Posts Tagged ‘toxic torts’

“Science Favors J&J in Talcum Powder Lawsuits”

For years lawyers have been suing Johnson & Johnson claiming that its baby powder has caused ovarian cancer, a theory that has mostly met with failure in court. This summer, however, a St. Louis jury found liability and ordered the company to pay $4.69 billion, on a related theory that asbestos contaminants in the product (as opposed to talc itself) caused the disease. On December 14 Reuters followed with a lengthy piece laying out, and implicitly siding with, the plaintiff lawyers’ accusations; the piece drew wide publicity, and the company’s shares sank by about $50 billion. Some analysts have written that J&J’s lawsuit payouts on the issue could reach $20 billion.

Now a leading business columnist has explained why he doubts that outcome. “Why? Because whether or not the company’s talcum powder contains asbestos, and whether or not it hid that fact from the public, the science remains firmly on J&J’s side.” [Joe Nocera, Bloomberg] How so? “There is no evidence that women who use talcum powder are any more likely to get ovarian cancer than women who don’t. In both California and New Jersey, judges have tossed out cases on exactly this basis.” So while plaintiffs make the most of their dark imputations of a cover-up, what they haven’t shown is that women who used the baby powder are any more likely to contract cancer than those who did not. Nocera: “And this is one mass tort where I’m convinced the science is going to win.”

Meanwhile, Mark Lanier, the Texas-based lawyer who won the St. Louis verdict, freely agrees that his efforts have helped affect J&J’s stock price. “It serves my purposes as a litigator to say, ‘Yes, get their attention; keep driving the stock down.'” [Matthew J. Belvedere, CNBC] And: “New York’s specialized court for asbestos lawsuits could become a pivotal battleground for litigation over talcum powder as plaintiff lawyers seek to establish a record of wins in a court system known for liberal rules and big jury verdicts.” [Daniel Fisher, Forbes]

An Indiana cancer cluster in the NYT

Over the years, the New York Times and writers associated with it have done more than most of us to debunk scares over purported cancer clusters. “When multiple cases of cancer occur in a community, especially among children, it is only human to fear a common cause,” wrote George Johnson in a 2015 Times piece. “Most often these cancer clusters turn out to be statistical illusions, the result of what epidemiologists call the Texas sharpshooter fallacy. (Blast the side of a barn with a random spray of buckshot and then draw a circle around one of the clusters: It’s a bull’s-eye.)”

Johnson’s writings in publications other than the Times have cogently analyzed dubious claims of cancer clusters in Toms River, N.J. and Love Canal, N.Y. Times science reporter Gina Kolata was a pioneer in questioning claimed incidence patterns, and a Times editorial helped in dispelling one of the most famous cancer cluster theories, that of breast cancer on Long Island.

Dozens of refuted cancer cluster scares later, are we more cautious when new ones are put forward? Or has nothing changed?

On Jan. 2 the Times published, to predictably sensational reaction, a piece by Hiroko Tabuchi profiling a claimed childhood cancer cluster in Johnson County, Indiana. Local campaigners have collected cases of childhood cancers — diverse kinds of it, not all one type — associated with the county since 2008, which would imply a rate of six cases per year. The piece, unfortunately, omits to mention the county’s population; it’s 139,654. It does concede, somewhat backhandedly, that the county is within a broadly normal range on its numbers, by noting that it has an incidence of childhood cancer slightly above the average for American counties, placing it in the 80th percentile of all such counties, which in this kind of statistical distribution means not really any great outlier at all.

Cluster alarms call for a culprit, and the local campaigners have settled on a now-shuttered industrial plant that used TCE (trichloroethylene), a solvent familiar from dry cleaning and used at many thousands of sites. They suspect it may have spread through the water and subsequent evaporation, which would explain — or would it? — which some sick children lived in homes distant from the plant and why current water testing is at best inconclusive.

I’ve written a fair bit about cluster controversies in the past, including the one in Hinkley, Calif. made famous by Erin Brockovich, and the Woburn, Mass. story captured in the book and movie “A Civil Action.”

Environment roundup

At Commentary on the Roundup verdict

My new piece at Commentary on a San Francisco jury’s verdict ordering Bayer/Monsanto to pay $289 million to a school groundskeeper who blamed Roundup herbicide for his cancer. It bids to go down in the history books alongside the lawsuits “claiming that silicone breast implants caused auto-immune disease, common childhood vaccines caused autism, the morning sickness drug Bendectin caused birth defects, one or another make of car suddenly accelerated without any input from the driver or gas pedal, and so forth.”

At the end it concludes: “Eventually, our liability system does often get around to rejecting baseless scientific claims of causation, especially since the improvement in the handling of expert evidence embraced by the U.S. Supreme Court in Daubert v. Merrell Dow (1993). Before it gets there, however, it sometimes redistributes large sums—often to claimants, even more reliably to lawyers—and often destroys large amounts of value. In the days after the San Francisco verdict, the value of Bayer stock dropped by more than 10 billion euros. It’s expensive when error prevails.” More: The Logic of Science (“Courts don’t determine scientific facts.”) Earlier on glyphosate here. And a note on the perhaps-surprising tax implications under perhaps surprising provisions of the 2017 tax reform: Robert Wood.

Everything you know about Flint water is wrong

“Reference levels” aren’t poisoning, Flint at the height of the episode had lower blood-lead incidence in children than many other communities large and small, the number of cases with lead exposure calling for therapeutic measures appears to have been zero, and so forth. “It is not possible, statistically speaking, to distinguish the increase that occurred at the height of the contamination crisis from other random variations over the previous decade.” In short, everything you know about the Flint water episode is wrong. [Hernán Gómez and Kim Dietrich, New York Times; earlier here, here, and here]

Counting the costs of the New Mexico wi-fi suit

We posted earlier about a court’s dismissal after five years of the suit by Santa Fe, N.M. resident Arthur Firstenberg against neighbor Raphaela Monribot, over his claims that her electronic devices were exacerbating his condition of “electromagnetic hypersensitivity.” Don’t miss George Johnson’s excellent New York Times write-up, which fills in many more details:

…I assumed the case would be quickly dismissed. Instead, in 2010, it entered the maze of hamster tubes that make up the judicial system.

…About a week ago, after the Court of Appeals upheld the decision, I stopped by the office of Ms. Monribot’s lawyer, Christopher Graeser, with a tape measure. The files for the case sat in boxes on a table. Piled together, the pages would reach more than six feet high.

Court costs, not counting lawyers’ fees, had come to almost $85,000, or more than $1,000 an inch. Because of what the court described as Mr. Firstenberg’s “inability to pay,” the bill went instead to Ms. Monribot’s landlord’s insurance company — as if someone had slipped on an icy sidewalk, or pretended to.

Mr. Graeser and another lawyer, Joseph Romero, represented her pro bono, writing off an estimated $200,000 in legal fees.

Exotic botanical toxin, or exotic expert witness theory?

AconitumFollowing the unexplained death of a gardener at a millionaire’s estate in Hampshire, England, a coroner has been told that it is more likely than not that brushing against the poisonous common garden plant aconitum, known variously as wolfsbane or monkshood, must have caused the man’s decease. [Independent]

Maggie Bloom, who is representing the family, said in the pre-inquest hearing yesterday that the initial blood sample had been destroyed – despite being against hospital policy – and that later samples that were retained could be useless as the poison leaves the body within a day.

Torts roundup

  • Bad lawsuit on bad theory: “Cantor Fitzgerald, American Airlines Settle 9/11 Lawsuit” [Financial Advisor mag]
  • New Jersey court: only golfer, not his companions, responsible for yelling “Fore” to warn of errant ball [TortsProf]
  • “The New Lawsuit Ecosystem: Trends, Targets and Players,” 158-page report for Chamber of Commerce, topics include emerging areas of litigation (food class actions, data privacy); also lists leading plaintiff’s lawyers in various areas [Chamber’s Institute for Legal Reform]
  • “Eleventh Circuit Stacks Deck Against Defendants in Never-Ending Engle Product Liability Litigation” [Cory Andrews, WLF]
  • Beck vs. Prof. Chemerinsky on prescription drugs and pre-emption [Drug and Device Law]
  • “Outrageous Court Decisions: O’Brien v. Muskin Corp.” [Schearer; above-ground pool dive defect claim, New Jersey 1983]
  • New York rejects medical monitoring cause of action [Behrens]

Love Canal again

The Niagara Falls, N.Y., site of a famous toxic-homes evacuation during the Carter Administration is once again the scene of a claimed disease cluster involving an assortment of maladies. Lawyers say, perhaps not unhopefully, that as many as 1,100 claims may follow the six already filed.

A spokesman for the Environmental Protection Agency, while declining to address the lawsuits, called the area “the most sampled piece of property on the planet.”

“The canal has not leaked,” spokesman Mike Basile said. “The monitoring and containment system is as effective today” as when first installed.

[Buffalo News, AP] For some revisionist history on the causes of the 1970s fiasco, see Eric Zuesse’s classic 1981 Reason article (local officials instigated residential development of land they had been warned was unsuitable for such use) and Ronald Bailey’s 2010 update on the disease issue (“Love Canal residents are not especially prone to early mortality, cancer, or birth defects.”)

Torts roundup

  • Adventures in causation: Per $19 million Mississippi verdict, fumes from leftover gasoline caused birth defects, asthma [Insurance Journal]
  • Legal academia watch: lawprof proposes massive expansion of liability for parents [TortsProf]
  • University of Virginia’s torts giant: “A Tribute To Jeffrey O’Connell” [U.Va. Dean Paul Mahoney, Virginia Law Review (PDF) via TortsProf]
  • “Proposed civil justice reform in Canada” [Ted Frank]
  • “Town Owes $10M To Pupil Paralyzed In School Beating” [New Jersey Law Journal; Irvington, N.J.]
  • Businesses steer clear of Philadelphia litigation climate [Jim Copland, Inquirer; Trial Lawyers Inc. update]
  • Longtime West Virginia attorney general Darrell McGraw, disliked by business, toppled in re-election bid [Charleston Gazette-Mail]