Transparency Still Needed to Resolve Asbestos Claims on the Merits

Gordon & Rees Philadelphia partners William Shelley, Jacob Cohn, and Joseph Arnold recently wrote a follow-up article, “The Need for Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update – Judicial and Legislative Developments and Other Changes in the Landscape Since 2008,”  23 Widener L.J. 675 (2014).  The new article looks over the history of discovery of information arising from asbestos trust claims since their initial article in 2008.  Based on what has been uncovered in the last seven years, the authors explain the continuing need for complete disclosure of exposure and setoff information in asbestos cases, even though it would seem the issue should have been resolved.

In “The Need for Transparency Between the Tort System and Section 524(g) Asbestos Trusts,” 17 Norton J. of Bankr. L. & Practice 257 (2008), Shelley, Cohn, and Arnold described the need for increased transparency between the tort system and the asbestos bankruptcy system.  The 2008 article addressed how defendants in the tort system were facing increased claims and increased settlement demands following the bankruptcy of major players in the asbestos manufacturing business, even though the goal of bankruptcy was that trusts would be formed to continue to compensate claimants on behalf of these entities.  However, back in 2008 there were signs of manipulation of this system for financial gain, as illustrated by the case of Kananian v. Lorillard Tobacco Co.  In the Kananian case, the trial judge found persistent manipulation of evidence between civil cases and trust claims, which resulted in the revocation of pro hac vice privileges and findings of intentional and deceptive manipulation of the trust and discovery processes.  Based on this case, the authors urged for the implementation of procedures to ensure full discovery to avoid further such cases.

The 2014 trial findings by the Garlock court, seven years later, have shown that Shelley, Cohn, and Arnold were seeing the beginning, not the end, of this trend of manipulation.  Kananian was not an isolated instance.  After a three-month trial, Bankruptcy Judge George Hodges concluded that gasket manufacturer Garlock was resolving claims to avoid transaction costs, which were inflated by widespread concealment of facts by plaintiffs’ attorneys.  This concealment caused Garlock to resolve cases at settlement values far out of proportion to the connection, if any, between Garlock’s gaskets and disease causation.

Shelley et al.’s new article documents many other instances around the country in addition to the findings of the Garlock court, where evidence of similar practices have come to light.  Other trial judges have seen similar instances of concealment of evidence supporting bankruptcy claims in cases pending in their courtrooms.  See Peggy Abelman, “A Case Study from a Judicial Perspective: How Fairness & Integrity in Asbestos Tort Litigation Can Be Undermined by Lack of Access to Bankruptcy Trust Claims,” 88 Tul. L. Rev. 1185 (2014).

The article also outlines attempts by the trusts to block discovery by insurers, who have requested disclosure of information to ensure the hundreds of millions of dollars placed into trusts for asbestos claimants are actually paid to legitimate claimants.  Finally, the article outlines the failure of arguments by the trusts that their status as creations of the federal bankruptcy courts somehow shields them from the discovery process.

The fundamental premise laid down in Volkswagen of America v. Superior Court remains unchanged.  These claims, and all information that would support these claims, is discoverable.  Unfortunately, recent history has shown that asbestos plaintiffs have not disclosed this information fully and fairly.

Asbestos trusts pay billions of dollars each year in settlement of asbestos claimants.  When cases settle without full disclosure of facts, the legal system produces inconsistent results.  Cases are resolved based on avoidance of legal costs, rather than factual or legal liability.  The resolution of claims to avoid transaction costs out of proportion with actual fault violates the fundamental principle of our legal system that defendants should pay only when they are actually responsible.  Payments to avoid legal transaction costs do not serve the same goals as when claims are resolved to compensate for actual liability.

Unless we take these historical lessons to heart, allowing unchecked discovery abuse may lead to future bankruptcies of otherwise solvent companies.  The civil tort system should approximate the outcome the parties would reach in the absence of transaction costs; that is, payment only on a showing of actual liability, based on full disclosure.  The historical facts that caused exposures are known to plaintiffs and their lawyers, and all such facts should be part of required disclosures early in any asbestos case.  Further, there must be penalties for late disclosure.  Efficient and full discovery in the tort system of all sources of exposure is the only way to ensure that claims filed in the tort system reflect fair compensation, and preserve assets for future claimants.

New York High Court Affirms Municipal Fracking Bans

The New York Court of Appeals, in a landmark ruling, recently upheld bans imposed by municipalities on oil and gas production activities, including fracking, in their communities. On June 30, in Wallach v. Town of Dryden, the court affirmed a ruling by the Appellate Division, Third Department, allowing the towns of Middlefield and Dryden to forbid gas drilling within their borders. This decision came about despite the industry’s argument that only the state could regulate gas drilling.

According to the Court of Appeals, the Oil, Gas and Solution Mining Law (OGSML) did not preempt the towns’ zoning laws prohibiting oil and gas production activities or natural gas exploration. Because there was no legislative intent evidenced within OGSML’s plain language, overarching statutory structure, or legislative history, much less any “clear expression,” requiring preemption of local land use regulations, the court held that the towns acted within their “home rule authority.” New York courts have traditionally given deference to a local municipality’s zoning authority.

The Wallach court explained that the text of a statutory provision is the clearest indicator of legislative intent.  The language of OGSML’s supersession clause states that it “shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries.”  The court found that the clause did not preempt zoning ordinances that restrict or prohibit certain land uses within a town’s boundaries. Instead, the statute only preempts local laws that purport to regulate actual operations of oil and gas activities, which was not at issue here.

Further, the legislative history of OGSML did not evidence an intention to preempt the towns’ zoning laws. There was no mention of zoning or any intent to take away local land use powers. Instead, the legislative history was designed to prevent wasteful oil and gas practices by creating uniform statewide regulations.

Shale gas development using high-volume horizontal hydraulic fracturing, commonly referred to as hydrofracking, remains a controversial issue in New York as elsewhere. Fracking can allow for the extraction of enormous amounts of previously unavailable natural gas, but the practice has become subject to intense scrutiny by environmental advocates and upstate rural communities.

Hydrofracking involves drilling a vertical well thousands of feet into the ground to reach a shale rock formation. Once shale is found, the well is turned horizontally to stay within the formation and a high-pressure mixture of water, chemicals, and sand is injected into the wellbore. The procedure creates small cracks in the shale, “fractures,” which release trapped oil or natural gas.

Natural gas offers enormous benefits including the reduction of greenhouse gases, decreased reliance on foreign oil suppliers, and an economic boon to New York upstate communities. However, environmentalists continue to be concerned that fracking may contaminate groundwater and create air pollution. At the same time, some local communities fear that natural gas exploration will increase the burdens on municipal resources such as police and health care, and cause undesirable shifts in local economies and demographics. While some states have embraced fracking, Gov. Andrew Cuomo and many of his constituents have been hesitant to permit natural gas exploration.

There has been a moratorium on fracking in New York since 2008. While the Department of Environmental Conservation is creating a regulatory framework for hydrofracking in New York in the event the moratorium is lifted, the governor is anticipating the results of a long-awaited health study that the Department of Health commissioned in 2012.

On June 16, 2014, New York’s General Assembly passed a three-year moratorium on fracking to allow for more time to fully study environmental impacts. Full passage of the moratorium now depends on the New York State Senate and ultimately, Cuomo. Thus, even with the issuance of Wallach, affirming the rights of municipalities to prohibit fracking, this decision does not change the existing status quo in New York. The larger fate of hydrofracking in New York ultimately will be left in the hands of the executive and legislative branches of government, which must decide whether to allow New York to engage in natural gas exploration – at least where not prohibited by local zoning laws.

 

Alexana Gaspari is a law clerk in Gordon & Rees’s New York office.

Sophisticated User Defense Denied Again in California

Since the California Supreme Court recognized and applied the sophisticated user defense in Johnson v. American Standard, most other attempts to apply the defense have failed.

On July 1, a California Court of Appeal sitting in Sacramento declined to apply the sophisticated user defense despite evidence of likely knowledge on the part of the plaintiff-decedent.

In Collin v. CalPortland, the plaintiff-decedent claimed exposure to asbestos-containing cement pipe. The court described the evidence presented by defendants as to Loren Collin’s knowledge and sophistication thusly:

Here, J-MM and Formosa presented evidence that Loren worked in the construction trades beginning in 1954, and owned two construction businesses. Loren completed an apprenticeship in carpentry in 1963. He obtained a contractor’s license from the California Contractors’ State License Board in 1976. Loren received information from the contractors’ board beginning in 1976 that working with or around asbestos-containing materials could be hazardous to one’s health. During the 1976 to 1980 period, Loren saw notices specific to asbestos posted at jobsites.

However, the court found the sophisticated user defense inapplicable to defeat failure to warn claims as there was no evidence that Mr. Collin had specialized knowledge or training as to the particular products of the defendant.  It had not been shown that plaintiff knew the cement pipe in question contained asbestos, or that he had been provided training or documentation such as a material data safety sheet (MSDS) specific to the cement pipe. This distinguished the case from Johnson, said the Collin court, where there was an extensive record regarding the plaintiff’s specialized training and how he had received “and sometimes read” MSDS describing the hazards of the very chemical at issue.

The court did say that the standard remains an objective standard, rather than a subjective standard (so one looks at what Collin should have known, rather than what he actually knew), but it then held, “We cannot say from the evidence presented that the dangers of working with Transite were obvious at the time.”  Under Collin, it would not be obvious to someone who had been in the trades for 25 years, had owned and operated his own construction businesses, had been licensed by the state of California as a contractor, had been instructed about asbestos health hazards, and had seen notices posted at work sites about asbestos hazards, that working with asbestos-cement pipe (the common name for Transite) could be hazardous.  Perhaps in the next case, the moving defendants can succeed if they submit evidence that everyone in the trades knew that cement pipe frequently contained asbestos.

Another argument to be made, but not made in Collin, is that Mr. Collin and other employers are generally charged with maintaining a safe workplace for their employees. This includes the duty to be knowledgeable about the hazards in their workplace.  An employer who is legally obliged to be knowledgeable about workplace hazards, including asbestos, “should have known” about the hazards of asbestos-containing materials and which materials were, in fact, likely to contain asbestos.

Collin is, at least for now, an unpublished opinion.  Unpublished decisions cannot be cited to or by any California court.  They may nevertheless reflect current judicial thinking, like this decision, consistent with other recent decisions limiting the availability of the sophisticated user defense.  Further, unpublished California decisions are citable in most jurisdictions outside California.

Fallout From the Actos Verdict: Asbestos Plaintiffs Bar Seeks New Clients

The stunning $9 billion verdict in Louisiana this past April against Takeda and Eli Lilly for their manufacture and sale of Actos as a medication (Actos is a thiazolidinedione or TZD drug) for the treatment of diabetes has been well reported. Many plaintiffs firms have sought to capitalize on this result by advertising their services to prospective plaintiffs diagnosed with bladder cancer.  Published studies and the FDA have posited that prolonged use of Actos increases the risk of contracting this cancer. TV ads and proclamations of expertise abound on websites that are linked to “Actos” as a search term.

The lure to the plaintiffs bar must be compelling as the pool of prospective plaintiffs is large.  The American Cancer Society has reported that as many as 73,000 cases of bladder cancer were diagnosed in the United States in 2012.  The published five-year survival rate for bladder cancer, while good if the diagnosis is made early, is very dire if the disease is found late.

The economics of cancer research, and not just the litigation that follows the introduction of new therapies, is impressive.  An article in the June 3 San Francisco Chronicle describes the efforts of Genentech to pursue a new therapy for bladder cancer.  A new immuno-oncology treatment has shown promise and the article in the business section of the paper includes a prediction that cancer immunotherapies will be a $35 billion industry worldwide “in less than a decade.”

In the print version of this same paper, on page A10 in the opinion section, there is a large ad titled “Actos and Bladder Cancer” placed by Weitz & Luxenberg P.C. The ad proclaims, “The manufacturers and marketers of Actos have recently been found liable for Actos causing bladder cancer.”  It goes on to urge Actos users, “Even if you have not developed bladder cancer, it is in your best interest to contact us (through our website or phone) in order to receive helpful information updates in the future.”  While Weitz & Luxenberg are perhaps best known as asbestos litigation attorneys, it notes in the ad, “Weitz & Luxenberg are NATIONWIDE LEADERS in the Actos and Bladder Cancer field.”

Clearly, high stakes are involved in the development of cancer therapies, and just as clearly high stakes are involved in any potential subsequent litigation.  But if the entire worldwide market for immunotherapies over the next 10 years is predicted to be approximately $35 billion, one must wonder whether the prospect of facing a civil case verdict of as much as $9 billion might impact the decisions of companies such as Genentech in pursuing new therapies and ultimately how to price such therapies.

The Big Chill

Last month, the Environmental Protection Agency (EPA) issued final rules under the Clean Water Act Section 316(b).  The new rules impact existing[1] facilities that: (1) use cooling water intake structures designed to withdraw at least two million gallons of water per day from U.S. waters; (2) have or are required to have a National Pollutant Discharge Elimination System (NPDES) permit; and (3) use at least 25 percent of the water they withdraw exclusively for cooling purposes. Additionally, they showcase the EPA’s efforts to prevent aquatic life from being drawn or trapped by plant and factory equipment. According to EPA, the rules will likely apply to more than 1,000 facilities in sectors including electric generation plants, pulp and paper mills, chemical manufacturing plants, iron and steel manufacturing facilities, petroleum refineries, food processing plants, and aluminum manufacturing facilities. According to Nancy Stoner, EPA’s acting assistance administrator for water, “EPA is making it clear that if you have cooling water intakes you have to look at the impact on aquatic life in local waterways and take steps to minimize that impact.”

The requirements offer facilities a choice of seven technologies to prevent both fish entrainment (aquatic organisms being drawn into the facility) and impingement (aquatic organisms becoming trapped against an intake structure), which have all been in use for decades and are currently in place at more than 40 percent of the affected plants. Republicans and the power-generating sector believe the new rules will increase costs, raise electricity prices, and kill jobs. Sen. Jim Inhofe (R-Okla.) immediately criticized the rules and stated he would seek congressional action to overturn them. “The EPA has released another rule that threatens the affordability and reliability of America’s electricity,” Inhofe said.

The regulation disproportionately impacts power generation plants—of the approximately 1,065 facilities impacted, 544 of them are power generating plants. America’s nuclear infrastructure, consisting of 104 facilities and generating 20 percent of U.S. electricity, is particularly affected with its copious use of cooling water. The average commercial reactor in the U.S. is aged 33 years with the two oldest in service since 1969 and the last newly built reactor entering service in 1996. Although the rule allows facility owners or operators flexibility in fulfilling its “best technology available requirements,” there is an added requirement for biological studies and federal consultations as part of the permitting process—an aspect that will undoubtedly be costly, potentially unfeasible, and enough to give any energy provider an unwelcomed chill.

The new rule, effective sixty days after its publication in the Federal Register, will be implemented through the NPDES permit program. Environmental groups were hoping for more stringent requirements and will undoubtedly challenge the final rule.


[1] Previous Phase I rules, found at 40 C.F.R Subpart I, apply to new facilities. 66 Fed. Reg. 65256 (Dec. 18, 2001).

National Trends Driving Asbestos Litigation in 2013-2014 (3 of 3): Low-Dose Defendants Remain Targets

3.  Low-Dose Defendants Continue to Be “New” Target Defendants

A review of the defendants against whom plaintiffs’ attorneys are litigating and taking to verdict in 2013 demonstrates the ongoing trend of focusing on low-dose chrysotile defendants such as gasket friction-product and joint compound manufacturers. Most of the amphibole asbestos product defendants are no longer in the litigation, leaving an ever-creative plaintiffs’ bar to seek out additional sources of potential exposures from low-dose chrysotile products such as cosmetic talc, HVAC, and electrical products and distributors. Additionally, plaintiffs’ firms are spending millions of dollars to advertise on television and the Internet in search of individuals on whose behalf they can file mesothelioma claims. “Mesothelioma settlement,” “mesothelioma asbestos attorney,” “asbestos attorney” and “asbestos law firm” are the top four most expensive Google AdWords, commanding between $107 and $142 per click.

Given the media blitz, it is no wonder that almost all Americans diagnosed with mesothelioma will file lawsuits. Yet, it is estimated that 10-20 percent of all mesothelioma cases are caused by something other than asbestos. Causal factors under consideration include genetics, carbon nanotubes, taconite, ionizing radiation, talc, vermiculite contaminated with tremolite and erionite.

The best defense as to pursuit of “low dose” defendants remains battles over product ID and asbestos content issues. To that end, the Gordon & Rees defense team continues its efforts to carefully evaluate plaintiffs’ claims, investigate prior medical and exposure histories, retain and work closely with highly skilled experts in the medical and industrial hygiene fields, and file and win dispositive motions.

View part 1 and part 2 of this series.

Will the Exception Swallow the Rule? The Northern District of Illinois’ Take on the Bare Metal Defense

The bare metal defense has become a “go-to” defense for defendants involved in national asbestos litigation.  Predominantly asserted by manufacturers of industrial equipment, the defense provides that those defendants that manufactured products composed only of metal have no duty to warn of asbestos-containing components later installed by others post-sale.  It also rejects liability for “affixed” external materials – typically thermal insulation and flange gaskets manufactured by others – placed on the metal products by someone other than the defendant.

While the defense has been the subject of numerous cases, its application has not been uniform.  However, the decisions fall into three main categories:

(1) a defense-friendly category, holding that manufacturers have no duty to warn of asbestos-containing replacement parts supplied by a third party;

(2) a plaintiff-friendly category, holding that manufacturers have a duty to warn whenever it is foreseeable that asbestos-containing material may be used with their products; and

(3)  a “middle ground,” holding that manufacturers generally have no such duty, but do have a duty to warn when the use of asbestos-containing materials (a) was specified by a defendant, (b) was essential to the proper functioning of the defendant’s products, or (c)         was for “some reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.”

Recently, the Northern District of Illinois expressly adopted the middle ground. In Quirin v. Lorillard Tobacco Co., 2014 U.S. Dist. LEXIS 18744 (N.D. Ill. Feb. 14, 2014), the court ultimately denied Crane Co.’s summary judgment motion under an exception to the middle-ground approach, namely that the plaintiff was able to proffer evidence that Crane Co. specified the asbestos-containing replacement components or that the asbestos-containing components were necessary for the metal products to function.

Quirin arose out of the plaintiff’s alleged exposure to asbestos-containing Crane Co. valves during the plaintiff’s service in the U.S. Navy.  Although the valves themselves were composed of “bare metal,” they included an internal bonnet gasket and stem packing at the time of shipment that may have contained asbestos. In addition, Crane Co. sold asbestos-containing replacement gaskets, gasket material and packing.  Crane Co. moved for summary judgment, arguing that its valves were bare metal and, accordingly, Crane Co. had no duty to warn of asbestos-containing components manufactured by others and ultimately applied by the Navy, the end user of the product.

Quirin looked to other jurisdictions for guidance, expressly citing the California Supreme Court’s ruling in O’Neil v. Crane Co., 53 Cal. 4th 335 (2012), noting that “manufacturers are not required to investigate and warn of the potential risks of any other products that might be used with a Crane Co. product.  The duty attaches only when the manufacturer incorporated the asbestos-containing material into its product, meaning that asbestos would inevitably be introduced into the stream of commerce along with the product.”  The Quirin court, however, found that the O’Neil court “qualified its conclusion” and “left room for an exception to the rule” because the plaintiffs in O’Neil did not prove the equipment at issue needed asbestos to function.

Quirin relied on evidence that Crane Co. valves were used for high heat applications, that at least some of its valves needed asbestos-containing components to function properly, and that Crane Co. provided specifications for such use.  Taken together, the court concluded that a jury could find that Crane Co. had a legal duty to warn about the hazards of asbestos exposure from working with its valves.

On one hand, the fact that the Quirin court cited the O’Neil case with approval is encouraging for equipment defendants in Illinois.  However, the adoption of the middle-ground approach by the Northern District of Illinois is troubling. Practically speaking, there is minimal difference between the middle-ground approach and the plaintiff-oriented foreseeability approach, since the plaintiffs will merely proffer expert testimony to prove the “bare metal” product at issue was used for hot applications and “needed asbestos” to function properly.  As presently interpreted by the Northern District, then, defendants need to be particularly aware of the bare metal defense’s limitations; it does not provide a complete bar for bare metal defendants, even those that never manufactured asbestos-containing products or provided asbestos-containing components with their products.

Fortunately, however, development of the bare metal defense is still in its infancy in Illinois.  Indeed, there has yet to be a definitive ruling rendered by an Illinois appellate court on the issue.  In fact, just before the ruling in Quirin, the Asbestos MDL remanded an asbestos lawsuit to the Southern District of Illinois to determine whether the state even recognized the bare metal defense.  For now, equipment defendants in federal court in Illinois are well advised to argue the policy and rationale of O’Neil and push at the state and federal level for a bright-line rule of nonliability for other parties’ products.

California Declares Duty in “Take-Home” Exposure Cases

In Kesner v. Pneumo Abex LLC, decided May 15, 2014, the California Court of Appeal found a duty to protect against “take-home” exposure. The decision extends this duty beyond immediate family members, and is in apparent conflict with an earlier decision, Campbell v. Ford Motor Co., which ruled against any “take-home” duty. At the same time, Kesner’s effect may be limited by such factors as the decision’s attempts to distinguish Campbell and the particular procedural posture of the case.

Johnny Blaine Kesner is the nephew of an employee of a brake lining manufacturer. He claimed asbestos exposure due to intermittent visits, some long-term, with his uncle, and alleged that his uncle brought asbestos dust home. The trial court, based on Campbell, granted the manufacturer’s motion for nonsuit. The Court of Appeal reversed, because the complaint alleged the manufacturer was aware of asbestos hazards and “that Kesner’s contact with his uncle was extensive. As to such persons, the foreseeability of harm is substantial.”  Under “the standard for reviewing the sufficiency of the allegations of the complaint” on nonsuit, that was enough to send the case back for trial.

The Kesner decision may come as a surprise given the 2012 decision in Campbell, which held that a premises owner owed no duty to the family members of employees of independent contractors who worked at the premises. In Campbell, the plaintiff asserted her brother and father, insulators at the premises, had brought asbestos dust home on their clothes. She claimed she developed mesothelioma from handling and laundering these work clothes.  Campbell found no duty. (Interestingly, the decision was modified after first issued specifically to clarify that Ford was a premises owner and not the employer.)

Kesner recognized several limits to the scope of its ruling. One was “that the existence of the duty is not the same as a finding of negligence.” Another was that where “contact with an employer’s worker is only casual or incidental, the foreseeability of harm and the closeness of the connection between the defendant’s conduct and the plaintiff’s injury may be so minimal” as to find that no duty exists.

Kesner did “not question the conclusion in Campbell” and distinguished between “Ford’s passive involvement as owner of a plant in which an independent contractor was installing asbestos insulation” and the facts of Kesner, which involved a negligence claim against a “manufacturer of asbestos-containing brake linings.” Nevertheless, the apparent conflict between Kesner and Campbell suggests possible California Supreme Court review.

If the Kesner decision is not reversed or depublished, it is potentially problematic for defendants — even outside the asbestos arena. Kesner generalizes its holding from asbestos exposure to all “toxins” generally: “It may be true . . . that asbestos is already the subject of strict regulation under both federal and California law [and that liability will not likely] do anything to prevent future asbestos-related injuries. Yet, asbestos is not the only toxin to which an employer’s obligations apply. A rule of law that holds an employer responsible to avoid injury to nonemployees who may foreseeably be harmed by exposure to toxins disseminated in its manufacturing process can be expected to prevent harm to others in the future.”

Full disclosure: Don Willenburg, leader of Gordon & Rees’s Appellate Practice Group, filed an amicus brief supporting the defense position on behalf of the Association of Defense Counsel of Northern California and Nevada.

National Trends Driving Asbestos Litigation in 2013-2014 (2 of 3): Decrease in Non-Impairment Filings

Increase in Lung Cancer Filings

As plaintiffs’ firms approach a “max out” point on potential mesothelioma lawsuits and judicial reforms limit the filing of non-impaired asbestotic cases, there is a growing national trend toward filing more lung cancer claims.

Unlike the relatively limited number of people diagnosed annually with mesothelioma (estimated at 2,500 to 9,300 cases over the next 20-plus years), about 226,160 Americans are diagnosed with lung cancer each year. According to the Centers for Disease Control and Prevention (CDC), approximately 85 percent of lung cancers are smoking-related. However, plaintiffs’ attorneys have experts willing to testify that exposure to asbestos is a substantial contributing factor to the development of lung cancer (some even suggest a “synergistic effect”).

Also, the bankruptcy trusts pay significant amounts for lung cancer claims and have a low standard for the definition  of a “non-smoker” such that a claimant with a significant, but remote smoking history is characterized as a “non-smoker” and can receive a higher payment than a current smoker. This provides an incentive to seek out and file claims for people diagnosed with lung cancer who also allegedly worked with or around asbestos or just lived with someone with a history of asbestos exposure.

“Asbestos-related” lung cancer claims can involve significant damages and settlement value especially in “plaintiff-friendly” jurisdictions with favorable jury pools. Moreover, the majority of mesothelioma cases have been captured in the marketplace by top tier plaintiffs’ firms that spend significant amounts on marketing or referral fees. This leaves many of the other plaintiffs’ firms to pursue the lung cancer cases. Accordingly, there has been a noticeable increase in lung cancer filings nationally, especially in more active jurisdictions. For example, in 2012, lung cancer claims for the first time exceeded mesothelioma claims in Madison County, Illinois.  Additionally, according to the U.S. Chamber Institute for Legal Reform, the number of pending lung cancer cases in New York City has nearly tripled over the past four years.

This trend has been noticed and criticized in the context of New York Congresswoman Carolyn McCarthy’s lung cancer lawsuit. In high-profile editorial pieces in Forbes magazine.

McCarthy’s heavy smoking history (over 40 years) is juxtaposed against her claim of take-home exposure to asbestos from her father and brothers who worked on Navy ships and in utilities. The articles detail how New York plaintiffs’ asbestos firms use “a time-honored strategy of bundling weak and strong cases together leveraging larger overall settlements than if the cases were presented separately.” It remains to be seen if this criticism will slow the wave of lung cancer filings.

EPA’s Step Toward Mandating Disclosure of Chemicals Used for Fracking

On May 9, 2014, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking seeking public comment on the “types of chemical information that could be reported and disclosed under the Toxic Substances Control Act and the approaches to obtaining this information for chemicals used in hydraulic fracturing activities.”

EPA also is requesting input on “incentives and recognition programs that could support the development and use of safer chemicals in hydraulic fracturing” – also known as fracking.

EPA anticipates that the notice, which will include the due date for public comments, will publish in the Federal Register by the week of May 19.  The comment period closes 90 days after publication in the Federal Register on August 17, 2014.