- Another dubious lawsuit blaming terrorism on social media from law firm with phone number for a name [Tim Cushing]
- Courts reverse two big talc/baby powder jury verdicts against Johnson & Johnson [Tina Bellon and Nate Raymond, Reuters ($417 million, California); Insurance Journal ($72 million, Missouri)]
- “US-Based Tech Companies Subject to Worldwide Jurisdiction as Judicial Comity Takes a Back Seat” [Moin Yahya, WLF on Supreme Court of Canada’s decision in Google v. Equustek Solutions]
- Richard Epstein wrote the Encyclopedia of Libertarianism’s entry on liability, tort and contract;
- Asbestos: “Judges and juries should learn about a plaintiff’s entire exposure history so they can apportion liability appropriately.” [Phil Goldberg, Forbes]
- Study of contingent fee litigation in New York City: few cases resolved on dispositive motions, lawyers nearly always take the maximum one-third permitted by law [Eric Helland et al., forthcoming Vanderbilt Law Review/SSRN]
- “The Impropriety of Punitive Damages in Mass Torts” [James A. Henderson Jr., forthcoming Georgia Law Review/SSRN via Stephen McConnell, Reed Smith/JD Supra]
- “Will SCOTUS Ruling Affect Philadelphia Court, Where 94% Of New Plaintiffs Are From Out Of State?” [Nicholas Malfitano, Penn Record/Forbes, earlier on Bristol-Myers Squibb v. Superior Court]
- Time for asbestos trusts to do what’s right [Christine Biederman, The Hill]
- “Google’s $8.5m class-action privacy payout goes to: Lawyers’ alma maters, web giant’s pals” [Kieren McCarthy, The Register on Ninth Circuit settlement approval]
- European Court of Justice should take lesson from American courts which after relaxing rigor of causality scrutiny, and seeing baseless payouts multiply, have since been on a Daubert rebound [Theodore Dalrymple, Law and Liberty; Marilyn Moberg and Kathryn Bond, Drug and Device Law]
- Law firm gold rush for opioids-recoupment suits continues as New York counties sign up [Steve Lieberman, Journal News (Rockland County, N.Y.]
- Entrepreneurs launch plaintiff’s insurance to cover costs of pursuing litigation, not quite same thing as the “legal expense insurance” commonly found in loser-pays jurisdictions [ABA Journal]
- More on the class action procedure case Microsoft v. Baker, from the just-ended Supreme Court term [Federalist Society podcast with Ted Frank, earlier]
- Why Bristol-Myers Squibb, the Supreme Court case on state court jurisdiction, “is one of the most important mass tort/product liability decisions ever” [James Beck/Drug & Device Law, earlier]
- Sandy Hook massacre: “Newtown And Board Of Education Seek Dismissal Of Wrongful Death Lawsuit” [AP/CBS Connecticut]
- Pennsylvania: “Evidence-Manipulation Claims Dog Asbestos Lawyer” [Lowell Neumann Nickey, Courthouse News] “California’s Latest Litigation Invitation: A Duty to Protect Against ‘Take-Home’ Exposure” [Curt Cutting, WLF]
- It’s almost as if trial lawyers were in the driver’s seat of these ostensibly public actions: Tennessee counties’ opioids suit also seeks to strike down the state’s tort reform law [Jamie Satterfield, Knoxville News-Sentinel]
North Dakota and Mississippi have become the third and fourth states to enact laws requiring more transparency of the trusts formed to administer companies declaring bankruptcy amid asbestos litigation [Sara Warner, Huffington Post] “With Obama’s veto threat gone, asbestos ‘double-dipping’ bill reintroduced” [Jessica Karmasek, Legal NewsLine] “State AGs Probe Asbestos Bankruptcy Trusts To Recover Medicare Payments” [Daniel Fisher] And per a paper from the U.S. Chamber, Ohio’s pioneering asbestos claim transparency law is working well [Institute for Legal Reform]
- “Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies” [U.S. Chamber Institute for Legal Reform]
- “After paying out millions, Detroit pushes new law protecting cities from claims over bad sidewalks” [WXYZ]
- Fire doors at U.N. cut and repurposed to make cabinets, court rules original manufacturers not liable for failure to warn of asbestos dust risk should doors be cut up [Lynn Lehnert, Asbestos Case Tracker]
- Woman sues bar that served her over her later drunk driving accident and injuries allegedly suffered in police custody [Penn Record]
- Can members of a class action be identified? Supreme Court should resolve circuit split on the important class-action-certification issue of “ascertainability” [David E. Sellinger and Aaron Van Nostrand, WLF]
- Federal court in the Eastern District of New York gets lots of food marketing lawsuits [Emily Saul and Danika Fears, New York Post, Elizabeth Nolan Brown]
Texas was once the largest center of asbestos litigation in the U.S., with mass recruitment of workers claiming injury from past exposure although displaying no symptoms. Now, more than 40 years after the landmark Fifth Circuit Borel v. Fibreboard case which originated with a Beaumont worker’s complaint, Texas has enacted the nation’s most extensive legislation laying down rules for the conduct of asbestos litigation, much of it aimed at curtailing cases with poor evidence of causation or injury. A new report from Texans for Lawsuit Reform describes and defends the state’s actions.
With both Congress and White House now in Republican hands, the U.S. House of Representatives is moving with dispatch to consider a series of litigation reform measures, some stalled for years by Democratic opposition and others of relatively recent vintage. Bruce Kaufman at BNA Bloomberg has a three-part series (first, second, third) followed by an update today on the looming battle over the six main bills:
- The Lawsuit Abuse Reduction Act (H.R. 720) “requires judges to impose mandatory sanctions on attorneys who file ‘meritless’ civil cases in federal courts.”
- The Fairness in Class Action Litigation Act (H.R. 985) which “affects nearly all facets of class action practice” and in particular “class certification requirements, capping or delaying distribution of fees to class counsel, requiring the disclosure of litigation financing, and tying the reporting of settlement data to plaintiffs’ lawyers’ fees.” [More: various academic opponents weigh in here, Andrew Trask defends provisions of the bill here and here, and see earlier]
- The Innocent Party Protection Act (H.R. 725) “targets what is known as fraudulent joinder—the improper addition of [local] defendants to suits in a bid to keep cases in more plaintiff-friendly state courts.”
- The Furthering Asbestos Claims Transparency Act (H.R. 906) “mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies,” in hopes of preventing undisclosed duplicative collection of damages over the same injury.
- The Stop Settlement Slush Funds Act (H.R. 732) which “seeks to bar the Department of Justice from entering into settlements that steer funds to favored third-party groups.”
- The Sunshine for Regulatory Decrees and Settlements Act (H.R. 469) Goes after what have been called “sue-and-settle” processes at EPA in which the agency reaches concessionary terms with ostensibly adverse litigants who seek to expand its authority.
Trial lawyers and allies in the Litigation Lobby aren’t standing idly by: “opponents hope to gum up the works.” Even if many bills clear House passage, getting to 60 votes in the Senate in the face of filibuster threats could prove difficult, despite the departure of perennial trial lawyer ally Harry Reid (D-Nev.), and the views of President Trump are not entirely clear. More: Washington Examiner editorial on class action measures.
- Investigation of asbestos claiming in Hampton Roads, Virginia, a major center of such litigation, finds plenty of double-dipping and related problems [Chamber Institute for Legal Reform; Richard Berman, Washington Times]
- “The Year Ahead: Will Trump Tackle Asbestos Litigation Scandals?” [Sara Warner, Huffington Post]
- “Asbestos loss projection now $100 billion for US carriers: Best” [Insurance Insider]
- “Sheldon Silver left legacy of high awards in asbestos suits against city” [New York Post]
- 10+ year smoker who contracted lung cancer sues 199 defendants citing asbestos exposure [West Virginia Record]
- Coming, new documentary: “UnSettled: Inside the Strange World of Asbestos Lawsuits, a film by award winning director Paul Johnson.” [site, Madison County Record]
“The family of a man who claimed his lung-cancer death was caused by asbestos exposure was awarded $12.5 million by a Manhattan jury — despite the fact that he smoked two packs of cigarettes a day.” Defendant Caterpillar Tractor probably won’t be on the hook for the full amount since the jury found the late George Cooney, a New Jersey resident, partly responsible for his own injury. [New York Post]
After initially resisting, Sen. Elizabeth Warren (D-Mass.) has agreed to return nearly $130,000 in donations she and her PAC received from the Boston-based Thornton Law Firm, known for asbestos plaintiff’s litigation. An investigation found the law firm paid $1.4 million in bonuses in patterns strongly suggesting they were being used to cover “straw donations” nominally from partners [co-published Boston Globe/Open Secrets story; New York Post]
From 2010 through 2014, Strouss and Bradley along with founding partner Michael Thornton and his wife donated nearly $1.6 million to Democratic party fundraising committees and a parade of politicians from Senate minority leader Harry Reid of Nevada to Hawaii gubernatorial candidate David Ige to Sen. Elizabeth Warren of Massachusetts. Over the same span, the lawyers received $1.4 million listed as “bonuses” in Thornton Law Firm records; more than 280 of the contributions precisely matched bonuses that were paid within 10 days.
That payback system, which involved other partners as well, helped make Thornton the 11th-ranked law firm nationally for political contributions in 2014, according to data analyzed by the Center, even though the firm is not among the 100 biggest in Massachusetts, much less the U.S.
Capitol Hill recipients of Thornton money include many figures who have played a role in blocking asbestos litigation reform, including Sens. Chuck Schumer (D-N.Y.) and Lindsey Graham (R-S.C.), and then-Sen. Joe Biden (D-Del.).