A Deal Is A Deal: Ecogen Wind Prevails In Windfarming Dispute

By on January 7, 2014

The New York Law Journal reported on January 2, 2014 that the Town of Prattsburgh, which, during the relevant time, had virtually no laws, codes or requirements on the books governing the installation of wind turbine facilities, was not permitted by the court to retroactively preclude Ecogen Wind from building a wind farm in Steuben County, New York.

In a unanimous Memorandum and Order issued by the Appellate Division, Fourth Department on December 27, 2013, in Ecogen v. Town of Prattsburgh, CA 12-02307 (4th Dept. December 27, 2013) the court applied traditional contract jurisprudence to prevent the Town of Prattsburgh from voiding the terms of a settlement of prior litigation with Ecogen Wind that permitted the wind farm development to proceed.

The court held that the “parties were bound by the terms of the settlement and the court was bound to enforce it.” In March 2009, Ecogen Wind was advised in writing by the Code Enforcement Officer for the Town of Prattsburgh that there was no legal impediment to building wind turbines within the municipality and that no permits were needed.

According to the Ecogen website, the company:

….. proposes to construct 34 ± wind turbine units for the purpose of generating 79.5 megawatts, or less, of electricity in the Town of Prattsburgh, Steuben County and the Town of Italy, Yates County, New York. An overall study area of approximately 24,000 acres was identified within which the individual sites for the turbine units will be selected.

Early on, Ecogen submitted an application to the Steuben County Industrial Development Agency ("SCIDA") for financial assistance relative to the proposed project.

In its role as lead agency, SCIDA initiated the environmental review process pursuant to the State Environmental Quality Review Act (6 NYCRR Part 617) and performed a coordinated review with other involved or interested agencies.  SCIDA issued a Positive Declaration, requiring preparation of an Environmental Impact Statement In accordance with 6 NYCRR Part 617. A Generic Environmental Impact Statement was selected as an appropriate means to assess potential impacts for the project.

Despite there being no applicable zoning law or building code provision, Ecogen Wind still sought formal town approval in an effort to accommodate local concerns about the project.  But Ecogen, which had the necessary state permits to proceed, was unable to reach agreement with the town and commenced an Article 78 action. The parties settled the case in late 2009 acknowledging that “no rules, permits or other authorizations from the town are required… to develop, construct and operate the project.”

Shortly thereafter, a new town board came into office that was unhappy with the deal struck by its predecessors. The new board repudiated the agreement, rescinded the settlement and imposed a moratorium on windfarming. As reflected by the Appellate Division’s decision, a municipality cannot have second thoughts and renege on the agreement once a settlement is reached.

Although it is difficult to gauge the intensity of the debate over the project without living in upstate New York and participating first hand, it may be inferred from a review of the website of Advocates for Prattsburgh that tensions were high among townspeople when the new town board came into office and sought to rescind the deal.

In its Mission Statement, Advocates for Prattsburgh makes an impassioned plea to support the opposition effort:  

Located in northern Steuben County and nestled between Keuka and Canandaigua Lakes, Prattsburgh, NY is an idyllic township of hills, woods and farms. Advocates for Prattsburgh is a not-for-profit, volunteer organization run and financially supported by and offering a voice to resident and non-resident Prattsburgh landowners, as well as concerned citizens in the surrounding towns. Two wind farm companies – Ecogen and UPC – plan to construct nearly one hundred, 400′ high wind turbines in Prattsburgh, interspersed between the homes and properties of non-participating landowners. The noise, negative health effects, ice throws and overwhelming visual dominance of these huge industrial machines pose a severe threat to our town, the value of our property, our personal safety, and our freedom to live our lives in peace and quiet. Recent action by the Prattsburgh Town Board to use eminent domain to condemn the land of property owners who refused to grant easements to UPC for the Windfarm Prattsburgh Project should be a wake-up call for what is planned for our future and our freedoms.

Our position is not against wind power, but against the inappropriate siting of these industrial wind turbines. These massive, 400′ high factories should be placed in an industrial park, in which all the property within its boundaries is contiguous and is either owned by, leased to, or easements voluntarily granted to the wind power companies. The siting of these turbines within this industrial park should also be set back from the properties lines of non-participating landowners sufficient to protect the personal health and safety of property owners, the value of their homes, and their desire not to be dominated by noise-making adjacent factories as tall as the pyramids of Egypt.

Public concerns over these potential environmental impacts, both real and imagined, represent the biggest challenge the wind industry faces in siting these projects.  A map of the project (as depicted by the Advocates for Prattsburgh) is attached.

 

 

Filed under Ecogen v. Town of Prattsburgh, Ecogen Wind, Steuben County, Wind Power, wind turbines, windfarming Tagged with

How Environmental Lawyers Can Avoid Getting Sued For Legal Malpractice?

By on December 30, 2013

No matter how conscientious, environmental lawyers, like other attorneys, are regularly sued for legal malpractice.  It is not difficult to imagine some of the dicey situations where the environmental practitioner may fall prey to such claims:

(1) a municipality sues its lawyer after the municipality defaults on its bonds because of an unforeseen environmental problem that prevented the subject property from being developed. The lawyer is accused of not having described the risks inherent in the property’s development and for not conducting a proper environmental investigation;

(2) a landfill developer sues its lawyer after failing to obtain a landfill expansion permit because the lawyer failed to provide legal notice of the proposed expansion to adjacent landowners;

(3) the purchaser of commercial property sues its lawyer after discovering contamination on its recently obtained property, claiming that the lawyer never informed it of the existence of prior environmental violations or the consequences of an “as is” clause in the purchase agreement;

(4) a New Jersey seller of an industrial parcel sues its lawyer after discovering that it retained significant post-closing environmental liability under the ISRA statute; and finally,

(5)  a cost recovery plaintiff sues its lawyer for failing to pursue all relevant parties in a cost recovery litigation.

Is there a strategy for the environmental practitioner to defend these claims, or to prevent them from being brought in the first instance?  Michael L. Shakman, Diane F. Klotnia, and Edward W. Feldman, partners at Miller Shakman & Beem LLP in Chicago, have written an excellent article titled, “Why Do Environmental Lawyers Get Sued for Malpractice? What Can They Do to Avoid a Malpractice Claim?”  that appeared in the Bloomberg BNA Toxics Law Reporter, 28 TXLR 1285, on November 21, 2013.

The primary takeaway of Shakman et al.is that it is imperative to document in writing precisely what the scope of the retention will be and the tasks to be undertaken pursuant to that retention, and what it won’t be– those tasks that are NOT included in the retention.

In the scenarios described above, some of which are reported by the authors, there is often stark disagreement between lawyer and client concerning either the scope of the retention or the tasks to be performed. Sometime the dispute is over when the retention ended.  Here, then, is the authors’ advice (both quoted and paraphrased:)

(1) Eliminate uncertainty at the outset of the representation by clearly and explicitly delineating the scope of the engagement in a written engagement letter. Spell out the tasks the lawyer has agreed to undertake and make clear that unless the scope of work is altered by agreement in writing, the lawyer is not responsible for any other tasks. The lawyer may also want to specify examples of the tasks for which he or she is not responsible, although admittedly this may be the last thing on a lawyer’s mind after winning a new client engagement;

(2) If the engagement letter provides for a formal method for documenting changes to the lawyer’s scope of work – and if the lawyer adheres to this practice during the course of the retention, the lawyer is more likely to be protected against after-the-fact assertions the lawyer was supposed to take on tasks not described.

Thus, in one case discussed by Shakman et al., which involved the lawyer’s role in assisting the municipality in a bond offering, the lawyer successfully defended the claim by relying on his engagement letter, which made clear that the retention did not include a review of the Phase I Environmental Site Assessment.

(3) At times there may be some activity that the lawyer might perform, in the interest of being exhaustive, but does not perform because the client did not want to incur the additional cost. However, if it turns out in hindsight  that relevant information was overlooked because of cost limitations, the lawyer will likely be blamed anyway. Again, “papering the file” is the best means for protection against Monday morning quarterbacking.   If the lawyer discussed with the client the pros and cons of expending additional time, and incurring significant fees, on potentially useful but discretionary discovery on investigation, that consultation – and the conclusion reached – should be confirmed in writing to the client.

In small to medium-size real estate transactions, there are countless instances where the client has been advised that it would be prudent to spend several thousand dollars to perform additional investigation to identify the presence of what might possibly be, for example, an old underground storage tanks on the subject property only for the practitioner to be instructed that the client that is well aware of the risk but does  not want to incur additional costs? 

Hopefully, all of those memos to the file  (in the early years) and emails (in the latter years) have been preserved against a future day when, at one or more of those sites, a nasty, leaking UST is uncovered and the client demands to know why the environmental lawyer didn’t undertake additional precautionary steps at the time.

All of the admonitions addressed to environmental lawyers apply equally to environmental consultants, who are also often unfairly taken to task for not performing work, or providing advice, outside their written scope of work.

 

Filed under bond offering, cost recovery litigation, engagement letter, environmental consultants, environmental lawyer sued, environmental legal malpractice, ISRA, landfill developer, legal malpractice, Litigation Issues and Factors, Miller Shakman & Beem LLP, Phase I Environmental Site Assessment, puit it in writing, retention letter, scope of work, UST, Why Do Environmental Lawyers Get Sued for Malpractice? Tagged with

How You Draft A Liability Disclaimer Really Matters

By on December 27, 2013

Contract negotiations involving limitations on liability and disclaimers of damages for breach of contract and tort claims can have significant ramifications for the contracting parties if the business relationship falls apart and litigation results. Under New York law, how the parties negotiate the allocation of risk of loss is enormously important.

This lesson was brought home in a noteworthy New York Court of Appeals decision in Abacus Federal Savings Bank v. ADT Security Services, Inc. et al., 18 N.Y.3d 675, 944 N.Y.S.2d 443 (N.Y. 2012). In that case, Abacus Federal Savings Bank (“Abacus”) brought an action against two firms that provide security services, ADT Security Services (“ADT”) and Diebold, Inc. (“Diebold”) to recover damages under tort and contract theories for losses incurred during a burglary at the bank.

Prior to the burglary, ADT contracted with Abacus to install and maintain a 24 hour industry-certified central security station to protect the branch premises and the vault. The ADT system was replete with motion and smoke detectors, and an alarm system. Abacus contracted with Diebold to provide a backup alarm system that included central system monitoring and “signal monitoring” which would activate an alarm if ADT’s alarm system failed to operate. The gravamen of plaintiff’s complaint was that neither security system worked appropriately during a burglary.

To cut to the chase, the Court of Appeals upheld the dismissal of all of plaintiff’s claims against Diebold, but permitted plaintiff’s breach of contract claim against ADT to proceed. Why was one defendant successful and the other not?

A good analysis of the case is contained in an article titled, “Think Twice About that Liability Disclaimer Carveout,” authored by Adam Chernichaw and Caitlin Johnston of White & Case, which appeared in Law360 on December 19, 2013.

Chernichaw and Johnston observe that the contracts between Abacus and ADT, and between Abacus and Diebold, both limited each security company’s liability to $250. However, the Abacus-Diebold contract expressly required Abacus to ensure against losses in the event of theft and to “look solely to its insurer for recovery of its loss… [and waive] any and all claims for such loss against Diebold.” The contract further required Abacus to obtain a policy that expressly allowed such a waiver. In contrast, the Abacus-ADT contract stated only that “insurance, if any, covering [loss] was Abacus’ responsibility.”

Chernichaw and Johnston note that, citing a public policy exception, the court allowed Abacus to proceed in its case for damages based on allegations of ADT’s gross negligence despite the contract’s limitation of liability. With respect to Abacus’ claims against Diebold, however, the Court of Appeals upheld the granting of Diebold’s motion to dismiss.

The key distinction made by the court was that one contract provision sought to exculpate the defendant from liability but that the other “simply require[d] one of the parties… to provide insurance for all of the parties.” The latter provision withstands even allegations of gross negligence. Thus, the Abacus-Diebold contract was clearly more effective in shielding Diebold for liability for its own gross negligence.

What is the takeaway for lawyers negotiating contractual limitations of liability? New York courts will generally allow a party to insulate itself from liability resulting from its own negligence by way of an exculpatory clause. Similarly, a party may protect itself by limited liability to a nominal sum. However, the same is not true for exculpatory clauses that seek to prevent the imposition of damages for “grossly negligent conduct.”  Additionally, liquidated damages provisions are not enforceable against allegations of gross negligence.

In contrast to an exculpatory clause, indemnification provisions are unenforceable on public policy grounds only “to the extent that they purport to indemnify a party for damages flowing from the intentional causation of injury.”

Lawyers drafting their clients’ complaints in these cases should be mindful that the court will closely examine whether the facts alleged in the pleading support an assertion of gross negligence as opposed to garden variety negligence.  It is not sufficient to merely allege gross neglience and hope to escape the effect of an exculpatory clause in the client’s contract with the defendant.  In Abacus, the court found sufficient evidence of gross negligence in the bank’s allegation that defendants had been aware for months prior to the burglary that the securitiy system had been malfunctioning and had neither investigated the reason for the malfunction nor placed the bank of notice of a problem. 

 

Filed under Diebold, Inc, exculpatory clause, Liability Disclaimer, Litigation Issues and Factors, Think Twice About that Liability Disclaimer Carveout Tagged with , ,

CPSC Regulatory Issues Often Impact Product Liability

By on December 26, 2013

Regulatory enforcement by the Consumer Products Safety Commission (“CPSC”) is on the upswing. As product liability litigation and regulatory activities often become entwined, it is all the more important to appreciate the interconnection between litigation and regulatory compliance.  In a personal injury action, defending a product that has been subjected to the harsh glare of regulatory scrutiny can be challenging.

Plaintiffs in product liability litigation will routinely seek evidence of any civil penalty investigation by CPSC, including any assessment of  penalties. If the CPSC has sent a letter to a manufacturer to advise that it has made a preliminary determination that the product contains a substantial product hazard, to what extent is this evidence admissible in a product liability suit against the manufacturer?

In a well-written article, Kenneth Ross explores the interplay between CPSC concerns and product liability litigation in “The Intersection of Product Liability and Regulatory Compliance,” an article that appeared in “Strictly Speaking,” the newsletter of DRI’s Product Liability Committee (Vol. 10, Issue 3, Nov 15, 2013).

Ross observes that correspondence in the manufacturer’s files between the CPSC and the manufacturer, which may contain reports made under Section 15 and Section 37, or discuss subsequent corrective action, is discoverable. Although CPSC’s employees are not permitted by CPSC rule  to testify in litigation about anything done or not done by the Agency in connection with a report and subsequent corrective action, former CPSC employees are frequently recruited to testify. Moreover, as Ross reminds us, there is certainly no prohibition on plaintiff’s expert being able to render an opinion concerning defect and causation, based in part on what is contained in CPSC’s files.

But if  plaintiff seeks to use CPSC’s actions to support their case, can a manufacturer use CPSC’s inaction to support its contention that the product did not violate CPSC’s rules and regulations? According to 15 U.S.C. ¶ 2074(b), the failure of the CPSC to take any action or commence a proceeding with respect to the safety of a consumer product is not inadmissible in evidence at a civil trial.

This rule is not always followed in practice. The Sixth Circuit recently admitted evidence of CPSC inaction, despite the regulation, as evidence that the manufacturer did not violate safety rules. See, Cummins v. BIC USA, Inc., — F.3d —, 2013 WL 4082013 (8/14/13).  In Cummins, the Sixth Circuit distinguished a situation where the CPSC had completely failed to take any action and the situation, such as in the case at bar, where the CPSC had engaged in substantial activity in regulating the BIC lighter at issue. 

Is evidence of a CPSC-mandated product recall admissible? Ross correctly observes that defending a product liability case involving a product that has been subject to a recall can be difficult, although hardly impossible. A plaintiff should be required to prove that his or her injury was caused by the bad aspect of the product that caused the recall before testimony concerning the recall is admitted. 

It is bad enough for a jury to hear during opening statements that the product at issue in the case was recalled.  At a minimum, a plaintiff should be required to demonstrate during argument on motions in limine that the alleged defect at issue in the recall was the defect alleged in the pleadings to be the proximate cause of plaintiff’s injury and is, in fact, the proximate cause of plaintiff’s injury.  To permit evidence of the recall otherwise potentially  taints the proceedings with unfair prejudice.  It may also be argued that evidence of the recall is barred as a “subsequent remedial measure” and therefore not admissible to prove a defect.
 

Filed under Agencies, Associations, & Organizations, BIC J-26 lighter, BIC lighter, consumer product safety commission, CPSC, Cummins v. BIC USA, Inc, Kenneth Ross, Product Liabilitiy Litigation, product recalls, The Intersection of Product Liability and Regulatory Compliance Tagged with ,

FTC Cracks Down On “Greenwashing”

By on December 24, 2013

Law 360 reported recently that that the FTC is taking decisive action against companies that make deceptive environmental marketing claims. “Greenwashing” involves misleading consumers concerning the environmental benefits of a product or service. In an earlier article, we discussed the “Six Sins of Greenwashing.”

If you do not have the time or inclination to review the FTC’s newly revised (October 2012) Guides for the Use of Environmental Marketing Claims (the “Green Guides”), a review of the “Six Sins of Greenwashing” will tell you almost all you need to know to stay out of trouble with the FTC. 

To test your “Greenwashing” prowess, you can go on the UL site called the “Sins of Greenwashing: Home and Family Edition” and play “Name that Sin“, which is thought provoking and challening. 

Recent FTC enforcement actions fall under the “sin of fibbing” or, if you take a more charitable view of the manufacturers’ alleged actions, the lesser “sin of no proof.” Committing either sin, however, lands you in FTC purgatory. In November 2013, FTC announced settlements with three mattress companies that were marketing products as having no volatile organic compounds (“VOCs”) or chemicals. 

The mattress companies distributed advertising claiming that the products were VOC-free and chemical-free. The only problem with these claims was that they did not comply with the Green Guides which specifically address “free of” and “non-toxic” claims. The Green Guides set forth what steps a company must take to make such an environmentally friendly claim without running afoul of the regulations.

 In the case of one mattress manufacturer, EcoBaby, the FTC claimed that the company’s use of an environmental certification was false and misleading. Remarkably, over four hundred eco-labels and green certifications are used globally. The revised Green Guides advise industry that it is deceptive to represent that a product has been endorsed or certified by an independent third-party, or to give that impression, when that is not the case.

EcoBaby’s promotional materials included a seal of approval from the National Association of Organic Mattress Industry (“NAOMI”). According to the FTC’s complaint, however, NAOMI is simply an alter ego of EcoBaby, which awards seals to its own products. Thus, NAOMI is not an independent third-party, although a consumer might reasonably believe it is. Who has the time to research whether an environmental certification is legitimate or not?  The Pure Rest Organics site, which advertises (among others) Ecobaby products, boast no less than twelves environmental certifications on its website. 

In October 2013, FTC announced six enforcement actions addressing marketing claims that certain plastic products or additives were biodegradable. The Green Guides establish what is required to make a “biodegradable” advertising claim. Reviewing the FTC’s complaints, it is fairly clear that the companies involved either didn’t read the Green Guides or chose to ignore them.
 

Commensurate with the increase in FTC enforcement claims may be claims by companies against their own suppliers. A manufacturer who advertises to consumers should exercise reasonable caution before relying on its supplier’s representations concerning the environmental attributes of ingredients that they incorporate in their products. The Green Guides apply not only to the environmental attributes of a product, but to the environmental attributes of packaging as well as service provided in connection with marketing as well.
 

From a corporate perspective, in-house counsel should review environmental marketing claims to avoid running afoul of FTC regulators. An important first step in that due diligence process is to ensure that “good science” supports environmental advertising claims. 

Filed under biodegradable advertising claims, deceptive, Deceptive And Unfair Trade Practices, ecobaby, Enforcement, Environmental, Federal Trade Commission" greenwashing, free-of claims, FTC, green guides, marketing claims, name that sin, Sins of Greenwashing: Home and Family Edition, Six Sins of Greenwashing, UL, voc free Tagged with

Comcast May Be A Class Action Game-Changer, But Not In Boston

By on December 19, 2013

In Comcast Corp. v Behrend, 133 S.Ct. 1426 (March 27, 2013), the Supreme Court held that the lower court erred in failing to consider flaws in plaintiffs’ damages model merely because the damages model would be pertinent on merits issues…..thus, "running afoul of our precedents requiring precisely that inquiry".  It was up to the district court to determine whether the expert’s methodology was "just and reasonable inference or speculative."  

Citing the Reference Manual on Scientific Evidence, the court held that the "first step in a damages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event."  

Pre-Comcast, plaintiffs generally focused on getting over the hump of standing and/or alleging damages under various legal theories at the pleading stage, without knowing how they would ever prove up damages. No more! The ground has shifted beneath the feet of the plaintiff class action bar.  To cite the D.C. Circuit Court of Appeals, the new judicial mantra is "No damages model, no predominance, no class certification".

Despite Comcast’s holding, some federal trial courts continue to certify class actions of arguably questionable merit. An example of such a case is In re: Nexium (Esomeprazole) Antitrust Litigation which was handed down by the District of Massachusetts on November 14, 2013.

Plaintiffs alleged that they paid higher prices for Nexium because less expensive generic versions of Nexium were prevented from coming onto the market due to AstraZeneca’s settlement with three generic manufacturers. The end-payors (as the plaintiffs called themselves) sought to certify a sprawling Rule 26(b)(3) class consisting of virtually every consumer (insured and uninsured), commercial insurer, health plan and pharmacy benefit manager who had paid any portion of the purchase price for Nexium for a six year period in twenty-six states.

Although the district court referenced the Supreme Court’s rulings in Wal-Mart and Comcast, it certified a class despite plaintiffs’ adoption of a model that adopted the use of “aggregate damages calculations.” The defendants properly objected to the damages model because it failed to account for differences in injuries and losses among class members.

The use of an "average" price differential, even if capable of being proven, ignored the variations within the class and did not identify which end-purchasers would have saved money and which would have lost money if and when generic Nexium had entered the market. Even the district court acknowledged that under plaintiffs’ model certain class members who suffered no damages whatsoever would remain in the class.

Applying the reasoning of the D.C. Circuit in In re: Rail Freight Fuel Surcharge Antitrust Litig., one of the most important circuit court decisions applying Comcast, class certification would most likely have been denied because common questions of fact cannot predominate where there exists no reliable means of proving classwide injury in fact.

Plaintiffs’ expert conceded that the proposed class included tens of thousands of consumers who would continue to purchase branded Nexium after generic entry due to preference or their physician’s recommendation. Such brand loyalists would potentially have faced higher Nexium prices had generic Nexium been available.

Other consumers were not injured because their co-pays were the same for both generic and branded Nexium. Plaintiffs’ average price differential model ignored variations within the class and failed to distinguish between purchasers who would have lost money if and when generic Nexium would have entered the market and those who would not have lost money.

 In an almost identical situation involving a similar set of facts and the same plaintiffs’ expert, Dr. Meredith Rosenthal, a Philadelphia district court denied class certification in Sheet Metal Workers Local 1141 Health and Welfare Plan v. GlaxoSmithKline, No. 04-5898, 2010 WL 385552, at #27 (E.D.Pa. Sep. 30, 2010), class certification was denied by the Pennsylvannia district court (pre-Comcast) which rejected an analogous damages model proposed by Dr. Rosenthal in a case of alleged generic drug suppression involving the drug Wellbutrin SR.  There, as in the Nexium case, plaintiffs’ model failed to exclude uninjured class members. Because plaintiffs were unable to meet their burden of Rule 26(b)(3) that questions of law or fact common to class members predominated over any questions affecting only individual members, the district court denied class certification.

It is difficult to understand how the Massachusetts district court determined that the Nexium end-payors’ damages model met the “rigorous analysis” standard required by Comcast and Wal-Mart, particularly as there are many  thousands of plaintiffs in the class who have not suffered injury. Plaintiffs’ methodology indisputably failed to identify non-injured members of the class.  We look forward to the First Circuit’s analysis of the Rule 23(b)(3) issues presented by the case, assuming that an appeal is in the offing. 
 

Filed under average price differential, Class Action, Class Actions, Comcast, damages model, evidence, generic suppression, GlaxoSmithKline, Health, In re: Nexium (Esomeprazole) Antitrust Litigation, In re: Rail Freight Fuel, Local, Manual, Meredith, Metal, No damages model, no predominance, no class certification, Plan, Predominance, Rosenthal', Rule 23(b)(3), Scientific, Supreme Court, Wal-Mart, Welfare, Workers Tagged with , ,

NYS Court Of Appeals: Injury Required For Medical Monitoring

By on December 18, 2013

In a landmark decision, the NYS Court of Appeals rejected medical monitoring claims in the absence of a physical injury in Caronia v. Philip Morris, No. 227, slip op. (N.Y. Dec. 17, 2013).

By way of background, on May 1, 2013, the Second Circuit certified to the Court of Appeals the question whether, under New York law, a current or former long-term smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for a such a suspected disease, may pursue an independent equitable cause of action for surface solutions and medical monitoring.

In a contentious 4-3 decision, the Court of Appeals held that New York law did not permit an independent claim for medical monitoring.  In an earlier article, we discussed the Second Circuit’s decision in Caronia v. Philip Morris in detail and surveyed prior New York law involving claims for medical monitoring.

Notably, the Court of Appeals held:

“We conclude that the policy reasons set forth above militate against a judicially-created independent cause of action for medical monitoring.  Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence.”  Slip op. at 14.

The majority of states have rejected medical monitoring claims in the absence of a physical injury. Get the right attorney for any medical or physical accidents. To rule otherwise would disregard important medical, scientific and legal distinctions between concepts of “exposure” and “injury.”

The Court of Appeals recognized that there was “significant policy reasons that favor recognizing an independent medical monitoring cause of action.”  However, citing the U.S. Supreme Court decision in Metro-North Commuter R.R. Co. v. Buckley, 521 US 424, 443-444 (1997) (refusing to recognize a tort claim for medical monitoring costs where the plaintiff was exposed to asbestos but had not manifested symptoms of a disease), the court agreed that the “potential systemic effects of creating a new, full-blown tort law cause of action cannot be ignored.”

The court was correctly concerned that dispensing with the physical injury requirement could permit “tens of millions” of potential plaintiffs to recover medical monitoring costs, effectively flooding the courts while concomitantly depleting the alleged purported tortfeasor’s resources for those who have actually sustained damage.  Although not discussed by the court as part of its rationale, the danger of fraudulent claims and abuse by uninjured plaintiffs cannot be overlooked as well.

If you ever suffer an injury that leads to legal concerns, make sure you look for a solid and reliable firm, like Lawsuit Legal, to help you through the hard times.

Filed under Absence of Physical Injury, Caronia v. Philip Morris, cause, CT scanning, independent, medical, Medical Monitoring, Metro-North Commuter R.R. Co. v. Buckley, monitoring', NYS Court of Appeals, Philip Morris, Second Circuit Tagged with

Military’s Embrace Of Clean Energy Reduces Combat Casualties

By on December 2, 2013

The Army’s development of clean domestic energy resources strengthens national security and plays an important role in helping it to achieve its primary mission. As the world’s largest consumer of energy, the military’s recognition of the importance of reducing energy use and diversifying energy supplies, particularly beginning a shift from oil, has important ramifications for the economy and the environment.

On October 29, 2013, Environmental Entrepreneurs ("E2") presented “Mission Critical; Clean Energy in the U.S. Military” at  Simpson Thacher & Bartlett’s offices in New York. The speakers included Richard G. Kidd, Deputy Assistant Secretary of the Army;  Colonel Russell LaChance, a West Point faculty member who is shaping an energy management curriculum to train future Army leaders; Scott Sklar, the president of D.C. based Stella Group Ltd., who discussed potential business opportunities from DOD’s investment in clean energy technologies; and Kit Kennedy, Clean Energy Counsel at the Natural Resources Defense Council.

The theme that emerged was DOD’s stance on aggressive objectives to reduce its fossil fuel dependence and invest in low carbon renewables and energy efficiency technologies. Military leaders contend that our current fuel mix is a national security threat, making Americans vulnerable overseas and at home.

The billions of dollars that Army is shifting toward solar energy, recycled water and better-insulated tents is not about saving the earth.  Instead, commanders in Afghanistan have found that they can significantly reduce casualty rates through energy conservation.  In Afghanistan, protecting fuel convoys is one of the most dangerous assignments. At the meeting, one participant with combat experience discussed how flying barrels of oil to remote parts of Afghanistan, apart from the exorbitant cost, places American lives at risk. Every humvee tow vehicle is subject to IED attack or ambush. 

"By reducing supply chain vulnerability, there are no commodity costs and there’s a lower chance of disruption", said the Army’s Mr. Kidd in an interview. "A fuel tanker can be shot at and blown up. The sun’s rays will still be there." 

At one remote Afghan base in Ghazni Province, there was so little available power that the base commander had to tap into the humvees for some power, which required soldiers to drive the vehicles around at night to recharge the batteries.  That problem was remedied when the base received a hybrid solar-diesel generator with capacity to store power for use after dark.

On November 22, 2013, at the Halifax International Security Forum, Secretary of Defense Chuck Hagel outlined the growing threats of climate change and the importance of developing more clean, renewable energy and improving energy efficiency within the military. In particular, he noted that in 2012 "energy efficiency and renewable energy improvements such as tactical solar gear at combat posts in Afghanistan saved roughly 20 million gallons of fuel–taking 7,000 truckloads worth of fuel off the battlefield."

In a recent blog post, Kit Kennedy of NRDC discusses West Point’s march toward clean energy goals. She concludes by saying:

"Over the past two years, NRDC has had the privilege to offer advice and assistance to West Point academic faculty and energy facility personnel on West Point’s energy needs and clean energy plans. We salute West Point for taking this important step toward meeting its net zero energy goals….  NRDC’s next step will be to review and comment on the draft plan in detail so that we can offer our recommendations on how best to move forward."

A potential stumbling block to achieving these ambitious goals is the U.S. House of Representatives. The House has voted to ban DOD from purchasing biofuels until they are cheaper than fossil fuels.  There is also a move underway to prevent DOD from pursuing the development of advanced biofuels.  These and other regressive House initiatives threaten to force the military to go backward, hurt national and economic security, and jeopardize a fledgling American energy industry. 

Filed under Afghanistan, Army, Chuck Hagel, Clean, clean domestic energy, Colonel Russell LaChance, Critical, development, domestic, E2, Energy, Environmental Entrepreneurs", fuel convoy, Kit Kennedy, Military', Mission, net zero energy, NRDC, resources', Richard G. Kidd, Scott Sklar, Stella Group, U.S., U.S. Army, U.S. Military, West Point Military Academy Tagged with

Don’t Let Your Nest Egg Become an Ostrich Egg: How a Portfolio Management Pro Can Hatch Major Growth

By on November 1, 2013

Imagine this: you’ve diligently saved for years, building a nest egg for your future. But as you watch the financial news, a nagging worry sets in. The market seems like a rollercoaster, and you’re unsure if your investments are on the right track. Fear not! This is where a Portfolio Management Services in India (PMS) swoops in, acting as your financial guardian angel, ready to help your hard-earned money reach its full potential.

Statistics paint a compelling picture. A 2023 study by the National Endowment for Financial Education (NEFE) found that individuals who receive professional investment advice outperform those who go it alone by an average of 3% annually [Source: NEFE]. That may seem like a small difference, but over time, it can compound significantly. Let’s say you invest $100,000 with a 7% annual return (the historical average for the S&P 500) for 20 years. With professional guidance achieving an additional 3% return, your nest egg could balloon to over $460,000 compared to $348,000 without [Source: Investor.gov]. That’s a difference of over $110,000 – enough for a comfortable retirement or a dream vacation!

So, what makes a portfolio management service so effective? Here’s the secret sauce:

Expert Navigation: Financial markets are intricate ecosystems. Seasoned portfolio managers, armed with deep research and market analysis, can identify undervalued assets and promising opportunities you might miss.
Tailor-Made Strategies: Unlike a one-size-fits-all approach, PMS consider your unique financial goals, risk tolerance, and investment horizon. This translates to a personalized portfolio that works for you, not a generic template.
Active Management: A good PMS goes beyond simply buying and holding. They actively manage your portfolio, rebalancing it regularly to maintain your desired asset allocation and mitigate risk.
Time is Money: Constantly monitoring and adjusting your investments can be a daunting task. A PMS frees you from this burden, allowing you to focus on other priorities while your money grows.

The Takeaway:

Investing for the future requires more than just wishful thinking. Partnering with a skilled portfolio management service provides the expertise, customization, and time-saving benefits crucial for maximizing your financial potential. Remember, your financial well-being deserves the best care. So, are you ready to crack open the true growth potential of your nest egg?

Filed under e-coli, Food, health concerns, listeria, Montana, roadkill, roadkill cafe, roadkill law, salmonella Tagged with ,

FDA Reports 12% of U.S. Spice Imports Contaminated With Insect Parts And Rodent Hairs…What’s In Your Salad?

By on October 30, 2013

New York Times reporter Gardiner Harris reported on October 30, 2013 that an FDA study found that about 12 percent of spices brought to the United States are contaminated with insect parts, whole insects, rodent hairs and other things, based upon an analysis of spice imports.

According to FDA officials, it is unclear what share of the nearly 1.2 million annual salmonella illnesses in the United States result from consuming contaminated spices.  Less  than 2,000 people had their illnesses definitively tied to contaminated spices from 1973 to 2010, and most people eat spices in small quantities.   But because people often fail to remember eating spices when asked what foods might have sickened them, FDA officials speculated that problems related to spices may be under-reported.  The Scientific literature has associated foodborne illness outbreaks from microbial contaminants in spices.

According to the FDA, spice imports from Mexico and India have been found to have the highest rate of contamination. Nearly one-quarter of the spices, oils and food colorings used in the United States comes from India. However, reports have associated salmonella outbreaks with spices associated with other spice exporters as well, including Italy. The spices under scrutiny include widely sold, everyday spices, including oregano and basil, among many others. 

"The American Spice Trade Association, which is dedicated to ensuring the supply of clean, safe spice to the American public, had not yet seen the FDA report and therefore could not comment.  However, spice manufacturers have argued in the past that food manufacturers often treat imported spices before marketing them. Therefore,  findings of contamination levels in FDA’s import screening program do not necessarily mean that spices sold to consumers are dangerous.

The adverse publicity facing the spice industry is endemic of much greater litigation risks to the food industry as a whole.  “The New Lawsuit Ecosystem” (10/13), a report issued by the U.S. Chamber Institute for Legal Reform, identifies food class action litigation as an emerging liability threat to American business.

The Executive Summary states that the report describes the "lawsuit ‘ecosystem’  for the areas of litigation abuse of most concern to the business community….Defending these lawsuits drains millions of dollars from businesses that could be spent spurring business expansion and creating new jobs with few countervailing benefits.”  Although the emphasis of the discussion concerns class action litigation alleging trivial violations of federal regulations, there is no question that food poisoning claims have riveted media and public attention as well.  Some plaintiff lawyers have devoted their entire practice to the prosecution of food poisoning claims.  

Food poisoning litigation has also become big business for companies that host legal conferences.  An upcoming conference in San Francisco, sponsored by the American Conference Institute, is titled "Food Borne Illness Litigation: Advanced strategies for Defending and Managing High Profile Food Contamination Claims".  An advertisement for the conference leads with the following:

Each year roughly 1 in 6 Americans (or 48 million people) get sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases.”

– 2011 Estimates from the Center for Disease Control and Prevention

There is no question – as the food supply becomes more global, the chance of contamination increases. The latest food outbreaks come from non-traditional pathogens and foods that came from overseas – the number of affected people is still unknown. In addition, the increasing reliance on international suppliers has led to a host of supply chain food safety issues that are increasingly difficult to monitor and combat.

The defense bar is also mobilizing considerable resources and effort to assist companies targeted by plaintiff lawyers. One prominent defense firm is urging its clients to be prepared by assembling a litigation response team to develop a "thorough traceback program through which food items can be traced back to their origins".  This firm cautions that defending these cases is not for amateurs, but requires the "coordination of expedited investigation and documentation, evidence location and preservation, supplier agreements and indemnification commitments, selection of and consultation with (often) a constellation of experts…."  

Any litigation arising from Mr. Harris’ story in the New York Times about contaminated imported spices should be recognized for what it really is…..the tip of an enormous iceberg that has been heading toward the food industry for some time. 

 

Filed under American Spice Trade Association, Chamber, FDA, Food, Food & Drug Administration, insect parts, Institute, Legal, Reform', rodent hairs, salmonella, spice, spice contamination, The New Lawsuit Ecosystem, whole insects Tagged with

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