What Does New York’s Decision on Duty to Warn Mean Going Forward in Asbestos Litigation?

New York’s highest court has imposed a duty on equipment manufacturers to warn about asbestos containing products manufactured by other manufacturers. This long-awaited decision now resolves the duty issue, but what does it mean going forward in asbestos litigation? On June 28, 2016, the New York Court of Appeals ruled in the Dummitt/Suttner cases that Crane Co. had a “a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as…
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Genomics: Beyond Asbestos and Into Talcum Powder Litigation and Ovarian Cancer

It appears that 2016 may be the year that genomics and other aspects of molecular science make a big splash in “mass tort” litigation. While genomic analysis has long been used in forensics, it has also made its way into toxic tort cases, such as benzene exposure cases, and asbestos and mesothelioma cases. Indeed, the first BAP1 and mesothelioma case is now on the books (see our recent post on this here). Recently, Johnson & Johnson (J&J) was ordered to pay $72 million…
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First Asbestos Genetic Susceptibility (BAP1) Trial Now in the Books

Asbestos litigation has now entered the modern era. Namely, the first case involving testimony related to BAP1 mutations has gone to trial in California: the Ortwein case. The trial involved a 50-year-old woman with pleural mesothelioma, represented by the Kazan firm. The defendant at trial was CertainTeed, a building manufacturer, and the case settled shortly before it would have gone to the jury. But does the Ortwein trial matter when it is only one case out of thousands filed every year? We believe it does…
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Big Picture Thinking About Headlines Involving “Cancer”: Is Cancer Environmentally-Induced or Due to “Bad Luck”?

When cancer causation is at the heart of a toxic tort case it is critical to remain abreast of current research in the field. A good toxic tort lawyer must consider not only the science that will help him win his case, but also maintain an awareness of the scientific research related to basic knowledge about cancer causation, cancer prevention, and cancer treatments. This knowledge will ultimately translate into better openings, direct examinations, cross examinations, and closings. Last month we addressed some trial-specific thinking,…
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Multiple Factors and Causation in Cancer Litigation: Examples from a Coal Tar Pitch Bladder Cancer Case

How many external sources have a role in cancer causation? And to what extent can scientists and lawyers parse these factors in today’s age of molecular investigation of cancers? For purposes of analysis, this post looks at a hypothetical bladder cancer case in which there are assertions regarding smoking, asbestosis, and occupational coal tar pitch exposure in the context of manufacturing of carbon graphite electrodes. Assume that the plaintiff’s industrial hygiene expert asserts that the bladder cancer was caused by polycyclic aromatic hydrocarbons (PAHs) occurring…
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New Developments in Molecular Science Relevant to Asbestos and Lung Cancer Claims

Scientific advances and molecular insights relevant to asbestos and lung cancer are exploding — especially topics related to an assessment of causation. These advances are chronicled in molecular studies related to genomics, proteomics, epigenetics, and transcriptomics. These molecular studies are transforming so-called “black-box epidemiology,” providing us with a higher degree of specificity that will ultimately allow us to more definitively link exposures to disease states. For example, European investigators and others have been publishing intriguing studies describing lung cancer tumor mutation profiles that appear to…
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Asbestos Litigation: Did We Forget These Are Warnings Cases?

In the world of asbestos, the predominant claim against defendants is that they should have warned against the dangers of asbestos. Typically, plaintiffs prove exposure to a product, absence of any warning (or an adequate warning) and damages. The jury verdict sheet simply reads something like, “Was defendant negligent in manufacturing, selling or supplying a product without an adequate warning” and “was that negligence a substantial factor in causing plaintiff’s injury.” Unlike all other products liability warnings cases, a plaintiff seems to be held to…
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Bacon is the New Asbestos! Really?

So, this is a perfect example of the realities of this world and how state of the art can be distorted. The World Health Organization has indicated that processed foods, such as bacon, sausage and hot dogs are in the same category as smoking and asbestos in terms of their potential to cause cancer. The news reports that have come out in the last few days barely touch upon the science and medical aspects, yet here come the sound “bites” that processed food is deadly.…
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A Call for an Evidence Based Approach in Asbestos Lung Cancer Cases: Better Late Than Never?

My friend and colleague Laura Kingsley Hong recently authored an article entitled “Controversies Regarding The Role of Asbestos Exposure in the Causation of Lung Cancer: The Need for An Evidence Based Approach,” which appeared in Mealey’s Litigation Report. Ms. Hong’s commentary ties together current medicolegal concepts that are applied in virtually every scientifically-based litigation to longstanding but evolving scientific issues in asbestos litigation. While this is a debate that needs to happen, it raises the interesting question of why now and why not before? In…
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Legislative Reform for Timely Disclosure of Settlements: What Do You Think?

Much has been made about the injustice of plaintiffs being able to game the system by potentially seeking excess recovery through a combination of claims asserted against bankruptcy trusts and in civil litigation. This has led to bankruptcy transparency legislation at the state and federal level, because defendants in asbestos litigation were being denied a full and fair opportunity to assess a plaintiff’s claim of asbestos exposure and to identify all the companies, both viable and bankrupt, that are allegedly responsible.  The fundamental principles are…
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