New York’s First Department Adopts Even More Of Zubulake

By on March 9, 2012

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. 

Filed under E-Discovery, Electronic Discovery, First Department, U.S. Bank N.A. v. GreenPoint Mortgage Funding, Inc, Voom H.D. Holdings v. EchoStar, Zubulake Tagged with ,

Challenging Plaintiff’s Proof of Reasonable Alternative Design

By on March 6, 2012

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. 

Filed under challenging plaintiff, Design Defect, Elbert S. Dorn, feasible alternative design, IADC, Nexsen Pruet, LLC, Toxic Tort/Product Liability Litigation Tagged with ,

US Supreme Court Rules Asbestos Claim Preempted

By on March 5, 2012

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.

 

 

 

 

Filed under Asbestos, design defect claim, Epstein Becker and Green, failure to warn claim, Kagan, Kurns v. Railroad Friction Products Corp, LIA, Locomotive Inspection Act, Mesothelioma, Nick Allison, Pre-emption, Sotomayor, Thomas, United States Supreme Court Tagged with

Fiber Type Crucial In Defending Asbestos Claims

By on March 2, 2012

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.
 

Filed under Amphibole, Asbestos, Chrysotile, Fiber Type, Latency, Linear, Model, Robert Manlowe, threshhold', William G. Hughson, Williams Kastner Tagged with

Connnecticut Court Orders Metadata Produced

By on February 29, 2012

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. 

Filed under Connecticut Complex Litigation, document production, E-Discovery, Electronic Discovery, Hon. Barbara Brazzel-Massaro Tagged with

Computers Replacing Lawyers In Reviewing Documents?

By on February 27, 2012

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. 

 

 

Filed under computer assisted review, E-Discovery, Forbes.com, matthew nelson, Monique Da Silva Moore v. Publicis Groupe & MSL Group, SDNY Tagged with

Forum Non Conveniens: Be Careful What You Ask For

By on February 27, 2012

In defending a United States defendant in an action involving a foreign accident and foreign claimants, it is almost a knee jerk reaction to file a motion to dismiss on forum non conveniens grounds. In a thought provoking article, “Be Careful What You Ask For – the Forum Non Conveniens Dilemma,” Cozen O’Connor lawyersRichard Dunn and Raquel Fernandez bring this practice into question. Mr. Dunn and Ms. Fernandez urge a different standard for analyzing whether to file the motion. The question that should be asked is whether it is beneficial for the U.S. defendant company to be subject to the laws and procedures in the foreign jurisdiction.

Thus, it is critical to understand the foreign jurisdiction’s law before your client is stuck there in litigation. A few of the considerations to think about include:

(1) Can your client get out of the case on summary judgment? Many foreign jurisdictions do not provide for summary judgment. Therefore, all matters before a court must be tried to conclusion, which may potentially lengthen and increase the cost of proceedings;

(2) How much time will your client have to prepare its case? Some foreign jurisdictions allow a short time for defendant to mount its defense, which may be an important consideration in a complex product liability case where it is necessary to hire and prepare appropriate experts. Moreover, the documentary evidence that supports your client’s case has to be translated into the foreign jurisdiction’s official language; 

(3) Will discovery be allowed? In some foreign jurisdictions, there is nothing akin to the discovery procedures that benefit parties in the United States;

(4) Will expert testimony be allowed? Often, the foreign court will place great emphasis on the government accident investigation report rather than on the expert evidence. In some jurisdictions, your client’s liability may be determined by the government authorities charged with investigating the accident, although they may not be competent;

(5) What is the role of the judge? Is the court the sole trier of fact?;

(6) Are there multiple claimants? You should determine whether all of the claimants involved in the incident can be consolidated before the same tribunal. If each claimant is able to file suit in his or her own locale, the client may need to defend numerous actions before numerous judges in different locations; and

(7) What are the attitudes towards the United States and American businesses in the foreign jurisdiction?

Anti-American bias and corruption figured prominently in Chevron’s environmental litigation in Ecuador. In the early 1990’s, Ecuadorian claimants filed suit in the United States alleging that Texaco’s operations polluted the rain forests and rivers in Ecuador, resulting in environmental and personal injury damages. The lawsuit was dismissed in 2002 on forum non conveniens grounds and the case was refiled in Ecuador the following year. In February 2011, an Ecuadorian court entered an $18,000,000,000 judgment against Chevron (which had earlier acquired Texaco).

Scott A. Edelman, a partner at Gibson Dunn in Los Angeles, made a compelling presentation at a recent IADC meeting concerning serious irregularities and a lack of impartiality in the conduct of that case. Chevron alleges that the plaintiffs’ lawyers are guilty of fraud and misconduct and have filed a civil lawsuit under RICO in New York federal court against the trial lawyers and consultants involved. Chevron’s suit alleges that these attorneys and consultants used the Ecuador lawsuit to threaten Chevron, mislead U.S. government officials, and harass and intimidate Chevron employees, to extort a financial settlement from the Company. Chevron further alleges that plaintiffs built their case through fabricated evidence and a campaign to incite public outrage.

It is likely that the pervasive fraud that permeated the Ecuador litigation would not have occurred in a U.S. federal court. As a result of Chevron’s experience, a U.S. defendant would have to think twice about filing a forum non conveniens motion if there was any likelihood that the case would end up in Ecuador or somewhere similar.

 

Filed under Chevron, Connor', Cozen O, Ecuador, Environmental, Federal Court Litigation, Forum Non Conveniens, Gibson Dunn, IADC, International Association of Defense Counsel, rain forest, Scott Edelman, Texaco Tagged with

DEC Staff Buildup Required for Hydrofracking Permitting

By on February 10, 2012

DEC Commissioner Joe Martens told a panel of state lawmakers on February 7, 2012,  that it was “conceivable” that a handful of hydraulic fracturing permits could be issued in 2012 but that a final decision is “months, not years away.”  Martens cautioned that the number of permits that could be issued in 2012 would be “extremely limited” in part due to the “considerable work that remains before we finalize our regulatory framework.”

 

An additional hurdle to overcome before hydraulic fracturing can commence in earnest is the need to build up DEC’s regulatory staff to sufficiently oversee the proposed activity.  According to the Ithaca Journal, Commissioner Martens stated that DEC currently employs 16 gas drilling regulators, but estimates that the Agency would need 140 additional regulatory staffers during the first year that permits are issued.  According to the Public Employees Federation (“PEF”), DEC has lost more than 800 full time employees since 2008 because of budget cutbacks.  The PEF represents some 1,700 scientific and technical workers at DEC.  Wayne Bayer, a shop steward for PEF, advised lawmakers that his union continues to support a moratorium on hydrofracking because existing staff shortages at DEC do not support this labor-intensive mission.

 

Based upon Commissioner Martens’ statements and the comments of Albany lawmakers, it does not appear that any significant hydraulic fracturing activity will be permitted until 2013, at the earliest.  We should look to any new DEC staff hires as a sign of New York’s commitment to allow fracking to commence.

Filed under Albany, DEC Commissioner Joe Martens, hydraullic fracturing, Oil & Gas, permitting, Public Employees Federation, staffing, Wayne Bayer Tagged with

Excluding Chemical Risk Assessment Evidence From the Courtroom

By on February 7, 2012

When governmental or quasi-governmental agencies formulate a chemical risk assessment, it is part of their legitimate exercise of public health, policy-oriented regulation.  Regulators often develop risk assessments due to scientific uncertainty concerning the toxicity of a particular compound and utilize conservative risk models in the interest of protecting public health and the environment.  Thus, when a substance is labeled “possibly carcinogenic” or even “probably carcinogenic” by an agency, it may have little or no bearing on general and specific causation issues.

For this reason, risk assessments, and the assumptions that go into making them, have no legitimate place in toxic tort litigation.  Agency classifications and risk assessment certainly cannot legitimately be used by a toxic tort plaintiff to help establish his case-in-chief.  Agency classification and risk assessments are based upon standards that very significantly from the burdens of proof in a courtroom.  Thus, they are not legally relevant and pose a significant risk of confusion to jurors and prejudice to defendants. 

In a compelling article appearing in the Bloomberg BNA Toxics Law Reporter (February 3, 2012) titled, “When ‘Likely’ Does Not Mean ‘More Likely Than Not’: The Dangers of Allowing Government Chemical Classifications and Numeric Risk Assessments at Trial,” Mark P. Fitzsimmons and Leah M. Quadrino at Steptoe and Johnson, and Sneha Desai at BASF, describe how governmental agencies perform risk assessments and how the assumptions employed in reaching these risk assessments can easily mislead lay persons serving on juries in assuming that particular chemicals are carcinogenic to humans when, in fact, they may not be. 

Frequently, plaintiffs seek to introduce as evidence general and specific causation and increased risk.  The authors observe that the critical distinction between a regulatory classification of a chemical and the burden of proof required in court has been widely litigated.  Thus, in Gates v. Rohm and Haas Co., No. 10-108, 2011 U.S. App. LEXIS 17756, *33 (3d Cir. Aug. 25, 2011), the Third Circuit held that, “plaintiffs could not carry their burden of proof for a class of specific persons simply by citing regulatory standards for the population as a whole.” 

Similarly, other courts have excluded expert testimony for relying on regulatory ratings or standards in determining whether a plaintiff’s exposure to a substance above regulatory limits was sufficient to establish causation.  Baker v. Chevron USA Inc., 680 F.Supp. 2d. 865, 880 (S.D. Ohio 2010).  Defense counsel also must be vigilant against a court’s use of numeric risk assessment as a benchmark for determining increased risk.  The takeaway is that “probably” in a regulatory context does not mean “more probable than not” in a tort context.

Filed under Agency Classification, BASF, Increased Risk, possibly carcinogenic, probably carcinogenic, Steptoe & Johnson, Toxic Tort/Product Liability Litigation Tagged with

New York’s First Department Adopts Federal E-discovery Standard

By on February 3, 2012

On January 31, 2012 decision, the Appellate Division, First Department, adopted the federal Zubulake standard for spoliation of electronic evidence in Voom H.D. Holdings v. EchoStar Satellite, LLC, 600292/08.  Voom is the first New York state appellate decision to apply the standard for spoliation of electronic evidence set forth in Southern District Judge Shira Scheindlin’s decision in Zubulake v. UBS Warburg, LLC, 220 FRD 212.  Brendan Pierson wrote an article about the case in the New York Law Journal on February 1, 2012.

We have discussed the heightened sensitivity to E-discovery spoliation in state courts in this space previously.  See blog post titled, “New E-discovery ‘Best Practices’”, (January 5, 2012). 

 

The First Department’s adoption of Zubulake’s reasoning has far reaching consequences in commercial litigation in state court.  It potentially opens the floodgates to all of the post-Zubulake jurisprudence that has been percolating in federal courts over the past several years.  I predict that New York appellate courts will see a number of interlocutory discovery appeals on E-discovery in coming months.

Filed under E-Discovery, Electronic Discovery, Voom H.D. Holdings v. EchoStar, Zubulake Tagged with

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