Study Recruiting Mesothelioma Patients for Testing of Experimental Drug
Oct 26, 2010
A Phase II clinical trial, sponsored by the National Cancer Institute (NCI), is recruiting mesthelioma patients to test an experimental drug intended to block proteins that aid the growth of cancer cells. It will measure drug safety, patient response and survival rates.
Both men and women age 18 and older will be included in the trial. Patients must have undergone standard chemotherapy that has not been effective in halting their cancer. Patients may be diagnosed with either pleural mesothelioma or peritoneal mesothelioma. Both cancers are linked to asbestos exposure, and can take twenty, thirty years or more to develop after the initial exposure.
Estimated enrollment for the study is 55 patients and it will be conducted at the National Institute of Health Clinical Center in Bethesda, MD USA.
The trial is expected to be complete by April 2012.
Wednesday 27 October 2010
Wednesday 13 October 2010
EL Trigger Litigation Judgement
The Court of Appeal gave its long awaited judgment in the EL Trigger Litigation on 8 October 2010. It had been hoped that this hugely anticipated judgment would bring certainty to the question of which insurer should meet a mesothelioma claim resulting from historic asbestos exposure. What has emerged however is a very complex outcome. The decision, covering more than 160 pages, has almost as many permutations as there were parties to the case.
The background
· Bolton v MMI set the scene in 2006. It was a public liability (PL) case in which it was held that a mesothelioma victim sustains injury for the first time when the tumour starts to develop, 10 years before the manifestation of symptoms.
· Four insurers (Builders Accident, Independent, Excess and Municipal Mutual) had employers liability (EL) policies which were worded in a very similar way to the PL policy in Bolton and which responded if the injury was sustained or contracted during the term of the policy. Those insurers then started to decline EL claims on the Bolton principle.
· Until 2006 insurers had always taken the view that EL policies responded on a causation basis (i.e. if exposure occurred during the life of the policy), and the adoption of the ‘Boltonite’ approach had the effect of shifting insurer responsibility from exposure to the time when the tumour started to develop. This led to vast “black holes” in insurance cover.
· Strikingly, even if the tumour developed during the currency of the policy, claimants who were ex-employees at the time would not on the Boltonites’ argument be covered. This issued weighed particularly heavily on Burton J at first instance. Having considered the overwhelming evidence that until Bolton, the market (including the four insurers) used the verbs ‘cause’, ‘contract’ and ‘sustain’ interchangeably, he concluded that the four insurers’ policies should respond on a traditional causation basis.
The Boltonites appealed.
The Court of Appeal judgment
The Court of Appeal judges took divergent approaches. However, the following principles emerge:
· Where the wording used is “sustained”, the policy which responds is the one in force when the tumour starts to develop.
· Where the wording used is “contracted” (that is synonymous with the word “caused”) then the policy in force at the time of exposure responds.
The lack of unity means each judge’s reasoning needs to be considered in turn.
Rix LJ
· A disease is contracted (within the meaning of the policy) when it is caused.
· Mesothelioma is not sustained on inhalation. Although this frustrates the commercial purpose of the policies (to provide both cover for employers and security for employees), there is no ambiguity in the wording sufficient to justify an alternative interpretation.
· Policies which began after the Employers’ Liability Compulsory Insurance Act 1969, (which came into force in January 1972), respond if the mesothelioma was caused during the life of the policy. This is because such policies are deemed to comply with the Act.
Burnton LJ
· Insurers were entitled to depart from their previous practice of indemnifying and paying mesothelioma claims on a causation basis as the aetiology of mesothelioma became better understood.
· Considered the court was bound by Bolton. Policies with a “sustained” wording would only respond at the date when the tumour starts to develop. By contrast, policies with a “contracted” wording would respond if in force at exposure.
Smith LJ
· The policies should be interpreted according to the understanding of the parties at the time they were entered into. Until Bolton v MMI it was not appreciated that a mesothelioma victim “sustains” injury only when the tumour starts to develop.
· Considered she was not bound by Bolton as that decision related to public liability cases only.
Unfinished business?
This is an extraordinary judgment. Such was the lack of consensus that the leading judgment (Rix LJ) has a seven paragraph postscript responding to the other judgments.
Crucially, Rix LJ considered the court bound by Bolton; had this not been the case he would have preferred to hold that where a victim develops mesothelioma there is actionable injury from the date of inhalation, because liability is created when an employer has materially contributed to the risk. Having not been allowed to arrive at his preferred solution, Rix LJ acknowledged that his decision led to “an unfortunate conclusion”.
For the market, this lack of certainty is deeply troubling. Public authorities will now have to make provision for exposure prior to 1974 (due to the MMI wording), and private sector businesses will have to meet claims if they have a pre-1972 ‘sustained’ policy.
Both defendants and insurers will, by virtue of the joint and several liability provisions in section 3 of the Compensation Act, become liable for an increasing burden of mesothelioma claims as they will now need to fill the insurance “black holes” which result from the vindication of the Boltonites’ position on EL policies written on a ‘sustained’ basis.
Further appeals to the Supreme Court are inevitable. Until that time, the judgment means that some claimants who have no solvent employer to sue may go uncompensated.
The background
· Bolton v MMI set the scene in 2006. It was a public liability (PL) case in which it was held that a mesothelioma victim sustains injury for the first time when the tumour starts to develop, 10 years before the manifestation of symptoms.
· Four insurers (Builders Accident, Independent, Excess and Municipal Mutual) had employers liability (EL) policies which were worded in a very similar way to the PL policy in Bolton and which responded if the injury was sustained or contracted during the term of the policy. Those insurers then started to decline EL claims on the Bolton principle.
· Until 2006 insurers had always taken the view that EL policies responded on a causation basis (i.e. if exposure occurred during the life of the policy), and the adoption of the ‘Boltonite’ approach had the effect of shifting insurer responsibility from exposure to the time when the tumour started to develop. This led to vast “black holes” in insurance cover.
· Strikingly, even if the tumour developed during the currency of the policy, claimants who were ex-employees at the time would not on the Boltonites’ argument be covered. This issued weighed particularly heavily on Burton J at first instance. Having considered the overwhelming evidence that until Bolton, the market (including the four insurers) used the verbs ‘cause’, ‘contract’ and ‘sustain’ interchangeably, he concluded that the four insurers’ policies should respond on a traditional causation basis.
The Boltonites appealed.
The Court of Appeal judgment
The Court of Appeal judges took divergent approaches. However, the following principles emerge:
· Where the wording used is “sustained”, the policy which responds is the one in force when the tumour starts to develop.
· Where the wording used is “contracted” (that is synonymous with the word “caused”) then the policy in force at the time of exposure responds.
The lack of unity means each judge’s reasoning needs to be considered in turn.
Rix LJ
· A disease is contracted (within the meaning of the policy) when it is caused.
· Mesothelioma is not sustained on inhalation. Although this frustrates the commercial purpose of the policies (to provide both cover for employers and security for employees), there is no ambiguity in the wording sufficient to justify an alternative interpretation.
· Policies which began after the Employers’ Liability Compulsory Insurance Act 1969, (which came into force in January 1972), respond if the mesothelioma was caused during the life of the policy. This is because such policies are deemed to comply with the Act.
Burnton LJ
· Insurers were entitled to depart from their previous practice of indemnifying and paying mesothelioma claims on a causation basis as the aetiology of mesothelioma became better understood.
· Considered the court was bound by Bolton. Policies with a “sustained” wording would only respond at the date when the tumour starts to develop. By contrast, policies with a “contracted” wording would respond if in force at exposure.
Smith LJ
· The policies should be interpreted according to the understanding of the parties at the time they were entered into. Until Bolton v MMI it was not appreciated that a mesothelioma victim “sustains” injury only when the tumour starts to develop.
· Considered she was not bound by Bolton as that decision related to public liability cases only.
Unfinished business?
This is an extraordinary judgment. Such was the lack of consensus that the leading judgment (Rix LJ) has a seven paragraph postscript responding to the other judgments.
Crucially, Rix LJ considered the court bound by Bolton; had this not been the case he would have preferred to hold that where a victim develops mesothelioma there is actionable injury from the date of inhalation, because liability is created when an employer has materially contributed to the risk. Having not been allowed to arrive at his preferred solution, Rix LJ acknowledged that his decision led to “an unfortunate conclusion”.
For the market, this lack of certainty is deeply troubling. Public authorities will now have to make provision for exposure prior to 1974 (due to the MMI wording), and private sector businesses will have to meet claims if they have a pre-1972 ‘sustained’ policy.
Both defendants and insurers will, by virtue of the joint and several liability provisions in section 3 of the Compensation Act, become liable for an increasing burden of mesothelioma claims as they will now need to fill the insurance “black holes” which result from the vindication of the Boltonites’ position on EL policies written on a ‘sustained’ basis.
Further appeals to the Supreme Court are inevitable. Until that time, the judgment means that some claimants who have no solvent employer to sue may go uncompensated.
Tuesday 5 October 2010
Court Date Friday 8th October 2010
El Trigger Litigation
The verdict in the trigger litigation appeal is due to be handed down on Friday at the Royal Court Of Justice London. If the case is won by the victims & families of those exposed to asbestos negligently by their employers it will force insurance companies to finally pay the compensation they have been fighting to hold onto for the last few years. Below is a short outline of the case and why it spent so long in the courts.
Cases were heard together to resolve an important dispute over the relevant ‘trigger’ under various employers’ liability insurance policies which applied to employers of those who suffered and died from mesothelioma. The EL Trigger trial focused on what had to happen during the period of insurance when the insuring clause of a policy stipulated either that an injury must be "sustained” or that a disease must be "contracted” during the period of insurance. The insurers will argue on appeal that the relevant ‘trigger’ under the policies is not the exposure to asbestos, but the development, many years later, of mesothelioma
The hearing has hinged on which policy was key - the one at the time of exposure or when a worker becomes ill. Employers take out liability insurance to insure them against the cost of legal action by staff injured at work.
But a group of insurance firms had questioned which policy should be enacted. They argued during the nine-week hearing that the policy in place at the time the cancer develops was the one that a compensation claim should be brought against rather than the policy that was in place when the worker was employed by the firm.
They said this was common-sense as victims could have worked for several employers where they were exposed to asbestos. However, this stance was challenged by families, employers and one insurance firm. Solicitors representing the families involved in the case said this would make it harder to secure compensation.
One of the key problems is that many modern-day insurance schemes have exemptions for asbestos. That then only leaves the employer for the victims to go after, but as the disease takes so long to develop many of the firms have ceased to exist.
The verdict in the trigger litigation appeal is due to be handed down on Friday at the Royal Court Of Justice London. If the case is won by the victims & families of those exposed to asbestos negligently by their employers it will force insurance companies to finally pay the compensation they have been fighting to hold onto for the last few years. Below is a short outline of the case and why it spent so long in the courts.
Cases were heard together to resolve an important dispute over the relevant ‘trigger’ under various employers’ liability insurance policies which applied to employers of those who suffered and died from mesothelioma. The EL Trigger trial focused on what had to happen during the period of insurance when the insuring clause of a policy stipulated either that an injury must be "sustained” or that a disease must be "contracted” during the period of insurance. The insurers will argue on appeal that the relevant ‘trigger’ under the policies is not the exposure to asbestos, but the development, many years later, of mesothelioma
The hearing has hinged on which policy was key - the one at the time of exposure or when a worker becomes ill. Employers take out liability insurance to insure them against the cost of legal action by staff injured at work.
But a group of insurance firms had questioned which policy should be enacted. They argued during the nine-week hearing that the policy in place at the time the cancer develops was the one that a compensation claim should be brought against rather than the policy that was in place when the worker was employed by the firm.
They said this was common-sense as victims could have worked for several employers where they were exposed to asbestos. However, this stance was challenged by families, employers and one insurance firm. Solicitors representing the families involved in the case said this would make it harder to secure compensation.
One of the key problems is that many modern-day insurance schemes have exemptions for asbestos. That then only leaves the employer for the victims to go after, but as the disease takes so long to develop many of the firms have ceased to exist.
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