontline sticks to the science and lays bare the empty claims and deadly fruits of the opponents of childhood vaccination.

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In Stolt-Neilsen S.A. v. Animalfeeds Int’l Corp., the US Supreme Court held that an arbitration panel may not determine that a class-action arbitration is allowable in the absence of an express provision in that arbitration clause.

The case stems from the global shipping price fixing practices uncovered by the US Department of Justice in 2003. Animalfeeds International ships raw ingredients to animal feed producers around the world. The standard shipping contract in issue, called the Vegoilvoy charter part, first adopted in 1950, has an arbitration clause which is silent as to class actions. And, no class action has ever been conducted based on the particular charter party arbitration provision.

Nonetheless, Animalfeeds sought class action arbitration in New York on behalf of all global shippers affected by the alleged price fixing. An arbitration panel was set up to determine in the first instance whether class-action arbitration was proper in this case. Relying on a public policy interpretation, the arbitration panel determined that it was.

The Supreme Court determined that in the absence of an arbitration provision allowing class action status or a state substantive law in the relevant jurisdiction allowing class action arbitration in the absence of express consent, the arbitration panel’s decision to allow the class-action arbitration exceeded its powers. Parties cannot be put into class-action arbitration unless they agree to it. And, arbitrators have no power to determine cases based on public policy.

This decision fits within recent Supreme Court jurisprudence on arbitrations. Recently, the Court decided that parties who contracted for arbitration could not also contract for judicial review. See Hall Street Assoc, LLC v. Mattel, 522 US 576, 128 S.Ct. 1396 (2008). In Hall Street, the Supreme Court’s decision seemed to say, “if you want arbitration, yet get arbitration. Don’t come complaining to us about the arbitrator.” In this case, the Court seemed to temper that somewhat.

In this case, the parties agreed to arbitration between them. The shipper did not agree to have Animalfeeds as the class representative of all its customers in one mass action against it. Such a class-action arbitration would bind parties who were not part of the arbitration agreement and likely reduce many of the benefits normally accorded to arbitration over litigation (cost vs. speed, finality vs. ability to appeal, etc.).

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Causation seems to just get harder and harder. A recent case in point being the finding that Chinese with myelodysplastic syndrome don't seem to suffer -5 and/or -7 chromosomal abnormalities even after extraordinarily high exposures to benzene. So much for that paradigm. What gives?

As we've written before the reductionist ideal seems clearly to have failed of its promise. But that's not to say that cancer causation is impossibly complex. Instead, more and more it's looking like our relentlessly efficient ancestors were keen on finding what works and refining it. And when they found something that worked, whether from yeast or plants or whatever, they shamelessly violated all patents and made it their own.

If you don't read anything else today read this in the NYTimes. It's big. It's a part of the beginning of a new paradigm; a new metaphor; it's part of the beginning of the idea that our physical systems are not all that different from those of modern computer code - bits of borrowed script, some improvised, some archaic and artifactual, but most of it off-the-shelf modules tried and true and ready to be plugged in and used as, for example, a do while loop.

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There won't be any drilling for natural gas in the Catskills watershed according to the NYTimes. Of interest to some will be how opposition to drilling was shaped and propagated. Who wouldn't be opposed to flaming kitchen faucets?

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The Cohort Study on Mobile Communications (COSMOS) will follow more than a quarter milion people in Britain and Northern Europe over the next three decades to determine whether cell phone use poses any health risks. You can read about it at Reuters Health.

Given the accelerating changes technology has wrought over the last three decades I'd bet that a study of cell phones (at least the kind we currently use) will be as interesting to the people of 2040 as a study about the risks of using teleprinters would be to us today.

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Yesterday, the 9th Court of Appeals in Beaumont, Texas conditionally granted mandamus relief in Thompson v. Univar; a benzene/leukemia case. In the trial court Univar had moved to compel the production of settlement agreements. Discovery of such settlement agreements are seemingly expressly called for by Texas’ Rule of Civil Procedure 192.3(g). Nevertheless, some courts routinely refuse to compel their disclosure and that’s what happened here.

Plaintiffs had objected to the disclosure of the settlement agreements stating that they were subject to confidentiality clauses. Plaintiffs did agree to disclose, in aggregate, the total amount of money agreed to be paid by the settling defendants. Without reviewing the agreements the trial court accepted plaintiff’s representation and denied Univar’s motion to compel.

The appeal drew several amicus briefs, including some from former parties which had settled with plaintiffs, that argued against disclosure of settlement agreements.

Holding a plain reading of our discovery rules demonstrates that such agreements are discoverable; that they are additionally discoverable so as to uncover any potential bias on the part of any witness (e.g. agreements to cooperate or not cooperate); and that they ought to be timely discovered, the court of appeals ordered that the agreements be disclosed by the end of the week.

Trial begins Monday in Beaumont.

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The long-awaited proposed revisions to TSCA were introduced in the U.S. House and Senate last week. As expected, these proposals, referred to as the “Safe Chemicals Act of 2010” in the Senate and as the “Toxic Chemicals Safety Act of 2010” in the House, contain numerous similarities to REACH. For example, the precautionary principle will apply, manufacturers will need to submit data on each chemical produced and its use, the EPA will be required to prioritize chemicals based on risk, the EPA will be expected to address high risk chemicals quickly. Chemical information submitted will be publically available, the scope of confidential business information will be significantly narrowed, and there is a focus on using safer alternatives to chemicals of concern.

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Shiga toxin-producing E. coli infections are trending down and so are hospitalization and mortality rates. The same is true for Campylobacter, Listeria and Salmonella since 1996.

That said, the rates for Vibrio are increasing and plateaus for Campylobacter, Listeria and Salmonella show worrying trends towards leveling and rebuilding. Of course, if you've ever spent time looking at bacteria under a microscope you'll know that these bugs are like Rocky - sometimes they're down, but they're never out.

The long war continues. Read the latest dispatch from the CDC.

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You know all those immunohistochemical stains for different types of cancer; the ones that say what a patient has and what chemo works for her? Well, because we live in a time of discovery, and thus of great uncertainty, standards and scoring vary greatly from laboratory to laboratory. We know this from the leukemia, lung cancer and mesothelioma litigation. Now Gina Kolata has written about it in the breast cancer context in the NYTimes in: "Cancer Fight: Unclear Tests for New Drug"

Years from now, we hope, when it's all clear and obvious, historians will look back on this era and marvel at our tolerance for untested treatments, primitive diagnostics and a swing-for-the-fences approach to our health. For now though it's the best we can do.

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Chemo's dirty secret is that many patients, oftentimes most, will be made wretchedly sick yet receive no benefit in the bargain - they won't even be playing the remission lottery. That's because cancer isn't one disease called "cancer". It's a highly individualized disease. Yet because until now no one could identify who would respond to what everybody with a given type of cancer got whatever worked best for the most people.

Now, efforts at M.D. Anderson Cancer Center to identify biomakers that refine the diagnosis of the disease well beyond say small cell lung cancer are starting to pay off and drugs that might never have been prescribed because they only helped a tiny subset of victims can now be targeted at only those people who have the sort of lung cancer susceptible to the drug. Read about it at Bloomberg.

And how individualized will cancer turn out to be? Very, if things continue to go as they've gone with Vectibix, a colon cancer drug.

So much for economies of scale.

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IARC thinks so. Others have recently published papers claiming that breast cancers and melanomas are probably caused by exposure to electric lighting at night. However, a new study published in the American Journal of Epidemiology looked at 73,049 Chinese women and found no association between breast cancer and night-shift work, irrespective of frequency, duration or cumulative shift work. The authors conclude that "it may be premature to consider shift work a cause of cancer."

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What causes kidney cancer? A lot of things have been proposed, especially substances and habits which are nowadays considered indicia of immorality such as using petrochemicals or having a Western lifestyle. However appealing to some, there's little to support such claims. On the other hand, smoking, being fat and not taking your blood pressure medicine are clearly the best ways to improve your odds of getting kidney cancer. Read about it in: "Contemporary Epidemiology of Renal Cell Carcinoma: Perspectives of Primary Prevention".

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Mr. Pryor played an indispensable role in starting up the chemical tort litigation that began (like everything else, seemingly) in Beaumont, TX. Read all about it in "Catching a Killer" and in "The Cancer Belt". In particular it was the butadiene litigation for which he'll be remembered by toxic tort lawyers. You can find his obituary in the Beaumont Enterprise.

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The Texas Supreme Court recently concluded that merely transporting goods through Texas does not create sufficient minimum contacts to establish specific jurisdiction in this state. In the case of Zinc Nacional, S.A. v. Bouché Trucking, Inc., a Mexican company (Zinc) sold paper to a company in New Mexico. Zinc transported the product to the Texas border, transferred the trailer to another truck company (Bouché), which transported the paper through Texas to New Mexico. Zinc does not have an office, agents or employees in Texas and does not sell paper to Texas manufacturers. During one particular shipment in 1999, the Bouché driver was injured when the contents of the trailer shifted and the truck overturned. The driver filed a negligence suit against Bouché.

Bouché sought third-party indemnification and contribution through Zinc, who filed a special appearance to challenge specific and general jurisdiction. The trial court denied Zinc’s special appearance. The Court of Appeals upheld the trial court’s opinion stating that “Zinc had purposefully availed itself to Texas benefits” and “had thereby established sufficient minimum contact for purposes of specific jurisdiction.” The Supreme Court disagreed finding that Zinc doesn’t have the minimum contacts necessary to establish specific jurisdiction, concluding that third-party shipment of goods through Texas “does not, by itself, constitute purposeful availment.” The Court reversed and remanded the case to the appellate court for determination of the general jurisdiction issue.

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Back in the day, a doctor from deep East Texas opined as follows about an alleged carcinogen: "It messes with your DNA and everybody knows that if your DNA gets messed up it can lead to cancer." Multimillion dollar verdicts were founded on little more than that sort of speculation.

Yet, what if that which everybody knows about cancer is wrong? The prevailing paradigm, that cancer comes from a single cell that develops a mutation and then grows out of control, is beginning to show a lot of cracks. Why do cancer outbreaks mimic those of pathogenic epidemics? Why would population mixing lead to cancer? Read about it at Carcinogenesis in "Hypothesis: Towards the Origin of Cancer Epidemics and Pathogenesis".

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Would you be surprised to learn that the graphical representations of association (RR, HR, OR) are seriously flawed not just in some but in most of the peer-reviewed articles published in JAMA, The Lancet and NEJM in 2008? I certainly was. Read about it in The Lancet at "Graphical Presentation of Relative Measures of Association". Apparently, rather than improving communication an awful lot of graphics are actually "distorting what the data have to say".

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The Texas Supreme Court recently delivered its opinion in Del Lago v. Smith, 53 Tex. Sup. Ct. J. 514 (2010). Smith was a patron of the Grandstand Bar which is part of the Del Lago resort on Lake Conroe, Texas. He was a member of a fraternity reunion that got into a brawl with a wedding party. The brawl erupted after ninety minutes of drunken threats between the two groups. The bar employees witnessed the hostility, did not call security or the police, did not throw anyone out, but did keep pouring drinks. Smith witnessed all of it but did not leave. When the fight started, Smith joined the fray and was eventually run into a wall by another man and his skull was fractured. Once the fight started, the bartender called security, who arrived within three minutes and broke up the fight. The jury found the bar 51% liable and Smith 49% liable and awarded almost a million and a half dollars in damages.

The most significant holding of the case can be found in this paragraph:

"We hold that Del Lago had a duty to protect Smith because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation. Del Lago’s duty arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night. When a landowner “has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent" to reduce or eliminate that risk.

The ruling drew two very lengthy dissents. They point out that the rule in Texas has always been that a possessor of land discharges his duty to protect an entrant, including an invitee, from a condition that poses an unreasonable risk of harm by giving an adequate warning. Yet the court now holds that “in some circumstances, no warning can be adequate.” The court, however, did not explain when and how such situations arise so that a landowner can take measures to reduce his risk. It also did not explain why no warning could have been adequate in this case (where the danger was obvious and Smith was a willing brawler who could have avoided his injury by simply leaving the bar at any time after trouble began to brew.

In his dissent Justice Wainwright examined Palsgraf v. Long Island Railroad and Texas' views about whether we follow an ordinary prudence rule or whether we impose on all actors a duty to the whole world and he concluded that Texas had always followed the lead of the majority opinion in Palsgraf.  

The majority gave short shrift to one of the key problems with this case.  While the case was presented to the jury on a premises liability theory (defect in the physical premises itself), one of the major factors in holding the bar liable was a negligent activity (serving drinks to belligerent people, omitting to call the police to break up the fracas).  Serving drinks in a bar cannot be a premises defect. That is what bars do.  However, serving them to drunk, belligerent customers can be negligent, as in a dram shop case.  This is a key distinction because obvious dangers and warnings are often not sufficient in negligent activity cases – it is not enough to warn someone that you are spraying the floor with oil in a grocery story as the person walks by and slips (this is the seminal fact pattern in a negligent activity case).  So instead, the majority has created an exception to premises liability law when it could have simply sent the case back to the trial court to be tried and presented to the jury under the appropriate tort – the negligent activity of serving drinks to drunk, belligerent customers and not calling the police.

How will this ruling affect toxic tort claims by contractor employees? Is it no longer enough to warn of the risk and to advise as to how it might be avoided? And if a hazard, such as an unguarded loading dock, is open and obvious is the premises owner now obligated to actively prevent the contractor from falling off? And what exactly is the something "more than a warning" that a prudent premises owner must now undertake to discharge this new duty?

Premises liability law, which had after many long years finally become understandable, predictable and workable has suddenly become very uncertain.

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In Buttitta v. Borg-Warner, et al a New Jersey appellate court appears to embrace the scientifically indefensible "no safe level" risk/causation conflation in upholding a huge award to a plaintiff with a lower asbestos burden than an average American; likely all of whom are exposed to chrysotile, a ubiquitous and naturally occurring mineral.

Clearly a new front in an old war has opened. Seemingly few are prepared for this post-epidemiological world.

Also of interest is the court's approval of prior decisions based on an Illinois appellate court's discussion of the substantial factor test:

"The substantial factor test is not concerned with the quantity of the injury-producing agent or force but rather with its legal significance... Where there is competent evidence that one or a de minimis number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury". Citing Wehmeier v. UNR Industries, Inc., 572 N.E.2d 320, 337 (Ill. Ct. App. 1991).

That's pretty much the essence of the "redistributive justice" view of tort law in which the actor's conduct is not at issue but rather whether it contributed, however infinitesimally, to the plaintiff's injury. Practically speaking the litigation then will remain focused not on whether a defendant committed a wrong but rather on which defendant is most able to pay since asbestos fibers have been found on just about every surface and in countless products.

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What is the current state of the art for making an accurate diagnosis of asbestosis? See: "Pathology of Asbestosis - An Update of the Diagnostic Criteria: Report of the Asbestosis Committee of the College of American Pathologists and Pulmonary Pathology Society"

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It has been just over a decade since the human genome was sequenced. Now that we know the "code of life" cures for all sorts of maladies like cancer, birth defects and even aging are just around the corner, right? A missing or mutated gene causes a problem so provide the protein it would have produced or suppress the errant one it does or even use a virus to replace the faulty or missing gene with a new one, right? Well, it might have worked out like that if what everybody knew about DNA and gene regulation was true. Instead the discoveries of the last ten years have exploded one dogma after another and left many scientists despairing that life may be impossibly, incomprehensibly complex.

One of the biggest "Huh?!" moments came with the announcement by the folks running the ENCODE project that all that non-coding DNA, the allegedly meaningless flotsam and jetsam of 3 billion years of evolution, was, in fact, coding little bits of RNA which turned out to play mysterious yet essential regulatory roles.

And one of the most depressing "Uh Oh" moments seemed to come collectively when one day everyone began to look at all the pretty graphical images of signaling pathways, which look like a snapshot of the grand finale of a Fourth of July fireworks display, and to realize that just as a Martian could study such pictures forever and still never understand why we were shooting off fireworks, likewise researchers could never comprehend what was going on in a living organism just by studying simple causal nexuses.

There is an excellent write-up of these issues at Nature in a special and free report called "The Human Genome at Ten". Read it.

Yet just because things have turned out to be vastly more complex than hoped for and expected that doesn't mean truth can't at least be more closely approximated. More and more it's beginning to look to me like modular computer programming is a better metaphor for these biological processes than the older purely reductionist one. If so then most of what's going on research-wise today is replacing "FOR N = 1 TO 100" with "FOR N = 1 TO 85" and then trying to figure out just where, and what, in the game just got a little bit more or less likely. Once the principle, the function, of a cluster of effects is understood perhaps maladies like cancer will at last begin to yield to the enormous amount of effort expended. If so then perhaps the following is the better quote about wisdom:

"Patience is the companion of wisdom" - Saint Augustine

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