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

By on April 17, 2012

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.
 

Filed under Damages, Pesa v. Yoma Development Group, Inc, ready, willing & able, Real Estate, repudiation of real estate contract Tagged with , ,

California Nixes CEQA Climate Change Review

By on April 17, 2012

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.
 

Filed under Ballona Wetlands Land Trust v. City of Los Angeles, California, CEQR, Climate Change, EIR, Real Estate Tagged with

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

By on April 16, 2012

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. Amarillo motor vehicle accident attorney will work with you in all types of vehicle accidents like Sean’s mother. 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.
 

 

Filed under Appellate Division, First Department, Breach Of Warranty, Causation, Sean Repps v. BMW of North America, Inc, Spoliation, Strict Liability, Theories of Liability, Toxic Tort/Product Liability Litigation Tagged with , ,

Tort Litigation & OSHA

By on April 13, 2012

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.  

Filed under Alexis Downs, Amanda Strainis-Walker, Casey Cosentino, EBG, Epstein Becker & Green, Eric Conn, Negligence Per Se, Occupational Safety and Health Administration, Paul Burmeister, Some Evidence of Negligence, The OSHA Law Update: A Hazard Communication, Tort Litigation, Toxic Tort/Product Liability Litigation Tagged with

Losing The “Empty Chair” At Trial

By on April 6, 2012

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.
 

Filed under Carmona v. Mathisson, cooperation among defendants, CPLR Article 16, empty chair defendant, finger pointing at trial, Kramer, Dillof, Linvington & Moore, law of the case, Litigation Issues and Factors, Matthew Gaier, medical malpractice, phacoemulsification, Thomas A. Moore, Toxic Tort Litigation Tagged with , ,

Remedies For Spoliation Of Evidence

By on April 3, 2012

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. 
 

Filed under new york courts, New York Law Journal, ortega v. city of new york, robert s. kelner, Spoliation, Zubulake Tagged with

The “Googling Juror”

By on March 21, 2012

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?

 

Filed under Dr. Ken Broda-, Duke, Facebook, friending, googling juror, Hon. Amy J. St. Eve, Jury Instructions, Law, Litigation Issues and Factors, Review', St. Eve & Zimmerman, Technology, Tweeting Tagged with

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

By on March 20, 2012

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.

 

Filed under bias, conflict of interest, Daubert, Daubert v. Merrill Dow Pharmaceuticals, Inc, Federal Court Litigation, Federal Judicial Center, National Research Council of the National Academies, Reference Manual on Scientific Evidence: Third Edition Tagged with ,

Suspect Toxic Mold Suit Reinstated

By on March 16, 2012

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. 

Filed under Cornell v. 360 West 51st Street Realty, LLC, Eckhard Johanning, expert testimony, Fraser v. 301-52 Townhouse Corp., Frye v. U.S., Mold, toxic mold Tagged with ,

The Reverse Environmental Impact Statement

By on March 14, 2012

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. 

Filed under Ballona Wetlands Land Trust v. City of Los Angeles, CEQR, Climate Change, DEC, EIR, EIS, Michael B Gerard, NEPA, Real Estate, SEQRA Tagged with

← Older posts

Newer posts →