“A New Jersey couple, whose son was struck in the chest with a line drive, is planning to sue the maker of a metal baseball bat used in the game.” The family of Steven Domalewski “contends metal baseball bats are inherently unsafe for youth games because the ball comes off them much faster than from wooden bats. The lawsuit will also be filed against Little League Baseball and a sporting goods chain that sold the bat.” (AP/FoxNews.com, May 18). Earlier: Apr. 19 and Dec. 30, 2002.

Asbestos litigation continued to grow during the 1980s: by 1992, fully 100,000 claims had been resolved, but another 100,000, yet unresolved, had been filed.

A novel means of processing asbestos claims was initiated in 1988, when the Johns-Manville corporation emerged from bankruptcy and established the Manville Personal Injury Settlement Trust, the first “bankruptcy trust” set up to pay out money to asbestos claimants. Unfortunately, plaintiffs’ attorneys controlled the trust’s claimants committee and set up procedures for the trust that were advantageous to themselves, rather than potential claimants. The trust rules minimized requirements of proof of actual injury or causation (exposure to Johns-Manville products). The trust thus paid out a lot of money quickly to the attorneys, all the while exhausting its funds for potential future claimants.

In just its first nine months of operation, the trust paid out some $500 million to 12,600 claimants — and by the end of 1989, 89,000 more claimants were outstanding. Eventually, the trust had to sharply curtail payments to claimants — to 10 percent in 1995, and 5 percent in 2001. Injured claimants were literally getting a nickel on the dollar. “As of June 30, 2006, the trust had received more than 773,000 claims and paid out about $3.4 billion–just $4,400 per claimant.”

Yesterday, I had the privilege to do a brief interview with Lester Brickman, a professor of law at Cardozo School of Law in New York. Professor Brickman is one of the nation’s leading legal ethicists and the national adacemic expert on asbestos litigation. The discussion is available as a podcast, downloadable here.

I’m happy to see that my initial post — which doesn’t really include any details of yet — has already begun to spark debate in the comments. I have thoughts on the views expressed, but I’ll begin with some background. This information might be old hat to those familiar with the asbestos mess, but it’s essential for those with little knowledge. This summary largely follows the account from the introduction to our Trial Lawyers, Inc.: Asbestos report.

Asbestos manufacturing in the United States was ubiquitous. At one point, asbestos-related industries employed as many as 2.5 million Americans. Asbestos commercial mining began in the U.S. in 1874, and after the Johns-Manville corporation was founded in 1890 with a patent for a process that blended short asbestos fibers with magnesia, asbestos manufacturing exploded: “asbestos consumption went from only 956 metric tons in 1890 to a peak of 803,000 tons in 1973.”

While asbestos ultimately proved deadly, it was originally thought to be a “magic mineral,” as it was dubbed at the 1939 World’s Fair. The word asbestos itself is derived from the Greek for “indestructible,” and the product is an incomparable flame retardant: it insulated generations of schoolchildren from fire and indeed fireproofed our World War II Pacific fleet.

But asbestos has also long been known to be dangerous when inhaled–as far back, perhaps, as the days of Pliny the Elder. In the early 20th century, asbestos was deemed as dangerous as lead and mercury (two products that have themselves spawned much litigation). In 1918, the U.S. Department of Labor declared that there was an “urgent need for more qualified extensive investigation” into the harms of asbestos, and in 1938, the U.S. Public Health Service issued a “good-practice” guideline for Threshold Limit Values of asbestos exposure.

Thus, asbestos was known publicly to be dangerous when virtually everyone suffering from asbestos-related illness was exposed. The extent of the danger, however, was not known definitively until 1964, when a seminal study by Mount Sinai Hospital’s Irving Selikoff established a definitive link between asbestos exposure and lung cancers and asbestosis.

Subsequently, evidence indicated that asbestos manufacturing companies knew more about asbestos’ dangers than they originally let on, and indeed in some cases hid that information from the public. Still, as my colleague Peter Huber pointed out in his review of Paul Brodeur’s Outrageous Misconduct, a much-cited book that harshly criticizes the asbestos industry, the asbestos companies’ early knowledge about asbestosis–asbestos-related lung injury that is rarely fatal, and was generally known–should not be confused with knowledge of the deadly lung cancer mesothelioma, which was exposed by the Selikoff study: “In his account of who knew what when–the core of his cover-up theory–Brodeur systematically obscures the difference between asbestos-related cancer and asbestosis, usually a much less serious disease, and understood and discussed in the Manville boardrooms much earlier.”

In any event, the original asbestos manufacturers like Johns-Manville have long been bankrupt due to litigation exposure. (Johns-Manville, ranked 181 on the Fortune 500 with over $2.2 billion in sales, declared bankrupcty in 1982 due to its looming caseload of 16,500 cases, and projections of up to 200,000 in the future.) The story of how that litigation evolved will be the subject of my next post.

I can’t say how excited I am to be here as a guest at overlawyered — the first legal blog still in existence! I’ll never be the indefatigable blogger that is my colleague Walter, or my friend and fellow legal reformer Ted, but I jumped at the opportunity to come over here to Mr. Olson’s “other” blog (he and Ted are also the mainstays of the Manhattan Institute’s PointofLaw.com, to which I occasionally contribute).

Overlawyered’s long-time readers have doubtless read a lot about asbestos. And we’ve covered asbestos litigation very extensively over at Point of Law. But there’s a lot of new material in the Manhattan Institute’s just-released Trial Lawyers, Inc.: Asbestos, as well as a lot of background for those new to the subject. Over the next week, I’ll be going through both.

I’d urge anyone interested to read the entire report, available here. Those who want a quicker review of some of the newer material should read my column in the Washington Examiner, which ran yesterday. And there’s a good overview of my thoughts in an on-line interview available here.

I’ll be back shortly to begin my walk-through of the report, looking at the underpinnings of the trial lawyers’ big asbestos machine.

Philadelphia federal district court judge Harvey Bartle III has awarded $567.67 million in fees to plaintiff’s lawyers in the gigantic fen-phen litigation, which has lasted nine years. Judge Bartel accepted 70 firms’ claim to have spent 578,048 hours on the suit (Alison Frankel, American Lawyer, Apr. 10). Ted, at Point of Law, notes that the sum does not include large contingent fees obtained on behalf of claimants who opted out of the group settlement.

The Republican candidate sticks his foot in it in a major way on a topic extensively covered here over the years (as well as at my other site). Writes Mark Kleiman: “the thimerosal-autism theory is as dead as phlogiston in respectable company. I’m not surprised that ‘respectable company’ excludes a few ambulance-chasing lawyers looking for deep pockets and a some emotionally devastated parents looking for someone to blame. But it’s distressing — to use no stronger term — that the presumptive Republican nominee for President, rather than looking at the evidence, has chosen to side with the panic-spreaders and pander to the emotions of the panic victims.” More: Orac.

Great moments in $800-an-hour-or-thereabouts lawyering: “As it turns out, a lawyer at Pepper Hamilton, one of two high-priced law firms negotiating the deal [for drugmaker Eli Lilly] with the government [over allegedly improper marketing of Zyprexa], mistakenly sent an e-mail containing a comprehensive and confidential document to a reporter at The New York Times. How could that have happened? The reporter, Alex Berenson, has the same last name as another lawyer who was supposed to have received the e-mail, Bradford Berenson, who works at Sidley Austin.” (Pharmalot, Feb. 5). Ted also has a (more serious) take at Point of Law on the problems with federal criminal enforcement of drug marketing laws.

But note correction Thurs. 12:30 EST: in updates, Beck/Herrmann and Pharmalot say that Portfolio mag, which originally reported this story, got aspects of it wrong: the email was a short one, not a comprehensive document, and reporter Berenson had other sources of information. Pepper Hamilton has been flogged up one side of the legal blogosphere and down the other for the slip, but Beck/Herrmann says that isn’t fair: the misdirected email doesn’t appear to have made much difference. Yet more: Ambrogi, Feb. 11 (initial report maybe not so wrong after all).

The New York Times arts page (Edward Wyatt, “ABC Drama Takes on Science and Parents”, Jan. 23) gives the producers of the forthcoming ABC television series “Eli Stone” a surprisingly sound thwacking for lending credibility to theories that seek to blame autism on the vaccine preservative thimerosal. The script of the show, notes the Times, “takes several liberties that could leave viewers believing that the debate over thimerosal — which in the program’s script is given the fictional name mercuritol — is far from scientifically settled.” But, the review notes, “reams of scientific studies by the leading American health authorities have failed to establish a causal link between the preservative and autism. Since the preservative was largely removed from childhood vaccines in 2001, autism rates have not declined.”

Greg Berlanti, a creator of the series, tells the Times that the show presents both sides. If so, there is little doubt which side is presented as the “right” one. The title character of the TV show is supposed to have been a “bad” lawyer (he represented big businesses, you see) who after being struck by a spiritual crisis crossed over to redeem himself by representing the “little guy” in lawsuits. (Per the Times, “In each episode Eli Stone takes on a different cause; in other episodes sent to television reviewers for preview, he wages court battles against a pesticide maker and a priest.”) The ABC preview site, and trailer running in theaters, end with a logo in which the “o” in the character’s surname is presented as a halo. Nothing heavy-handed about that!

Maybe next season Stone can sue on behalf of a client claiming that overhead power line emissions triggered recovered memories of autoimmune damage from her breast implants.

P.S. Orac at Respectful Insolence, no surprise, is on the warpath: “It’s times like these that I wish the Hollywood writers’ strike had really and truly shut down production of new dramas completely.” Other reactions: Autism Vox, Richard’s Asperger’s Blog, and various others rounded up by Liz Ditz.

That’s the title of a post by Ed Silverman over at Pharalot. The issue is the use if atypical antipsychotics in children:

Florida Medicaid records show the number of children - some just months old - who were prescribed the drugs went from 9,364 seven years ago to 18,137 in 2006. No records for privately insured patients are available.

As I mentioned earlier this week, putting the blame on the pharmaceutical industry is an oversimplistic reaction to how psychiatry, psychology,and our culture have transformed childhood into a diagnostic checklist. As mentioned in Ed’s post, the litigation in Florida appears to be the recommendation by agencies receiving Medicaid funds to use these drugs in children with ADHD who also had tics. While none of the atypical antipsychotics, to my knowledge, are FDA approved for this condition, it is common knowledge among mental health professionals that the most effective treatment for tics are dopaminergic antagonists such as atypical antipsychotics. True, the recent National Institute of Health’s CATIE study demonstrated that most of the atypicals were no better than the older ones. But that doesn’t mean that the newer atypicals aren’t effective or an appropriate treatment. Perhaps, our current social construction of adolescence is partly to blame for the boom in mental health diagnosis in our children.

Ted reacts at Point of Law to word of the announced $4.8 billion deal. Here are some other early reactions and reports: Parloff, Carlile @ BLT (view from negotiation room), Richard Nagareda, Zipursky/Pharmalot, Byron Stier (thinks the system worked as it’s supposed to), settlement site, trial scoreboard @ OnPoint News, Tim Worstall. More: Beck & Herrmann.

Robert Berry at RetroCrush reminisces:

See, when I was a kid, our toys were dangerous because of misuse. …Now that China’s trying to implement a worldwide population control by dunking everything in some sort of evil death juice, it appears that these old school “deadly” delights are probably the safer option after all.

Actually, I well remember lead toy soldiers, whose composition was exactly what the name implies; because lead is a soft metal, one way you could play with them was by applying pressure with your fingers to alter their shape a bit this way or that. Pratie Place, a while back, mourned the demise of such amusements as early-design Fisher-Price “little people” and Parker Brothers’ spring-load token game, “Booby Trap” — though a redesigned version of the latter is back, per Tom McMahon.

For a while now, lawyers in Minnesota, Oklahoma and elsewhere have been suing companies that make over-the-counter cold remedies containing ephedrine and pseudoephedrine on the grounds that they were aware some buyers were using the drugs as raw material for illegal methamphetamine labs. Now such litigation appears to be gaining momentum in Arkansas, where many county governments have signed up to sue Johnson & Johnson, Pfizer, and other companies. “If successful, it could open up litigation against manufacturers of other produce used in making meth, such as drain cleaners and acetone.” (E. Alan Long, “Williams updates JPs on methamphetamine litigation”, Carroll County News, May 29; and see this, on anhydrous ammonia). As of last month, twenty-two counties had enlisted in the litigation, which seeks to recoup, among other things, money spent on the processing of criminal methamphetamine cases. “What more could we have done with a million dollars a year for our county? Would that have meant a half dozen more police officers? Would that have meant a better solid waste program? Who knows, what could your county have done with an extra million dollars,” asked Judge Bill Hicks of Independence County, a backer of the suits. (”Special Report: Meth Related Lawsuit Filed Against Pharmaceutical Companies”, KAIT, Aug. 1; Pharmalot via Childs)(& welcome Megan McArdle readers).

600,000 Barbie-doll accessories are being recalled in the latest China lead-toy scare; last month veteran product liability authority/defense lawyer Victor Schwartz offered some advice for the beleaguered toymaker (WSJ Law Blog, Aug. 14; “Mattel Announces New Toy Recall”, WTOC-TV, Sept. 5).

Hoover Institution’s Henry I. Miller:

Moreover, because Prop 65 is enforced entirely through litigation, it has created a system of legalized extortion. To initiate a lawsuit, a plaintiff need only show that a listed chemical is present in a consumer product and that the defendant business “knowingly” exposes Californians to that product without posting the warnings. Prior to filing the suit, the plaintiff must send the defendant a notice describing the exposure; 60 days thereafter, the plaintiff may sue. That notice may be the first inkling a retailer has that his products are exposing consumers to listed chemicals.

The latest chemical to run afoul of Prop 65 is di-isodecyl phthalate, or DIDP, an important and extremely useful additive used to soften hard vinyl plastic and found in dozens of common items, including shower curtains. It is also used to insulate the wires in the walls of homes across America. Safely used for more than 50 years, it is one of the most thoroughly tested products in the world and has been closely examined by numerous regulatory agencies throughout the United States and Europe. Through all that evaluation, no credible scientific review has found DIDP to be dangerous in normal use.

However, those favorable conclusions didn’t faze regulators at California’s Office of Environmental Health Hazard Assessment (OEHHA), who recently decided that DIDP may pose a risk of developmental harm in humans and, therefore, should be listed under Prop 65.

But the mere presence of something does not imply that it’s dangerous; one needs to know the dose, length of exposure, how the body disposes of it, and so forth. Prop 65 standards only look at the potential for risk as criteria for listing. Using that logic, since people regularly suffocate from a chunk of meat blocking their windpipe, maybe steaks should be listed too. (One hates to give the regulators ideas, however.)

No doubt: someone was negligent in the collapse of the Big Dig tunnel in Boston that killed one. The Latin phrase res ipsa loquitur comes to mind.

But it’s hard to understand why Massachusetts officials are going after Powers Fasteners, Inc.

Powers received an order for standard-set epoxy to be used in the tunnel ceiling, and sold $1287 worth. The construction company then used a different, fast-set, epoxy that was not designed for such long-term use. As a result, ceiling panels fell, crushing a car and killing one person. But Massachusetts is indicting Powers. Given that the penalty is a $1000 fine, the only purpose of this use of taxpayer dollars is to carry water for trial lawyers—or, perhaps, to help spread blame in the eventual suit against the Massachusetts Turnpike Authority by having a criminal conviction in hand. (Pam Belluck, “Glue Maker for Big Dig Is Charged in ’06 Death”, New York Times, Aug. 9).

As Bill Childs notes, attorneys predict a “big” settlement. Press coverage already indicates typical attorney 20/20 hindsight:

For instance, documents show that Big Dig managers at Bechtel/ Parsons Brinckerhoff and designers from Gannett Fleming cut by half the number of bolts they originally planned to use to hold up the ceiling, while significantly increasing the ceiling’s weight by making it out of concrete. These moves made the ceiling cheaper, the lawyers said, but less safe.

This, of course, is the wrong question. It sounds suspiciously like the use of a single document taken out of context of a normal design-planning process. (Is strict liability plus punitive damages to be imposed every time a design firm doesn’t adopt the most stringent and expensive design it considers?) The correct question is whether the actual design, implemented correctly, would have safely stayed up. If so, the design team didn’t act negligently if the failure was because of faulty installation; it is a question of mathematics that should be resolved in one direction or the other on summary judgment, as there should be no duty to design a large margin of error against a construction crew using the wrong epoxy.

The many warnings on a curling iron. (DrugNazi, Jul. 7)(more on warning labels).

A study commissioned by the National Council for Community Behavioral Healthcare and Eli Lilly and Company found that “even when patients were responding well to their prescribed antipsychotic treatment, many requested a medication change because these drugs are featured in law firm advertisements. Other patients stopped taking their medication, often without telling their psychiatrist, for the same reason.”

“Many of our patients already struggle with accepting their illness and staying on their prescribed treatment, and now they are experiencing new levels of fear due to the increasing incidence of these jarring advertisements,” said Dr. Ralph Aquila, assistant clinical professor of psychiatry, Columbia College of Physicians and Surgeons; director, residential community services, St Luke’s-Roosevelt Hospital Center, New York, NY. “This irresponsible advertising is hindering the progress of therapy for many of these patients and disrupting the important relationship between them and their healthcare providers. Plaintiffs attorneys need to consider the consequences that these advertisements may have on patients.”

Twenty-six percent of relapses led to suicide attempts. “Thirty-one percent [of psychiatrists] found patient resistance to starting medication due to concerns generated by law firm advertisements challenging, while 28% are concerned about malpractice risk if they prescribe a drug that’s the focus of product liability litigation.” (Cross-posted from Point of Law)