Toxic Tort Litigation Blog

Lone Pine Order Ends "No Causation" Hydrofracking Case

William A. Ruskin — Wed, 16 May 2012 16:09:14 -0500

A Lone Pine Order is an innovative judicial case management tool that requires toxic tort plaintiffs to produce credible expert evidence to support their theory of causation (or another key component of plaintiffs’ claim) prior to the commencement of pre-trial discovery. A Lone Pine Order is designed to weed out frivolous claims before defendants must invest hundreds of thousands of dollars in legal fees and incalculable time and effort only to learn prior to trial that plaintiffs cannot establish a prima facie case. Both federal and state court judges have learned by experience that a Lone Pine case management order can end in their infancy baseless cases that would otherwise require an enormous expenditure of judicial time and resources. I have written about the use of Lone Pine Orders both on this blog and in journal articles.

The most recent successful use of a Lone Pine Order resulted in an order of dismissal in William G. Strudley v. Antero Resources Corporation, et al., a hydro-fracking toxic tort case pending in the District Court for Denver County in Colorado. On May 9, 2012, District Court Judge Ann B. Frick dismissed plaintiffs’ action due to their failure to comply with the court’s Modified Case Management Order (“MCMO”), which had been entered several months earlier. The MCMO required plaintiffs to provide the Court with sworn expert affidavits establishing the identity of the hazardous substances plaintiffs alleged caused their harm; whether these substances could cause the type of diseases and illnesses claimed by plaintiffs (general causation); the dose or quantitative measurement of the concentration, timing and duration of alleged exposure to each substance; an identifiable, medically recognizable diagnosis of the specific disease or illness for which each plaintiff claims medical monitoring is necessary; and a conclusion that each such disease or illness was caused by the alleged exposure (specific causation).

As Judge Frick noted in her decision, the plaintiffs scrambled to provide a creditable response to the MCMO over the next several months. Plaintiffs submitted a jumble of maps, photos, medical records, air and water sampling analysis reports, together with the affidavit of Thomas L. Kurt, M.D., MPH. In a nutshell, the Court found that Dr. Kurt merely opined that further investigation was necessary, but offered no opinion as to whether the purported exposures were a contributing factor to plaintiffs’ alleged injuries or illnesses. Plaintiffs failed to provide any “statement regarding what constitutes dangerous levels of any substance in drinking water or whether any causal link exists between the study’s results and plaintiffs’ alleged injuries.” The Court determined that Dr. Kurt’s Affidavit was wholly lacking in establishing causation and, at times, presented evidence “circumstantially, in direct contradiction to plaintiffs’ allegations.”

In their Complaint, plaintiffs alleged that “environmental contamination and polluting events caused by the conduct and activities of the defendants… caused the release, spills and discharges of combustible gases, hazardous chemicals and industrial wastes from their oil and gas drilling facilities…” According to the petition, the defendants engaged in oil and gas exploration approximately one mile from the plaintiffs’ residence. Plaintiffs alleged that they relied on a groundwater well for “drinking, bathing, cooking, washing and other daily uses,” but that drilling operations had caused various toxic chemicals to contaminate the air and their water well, forcing them to pack up and abandon their home. In addition to personal injuries, they requested that a medical trust fund be established to monitor their medical conditions.

The result achieved in this case was due to excellent legal work by James D. Thompson III at Vinson & Elkins in Houston and Daniel J. Dunn at Hogan Lovells in Denver, who represented Antero.

It is not enough to draft a motion seeking entry of a Lone Pine Order stating, in sum or substance, “how about that Lone Pine Order, judge?” In their memorandum in support of the Lone Pine Order, the Antero lawyers argued: (1) that the facts alleged in plaintiffs’ Complaint were not sufficient for the court or the parties to expend their resources in discovery; (2) that plaintiffs’ Complaint identified no specific exposure or injury; (3) that plaintiffs’ initial disclosures provided no evidence of specific exposure, injury or causation; (4) that independent evidence concerning the well operations demonstrated that there was no factual basis for plaintiffs’ claims; (5) that the court had the authority to enter a Lone Pine Order; and (6) that the Lone Pine Order would in no way prejudice plaintiffs. The defendants successfully argued that any burdens associated with requiring plaintiffs to make a prima facie showing on their claims were outweighed by the benefits:

A Lone Pine order will assist the parties and this Court in efficiently and effectively assessing the merits of plaintiffs’ claims before engaging in costly and time-consuming full discovery and pre-trial procedures. Such an order will promote efficient pre-trial and trial proceedings by focusing whether plaintiffs can produce admissible expert testimony concerning exposure, injury and causation. If plaintiffs cannot produce such discovery, then the resources of the parties and the Court should not be wasted. Dismissal, in that instance, would be appropriate.

Amen!

It is not as if plaintiffs' counsel did ot have the financial or technical resources to comply with the Lone Pine Order if their clients' case had merit. Plaintiffs are represented by Napoli Bern Ripka Shkolnik, LLP, a well-heeled New York plaintiff personal injury firm that had the resources to represent hundreds of plaintiffs in the World Trade Center Disaster Site Litigation and battle Exxon in the New York City MTBE Litigation. The Napoli Law Firm has now branched out, according to its website, into the oil and gas exploration field and has conducted informational meetings with groups of Colorado residents residing near drilling operations concerning their legal options.

If plaintiffs' evidence of causation was so lacking in the high-profile Strudley case, why shouldn't all similar hydrofracking cases be "tested" by Lone Pine? The alternative is to subject oil and gas industry defendants nationwide to the burden of defending frivolous spare-no-expense WTC Disaster Site-style litigations. These toxic tort cases can go on for years and take on a life of their own. Better for the courts and all the litigants if causation evidence must be demonstrated at the outset of the case rather than at the tail end.

Contradictory Testimony No Basis for Denial Of Summary Judgment

William A. Ruskin — Fri, 04 May 2012 14:29:01 -0500

All too often, a defendant in a toxic tort case loses a motion for summary judgment because the court determines that imprecise witness testimony creates a triable issue of fact that warrants denial of the motion. Indeed, it is the rule in California that the task of deciphering the meaning of “ambiguous” witness testimony is a role reserved for the jury. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541, 113 Cal.Rptr. 3d 327, 235 P.3d.988

Thus, quoting from this oft-cited case, plaintiffs routinely argue that “the task of disambiguating ambiguous utterances is for trial, not for summary judgment.” Other California holdings suggest that an inconsistency in witness testimony does not require that the testimony be disregarded in its entirety; rather, it is for the trier of fact to determine what weight the testimony should be given. Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865.

On May 4, 2012, the Bloomberg BNA Toxic Law Reporter reported on the recent decision in Davis v. Foster Wheeler Energy Corp., Cal. Ct. App., No. B226089, 4/26/12, where the California Court of Appeal for the Second Appellate District drew a sharp distinction between testimony that was “ambiguous” and testimony that was “internally contradictory.” In affirming summary judgment, the court found that no triable issue of fact was established where the witness testimony was contradictory. Here are the pertinent facts.

Ronald Davis worked at a chemical plant in Torrance, California in the 1960’s. He later developed mesothelioma, and died in 2009. Among others, the plaintiff sued Foster Wheeler, alleging negligence, strict liability, breach of warranty, and loss of consortium. Foster Wheeler moved for summary judgment, arguing that it did not manufacture, sell, or distribute any asbestos-containing product, and that the decedent was not exposed to asbestos dust by any Foster Wheeler product. The trial court granted summary judgment and plaintiffs appealed.

The plaintiffs argued that there was a triable issue concerning whether Davis was exposed to asbestos dust when Foster Wheeler employees, such a decedent, stripped old asbestos-containing insulation from the outside of boilers during maintenance activity. Key to the plaintiffs’ appeal was the deposition of Claude Chabot, a witness who initially claimed that he observed a maintenance worker stripping insulation wearing a hat with “FW” on the brim. However, in a later deposition, Mr. Chabot testified that he had no information whether any Foster Wheeler personnel removed or installed insulation on the boilers at the plant.

Under these circumstances, the trial court decided that “no reasonable jury considering this opposing testimony would conclude that the [Foster Wheeler] workers are the workers who removed the asbestos insulation around the Foster Wheeler boiler.” The appeals court agreed that Mr. Chabot’s internally contradictory testimony did not establish the existence of a triable issue of fact.

I have not examined whether other jurisdictions draw a similar distinction between “ambiguous” and “contradictory” or “internally inconsistent” testimony, but if they do not, perhaps they should. In many toxic tort cases, defense counsel may be confronted with potentially adverse testimony from a witness who is testifying to recollections that may be decades old. (Did the witness see that FW hat at the plant or at a UCLA football game?)

One school of thought is to leave adverse testimony alone. Pursuant to this view, taking an expanded deposition of plaintiff’s witness would only make the “record” worse. The holding in Davis suggests that this view may be shortsighted. The adverse witness who provides an affidavit to plaintiff’s counsel may be doing so out of sympathy for a co-worker who has died or suffers from a serious illness. A witness’s recollection of events is often different when the witness is deposed, possibly on videotape, in a formal deposition setting. It is possible that the witness, who provided the unhelpful affidavit, may be willing to admit in deposition that his recollection of long past events may be faulty or possibly inaccurate.

Eliciting contradictory testimony from a witness may not necessarily mean that the witness is dishonest or hostile. Rather, it reflects the tendency in all of us to want to be helpful. Foster Wheeler’s counsel skillfully developed inconsistencies in the witness’s testimony and thereby obtained dismissal from the case. There is no reason why “inconsistent” or “internally contradictory” testimony from witnesses, perhaps originally adverse, should not be disregarded by trial courts in other jurisdictions besides California.

Pitfalls In Proving CERCLA Divisibility Of Harm

William A. Ruskin — Tue, 24 Apr 2012 16:14:33 -0500

In a stinging decision, the Hon. Lonny R. Suko, a federal district court judge sitting in the Eastern District of Washington, ruled on April 4, 2012, that PRP Teck Cominco Metals, Ltd. failed to prove that contamination at a CERCLA site was divisible and, as a result, will be subject to CERCLA 107 joint and several liability at an upcoming September 2012 bench trial (Pakootas v. Teck Cominco Metals Ltd., E.D. Wash., No. 04-cv-256, 4/4/12).

The Confederated Tribes of the Colville Reservation, and the State of Washington as Plaintiff-Intervenor, filed a CERCLA action against Teck, alleging that the company had discharged slag and other hazardous substances into the Upper Columbia River, a Superfund site (the “UCR Site”) from its lead-zinc smelter across the border in British Columbia.

An earlier Ninth Circuit decision in the case discussed how Teck’s smelter had dumped slag waste into the Columbia River, ten miles north of the border, over several decades of operation, which resulted in pollution downstream in the United States. In 2003, the EPA placed the site on the National Priorities List. Thereafter, EPA issued a unilateral administrative cleanup order, which Teck failed to comply with. Initially, a lawsuit seeking enforcement of the order was brought. The State of Washington intervened in the action and amended its initial complaint to seek future CERCLA response costs and declaratory relief seeking natural resource damages.

A settlement between Teck and EPA followed, pursuant to which EPA withdrew the unilateral administrative cleanup order. Because enforcement of the order was then no longer at issue, there were no longer any pending claims by Plaintiffs Pakootas and Michel. Thus, what is at issue in the upcoming trial are the cost recovery and natural resource damages claims of the Tribes and the State.

Against this procedural backdrop, the motions before Judge Suko were the Tribes’ motion to dismiss Teck’s affirmative defense seeking to apportion liability and the State’s motion for partial summary judgment on Teck’s Divisibility Defense. At the outset, the court provided some helpful definitions of the technical CERCLA terms that would be discussed in the Opinion. For example, the judge explained that divisibility/apportionment is not a defense to liability itself. Rather, it is a judicially created defense to joint and several liability. Although “divisibility” and “apportionment” are terms often used interchangeably, what is potentially divisible is the harm, and if the harm is divisible, what it potentially apportions is liability, assuming a reasonable factual basis for apportionment.

In opposing the motions, Teck argued that, even assuming it was liable under CERCLA, liability should be several, not joint and several, because the harm at issue is divisible. Pursuant to the Supreme Court’s landmark decision inBurlington Northern and Santa Fe Railway (“BNSF”) case, liability under CERCLA is generally joint and several unless a defendant meets its burden to prove the harm is divisible and capable of apportionment. Under the Restatement (Second) of Torts §433(A), the universal starting point for divisibility of harm analyses is “when two or more persons acting independently cause a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused.” According to the Eighth Circuit’s decision in U.S. v. Hercules, “evidence supporting divisibility must be concrete and specific.”

At the outset, it appeared that Teck had some probability of defeating the motions on the strength of an impressive array of expert witnesses. One environmental expert, Mark W. Johns, Ph.D., opined that there was no detectable release of hazardous substances from Teck’s barren slag and no evidence that dissolved metals from liquid effluent releases were located at the site. Using three different methodologies to apportion Teck’s liability for the harm at the UCR Site, Dr. Johns argued persuasively that Teck’s share of liability should be nothing or next to nothing

Unfortunately for Teck, the court concluded that Teck had failed to present sufficient evidence to support its divisibility argument. Critical to the district court’s decision was its analysis of the term “harm.” Teck argued, based upon its reading of the BNSF decision, that the type of harm subject to apportionment was the alleged contamination from the leaching of metals traceable to the leaching of Teck’s slag and effluent. However, the Court ruled this argument missed the mark. The Ninth Circuit’s definition of harm, relied upon by Teck, was “for the purposes of determining divisibility,” not liability in the first instance, according to the district court. The court held that “the harm is the entirety of the contamination in the UCR site and what the Plaintiffs seek are recovery of costs to investigate and cleanup the entirety of that contamination…” The court continued:

"This contamination is not limited to metals which have been released or which threaten to be released from Teck’s slag and/or liquid effluent deposited in the UCR Site. None of Teck’s apportionment theories address the entirety of the contamination. Instead, they begin with the assumption that the only harm at issue is whatever metals were released from Teck’s slag and/or liquid effluent and the same metals which were released from non-Teck sources. This is a fatal flaw. Because Teck has not addressed the relevant harm in the first instance, it has failed to establish as a matter of law that the relevant harm is a single harm divisible in terms of degree".

In other words, Teck’s fatal flaw was in failing to account for all of the harm at the UCR Site. Because it did not do so, it would not prove that the harm it caused was divisible and thereby capable of apportionment.

For the CERCLA cost recovery practitioner, Pakootas makes for important reading, not only because of its cautionary holding, but because of its detailed analysis of other CERCLA cases, including BNSF, in which cases all of the harm at the respective sites was accounted for in determining that divisibility was possible. In short, Teck failed to consider the full range of environmental consequences at the UCR Site and, subject to post-trial appeal, may pay a steep price .

Hydraulic Fracturing Risks and Opportunities

William A. Ruskin — Thu, 19 Apr 2012 10:45:53 -0500

On April 18, 2012, Winston & Strawn and the Environmental Law Institute co-hosted an informative seminar on, “Hydraulic Fracturing Risks and Opportunities: Regulator, NGO, Industry and Investor Perspectives,” in New York City. The meeting was expertly chaired by May Wall, a partner in the law firm’s Environmental Law Department in Washington, D.C. The panelists included Kate Sinding, an NRDC Senior Attorney and Deputy Director of NRDC’s New York Urban Program; John Imse, a principal at Environ in Denver, who advises clients in the oil and gas industry; Lawrence A. Wilkinson, an analyst with Standard & Poor’s Oil & Gas Team; and Carol P. Collier, the Executive Director of the Delaware River Basin Commission. All four speakers were knowledgeable, informative and articulate. Unfortunately, there is insufficient space here to summarize all of the speakers' discussion points.

John Imse emphasized how horizontal drilling evolved from the development of “game-changing technology,” which has spurred significant changes in the gas exploration industry. As a result of new technology, there may be multiple horizontal wells drilled and developed from a single pad location – four to eight wells from a single drilling pad is not uncommon. Each well may have from as few as four to as many as twenty fracturing intervals. According to Imse, “these are not your wildcat wells of the early twentieth century,” but represent highly sophisticated technology.

Imse also discussed the evolving environmental consciousness of the gas exploration industry. He emphasized that “protective steel casing” and “a good cement job” is critical to a well’s success. Contrasting prior poor practices with current practices, Imse described the construction of drilling pads as “highly engineered sites” with liners and berms for spill control, and structural panels on working surfaces to protect the integrity of the liner. He emphasized the evolving consciousness concerning materials management, including the handling of chemicals in large volume containers; spill containment and secondary containment; and on-site 24/7 spill response.

To date, thirteen states have enacted statues requiring disclosure of fracking chemicals used by industry. These thirteen states account for 90% of current gas drilling, according to Imse. In response to pressure by the public and environmentalists, the additives used in fracking have evolved to “more green and more benign components.” For example, Halliburton is increasingly using guar-based gels and food grade mineral oil carriers, and less diesel for fracking.

There are a number of new web-based resources available to the industry. For example, the University of Colorado Natural Resources Law Center has assembled a compilation of Best Management Practices, which Imse strongly recommends as a reference.

Carol R. Collier, the Executive Director of the Delaware River Basin Commission, discussed the importance of the Delaware River Basin to New York City, which extracts 8.7 billion gallons of water per day. Collier’s “bosses” are the governors of the four states that comprise the Delaware River Basin – Pennsylvania, New Jersey, New York and Delaware. Significant portions of Marcellus Shale underlie portions of the Delaware River Basin. Water withdrawal from the Delaware River Basin is a significant concern. In addition to the 100,000-500,000 gallons of water extracted during the drilling of the well, another 5,000,000 gallons of water is withdrawn during the production life of each well.

Kate Sinding, a Senior Attorney with NRDC, discussed the highly charged political backdrop to the fracking controversy. According to Sinding, experiences in Pennsylvania over the past three to four years have given rise to much of the current environmental debate. Fracking has challenged the long held assumption that natural gas is a more environmentally benign fuel than coal, an assumption that is now coming under fire. Sinding expressed concern about environmental issues that she believed were “not amenable to best practices.”

Was Buyer Of Real Estate "Ready, Willing & Able" To Perform?

William A. Ruskin — Tue, 17 Apr 2012 16:24:52 -0500

Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.

In Pesa v. Yoma Development Group, Inc. et al., 18 N.Y.3d 527, … N.Y.S.2d … (Feb. 9, 2012), the New York State of Appeals examined the issue whether prospective buyers in a damages suit must show that they were “ready, willing and able” to close the transaction – that is, but for the seller’s repudiation, the transaction could and would have closed. In reversing the Appellate Division, Second Department, the Court held that the burden of proof was the “real question” in a case like this:

"Should the buyers be required to show they would and could have performed? Or should the seller have the burden of showing that they would not or could not? Since the buyers can more readily produce evidence of their own intentions and resources, it is reasonable to put the burden on them."

To New York's high court, its conclusion was "supported by common sense" Thus, the Court of Appeals held that the buyers were not entitled to summary judgment and that issues of fact needed to be resolved, in favor of the buyers, before the buyers could be found to be actually “ready, willing and able.” In the instant case, for example, the buyers needed to demonstrate that they could secure a mortgage commitment within the required sixty day period.

The take-away from this decision is that buyers seeking redress for a seller’s repudiation of a real estate contract now have the same burden of proof whether they are seeking damages or specific performance.

California Nixes CEQA Climate Change Review

William A. Ruskin — Tue, 17 Apr 2012 13:17:56 -0500

In an earlier blog post, we discussed a setback for the consideration of climate change impacts in “Reverse Environmental Impact Statements” as a result of a California Court of Appeal invalidating guidelines to the California Environmental Quality Act (“CEQA”). The California guidelines required that a developer’s EIR analyze any significant potential climate change impacts to a proposed mixed use real estate development project in Marina Del Rey in Los Angeles County. In striking down the guidance, the court found held that the purpose of the EIR was to identify significant effects of a project on the environment, not significant effects of the environment on the project. At the time, we were awaiting the California Supreme Court's decision on appeal.

In March 2012, the California Supreme Court decided not to hear the appeal of the Court of Appeal decision. Thus, at least for the time being, developers in California will not be required to discuss potential climate change impacts on proposed projects in environmental impact statements. Consequently, the Agency will no longer be able to examine the significance of certain impacts, such as potential flooding and earthquake risks, on such projects. The ruling will almost certainly narrow the scope of issues the Agency will consider for an EIR review, which may significantly reduce the time and costs involved.

As I recently discussed with Environmental Law 360, it is now up to the California legislature to decide whether to amend CEQA to permit regulatory consideration of climate change impacts on proposed projects. Developers may factor climate change into their planning regardless because it is likely that prospective long-term commercial tenants will want to know how climate change could impact the property. As California is often a bellwether on environmental issues, it will be interesting to see how other state agencies, with regulatory guidelines similar to California’s, will proceed.

Breach Of Warranty & Product Liability Claims Dismissed Against Auto Service Provider

William A. Ruskin — Mon, 16 Apr 2012 16:53:39 -0500

In 2008, the parents of Sean Reeps, brought suit against BMW, Martin Motor Sales and Hassel Motors ("Hassel"), alleging that Sean's mother, Debra, was exposed to gasoline fumes in the family's BMW during her pregancy, which resulted in Sean being born with birth defects. The Complaint alleged causes of action in (1) negligence; (2) strict products liability; (3) breach of express warranty; and (4) breach of implied warranty (merchantability) . The timeline of events is as follows:

1991-In March and again in November, Reeps bring their 1989 BMW 525i to Hassel Motors, a licensed BMW dealer, to fix an exhaust odor inside the car. Dealer fails to identiify an exhaust odor in March, but later identifies problem as a split fuel hose and repairs it under warranty.

1992-In May, Sean Reeps is born with birth defects, including cerebral palsy, which plaintiffs attribute to Debra's inhalation of gas fumes early in pregnancy.

1994-BMW recalls BMW525i vehicles due to safety defect that caused odor due to feed fuel hose. Car is no longer with plaintiffs at the time.

On summary judgment, BMW argued that plaintiff's claims were barred by the doctrine of spoliation because plaintiff could not establish a prima facie case without the car or the fuel hose to show the actual alleged defect. BMW's expert testified by affidavit that the Reeps' leakage was caused by a split in the fuel hose, not by the defect that was the subject of the recall. Thus, in the absence of the actual fuel hose, BMW argued, plaintiff could not demonstrate a defect.

The trial court rejected BMW’s spoliation argument, holding that there was no evidence of “willful or contumacious conduct” by plaintiff in disposing of the car. Remarkably, the Reeps’ BMW was actually found, but clearly not in the same condition as it was in 1991 and, not surprisingly, without the original fuel hose. The trial court held that plaintiff was not “barred from pursuing his claim, but rather he will have the onerous trial burden of proving his case solely by circumstantial evidence.”

New York law requires that to establish a prima facie case for strict product liability or design defect, a plaintiff must show that the manufacturer marketed a product that was not reasonably safe in its design; that it was feasible to design the product in a safer manner; and that the defective design was a substantial factor in causing the plaintiff’s injury. When the product at issue is no longer available, and the plaintiff seeks to prove a manufacturing defect by circumstantial evidence, the plaintiff must not only establish that the product did not perform as intended, but must also exclude all other causes of failure not attributable to the manufacturer.

The trial court denied Hassel's motion for summary judgment. The gravamen for plaintiff’s claims against Hassel was that it was negligent in failing to find the split fuel hose when the Reeps first complained of fuel odor in March 1991. Plaintiffs argued that if Hassel had identified and repaired the problem, Mrs. Reeps would not have inhaled any fumes during her pregnancy. In denying the dealer’s motion for summary judgment, the court observed that there is a high bar for obtaining summary judgment in a negligence action. As the court noted, “Simply put, Hassel must prove that it was not negligent when it failed to find a source of the gas fumes complained of by the Reeps in March 1991. It has not done so.”

In its decision, dated April 5, 2012, the Appellate Division, First Department, weighed in on both the spoliation issue and the motion for summary judgment by Hassel. On the spoliation issue, the Appellate Division held that the defendants “failed to demonstrate that the parents disposed of the vehicle with knowledge of its potential evidentiary value.” Moreover, the court discussed the existence of other available evidence, including BMW’s Recall Bulletin and Hassel Motors-service records for the relevant period, which served to mitigate the loss of the vehicle. Basically, the court examined two of the key factors in evaluating spoliation sanctions – prejudice and intent – and determined that the movants had failed to establish either element in seeking sanctions.

As to plaintiff’s claims against Hassel, the Appellate Division held that the product liability and breach of implied and express warranty claims should be dismissed because the service provider did not design, manufacture, distribute or sell the vehicle. This holding may be the most important in the case because it clarifies that service providers, as opposed to product sellers, can not be held liable under strict product liability or breach of warranty theories of liability. Therefore, the only remaining claim against Hassel sounds in negligence, which may be difficult for plaintiff to establish at trial after a twenty year hiatus.

Apart from its other burdens, plaintiff will have to demonstrate general causation at trial, that is, whether exposure to chemical components in gasoline fumes have been associated in the scientific literature with the specific teratogenic effects alleged, including cerebral palsy. If plaintiff is able to prove general causation, he will then have to prove specific causation, that is, whether the dose of the purported teratogen was high enough, and lasted for a sufficient duration, to cause the specific birth defect.

The plaintiff attributes his injury to Debra Reeps’ inhalation of gas fumes during the first couple of months of her pregnancy between August 1991 and November 1991, when the problem with the vehicle was fixed. Are the alleged teratogenic effects associated with a toxic exposure early in pregnancy? How often did Debra Reeps ride in the automobile during those first couple of months? If the odor problem was significant, is it likely that the Reeps would not have returned their BMW 525i, which was under warranty, to the dealership before November? Because there is no expert deposition discovery under New York state practice, we will have to await trial to learn how these issues plays out.

Tort Litigation & OSHA

William A. Ruskin — Fri, 13 Apr 2012 12:35:27 -0500

OSHA standards can significantly affect litigants in work-related tort litigation. Plaintiffs generally attempt (with mixed success) to use evidence of OSHA regulations to establish the duty owed by the defendants in those cases. Courts around the country differ considerably on the admissibility of OSHA standards in personal injury cases to establish a standard of care.

Similarly, there is no unanimity concerning whether to allow evidence of OSHA violations in tort cases. Should an OSHA violation be construed as "some evidence" of negligence, "per se" evidence of negligence or not admissible at all? Although the answer depends largely on the law of the jurisdiction in which you are litigating, one thing is crystal clear--OSHA violations relevant to the tort litigation can have a big effect on the defense of the case and the litigation impact of any underlying OSHA issues must be fully analyzed.

Therefore, I owe a debt of gratitude to Eric Conn, who launched The OSHA Law Update: A Hazard Communication, and who keeps me well-informed concerning what I should be sensitive to in this regulatory arena. Eric and co-authors Amanda Strainis-Walker, Casey Cosentino, Alexis Downs and Paul Burmeister have hands-on OSHA experience at both the federal and state level and service a diverse range of industries including chemical facilities, petroleum refining, manufacturing, construction, natural gas and electrical power, health care and life sciences, and the agricultural, retail, and hospitality sectors. Their blog provides industry with what they need to know before OSHA knocks on the front door.

Losing The "Empty Chair" At Trial

William A. Ruskin — Fri, 06 Apr 2012 08:25:19 -0500

It has become common practice in multi-party toxic tort litigation for co-defendants to avoid taking potshots at each other during discovery or at trial. Pursuant to this reasoning, if the defendants point fingers at each other, it will only inure to plaintiff’s benefit. Therefore, it may be preferable for co-defendants to settle any differences they may have in private and present a unified front in the courtroom. This is a particularly helpful startegy when plaintiff is expected to have difficulty proving causation. Why make the plaintiff’s job any easier?

Consistent with this strategy, toxic tort defendants would rather target culpable non-parties who are not represented by counsel at trial and may not even appear as witnesses, colloquially referred to as “empty chair” defendants. It becomes the burden of the attorney representing the plaintiff to defend these “empty chairs” in order to obtain a full recovery for his client. Otherwise, plaintiff runs the risk that any verdict will be diminished by the empty chair’s proportion of fault. If one or more defendants obtains a dismissal prior to trial, the absent parties are subject to attack as “empty chair” defendants at trial by their former co-defendants.

There is emerging case law in New York that may force defendants to reassess the strategy of how “empty chair” defendants are pursued. In an article titled, “Recent Decisions on Empty Chair Defendants,” which appeared in the New York Law Journal on April 3, 2012, plaintiff trial lawyers, Thomas A. Moore and Matthew Gaier, discuss a recent First Department case,Carmona v. Mathisson, 92 A.D.3d 492 (1st Dep’t 2012), which held that the remaining defendants at trial were precluded from blaming the dismissed defendant under the “law of the case” doctrine. As Mssrs. Moore and Gaier discuss, the plaintiff in Carmona was injured during cataract surgery in which a machine was used to assist in the removal of the lens with the cataract.

The plaintiff brought suit against the surgeon, the hospital where the procedure was performed, and the manufacturer of the machine. The manufacturer obtained partial summary judgment prior to trial pursuant to which the claims for negligent failure to warn and breach of warranty were dismissed. On appeal, the Appellate Division, First Department, dismissed the remaining counts for strict liability and negligence based upon manufacturing and design defects. See 54 A.D.3d 633 (1st Dep’t 2008). The treating physicians and the hospital vigorously opposed the manufacturers’ efforts to extricate itself from the case at every step along the way.

Later, at trial, the treating physicians and the hospital were permitted to elicit testimony that the machine malfunctioned and/or contained a design defect. The trial court included the manufacturer on the jury’s verdict sheet for the purpose of apportioning liability. Article 16 of the CPLR, not only imposes limitations on joint and several liability, but permits the culpable conduct of non-parties to be considered in apportioning a defendant’s fault for the purposes of such liability. No longer in the case to defend itself, the treating physicians went after the manufacturer at trial with guns blazing.
After the jury returned a defense verdict on behalf of the defendants, the plaintiff appealed. The Appellate Division reversed, holding that it was error for the trial court to permit evidence that the machine was defective and to include the manufacturer on the verdict sheet.

The Appellate Division held that its prior decision on the summary judgment appeal constituted “law of the case,” which was binding on the trial court and operated to foreclose any re-examination of the question absent a showing of subsequent evidence or change of law. The Court also held that on retrial the treating physicians would not be precluded from presenting a defense based on a claim of unexpected malfunction of the machine. The Court observed that the summary judgment decision found that the machine complied with design and manufacturing standards, but did not rule out that the machine could have malfunctioned for some other reason. Based upon the evidence at trial, the court observed, a jury could determine that the machine could malfunction even absent a defect. Therefore, the court left open a narrow window for the physicians and the hospital to still go after the empty chair.

In a medical malpractice action in which a medical device manufacturer is thrown into the defendant mix of physician and hospital defendants, it is perhaps not unusual that the physician defendants aggressively pursue the manufacturer. This scenario may play out differently in a toxic tort case where more cooperation among defendants is anticipated. The take-away from Carmona is that toxic tort defense counsel can no longer assume that any dismissed defendant becomes an easy “empty chair” to attack at trial.

One first has to determine how the “empty chair” arrives at the courtroom – through inattention of plaintiff; settlement prior to trial; or as a result of summary judgment. The answer to that inquiry may have a significant impact on the remaining defendants’ case evaluation and the extent to which an “empty chair” strategy can be successfully pursued.

Remedies For Spoliation Of Evidence

William A. Ruskin — Tue, 03 Apr 2012 12:11:21 -0500

New York state courts are increasingly turning to federal Zubulake standards when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York courts have generally engineered their own solutions without turning to federal common law for guidance. We previously addressed how New York courts address ESI spoliation.

Pursuant to the common law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. There may be circumstances where the destruction is so egregious that the offending party’s pleading may be stricken where no other remedy will achieve a fundamentally fair outcome.

In their article, “Remedies for Spoliation of Evidence,” published in the New York Law Journal on March 27, 2012, Plaintiff lawyers Robert S. Kelner and Gail S. Kelner provide a good overview of how state courts address spoliation of evidence and the circumstances under which a court will impose the “ultimate sanction.”

Unlike some states, New York does not recognize an independent tort claim for third-party negligent spoliation of evidence. In a 2007 Court of Appeals case, Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007), the City of New York was under a court order to preserve an impounded vehicle so that the cause of a vehicular fire could be determined by forensic analysis. Due to negligence, the City of New York failed to preserve the vehicle. Despite this negligent destruction, the court declined to establish an independent tort of spoliation of evidence, pursuant to which a tort action against the City of New York might have been pursued. In declining to establish a spoliation tort, the court explained that there was “no way of ascertaining to what extent the proof would have benefited either the plaintiff or defendant in the underlying lawsuit and it is therefore impossible to identify which party, if any, was actually harmed.” Applying this logic, the Ortega court stated that an independent cause of action was not viable because it would recognize a claim that, by definition, could not be proved without resort to speculation. However, speculative the damages that might have resulted from spoliation in Ortega, New York courts have not hesitated to levy sanctions when a party has destroyed evidence.

New York courts have been willing to strike an offending party’s pleading when it can be shown that a party destroyed key evidence which deprived the adversary of its ability to prove its claim or defense. The court may also, in its discretion, apply any number of remedies short of striking the pleading. These remedies include an “adverse inference” (where the jury is instructed that it may infer that the missing evidence, if available, would tend to inculpate the spoliating party), or preclusion of testimony at trial. Generally, in crafting an appropriate sanction, the trial court will consider two factors first and foremost: (1) whether the destruction was willful; and (2) the resultant prejudice. Prior to bringing a spoliation issue to the court's attention, the practitioner should document by every means possible the intentional nature, if appropriate, of the spoliation at issue through investigation and discovery.

The "Googling Juror"

William A. Ruskin — Wed, 21 Mar 2012 14:40:24 -0500

In an on-line article titled, “Rely on Instructions to Curb the Socially Networked Juror” (3/19/12), Dr. Ken Broda-Bahm writes that “the ‘Googling Juror’ has emerged as a massive concern in the courts with plenty of stories on the process being thrown into mistrial by panelists who had to look up a fact, couldn’t take their finger off the Tweet button, and felt the need to “friend” parties, attorneys, and other jurors.” Dr. Broda-Bahm references a new article in the Duke Law & Technology Review (St. Eve & Zuckerman, 2012) titled, "Ensuring an Impartial Jury in the Age of Social Media" that discusses a survey of 140 former jurors. He quotes a juror as saying that “nothing” could prevent her from using social media during the trial. The good news is that of a sample of 140 jurors surveyed, only 6 reported a temptation to use social media during their trial, and none of those 6 succumbed to the temptation.

In her article, the Hon. Amy J. St. Eve (Northern District of Illinois) and her law clerk, Michael A. Zuckerman, discuss the juror anecdotes that leave trial lawyers sleepless: the Arkansas death sentence set aside by a tweeting juror, the British juror who conducted a Facebook poll on how she should vote in deliberations, and the Florida juror who may face jail time for “friending” a defendant. Although all these anecdotal examples are important cautionary tales, Dr. Broda-Bahm contends that they do not define the common experience of most jurors.

As a possible solution to social networking abuses, he recommends asking the court for specific social media instructions that take the additional step of explaining why the jurors are being asked to refrain from social networking during trial. However, will a social media instruction be sufficient to curb social networking behavior among jurors?

Reference Manual on Scientific Evidence: Third Edition--An Indispensable Tool

William A. Ruskin — Tue, 20 Mar 2012 10:54:34 -0500

With little fanfare, the Federal Judicial Center and the National Research Council of the National Academies issued the Reference Manual on Scientific Evidence: Third Edition, in 2011. Soon after the Supreme Court’s historic 1993 holding in Daubert v. Merrill Dow Pharmaceuticals, Inc., in which federal judges were directed to serve as “gatekeepers,” the Federal Judicial Center published the First Edition of the Reference Manual on Scientific Evidence, which became the leading reference source for federal judges seeking an understanding of difficult issues involving scientific testimony. The Second Edition was published by the Federal Judicial Center in 2000. Considering advances in science, both in terms of how science is treated in the courtroom and in the laboratory, over the last 12 years, a new edition is certainly welcome.

For the toxic tort practitioner, the Reference Manual on Scientific Evidence is an indispensable reference work. As with previous editions, the Third Edition is organized according to the important scientific and technological disciplines often encountered by federal (or state) judges. It would be difficult to imagine preparing any toxic tort case for trial (or the filing of a Daubert motion) without reviewing, for example, the manual's chapters on exposure science, epidemiology, toxicology, neuroscience and/or engineering.

In particular, two critical issues germane to the interpretation of scientific evidence, namely issues of causation and conflict of interest, are highlighted in the new edition’s Preface. Judges are in a less favorable position than scientists to make causation assessments. Scientists have the luxury of delaying their decision while they or others gather more data. Judges, on the other hand, must rule on causation based upon existing information presented to the court. In the final analysis, a judge does not have the option of suspending judgment until more information is available, but must fulfill his gatekeeper role after considering the best available science. The Third Edition seeks to make that judicial task more manageable.

The Preface also discusses the problem of conflict of interest, which is an issue that cuts across most, if not all, scientific disciplines. What is the relationship between conflict and bias? According to the Preface, even though financial conflicts can be identified, the existence of a conflict, even one involving huge sums of money, does not necessarily mean that a given individual will be biased. Thus, having a financial relationship with a commercial entity produces a conflict of interest, but does not inevitably evoke bias. As the Third Edition points out, it is critical that judge and juries consider financial conflicts of interest when assessing scientific testimony, and the threshold for pursuing the possibility of such bias must be low.

I would appreciate comments from practitioners concerning how, if at all, the issuance of the Third Edition has impacted toxic tort trial practice or might do so in the future.

Suspect Toxic Mold Suit Reinstated

William A. Ruskin — Fri, 16 Mar 2012 09:00:37 -0500

Guest Blogger ANDREA J. LAWRENCE is a Senior Counsel at Epstein Becker & Green in New York. She provides legal advice and counsel to clients in the real estate industry. Andrea has extensive commercial litigation experience, and has provided legal representation to real estate companies, landlords, developers, property management companies, and commercial tenants In this jointly written post, we discuss a recent Appellate Division, First Department toxic mold case, which was reinstated after dismissal in the trial court.

The adverse health effects of toxic mold are frequently litigated in courts throughout New York, where many apartment dwellers claim to suffer from various medical illnesses resulting from mold and dampness. Just last week, toxic mold again created a stir in the legal community when the Appellate Division, First Department, in Cornell v. 360 West 51st Street Realty, LLC (2012 NY Slip. Op. 01643), reversed a lower court decision dismissing a plaintiff’s mold personal injury claim against her landlord. Despite plaintiff offering scientific and medical evidence in support of her claims, why did the lower court award summary judgment to the landlord? It is noteworthy that plaintiff’s expert, Dr. Eckhard Johanning, has made a career testifying for plaintiffs in mold personal injury actions. This was not the first case in which his expert testimony had been rejected by a trial court due to his off-the-wall methodology.

In Cornell, the plaintiff had resided in her apartment directly above the building’s basement since 1997. After flooding in the basement in 2002 and 2003, the plaintiff observed mold in her bathroom, and began to feel ill every time that she entered this room. In October 2003, the building was sold and the new owner began to remove debris from the basement in preparation for renovations to the building. During the course of the debris removal, plaintiff experienced dizziness, chest tightness, congestion, a shortness of breath, a rash, swollen eyes and a metallic taste in her mouth. In November 2003, the plaintiff was forced to permanently vacate her apartment purportedly as a result of her medical condition. Shortly thereafter, she commenced a personal injury action.

In support of her motion seeking summary judgment (and in opposing the landlord’s motion), the plaintiff presented expert testimony establishing that mold was capable of causing the medical ailments she experienced. Her treating physician opined that her symptoms were caused by exposure to toxic molds.

Notwithstanding the causation evidence presented by plaintiff, the lower court granted defendants’ motion for summary judgment and dismissed the complaint. In doing so, the court relied on Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416 (1st Dep’t 2008), holding that “the Fraser majority has resolved the issue of the sufficiency of the current epidemiological evidence on which [plaintiff’s physician] relied was not sufficiently strong to permit a finding of general causation, and as the limited supplemental studies that are submitted in this action plainly do not remedy the insufficiency found by the Fraser majority, this court is constrained to hold that plaintiff is unable to prove general causation.”
The trial judge reasonably assumed that if Dr. Johanning's scientific evidence had failed to pass legal muster in Fraser, his testimony should not be given credence in her courtroom either.

In a 3-2 split, the Appellate Division First Department held that the lower court had erred in its dismissal of the plaintiff’s personal injury claims based upon Fraser. The court stated that, “we never disavowed the underlying theory that exposure to mold may, under certain circumstances, give rise to respiratory and other ailments.” The court noted that its holding in Fraser was limited by the facts of that particular case, and reiterated “our holding [in Fraser] does not set forth any general rule that dampness and mold can never be considered the cause of a disease.” So holding, the Appellate Division reinstated the plaintiff’s complaint against the landlord for mold-related personal injuries.

At first blush, it may appear that the trial court dismissed plaintiff’s mold claim because it had read Fraser as a categorical rejection of all toxic mold personal injury mold cases. However, the trial judge had certainly not done this. In his dissenting opinion, Judge Catterson faulted plaintiff’s experts in the lower court for failing to rely upon “generally accepted science.” He determined that plaintiff’s submission concerning medical causation failed to meet the test under Frye v. U.S., 293 F.1013 (D.C. 1923)(known as the Frye test), which requires that the reliability of a new test, process or theory, be “generally accepted” within the relevant scientific community. Upon close examination of the studies relied upon by plaintiff’s experts, he determined that plaintiff’s proof fell short of the mark. We agree with Judge Catterson.

Unfortunately, Cornell may provide a roadmap to clever toxic tort plaintiff lawyers and their experts on how to beat back a Frye challenge in New York state court. At the end of the day, the experts are cooking up the same suspect causation opinions that were rejected in Fraser. It is just that they are adding some scientific "gloss" to those opinions to get to the jury.

The Reverse Environmental Impact Statement

William A. Ruskin — Wed, 14 Mar 2012 10:26:03 -0500

The traditional environmental impact statement (“EIS”) examines the effect of a proposed project, such as a construction project, on the environment. However, various federal, state and local statutes and rules are now looking in the opposite direction – at how environment changes might affect a project.

In an article in the New York Law Journal, dated March 8, 2012, “Reverse Environmental Impact Analysis: Effect of Climate Change on Projects,” Michael B. Gerrard, a distinguished professor at Columbia Law School, examines what he terms “reverse environmental impact analysis.” For example, if during the expected lifetime of a proposed building, the building site may be endangered by sea level rise, should this be disclosed in an EIS?

In a recent case involving a proposed mixed-use real estate development project in Marina del Rey in Los Angeles County, the court invalidated recent guidelines to the California Environmental Quality Act (“CEQA”), which is similar to New York’s SEQRA. The California guidelines required that the EIS (or EIR as it is referred to California) analyze any significant environmental impacts the proposed project might cause. In striking down the guidance, the California Court of Appeal held in Ballona Wetlands Land Trust v. City of Los Angeles (November 2011) that this “reverse” analysis was inconsistent with the CEQA statute. The court found that the purpose of the EIS was to identify significant effects of a project on the environment, not the significant effects of the environment on the project. The issue is now before the California Supreme Court, where the case is expected to receive significant attention.

At the federal level, the Counsel on Environmental Quality, which was created by the National Environmental Policy Act of 1970 (“NEPA”), issued a draft guidance in February 2010 urging consideration of the effects of climate change and greenhouse gas emissions on future projects. For example, if climate change studies were to demonstrate that a proposed airport will be underwater in twenty years, the EIS should contain that information.

On the state level, New York DEC in October 2010, issued a policy on climate change directing DEC’s staff to incorporate climate change adapation strategies into DEC programs and activities, as appropriate. Finally, at the local level, New York City’s Environmental Quality Review (“CEQR”) procedure now mandates consideration of greenhouse gas emissions resulting from projects.

The take-away is that real estate developers will increasingly be required to consider in their environmental impact statements how changes brought about by climate change may impact their proposed projects down the road. Ultimately, legal challenges to regulations requiring reverse environmental impact statements will be turned aside and there will be a paradigm shift in how EISs are performed.

New York's First Department Adopts Even More Of Zubulake

William A. Ruskin — Fri, 09 Mar 2012 10:28:05 -0500

On February 28, 2012, the Appellate Division, First Department, issued its decision in U.S. Bank N.A. v. GreenPoint Mortgage Funding, Inc., 2012 N.Y. App.Div. LEXIS 1487, which adopted the standards established in the SDNY's 2003 landmark decision in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (SDNY 2003). In its decsion, he First Department held that the party producing electronically stored information ("ESI") bears the the burden of paying for the production. This unanimous decision represents a reversal of several New York trial court rulings holding that the party requesting disclosure had the obligation to pay for its production.

As is often the case, interesting appellate decisions can be the product of discovery disputes that have a high chutzpah quotient. Here, not only did GreenPoint seek to have plaintiff pay for its ESI production, it went a step further in demanding that plaintiff pay for the cost of GreenPoint's attorneys' pre-production time in performing a pre-production privilege review. Would this appeal have been filed if attorneys' fees had not been in the mix?

Several weeks ago, I reported here about the First Department's adoption (in Voom H.D. Holdings) of Zubulake's standards for addressing the spoliation of ESI evidence. In U.S. Bank N.A. v. GreenPoint Mortgage Funding, Inc., the court has turned to Zubulake yet again, in the absence of any guidance in the CPLR concerning ESI disclosure cost allocation. Although it is unclear whether the other New York appellate departments will similarly embrace Zubulake, the decision harmonizes state and federal discovery practice in Manhattan courts, if not upstate.

Therefore, it is all the more important for the practitioner to appreciate that Zubulake's cost allocation mandate is by no means absolute. Under Zubulake, the producing party must only bear "the initial cost of searching for, retrieving and producing discovery". The decisions sets forth seven factors for courts to consider in evaluating whether to shift all or part of the cost of ESI production back to the requesting party. For example, costs may be shifted back to the requesting party if: (1) the request is not tailored to discover relevant information; (2) the discovery can be obtained from other sources; (3) the cost of production as compared to the amount in controversy; (4) the cost of production, compared to the resources available to the parties; (5) the relative ability of each party to control costs and their incentive to do so; (6) the importance of the stakes in the litigation; and (7) the relative benefit to the parties of obtaining the information at tissue.

We should expect that state court practitioners, seeking to avoid having their clients bear the costs of ESI production alone, will shortly be committing these seven factors to memory.

Challenging Plaintiff's Proof of Reasonable Alternative Design

William A. Ruskin — Tue, 06 Mar 2012 14:27:21 -0500

In the majority of jurisdictions, to establish a claim for design defect in a product liability action, the plaintiff must present some proof of a “feasible alternative design” or “reasonable alternative design.”

In an article published in the IADC Product Liability Committee Newsletter (February 2012), "No Other Alternative: Challenging Plaintiff's Proof of Reasonable Alternative Design", Elbert S. Dorn, a partner at Nexen Pruet, LLC, in South Carolina, provides valuable tips to the defense practitioner concerning how to agressively press legal and factual points to test plaintiff's proof of reasonable alternative design.

According to Dorn, legal arguments on reasonable alternative design should be included in Daubert or other motions to exclude or limit the plaintiff’s expert testimony, motions for summary judgment, motions in limine to challenge evidence of proposed design alternatives, and in oral and written motions for judgment as a matter of law at the close of plaintiff’s case, at the completion of the defense case, and after any adverse verdict. Additionally, the defense position on reasonable alternative design should be articulated clearly in proposed requests to charge (or jury instructions).

In challenging plaintiff’s proof or evidence of a reasonable alternative design, the following factors and issues should be considered:

• whether the reasonable alternative design is being presented through expert testimony, and, if so, is the expert qualified to present reliable evidence of a design alternative?

• Is the design merely conceptual or theoretical in nature?

• Has the design been reduced to scale drawings fully illustrating its dimensions, characteristics and mechanics?

• The existence of a prototype or model demonstrating or incorporating the proposed design.

• Is the alternative design subject to a U.S. or foreign patent – has the proponent or anyone else sought patent protection?

• Has the alternative design been the subject of peer-reviewed articles or treatises or otherwise reviewed in the scientific community?

• Has the proposed design ever been incorporated or utilized by another manufacturer in a real-world setting – while not a totally decisive factor, it is powerful to establish that which plaintiff proposes as an alternative design has never before been utilized in the particular industry.

• Has the proposed design been subjected to testing to measure its effectiveness, functionality, and performance?

• What is the effect of the reasonable alternative design on the utility and functionality of the product – does the proposed design compromise or diminish the utility of the product – this is an overarching issue and should be fully explored.

• What analysis has been performed of the adverse or increased safety risks of the alternative design – does it potentially affect the relative safety of other components or the overall safety of the product?

• What cost analysis or economic impact of the alternative has been performed?

• What analysis or testing supports the durability of the proposed alternative – will it require additional maintenance and repair or affect product longevity?

• The effect of the alternative design on compliance with governmental regulations and standards.

• Would the alternative design have prevented the specific harm or injury which is the subject of the case?

• Was the technology supporting the alternative design readily available to the manufacturer at the time the subject product was designed or manufactured?

Fundamentally, the defense against plaintiff's argument that there existed a reasonable alternative designr resonates with a basic human emotion – “don’t criticize the way I do things unless you can do it better” or “do not criticize my play-calling and execution, if you have never played the game.” If this notion can be conveyed to judge and jury, all the better in establishing the defense to plaintiff's contentions.

US Supreme Court Rules Asbestos Claim Preempted

William A. Ruskin — Mon, 05 Mar 2012 15:03:02 -0500

Guest Blogger Nicolas S. Allison is an Associate in Epstein Becker & Green's Asbestos Group in New York. A graduate of Princeton University and Boston University Law School, in addition to his mass tort asbestos work, Nick also represents firm clients in a wide variety of industries, including financial institutions, health care providers and health care insurers. He also defends environmental claims brought under the New York State Navigation Law. In discussing the Supreme Court's recent decision in Kurns v. Railroad Friction Products Corp, Nick and I examine the reasoning of the majority opinon, the concurring opinion and the concurring/dissenting opinion and how the justices address plaintiff's failure to warn and design defect claims in light of the preemption under the Locomotive Inspection Act .

On February 29, 2012, the Supreme Court issued a preemption decision in Kurns v. Railroad Friction Production Corp, an asbestos product liability case. The case is noteworthy for product liability and toxic tort practitioners because of the Court's split analysis concerning the potential preemptive effect of federal legislation on failure to warn claims.

Plaintiff's decedent, George Corson, was a machinist for the Chicago, Milwaukee, St. Paul and Pacific Railroad. As a machinist, his duties included the removal and replacement of asbestos-containing brake shoes and insulation on the company’s locomotives. In 2005, Corson was diagnosed with malignant mesothelioma, after which Corson sued several dozen manufacturers, including part suppliers of the railroad company's locomotives. The trial court granted summary judgment to the railroad supplier defendants on preemption grounds and the Third Circuit affirmed. The issue before the Supreme Court was whether federal preemption should result in dismissal not just of the design defect claim, but to the failure to warn claim as well

Writing for the 6-3 majority, Justice Thomas summarily rejected Plaintiff’s argument that, as a distinct cause of action, her failure to warn claim was not preempted by federal law. Thomas reasoned that “the ‘gravamen’ of petitioners’ failure to warn claims ‘is still that [Corson] suffered harmful consequences as a result of his exposure to asbestos contained in the locomotive parts.” By summarily rejecting the argument and conflating failure to warn claims with defective design claims, Thomas does little to present a concrete roadmap for evaluating the preemptive effect of federal law involving product liability causes of action.

Dissenting in part and concurring in part, Justice Sotomayor more or less adopted plaintiff’s approach, drawing a distinction between failure to warn claims and design defect claims. Sotomayor reasoned that "a product may be flawlessly designed and still subject its manufacturer or seller to liability for lack of adequate instructions or warnings." Despite a scholarly analysis of product liability jurisprudence, Sotomayor did not persuasively explain how the distinction precludes the preemptive effect of the federal legislation at issue. It is noteworthy that her analysis failed to persuade six other justices on the Court. .

In practical terms, Justice Kagan’s concurring opinion possibly articulates the strongest underpinning of the majority opinion. Her preemption analysis examined the broad regulatory authority granted under the Locomotive Inspection Act. Kagan reasoned that “if an agency has the power to prohibit the use of locomotive equipment, it also has the power to condition the use of that equipment on proper warnings.” Under this reasoning, Kagan determined that because the agency could have required warnings about the equipment's use, the petitioner's failure to warn claim, no less than her defective design claims, was preempted. Thus, under Kagan’s preemptive analysis, regulatory silence has the same preemptive effect as explicit regulation.

This case represents an unusual application of field preemption--unusual because there is no indication that Congress intended to foreclose all state action concerning railroad safety rather than just the regulation of equipment used by the railroad. Some commentators have sought to isolate the case from other preemption jurisprudence by arguing that the outcome of the case may have been different if the Court did not feel bound by the precedent established in a 1926 Supreme Court case, Napier v. Atlantic Coast Line. Still others have argued that the case represents an usual departure for Justice Thomas, who generally narrowly construes the scope of federal power over the states.

What is intruiging for product liability defense counsel is the idea, impliedly advanced by Justice Kagan, that warnings and instructions (the part of the product conveyed in print) should be treated as just another part of a product's design and not as the basis for an independent cause of action. For the past several decades, plaintiffs have always had two bites at the apple--defectiive design and failure to warn. If the product was flawlessly designed, they could retreat to their warning claim. If the product had terrific warnings, they could argue in the alternative that the poor design of the product could not be cured by strong warnings. If this case is interpreted by future trial courts (in a non-preemption context) to mean that a failure to warn claim should be considered as part and parcel of a defective design claim, rather than a separate claim, manufacturers will have obtained an important precedent in Kurns. Only time will tell.

Fiber Type Crucial In Defending Asbestos Claims

William A. Ruskin — Fri, 02 Mar 2012 10:24:45 -0500

Asbestos defendants are frequently faced with medical causation testimony from the plaintiff that asserts that, because there is no “safe” level of asbestos exposure, any exposure above some ill-defined “background” level is a substantial contributing factor to the plaintiff’s asbestos-related injury. This theory has become the centerpiece of modern asbestos litigation and discourages minimal exposure cases from going to the jury. However, a strong defense can be mounted to a minimal exposure case, particularly if plaintiff alleges exposure to chrysotile asbestos fibers.

For the toxic tort defense lawyer, an understanding of the two major families of asbestos is critical. From a toxicity standpoint, amphibole asbestos fibers are more potentially toxic than fibers of the serpentine family. Amphiboles tend to: (1) be acid resistant; (2) be persistent in the body; (3) be straight fibers; and (4) contain iron. By comparison,chrysotile asbestos, a member of the serpentine family, has a much more lower toxicity profile, particularly in low exposure settings. Chrysotile: (1) breaks down in the body; (2) is acid soluble; (3) has a soft pliable curly shape; and (4) contains dissolvable magnesium. Because the body handles chrysotile fibers differently, chrysotile is much less potent than amphibole asbestos. An examination of the toxicological literature demonstrates that the mesothelioma mortality risk is much greater from amphibole exposure as compared to chrysotile exposure.

At a meeting of the IADC in February 2012, William G. Hughson, M.D., D.Phil., expressed criticism of the expert opinions commonly expressed by plaintiff experts in asbestos cases concerning chrysotile. Dr. Hughson is the Director of the University of California at San Diego Center for Occupational & Environmental Medicine. Dr. Hughson rejects the view that any exposure above background is a substantial contributing factor to disease and that dose has no bearing on causation. At the same meeting, Bob Manlowe, a lawyer with Seattle-based Williams Kastner, delivered a paper titled, “Literature Refuting Single-Fiber Theory and Zero-No-Threshold/Linear-Dose-Model.” For the asbestos practitioner, the two papers provide a valuable road map to cross-examining plaintiff experts and defending mesiothelioma cases involving chrysotile asbestos.

Connnecticut Court Orders Metadata Produced

William A. Ruskin — Wed, 29 Feb 2012 12:51:01 -0500

Connecticut state courts have not provided a rule to address electronic discovery that would give guidance to litigants in a manner similar to the federal rules. In a significant decision, issued on November 18, 2011, the Hon. Barbara Brazzel-Massaro, who sits in Complex Litigation in Stamford Superior Court, ruled in Innis Arden Golf Club, Inc. v. O’Brien & Gere Engineers Inc., et al., that federal rules concerning electronic discovery may provide guidance that may be useful to Connecticut courts.

In this case, the defendant filed a motion to compel arguing that the electronic production of over 60,000 documents by the plaintiff did not provide an orderly or readable response. In particular, the defendant requested that the court order the plaintiff to re-produce the documents with accurate document separation, proper load files and pertinent metadata.

In granting the motion, the court held in pertinent part:

It is clear that the plaintiff produced the documents in mass without any designation as to which documents were responsive to which product request. The documents were not organized or indexed in a manner that would be sequential based upon the content but were simply given to the defendant to sort out. Even without considering the electronic difficulties, this manner of discovery is not sufficient. This type of discovery does not further the intent of discovery but only creates a stumbling block for the opposing party who has all of these documents and no where to go. The federal rules require that the documents are organized or labeled to correspond to the categories in the request. It is obvious that this was not done and has left the defendants with a mass of documents without a particular connection to the production requests.

The court ruled further that the plaintiff should produce electronic discovery in a load file with pertnent metadata, but with defendant bearing the $550 cost of creating the load file. Perhaps most importantly for litigants who may be involved in future electronic discovery disputes in Connecticut, the court held that “the metadata is an important source for the defendants as part of the orderly production of the electronic discovery.” In so ruling, the court has created an expectation that ESI should be produced with metadata, which contains valuable information, and load files, which can expedite the organization on software of large productions.

Computers Replacing Lawyers In Reviewing Documents?

William A. Ruskin — Mon, 27 Feb 2012 15:11:06 -0500

For those of us who work on document-intensive litigations, take note of Magistrate Judge Andrew J. Peck's (SDNY.) opinion released on February 24, 2012 in Monique Da Silva Moore, et al. v. Publicis Groupe and MSL Group, Case 11 Civ. 1279 (ALC)(AJP). Judge Peck's decision may be the first federal court opinion approving the use of computer-assisted review in place of “eyes on” document review. Citing recent studies, Judge Peck states “while some lawyers still consider manual review to be the 'gold standard,' that is a myth, as statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review….While this Court recognizes that computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection.”

In a thoughtful guest blog on the Forbes.com site, (from which post the photo is reproduced here)Matthew Nelson discusses the significance (or not) of both Judge Peck's case and a second case in the Northen District of Illinois, the Hon. Nan R. Nolan presiding. In that case, Kleen Products LLC v. Packaging Corporation of America et al, the plaintiffs are seeking a court order requiring defendants, among other things to use predictive coding technology in responding to their discovery requests.

Computer assisted review, or, as it is sometimes called, predictive coding, employs the use of a sample set or “seed set” which is reviewed for responsiveness. The “seed set” can then be made available to opposing counsel to approve the responsive/non-responsive determinations made. Interestingly, at least in this case, the court noted that “All of this review to create the seed set was done by senior attorneys (not paralegals, staff attorneys or junior associates).” The seed set is then fed into a program that creates a logic (based on the seed set determinations) and extrapolates to the universe (the negotiated set of data). Predictive coding, in essence, attempts to take the place of burdensome, expensive and time consuming document review.

As the opinion suggests, predictive coding will not work in all cases. According to Judge Peck, “What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.” While the court discussed possible objections under the FRCP, FRE 702 and Daubert, the court did not sufficiently address what happens when one party wants to use predictive coding and the other party objects. In the case, to protect privileged documents that would conceivably be swept in by the computer logic, the parties entered into a clawback agreement which was entered as a court ordert. Unfortunately, in government investigations, parties do not always have the opportunity to have a court enter such an order. So, predictive coding should be used cautiously – perhaps still requiring some “eyes on” document review in handling governmental investigations.

Predictive coding could provide substantial benefits to clients. On the other hand, law firms whose business models depend on leveraging large teams of associates and staff attorneys to conduct document review will increasingly have to explain to their clients why such costly efforts are necessary. Technology may allow medium sized firms to more effectively compete with large firms in cases with substantial discovery. In short, predictive coding makes good sense for the courts, the clients and the Bar.