LexisNexis Nominates Blog As One Of Best!

By on October 28, 2011

LexisNexis Top 25 Tort Blog NomineeThe LexisNexis Litigation Resource Community announced today that it has nominated the ToxicTortLitigationBlog for National Top 25 honors among Tort Blogs.  LexisNexis’ Press Release stated:

We are inviting tort law practitioners to comment on our list of nominees. If you’d like to request that readers support your nomination, please ask them to comment on the announcement post on our Litigation Resource Community…

Each comment is counted as a vote toward the supported blog. To submit a comment, visitors need to log on to their free LexisNexis Communities account.  If you haven’t previously registered, you can do so on the Litigation Resource Community for free. The comment box is at the very bottom of the  blog nomination page. The comment period for nominations ends on Nov. 17, 2011.  We will then post the Top 25 Tort Blogs of 2011. Thereafter, our community will vote to choose the Top Blog through a Zoomerang survey.

Filed under LexisNexis, Litigation Issues and Factors, nomination, Top 25 Tort Blogs, Toxic Tort Litigation Blog, Toxictortlitigationblog.com, vote, voting Tagged with

Non-Admitted In-House Counsel Can Practice in NYS

By on October 17, 2011

I am pleased to report that the New York Court of Appeals has amended the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law to permit in-house counsel admitted in any U.S. jurisdiction to be able to register with the Court of Appeals and provide legal advice in New York to the lawyer’s employer.  For years, non-admitted in-house counsel have been hindered in their ability to provide advice to their employers concerning New York law issues at times due to the restrictions that have now been lifted.  There are two exceptions to the new rule: (1) such advice does not include court litigation representation; and (2) the Court rejected the NYS Bar Association’s recommendation to include lawyers admitted to a home jurisdiction outside the United States. 

Filed under New York State Litigation

Public Comment For NYS’s Draft Hydro Fracking Draft Regulations

By on September 29, 2011

 

Recently, New York DEC issued its draft regulations for hydraulic fracturing based on the proposed requirements in the revised supplemental generic EIS released earlier this month. Public comment began yesterday and will run concurrently with the public comment period on the DSGEIS, which ends on December 12.  DEC  also released the proposed SPDES general permit for storm water discharges associated with hydraulic fracturing.  Public hearings will be held during November and here in New York on Nov. 30 at Tribeca Performing Arts Center. No permits can be issued for hydraulic fracturing until the SGEIS is finalized and the DEC issues the required Findings Statement.  The summary of express terms can be found on the DEC website at  http://www.dec.ny.gov/regulations/77373.html

Filed under DEC, Hydraulic Fracking, Hydraulic Fracturing, NYDEC, Oil & Gas, public comment, Regulations Tagged with

Marcellus Shale Progress Addressing Methane Contamination

By on September 21, 2011

At a recent Shale Gas Insight conference in Philadelphia, Aubrey McClendon, the outspoken Chairman of Chesapeake Energy, expressed optimism concernining progress made by industry to address methane contamination of drinking water supplies due to faulty gas well construction. According to McClendon, "Problem identified; problem solved".  However, according to the Times-Tribune writer, Laura Legere, DEP data concerning environmental violations demonstrates that McClendon’s optimism may be premature and that problems with cemented steel well casings designed to protect groundwater from gas and fluids in Marcellus wells perist.  Of course, casing and cementing violations do not necessarily indicate that gas has migrated or will migrate into drinking water supplies. Moreover, methane is present in many water wells in PA from natural pathways unrelated to gas drilling.  However, the crux of environmentalists’ opposition  to hydrofracking appears to center on the gas casing and cementing concerns.  In his comments, McClendon credited an "updated and customized casing system" included in PA state regulations which will hopefully prevent new instances of gas migration.  It is recognized, however, that the geology in Marcellus Shale is neither uniform nor predictable and that the geologic issues are complex.  In planning for Marcellus Shale natural gas exploration in New York, NYDEC personnel have taken to heart (we hope) the lessons of  PA’s experience–good and bad–with hydrofracking and will craft a set of regulations in NY that will promote safe natural gas exploration on a sound economic footing. DEC’s website contains a detailed discussed of DEC staffers’ visit to PA in July ’11 that detailed the environmental issues in PA that NY needs to address in its regulatory framework.

Filed under Audrey McClendon, Chesapeake Energy Corp, gas casings, laura Legere, Marcellus Shale Formation, NYDEC, Oil & Gas, PA DEP, Shale Gas Insight conference, Times-Tribune Tagged with

Gas Drillers To Disclose Fracking Chemicals

By on June 20, 2011

The Wall Street Journal reported today that Texas Governor Rick Perry signed into law Friday a bill that will require companies to make public the chemicals they use on every hydraulic fracturing job in the state.  Texas’ law is significant because the oil and gas drilling industry, which is powerful in Texas, vocally supported the measure.  Opponents to fracking in the Marcellus Shale region of  New York and Pennsylvannia have long accused the drilling companies of secrecy for failing to disclose the chemicals used in hydrofracking.  Widespread support for this measure, and similar measures in other states, provide some indication of just how untenable the industry’s former stance had been.  Fracking involves blasting millions of gallons of water, sand and chemicals into the ground to break up oil and gas-bearing rocks.  Environmentalists and residents in drilling areas fear that the fracking process may result in chemical contamination of drinking water aquifers.  Until now, industry’s argument that fracking is safe has been hamstrung by drillers’ refusal to disclose the chemicals used.  Going forward, the fracking debate can now refocus on the important issues, such as the likelihood that faulty well construction may result in contamination of an aquifer.  According to industry spokespersons, tens of thousands of wells have been drilled with relatively few problems.  In those rare instances where a problem has been reported, the industry believes that the problem is most likely attributable to an improperly constructed well.  Earlier this year, some of the larger gas producers, notably Chesapeake, Chevron and BP, announced that they would voluntarily begin to publicize the chemicals they use online at FracFocus.org. This website is a joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

Filed under Chesapeake Energy Corp, disclosure, FracFocus.org, Fracking, Governor Rick Perry, Hydraulic Fracturing, Oil & Gas, secrecy Tagged with , ,

No Causal Link On Cell Phone Cancer Risk

By on June 10, 2011

Consumer Reports, among others, reported this week that the International Agency for Research on Cancer ("IARC"), which is part of the World Health Organization ("WHO"), has classified low-level radiation from cell phones as "possibly carcinogenic to humans" based on limited evidence linking cell phone use to glioma, a type of brain cancer.  Although Consumer Reports concluded in its article that IARC’s action was based on "limited evidence" and doesn’t "convincingly" link typical cell phone use with cancer, an American public that often skims only headlines of articles, may be susceptible to appeals of sympathy by plaintiff lawyers representing long-time cell phone users with brain cancers.  Throughout the 1980’s the utility industry battled spurious claims, premised upon junk science, that electromagnetic field radiation was responsible for "cancer clusters" of child leukemias and other dreaded diseases.  Although virtually every major EMF toxic tort claim was successfully defended by industry over a period of years, tens of millions of dollars was spent defending these lawsuits, which were brought in courts all  across the country.  As in the case of low dose radiation from cell phone use, there were  millions of millions of potential plaintiffs in the EMF cases and all of the prospective utility industry defendants had deep pockets. Following issuance of the IARC release, a spokeswoman for the Federal Communications Commission ("FCC") stated that FCC currently requires that all cell phones meet safety standards based upon the advice of federal health and safety agencies.  Moreover, according to the National Cancer Institute’s Surveillance Epidemiology and End Results Program ("SEER"), the incidence of brain cancer in the United States has actually declined over recent years as cell phone use has skyrocketed.  Despite these reassuring pronouncements, well-heeled plaintiff lawyers may bring some cases as trial balloons to test industry resolve based upon other equally ambiguous pronouncements, such as the contention that cell phone use can affect "brain function".  As in the cases brought against chemical manufacturers in the 1980’s,  which alleged that chemicals cause generic  "immune system dysfunction", enterprising plaintiffs may attribute any number of injuries to purported "brain function" impacts.  Hopefully, courts will continue to exercise their gatekeeper roles to maintain some semblance of scientific rigor in the courtroom to exclude inconclusive science  if these cases are brought. 

Filed under brain cancer, cell phones, Contaminants & Toxins, Federal Communications Commission, Industries, International Agency for Cancer Research, Litigation Issues and Factors, Toxic Tort/Product Liability Litigation Tagged with

Federal Court Awards $367k in E-discovery Costs to Prevailing Parties

By on June 7, 2011

 Duane Morris reported today concerning a decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2011 U.S. Dist. LEXIS 48847 (W.D. Pa. May 6, 2011). There, the U.S. District Court for the Western District of Pennsylvania held that the prevailing defendants at trial  may recover a whopping $367,000 in e-discovery costs because such costs are the modern-day equivalent of duplication costs.  Although the court took care to limit its ruling to the "unique" facts associated with this case, should litigants consider more narrowly tailoring their discovery requests and seeking early agreement on the scope of electronic productions?  Following an affirmance of an award of summary judgment to defendants by the Third Circuit, the defendants sought to recover their costs—the vast majority of which were related to e-discovery. The plaintiff objected, contending that the costs were not taxable pursuant to 28 U.S.C. § 1920(4), which permits recovery of "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." The issue before the district court was the applicability of § 1920(4) to electronically stored information, an issue which has not yet been addressed by the Third Circuit. In its ruling, the district court first focused on the words "exemplification" and "copying." While recognizing that these terms "originated in and were developed in the world of paper," it viewed the steps a vendor takes to produce electronic data as the "electronic equivalents of exemplification and copying."  Defendants were able to demonstrate that plaintiff  aggressively pursued e-discovery under the case management plan, and the court found that the requirements and expertise necessary to retrieve and prepare documents for production were an indispensable part of the discovery process.  Although the district court limited the holding to the facts presented by the case, it is likely that the expanded view of 1920(4) will be debated in other district courts around the United States in the months to come. Although many courts have attempted to allocate the costs of e-discovery fairly before a party undertakes this obligation, this cases suggests that courts may seek to revisit the allocation of e-discovery costs following entry of judgment.  According to the decision, it is up to the party seeking to recover these costs to demonstrate that the costs at issue were incurred for the sole purpose of complying with an adversary’s demands rather than, for example, improving the appearance of documents for trial presentation purposes. 

Filed under Duane Morris, E-Discovery, Electronic Discovery, Race Tires America, Inc. v. Hoosier Racing Tire Corp Tagged with ,

Promoting Diversity in the Courtroom

By on May 24, 2011

 

Judge Harold Baer, Jr., who sits on the SDNY bench, has the courage of his convictions to do right even when others disagree.  In October 2010, Judge Baer issued an order in a class action litigation In Re: Gildan Activewear, Inc., Securities Litigation 08-cv-5048 directing two of the largest plaintiff class action law firms to “make every effort” to put at least one woman and one minority lawyer on the case. Although Judge Baer advised counsel that his order was not intended to be critical of lead counsel or their firms, he considered diversity considerations  goals that he would urge be met in similar cases that would come before him in the future.  Over his years of judicial service, Judge Baer was impressed that so many of the law firm litigation teams in his courtroom lacked diversity.  Judge Baer expressed concern over the lack of minority and female lawyers in law firms generally and saw the counsel approval process as a tool at his disposal to address what he considered a persistent problem.  Complaints by members of the bar that Judge Baer’s directive was an abuse of his counsel approval powers under thePrivate Securities Litigation Reform Act of 1995 miss the point entirely.  Judge Baer’s intention was not to impact stare decisis under the act.  Rather, it was a courageous effort by a federal district judge to call attention to a serious problem in our profession.  We applaud Judge Baer.

Filed under class action litigation, ethnic diversity, gender diversity, Hon. Harold Baer, Jr., In Re Gildan Activewear, Inc, law firm diversity, Litigation Issues and Factors, minority lawyers, racial diversity Tagged with , ,

Court Rejects Toxic Telephone Pole Lawsuit

By on May 23, 2011

On November 6, 2009, we reported here concernining a case of first impression brought by the Ecological Rights Foundation (“ERF”) in federal court in California.  In her decision, dated March 31, 2011, the Hon. Saundra Brown Armstrong, sitting in the United States District Court for the Northern District of California (Oakland Division), dismissed ERF’s  environmental claims brought  against Pacific Gas & Electric (“PG&E”) and Pacific Bell Telephone (“Pacific Bell”).  The Ecological Rights Foundation alleged that the Defendants’ wooden utility and telephone poles were pressure treated with an oil-based pentachlorophenol preservative which was “oozing” to the surface and being washed off of the Poles, thereby contaminating San Francisco Bay and adjacent waterways.  As a result of the migration of this material over time from the Poles into the soils, ERF alleged that “dioxin-like” compounds were released into the environment placing surrounding homeowners, commercial fisherman and the general public at significant risk.  As a practical matter, if ERF had prevailed, PG&E and Pacific Bell may have had to replace tens of thousands of Poles throughout California.

In dismissing the case, which was brought pursuant to the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”), the Court examined the required showings under each statute.  The CWA distinguishes between point and nonpoint sources.  A point source is defined in the statute as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  All other sources of pollution are characterized as “nonpoint sources.”  To succeed, ERF had to demonstrate that the Defendants’ discharges were point source discharges., looking for an attorney ? here is a speeding ticket defense that you can count on at any time.

In dismissing the CWA claim, the Court held that “point and nonpoint sources are not distinguished by the kind of pollution they create or by activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance.”

The key issue in the analysis of ERF’s RCRA claim was whether the chemical preservatives used on the Poles qualified as a “solid waste” within the meaning of RCRA.  The term “solid waste” is statutorily defined as “discarded material.”  Although not defined by statute, EPA regulations specify that “discarded material” includes any material that is “abandoned.”  ERF alleged that solid waste was disposed of into the environment when the chemical preservative leaked, spilled or dripped from the Poles due to rain, and when dust impregnated with the chemical is blown into the air during dry seasons.  In dismissing the RCRA claim, the Court held that the “flaw in plaintiff’s theory of disposal is that in this case, there is no allegation that Defendants engaged in any conduct that resulted in the discharge of the chemical preservative. To the contrary, Plaintiff merely alleges that the purported contamination is the result of natural forces – mainly, rain and wind… Such allegations, on their face, are insufficient to establish that Defendants engaged in the ‘disposal’ of hazardous waste under § 6972(a)(1)(B).”  The Court rejected Plaintiff’s theory that the “passive” spilling or leaking of materials from a place of containment into the environment constitutes “disposal” of solid waste.  In so holding, the Court distinguished prior cases that found that leakage fromgasoline USTs may be actionable under RCRA.  The UST holdings are only applicable to situations where the discharge of hazardous waste leaked or spilled from a container intended to hold the waste.  In contrast, the Court found that “the Poles are not containers; but rather, they were used to suspend wires for the transmission of electricity for PG&E and data for Pacific Bell.”  Thus, liability under RCRA ¶ 7002 did not attach based on the “discharge” of chemical preservatives from the Poles attributable to natural forces, such as rain and wind.

Filed under Bell', Clean Water Act, Contaminants & Toxins, dioxin, Litigation Issues and Factors, Penta, Pentachlorophenol, PG&E, Public Utilities, RCRA, telephone poles, Toxic Tort/Product Liability Litigation Tagged with

AEP v. CT: Transcript of Supreme Court Argument

By on May 20, 2011

For those of you for whom reading the news and tabloid reports about the oral argument before the US Supreme Court in AEP et al v. Connecticut et al on April 19, 2011, was not enough, we attach the full unofficial transcript here. 

Filed under American Electrical Power v. Connecticut, Climate Change, Supreme Court Tagged with

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