Emerging Litigation Podcast
Under Pressure: Courts and Lawyers Trying to Deal With It with Diana Manning
The pressure on trial lawyers, judges, plaintiffs, defendants, and court systems is only increasing. The backlog of cases in New Jersey, for example, nearly quadrupled between February 2020 and 2021, the first year of the pandemic, according to NJ Spotlight News (NJSN). The state is also facing a historic shortage of jurists, NJSN reported, “leading to overworked judges, huge case backlogs and nearly 7,000 defendants in jail without bail, some 500 of them for more than two years despite a law that essentially requires a trial within two years for anyone detained." As reported by NJSN, one court official told the state Assembly Budget Committee about the impact of the pandemic on the court system: “Buildings were closed to most in-person trials for more than a year, although other proceedings continued virtually. The business closures and high unemployment led to a housing crisis that resulted in more than 46,000 pending cases that involve landlord-tenant issues . . . . But with all courts open and staff back to work in person, it is impossible to eliminate the backlog of cases with so many open judge seats.” The problem is attributed to the state Senate, where the process is mired, even though the governor is making appointments. According to the National Counsel for State Courts, backlogs at one third of U.S. courts increased by 5%. It would have been worse had courts not held virtual hearings. Using the Court Statistic Project database, the numbers reveal in stark terms the impact the pandemic had in the year it came to America. Dispositions dropped from 43M in 2019 to 28M in 2020. Bench trials fell from 3M in 2019 to under 2M in 2020. Jury trials plummeted from 49K in 2019 to less than 19K in 2020. The Washington Post reported that the Pennsylvania Supreme Court declared a judicial emergency and [...]
Lawyers for Good with Tara Trask and Jason Flom
If you're feeling bad about being a lawyer, or just maybe tingling with the holiday spirit of giving back, this episode is for you. Listen to three professionals (well, maybe two "professionals") who deeply admire for the legal profession, the important role attorneys play in society, and all the potential they have to make the world a better place. When there is strife, there is a supporting organization, and with them are lawyers. Wrongful convictions. Voting rights. Environmental protection. The rights of women, people of color, workers, LGBTQ, immigrants, asylum seekers. Lawyers are in a unique position to do something about all of this. And they do. And we hope more will. Join me as I interview nationally acclaimed trial consultant Tara Trask and music industry star-maker Jason Flom. Tara Trask is the President of Trask Consulting, a boutique litigation strategy, jury research and trial consulting firm. Tara focuses complex commercial litigation, from intellectual property to antitrust, from products liability to insurance, and oil and gas. She has extensive experience assisting institutions and individuals in matters involving regulatory enforcement and white-collar defense. Tara has been involved in more 450 jury trials. Music industry executive Jason Flom is CEO of Lava Records, Lava Music Publishing, and Lava Media, LLC. He is former CEO at Atlantic Records, Virgin Records and Capitol Music Group. Jason is personally responsible for launching acts such as Katy Perry and Greta Van Fleet, and discovering and developing the likes of Matchbox 20, The Corrs, Tory Amos, Jewel, and Stone Temple Pilots. The New Yorker described Jason as “one of the most successful record men of the past 20 years. He's also committed to doing good. Through his Lava for Good company, Jason hosts the hit podcast Wrongful Conviction, now in its ninth season, which features interviews with people who have spent decades in prison for crimes they [...]
Data-Driven Legal Guidance with Ed Walters
Today we’re going to talk about the weather. But only for a minute. Mostly we’re going to talk about the use of big data in the practice of law. There is a reason IBM acquired the digital assets of The Weather Channel, and it's not because they are climate nerds. They bought it to put weather data to work to “operationalize [the] understanding of the impact of weather on business outcomes.” Think about the economic impact of snowstorms, hurricanes, and even less dramatic weather conditions, or the impact on the durability of manufacturing or building materials as temperatures rise or fall outside the norm. While we all crave meteorological precision, we also crave precision when making legal and business decisions. Clients ask questions like these all the time: What is our case worth? What size award will we get? Where should I file? Will the judge grant summary judgment? Should I even bring this suit? Lawyers will draw on experience to offer their best advice, providing ranges followed by caveats and usually preceded by the most lawyerly of lawyer answers: “It depends.” As my guest points out, lawyers also get business-related questions. Business-related answers may begin with "it depends," but must end with a number. When a CEO asks how much revenue your project will generate, "more" is not the answer they're looking for. I know. I've tried. Lawyers who seek greater precision in their predictions can take comfort in the increasing sophistication of analytical tools that can evaluate massive troves of data and account for myriad variables. Not only are we seeing advances in machine learning, artificial intelligence, and language processing, but there is greater access to important litigation-related data – BIG DATA – than ever before. Using new technologies to comb through millions of records – combined with an attorney’s insights – cannot only [...]
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Emerging Litigation Journal
Medical Monitoring and PFAS Litigation—A Significant Growing Trend
The Author John P. Gardella (jgardella@cmbg3.com) is a shareholder with CMBG3 Law and a recognized thought leader on PFAS issues. In his environmental and toxic torts practice, he represents companies ranging in size from small shops to the Fortune 100. John is also a member of the Editorial Board of Advisors for the Journal of Emerging Issues in Litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Medical Monitoring and PFAS Litigation—A Significant Growing Trend "The arguments in favor of medical monitoring as a cause of action in lawsuits stem from the notion that having such programs funded by allegedly tortious companies promotes the public health benefit of early detection, which in turn often results in lower health care costs to plaintiffs and society at large." Abstract: Medical monitoring as a tort claim is a hot-button issue in toxic torts, personal injury, and product liability litigation. The ubiquity of PFAS chemical compounds and the real and potential harm to health and the environment they create make examination of the medical monitoring debate specific to this burgeoning litigation worthy of individual attention. This article provides an explanation of PFAS, a brief overview of medical monitoring claims, how PFAS medical monitoring claims have impacted the litigation thus far, and what legal cases are pending that could alter the course of traditional medical monitoring litigation in the future. Download the article now!
The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies) GalleryThe Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies)
The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies)
The Author Edgar C. Gentle III (egentle@gtandslaw.com) is founder and managing partner of Gentle, Turner, Sexton & Harbison LLC in Birmingham, Alabama, where he focuses on complex commercial litigation, mass torts, and class actions. He also serves as a court appointed neutral and settlement administrator. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies) "States that allow medical monitoring do so when a group of claimants has been exposed to a known hazardous substance, such as lead, or a dangerous product, such as football helmet concussions, or air decompression in an airplane, through the conduct of the Defendant, with the claimants therefore being at increased risk of contracting disease. Under this tort remedy, claimants are tested periodically, for an agreed or decided period, usually between 10 and 40 years, to see if they contract the disease linked to the toxic substance or dangerous product. Thus, medical monitoring recognizes the long-term harmful nature of toxins and man-made products, thereby matching a remedy with the malady." Abstract: The author administers six mass tort settlements with a medical component, including two with medical monitoring. This article reviews the status and history of medical monitoring, known claimant medical monitoring participation rates, the rationale for the remedy, arguments for and against its implementation, and its execution in practice. The author suggests a more holistic medical monitoring remedy, which includes not only testing/or disease but paying claimants for personal injury when they get sicker later, from a capped fund and under an agreed payment matrix, to provide closure to defendants and class members for claims resulting from toxic substances and product [...]
Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves?
The Author Charlie Kingdollar spent his career as emerging issues officer for a major global insurance company, tracking hundreds of future risks like those discussed in this article. Charlie is also a valued member of the Editorial Board of Advisors for the Journal of Emerging Issues in Litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves? "PFAS chemicals are commonly called “forever chemicals,” because once released into the environment they can take hundreds or even thousands of years to break down." "Estimates that the ultimate costs of [these and other] environmental claims will land between $45 billion and $55 billion is terribly low. Maybe I’m missing something (always a possibility). If not, the insurance industry is in for a rude awakening." Abstract: To remain profitable and viable, the insurance and reinsurance industry must rely on estimated forecasts of potential claims many years out to establish an appropriate level of reserves. They rely on data from rating agencies and, based on these estimates, ratchet their reserves up or down accordingly. In past years, major and once unforeseen developments like massive asbestos and environmental litigation provided urgent reasons to cast an especially critical eye on the adequacy of industry reserves. In this article, the author explains why it is that time again. In light of several potentially calamitous emerging global liabilities he reviews here, particularly if they land with the impact he fears they might, the author believes the insurance industry and its policyholders may be in for a jolt a few short years from now. Download the article now!
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