Does Preemption Prevent Redress For Homeowners Impacted By Polluters’ Air Emissions?

By on October 29, 2013

On April 23, 2012, residents of rural Muscatine, Iowa filed a class action lawsuit titled, Laurie Freeman et al. v. Grain Processing Corporation (case no. LACV 021232), in the Iowa District Court for Muscatine County. The defendant, Grain Processing Corporation, is an Iowa manufacturer of corn syrup, starches and alcohols. Plaintiffs sought compensation for property damage and adverse health effects on behalf of all putative class members (some 17,000 people) residing within three miles of the facility.

Plaintiffs alleged that Grain Processing’s industrial production caused the release of polluting chemicals and particles from the facility on to nearby homes, schools and churches. As a result, particulate matter, in the form of soot or smoke, was alleged to have been visibly left on, and in, these structures, and the yards and grounds around these structures.

Plaintiffs asserted claims pursuant to statutory and common law nuisance, trespass and negligence. Plaintiffs specifically denied that they were bringing their claims under the federal or state Clean Air Acts. Plaintiffs sought damages to remediate their properties, compensation for the loss of use and enjoyment of their properties, punitive damages and possible injunctive relief.

On December 21, 2012, Grain Processing filed a motion for summary judgment centered on preemption of plaintiffs’ claims by existing federal and state regulations. On March 27, 2013, District Court Judge Mark J. Smith granted defendant’s motion and dismissed the case. The matter is now on appeal to the Iowa Supreme Court.

On summary judgment, Grain Processing argued that plaintiffs’ common law claims should be dismissed because they were preempted by the Clean Air Act and accompanying state laws. The defendant argued implied preemption by field and conflict preemption, rather than express preemption, barred plaintiffs’ claims. In large part, the trial court relied upon the United States Supreme Court’s decision in American Electric Power Co., Inc. v. Connecticut, 131 S.Ct. 2527 (2011), which held that the Clean Air Act displaced any federal common law right to seek abatement of carbon dioxide emissions from fossil fuel-fired power plants. There, the Supreme Court remarked that EPA is surely better equipped to do the job that individual district judges issuing ad hoc, case-by-case injunctions because federal judges lacked the expertise and means to make such decisions.

The Iowa trial court also heavily relied on Bell v. Cheswick Generating Station, 2:12-cv-929, 2012 WL 4857796 (W.D. Pa. Oct. 12, 2012). In that case, plaintiffs brought a class action lawsuit against a coal-fired power plant, which they claimed deposited air emissions on nearby property. The Bell court dismissed plaintiffs’ claims because “to conclude otherwise would require an imperceptible determination regarding the reasonableness of an otherwise government regulated activity.”

The summary judgment record includes plaintiffs’ allegation that Grain Processing had violated the federal Clean Air Act in all twelve of the most recent twelve quarters and had been designated by EPA as a “High Priority Violator.” Plaintiffs’ expert also determined that Grain Processing’s record of environmental compliance had been poor. During a plant inspection, the expert observed leaking valves, pumps and unions that “are sources of volatile, odorous and corrosive, fugitive emissions which exposed both workers and the community.” He reported “horrible neglect” of dryer units, “antiquated” control rooms and “a complete breakdown of environmental awareness and safety” in management operations.

Judge Smith remarked that if half of the expert findings were true, there had been a blatant disregard for both the environment and the community of Muscatine. Deficiencies had become so bad by 2012 that the Iowa Department of Natural Resources (“DNR”) commenced a civil action against the company. In 2009, a DNR inspector sent an email to an agency lawyer citing an "obvious blue haze generated by the plant and drifting over Muscatine neighborhoods."

Judge Smith grappled with the issue of whether plaintiffs’ common law action would interfere with or contravene DNR’s remedies for these very issues if plaintiffs were successful in obtaining an injunction specifying what Grain Processing must do to remedy these problems. Judge Smith granted the motion to dismiss the action, although he conceded that the action taken by the regulatory agency would not remedy the harm each individual plaintiff or class member had incurred as a result of the polluter’s actions or inactions. Nevertheless, Judge Smith feared that to do otherwise would allow the same regulatory patchwork proscribed by the U.S. Supreme Court.

On the appeal, a well-reasoned amici curiae brief has been filed on behalf of the National Association of Manufacturers, and other interested industry groups, in support of Grain Processing. The brief was submitted by Richard O. Faulk of Hollingsworth LLP and Sarah E. Crane of the Davis Brown Law Firm.

In particular, the amici emphasize the application of the “political question” doctrine, and focus in  on the second test stated in Baker v. Carr, 369 U.S. 186 (1962), namely whether the courts lack “judicially discoverable and manageable standards” for resolving nuisance cases involving regulated pollutants.

Such cases, amici argue, raise quintessential “political questions” because they would require courts to make policy judgments instead of abiding by the requirement that judicial action be governed “by standard, by rule.” The amici contend that the trial court does not have the investigative resources and technical and scientific expertise necessary to create the standards and rules needed to resolve the controversy justly. According to the amici, such inquiries go to the very heart of the political question doctrine.

The appeal raises important questions that will no doubt be challenging for the Iowa Supreme Court to resolve. On the one hand, the court will not want to permit the plaintiffs to supplant the role or the authority of the DNR. On the other hand, the court will be under pressure to provide some form of redress for Muscatine residents that have suffered nuisance and property damage as a result of the alleged environmental violations of their industrial neighbor.

Ideally, Grain Processing should provide homeowners in Muscatine a Value Assurance Plan to protect homeowners’  investment in their homes.  If, as Grain Processing contends, a proposed upgrade of plant pollution control equipment, will address air emission concerns to the satisfaction of residents, the Value Assurance Plan would likely cost Grain Processing little, but provide enormous piece of mind to the company’s neighbors.    

Filed under American Electric Power Co., Inc. v. Connecticut, Amici Curiae, Bell v. Cheswick Generating Station, Clean Air Act, Grain Processing Corporation, Industrial Chemicals, Laurie Freeman et al. v. Grain Processing Corporation, Muscatine, Muscatine, Iowa, National Association of Manufacturers, Preemption Tagged with , ,

Physician’s Failure To Read Trumps Drug Company’s Failure To Warn

By on October 21, 2013

When the prescribing physician in a pharmaceutical product liability case admits that at her deposition that she never reviewed the manufacturer’s label before treating her patient and that the label played no role in her decision to prescribe the drug, plaintiff’s claim that the label should have contained a stronger warning is rendered moot.

Often the physician, a trained clinician, will testify that she was familiar with the risks in question and did not need to be provided a warning. Alternatively, the physician may testify that a stronger warning would not have influenced her decision to prescribe the drug and that she still prescribes the drug, although the problem with this, is that some drugs are known for causing addiction sometimes, so the use of an Effective Diagnosis Treatment could be useful to learn if there are going to be issues with the drug. Under either scenario, it may be argued on summary judgment that the learned intermediary did not rely on the allegedly inadequate warning and that, therefore, the plaintiff cannot establish that the alleged failure to warn was a proximate cause of plaintiff’s injury. Doctors are now using 9 panel drug test to see what kind of drugs that a patient took. This will make the doctor to have a better judgement on what type of a certain drug to prescribe to that person.

In an article on his Drug and Device Law blog on October 17, 2013 titled, “Don’t Forget About a Prescribing Physician’s Failure to Read Warnings,” James M. Beck, Counsel resident in the Philadelphia office of Reed Smith, provides an exhaustive survey of cases dismissing claims where the learned intermediary physician failed to read the warnings. Beck reports on and provides summaries of decisions from 42 jurisdictions.

As Beck observed in another blog post on October 28, 2011, “After all, there is a causation element to every warning claim – the defect (whatever is allegedly wrong with the warning) has to cause the injury. If the prescribing physician never even read the purportedly inadequate warning, none of those inadequacies could have affected his/her treatment of the patient.”

Filed under Causation, Don, Drug and Device Law blog, Failure, Failure to Warn, Forget, inadequate warnings, James M. Beck, Pharmaceutical & Medical Device, Pharmaceutical Product Liability, Physician, Physician's, Prescribing, Read, Warnings Tagged with

Genetic Transformation Injury As A Basis For Emotional Distress Damages

By on October 14, 2013

The traditional rule in tort law is that the threat of future harm, not yet realized, is not sufficient to state a claim. However, over the past twenty-five years, plaintiffs in toxic tort litigation have sought to assert new non-injury damage claims, such as medical monitoring and fear of cancer. Providing compensation for an event that has not yet occurred and, indeed, may never occur, is a long way from traditional tort, which only permits recovery when a victim has suffered a harm.

In November 2012, KBR, the largest U.S. military contractor, lost a federal court jury verdict in Portland, Oregon, in the case, Bixby et al v. KBR, Inc, et al,  and ordered to pay twelve U.S. soldiers $85,000,000 in non-economic and punitive damages for alleged toxic  hexavalent chromium dust exposure at a company work site in Iraq in 2003. The trial was a test case over injuries allegedly suffered by Oregon National Guardsmen who were tasked with protecting KBR workers at Qarmat Ali, a water treatment facility the company was hired to rehabilitate after the overthrow of Saddam Hussein in 2003.

The Veterans Administration has developed a medical surveillance program for veterans who may have been exposed to hexavalent chromium at the Qarmat Ali Treatment Facility in Iraq. The program is provided free of any charge.  While VA does not expect to find many serious Qarmat Ali-related illnesses, the VA believed it prudent to monitor the health of those who may have been exposed.

The jury awarded each plaintiff $850,000 in non-economic damages (later reduced to $500,000 under the Oregon statutory damages cap) and $6,250,000 in punitive damages. The only “injury” plaintiffs had in common was an untested, fleeting, and imperceptible “genetic transformation injury” on which their emotional distress damages for fear of cancer were based.

On its pending appeal before the Ninth Circuit, KBR argues that it was error for the trial court to permit such recovery on the ground that Oregon law does not permit recovery of emotional distress damages where, as here, there is no present physical harm associated with the purported future risk of harm or, indeed, there is no physical injury at all.

An Amici Curiae brief filed by the International Association of Defense Counsel (“IADC”) and American Chemistry Council (“ACC”) argues persuasively that a majority of U.S. courts do not permit a plaintiff to satisfy the physical injury requirement through allegations of sub-cellular harm where the plaintiff is asymptomatic with no observable physical symptoms. For this important assignment, IADC and ACC turned to veteran appellate lawyers, Mary-Christine Sungaila and Patrick Kelly of Snell & Wilmer LLP,  Thieir brief provides an excellent overview of the law on this issue.

Courts are properly concerned about flooding the judicial system with false emotional distress claims. To allay this concern, some courts have imposed “floors” for recovery (e.g., a requirement that emotional distress be “serious”) and “hurdles” to recovery (e.g., the presence of physical harm requirement for emotional distress claims).

 In the KBR litigation, the plaintiffs’ expert, Dr. Carson, was unable to say whether any individual plaintiff experienced a “genetic transformation injury” at Qarmat Ali, much less whether such an injury persisted in any particular individual. Moreover, he acknowledged that “genetic transformation injury” is asymptomatic with no observable physical symptoms and may be spontaneously repaired by the body.

As the Ninth Circuit held in Dumontier v. Schlumberger Technology Corp., 543 F.3d 567 (9th Cir. 2008), “not every alteration of the body is an injury” and sagely observed that “all life is change, but all change is not injurious.” Thus, even if radiation always changes DNA, that does not mean that there will always be corresponding compensable physical pain, injury or disease.

On the basis of their well-crafted arguments, Sungaila and Kelly argue that if the court were to accept plaintiffs’ claim, it would throw open the possibility of litigation by any person experiencing even the most benign sub-cellular damage. Sungaila and Kelly distinguish KBR from other cases where, for example, a plaintiff who demonstrated actual mutations that would trigger cancer upon arriving at the age of puberty or sexual maturity.

We look to the Ninth Circuit to reverse the trial court decision and to reject plaintiffs’ argument that sub-cellular or genetic transformation is sufficient, in and of itself, to permit recovery for emotional distress damages.
 

Filed under American Chemistry Council, Amicus Curiae, Association, bixby v. kbr, Counsel', defense", Dumontier v. Schlumberger Technology Corp, emotional distress, genetic transformation injury, KBR, Mary-Christine Sungaila, Negligent Infliction Of Emotional Distress, non-economic damages, Qarmat Ali, sub-cellular harm, war in Iraq Tagged with

No Unanimity As To What New ASTM E1527-13 Standard Requires

By on October 11, 2013

Some environmental practitioners contend that Phase I site assessments, commonly used in real estate transactions, will now be more costly and time consuming due to the new standard. Seyfarth Shaw counsels in its Client Alert that the new standard requires that, “if the subject property has soil contamination or is underlain by groundwater contamination, unless the risk of vapor intrusion can be screened out, Phase II sampling likely will be necessary.”

But is that really the case? In his article titled, “Confusion on Role of VI in New ASTM E1527-13 Standard,” environmental guru, Larry Schnapf, argues that these law firms’ predictions are “simply incorrect.” Schnapf points out that the revised version of E1527 clarifies that the vapor intrusion pathway is like any other contaminant’s pathway and the potential for vapor intrusion should be evaluated and addressed as part of a Phase I inspection.

However, all a consultant is required to do as part of a Phase I is to recognize environmental conditions – the presence or potential presence of releases of hazardous substances. A consultant that identifies a REC due to an actual or potential source of soil or groundwater contamination will not normally collect samples as part of a Phase I.

Contrary to the interpretation of the new Phase I standard offered by some, Schnapf advises:

From a practical standpoint, the question of whether vapor intrusion should be independently flagged as a REC will only really be an issue for off-site releases where vapor intrusion is the only pathway for contamination to migrate onto the property. When the target property already has soil or groundwater contamination, the consultant would flag that contamination as a REC.

Thus, according to Schnapf, if a consultant determines that there is potential vapor intrusion because of the presence of an REC, the consultant is not required to actually collect sub-slab or indoor air samples as part of its Phase I.

The issue takes on additional importance when one also considers that Phase I diligence is required to protect both landowners and lenders from liability under CERCLA. 

According to USEPA,

"All Appropriate Inquiries," or AAI, is a process of evaluating a property’s environmental conditions and assessing the likelihood of any contamination…..The All Appropriate Inquiries Final Rule provides that the ASTM E1527-05 standard is consistent with the requirements of the final rule and may be used to comply with the provisions of the rule.

The Small Business Liability Relief and Brownfields Revitalization Act (the “Brownfields Amendments”) amended CERCLA to provide protections from liability for certain landowners and prospective purchasers of properties who can demonstrate compliance with specific statutory criteria and did not cause or contribute to contamination at the property.  

Therefore, if the Phase I diligence the new owner performs does not meet the revised ASTM E1527-13 standard, in the opinion of the Agency, due to the omission of vapor intrusion screening, there may be considerable adverse consequences down the road for both landowners and lenders.

The additional transactional cost to the real estate community in performing many thousands of  vapor intrusion studies in Phase I assessments each year is likely to be considerable. Considering that vapor intrusion is just one of many RECs, does it make sense from an environmental perspective to do these surveys as a matter of course?  More importantly, does the new standard require that these screenings be performed at all? 

Filed under All Appropriate Inquiries, ASTM E1527-13, CERCLA, CERCLA Amendment, environmental diligence, EPA, innocent landowner, Larry Schnapf, pathway for contamination, Phase I, Phase II, Real Estate, recognized environmental concerns, RECs, Small Business Liability Relief and Brownfields Revitalization Act, soil vapor intrusion screening, USEPA Tagged with

Plaintiffs’ Bar Embraces Reptile Strategy And Defense Bar Responds

By on October 4, 2013

Reptile strategy has taken the plaintiffs’ bar by storm. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles.  The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.

The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.  Thus,  the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective  way to engage jurors is to demonstrate how the defendant’s conduct endangers the jurors and their families.

The gurus of Reptilian trial strategy are David Ball and Don Keenan, whose book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution”  purportedly gives its adherents a significant edge over the defense in jury trials.  Several prominent lawyers on the plaintiff’s side have cited this book as the new bible of advocacy.  The Seattle Zen Legal Blog authored by plaintiff lawyer Pat Trudell extols the theory in an article titled “Beyond the Reptilian Brain” and recites the mantra of the true believers, “The Reptile Always Wins”. But do they?

Even as this new doctrine is gaining popularity in the plaintiff bar, the defense bar is mounting a counter-attack.  An excellent article concerning the Reptile strategy and the defense response is titled, “Make Boots Out of That Lizard – Defense Strategies to Beat the Reptile,” authored by Minton Mayer, of Wiseman Ashworth Law Group in Tennessee (DRI, The Voice, 9/25/13). Mayer provides good tips for defusing the subliminal codes plaintiffs seek to embed in the jury’s psyche.

In the April 2013 edition of For The Defense, David C. Marshall, a lawyer with Turner Padget Graham & Laney PA in Columbia, South Carolina, provides an in-depth discussion of new trial strategy in “Lizards and Snakes in the Courtroom“.  According to Marshall,  using the “reptile” successfully “requires creating safety rules and demonstrating that a defendant violated the rules, subjecting a plaintiff and the surrounding community to needless danger….  Thus, in closing, the lawyer using this strategy must show a jury how the dangers presented by a defendant extend beyond the facts of a case and affect the surrounding community so the entire case boils down to community safety versus danger.”  Marshall  provides useful  litigation tips for keeping the reptile at bay during  trial.

Similarly, Kathy Cochran, a defense lawyer with Wilson Smith Cochran Dickerson in Seattle, WA, cautioned in  the dri today blog in 2010, “As defense lawyers, we need to recognize this [Reptile strategy]  for what it is. It is an attempt to resurrect Golden Rule arguments, which are usually impermissible. Jurors are not to be asked to put themselves in the place of a party and make a judgment based on that virtual reality. Ball and Keene provide advice to their readers on how to circumvent this evidentiary rule. ”

Cochran cautions, “we will now see plaintiffs emphasizing ‘safety rules’ and trying to gain admissions from defense experts that such rules are important for the safety of the community. “Never separate a rule from the danger it was designed to prevent. … The greater the danger, the more the Reptile [juror] cares.”

In an article titled, “Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles is a Bad Idea,” (American Society of Trial Consultants, May 2010), authors Stephanie West Allen, Jeffrey M. Schwartz and Diane Wyzga provide a scathing critique of reptile theory and suggest that an effective alternative is providing jurors with a persuasive narrative at trial. According to the authors, reptile strategy “disrespects” jurors and could result in juror backlash. Fear-based tactics direct attention in an uncertain and unpredictable manner; in contrast, thoughtful narrative directs attention toward action grounded in the reflective mind. According to the authors, “narrative shines the mental flashlight of attention which can refigure the brain and change behavior.”

In summary, whether you conclude that  reptile tactics have validity or not, it makes sense for defense counsel to become familiar with them. If plaintiff’s counsel is going to use the defendant’s deposition to lay the framework for the use of a reptile strategy at trial, defense counsel had better prepare his client for the questions that will undoubtedly be asked during that deposition. I als wanted to share that I was involved with a case recently for a close friend and they used The Law Offices of Jonathan Marshall for that case and they were simply amazing, so I thought that was definitely worth mentioning.

Filed under Beyond the Reptilian Brain, david ball, defense bar, don keenan, Litigation Issues and Factors, plaintiff bar, reptile strategy, Reptile: The 2009 Manual of the Plaintiff, Revolution', trial' Tagged with

Tip To Jurors: Leave Heroin Stash At Home While Sitting On Case

By on September 26, 2013

As reported by the New York Law Journal on September 19, 2013, Manhattan Supreme Court Justice Manuel J. Mendez determined in Matter of Esteban v. Department of Education of the City School District of the City of New York, 651904/13,  that a high school teacher in a New York City public school was fit to continue working in the classroom despite having been caught red-handed with twenty small bags of heroin while attempting to enter Manhattan Supreme Court, where he was serving on jury duty.

Judge Mendez set aside an arbitrator’s determination that the teacher was unfit calling the ruling “excessive and shocking to this Court’s sense of fairness.” After all, reasoned Judge Mendez, there was no evidence that any students were harmed as a result of the teacher being busted bringing heroin to court.

The October 2012 incident launched stories in all of New York’s major newspapers including the Daily News, which ran an article with the headline, “Junkie High School Teacher Sent to ‘Rubber Room’ After He Was Busted Bringing Heroin to Court.” The arbitrator concluded that the teacher had subjected both himself and the Department of Education to “extremely widespread ridicule” which compromised his ability to retain the respect of students or his ability to teach effectively. Moreover, he found that the Department of Education had no way of determining whether the teacher had brought the same drugs into a school building posing a risk to students.

Corporation Counsel Michael A. Cardozo summed up Judge Mendez’s opinion succinctly, “We cannot fathom how a teacher who took twenty bags of heroin into a court house is fit to stand in front of a classroom and teach the City’s schoolchildren.” Surely, it cannot be comforting to the parents of students at the Williamsburg High School for Architecture and Design that their children’s teacher did not have the sense to leave his heroin stash at home while serving on jury duty.

What is remarkable about the court’s ruling was the finding that the arbitrator’s decision was “excessive and shocking.” Apparently, overturning the arbitrator’s determination was not even a close call. Taking this teacher out of the classroom was “excessive and shocking.”

After all, Judge Mendez credited the teacher’s testimony that he only indulged his heroin habit over the weekend– never on school days. Moreover, the teacher claimed he had gone through a heroin detox treatment and had been off heroin for a long time prior to his arrest, and had merely “forgotten” that he had twenty bags of heroin in his backpack when he reported for jury duty.  Was this the backpack he was toting to school every day prior to his arrest?

Filed under heroin, Hon. Manuel J. Mendez, Interesting Stuff, jury duty, Matter of Esteban v. Department of Education of the City School District of the City of New York, Williamsburg High School for Architecture and Design Tagged with

Hand Over The Cash Or The Hard Drive Gets It!

By on September 25, 2013

In January 2013, GlaxoSmithKline (“GSK”) filed a complaint in New York state court alleging that its e-discovery vendor, Discovery Works Legal Inc., was “holding hostage over 20 terabytes of GSK’s most sensitive and confidential data, and threatened to withhold and destroy the data" unless GSK paid a ransom of more than $80,000. GSK is the second largest pharmaceutical company in the world by revenue, employing over 100,000 people in 117 countries. How could a mere  e-discovery vendor hold GSK’s data hostage?

Reportedly, Discovery Works is in control of roughly 3.75 billion pages of GSK documents in “unknown” locations. As Law360 reporter Andrew Strickler summarized the threat (and thereby inspired the title of this article)  “Hand over the cash or the hard drive gets it!”

In the case, GlaxoSmithKline LLC v. Discovery Works Legal Inc., et al., Case No. 650210/2013, Judge Shirley Werner Kornreich, who sits in New York County’s Commercial Part, sounded a note of caution, in a ruling on the case on September 25, 2013,  about the customary practice of corporations and law firms to outsource their electronic discovery to e-discovery vendors. She said that GSK’s experience with its vendor was a “cautionary tale.” She noted that GSK’s data is stored in far flung locations in a raw, uncoded form that is not indexed in any way, which makes it hard to retrieve without considerable IT work.

“It’s a frightening thought,” she said, that a multi-national company like GSK could find so much of its data in peril due to an e-discovery vendor’s failure and/or refusal to provide the data in usable form. Judge Kornreich urged GSK and others to rewrite their contracts to give themselves more protection with e-discovery vendors by requiring them to keep an index of all of the data the vendors are managing for the client.

However, having a good contract with the vendor is just the start. A company is legally obligated to be able to produce all relevant discovery, including ESI, in litigation. What happens when the vendor is unwilling or unable to provide the client with the data required for discovery? What if the discovery vendor shuts its doors? Will the company be hit with spoliation of evidence sanctions? How would Judge Shira Scheindlin respond if presented with a motion for spoliation sanctions? The short answer is that it probably depends on the circumstances.

But one thing is clear.  I would not want to be the lawyer who retained a problem-some vendor for my client. What due diligence should a law firm perform to ensure that the discovery vendor is a responsible choice for a client? Clearly, the lowest bid cannot be the determinant of what e-discovery vendor is selected, particularly after case,  Additionally, I would be unlikely to hire a small firm (no matter how brilliant and innovative the principals) because the firm’s stability and solvency over the long haul is a critical consideration. 

As Michael G. Van Arsdall at Crowell and Moring wrote recently: “There is a very low likelihood such a hostage situation would ever arise with the large number of reputable vendors that occupy the e-discovery space.” That said, Mr. Arsdall recommends some actions that companies can take to mitigate the risk, or, alternatively, provide the company or the law firm the opportunity to switch e-discovery vendors, if necessary. These actions include:

1. Insisting that the original collection media provided to the vendor (e.g., hard drives) be returned to the law firm or company for safekeeping;
2. Maintaining a copy of all production sets produced;
3. Negotiating reasonable archiving fees upfront, and require that at the end of the matter (or at reasonable intervals during the engagement) an archive set of the data is provided to the company or law firm for safekeeping; and
4. Requiring the vendor to certify that it has destroyed or returned all the company’s data at the conclusion of the matter or at the company’s or law firm’s instruction.

We are all increasingly tied at the hip to our e-discovery vendors in one form or another today. The e-discovery vendor is an important member of the litigation team. If, for any reason, the e-discovery vendor falters in its obligations, the entire team may suffer adverse consequences.
 

Filed under cautionary tale, Discovery Works Legal Inc, E-Discovery, e-discovery vendor, GlaxoSmithKline, GlaxoSmithKline LLC v. Discovery Works Legal Inc, holding hostage, Kornreich', ransom, Shirley, Werner Tagged with

Federal Courts Uniformly Embrace Climate Science

By on September 18, 2013

A visitor to Capitol Hill might come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is caused by human activity.  But one place where there are few such questions is the courts.

In a compelling analysis of federal court decisions addressing climate change issues,  Michael B. Gerrard, Professor of Professional Practice and director of the Center for Climate Change at Columbia Law School, argues persuasively that climate change science has been unanimously accepted by the courts (with one piddling exception) and  the basis for several significant decisions.  Anyone in the position of having to argue the acceptance of climate science in a court case should take note of Professor Gerrard’s article, “Court Rulings Accept Climate Science“, which appeared in the New York Law Journal on September 12, 2013, which contains lengthy citations to the relevant case law.

In an earlier article on this blog, we discussed how the court’s embrace of climate change science, relied upon by EPA, had been largely overlooked by commentator writing about the  District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA,   In that article, we observed that the decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century.

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

 

 

Filed under Climate Change, Climate Change Science, Michael B. Gerrard, U.S. Courts Tagged with

Ernest Hemingway Look-alike Denied Trial Adjournment

By on September 10, 2013

In an order dated, June 22, 2012, USDJ Steven D. Merryday (Tampa, FL) carefully considered counsel’s motion to suspend trial.  The lawyer’s client, Jerry Alan Bottorff, the court noted, "stands accused of murder-for-hire, conspiracy to commit murder-for-hire, and a firearm offense." Earlier, the parties had requested a special setting for the trial to begin.

As the basis for his application, counsel stated in his papers:

Undersigned counsel, a perennial contestant in the Ernest Hemingway Look-alike Contest, is scheduled to appear as a semi-finalist at Sloppy Joe’s Bar in Key West, Florida at 6:30 P.M. on Friday, July 20, 2012.

In order to be able to be in Key West at the appointed hour, undersigned counsel has planned to depart St. Petersburg after the trial recesses on Thursday, July 19, 2012, and drive toward Key West[,] arriving on July 20, 2012.

Undersigned counsel has secured a block of six rooms to accommodate family, friends, and fans and has had to pay non-refundable deposits.

Demonstrating both a sense of humor and a keen appreciation for literature, the court observed:

Between a murder-for-hire trial and an annual look-alike contest, surely
Hemingway, a perfervid admirer of “grace under pressure,” would choose the trial.

At his most robust, Hemingway exemplified the intrepid defense lawyer:

He works like hell, and through it. . . . He has the most profound
bravery. . . . He has had pain[] and the kind of poverty that you don’t
believe[;] he has had about eight times the normal allotment of
responsibilities. And he has never once compromised. He has never
turned off on an easier path than the one he staked himself. It takes
courage.

Dorothy Parker, The Artist’s Reward, THE NEW YORKER, Nov. 30, 1929, at 28-30 (describing
Hemingway). Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor
of solemn duty.

Or, at least, “Isn’t it pretty to think so?”

The court’s ruling on the motion?  "Best of luck to counsel in next year’s contest."

 

Filed under Dorothy Parker, ernest hemmingway, ernest hemmingway look-alike contest, He works like hell, and through it, Hon. steven d. merryday, Interesting Stuff, motion to suspend trial Tagged with ,

Effort Mounted To Reverse Colorado Lone Pine Ban

By on September 4, 2013

A substantial effort has been mounted to urge the Colorado Supreme Court to reverse the intermediate appellate court’s ruling on July 3, 2013 in Strudley v. Antero Resources Corp., which determined  that Lone Pine Orders are prohibited under Colorado law.  In so holding, the Strudley court reversed a trial court ruling that had dismissed plaintiffs’ case for failing to provide the court with any competent prima facie evidence of causation.  We discussed the appellate court holding in a recent article, "Does the Lone Pine Still Stand?"

By way of background, Strudley is a complex toxic court action involving numerous claims by the plaintiffs premised on allegations that the defendants committed tortious acts while hydrofracking natural gas oils. The central issue in the case was whether the defendants caused plaintiffs’ alleged injuries, which the plaintiffs vaguely described as “health injuries” from exposure to air and water contaminated by “hazardous gases, chemicals and industrial waste”. 

The trial court, cognizant of the significant discovery and cost burdens presented by a case of this nature, entered a Lone Pine Order requiring plaintiffs to make an early prima facie showing of exposure and causation. When plaintiffs failed to meet this burden, the trial court dismissed plaintiffs’ case. A Lone Pine Order typically requires a plaintiff to present sufficient evidence prior to full discovery to establish a foundational evidentiary showing of one or more critical elements of the claims, or to risk possible dismissal.

In the wake of this decision, the Colorado Supreme Court has been urged by the bar to take a more expansive view of what case management tools are available under Colorado law. The Colorado Defense Lawyers Association, the Colorado Civil Justice League (“CCJL”) and the American Petroleum Institute (“API”) have all filed amicus curiae in support of the use of Lone Pine Orders in Colorado.

In particular, the memoranda of CCJI and API provide excellent surveys on the extent to which state and federal courts throughout the United States have embraced Lone Pine Orders as an important case management tool. These well-written briefs should be read by toxic tort practitioners with an interest in case management.  In a well-crafted brief authored by Snell & Wilmer, CCJL argues that, if permitted to stand, Strudley will chill efforts by trial courts to exercise active case management. 

As the basis for its argument, CCJL relies upon the Colorado Supremes Court’s June 2013 decision in DCP Midstream, LP v. Anadarko Petroleum Corp, in which the court announced that trial courts should consider cost-benefit and proportionality factors in managing discovery. In the decision, the court held  that Colorado law reflects “an evolving growing effort to require active judicial management of pretrial matters to curb discovery abuses, reduce delay, and decrease litigation costs. The Committee Comments to the revised Rule 16 similarly recognize that “where a case is complex or requires special treatment, the Rules provide flexibility so that the parties and Court can alter the procedure.”  Thus, pursuant to revised Rule 16 and Supreme Court precedent, the Court of Appeals should have upheld the use of Lone Pine.

In arguing for a case management scheme that would permit the Colorado trial courts to apply Lone Pine, CCJL cautions that Lone Pine is hardly a hammer that should be arbitrarily or routinely invoked and is not by any means a substitute for summary judgment.  In summary, CCJL argues that Strudley is bad precedent that will only obstruct the creativity of trial judges in managing their cases. 

API’s excellent amicus brief, submitted by Steptoe & Johnson, also argues that Strudley is not consistent with the DCP Midstream. API emphasizes that toxic and mass tort cases present unique case management challenges. 

Cases involving many parties on the plaintiffs’ or defendants’ side often feature broad allegations of liability that are conclusory and lacking in detail, or are based on the parties’ beliefs or dramatic human situations, rather than competent evidence. Allegations of injuries may include every conceivable injury without regard to exposure or actual liability, and without specific information relating to each plaintiff. 

Thus, argues API, the parties and the courts are often required to spend enormous amounts of money, time and energy litigating these cases with respect to every element and defense, although one issue is often dispositive. When that single issue can be dealt with out front, it often results in dismissal or, alternatively, an early mediated settlement.  As the New Jersey court observed in the original Lone Pine case, many defendants understandably will settle such claims, even if meritless, rather than spend the hundreds of thousands of dollars necessary for discovery.  The plaintiff bar despises Lone Pine because it disincentivizes defendants from paying substantial nuisance value settlements in cases of questionable liability.

Considering the jurisprudential strength and logic of the amici curiae arguments, we believe that the Supreme Court will hold that Lone Pine is alive and well in Colorado and reinstate Judge Frick’s trial court decision.   

Filed under American Petroleum Institute, Amicus Curiae, Case Management, Colorado Civil Justice League, Colorado Defense Lawyers Association, Colorado Supreme Court, DCP Midstream, LP v. Anadarko Petroleum Corp, Lone Pine, Lone Pine Order, Strudley v. Antero Resources Corp, Toxic Tort Litigation Tagged with ,

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