Climate Change Science: Trial Courts And Regulations

By on August 24, 2012

Overlooked in the District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA, is the court’s discussion of the climate change science relied upon by EPA. The decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century. The coal industry brought suit against EPA arguing that it had overstepped its jurisdiction under the Clean Air Act and acted without having an appropriate scientific basis for its actions. (Interestingly, several of the utilities among the Petitioner members had earlier argued the opposite during the Supreme Court argument in AEP v. Connecticut, where they sought dismissal on the ground that the EPA had the authority to regulate greenhouse gases under the Clean Air Act.)

The three judge panel ruled that EPA properly relied upon “major assessments” addressing greenhouse gases and climate change from three sources: (1) the Intergovernmental Panel on Climate Change (“IPCC”); (2) the U.S. Global Change Research Program (“USGCRP”); and (3) the National Resource Council (“NRC”). According to the EPA’s Endangerment Finding published at 74 Fed. Reg. at 66,510-11, these peer-reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of science in this field.

The industry cried “Foul!”, asserting that EPA had improperly “delegated” its judgment to these three organizations by relying on their assessments of climate change science rather than EPA making its own assessment. In rejecting this argument as “little more than a semantic trick,” the court held that:

“EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” (Emphasis added)

EPA’s reliance upon IPCC, USGCRP and NRC assessments in reaching its Endangerment Assessment, and the court’s endorsement of EPA’s methodology in doing so, makes the determinations and findings of these organizations all the more important in the regulatory sphere. Because these groups make their assessments on the basis of their review and analysis of hundreds of scientific studies, reports and articles, the question arises how these organizations made the final determinations upon which EPA has relied. For example, what role, if any, does politics and organizational in-fighting affect the finished product? IPCC publishes a comprehensive set of “Principles and Procedures,” which is designed to establish comprehensiveness, objectivity, openness and transparency as guiding principles of IPCC work. For its part, IPCC clearly appreciates how important its work has become on the world climate change stage.

But it is not clear how the findings of IPCC and other climate change organizations will be addressed in the courtroom in a non-regulatory civil proceeding. Will it be enough for an expert witness in climate change litigation to merely rely, as did EPA, on what the D.C. Circuit Court of Appeals characterized as “overarching conclusions” about the state of climate change science?
These organizations’ assessments provide data and information on, among other things, the amount of greenhouse gases being emitted by human activities, their continued accumulation in the atmosphere, the resulting observed changes to Earth’s energy balance, temperature and climate at global and regional levels, “and other climate-sensitive sectors and systems of the human and natural environment.”

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Unlike the regulatory arena, civil litigation in our nation’s federal courts requires that experts provide detailed bases for their opinion. It should not be enough that a climate change expert rely upon a general organizational finding. Rather, the expert must be required to look at the specific peer reviewed scientific works that form the basis of his, rather than an organization’s, opinion. Although the court determined that EPA’s reliance did not constitute a “delegation” of authority, we would expect that  trial court  would not permit a scientific expert to merely rely on the conclusions of these organizations, no matter how scientifically compelling they appear to be..

Filed under Climate Change, Climate Change Science, Coalition for Responsible Regulation, Inc. v. EPA, Intergovernmental Panel on Climate Change, IPCC, National Resource Council, NRC, U.S. Global Change Research Program, USGCRP, utilities Tagged with ,

Emotional Distress Claim Disallowed in Business Dispute

By on August 20, 2012

In the absence of clear judicial guidelines, claims for intentional infliction of emotional distress would potentially become part and parcel of every civil litigation. There is little question that a business dispute can cause significant anxiety to the business people involved. However, what does it take for that anxiety to rise to the level of an actionable claim for intentional infliction of emotional distress?  In New York, the answer is "a great deal".

A commercial litigation provided an opportunity for Justice Cynthia S. Kern of New York County Supreme Court to review the required elements of a such a claim. In Steinhouse v. Lesser, 112196/10, NYLJ 1202567349247, at *1 (Sup., NY, Decided July 30, 2012), plaintiffs commenced an action to compel the defendants, two of the limited partners of a partnership, to sign an operating agreement which would convert their limited partnership to a limited liability company. When the action was brought, eighty-eight of the ninety partners, representing 98.68% of the equity of the partnership, had already signed to the conversion. The defendants were the last holdouts.

In their counterclaim for intentional infliction of emotional distress, the defendants argued that the plaintiffs had sent repeated letters and made repeated calls with requests or demands that the defendants sign the new operating agreement. In dismissing the counterclaim on summary judgment, Judge Kern held that defendants had failed to state a claim. Pursuant to Lau v. S&M Enterprises, 72 A.D.3d 497, 498 (1st Dep’t 2010), the elements for a claim of intentional infliction of emotional distress are “(1) extreme and outrageous conduct; (2) an intent to cause – or disregard of a substantial probability of causing – severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) the resultant severe emotional distress.”

Based upon the facts presented in the court’s decision, the defendants’ counterclaim fell far short of meeting the requisite elements of such a claim.  However, it is certainly not inconceivable that a claim for intentional infliction of emotional distress might properly lie in a business dispute that was particularly acrimonious and personal.  But the bar is high.  How high is revealed by the New York State Court of Appeals in Howell v New York Post Co., 81 NY2d 115, 121 [1993)   

Howell arose against the backdrop of the Hedda Nussbaum story, which made tabloid headline news in 1988. Nussbaum was the “adoptive” mother of six-year-old Lisa Steinberg, whose November 1987 death from child abuse generated intense public interest. On September 1, 1988, a newspaper photographer trespassed onto the grounds of Four Winds Hospital, a private psychiatric facility in Westchester County. With a telephoto lens, the tabloid photographer took outdoor pictures of Nussbaum in the company of plaintiff Pamela J. Howell, another patient. After the photographs were taken, the hospital’s medical director telephoned the newspaper editor requesting that the paper not publish any patient photographs. It was imperative for Howell’s recovery that her hospitalization remained a secret from all but her immediate family. Despite the admonition of the hospital medical director, the newspaper published the photographs of Nussbaum, which included the plaintiff. Although plaintiff’s name was not mentioned, her face was readily discernible.

Alleging she experienced emotional distress and humiliation, plaintiff commenced an action against the newspaper, the photographer and two writers, seeking damages for alleged violations of the Civil Rights Law §§50 and 51. Even under these egregious facts, the Court of Appeals determined that plaintiff did not have a claim for intentional infliction of emotional distress. In part, the court determined that the newspaper’s publication of a newsworthy photograph fell within the contemplation of the “privileged-conduct” exception. The court reached this conclusion because it found there was a newsworthy relationship between the article and the photograph of the plaintiff in the company of Nussbaum. 

In light of the high bar, why is it that courts are occasionally willing to countenance intentional infliction claims in an environmental setting?  The may be a few explanations.  Although it is necessary to show "extreme and outrageous conduct", some judges have not fully considered whether the environmental contamination at issue poses a threat to human health or the environment.  In many instances, there may be exceedances of state regulatory levels for a particular contaminant in groundwater or soil, but far below the level that could cause actual harm. 

Thus, it is imperative that courts understand the difference between a level of contamination that may give rise to actual harm versus a level of contamination that may give rise to regulatory scrutiny, which is quite different..  In this era of sometimes sensationalized media reporting concerning environmental incidents, there is always the possibility that some excitable person will imagine that he or she has had some exposure to a harmful chemical and became emotionally distraught.  It is defense counsel’s job to ensure that the court understands that the claimed exposure is often remote or, at best, fleeting, but hardly ever the result of "extreme and outrageous" conduct..  

  
 

Filed under emotional distress, Howell v New York Post Co, intentional infliction, Intentional Infliction Of Emotional Distress, Justice Cynthia S. Kern, Lau v. S&M Enterprises, Steinhouse v. Lesser Tagged with

Judicial Limitations On Emotional Distress Claims

By on August 15, 2012

How much leeway should courts give to plaintiffs seeking recovery for emotional distress? Should claimants be permitted to seek recovery for emotional distress over the loss of family heirlooms, photographs or other objects to which they are emotionally attached? How can a jury be expected to separate real from spurious claims? Particularly in toxic tort litigation, claims for emotional distress can generate exposure for defendants.  How do courts guarantee that these claims are genuine? 

Some states, including New Jersey, permit a claim for emotional distress by a plaintiff who witnesses the death of a family member. Portee v. Jaffee, 84 N.J. 88 (1980). There was little doubt that the emotional distress claim in Portee was genuine.  The case involved a mother who stood by helplessly as her seven year old son was crushed to death by an elevator door while crying out in pain and flailing his arms. Shortly thereafter, the distraught grieving mother attempted suicide by slitting her wrists.

Portee has been broadened over time to include intimate acquaintances, such as friends who live together. However, the Supreme Court of New Jersey recently refused to expand Portee to allow claims for emotional distress attendant to the loss of a beloved pet. The court was concerned that permitting such a claim would create an “ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings.” The court observed that “not even all humans are engaged in a relationship that is sufficiently close to support such an award.”

The facts of McDougall v. Lamm, decided on July 31, 2012,  are poignant. Plaintiff Joyce McDougall was walking “Angel,” her maltipoo, a cross between a maltese and a poodle, when a large, mixed breed dog attacked it, grabbed it by the neck, shook it violently and dropped it dead to the ground. In her suit against the attacking dog’s owner, according to a report in the New York Law Journal on August 3, 2012, McDougall claimed that Angel had been her close companion for years and that the loss was especially hard for her since she and her husband had separated and her children had gone to college. Although the trial court awarded her $5,000 for the loss of the dog, the emotional distress count was dismissed on summary judgment. The Appellate Division affirmed.

Although the Supreme Court acknowledged that New Jersey law has treated pets differently than mere chattel in various situations (such as permitting a pet owner to recover not only the pet’s replacement cost but also for veterinary expenses), the high court drew the line on permitting recovery for emotional distress damages when pets are injured or killed. In ruling against McDougall, the court noted that, in some circumstances, a neighbor would not be permitted to seek damages for emotional distress after observing a next door neighbor’s child, with whom it had a close relationship, being torn apart by a wild animal. This would lead to the incongruous result that a plaintiff would be able to recover for emotional distress over the loss of a dog, but that a neighbor could not recover for the loss of a child with whom she shared an emotional attachment. Thus, in the end, the court left the Portee doctrine intact.

In the toxic tort context, across the Hudson River from New Jersey, New York litigants look to In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 379 F. Supp. 2d 349 (S.D.N.Y. 2005), which makes it clear that “damages are not recoverable for anxiety caused by property damage.” Recovery for emotional distress in New York requires Plaintiffs to establish that emotional distress arises from injury or fear of injury to the person.” The case General Accident Ins. Co. v. Black & Decker (U.S.), Inc., 266 A.D.2d 918, 918 (4th Dep’t 1999), stands for the proposition that “there is no cause of action for emotional distress caused by the destruction of one’s property…nor for emotional distress caused by the observation of damage to one’s property.”  In that case, the plaintiffs’ children who observed their family home burn down from across the street, but were never themselves in any physical danger, were not permitted to seek damages for emotional distress. 

New York courts draw a line where someone is claiming emotional distress for mere loss of chattel. A related claim “fear of injury to the person,” requires proof that such fear has a rational basis. MTBE Products Liability Litigation, 379 F.Supp.2d at 430. Such a ‘rational basis’ requires “the clinically-demonstrable presence of a toxin in the plaintiff’s body, or some other indication of a toxin-induced disease.” Thus, in Conway v. Brooklyn Union Gas Co., 189 A.D.2d 851, 592 N.Y.S.2d 782 (2d Dep’t 1993), plaintiffs seeking damages for sleeplessness, anxiety, and fear of developing cancer because defendants did not remove asbestos from their home saw their claims dismissed on summary judgment because they could not offer evidence of asbestos contamination that might develop into cancer. In the absence of such proof, the plaintiffs were not able to “guarantee the genuineness of the claim.” Without such evidence of genuineness, New York courts typically dismiss such cases as speculative at the summary judgment phase of the proceedings.
 

Filed under chattel, Conway v. Brooklyn Union Gas Co, emotional distress damages, General Accident Ins. Co. v. Black & Decker (U.S.), Inc., In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, maltipoo, McDougall v. Lamm, Negligent Infliction Of Emotional Distress, pets, Portee v. Jaffee Tagged with ,

Plaintiff Spoliates Self And Her Case Dismissed

By on August 8, 2012

On August 7, 2012, the New York Law Journal reported that the lawsuit of a woman, who disobeyed three court orders directing her to undergo a physical examination by a defense medical expert in a personal injury lawsuit before she underwent spinal surgery, was dismissed due to spoliation of evidence.  The evidence that was spoliated was plaintiff’s pre-surgery physical condition!  The decision in Mangione v. Jacobs (2012 NY Slip Op 22211) is attached.

In a case of first impression in New York, the Hon. Charles Markey, Queens Supreme Court, held that the plaintiff’s failure to submit to a medical exam by her adversary’s examining physician could be found to be spoliation of evidence because the alleged damage resulting from her automobile accident was surgically corrected before the defendants’ examining physician could see her.
The court distinguished the case at bar from a situation where a plaintiff needs to have life-saving surgery or any operation that would cure intense pain and alleviate injury. Under those circumstances, no spoliation would attach. That was hardly the case here, the court  ruled, where there was no medical reason why plaintiff could not have waited one more  week before having surgery to comply with the most recent of several court orders to submit to a physical examination.

Although there were no New York cases directly on point, Judge Markey referenced a 2001 ruling in the Superior Court in Delaware in Clark v. E.I. DuPont de Nemours, WL 1482831, in which the court dismissed a suit brought by a plaintiff who underwent hip replacement surgery before defendants were allowed to conduct an independent medical examination. So it had become a warning to find and screen first the perfect clinic of your choice to where to have your replacement surgery. For best hip replacement surgery, Check out our Hip Replacement Alternatives in Ocala – QC Kinetix Ocala clinic. The Delaware Supreme Court affirmed the ruling in Clark and the U.S. Supreme Court denied a writ of certiorari in 2002 (537 U.S. 941).

The court found that a jury instruction would not be sufficient to remedy what Judge Markey described as the “irreparable prejudice to defendants of the spoliation, where Mangione’s surgery has eviscerated the means of defense doctors and the rear-end collision lawyer in salt lake city of tracing the causal connection of Mangione’s ailments to the most recent accident….” Contributing to the adverse outcome for the plaintiff was the court’s determination that plaintiff had intentionally thwarted three prior court orders. Plaintiff advised the New York Law Journal that they intend to appeal.  We do not predict success for plaintiffs in the Second Department on appeal.

Litigation Tip: In personal injury actions where it is likely that the claimant will undergo surgery to correct the condition alleged in the complaint, it is good practice to place plaintiff on notice as soon as possible of defendants’  intention to perform a physical examination of the plaintiff. However, in Mangione, it is likely that the defendants would not have obtained so successful an outcome if plaintiffs had not flouted three court orders. In the absence of a violation of a court order, it is likely that the most relief the aggrieved defendant can obtain is an adverse inference. How effective would an adverse inference be, however, when plaintiff’s treating physician is still permitted to testify at trial concerning the plaintiff’s grievous physical condition prior to surgery?  Better to get a court order and hope the plaintiff ignores it and undergoes surgery instead.

This is not really a spoliation of evidence case in the traditional sense. Rather, it is a plaintiff’s effort to play fast and loose with her personal injury claims without providing the defendant a fair chance to independently evaluate those claims by a doctor of their choice.

Filed under Clark v. E.I. DuPont de Nemours, Mangione v. Jacobs, New York Law Journal, Spoliation Tagged with

State Fracking Disclosure Requirements

By on July 31, 2012

Opponents of fracking argue that it is necessary for the public, and health and safety professionals, to have full access to information on the constituents of hydraulic fracturing fluids and waste. In a report released on July 26, 2012 titled, “State Hydraulic Fracturing Disclosure Rules and Enforcement: A Comparison,” the Natural Resources Defense Counsel (“NRDC”) argues that no state can boast a comprehensive chemical disclosure requirement for oil and natural gas producers using hydraulic fracturing. In an article, dated July 31, 2012, Bloomberg BNA Toxics Law Reporter reported on NRDC’s assertion that “each of the state rules we analyzed has significant gaps in its requirements.”

In particular, the NRDC report zeroes in on trade secret exemptions, which it claims creates loopholes in most state disclosure rules. According to the report, not only may the companies decide what information is considered proprietary and should not be but, in many cases, the states have not consistently enforced the disclosure requirements on the books.

The oil and gas industry argues that state chemical disclosure rules provide strong evidence that state regulation is adequate and that new federal standards for disclosure are unnecessary.

NRDC’s report provides a helpful state-by-state analysis of trade secret exemptions to disclosure requirements and under what circumstances disclosure can be restricted.  For example, NRDC reports that six states provide for access to trade secret information by health care providers. These states are: Arkansas, Colorado, Montana, Ohio, Pennsylvania and Texas. Four of the states (all but Ohio and Arkansas) require that health care providers sign a confidentiality agreement before gaining access to the information, except in emergency situations. Health care professionals and health law experts have questioned whether such provisions violate doctors’ ethical obligations.

Meanwhile, participants of FracFocus, a joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, provide voluntary public disclosure of the fracking chemicals they use. Broad industry commitment to FracFocus suggests that NRDC’s concerns concerning inadequate disclosure are being addressed by the industry.

Whatever purported loopholes exist in state statutes, it is likely that toxic tort plaintiffs will be able to obtain full disclosure of chemicals used in fracking through the courts, assuming that they execute Confidentiality Agreements. 
 

Filed under Oil & Gas

Plaintiff’s Failure To Disclose Expert Prior To Summary Judgment Proves Fatal

By on July 30, 2012

In Akron Scott v. Westmore Fuel Company, Inc. (6/14/12), the Appellate Division, First Department, examined the timing of plaintiff’s tardy expert disclosure. In that case, plaintiff disclosed his expert for the first time when he submitted an affidavit of the expert in opposition to a motion for summary judgment. The First Department held that the New York County trial court properly rejected the expert affidavit as inadmissible because plaintiff had failed to disclose his expert until after the Note of Issue and Certificate of Readiness had been filed. The First Department also found that the trial court had properly denied plaintiff’s request to amend the Bill of Particulars to allege a statutory violation by the defendant because the request to amend was made after the Note of Issue was filed and was thus prejudicial.

In Construction by Singletree, Inc. v. Lowe, (2008 NY Slip Op. 5698 08287), 55 A.D.3d 861 (2d Dep’t 2008), the Second Department reached a similar result. In Singletree, the Second Department held that the trial court “did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proferred by Lowe since Lowe failed to identify the experts in pretrial disclosure and served the affidavits after the Note of Issue and Certificate of Readiness attesting to the completion of discovery were filed in this action.” The Second Department rejected the position of the dissent, which argued that CPLR 3101(d)(1)(i) applied only to an expert whom a party intends to call at trial and that the trial court should have considered an undisclosed expert opinion submitted in opposition to a motion for summary judgment. In rejecting the dissenting view, the Second Department held:

"As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exercise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial. That circumstance, coupled with Lowe’s failure to demonstrate how the facts set forth in the experts’ affidavits could otherwise be established at trial, justifies the Supreme Court’s conclusion that Lowe failed to adequately establish the existence of a material issue of fact necessitating a trial in response to J.C.’s prima facie evidence of entitlement to judgment as a matter of law".

In an article in the New York Law Journal, dated July 26, 2012, titled, “Concerns Over Adoption of ‘Singletree’ on Expert Affidavits,” Robert Tolchin argues that the First Department’s decision in Scott “raises alarm bells that the aberrational line of cases starting with the Second Department’s decision in [Singletree] – previously confined to the Second Department and not universally followed even there – may be migrating to the First Department.” Mr. Tolchin argues that these cases should be disavowed by court rule or the power of their holdings otherwise eviscerated by the New York Legislature. We disagree.

Contrary to Mr. Tolchin’s alarm, Scott and Singletree are important precedents that properly establish the requirement that parties to civil litigation, both plaintiffs and defendants, timely disclose their experts. It is unfair for a party to file a motion for summary judgment, after filing of the Note of Issue and Certificate of Readiness, only to be confronted by the affidavit of an expert whose opinions had not previously been disclosed. A summary judgment motion is sufficiently expensive that gamesmanship should be discouraged. It is also a waste of judicial resources to have to sort out expert disclosure issues after the case is placed on the trial calendar and dispositive motions filed.

In litigation conducted in the federal district courts, the time for expert disclosure is set out in the court’s Scheduling Order and it is understood that expert disclosure must be completed prior to the filing of dispositive motions. It is a step in the right direction that the First and Second Departments now recognize that the eleventh hour submission of a previously undisclosed expert, in opposition to a motion for summary judgment is unfair. In light of these holdings, it may be advisable for defense counsel to schedule expert disclosures in the body of the Preliminary Conference Order in state court. Then there would be even less question that a late expert disclosure should not be tolerated.

 

Filed under Akron Scott v. Westmore Fuel Company, Construction by Singletree, Inc. v. Lowe, CPLR, Failure to Disclose Expert, New York State Litigation Tagged with ,

Plaintiffs Add “Public Trust” Doctrine to Toolbox

By on July 19, 2012

The “public trust” doctrine is a legal principle derived from English Common Law.  Environmental groups are now seeking to expand the application of the public trust doctrine to require states to address climate change.  The concept is a new and potentially valuable addition to plaintiffs’ toolbox in climate change litigation.  Until recently, the public trust doctrine has mostly been applied to protect the waters of the state – as a public resource – for purposes of commerce, fishing and recreation. 

In an Environmental Alert (July 17, 2012) titled, “Texas Trial Court Recognizes Potential Application of  “Public Trust” Doctrine to Redress Climate Change,” Richard O. Faulk, a partner at Gardere Wynne Sewell LLP, discusses the origin of the public trust doctrine and how it is being utilized in Texas and elsewhere to create a new cause of action for environmentalists seeking natural resource protection through court action. 

Mr. Faulk’s Environmental Alert reports on a lawsuit brought by the Texas Environmental Law Center against the Texas Commission on Environmental Quality (“TCEQ”) to demand that the agency take action to regulate greenhouse gas emissions.  The Texas lawsuit Bonser-Lain v. Texas Commission on Environmental Quality, Case No. D-1-GN-11-002194 (201st Dist. Ct., Travis County, Texas), followed in the wake of TECQ’s denial of plaintiff’s petition for rulemaking related to greenhouse gas regulations.  Plaintiffs sought judicial review to force the TECQ to regulate emissions arguing that the atmosphere is a “public trust” under common law and a fundamental natural resource entrusted to the care of the government for preservation and protection.

Despite the “displacement” or preemption of common law remedies in the climate change arena recognized by the U.S. Supreme Court in American Electric Power Company v. Connecticut, 564 U.S. _____ (2011), the Texas district judge in Bonser-Lain stated in a letter that he disagreed with TECQ’s position that the public trust doctrine should be limited to water issues.  Rather, the Court concluded that all natural resources of the State fell within the ambit of the doctrine. 

This morning, Bloomberg BNA Toxics Law Reporter (27 TXLR 815) reported that a climate change suit against New Mexico brought pursuant to the public trust doctrine has been permitted to proceed. The article referenced the July 14, 2012 ruling in the case of Sanders-Reed v. Martinez, N.M. Dist. Ct., No. D-101-CV-2011-1514, in which plaintiffs’ petition, prepared by WildEarth Guardians, sought to compel the State of New Mexico to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to reduce those emissions

In her ruling in Sanders-Reed, the Hon. Sarah Singleton did not address the public trust doctrine specifically,  In a very short opinion, she stated that the State’s motion was "well taken to the extent the Complaint attempts to assert claims based on the New Mexico Legislative’s failure to act with respect to the atmosphere, but that Defendants’ other arguments are not appropriate for disposition at the pleading stage". She further held that Plaintiffs had made a substantive allegation that the process by which the legislature sets air quality standards, the "process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions."  Apparently this was enough to keep Plaintiffs’ Amended Petition alive. Defendants memo of law in support of the motion is linked here as is Plaintiffs’ response and Defendants’ reply.

As these and similar pending cases wend their way through the appellate courts, it should be interesting to see whether the reach of the public trust doctrine is permitted to expand beyond protection of water resources into climate change.

Seth Jaffee, a lawyer following these issues at Foley Hoag in Boston, reported on both the New Mexico case and a case in federal district court in the District of Columbia before the Hon. Robert Wilkins.  In a Memorandum Decision, dated May 31, 2012,  Judge  Wilkins dismissed the federal public trust climate change suit, Alec L. v. Jackson on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, the public trust doctrine had been displaced by the federal Clean Air Act.

Mr. Jaffee observes that first ground for dismissal in Alec L. v. Jackson was not relevant to Sanders-Reed and would not have impacted the New Mexico motion practice. However, it is worth noting that the State’s lawyers at the law firm of Keleher & McLeod attached Alec L. v. Jackson to Defendants’ Notice of Additional Authority.  Alec L. v. Jackson makes clear that the public trust doctrine is a creature of state law. Therefore, New Mexico law would have to be examined in deciding whether to apply the public trust doctrine to protect New Mexico public trust assets.  Even so, the states can certainly argue that climate change is more appropriately regulated through federal legislation and regulation rather than through the individual state action. 

Filed under Alec L. v. Jackson, Bonser-Lain v. Texas Commission on Environmental Quality, Climate Change, Sanders-Reed v. Martinez Tagged with

E-Discovery Examined In Depth

By on July 17, 2012

On July 16-17, 2012, Executive Counsel Institute conducted a cutting edge meeting in New York titled, “E-Discovery for the Corporate Market.” The theme of the two day meeting was “Controlling Your E-Discovery Destiny.” The Colloquium Moderators, Brown E. Marean III  from DLA Piper, David Kessler from Fulbright & Jaworski, and Paul Weiner from Littler Mendleson did an excellent job of keeping all of the participants actively engaged.

The panelists included: Steven C. Bennet, a partner at Jones Day; Richard Cohen, President of RenewData in Austin, Texas; Eric T. Crespolini, Vice President of eDiscovery Technologies; Andrea L. D’Ambra, Counsel at Drinker Biddle & Reath LLP; Eugene “Gene” Eames, Director of Search and Data Analytics at Pfizer;  Lynn Frances, Principal at E-Discovery Writer; Bill Gallivan, CEO of Digital WarRoom in Seattle; Daniel P. Kulakofsky, Managing Counsel and Director of Electronic Discovery at The Travelers Companies; Jason Lichter, Senior Counsel of eDiscovery and Information Governance at Seyfarth Shaw; Stephen J. Lief, Practice Support Counsel at Epstein Becker & Green and all-round high tech guru; Mary Mack, Enterprise Technology Counsel at ZyLAB; Maryrose E. Maness, Senior Vice President and Chief Employment and Corporate Infrastructure Counsel at Warner Music Group; Lynn Mestel, President of Hire Counsel in New York City; Tom O’Connor, Director Gulf Coast Legal Technology Center in New Orleans; Andrew J. Peck, United States magistrate judge in the U.S. District Court for the Southern District of New York; Farrah Pepper, Executive Counsel of Discovery at General Electric; Mary Pat Poteet, Senior Consultant at Project Leadership Associates in Chicago; John A. Schwab at Gordon Alfano Bosick & Raspanti; Debra C. Swartz, Chief Compliance Officer for AmerisourceBergen Corporation in Philadelphia; John Thacher, Director of Managed Review Services at TechLaw Solutions in New York City; Brian T. Wolfinger, Vice President of Technology at LDiscovery in Philadelphia; and  the eponymous Laura A. Zubulake, author and speaker on Information Governance.

I attended the meeting because, as a trial lawyer, I was troubled that I did not even know what I didn’t know about e-discovery. Having attended the meeting, I can report that I now know what I don’t know and there is a lot I now know I don’t know.  What I did learn, however, is that there remains a great deal of uncertainty throughout the e-discovery realm, and that technological advances are emerging almost constantly. I was somewhat comforted that even some of the technological gurus at the meeting, who are partners at major law firms, often have difficulty “selling” technologically advanced e-discovery solutions to their more conservative trial partners.

Judge Peck discussed whether manual document review and keyword searches will be replaced by computer-assisted coding, sometimes referred to as “predictive coding.” In an important recent opinion, discussed in an earlier blog post, Judge Peck provided a judicial imprimatur for the use of predictive coding in federal district court litigation but it has by no means been adopted broadly. Predictive coding may offer a new template for conducting e-discovery just as computerized research using Lexis transformed the manner in which lawyers perform legal research in the mid-1970’s.  Just as stodgy older lawyers then urged their  associates to stay away from that "computer box" and perform their legal research manually–with books–the time-tested traditional way, their counterparts today are leery of embracing emerging new e-discovery technology.

There was much discussion concerning data security, social media and The Cloud. There was frank discussion concerning ethical and contractual tensions that can arise between in-house counsel, outside counsel and e-discovery vendors. Discussions centered on factual and legal scenarios that had been encountered by attendees and panel members.  All of this made for a very worthwhile meeting.

 

Filed under cloud computing, E-Discovery, Electronic Discovery, Executive Counsel Institute, The Cloud Tagged with

The Impact Of Twombly & Iqbal In Products Cases

By on July 2, 2012

The Toxic Tort Litigation Blog brings to the attention of defense practitioners weapons to add to their defense arsenal. An article in the Bloomberg BNA Toxics Law Reporter (6/14/02), titled "Making the Most of Twombly/Iqbal in Product Liabililty Cases", offers a valuable primer concerning how the pleading requirements under Rule 8(a) of the Federal Rules of Civil Procedure have been reinterpreted and reshaped by the U.S. Supreme Court in two landmark decisions, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S 662,129 S. Ct. 1937 (2009).

In the article, Arnold & Porter’s Anand Agneshwar and Paige Sharpe review how these two decisions have been employed in product liability litigation either to win outright dismissals of complaints or to force plaintiffs to clearly state in their complaints – and not after discovery – precisely what they seek to prove. Motions brought under Twombly and Iqbal have come to be known as Twiqbal motions.

Prior to the Supreme Court’s publication of Twombly in 2007, federal trial courts were guided by the holding in Conley v. Gibson, a U.S. Supreme Court case decided in 1957. Pursuant to the holding of that case, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” As Mr. Agneshwar and Ms. Sharpe point out, Twombly retired the “no set of facts” language of Conley, and in its place issued a plausibility standard under which plaintiffs must provide “more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do so.” Thus, in order to “nudge[] their claims across the line from conceivable to plausible,” plaintiffs must provide a complaint with “enough heft to show that the pleader is entitled to relief.”

The policy rationale for this holding is the avoidance of “potentially enormous expense of discovery in cases with no reasonably founded hope that the discovery process will reveal relevant evidence.” Twombly left unclear whether its pleading directives applied to all civil cases brought in federal court, or just antitrust cases. However, two years later, the Iqbal court made clear that the pleading requirements in Twombly were to be applied across-the-board.

How successful have Twiqbal motions been in product liability cases? A 2011 law review article by Professor William M. Janssen in the Louisiana Law Review, which focused on pharmaceutical and medical device litigation, found that some 21% of the 264 cases studied were dismissed on Iqbal grounds during the relevant time period. This statistic suggests that it would be imprudent to file a Twiqbal motion in every product liability case. Thankfully, Mr. Agneshwar and Ms. Sharpe provide a series of factors that should be considered prior to filing a Rule 8(a) motion.

As a general rule, defense counsel should carefully scrutinize their adversary’s pleadings in products cases to evaluate whether plaintiff has properly alleged facts to support an essential element of a claim, such as how a product is defectively designed (design defect claim) or how specifically defendants’ product labeling is insufficient (failure to warn claim). A complaint that contains only conclusory allegations is vulnerable to Twiqbal attack.
 

Filed under Anand Agneshwar, Ashcroft v. Iqbal, Bell Atlantic Corp. v. Twombly, BNA, Federal Court Litigation, FRCP Rule 8(a), Law, Motions', Paige Sharpe, Product Liabilitiy Litigation, Reporter', Toxics, Twiqbal, William M. Janssen Tagged with

Texas Adopts Learned Intermediary Doctrine

By on June 29, 2012

The Texas Supreme Court rendered judgment in favor of Centocor, Inc., the pharmaceutical manufacturer subsidiary of Johnson & Johnson, in a landmark decision involving the learned intermediary doctrine, Centocor, Inc. v. Patricia Hamilton, Thomas Hamilton and Michael G. Bullen, M.D. (No. 10-0223). The International Association of Defense Counsel (IADC), which often weighs in on signficant jurisprudential issues before appeals courts, filed an amicus brief requesting that the Court reject the direct-to-consumer advertising exception to the learned intermediary doctrine that had been recognized by the intermediate appellate court.  Porter Hedges LLP  filed the brief on IADC’s behalf.

The decision is significant because it the first time that the Texas Supreme Court has expressly recognized the learned intermediary doctrine. Texas now joins the vast majority of states that have adopted the learned intermediary rule. In a press release issued yesterday, IADC reported that the Court declined to create a direct-to-consumer advertising exception to the learned intermediary rule, despite the fact that two other states had done so. The Court also recognized that a plaintiff cannot plead around the learned intermediary rule by asserting causes of action such as fraud in what is, at its core, a failure to warn case. Significantly, the Court also recognized that the learned intermediary rule is not an affirmative defense, but a legal doctrine that is part and parcel of the plaintiff’s burden of proof. Further, the Court determined that where a prescribing physician is aware of a drug’s risks, "any inadequacy of the product’s warning, as a matter of law, is not the producing cause of the patient’s injuries."

In the opinion, the Court indicated that "Under the learned intermediary doctrine, the manufacturer of a pharmaceutical product satisfies its duty to warn the end user of its product’s potential risks by providing an adequate warning to a ‘learned intermediary,’ who then assumes the duty to pass on the necessary warnings to the end user." The Court held that "the doctrine generally applies within the context of a physician-patient relationship and allows a prescription drug manufacturer to fulfill its duty to warn end users of its product’s potential risks by providing an adequate warning to the prescribing physician."

Notably, the Texas Supreme Court was critical of the lower court’s opinion, which had attempted to carve out an exception to the learned intermediary doctrine for direct-to-consumer advertising. Although plaintiff Hamilton alleged various common law causes of action, all of her claims pivoted on the issue of whether the Centocor had provided an adequate warning to her physician in its prescribing information.  Therefore, the Court ruled,  the learned intermediary doctrine applied to all of Hamilton’s claims. It was incumbent upon plaintiff to demonstrate that an inadequate warning to her prescribing physician was responsible for her injury.  Because plaintiff failed to present any evidence that the purportedly  inadequate warning was at the root of the physician’s  decision to prescribe the medication, her claims failed as a matter of law."
 

Filed under Centocor, Inc, defense", durect-to-consumer advertising, IADC, intermediary, International Association of Defense Counsel, learned, learned intermediary doctrine, Pharmaceutical & Medical Device, Porter Hedges LLP, Remicade, Texas Supreme Court Tagged with ,

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