Posts Tagged ‘asbestos’

Litigation roundup

  • Settlement insurance, a new litigation-finance mechanism, can have the unintended result of casting light on just how little benefit some class actions provide to consumers [Ted Frank, CEI] Yet another new litigation finance mechanism: trial-expense insurance purchased by lawyers [Bloomberg/Insurance Journal]
  • South Carolina law firm sues 185 different defendants in the average asbestos case it files, and it’s still far from tops in that department [Palmetto Business Daily]
  • “Those terms and conditions (that nobody reads) could cost New Jersey retailers” [Tim Darragh, on class actions under pre-Internet-era state consumer protection law]
  • Some federal courts, while paying lip service to the important Rule 26 discovery reforms that took effect Dec. 1, continue in their old ways, “effectively applying the old standard” [James Beck]
  • “Can Pokémon Go and Product Liability Coexist?” [Julie Steinberg, BNA/Product Safety & Liability Reporter, earlier]
  • “How does privatization affect liability?” [Sasha Volokh]

Liability roundup

Liability roundup

  • Cohen Milstein contracts with attorney general on opioid claims: “New Hampshire’s fleet of private pirate lawyers” [editorial, Manchester Union-Leader] Transparency in Private Attorney Contracting (TiPAC) legislation would help [Tiger Joyce] New Louisiana AG Jeff Landry cancels Buddy Caldwell contracts with outside law firms [Louisiana Record] States with governor-appointed AGs have seen fewer scandals than the majority in which the post is elected [Phil Goldberg, RCP]
  • Judge declines to dismiss Newtown families’ suit against rifle maker Remington Arms, PLCAA notwithstanding [Connecticut Post] Sandy Hook gun lawsuit “almost surely won’t succeed, nor should it.” [USA Today editorial] More: David French [extremely narrow ruling went to jurisdiction only, PLCAA as bar to recovery explicitly not at issue]
  • Sen. Dick Durbin, long a guardian of trial lawyer interests, leads opposition to federal bill on transparency in asbestos claims [Illinois Business Daily]
  • Judge tosses one wrongful death suit against Porsche over Paul Walker crash, another still pending [EOnline, earlier] GM ignition bellwether trials going exceptionally badly for plaintiffs as judge dismisses all but one claim in spun-out-on-black-ice case [Daniel Fisher]
  • Litigation destroys business confidentiality and that’s by design [Steve McConnell, Drug and Device Law]
  • “Justice Scalia’s Product Liability Legacy” [Anand Agneshwar and Emily M. May (Arnold & Porter), Lexology]
  • After State Farm defeats hailstorm claim, judge threatens to sanction Texas attorney Steve Mostyn [Southeast Texas Record]

Garlock asbestos bankruptcy settlement

The case famous for helping crack open some of the secrets of the asbestos litigation business has reached a settlement, which will apparently include a settlement (probably without admission of wrongdoing) of civil RICO claims against several law firms. The revelations in the Garlock bankruptcy helped to bolster evidence that “some victims and their lawyers tell one story in one venue and another someplace else to ‘double dip’ the system” in cases against separate defendants. [Sara Warner, National Courts Monitor/Huffington Post; earlier]

March 16 roundup

Liability roundup

Liability roundup

  • “Is Arbitration Awful? The New York Times Thinks So.” [New Jersey Civil Justice Institute, earlier here and here] And speaking of that paper, I’m going to miss Joe Nocera’s incisive coverage of the litigation business in his column, often linked here; he’s off to other duties at the Times [Politico/New York]
  • Yet more from the Times, longread on litigation investing and champerty: “Should You Be Allowed To Invest In a Lawsuit?”
  • Mikal Watts through the years: “It was part of my strategy to affect the stock price, which I was very successful at.” [Madison County Record, more]
  • “No negligence liability for injuries by fellow players in contact sport” [Eugene Volokh, martial arts, Colorado Court of Appeals]
  • Defense lawyer claims adversary had advance word about jury deliberations, grabbed $25 million settlement [Chicago Law Bulletin]
  • Is data privacy the next source of mass lawsuits? [Chamber Institute for Legal Reform]
  • Funds needlessly drained: “Asbestos reforms needed to protect first responders and veterans” [Rep. Blake Farenthold, The Hill]

Rachel Maines on the evolution of asbestos guilt

In the past forty years some 8,000 businesses and other entities have been named as defendants in American asbestos litigation. The story has often been told (among other places, in my book The Rule of Lawyers) of how this litigation spread in widening concentric rings to ever more peripheral defendants. The first major targets were companies that had been deeply involved with mining, processing and distributing asbestos; after these companies went bankrupt, the second ring included manufacturers of construction materials, heating and electrical products, and other goods that had included asbestos for the insulation or flameproofing properties for which it was long almost ubiquitous. By the time many of those companies were at length pulled into insolvency, the litigation had spread further to a much wider circle of defendants that had not themselves done any manufacturing involving asbestos, but had used such materials in factories, offices, schools, power plants, and so forth.

I’ve also discussed (in this 2007 Reason piece) some of the ways in which government itself promoted the injurious use of asbestos in industrial settings, above all wartime shipbuilding. But I didn’t get into another dimension of the issue, which Rachel Maines (visiting scientist at the Cornell School of Electrical and Computer Engineering) develops in a compelling article on “The Asbestos Litigation Master Narrative: Building Codes, Engineering Standards, and ‘Retroactive Inculpation.'” [via TortsProf, 2012, and very belatedly being linked here]. Maines:

As Cardozo Law School professor Lester Brickman correctly observes, most asbestos claims “were the result of defendant’s retroactive inculpation for acts committed decades earlier that were not wrongful at the time.” I concur with Brickman in this but go beyond him in arguing here that the vast majority of current asbestos claims result, in fact, from past efforts to enable compliance by property owners and building contractors with building codes and engineering standards at the Federal, state, and local levels that specified and approved asbestos in code-compliant assemblies. In many cases, the use of asbestos was required by law; no asbestos-free assemblies were approved in, for example, cathodic wrap for underground steel gas pipe, hot-air register insulating paper, and electrical insulation for conductors in switchboards. There is still no equivalent-performance substitute for asbestos in high-temperature gaskets and some types of high-performance motor vehicle brakes….

In effect, the tort law system that has supported asbestos litigation since 1973 drove much older and well-established building law, and the engineering standards incorporated into it, into a legal shadow from which it has yet to emerge, penalizing the makers and owners of products manufactured in compliance with construction regulations as negligent and characterizing all products that contained asbestos as “defective” and “unreasonably dangerous.” Historians will recognize this as an economically consequential case of the fallacy of presentism: the imposition of modern values on the past. In 1987, Federal judge Christine Cook Nettesheim accurately characterized the initial 1973 asbestos case, Borel v. Fibreboard, as “an icon of hindsight analysis.”

Read the whole thing, which has much other interesting material about the triumph of the “master narrative” of asbestos litigation promoted by plaintiff’s lawyers and their allies.

Liability roundup