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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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.
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“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.
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Most recent news items about mesothelioma focus on asbestos litigation and lawyer advertising for clients to file cases, bankruptcy trust claims, or both.  A recent news story, however, focuses on a potential treatment option for patients with mesothelioma.  The U.S. Food and Drug Administration (FDA) recently granted a drug in development to treat malignant pleural mesothelioma “orphan drug” designation.  The FDA’s Office of Orphan Products Development grants “orphan drug” designation to some new drugs that may be effective at treating diseases that affect fewer than 200,000 Americans.  Orphan drug status provides incentives to companies to develop drugs that might otherwise be unprofitable, and a company can use the exclusivity to develop drugs that anyone else might develop but do not have a large affected population.  The FDA’s designation gives drug creators grant funding, tax credits for certain research, a waiver of the Biologics License Application user fee, and the potential for marketing exclusivity in the United States for seven years. 
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The Los Angeles County Superior Court denied a request to apply Iranian law in an asbestos wrongful death action in August, 2014.  We have previously discussed that decision on this blog and explained that the court was concerned that the application of Iranian law would not be permissible because mullahs administer the law, and Shi’ite Islamic law may be used to decide the case. The court invited appellate review of thedecision, acknowledging that the question of whether to apply Iranian law is a controlling question of law as to which there are substantial grounds for difference of opinion. Recently, five California law professors wrote an amici curie letter brief to the Second District Court of Appeal arguing the Superior Court failed to conduct the appropriate choice of law inquiry.

Professors Eugene Volokh of UCLA, Alan Brownstein of UC Davis, Michael Helfand of Pepperdine University, Clyde Spillenger of UCLA and Jonathan Varat of UCLA, urged the Appellate Court to take one of the following two steps: either conduct the choice of law inquiry without categorically rejecting the possibility of applying Iranian law, or issue a writ of mandate, disapproving of the Superior Court’s categorical rejection of Iranian law and requiring the Superior Court to conduct the conventional California choice of law inquiry.
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Wisconsin has taken steps to force asbestos litigation plaintiffs to be more transparent and disclose claims to asbestos bankruptcy trusts.  The mandated disclosures address the concerns raised in recent years by asbestos litigation defendants about the lack of transparency and possible gaming of tort and bankruptcy systems.

Litigation involving claims of injury due to exposure to asbestos has been ongoing in earnest since the late 1970s in the United States.  Since that time, nearly 100 companies have filed for bankruptcy protection due in whole, or in part, to asbestos litigation-related liabilities.  U.S. Gov’t Accountability Office, GAO-11-819, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts (2011).  More than sixty such companies have created trusts pursuant to Section 524(g) of the Bankruptcy Code.

These asbestos bankruptcy trusts collectively hold over  $18 billion in fund assets and have already distributed over $15 billion since they were first created. 


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California courts have, for years, wrestled with the standard for product identification in asbestos cases.  While courts have allowed plaintiffs’ claims to survive summary judgment based on inferences of exposure to a defendant’s product, the inferences favorable to the plaintiff must be more reasonable and probable than the inferences against him or her.  Drawing a distinction between a mere possibility of exposure and a probability that may create a triable issue of fact is not always an easy task.
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