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Parties engaged in multidistrict litigation (MDL) face a crucial decision: which case or cases should be tried first? For both plaintiffs and defendants, bellwethers — the first trial or trials from the similar cases making up the MDL — can determine how the rest of the cases proceed. One current headlining case — the prescription opioid MDL pending before Judge Polster in federal district court in Ohio — shows both how hard it is to select bellwethers and why bellwethers matter.…
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In many mass tort cases, and particularly in cases involving exposure to a substance with a long latency period, defendants and plaintiffs must rely on documents created decades ago. That’s challenging, of course, because many of these documents are hearsay and often there’s no one around with personal knowledge of their authenticity or contents. But there is hope for parties trying to admit these documents: they may be able to call on the ancient document hearsay exception.…
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Museum mineral series: Natural asbestos fibres.

On June 28, 2016, the Court of Appeals decided the following question: Does a manufacturer have a duty to warn about asbestos-containing parts made by someone else but used with its non-asbestos product? The Court answered, “Sometimes,” under a relatively narrow set of circumstances.

The plaintiff in Dummitt v. Crane Co., a Navy boiler technician from 1960-1977, alleged that he developed mesothelioma from exposure to asbestos insulation used with Crane Co.’s high-temperature steam valves. Crane Co. didn’t make the insulation, and its valves did not contain any asbestos. …
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Last week, the US Supreme Court ruled that an offer of judgment under Federal Rule of Civil Procedure 68 made to the lead plaintiff in a class action lawsuit, in addition to a separate free-standing settlement offer in the same amount, does not render the lawsuit moot.

In Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 WL 228345 (U.S. Jan. 20, 2016), Jose Gomez filed a class-action lawsuit seeking damages under the Telephone Consumer Protection Act as a result of unwanted text messages he and others received from Campbell-Ewald Company.  Before Gomez had filed his motion for class certification, Campbell made an offer of judgment to him under Federal Rule of Civil Procedure 68 which would have satisfied his personal claim entirely.  Gomez allowed this offer to lapse after 14 days, as specified by the rule.  Campbell then moved to dismiss the case, claiming that no controversy remained after its offer provided Gomez with complete relief.  Both the District Court and the Ninth Circuit Court of Appeals disagreed with Campbell.…
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Two partners from Schiff Hardin LLP’s Product Liability & Mass Torts Practice Group spoke about the future of mass tort litigation in the United States at the Lloyd’s Old Library in London on October 20, 2015.  Paul A. Scrudato and Edward Casmere discussed the state of mass tort litigation and its future with a group of London-based insurance professionals in the historic Old Library at Lloyds on Lime Street in London.  The topics included nanotechnology, pharmaceuticals and medical devices, e-cigarettes, wearable technology, and fracking.
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“The dose makes the poison” is a maxim of toxicology. The phrase is attributed to Paracelsus, a true Renaissance Man and founder of the field who lived more than 500 years ago, long before the industrial, chemical/pharmaceutical, and technological revolutions.   In today’s society, we are exposed to various chemical substances on a daily basis. Some of those chemicals may be harmless and some may be harmful. Many of the chemicals we experience have none of the so-called “onion properties” – – you could be exposed and never know it. A recent USA Today article highlighted a new wearable technology that can detect the various chemical substances encountered in daily life. The technology has the potential to change how we understand and control individual exposures to potentially harmful substances.…
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Less than 1% of the population suffers from the serious gluten allergy known as celiac disease. Yet every time this writer goes out to dinner at least one dining companion passes on bread and pasta, claiming a self-diagnosed “gluten sensitivity” that manifests as a collection of nondescript symptoms, the major one being “fatigue.” The odd thing is that our obsession with gluten – present in a staple food for millennia – has only recently become the bad actor in all sorts of physical and mental maladies in celiac-free individuals.…
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The difficulty of making a malignant mesothelioma diagnosis continues to stimulate discussion in the medical community. Last month, Dr. Aliya Husain from the Department of Pathology at the University of Chicago, and her colleague Qudsia Arif, published a short and direct article titled “Malignant Mesothelioma Diagnosis” in Archives of Pathology and Laboratory Medicine. The published context for the article states “mesothelioma is a relatively rare pleural tumor that may mimic benign mesothelial lesions and various other tumors . . . this makes the diagnosis challenging for the pathologist.” This blog has discussed some of those difficulties in prior posts here and here.…
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Exposure to potentially harmful substances at some level is a fact of modern life. These substances are everywhere — in the air we breathe, in the food we eat, and in the water we drink — and many of these substances are naturally occurring. It is impossible to have zero exposure to all of them.

For both science and law, however, the issue is not whether someone has some detectable exposure. Rather, it is whether the dose was sufficient (in quantity and duration) to cause harm.

In a regulatory setting, the question posed is what level of exposure creates an unreasonable risk of harm. In a lawsuit, however, the alleged harm has already occurred, usually in the form of a disease that has many possible causes. The question is causation.…
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The string of retractions of published peer-reviewed medical and scientific articles due concerns about fraud or suspected fraud continues. This week a major publisher of scientific and medical articles has confirmed that it is retracting 64 articles from 10 of its subscription journals based on concerns that the peer review process was “compromised.”

The publisher, Springer, issued this statement:…
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