Photo of Kenneth R. Costa

Kenneth R. Costa is a partner with MG+M, based out of the firm's Providence office. He is a member of the multi-state Complex Litigation Group, with a primary focus on insurance defense, products liability, employment litigation, real estate litigation, and asbestos and toxic tort related matters throughout Rhode Island, Massachusetts, and Connecticut.

Co-authored by Brian Gross 

Stop SOPA

Earlier today we published an article discussing the SOPA Blackout and outlining the major considerations and impact of both SOPA and PIPA. We have just learned that House Judiciary Committee Chairman Lamar Smith, (R-Texas) has issued a press release announcing the Senate’s decision to postpone consideration of this legislation until there is a wider agreement on a solution.

In the release Chairman Smith declared:

 “I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy. It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products.

So for now at least, it appears that the people have spoken. We will continue to monitor and report with updates of interest to our readers.

SOPA Bill H.R. 3261.IH 

Protect IP Act (PIPA) 

 
Continue Reading SOPA/PIPA Update: Congress To Suspend SOPA

Co-authored by Brian Gross 

Wikipedia SOPA BlackoutIf you’re like me (and 375 million others), then you use Google as your primary search engine, and like most Google users, we are accustomed to seeing the occasional “Doodle” in place of the familiar Google logo. In case you didn’t know, Doodles are the spontaneous and fun changes that Google makes to its logo to celebrate holidays, anniversaries and other historic milestones. But on January 18th, Google users did not find a colorful Doodle, instead the familiar Google logo was shrouded in black. The reason? Well, there are two actually; SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act, Senate Bill 968). These twin bills are currently before the House and Senate, and if passed would provide prosecutors of the Justice Department greater powers to combat foreign-based websites that facilitate pirated content to users in the United States. On its face, this goal appears righteous enough. However, opponents of the these bills, including internet powerhouses like Wikipedia, Twitter, Facebook, WordPress and Google claim that if passed these laws will “jeopardize freedom and shift power of the independent web into the hands of corporations.” 

Wednesday’s internet SOPA Black Out, which included not only Google’s grim logo but a complete block of the Wikipedia website was the first coordinated effort by the aforementioned opponents in an effort to promote public awareness and understanding of exactly what these bills will do to inhibit people’s access to online information; and it may have actually worked to some degree, on Wednesday United States Senator Ron Wyden (D-OR) tweeted “Anti- #PIPA, #SOPA traffic has temporarily shut down our website.” That wasn’t the only fallout from the blackout, it appears that many of the politicians who originally supported these bills are now publically announcing their opposition. A recent article posted by Time Magazine’s online blog Techland reported that after the blackout

at least 10 senators and nearly twice that many House members have announced their opposition.

However, proponents of the bills still remain, and while there are already laws in place to help combat online piracy such as the Digital Millennium Copyright Act (DCMA) of 1998, these proponents are claiming that these new bills will target the “rogue” websites that avoid US copyright law and are currently out of DCMA’s reach.  So what does all this mean for law abiding citizens who don’t engage in online pirating? Plenty actually.

Consider the following:

  • Because the wording contained in these bills is vague and the penalties steep for any site accused of “enabling or facilitating piracy”, there exists the very real potential for abuse – even being associated with a “rogue” site may be enough to land you in trouble with Uncle Sam.
  • Taken one step further, it is possible that blogs or sites where you can post ideas – even kitchen recipes – could land you in jail for a maximum of 5 years under the current versions of these laws!
  • SOPA and PIPA build a framework for future restrictions and suppression,


Continue Reading The Average User’s Guide To SOPA & PIPA: Kim Kardashian, Doodles and Why You Should Care

Co-authored by Brian Gross 

Over the top warning labelAs a defense attorney, one of the most common allegations my product liability clients face is a claim that the company “failed to warn” the end user of a potential defect in its product.  With the Christmas season upon us, and due to the fact that so many of the products we purchase for our friends and family contain a wide variety of warning labels to avoid such a lawsuit, I felt it prudent to address this rather important issue in this week’s blog installment.

A warning is a statement which is meant to make someone aware of a potential danger associated with a particular product or action.  A manufacturer must provide a warning when the product has a danger that cannot be removed.  Generally, however, a manufacturer is not required to provide a warning for dangers which are obvious and understood.  Despite that fact, due to the increase in product liability lawsuits over the past few years, manufacturers are taking care to add warnings that may seem a little outrageous – even downright laughable – to their products to avoid ending up in litigation for “failure to warn.”  Some of these over-the-top warnings include:

Label: May cause drowsiness.
Product: Nytol sleeping pills.

Label: Do not use while sleeping.
Product: Vidal Sassoon hair dryer.

Label: This product is not intended for use as a dental drill.
Product: Dremel Multipro’s rotary tools.

Label: This product moves when used.
Product: Razor scooter.

Why are manufacturers taking such steps to warn the consumer of the such obvious dangers or potential dangers associated with such obvious misuse of their products?  Much of it has to do with the plaintiff’s bar and the endless supply of consumers willing to sue.  Even “questionable” product liability cases can lead to costly legal fees and damages.  Bloomberg recently analyzed the 50 largest jury verdicts over the past few years. In 2010 alone, 15 verdicts involving “failure to warn” claims topped $25 million (up 7 from the previous year).  In fact, juries in the five largest product liability cases awarded damages of $1.1 billion, a substantial increase from previous years.  Several factors can be attributed to this increase in damages awarded by jurors, such as:

  • The public’s view of “Big Business” and its failure to protect Joe Consumer (think BP oil spill and the recent massive Toyota automobile recall).
  • High unemployment rates.
  • Instability of the stock market.
  • America’s stagnant real estate sales.
  • America’s struggling banking industry.
Arguably many factors have driven our current “crisis of confidence” in Corporate America, some rightly deserved and some perpetuated by the media. Nevertheless, a case can be made that as a result of these feelings, jurors are using the courtroom as a vehicle to right the perceived wrongs of Corporate America.  Of course there are plaintiffs’ counsel ready, willing and able to show them how, supporting the contention that levying astronomical verdicts will “punish” big business.  In doing so, juries are hurting these companies right where it counts


Continue Reading Warning: Reading This Blog Post May Stimulate Brain Cells

Co-authored by Brian Gross

lungsThe health hazards associated with asbestos have been documented, at least to some degree, for many years.  Yet the litigation of asbestos injury claims is as robust and contentious as ever. Why? Well, much of it stems from the fact that there is controversy in the medical and scientific community as to whether all forms of asbestos – “amphibole asbestos” and “serpentine asbestos” – cause mesothelioma, a rare cancer found primarily in the pleura, or lining of the lung, and the peritoneum, or abdominal cavity.  That issue is complicated even further by the fact that many asbestos plaintiffs allege exposure to asbestos from numerous products, and these alleged exposures differ in frequency, intensity, and duration.  As such, one of the major issues in these cases surrounds the proof of which asbestos exposure was a substantial contributing factor to the plaintiff’s disease.  As with most complex litigation, attorneys in asbestos cases must rely heavily on science, which can be a moving target at best and damaging at worst, especially if the findings are not scrutinized thoroughly to ensure a level playing field.

Take for example two friction defendants – Ford and Allied Signal – who recently contested  the “every breath” or “every exposure” theory proffered by plaintiffs’ expert Dr. John C. Maddox to the Pennsylvania Supreme Court.  This theory, in essence, claims that no matter how infinitesimal, every single exposure to an asbestos fiber – regardless of the fiber type, size, or chemical make-up – substantially contributes to the development of an asbestos-related disease.

According to Maddox, “each and every breath” of asbestos one takes is and should be considered a substantial contributing cause to the development of an asbestos-related disease.

His opinion is based on an extrapolation from high to low doses of asbestos and from one type of asbestos to another.  Maddox posits that because the medical and scientific literature has demonstrated an association between high doses of amphibole asbestos (a more potent form of the mineral) and mesothelioma,  low doses of the less potent chrysotile asbestos can as well.  Undoubtedly such an opinion would allow plaintiffs to potentially hold liable any and all defendants who manufactured and/or sold an asbestos-containing product, no matter how infinitesimal the alleged exposure.  During oral argument, however, Ford argued that the average person encounters about 100 million asbestos fibers over the course of his or her lifetime.  Nonetheless, the vast majority of us are not at a high risk for developing mesothelioma from this “ambient” or “background” exposure to asbestos.  This fact alone places serious doubts about the “every single breath” theory – both scientifically and from a legal causation analysis.


Continue Reading Pennsylvania Supreme Court to Rule on Whether “Every Breath You Take” Theory Holds Water in Asbestos Litigation

Co-authored by Brian Gross

Chances are, if you watch television, you’ve seen them – commercials in which attorneys promise financial compensation for those who have been diagnosed with an asbestos-related disease.  In their efforts to fulfill these promises, plaintiffs’ attorneys can pursue claims not only against solvent companies through the court system, but can also pursue claims against an ever-growing group of asbestos bankruptcy trusts.  These asbestos bankruptcy trusts – more than fifty in all – have billions of dollars with which to compensate asbestos claimants, and are becoming an increasingly important source of compensation for plaintiffs.  Just how important these trusts are as a source of compensation in each individual case, however, remains a mystery.  That is due to the fact that the current asbestos bankruptcy trust rules do not require the trusts to make public the payments they make to claimants.  That, combined with the fact that many courts have failed to require plaintiffs to disclose any information concerning trust claims, has resulted in a lack of transparency between the trusts and the tort system.  This lack of transparency creates an atmosphere for potential fraud, as it may allow a plaintiff to recover more than they would otherwise be entitled to collect from solvent companies in the tort system.  In an effort to combat this alleged “double recovery,” defendant companies in asbestos litigation, as well as their attorneys and insurance carriers, have called upon the federal government to take steps to create more transparency between the trusts and the tort system.

On Friday, September 9, 2011, the House Judiciary Committee’s Subcommittee on the Constitution held a hearing entitled, “How Fraud and Abuse in the Asbestos Compensation System Affect Victims, Jobs, the Economy and the Legal System.”  Led by Subcommittee Chairman Trent Franks, R-AZ, the Subcommittee heard testimony concerning alleged abuses associated with asbestos litigation, including forum shopping, witness coaching, and over-expansive legal theories. The heart of this debate, however, focused on the lack of transparency with respect to asbestos bankruptcy trusts, and how that lack of transparency harms companies which face asbestos claims.  Supporters of reform argue that plaintiffs should be required to disclose all bankruptcy trust filings so that payments by solvent defendants can be adjusted to reflect the compensation received from the trusts, and thus prevent double recovery by plaintiffs.

Under the current state of asbestos litigation, it is usually difficult for a defendant to obtain information concerning claims filed with bankruptcy trusts, which may include details of the claimants’ alleged asbestos exposure.  Defense attorneys argue that this information is vital to the defense of asbestos cases because it may uncover inconsistencies in plaintiffs’ testimony and could reduce the amount that a defendant may be required to pay if a plaintiff obtains a judgment.   This is especially true in several-liability states according to the most recent RAND report.

At this point, it is unclear whether Congress will act to help create the transparency sought by defense attorneys, insurance carriers, and asbestos defendants
Continue Reading Congress Taking a Closer Look into Alleged “Double-Dipping” by Asbestos Claimants