New York’s Appellate Division, First Department, issued its decision yesterday on the New York City Asbestos Litigation (NYCAL) punitive damages/Case Management Order (CMO) issue. While the Appellate Court held that Judge Heitler had the authority to modify the CMO to lift the deferral on punitive damages, it also found that she exceeded that authority to the extent that the order directs applications for a jury charge on punitive damages to be made at the conclusion of the evidentiary phase of trial. As a result, the long-term viability of punitive damages in NYCAL cases is back in question. Continue Reading NYCAL Punitive Damages in Limbo

“Law lags science; it does not lead it.” Our legal system requires proof, and in many cases, only scientific evidence can provide it. With controversies swirling around about fraud and misconduct in scientific publications, how do product liability lawyers distinguish between credible scientific evidence and science that is, as Justice Scalia would say, “junky”?  Here are three ways to spot junk science before it trashes your case: Continue Reading Three Ways to Spot Junk Science

Warning: That scientific article you just read may be completely bogus. Scientific articles can be retracted for numerous reasons – errors in data, errors in calculation, plagiarism, duplication of publication, and fraud or suspected fraud. An unmistakable trend in the increase of retractions due to one of those categories has emerged, and it is disturbing. A 2012 Proceedings of the National Academy of Sciences (PNAS) article, “Misconduct accounts for the majority of retracted scientific publications,” found that the percentage of scientific articles retracted because of fraud has increased dramatically in the last 40 years.   Continue Reading Scientific Articles and The Retraction Epidemic

Noting that the result is preliminary and must be evaluated in clinical trials, Australian researchers working with the Asbestos Disease Research Institute published a case report announcing significant improvement for a pleural mesothelioma patient treated with microRNA therapy.  The results were reported in the American Journal of Respiratory and Critical Care Medicine. Continue Reading MicroRNA Therapy Delivers Positive Result in Early Mesothelioma Treatment Test

Recent reports purport to link certain chemicals used in nail salon products to serious health problems such as cancer, asthma, respiratory disease, and miscarriages.  Though past efforts to impose stricter regulations on these chemicals have been largely unsuccessful, a recent slew of New York Times articles have drawn significant attention to the issue.  In response, New York Governor Andrew Cuomo issued a number of emergency regulations to protect salon workers, and New York City mayor Bill de Blasio has announced his own efforts to address the issue.  These responses could indicate a willingness on the part of lawmakers to revisit the laws regulating the cosmetics industry. Continue Reading Scrutiny of Nail Salon Chemicals Raises Mass Tort Risk

The Ninth Circuit’s recent decision in Allen v. The Boeing Company may pave the way for removal of more mass tort claims to federal court. Allen held that an environmental mass tort occurring over many years is removable under the Class Action Fairness Act (CAFA), finding the “local single event” rule did not apply. Continue Reading Ninth Circuit Opens the Door to a Federal Forum for Environmental Mass Torts

Pennsylvania employers are raising arguments that may circumvent the effect of the Pennsylvania Supreme Court’s decision stripping them of the protections of the Pennsylvania Workers’ Compensation Act (WCA) for latent occupational diseases.  In the November 2013 decision in Tooey v. AK Steel Corp. (see the related post here), the Pennsylvania Supreme Court allowed former employees with occupational diseases, like mesothelioma, to sue their employers directly for diseases that manifest more than 300 weeks after employment ends.  In the wake of Tooey, employers have focused on the Pennsylvania Occupational Disease Act (ODA) arguing that it still provides administrative remedies that must be exhausted before a former employee can sue for a latent occupational disease. Continue Reading PA Employers Craft Arguments To Navigate Around Tooey

On Friday afternoon, a jury in the Northern District of Illinois returned a verdict for defendants Owens-Illinois, Inc. and ExxonMobil, rejecting plaintiff Charles Krik’s claim that his lung cancer developed as a result of a “synergistic effect” between his alleged asbestos exposure and his cigarette smoking. The jury found, as argued by the defendants, that the sole proximate cause of plaintiff’s lung cancer was cigarette smoking. The jury’s finding on sole proximate cause made it unnecessary to reach the questions of whether the defendants were negligent or whether Mr. Krik was contributorily negligent. It was also unnecessary for the jury to reach Owens-Illinois’s government contractor and maritime defenses, in light of the defense verdict on causation.

Continue Reading Defense Wins Jury Verdict in Alleged Asbestos-Related Lung Cancer Case in Chicago

On Tuesday, a Los Angeles jury found that Colgate-Palmolive Company’s Cashmere Bouquet talcum powder caused plaintiff Judith Winkel’s mesothelioma. The jury awarded Mr. and Mrs. Winkel $13 million in damages, finding for plaintiffs on design defect, manufacturing defect, failure to warn, and negligence liability theories. Following the verdict, the parties reached a settlement before the trial’s punitive damages phase began. Continue Reading Colgate-Palmolive Company Smacked with $13M Talc Verdict

“The times they are a-changin” wrote Bob Dylan in 1964. Is New York City – recently dubbed by the American Tort Reform Association the Number 1 “Judicial Hellhole” in large part because of its pro-plaintiff bent in asbestos litigation – “a-changin” too? First, Assembly Speaker Sheldon Silver was indicted for various allegedly bad judgments in connection with using state money to secure asbestos referrals and whopping settlement fees. Next, the judge that supervised the New York City Asbestos Litigation (NYCAL) for almost a decade is out and a new judge takes over. And then this week, Judge Barbara Jaffe issued a potentially game-changing opinion in the NYCAL, striking an $11 million plaintiff’s verdict in a mesothelioma case. Continue Reading NY Judge Tosses Plaintiff’s Asbestos Causation Opinion