Mass Torts: State of the Art

Mass Torts: State of the Art

Monthly Archives: February 2012

U.S. Supreme Court Holds LIA Preempts Asbestos Friction Product Claims

Posted in The Law
All members of the court in Kurns v. Railroad Friction Products Corp., et al. felt bound by stare decisis (in this case Napier) to hold that the petitioners’ design defect claims against the manufacturers of asbestos-containing friction products used in locomotives were preempted by the Locomotive Inspection Act (LIA).  Nevertheless, the case produced both a concurrence… Continue Reading


Posted in Causality, Industrial Hygiene, Microbiology, Molecular Biology, Toxicology
Some think that "a demonstration of the much-anticipated linkage between heritable disease and environmental factors is poised to begin." Roggli > Finkelstein Nebraska "rejects the requirement of knowledge or foreseeability of the danger as an aspect of the duty determination" in employer/employee cases. The Microbiome is a very big deal. The FDA has approved a breath… Continue Reading

There’s Something About Nevada

Posted in Causality, Epidemiology, The Law
After getting hammered in quick succession for $500 million, $162 million and $90 million worth of punitive damages in three cases involving a total of just five plaintiffs, Teva settled its Nevada hepatitis C (HCV) / Propofol claims.  The price tag was just past a quarter billion dollars.  So what happened?  Teva’s generic Propofol wasn’t defective.  It… Continue Reading

When Man’s Designs Don’t Include Nature’s

Posted in Microbiology, The Law
Does powdered infant formula (PIF) contaminated with Cronobacter sakazakii nee Enterobacter sakazakii constitute a design defect? The district court in The Security National Bank of Sioux City, Iowa v. Abbott Laboratories thinks so. Creating (we think) a design defect dichotomy the court distinguished between "intended design", here PIF designed to specification but without bacteria and (apparently) "unintended design" – PIF designed to specification but with bacteria. Unintended design defects… Continue Reading


Posted in Causality, Epidemiology, Microbiology, Toxicology
Utah has a very loose definition of epidemiology – at least when it comes to cows / stray voltage. There’s an enormous amount of evidence that childhood leukemia is the result of infections. Concerns about PAHs in seafood from the Deepwater Horizon spill are overstated. The Atlantic has a wonderful article about Toxoplasma gondii. You can’t… Continue Reading

Parallel, Not Perfect

Posted in The Law
Walker v. Medtronic is another new case interpreting Riegel. This time the device failed utterly (given the undisputed evidence that the plaintiff’s decedent died when an implantable pain pump delivered a massive overdose). The case hinged on whether the (in)accuracy of the (over)dose administered, in this case the consequence of a complete failure, constituted a… Continue Reading

Texas Appellate Court Upholds Big Enterovirus Verdict – We Don’t Know Why

Posted in Causality
Before we get to why we think the dissent got it right in Scott’s Marina v. Brown assume the following: 1) plaintiff contracted an enterovirus infection resulting first in pharyngitis, then in meningitis and finally in Lemierre’s syndrome – an extrordinarily rare and potentially fatal complication following a throat infection (Lemierre’s is invariably blamed on Fusobacterium necrophorum or… Continue Reading


Posted in Causality, Epidemiology, Risk
The end of the age of screening is at hand. Matrixx v. Siracusano was about an investor’s right to material facts and not about sound statistical inference. Subsequent asbestos exposures do not increase the risk of mesothelioma produced by distant past / early life (prior to age 30) asbestos exposures. The XMRV fiasco could have been avoided… Continue Reading

Plaintiff Avoids Preemption and Twombly in Parallel

Posted in The Law
The Fifth Circuit has held in Bass v. Stryker  that plaintiff’s claim against the manufacturer of an allegedly defective hip replacement device is not preempted by the Medical Device Amendments of 1976 to the FDCA, and that his complaint satisfies Twombly.  Because plaintiff’s allegation "paralleled" an FDA manufacturing practice and asserted that the "good" practice was not followed, resulting in a device that did… Continue Reading

Dismissed With Prejudice

Posted in The Law
Today we filed this responsive brief in the United States Supreme Court. Question: Is a summary judgment dismissal necessarily with prejudice? Who would have thought this would (maybe) make it to SCOTUS? We’ll keep you posted should an order nunc pro tunc catch their eye.… Continue Reading

Check Our Math

Posted in Reason
What are the odds that a jury, having found for the plaintiff in a typical occupational cancer case, got it right (which is to say, got to the truth)? Assume the following: a) The odds that a jury will correctly attribute the cancer to the defendant when, in fact, it was an occupationally-induced cancer is… Continue Reading

Plaintiffs’ Experts Call for Research on the Health Effects of Fracing; looking for a link to disease

Posted in Risk
There is a hearing today in front of the House Energy and Environment Subcommittee, of the Committee on Science, Space and Technology. The subcommittee is studying the draft report by the EPA on the effects of unconventional natural gas drilling in and around Pavilion, Wyoming which found some groundwater contamination, particularly from gas drilling wells… Continue Reading

Probability For Thee, Mere Possibility for Me

Posted in The Law
And that’s exactly as things ought to be.  When I got to Beaumont, TX, one of the first and most notorious of all judicial hell holes, I was appalled by what this lawyer/biochemist saw. Plaintiffs’ experts were willing to testify to anything (for a fat fee) and were being allowed to do so as long… Continue Reading