Does the Lone Pine Still Stand?

By on August 28, 2013

Ruling on an issue of first impression, the Colorado Court of Appeals, Division I, ruled on July 3, 2013 in Strudley v. Antero Resources Corp. that Lone Pine Orders are prohibited under Colorado law. In so holding, the court reversed the ruling of the trial court that entered a Lone Pine Order requiring plaintiffs to present prima facie evidence to support their claim that hydrofracking had contaminated their groundwater or risk having their case dismissed.

In an earlier article on this blog titled, “Lone Pine Order Ends ‘No Causation’ Hydrofracking Case,” we discussed the lower court’s rationale for dismissing plaintiffs’ case as a result of their failure to comply with the court’s Lone Pine Order requirements.

In the wake of the decision, some commentators have argued that Lone Pine Orders still remains useful in fracking litigation. Although that may be true, this observation adopts an unnecessarily narrow view of the value of Lone Pine Orders in toxic tort litigation generally. There is nothing particularly unique about hydrofracking litigation that lends itself to Lone Pine advocacy other than questionable causation, which is fairly common in toxic tort case litigation.

For example, we wrote an article on this blog concerning the Happyland Social Club Fire Litigation, which involved 87 wrongful death claims. The Bronx Supreme Court’s entry in 1992 of a Lone Pine Order was instrumental in obtaining dismissals on behalf of defendants whose products plaintiffs could not prove were present in the club at the time of the fire.

In that case, defendants obtained a Lone Pine Order on the sole issue of product identification. Plaintiffs’ theory of the case was that the defendants’ products were fire initiators, fire promoters or, alternatively, emitted toxic fumes when burned. The contents of the social club were stored by Plaintiffs Steering Committee in a vast warehouse in Lower Manhattan. The Catch-22 for plaintiffs was that if a product was in the warehouse more or less intact, it could not have burned and contributed to the deaths of the plaintiffs. On the other hand, if the product was consumed in the fire, there was no way of identifying the product or its manufacturer. As a result, plaintiffs were not able to make a proper product identification in many instances pursuant to the Lone Pine Order and, consequently, many defendants were dismissed from the case.

Unlike the trial court in Strudley, the Happyland Lone Pine Order did not deal with the issue of medical causation, but merely product identification. To make the Lone Pine Order palatable to Plaintiffs Steering Committee, the defendants agreed to submit to limited deposition and document discovery solely on the issue of product identification. In doing so, the defendants avoided having to take discovery in 87 wrongful death cases, most of which would have been conducted in Ecuador.

If the Lone Pine Order entered by the trial court in Strudley had a weakness, it was perhaps that the order imposed too long a laundry list of demands for plaintiffs to meet. Perhaps the defendants were too successful in having the trial court adopt their argument.  In the final analysis, however, it may have made no difference how the Lone Pine Order was structured if the Lone Pine concept is not recognized under Colorado jurisprudence.

In my experience, the simpler the Lone Pine Order, the better. After years of litigation, an Oklahoma state court judge, Deborah C. Shallworth, entered a Lone Pine Order in the Page Belcher Federal Building PCB Litigation, which was a toxic tort litigation against Public Service of Oklahoma, arising from an alleged PCB exposure in the aftermath of a transformer fire. Pursuant to that Lone Pine Order, plaintiffs were required to submit affidavits from their medical doctors establishing a causal link between the injury alleged and PCB exposure. Although a seemingly simple requirement (as compared to what was demanded of plaintiffs in Strudley), many of the Oklahoma plaintiffs could not meet the requirement and their cases were dismissed.

The Colorado Court of Appeals decision in Strudley should be studied by toxic tort practitioners interested in Lone Pine jurisprudence. The opinion contains an excellent survey of Lone Pine orders adopted in other jurisdictions. At the same time, the decision cites those cases in which courts have expressed concern about their “untethered use.” Thus, practitioners on both sides of the toxic tort bar can find helpful language in the opinion.

Are there other uses of Lone Pine Orders other than providing better case management? In an article published in Law 360 titled, “Lone Pine Orders Are Still Useful in Fracking Litigation,” (August 7, 2013), Michael K. Murphy of Gibson Dunn & Crutcher LLP, argues that a Lone Pine Order forces a plaintiff to pick a theory and live with it, providing defendants with a target for later discovery and expert attacks. Therefore, Murphy contends that, even though the entry of a Lone Pine Order does not result in dismissal of plaintiff’s case, it may provide a tactical advantage to defendants later on. In particular, he points to Baker, et al. v. Anschutz Exploration Corp., No. 11-06119 (W.D.N.Y.) (Doc. 112, filed June 27, 2013), as an illustration of this strategy. By coincidence, the same plaintiff law firm represented the plaintiffs in both Baker and Strudley.

 

Filed under Baker, et al. v. Anschutz Exploration Corp, Case Management, Colorado Court of Appeals, Happyland Social Club Fire Litigation, Lone Pine Order, Page Belcher Federal Building PCB Litigation, Rule 16, Strudley v. Antero Resources Corp Tagged with ,

“Dog Ate My Emails” No Defense Against Spoliation Sanction

By on August 21, 2013

On a motion for spoliation sanctions, it makes no difference that a party destroyed emails without “malevolent” purpose. For a sanctions motion to be granted, it is necessary only to demonstrate that the evidence was destroyed deliberately.

In an article, August 19, 2013, titled “Sanctions Imposed for Non-Malevolent Destruction of Emails,” the New York Law Journal  reported on a decision handed down by the Hon. Shira Scheindlin in the Southern District of New York on August 15, 2013 in Sekisui Medical America v. Hart, 1:12-cv-03479, 2013 U.S. Dist. LEXIS 115533 (S.D.N.Y. 2013).

In that case, plaintiff, a Japanese medical equipment manufacturer, was sanctioned by Judge Scheindlin for deliberately destroying electronic records found relevant to a dispute over its acquisition of a business from the former owners, Richard Hart and Marie Louise Trudel-Hart. As federal court practitioners are well aware, Scheindlin decided the Zubulake case which, along with several other decisions, created the modern standard for preservation of electronic materials. Although her holding rests on established Second Circuit precedent, Judge Scheindlin’s analysis provides important guidance to practitioners.

It emerged during discovery that Sekisui had not placed a litigation hold on the relevant business unit’s electronically stored information (“ESI”) until fifteen months after a Notice of Claim was received. During that period, the business unit’s HR director ordered deleted the relevant emails because they were cluttering the company’s servers.

 Not one, but multiple missteps appear to have haunted Sekisui in the run-up to the ruling. For example, before directing the permanent deletion of the defendant’s ESI, the HR director apparently “identified and printed any emails that she deemed pertinent to the company,” which emails were produced in discovery. However, these “pertinent” emails were not backed up before being deleted; they were merely printed out in hard copy. Eventually, Sekisui was able to search alternative sources and produced 36,000 emails to and from defendant Hart. However, the court determined that it was impossible to say how many emails were permanently deleted and remained unrecoverable. Due to a cognitive disorder, defendant Hart could not testify or be deposed in the action.

By now, federal court practitioners know the importance of issuing a litigation hold as early as possible. However, it is not enough to have the client merely distributing the litigation hold to the staff. It is necessary to ensure that the correct individuals are sent the notice and that they completely understand their legal obligations with regard to ESI preservation. Following up with the client on preservation compliance after the litigation hold is sent is essential in avoiding potentially catastrophic result.

The court recognized that Sekisui had made a real effort to minimize the harm done by the destruction of emails. However, it was still not able to rebut the presumption of prejudice because of the unknowable amount of ESI that was permanently destroyed.  Judge Scheindlin advised the parties that she would give the following jury charge in the case: 

The Harts have shown that Sekisui destroyed relevant evidence. This is known as the "spoliation of evidence."

Spoliation is the destruction of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. To demonstrate that spoliation occurred, several elements must be proven by a preponderance of the evidence:

First, that relevant evidence was destroyed after the duty to preserve arose

Second, that the evidence lost would have been favorable to the Harts.

As to the first element I instruct you, as a matter of law, that Sekisui failed to preserve relevant evidence after its duty to preserve arose. This failure resulted from an employee’s intentional directive given to ADI’s information technology vendor to destroy the email files of— at least— Richard Hart and Leigh Ayres. Moreover, this failure resulted from Sekisui’s gross negligence in performing its discovery obligations. I direct you that I have already found as a matter of law that this lost evidence is relevant to the issues in this case.

As to the second element, you may presume, if you so choose, that such lost evidence would have been favorable to the Harts. In deciding whether to adopt this presumption, you may take into account the egregiousness of the plaintiffs’ conduct in failing to preserve the evidence.
Sekisui offered evidence that, although evidence was lost and it may have been relevant, nevertheless such evidence would not have been favorable to the Harts.

If you decline to presume that the lost evidence would have been favorable to the Harts, then your consideration of the lost evidence is at an end, and you will not draw any inference arising from the lost evidence.

However, if you decide to presume that the lost evidence would have been favorable to the Harts, you must next decide whether Sekisui rebutted that presumption. If you determine that Sekisui rebutted the presumption that the lost evidence was favorable to the Harts, you will not draw any inference arising from the lost evidence against Sekisui. If, on the other hand, you determine that Sekisui has not rebutted the presumption that the lost evidence was favorable to the Harts, you may draw an inference against Sekisui and in favor of the Harts – namely that the lost evidence would have been favorable to the Harts.

Without question, spoliation of evidence will become a major trial theme for the defense in Sekisui. As is often the case when the jury is given a charge of this nature, jurors will assume the worst of the party responsible for the spoliation–a challenging scenario for any trial lawyer or jury consultant to deal with.

Filed under E-Discovery, Electronically Stored Information, ESI, homework', purpose', Rebuttable Presumption, Sekisui Medical America v. Hart, Shira Scheindlin, spoliation of evidence, spoliation of evidence jury charge, Zubulake Tagged with

Adding Primary Jurisdiction To The Defense Lawyer’s Toolbox

By on August 19, 2013

When the preemption defense is not available, it may still be possible to effectively dismiss a plaintiff’s claim by arguing that the court should consider primary jurisdiction. Primary jurisdiction is a judicially created doctrine that addresses the proper relationship between court and administrative agencies. 

Raising primary jurisdiction may be particularly helpful to food and cosmetics manufacturers where a plaintiff’s particular deceptive trade practice allegations may not be specifically addressed by FDA (or Nutrition Labeling and Education Act , "NLEA" ) regulation. A case in point is Astiana v. Hain Celestial Group, Inc., a putative class action in which plaintiffs alleged that the defendant’s claims of "all natural" and "pure, natural & organic" were false and misleading under California law.  In dismissing the case, the California court agreed that the FDA, rather than the court, should evaluate plaintiffs’ claims in an administrative setting in light of the complexity of the issues presented and the agency’s expertise in the subject matter. 

An excellent explanation of primary jurisdiction is found in a decision by U.S. District Court Judge Susan R. Nelson in Taradejna v. General Mills, Inc., 909 F.Supp.2d 1128 (D.Minn. 2012):

Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making. Although there is no fixed formula for deciding whether to apply the doctrine, the doctrine applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. Agency expertise is the most common reason that courts apply the doctrine of primary jurisdiction. In addition, courts apply the doctrine to promote uniformity and consistency within the particular field of regulation. . . . When the primary jurisdiction doctrine applies, the district court has discretion either to stay the case and retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. Id. at 1134

In Taradejna, the Minnesota court applied primary jurisdiction to dismiss a plaintiff’s case relating to the advertising and selling of "Yoplait Greek" yogurt.  As discussed in the Product Liability Monitor, Lisa Sokolowski of Weil, Gotshal & Manges LLP concludes her thoughtful discussion of the decision commenting that "Judge Nelson ultimately found that the ambiguity and murky regulatory history surrounding the FDA’s “standard of identity” for yogurt meant that the U.S. Food and Drug Administration (“FDA”) should decide whether defendants’ actions violated the law."

In addition to Ms. Sokolowski, some astute commentators have weighed in on the preemption/primary jurisdiction distinction in recent months.  James A. Becker of Reed Smith authored a well-written discussion in Drug and Device Law (11/28/12) titled "Primary Jurisdiction: A Natural Alternative to Preemption".  Glenn Pogust and Michael Gruver at Kaye Scholer authored an article titled "Preemption and Jurisdiction Defenses in Caffeine Litigation", which appeared in the New York Law Journal on July 11, 2013.  Reading these authors should provide defense counsel with a road map concerning the kinds of cases in which primary jurisdiction arguments may succeed.

Filed under cosmetics, FDA, Litigation Issues and Factors, New York Law Journal, NLEA, Nutrition Labeling and Education Act, Preemption, Preemption and Jurisdiction Defenses in Caffeine Litigation, preemption defense, primary jurisdiction, Primary Jurisdiction: A Natural Alternative to Preemption, Product Liability Monitor, Taradejna v. General Mills, Inc. Tagged with ,

NYS Hydrofracking Moratorium: No End In Sight

By on August 16, 2013

The NYLCV’s eco politics daily reported this morning that Governor Andrew Cuomo will not reach a decision on whether to allow fracking in New York until the NYS Department of Health releases its long-awaited study concerning fracking’s health effects.

On Monday, Gov. Cuomo spoke with Susan Arbetter of NCYN’s Program, "The Capitol Pressroom".  He acknowledged that while fracking could have economic benefits for upstate New York, the accompanying health and environmental impacts were not insignificant and he was not prepared to condemn or condone the practice before knowing the full consequences of such action.

At the same time, the DEC is in the process of collecting information on a comprehensive exploration of environmental impacts for which fracking opponents and supporters have been anxiously.  The five year moratorium on hydrofracking in New York is a hot button issue in New York’s gas-rich Southern Tier, where the economy could use the boost that natural gas exploration could provide. 

According to Debbie Preston, Broome County Executive, "We won’t be silenced and we won’t stop fighting for our future until we are start drilling here in New York state”.  In an article by Elyse Michalonis, dated July 23, 2013, appearing in YNN, state legislators in the area compare the boom economy in neighboring Pennsylvannia with the absence of growth in New York.   "If you go down to Pennsylvania, travel around, it’s a booming economy, things are happening. There’s new roads and buildings. They’re thriving. We’ve got people in this area driving there, because that’s the only place to get a job,” said Assemblyman Clifford Crouch.

 

Filed under Broome County, Debbie Preston, Broome County Executive, DEC, eco politics daily, Fracking, Governor Andrew Cuomo, Hydraulic Fracturing, hydrofracking, moratorium, New York State, New York State Department of Health, Oil & Gas, Southern Tier, Susan Arbetter, York Tagged with ,

Zoning Ban On Fracking: OK in NY, But Maybe Not OK In PA

By on August 9, 2013

Local bans on hydraulic fracturing continue to be fiercely debated as the use of hydraulic fracturing for oil and gas development of shale reserves increasingly gains in popularity. Grassroots opponents of  hydraulic fracturing increasingly stress the non-environmental social impacts that have become associated with hydraulic fracturing in certain rural communities. 

On May 2, 2013, two Appellate Division cases in New York came down that upheld the use of local zoning ordinances to ban fracking. Unless the New York Court of Appeals takes a different path, the law established in these cases – Norse Energy Corp. v. Town of Dryden, No. 515227, 2013 N.Y. Slip OP. 03145 (3d Dept. 5/2/13)and Cooperstown Holstein Corp. v. Town of Middlefield, No. 515498, 2013 Slip Op. 03148 ((3d Dept. 5/2/13), will allow towns to use zoning to ban fracking in their communities.

An excellent discussion of the background of these New York cases can be found in WestLaw Journal: Environmental (Volume 33, Issue 26/July 9, 2013) titled "Will fracking become the rule of local zoning control in New York state?", authored by  Eileen Millett, an environmental lawyer at Epstein Becker & Green and a former a former Visiting Professor of Law, who taught courses at Syracuse University School of Law in environmental and regulatory law, and  is an expert on environmental/energy regulatory compliance.

According to Millett, the law may now be settled on this issue in New York, but the same issue is creating angst for stakeholders in Pennsylvania. Pennsylvania Act 13, enacted in 2012, contained a section restricting the ability of municipalities from controlling the location of gas drilling within their boundaries.

Pennsylvanians now await a decision from the Supreme Court, in the wake of a Commonwealth Court decision, which  found that that Act 13 cannot restrict zoning. The state had argued in that case that zoning provisions in Act 13 do not pre-empt local governments from enacting zoning ordinances so long as they did not place any restrictions on the location of oil and gas drilling operations in conflict with Act 13. Robinson Township et al. v. Commonwealth of Pennsylvania, No. 284 MD 2012.

Citing the need for statewide uniformity to ensure the most efficient development of oil and gas resources, and consistent environmental protections for all residents, the Pennsylvania legislature also declared that all local ordinances — including local zoning rules — must allow for reasonable development of oil and gas resources consistent with the new legislation. Stay tuned. 

Once the moratorium on hydraulic fracturing is lifted in New York (and it most likely will be lifted sooner or later), there may be a patchwork of communities throughout the State which have banned fracking.  Nevertheless, there will still be many communities in New York where the activity will be welcomed.

Filed under Cooperstown Holstein Corp. v. Town of Middlefield, Eileen Millett, Fracking, fracturing', home rule, Norse Energy Corp. v. Town of Dryden, Oil & Gas, Pennsylvania Act 13, Robinson Township et al. v. Commonwealth of Pennsylvania Tagged with

Is Rule 30(b)(6) A Plaintiff’s Best Friend?

By on August 8, 2013

Rule 30(b)(6) of the Federal Rules of Civil Procedure provides an efficient means of identifying the corporate representative with the most relevant knowledge concerning particular subjects at issue in a case. When a requesting party cannot identify the appropriate corporate witness to testify about particular activities or documents, Rule 30(b)(6) can be an invaluable tool.

The corporate deposition may be fraught with risk, however, especially in a case involving skillful plaintiff counsel. This is particularly the case where testimony of the corporate representative may have importance in future or parallel litigation. Thus, If Rule 30(b)(6) is plaintiff’s counsel’s best friend, it is imperative that the corporate witness be properly prepared in the first instance. In a program titled, “Preparing the Corporate Witness,” which was presented to the attendees at the IADC’s 2013 Annual Meeting, Kay Barnes Baxter of Swetman Baxter Massenburg, LLC, Elizabeth Haecker Ryan of Coats Rose, and Terrence M.R. Zic of Whiteford Taylor Preston LLC provided an excellent overview of potential Rule 30(b)(6) pitfalls and how good preparation may help avoid them.

Upon receipt of the Rule 30(b)(6) notice, the first decision to make is whether to object to the notice. Is the notice overly broad and burdensome? Is the notice so vague that it is unclear precisely what information will be elicited at the deposition? Prior to discussing with the client what witness or witnesses to produce, it is imperative that both counsel and the client have a clear idea concerning the scope of the notice. The failure to timely object to the notice may come back to haunt the unwary defense counsel.

The second decision to make is critical – who should be designated as the corporate representative? The rule does not require the person designated to be the individual “most knowledgeable” about the subject matter. However, there is nothing to prohibit the corporation from designating that person. Moreover, the rule does not require that the witness be an employee of the corporation. The rule indicates that a corporation may designate “other persons who consent to testify on its behalf.”  On occasion, a former employee or a consultant may have the best information concerning the information at issue.

Perhaps the biggest challenge in preparing the corporate witness for deposition is that he or she must testify to “information known or reasonably available to the organization.” Thus, the corporate witness often is required to testify beyond his or her personal knowledge. The plaintiff generally wants to have it both ways. During the deposition, the plaintiff will seek to elicit hearsay testimony from the corporate witness. However, should the same corporate witness appear at trial, plaintiff’s counsel will most likely object to the admission of testimony unfavorable to the plaintiff on the ground that the witness does not have personal knowledge of the information.

 Therefore, it is often a good strategy to consider conducting your own direct examination of the witness at the end of plaintiff’s examination so that you can make counter-designations of that testimony in the event that plaintiff’s counsel designates any portion of the witness’ testimony for trial. It is difficult for plaintiff to object to testimony on hearsay grounds if plaintiff has designated testimony from the same deposition for use at trial.

Every defense counsel has suffered through a deposition in which the client has seemingly forgotten everything that was painstakingly discussed during a prep session.  Hopefully, if counsel has prepared the client well, her corporate witness will hopefully not give answers like:

"I don’t know what ABC Company thinks of what is written in this company document, although I know what I think it means."  or

"This is me speaking, not the Company."

Of course, all answers are on behalf of the corporation and have the potential to be used against it , regardless of how the witness attempts to qualify an answer. 

It is sometimes difficult to anticipate exactly what strategy plaintiff’s counsel will adopt in taking the deposition of a corporate witness. One good tip offered at the IADC program– If you know which plaintiff attorney will be taking the deposition, get a transcript from one of this attorney’s prior corporate depositions and go over with your witness the types of questions that will be asked and the phraseology that the attorney favors. Practice those questions and answers with the corporate witness. Your client should be prepared in the event she is asked what a witness might have been thinking when she wrote a particular document or if she is asked to provide a legal conclusion.  

 

Filed under corporate representative, deposition preparation, Federal Court Litigation, IADC, Preparing the Corporate Witness, Rule 30(b)(6), Rule 30(b)(6) of the Federal Rules of Civil Procedure Tagged with

Congressional Clarification Of Removal Rules: A Primer

By on August 1, 2013

Federal court practitioners are well-advised to be aware of the key provisions of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (the “JVCA”), which went into effect on January 6, 2012. The JVCA amended 28 U.S.C. § 1446 in several significant ways. Although the JVCA did not revise existing law relating to the rules governing removal, the Act provided important clarification concerning previously conflicting judicial interpretations of these provisions.

The JVCA clarified the law regarding timing for removal in three significant respects:

1. In a case removable based on the initial complaint, each defendant has thirty days after receipt of the complaint to remove;

 2. Cases that are not initially removable may become removable on receipt of information in discovery satisfying the amount in controversy requirement; and

3. Removal can occur more than one year after the filing of the complaint if bad faith can be shown.
Pursuant to the JVCA, each defendant, and not just the first-served defendant, has its own thirty day clock to file a removal petition.

Thus, it no longer makes any difference that the first-served defendant failed to seek removal. Under the old rule, a savvy plaintiff would typically serve its state court pleading on the least sophisticated defendant first and hope to run out the 30-day clock. This play is no longer effective.

The JVCA codified the “rule of unanimity”, which requires all defendants in diversity cases to consent to removal. Failure to satisfy the “rule of unanimity” makes a defendant’s removal defective. How the practitioner complies with the “rule of unanimity” may vary by jurisdiction. Thus, practitioners should be careful to demonstrate consent in a manner that meets the requirements for the applicable jurisdiction.

According to the JVCA, if a case is not removable based on the initial pleading, information obtained in state court discovery may be used to support removal – notwithstanding the fact that the initial thirty-day post-service removal date have expired. This rule is codified in 28 U.S.C. § 1446(c)(3)(A), which qualifies discovery responses as an “other paper.”

A case now may be removed more than one year after commencement of the case if the moving defendant can demonstrate that the “plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c)(1). Although the JVCA does not define “bad faith,” it provides that a plaintiff who “deliberately fails to disclose the amount in controversy to prevent removal shall be deemed bad faith.”

According to the JVCA, “the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy.” The JVCA resolved what had been a split between the federal appeals courts and adopted the majority view that it is the defendant’s burden to establish the amount in controversy by a “preponderance of the evidence.” Under the new rule, if challenged, a defendant is required to present more than a conclusory statement that the amount in controversy exceeds $75,000.

This article relied in large part on an excellent article appearing in Law 360 on July 25, 2013, titled “500 Days of the Revised Removal Statutes,” by Gregory F. Harley and Katie Wolf of Burr & Forman LLP in Atlanta, Georgia.
 

Filed under Diversity, Federal Court Litigation, Federal Courts Jurisdiction and Venue Clarification Act of 2011, JVCA, Removal, rule of unanimity Tagged with

Applying The Brakes To “Take-Home” Asbestos Claims

By on July 23, 2013

The typical “take-home” plaintiff is a bystander such as the child who claims she was exposed to asbestos while playing in the basement where her father’s work clothes covered with asbestos dust were laundered. Across the United States, the battle lines are being drawn in these “take-home” or “household” asbestos cases.  In a prior article, we examined how various courts around the country analyzed the issues of "duty" and "forseeability" presented by these cases. 

On July 8, 2013, the Maryland Court of Appeals, in a case titled Georgia-Pacific LLC v. Farrar, reversed a lower court judgment in a case involving “take-home” for “household” asbestos exposure. The court rejected the trial court’s use of a broad foreseeability standard to identify the scope of a product manufacturer’s duty. Rather, the appeals court adopted a standard that examined foreseeability based on scientific knowledge about the potential harm to non-users at the time the product was used. At the same time, the court also offered a healthy dose of skepticism whether it was even feasible to warn non-users of product dangers.

The Maryland high court relied, in part, upon a 2005 New York State Court of Appeals holding in Matter of NYC Asbestos Litigation.  In that case, the plaintiff John Holdampf was employed by the Port Authority from 1960-1996 in various blue collar positions, during which time Holdampf was exposed to asbestos. Although the Port Authority offered laundry service, much of the time he opted to bring his dirty work clothes home for cleaning for reasons of convenience and because there were no showers available at work.

Elizabeth Holdampf, who washed her husband’s soiled uniforms, was diagnosed with mesothelioma in August 2001. In ruling on behalf of the Port Authority, the Court of Appeals rejected her argument that the Port Authority’s status as an employer placed it in a position to control or prevent John Holdampf from going home with asbestos-contaminated work clothes or to provide warnings to him and other employees and through them, to household members such as her.

The New York high court was also skeptical of plaintiff’s assurances that a ruling in favor of Elizabeth Holdampf would not result in “limitless liability” finding that drawing a line, once a precedent was established, would not be so easy to draw.  The Court of Appeals’ cautionary  language concerning the risk of  potentially "limitless liability" is instructive. 

In sum, plaintiffs are, in effect, asking us to upset our long-settled common-law notions of an employer’s and landowner’s duties. Plaintiffs assure us that this will not lead to ‘limitless liability’ because the new duty may be confined to members of the household of the employer’s employee, or to members of the household of those who come onto the landlord’s premises.

This line is not so easy to draw, however. For example, an employer would certainly owe the new duty to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week. But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for example, the babysitter (or maybe an employee of a neighborhood laundry) launders the family members’ clothes. In short … the specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship. Here, there is no relationship between the Port Authority and [plaintiff].

Finally, we must consider the likely consequences of adopting the expanded duty urged by plaintiffs. While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure at issue in this case is rather low, experience counsels that the number of new plaintiffs’ claims would not necessarily reflect that reality

Despite the cautionary alarm sounded by the New York Court of Appeals concerning the danger of "limitless liability", New York trial courts continue to distinguish cases on their facts to permit recovery for "take-home" claimants. 

On May 13, 2013, Justice Sherry Klein Heitler, the presiding judge for the New York City Asbestos Litigation, denied a motion for summary judgment brought by the Long Island Railroad (“LIRR”) in Frieder v. Long Island Railroad,  a case in which the injured party, Morton Frieder, was diagnosed with mesothelioma despite having never worked hands-on with asbestos-containing materials. Frieder spent seven years working in a diner (appropriately named, as any LIRR commuter would agree, the "’Dashing Dan Diner) located within the gated premises of the LIRR’s Morris Park train repair yard, where asbestos-containing materials were used “routinely” by the LIRR. 

Judge Heitler determined that while Mr. Frieder never worked hands-on with asbestos, he testified that a “couple hundred” LIRR workers would dine at the diner during breakfast, coffee breaks and lunch daily. These LIRR workers never changed out of their work clothes before eating at the diner. When they came into the diner “they would bang off their boots, take their gloves off and throw them on the counter. If they had a coat or jacket on, they would just shake it off” causing “dust all over the place” that required Mr. Frieder and other diner workers to perform “really heavy sweeping and cleanup of the diner.”

Judge Heitler ruled that the Court of Appeals holding in Holdampf could not be relied upon by the LIRR because the facts presented in Frieder were different, to wit, LIRR had control of the workplace where the dinner was located (inside the walls of the rail yard).   Under this unique set of facts, she reasoned, her ruling would neither run afoul of Holdampf nor open the floodgates of "limitless liability".  Based upon her discussion of the "take-home" case law, Judge Heitler appears prepared to apply the brakes to "take-home" asbestos claims in New York City. 

Filed under Asbestos, Dan, Diner", duty, foreseeability, Frieder v. Long Island Railroad, Georgia-Pacific LLC v. Farrar, Heitler', Holdampf, Justice, Klein, limitless liability, Matter of NYC Asbestos Litigation, Sherry, Take-Home Exposure Tagged with

Requiring Objectivity in Evaluating Private Nuisance

By on July 12, 2013

Our nation’s courts are mindful that private nuisance is only actionable if an interference with use and enjoyment of land is both “substantial and unreasonable.” Courts are cognizant that lots of people, who sometimes speak too loudly, smell badly or otherwise do not show proper regard for their neighbors, are thrown together in close proximity, particularly in urban settings,  To permit these petty annoyances to be actionable as private nuisance would result in flooding our court system with trivial and nonsensical disputes. 

It was with this consideration no doubt in mind that the Court of Special Appeals of Maryland, in David S. Schuman v. Greenbelt Homes, No. 2020 (September Term, 2011),  affirmed on June 27, 2013, a Maryland trial court decision, which had concluded that a townhouse resident could not recover in private nuisance for the annoyance caused by secondhand smoke from a neighbor smoking on his back porch. 

You have to love an appeals court decision, which captured the flavor of the matter by opening with the lyrics of an old hit song:

"A Mills Brothers hit from the 1930’s asks the musical question:

Where do they go,
The smoke rings I blow each night?
Oh, what do they do,
Those circles of blue and white?"
 

After a six day trial, the Maryland trial court determined that the neighbor, who enjoyed four to six cigarettes on his back porch every evening was not a nuisance. Although the smoking created an odor, the claimant stressed potential adverse health impacts caused by secondhand smoke. Therefore, it was surprising that the plaintiff failed to produce any medical records showing an actual injury resulting from the smoke. Yet lack of medical proof was not the determinative finding in the court’s ruling. 

As is often the case with these disputes between long time neighbors (who lived in adjoining townhomes in a housing cooperative in Greenbelt, Maryland), friction first arose fifteen years prior to the trial. At that time, the plaintiff claimed that the neighbor’s cigarette smoke was seeping into his home through cracks in the walls. In response to this complaint, the coop attempted to mitigate plaintiff’s exposure to the cigarette smoke by sealing the walls. 

The sealed walls apparently did the trick until 2008 when the plaintiff renovated his home. In addition to the seepage issue reappearing, the neighbor now complained that he was bothered by secondhand smoke from his neighbors smoking on their back patio.  As a result, smoke came into his home when the windows were open.

In rejecting plaintiff’s nuisance claim, the appeals court held “If this Court were to hold that any amount of secondhand smoke entering from one cooperative housing member’s home to another’s constituted a nuisance, we would be one step away from banning smoking in all private homes,” Judge Robert A. Zarnoch said, writing for a four-judge panel. The appeals court also affirmed that the small amount of smoke involved did not amount to a nuisance in fact under Maryland law.

In so holding, the court determined that its ruling was consistent with the approach taken by other courts. In particular, it cited in a New York Appellate Division case, Ewen v. Maccherone, 927 N.Y.2d 274, which determined that “the law of private nuisance would be stretched beyond its breaking point if we were to allow a means of recovering damages when a neighbor merely smokes inside his or her own apartment in a multiple dwelling building.” 

As framed by the New York State Court of Appeals in Copart Indus. v. Con. Edison Co., 41 N.Y.2d 564, 394 N.Y.S.2d 169 (1977), one of the leading private nuisance cases in New York, a plaintiff seeking to establish a private nuisance must demonstrate the invasion of the interest in the private use and enjoyment of land is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangers conditions or activities. 

In essence, the appeals court advised the plaintiff to get over it. “In this case, if Schuman does not want to be harmed by or to smell smoke, the only inconveniences he has are that he cannot sit on his porch to up to an hour and a half each evening and has to shut his windows at that time.” The court also recognized that merely because a claimant has a particular sensitivity to the smell of smoke that sensitivity cannot be the basis for a nuisance finding. 

Rather, courts examine nuisance claims brought by “sensitive” individuals, such as Schuman, by applying an objective standard, i.e. whether the smoke would cause physical discomfort and annoyance in persons of ordinary sensibilities. It is noteworthy that plaintiff’s expert, James L. Repace, determined that the nicotine levels in the air at the courthouse – where smoking was prohibited – was similar to air readings taken at plaintiff’s house.

As the New York Court of Appeals wrote over forty years ago, “Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other. If one lives in the city he must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life.” Nussbaum v. Lacopo, 7 N.Y.3d 311, 315, 265 N.E.762, 317 N.Y.S.2d 347 (1970).

During the pendency of the appeal, the case garnered considerable attention.  The Tobacco Control Legal Consortium of the Public Health Law Center filed an amicus brief on behalf of plaintiff arguing that exposure to secondhand smoke poses a severe and immediate health risk, not a mere annoyance.   Despite a strong appeal to the science in the amici brief, the Maryland appeals court did not take the bait. 

Private nuisance cases can be troublesome to defend if the plaintiff is one of many who finds the defendant’s conduct a nuisance. If several unit owners at the Greenbelt Coop found defendant’s smoking problematic, the case would have been that much more difficult to defend. 

In the absence of third-party corroboration of the nuisance, defense counsel in these cases should stress the absence of objective evidence of the nuisance, such as in Schuman, where the plaintiff’s complaints were not associated with any medical complaints.  The objective evidence Schuman did possess–air testing–was determined to be unpersuasive after it was determined that  nicotine levels found in plaintiff’s home were no higher than background levels. 

Where the defendant has objective data–such as VOCs readings from a Draeger cannister in petroleum odor nuisance case–and the plaintiff does not have an expert who has performed testing to document plaintiff’s claims, it may be possible in some jurisdictions to seek dismissal as a matter of law.  

In what may be some small measure of consolation to the losing plaintiff, since this litigation commenced, the Coop has initiated a procedure pursuant to which coop owners along a row of units can now voluntarily revise their Mutual Ownership Contracts to indicate that smoking in these units is not permitted. 

Filed under Consortium', Control, David S. Schuman v. Greenbelt Homes, Legal, loss of use and enjoyment of land, Nuisance, objectivity, private nuisance, secondhand smoke, substantial and unreasonable, Tobacco Tagged with

Supreme Court’s Bartlett Decision Could Strengthen FIFRA Preemption

By on July 2, 2013

The U.S. Supreme Court’s decision in Mutual Pharmaceutical Co., Inc. v. Bartlett, No. 12-142, decided June 24, 2013, may assist defense counsel in defending product liability cases involving FIFRA-regulated products such as herbicides and pesticides. Although Bartlett involved design defect claims against manufacturers of generic drugs, which are regulated by FDA, the principles enunciated in Bartlett potentially have much greater application.

In Bartlett, the court held that the Federal Food, Drug and Cosmetic Act preempts state-law design defect claims against manufacturers of generic drugs. The court rejected outright plaintiff’s contention that under the so-called “stop-selling” theory, a generic manufacturer could comply with both federal and state law merely by removing its drug from the market.

In rejecting that argument, Justice Samuel Alito, writing for the majority, held that “the incoherence of the stop-selling theory becomes plain when viewed through the lens of our previous cases. In every instance in which the court has found impossibility pre-emption, the ‘direct conflict’ between federal and state law duties could easily have been avoided if the regulated actor had simply ceased acting.”

Thus, in reversing the First Circuit decision, the court slammed the door on plaintiffs hoping to circumvent the preemption defense by contending that a manufacturer might merely stop selling the product.

In an article in Law360 titled, “Bartlett’s Benefits Will Extend Beyond Generic Drug Makers,” 6/28/13, commentators offer the view that pesticide manufacturers may now be protected from plaintiff alleging a stop-selling theory of liability.  If the case’s holding is so extended, plaintiffs should no longer be able to allege that an herbicide manufacturer should not have placed a pesticide into commerce in the first instance. In essence, this is a variation of the often espoused argument that a product should not be marketed because its risks outweigh any potential benefits.  After all, the whole point of federal regulation is the underlying assumption you are going to market the product.
 

Filed under Agricultural Chemicals, design defect claim, direct conflict, FDA, FIFRA, generic drugs, Justice Samuel Alito, Mutual Pharmaceutical Co., Inc. v. Bartlett, Preemption, stop-selling theory, US Supreme Court Tagged with ,

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