You are on page 1of 2

OUTSIDE PERSPECTIVES

More Medical Monitoring Claims


And Impacts Of REACH Regulations
For Chemicals
Two topics this month: describe new advanced brain scans being used to support
• a new legal journal article reflecting technology or contradict claims of manganism in welders by showing
advances that may lead to resurgence of medical regions of the brain said to be effected. They also
monitoring claims, and describe strides in individual genomics that may make it
• the EU’s REACH regulations applicable to chemi- possible for some specific groups of persons to establish
cals in goods imported into the EU, the EU’s for condition X that they have an increased relative risk in
wide-ranging regulations will cause more public excess of the 2.0 hurdle used by courts in some states
disclosure of scientific data and there are impor- (e.g., Texas) as a threshold for recovery in tort.
tant, impending deadlines for companies to regis-
ter under REACH. A Dramatic Example of New Science
One other example from the article seemed especially
Resurgence of Medical Monitoring Claims dramatic. The article describes studies and papers indicat-
On the rapid pace of scientific advances causing ing that CT scans can now find tiny lung nodules (in
changes in litigation claiming tactics and substantive rules, essence, tiny “tumors” of less than ¼ inch), and reports
an interesting and brief new article is titled Medical that the CT technology was applied in a recent study of
Monitoring Litigation: Influence of Evolving Diagnostic 1,000 “healthy” people. The study found over 2,000 tiny
Technologies. The article lung nodules. The net result of that study from the per-
appears in the August 2008 spective of the 1,000 persons who were studied? The
KIRK T. HARTLEY issue of For the Defense, a article says, in pertinent part:
monthly publication by the
Defense Research Institute, which is a professional group “whereas 25 cases of early lung tumor were detected
composed mainly of lawyers who work for insurers and believed cured by surgical resection [removal], 98
and/or corporations with tort litigation issues. The article percent of nodules turned out to be benign.”
is interesting for both its substance and the authors –
both are non-lawyers, and one is a physician/PhD/acade- That’s a dramatic result when one looks at the 25
mic with many years of background in basic medical people, and assumes that the removal of the lung nodule
research. In addition, the authors probably cannot be actually worked a “cure.” Indeed, any rational judge
considered “left wing tree hugger alarmists” since their (or other person) would be at least interested in what
employer describes itself as working for “industry” would appear to be an opportunity to save 25 lives.
(www.weinberggroup.com), and other sources collect
web links related to claims that their employer has “bent” Future Possibilities
science to support work for tobacco companies and The article and the scientific advances they describe
others. See generally http://en.wikipedia.org/wiki/ provide yet more grist for debate about what the
Weinberg_Group future will bring in terms of societies, lawyers and
The Medical Monitoring article provides some concrete judges dealing with “risks” and “markers.” I do not
examples of diagnostic changes it characterizes as part of claim to know “the answer” (other than to urge that
“diagnostic technologies hav[ing] entered an accelerated effective answers probably will arise only when soci-
phase of technical improvement.” For example, they eties move beyond the polarizing extremes and

November 2008 CORPORATE COUNSEL


processes identified and critiqued in Robert Reich’s ally having as much medical and scientific knowledgeable as

MASS TORT
excellent book, SuperCapitalism). One can, however, does “industry.” And, even that gap may start to close as
try to evaluate the future by looking at past approaches the EU’s wide-ranging REACH regulations take effect.
and how well they may play out in the future. Over time, the REACH regulations require “industry” to
Lawsuits Against Employers: Blaming and suing turn over to “government” all available information on
employer entities will continue to work for a while, but health studies and health effects of chemicals. Of course,
its long-term future seems limited. Why? Little employ- it will take time to bring that command to fruition. On
ers lack the money or insurance assets needed to pay the other hand, the new public disclosures also may well
for costly after the fact medical programs. Also, large, hurt manufacturers by prompting new claims of adverse
global employers are using various techniques to move health impacts from use of chemicals.
away from providing meaningful medical benefits at all,
or they sometimes transfer the risks to governments Reminder - December 1, 2008 Pre-Registration
and taxpayers through bankruptcies that permanently Deadline for REACH
discharge obligations for medical care for retirees. To close, a friendly reminder. For many manufactur-
And, transactions now are growing in which corporate ers and others selling goods into the EU, December 1 is
entities contract to have insurers or others take on the the first major deadline for action under the wide-ranging
long-term financial risks associated with former REACH regulations. REACH is not just for “chemical
employees; in the case of Cable and Wireless, some $1 companies.” REACH instead applies far more broadly to
billion of pension obligations were transferred to an finished goods in which “substances” are used and are
insurer. http://business.timesonline.co.uk/tol/business/ involved in chemical reactions. The ECHA agency says
industry_sectors/telecoms/article4669872.ece. that REACH includes, for example, candles or incense
Money From Old Insurance Policies: Another because fire involves a chemical reaction. http://echa.
past favorite has been to generate funds for medical europa.eu/doc/REACH_Industry.pdf (brochure on when
care through law suits involving old insurance policies. registration is needed).
This tactic will continue to work for awhile, but the Meeting the December 1 deadline is important
horizon also is limited because by the mid-1970s and because complying with the deadline eases the future path
then again in the 1980s, insurers sought to limit their for complying with REACH regulations. December 1 is
losses by adding lots of policy exclusions that seek to the date by which entities are to register an EU represen-
bar coverage for different types of pollution and/or tative authorized to receive legal notices and other com-
resulting damages. Insurers also raised premiums and munications sent by the EU itself. So, the process is in
limited coverage amounts to the point that many large some ways akin to appointing an agent for service of
entities became self-insured. In addition, well over a process, but in other ways the process is more complex.
hundred insurers have exited or limited their prior Law firms are offering to handle the registration process
insurance obligations by implementing “schemes of and to serve as the agent. See generally http://www.avo-
arrangement” under UK law and more will do the cado-law.com/fileadmin/avocado-law.de/downloads/
same. (See http://brsuk.pwc.com/solvent.asp). Gerhold_and_Roeder_on_REACH-1.pdf. The ECHA
Manufacturers, REACH and Information: agency also has website with vast amounts of information
Another favorite “past” approach has been suing manufac- on REACH in many languages. http://echa.europa.eu/
turers and distributors for money damages when health
problems emerge long after a product was sold. Many Kirk T. Hartley is a partner at Butler Rubin Saltarelli &
more of these suits seem inevitable, but new twists may Boyd LLP, a Chicago litigation boutique. He is the chair of
well apply. Blaming “manufacturers” through failure to the firm’s Mass Tort and Products Liability practice group.
warn lawsuits may not work as well tomorrow as it does The views expressed are personal to the author.
today because in the information ages of today and tomor-
row, insurers, regulators/government, and trade unions
are close to if not at the point of having access to or actu-

CORPORATE COUNSEL November 2008