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 cleaner, 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.  

This blog was originally posted on December 2. Click here to read the original entry. 

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In 2012, a major outbreak of fungal meningitis was traced to drugs compounded by New England Compounding Centers. The outbreak included approximately 750 confirmed cases and has resulted in 64 deaths to date. Tragedies of this scale have often been the impetus for major changes to federal food and drug laws in the past; the FDCA itself was enacted in 1938 in response to a tragedy in which the use of an improperly manufactured drug (elixir sulfanilamide) led to over 100 patient deaths.

Drug compounding is a process of combining different ingredients to create customized pharmaceutical products for patients.  The practice predates the rise of mass-produced drugs in the United States, and was essentially unregulated by FDA for 50-plus years after passage of the FDCA.

In a Client Alert titled, "Major Changes in Drug Compounding and Drug Distribution Requirements (Part 1 of 2)", Epstein Becker & Green health care practice partners, James A. Boiani (D.C.) and Kim Tyrell-Knott (San Diego), provide an insightful analysis of the Drug Quality and Security Act (H.R. 3204). 

According to Jim and Kim, the bill is compromise legislation crafted by the Senate Health, Education, Labor, and Pension (“HELP”) and House Energy and Commerce Committees, and is expected to pass the Senate soon after it reconvenes today. Once signed into law, H.R. 3204 will fundamentally change the regulation of drug compounding and drug distribution in the United States.

We look forward to the publication of Part 2 of their Alert concerning this important piece of legislation.

This blog was originally posted on October 28, 2013 by William A. Ruskin on the Toxic Tort Litigation Blog. Click here to read the original entry.


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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. 

This blog was originally posted on July 2 by William A. Ruskin on Toxic Tort Litigation blog. Click here to see the original post. 


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To successfully assert a claim under New York General Business Law § 349 (h) or § 350, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice" 

A claim is brought under GBL § 349 to allege misleading and deceptive trade practices and under GBL § 350 to allege false advertising.  Typically, these two sections are pled in tandem, both in single plaintiff cases and in class action litigation seeking relief from consumer fraud. 

In their NYLJ article (12/28/12) looking back at the significant New York State class action decisions that were handed down during 2012, authors Thomas A. Dickerson, Jeffrey A. Cohen (both Second Department judges) and Kenneth A. Manning devote special attention to the Court of Appeals decision in Koch v. Acker, Merrall & Condit, in which the court clarified that justifiable reliance is not an element of a GBL § 350 claim. Prior decisions had already done away with any reliance requirement on a GBL § 349 claim

The element of reliance had always seeming been an important defense weapon in deceptive trade practice class action litigation. In Koch, plaintiff alleged that the auction house described its wines as "extraordinary, " "absolutely stunning," and among the "greatest wines...ever experienced"  when, in fact, these wines were undeniably nothing of the kind. But the First Department made short shrift of plaintiff's claims.  The court gave considerable deference to the disclaimer language in the auction house's brochure which provided an "as is" disclaimer.

In addition to the "as is" caveat, the "Conditions of Sale/Purchaser's Agreement" made "no express or implied representation, warranty, or guarantee regarding the origin, physical condition, quality, rarity, authenticity, value or estimated value" of the wine.  Should not a  reasonable consumer, the appellate court reasoned, been alerted by these disclaimers, would not have relied, and thus would not have been misled, by defendant's alleged misrepresentations concerning the vintage and provenance of the wine it sells?  In this instance, according to Decanter.com, the plaintiff was Florida billionaire, William "Bill" Koch, who apparently believed that the auction house had sold him the proverbial "bill of goods".  If anyone was to read and understand the "fine print" in the disclaimer, surely a sophisticated investor like Mr. Koch would.

In answer, the  Court of Appeals held that the "as is" provision does not bar the claim (at least at the pleading stage) and does not establish a defense as a matter of law. 

As Messrs. Dickerson and  Cohen explained in an earlier NYLJ article (4/19/12), the Koch ruling may be a "game changer" in deceptive and misleading business practices class action litigation.  They cite a long series of prior appellate cases, which had established reliance as a basis for obtaining a recovery under GBL § 350, which clearly is no longer good law. In the past, New York courts were reluctant to certify GBL § 350 claims because they found that reliance was not subject to class wide proof. 

When the Appellate Division issued its decision, wine industry attorney Brian Pedigo in Irvine California expressed concern to Decanter.com that it would set bad precedent if all prospective bidders had to satisfy themselves by inspection rather than to trust in the auction house's represenations.  In pertinent part, he commented, "A regular Joe consumer is not going to fly overseas [or across the country] to inspect wine. A reasonable consumer will rely on the representation of the seller, and will not read or understand the fine print disclaimers".  An adverse decision for the auction house, he believed, would be "horrible for consumer trust in the online auction environment; it could possibly destroy this niche market sector".  Would  internet commerce beadversely affected if the e-consumer was not able to trust the e-seller?

The Court of Appeals apparently agreed with Mr. Pedigo that the risk of authenticity should not entirely shift to the consumer, regardless of whether the consumer is Joe consumer or Bill Koch. 
The claim against Acker Merrall is not Mr. Koch's only wine-related lawsuit.  He previously brought a RICO claim against Christie's, another auction house, after purchasing four bottles of wine that he believed were connected to Thomas Jefferson, but turned out were not really that old.  That Koch wine auction case ended up in the Second Circuit; but that's a story for another time. 
At the end of the day, Koch serves to harmonize GBL § 349 and GBL § 350; there is no reliance pleading requirement under either statute. 

However, all is far from lost for the defendants in these cases.  As discussed at the outset of this article, plaintiffs must prove  (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice".  Accordingly, although reliance need not be shown, the plaintiff must still prove causation.  Proof of causation remains plaintiff's critical hurdle in succeeding in these claims.  

Republished with permission from  www.toxictortslitigationblog.com
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Rule 403 of the Federal Rules of Evidence governs the admissibility of demonstrative evidence at trial, assuming that evidence is determined to be relevant under Rule 401. Pursuant to Rule 403, a demonstrative exhibit may be excluded from the courtroom if its probative value is substantially outweighed by its unfair prejudice, its cumulative nature or if it is confusing or misleading.


Does the exhibit (1) relate to a piece of admissible substantive proof; (2) fairly and accurately reflect that substantive proof; and (3) is it sufficiently explanatory or illustrative to assist the jury? These are the questions used to establish a proper foundation for use at trial.

In addition, the exhibit should convey what it is designed to convey. For example, a computer enhanced photograph should not make an accident scene look better or worse than it actually was. Similarly, the demonstrative evidence should convey representational accuracy. The scale, dimensions and contours of the underlying evidence should all be accurately depicted. Today more than ever, the creative use of software permits trial counsel to manipulate demonstrative exhibits in ways often difficult to spot.

In an excellent article titled, “5 Demonstrative Evidence Tricks and Cheats to Watch Out For,” Ken Lopez, fouinder of A2L Consulting, provides a useful guide for spotting misleading charts and explains why they are misleading. Lopez discusses five such tricks (which are somewhat difficult to convey without having all of the graphics Lopez uses in his article to illustrate his points):

1. The Slippery Scale. This trick involves setting the the vertical y-axis on a graph in a narrow range that does not include “0.” By not including “0,” it is easy to make a relatively small change look enormous.

2. Compared to what? If the trial lawyer seeks to demonstrate a small change on a percentage basis, all he needs to do is carry the horizontal x-axis so that time is literally “on his side”

3. The Percentage Increase Trick. How many times have you heard someone talk about a 200% or 300% increase and really wonder what they mean? 

4. Tricking the Eye with 3D Charts. Flat charts with no depth or 3D aspect are harder to trick the viewer with, so always scrutinize your opponent’s charts when a third dimension is introduced. On a pie chart, when a slice of the pie (e.g., the percentage of customers injured by a purportedly defective product) is closer to the viewer, it looks much bigger.

5. Misleading Emotional Imagery. Putting an image of a homeless person in the background of a chart about increasing homelessness is designed to evoke emotion. Similarly, showing an oil-covered bird in the background in an explanation of how much oil was spilled in an accident does not add to one’s understanding of the amount of oil spilled, but seeks to trigger an emotional response in the viewer.

Perhaps the single most important Rule 403 objection you can make in a jury trial is the exhibit’s capacity to generate an emotional response such as pity, revulsion or contempt. Under these circumstances, the capacity to evoke emotion far outweighs the value of the evidence on the issues before the court and exclusion is appropriate.

As originally posted on January 9, 2013 in Toxic Torts Litigation Blog
 
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In a thoughtful decision handed down in Reeps v. BMW of North America, LLC, 2012 N.Y. Slip Op. 33030(u), on December 16, 2012 in New York County Supreme Court, the Hon. Louis B. York excluded the expert testimony of plaintiff’s two key causation experts in a toxic tort case where plaintiff alleged that a child’s birth defects were attributable to the mother’s in utero exposure to gasoline vapors.

In an earlier article on this blog about the same case, we examined the decision by the First Department, on an interlocutory appeal, which determined that: (1) defendants had failed to demonstrate that the infant’s parents disposed of their BMW with knowledge of its potential evidentiary value; and (2) that plaintiff’s claims against the BMW dealer, sounding in product liability and breach of implied and express warranty, should be dismissed because the dealer was a service provider, not a product seller.

In that article, we also discussed plaintiff’s burden in having to prove general causation at trial, that is, whether exposure to chemical components in gasoline fumes have been associated in the scientificliterature with cerebral palsy and the other abnormalities alleged. We discussed that if plaintiff is able to prove general causation, she will then have to prove specific causation, that is, whether the dose and duration of exposure to the purported teratogen was sufficient to cause the specific birth defect.

In a Frye decision (tantamount to a dismissal), Judge York analyzed plaintiff’s expert disclosures made pursuant to CPLR 3101(d) for Shira Kramer, Ph.D., and Linda Frazier, M.D., M.P.H. Both experts submitted detailed reports. In support of its Frye motion, BMW submitted affidavits by its own experts, Anthony Scialli, M.D. and Peter Lees, Ph.D. Dr. Scialli is an OB-GYN and reproductive toxicologist. Dr. Lees is a specialist in industrial hygiene and environmental health science. The experts on both sides of the dispute were highly credentialed with impressive CV's.
The timeline of events leading up to the filing of the case is as follows:

1991-In March and again in November, the Reeps bring their 1989 BMW 525i to Hassel Motors, a licensed BMW dealer, to fix an exhaust odor inside the car. Dealer fails to identiify an exhaust odor in March, but later identifies problem as a split fuel hose and repairs it under warranty.

1992-In May, Sean Reeps is born with birth defects, including cerebral palsy, which plaintiffs attribute to Debra Reep's inhalation of gas fumes early in her pregnancy.

1994-BMW recalls BMW525i vehicles due to a safety defect that caused odor due to feed fuel hose.

Plaintiff’s experts attributed the child’s birth defects to gasoline vapors his mother inhaled during the first trimester of her pregnancy while driving her BMW. Dr. Kramer offered the opinion that gasoline vapors and specific chemical constituents of gasoline, such as toluene and other solvents, are casually related to an elevated risk of birth defects among children exposed to these chemicals in utero. Dr. Kramer applied a “weight-of-evidence” assessment of the association between exposure to gasoline vapors, and the chemical constituents of gasoline vapors, and an increased risk of birth defects and other adverse birth outcomes. She based her assessment on the epidemiological, medical and toxicological literature.

For her part, Dr. Linda Frazier opined that the mother was exposed to developmental hazards due to substances and compounds found in gasoline vapors, which included toxic substances capable of severely damaging a developing fetus during the first trimester. She was able to determine that the exposure levels by the mother to gasoline were high, based upon her reported symptoms of headache, nausea and irritation of the throat. Studies have found that these symptoms occur at gasoline vapor concentrations of at least 1,000 ppm.

 As noted by the Court, Dr. Scialli concluded that no scientific publication has ever established a causal relationship between the inhalation of gasoline during pregnancy and the birth defects diagnosed in Sean Reeps. Further, he criticized Dr. Kramer’s reliance on two human case report articles suggesting an association between leaded gasoline and birth defects for lack of “specificity.” The adverse outcomes in those studies were different from those in Sean Reeps’ case. Other studies cited by plaintiff’s experts discuss the effects of gasoline’s ingredients (such as toluene, ethylbenzene, zylene and benzene) on reproductive and developmental outcomes. However, taken together, these components account for no more than 2% gasoline vapors. To have inhaled a significant amount of these gasoline components would have had fatal consequences for the mother.

Finally, Dr. Scialli asserted that plaintiff’s experts failed to consider causes other than gasoline vapor inhalation for the developmental delays diagnosed in Sean Reeps. For example, intrauterine infection is among the most common causes of cerebral palsy. Mrs. Reeps had a history of herpes simplex infection and a rash during her pregnancy.

In ruling on the motion, the Court made several significant holdings, which defense lawyers should find useful. My observations about  some of the notable points in Judge York’s decision are as follows:

1. Plaintiff contended that a motion for a Frye hearing should be precluded by the procedural posture of the case. Plaintiff pointed out that defendant had already made and lost a summary judgment motion. In response, the Court determined that a Frye hearing is evidentiary, separate from dispositive motions, and can be held prior or during the trial. Thus, the Court found it appropriate, at this juncture in the case, to consider a Frye challenge. Although trial courts may apply different procedural rules, it may be not always be necessary for the defendant to mount  Frye challenge as part of a dispositive motion;

2. Under Frye, it is not sufficient to merely utilize accepted methodology in reaching an opinion. Rather, it is necessary that the accepted technologies be properly performed and generate results accepted as reliable within the scientific community.  Plaintiff’s experts, Judge York determined, were merely playing lip service to accepted methodology “while pursuing a completely different enterprise”. Thus, the court should explore not just whether plaintiff's expert cites to an accepted methodology, but whether than methodology was properly applied by the expert in reaching a causation opinion;

3. Plaintiff’s failure to submit affidavits from their experts in opposing defendant’s motion proved fatal in hindsight. In bringing a Daubert or a Frye motion, or in responding to a Daubert or a Frye motion, it is generally sound practice to submit an expert affidavit on behalf of the challenged expert to either explain, or to bolster, the expert’s opinion. Here, defendant’s motion provided plaintiff a roadmap report to the purported weaknesses in the experts’ arguments. Affidavits responding to the criticism of their reports could only have helped their cause.

4. Judge York drew an analogy to a deficiency in Dr. Kramer’s expert report to the expert report in the landmark Court of Appeals case, Parker v. Mobil Oil Corp. In Parker, plaintiff’s expert concentrated on the relationship between benzene and the risk of developing AML – an association that was not in dispute. Key to the Parker litigation, however, was the relationship, if any, between gasoline containing exposure as a component and AML.

In the instant case, the Court found that Dr. Kramer was essentially mixing apples and oranges in attempting to extrapolate from the studies concerning gasoline components to gasoline itself.  Parker remains the touchstone in New York toxic tort jurisprudence.

5. According to the decision, Dr. Kramer’s conclusion on general causation was inadequate because Dr. Kramer failed to state unambiguously that exposure to gasoline vapors during early gestation is causally related to the specific conditions diagnosed in the infant plaintiff specifically.

6. Dr. Kramer failed to meet the Parker v. Mobil Oil Corp. requirement that the expert assess the threshold level at which maternal exposure to gasoline vapors is capable of producing adverse effects generally, or in the case at bar, specifically. Citing Parker, Judge York held that “the threshold level of exposure is an element of general causation.”

 7. The expert's statement that there is an “association” between a specific chemical and an adverse birth outcome is not sufficient to establish “causation.” Citing the Appellate Division's decision in Fraser v. 301-52 Townhouse Corp,  the Court held that “association” is not equivalent to “causation.”  Words matter--how the expert characterizes her opinion is important.

Reflecting the importance that New York state courts need to give to proof of both "general" and "specific" causation, the Court summarized its view as follows:

“Dr. Kramer’s and Dr. Frazier’s opinions do not comport with methodologies prevailing in the epidemiological and toxicological scientific communities and on occasion depart from generally accepted rules of drawing conclusions from premises. They provide insufficient support for the conclusion that exposure to gasoline in some unidentified concentration in the first trimester of pregnancy can cause cerebral palsy, microcephaly or any other condition found in Sean Reeps (general causation), or that such exposure actually led to his illness (specific causation).

In words that any defendant’s trial counsel would want to hear, the Court held, “The Frye’s ‘general acceptance’ test is intended to protect juries from being misled by expert opinions that may be couched in formidable scientific terminology but that are based on fanciful theories.”

The Court found that conducting a separate Frye hearing would be “redundant” considering that plaintiff’s extensive reports fully presented their arguments.

It is likely that this decision will be appealed given what is at stake. Stay tuned.

As originally published in the Toxic Torts Litigation Blog on January 17, 2013
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Although by no means a “hell hole” jurisdiction, it is difficult for a peripheral asbestos defendant to obtain summary judgment in Bridgeport Superior Court in Connecticut. Once summary judgment is denied, many asbestos defendants with questionable liability will often settle out rather than risk the financial exposure of an adverse result in a mesothelioma jury trial.  It is helpful for a company to have a well thought out appellate strategy in mind before selecting a jury in that jurisdiction.  One recent asbestos trial did not turn out well for a trade association defendant.. 

On August 24, 2012, the Bridgeport Superior Court denied post-trial motions filed by Tile Council of North America (“Tile Council”) inHannibal Saldibar v. A.O. Smith Corp. The Tile Council is a trade association that developed and patented an asbestos-containing formula for dry set mortar. This jury verdict raises the issue whether a trademark licensor may be held liable under a theory of strict liability as the “apparent manufacturer” despite having never manufactured or sold the product at issue.  The Apparent Manufacturer Doctrine seeks to hold the licensor vicariously liable for defective products manufactured by the licensee.

Over the past 50 years, trademark licensing has emerged as a preferred method of producing and marketing goods in the U.S.  According to David J. Franklyn, a professor at Northern Kentucky University, who wrote an article titled, "The Apparent Manufacturer Doctrine, Trademark Licensors and Third Restatement of Torts" in the Case Western Reserve Law Review, some $50 billion dollars of licensed goods are sold each year. 

The Bridgeport Superior Court’s decision is arguably a departure from the precedent established inBurkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65 (1990), a well reasoned decision by the Supreme Court of Connecticut. The principal issue in Burkert was whether the distributor of an allegedly defective product, an automatic transmission fluid, was entitled to indemnification against GM, the licensor of a trademark under which the allegedly defective product was marketed. GM, the trademark licensor, did not participate in the production, marketing or distribution of the product.

In Burkert, the Connecticut Supreme Court made two significant rulings: (1) because GM did no more than allow others to use its Dexron® II trademark in the production, marketing and distribution of transmission fluid, absent any further involvement in the stream of commerce, GM could not be deemed a seller under Connecticut’s Product Liability Act; and (2) plaintiff could not rely upon Section 400 of the Restatement of Torts (Second) because that section applied only to those involved in the sale, lease, gift or loan of a product.

The Burkert court cited with approval the holdings of courts in other jurisdictions explicitly holding that liability against a trademark licensor under the Apparent Manufacturer Doctrine is appropriate only when the licensor is determined to have been significantly involved in the manufacturing, marketing or distribution of the defective product. Regardless of whether the plaintiff is proceeding on an “apparent manufacturer” or an “enterprise” theory of liability, the majority of cases emphasize the licensor’s degree of control and involvement exercised over design, manufacturer and sale.

The plaintiff in Saldibar may have raised sufficient factual issues to avoid summary judgment but arguably should not have prevailed on post-trial motions. In rejecting Tile Council’s argument that it was not a “product manufacturer” or “product seller” pursuant to the Connecticut Product Liability Act, the court found that the Tile Council was sufficiently involved in the distribution, marketing and manufacture of its products to “fall within the ambit of the product liability statute.” To add insult to injury, the trial court not only refused to set aside a $1,500,000 verdict in compensatory damages, plus $100,000 in loss of consortium damages, but also upheld an award of $800,000 in punitive damages based on the jury’s finding that Tile Council acted with “reckless disregard” for the safety of product users. Based upon this holding, a trademark licensor in Connecticut is potentially liable for punitive damages resulting from injuries caused by a product it neither manufactured nor sold.

Although the involvement of Tile Council may have been more extensive than that evidenced by GM, the trademark licensor in Burkert, it is questionable whether these factual distinctions warranted a finding of liability, let alone an award of punitive damages. In Saldibar, for example, the court relied upon testimony by a co-defendant, H.B. Fuller, that Tile Council had “developed a market for these products, based upon their formulas, based upon their trademark and hallmark, if you will, of an assurance that if you buy products that contain this logo, you can be sure that it did work.” There us absolutely no  probative value to this testimony.  On the other hand,  If the Plaintiff or Plaintiff's employer had provided testimony that he relied on the presence of the licensor’s logo for assurance that the product was safe, it may have raised a reliance issue. But The co-defendant’s testimony, cited by the trial court, is not relevant to the issue of reliance because it did not purchase the product.  Of more importance is that it does not appear Plaintiff was induced to purchase the asbestos-containing product because of the licensor's involvement. 

Arguably, the licensor should only be potentially liable (as a threshold matter) when it induces the consumer to purchase the product or where plaintiffs can prove that they reasonably relied on the trademark.

What was apparently fatal to Tile Council was the trial court's determination that Tile Council set forth detailed specifications governing “all aspects” of the product, including the percentage and grade of the asbestos fiber to be used. Moreover, in Saldibar, Tile Council drafted the product warnings that appeared on the product. On the basis of these facts, the trial court distinguished Saldibar from Burkert.

Saldibar raises some troubling concerns from a policy standpoint. Saldibar rewards conduct by a licensor that distances it from the ultimate consumer. If Tile Council was in the best position to recommend warnings for the product label, why should this activity alone become a basis for imposing vicarioius liability?  The issue in Saldibar was not whether the warnings were adequate to warn against the risks of asbestos use, but whether the warnings were sufficient to bring Tile Council under the ambit of the Connecticut Product Liability Act as a “apparent manufacturer.” There is no indication that Plaintiff ever read the warnings or that an alleged failure to warn was a proximate cause of plaintiff’s injury. As a practical matter, a plaintiff should be required to demonstrate that he saw the licensor’s logo and was induced to purchase the product on that basis. Whether there was detrimental reliance by the product purchaser was not an issue considered by the court.

Originally published in the Toxic Torts Litigation Blog

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The Benefits of Joint Representation

Posted on October 30, 2012 09:56 by William A. Ruskin

It is common in product liability litigation for the defendant company’s outside legal counsel to represent both employees and former employees of the company in deposition. In the absence of a claim of criminal conduct, which is rarely the case in civil tort litigation, there is generally no conflict of interest in having outside counsel represent both the company and its former employees, particularly where both parties have given their informed consent to be jointly represented. Therefore, it was peculiar for the issue to have been raised in a contact lens products case in Illinois.

In Kallal v. Ciba Vision Corp., (1:09-cv-03346), pending in the U.S. District Court for the Northern District of Illinois, the Hon. Rebecca R. Pallmeyer rejected an effort by plaintiff to disqualify Kelley Drye & Warren LLP, counsel for Ciba Vision Corporation. In ruling against plaintiff, it was reported in Law360 that Judge Pallmeyer advised the parties before ruling, “I don’t see a basis for why Ciba’s lawyers should be disqualified.” At issue was defense counsel’s appearance at the subpoenaed depositions of Dr. Scott Robirds, a former global head of clinical and regulatory affairs for Ciba, and William Schaeffer, a former director of global operations.

In denying plaintiff’s disqualification motion, the court agreed with the argument of defense counsel Catherine E. James that no conflict between Ciba and its former employees existed and that no ethical violation had been committed, which is a necessary perquisite for a disqualification motions to succeed.

In its opposition to plaintiff’s motion, Ciba recognized that the corporation and its individual employees admittedly may not have identical interests. Individuals are necessarily interested in their individual reputations, while a corporation is interested in its organizational reputation. However, Ciba argued that these different interests were hardly the basis for a conflict of interest. Citing Illinois Rule of Professional Conduct 1.7(a), which is modeled after the ABA Model Rule of Professional Conduct, Ciba argued that a conflict exists where the parties’ interests are “directly adverse” to each other, which was not the case here.

It is not altogether clear why the court did not award Ciba the sanctions it had requested for having to respond to a frivolous motion. However, there is no question that plaintiff’s chief motivation for filing the motion was to attempt to communicate informally with unrepresented former employees to advance their litigation interests. As such, the disqualification motion was a mere subterfuge. 

There are many good reasons for a single law firm to represent both the company and its employees, both present and former. Dual representation reduces legal fees and prevents duplicative preparation and litigation costs. Moreover, dual representation provides for litigation strategies that would not otherwise be available.

As one commentator, Janet A. Savage, noted in the employment law context, an attorney is able to plan and execute a joint defense, as well as present a united front to the jury. Moreover, “dual representation offers logistical advantages. It facilitates common access to all necessary facts and maintains contact between the defendant employee and the defendant employer,” according to Savage. Of course, potential conflicts of interest must be carefully analyzed in every case.

*This was originally posted on October 19 on the Toxic Tort Litigation Blog posted by William A. Ruskin. 

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In an earlier article, we discussed the danger posed to an impartial jury system by the “Googling Juror.” In his article titled “Lawyers’ Use of Internet to Influence Jurors” (New York Law Journal, 6/12/12), Michael Hoenig cautions that “the danger to fair trials posed by Internet-surfing jurors is exacerbated by lawyer ‘advertising’ of their prowess or success on websites, by publishing case-specific information on firm sites or blogs or other Internet outlets, and by skillfully weaving inaccurate, misleading or self-serving messages, and ‘depositing’ them where straying jurors can ‘find’ them.” 

Hoenig concludes that these can be purposeful stratagems or innocent puffing. He points out that despite First Amendment protections, courts can and should restrict prejudicial speech by attorneys. He cautions that lawyers must be diligent in reviewing whether their adversaries (or agents) might be depositing messages about case facts or party litigants, or extraneous, non-admissible information on websites, blogs or other internet locations with the expectation that a straying juror would find the information. Even if the specific facts of a case at trial are not discussed, prospective or sitting jurors can still peruse the attorney’s website, noting biographical information, the firm’s specialties, featured clients and the “war stories,” crusades or victories many firms describe. Hoenig believes that this information likely will be passed to other jurors.

Lawyers do have First Amendment rights to a wide range of speech but they are also subject to reasonable restrictions as officers of the court. Further, lawyers are bound by ethical rules. Rule 3.6 of the Model Rules of Professional Conduct prohibits an attorney from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 8.4 prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation” and also states, “a lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce to do so, or do so through the acts of another.”  The article discusses the facts of some of the cases that are emerging in this important area of the law. 

Thus, it is essential that trial counsel perform their own internet investigation concerning both the subject matter of their upcoming trials, and their adversaries' internet materials, to determine whether prejudicial information available to prospective jurors has been posted.

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A Lone Pine Order is an innovative judicial case management tool that requires toxic tort plaintiffs to produce credible expert evidence to support their theory of causation (or another key component of plaintiffs’ claim) prior to the commencement of pre-trial discovery. A Lone Pine Order is designed to weed out frivolous claims before defendants must invest hundreds of thousands of dollars in legal fees and incalculable time and effort only to learn prior to trial that plaintiffs cannot establish a prima facie case. Both federal and state court judges have learned by experience that a Lone Pine case management order can end in their infancy baseless cases that would otherwise require an enormous expenditure of judicial time and resources. I have written about the use of Lone Pine Orders both on this blog and in journal articles. 


The most recent successful use of a Lone Pine Order resulted in an order of dismissal in William G. Strudley v. Antero Resources Corporation, et al., a hydro-fracking toxic tort case pending in the District Court for Denver County in Colorado. On May 9, 2012, District Court Judge Ann B. Frick dismissed plaintiffs’ action due to their failure to comply with the court’s Modified Case Management Order (“MCMO”), which had been entered several months earlier. The MCMO required plaintiffs to provide the Court with sworn expert affidavits establishing the identity of the hazardous substances plaintiffs alleged caused their harm; whether these substances could cause the type of diseases and illnesses claimed by plaintiffs (general causation); the dose or quantitative measurement of the concentration, timing and duration of alleged exposure to each substance; an identifiable, medically recognizable diagnosis of the specific disease or illness for which each plaintiff claims medical monitoring is necessary; and a conclusion that each such disease or illness was caused by the alleged exposure (specific causation).

As Judge Frick noted in her decision, the plaintiffs scrambled to provide a creditable response to the MCMO over the next several months. Plaintiffs submitted a jumble of maps, photos, medical records, air and water sampling analysis reports, together with the affidavit of Thomas L. Kurt, M.D., MPH. In a nutshell, the Court found that Dr. Kurt merely opined that further investigation was necessary, but offered no opinion as to whether the purported exposures were a contributing factor to plaintiffs’ alleged injuries or illnesses. Plaintiffs failed to provide any “statement regarding what constitutes dangerous levels of any substance in drinking water or whether any causal link exists between the study’s results and plaintiffs’ alleged injuries.” The Court determined that Dr. Kurt’s Affidavit was wholly lacking in establishing causation and, at times, presented evidence “circumstantially, in direct contradiction to plaintiffs’ allegations.”

In their Complaint, plaintiffs alleged that “environmental contamination and polluting events caused by the conduct and activities of the defendants… caused the release, spills and discharges of combustible gases, hazardous chemicals and industrial wastes from their oil and gas drilling facilities…” According to the petition, the defendants engaged in oil and gas exploration approximately one mile from the plaintiffs’ residence. Plaintiffs alleged that they relied on a groundwater well for “drinking, bathing, cooking, washing and other daily uses,” but that drilling operations had caused various toxic chemicals to contaminate the air and their water well, forcing them to pack up and abandon their home. In addition to personal injuries, they requested that a medical trust fund be established to monitor their medical conditions.

The result achieved in this case was due to excellent legal work by James D. Thompson III at Vinson & Elkins in Houston and Daniel J. Dunn at Hogan Lovells in Denver, who represented Antero.

It is not enough to draft a motion seeking entry of a Lone Pine Order stating, in sum or substance, “how about that Lone Pine Order, judge?” In their memorandum in support of the Lone Pine Order, the Antero lawyers argued: (1) that the facts alleged in plaintiffs’ Complaint were not sufficient for the court or the parties to expend their resources in discovery; (2) that plaintiffs’ Complaint identified no specific exposure or injury; (3) that plaintiffs’ initial disclosures provided no evidence of specific exposure, injury or causation; (4) that independent evidence concerning the well operations demonstrated that there was no factual basis for plaintiffs’ claims; (5) that the court had the authority to enter a Lone Pine Order; and (6) that the Lone Pine Order would in no way prejudice plaintiffs. The defendants successfully argued that any burdens associated with requiring plaintiffs to make a prima facie showing on their claims were outweighed by the benefits:

 A Lone Pine order will assist the parties and this Court in efficiently and effectively assessing the merits of plaintiffs’ claims before engaging in costly and time-consuming full discovery and pre-trial procedures. Such an order will promote efficient pre-trial and trial proceedings by focusing whether plaintiffs can produce admissible expert testimony concerning exposure, injury and causation. If plaintiffs cannot produce such discovery, then the resources of the parties and the Court should not be wasted. Dismissal, in that instance, would be appropriate.

Amen!

It is not as if plaintiffs' counsel did not have the financial or technical resources to comply with the Lone Pine Order if their clients' case had merit.  Plaintiffs are represented by Napoli Bern Ripka Shkolnik, LLP, a well-heeled New York plaintiff personal injury firm that had the resources to represent hundreds of plaintiffs in the World Trade Center Disaster Site Litigation and battle Exxon in the New York City MTBE Litigation.  The Napoli Law Firm has now branched out, according to its website, into the oil and gas exploration field and has conducted informational meetings with groups of Colorado residents residing near drilling operations concerning their legal options.

If plaintiffs' evidence of causation was so lacking in the high-profile Strudley case, why shouldn't all similar hydrofracking cases be "tested" by Lone Pine?  The alternative is to subject oil and gas industry defendants nationwide to the burden of defending frivolous spare-no-expense WTC Disaster Site-style litigations. These toxic tort cases can go on for years and take on a life of their own, which is better for the courts and all the litigants if causation evidence must be demonstrated at the outset of the case rather than at the tail end.   

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Categories: Environmental Law | Toxic Tort

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