Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

On May 1, 2013, the Second Circuit issued an important decision in Caronia v. Philip Morris USA Inc., 2d Cir., No. 11-0316 (5/1/13). The Court provides an excellent summary of the law concerning medical monitoring claims in New York state and federal courts, and in other jurisdictions around the country. However, the Second Circuit concluded that the New York Court of Appeals was best suited to determine whether New York recognizes an independent claim for medical monitoring.

Therefore, the Court certified the following questions of New York law to the Court of Appeals: (1) Under New York law, may a current or former longterm smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, pursue an independent equitable cause of action for medical monitoring for such a disease? (2) If New York recognizes such an independent cause of action for medical monitoring, (a) what are the elements of that cause of action? and (b) what is the applicable statute of limitations, and when does that cause of action accrue?

Caronia, a putative class action, was commenced on January 19, 2006. The class plaintiffs are persons aged 50 years or older who currently smoke Marlboro cigarettes or ceased smoking them within one year prior to the commencement of the lawsuit, and smoked Marlboro cigarettes for at least 20-packed years. The complaint alleges that none of the plaintiffs are presently diagnosed with lung cancer nor under investigation under a physician for suspected lung cancer. Plaintiffs’ most recent amended complaint alleges that a newly established medical surveillance technique known as Low Dose CT scanning of the chest is a safe, efficacious and inexpensive technique which, for the first time, provides the means to identify and diagnose lung cancer at an early stage, when it is still curable.

In the trial court, the plaintiffs sought medical monitoring as a remedy for their tort claims of strict liability, negligence and breach of warranty but had not pled a free-standing claim for medical monitoring. It was not until plaintiffs filed their Fourth Amended Complaint that a stand-alone claim for medical monitoring was pled.

The Second Circuit affirmed the SDNY’s dismissal of plaintiffs’ traditional strict liability, negligence, and breach of warranty claims for redress of the smokers’ increased risk of developing lung cancer on the ground that these claims were time-barred. Thus, whether plaintiffs’ sole remaining claim for medical monitoring is a stand-alone claim or merely an element of consequential damages becomes critical to plaintiffs’ right of recovery. Because the statute of limitations bars plaintiffs’ pursuit of their traditional claims for negligence and strict products liability, any medical monitoring issue becomes moot if it is merely an element of consequential damages. If the underlying negligence and strict products liability claims are time-barred, then no consequential damages are recoverable.

 However, if New York recognizes an independent cause of action for medical monitoring, and, if, as recognized, that claim is viewed as accruing when an effective monitoring test becomes available, then, according to the Second Circuit, the statute of limitations likely will not have run on such an independent cause of action. Thus, the question certified to the New York Court of Appeals takes on critical importance.

 In Donovan v. Philip Morris USA, Inc., an almost identical case brought by the same plaintiff lawyers in the District of Massachusetts, the federal district court certified similar questions of law to the Supreme Judicial Court of Massachusetts. Notably, Sheila Birnbaum, now with Quinn Emanuel, and Gary Long of Shook Hardy & Bacon, argued on behalf of Philip Morris in both Massachusetts and New York.

In Donovan, the court held that plaintiffs who sued for medical monitoring, based on sub-clinical effects of exposure to cigarette smoke and increased risk of lung cancer, stated a cognizable claim under Massachusetts state law.

 The issue is whether the New York Court of Appeals will adopt the reasoning of Donovan, which sets a dangerous precedent, or take a more conservative approach. The obvious concern is that the “damages floodgates” may potentially open if the burden of medical monitoring plaintiffs is reduced to demonstrating a sub-cellular or physiological change rather than an injury or disease. Under such a loosened standard, particularly if an independent cause of action for medical monitoring is permitted to proceed, a sun tan, a skin blemish, a sneeze or elevated cholesterol could justify permitting a medical monitoring claim to proceed.

Perhaps we exaggerate, but why would not McDonald’s restaurants potentially be exposed to claims for diabetes medical monitoring claims brought by customers alleging they suffer  from  fast food-induced obesity?  Why would not Coppertone be subject to damages claims by customers with sunburns who allege they may be at risk for developing skin cancer due to the sun tan lotion’s  lack of efficacy in preventing sunburns?  In both situations, sub-cellular or physiological change could be demonstrated, particularly in the absence of a requirement to demonstrate phsical injury or disease.  A cynic might argue that a Donovan-style medical monitoring rule is designed only  to punish the tobacco industry rather than establish sound jurisprudence..

Although New York courts have held that medical monitoring may be an element of consequential damages, if certain requisites are met, Donovan can be distinguished from several Appellate Division medical monitoring cases in New York. For example, in Abusio v. Consolidated Edison Co., the Second Department upheld the trial court’s dismissal of cancerphobia claims on the grounds that plaintiffs had not presented sufficient evidence to prevail. However, in its decision, the Second Department cited cases which found that future medical monitoring costs could be sought for cancerphobia if a plaintiff could “establish both that he or she was in fact exposed to the disease-causing agent that there is a ‘rational basis’ for his or her fear of contracting the disease… this ‘rational basis’ has been construed to mean the clinically demonstrable presence of PCBs in the plaintiff’s body, or some indication of PCB-induced disease, i.e., some physical manifestation of PCB contamination… .”

A much-cited Fourth Department Appellate Division case, Askey v. Occidental Chemical Corp, examined claims of exposure to toxic discharges from a landfill and considered whether plaintiffs could recover for an anticipated need for medical monitoring. In particular, the court examined the then “novel issue” whether persons with an increased risk of disease could recover the costs of future medical monitoring in the absence of any apparent physical injury. In that case, the court concluded that recovery for medical monitoring was available as an element of consequential damage, but not as a stand-alone cause of action. But this article is not intended to be a survey of New York law on the subject.  The Second Circuit decision provides a cogent analysis of the important New York case law on medical monitoring and .I direct the reader to that discussion.

It is my view that any medical monitoring plaintiff should be required, at a minimum, to demonstrate injury or disease to recover medical monitoring damages and that no stand-alone claim for medical monitoring should be permitted. 

The Foley Hoag Product Liability Update is a good source of information concerning developments in product liability and related law for product manufacturers and sellers. Published quarterly, the Update is prepared under the aegis of David R. Geiger, the chair of Foley Hoag’s product liability and complex tort practice.

Although any of the six articles in the April 2013 Update are worthy of comment, the Update’s discussion of Comcast Corp. v. Behrend, 133 S. Ct. 1426, 2013 WL 1222646 (Mar. 27, 2013) is the most significant. Behrend was filed as a hope-to-be antitrust class action in the U.S. District Court of the Eastern District of Pennsylvania.

Among other Rule 23 requirements, plaintiffs were required to prove that the damages resulting from the alleged injury were measurable on a classwide basis through use of a common methodology. Although plaintiffs proposed four distinct theories as to how they had been injured by defendants’ anti-competitive conduct, the trial court held that only one theory of damages was capable of class-wide proof. Nevertheless, the court certified a class under that single theory.

On appeal to the Third Circuit, defendants argued certification was inappropriate because plaintiffs’ expert had acknowledged that his model measured damages resulting from all four of plaintiffs’ theories of harm, not just a single theory.

The Third Circuit affirmed class certification on the ground that defendant’s objections to the scope of the expert’s damages model were not appropriate at the class certification stage; such an inquiry would improperly require the trial court to reach the merits of plaintiffs’ claims. Any consideration of the objections to the scope of the expert’s damages assessment should await the merits phase of the case, according to the court.

After granting certiorari, the Supreme Court reversed, holding that the Third Circuit had erred in refusing to consider defendants’ arguments that plaintiffs’ damages model was insufficient to establish their alleged damages on a class-wide basis. The Court reaffirmed the legal principle that class certification requires the trial court to determine that the prerequisites of Rule 23 are satisfied, even if that analysis necessitates some degree of inquiry into the merits of plaintiffs’ claim.

Although damages calculations need not be exact at the class-certification stage, the Court held that any model supporting a plaintiff’s damages case must at least be consistent with its liability case, particularly with respect to the anti-competitive effect of the alleged violation at issue in the case. The trial court certified only one of plaintiffs’ four theories of harm, all of which theories plaintiffs’ experts had modeled for damages purposes. The Supreme Court held that a model that does not even attempt to measure the damages attributable to the lone surviving theory of damages is insufficient under Rule 23.

 The Behrend holding is significant for class action practitioners. As much as possible, class action plaintiffs want to reserve any discussion of the merits of their claim until after class certification. Behrend should now permit defendants to place merits issues before the court at an earlier stage in the litigation if they can argue that such an inquiry is necessary to establish that Rule 23 prerequisites have been satisfied.

Going forward, defense counsel should be able to argue that a plaintiff’s damages model should be able to withstand rigorous Daubert scrutiny prior to class certification. The certification of a class creates enormous pressure on defendants to settle regardless of the merits of the case. The practical result of the decision is that the bar for class certification has been raised and the playing field leveled. 
 

Law 360 reported on April 12, 2013 that Steven Donziger, counsel for the indigenous Ecuadorians known as the Lago Agrio plaintiffs, “meddled” in the preparation of a key environmental report used against Chevron as part of an effort to secure, by hook or by crook, the $19.2 billion judgment.

The environmental consultants at Stratus Consulting Inc. (“Stratus”) who prepared the report, Law 360 reported, found no credible scientific evidence linking Chevron’s operations in Ecuador to groundwater contamination, adverse health effects or an increase in the incidence of cancer. In fact, Stratus claims it was pressured by Donziger into making false public statements and concealing its role in drafting a purportedly “independent damages assessment.” The lead Stratus consultant stated, “I based my opinions and conclusions on a series of assumptions and data provided to me by Donziger and the [Ecuadorian plaintiffs’] representatives that I do not know to be true.”

In a press release, dated April 11, 2013, Stratus announced that Chevron had dismissed with prejudice the fraud and racketeering claims asserted against Stratus in the SDNY. According to the press release, Stratus’ environmental consulting work for Donziger was used in a report submitted to the Ecuadorian court by the supposedly “independent” court expert, Richard Cabrera, as part of a process that Stratus learned was “fatally tainted” by Donziger and the plaintiffs’ representatives “behind the scenes activities.”

 Most toxic tort cases do not have stakes anywhere near as high as Chevron’s Ecuador case. There is the danger in any high stakes litigation that an environmental consultant is pressured into offering baseless conclusions under pressure from plaintiffs’ counsel or, alternatively, that the consultant’s data is used improperly.

 There are steps that the diligent defense lawyer can take to reduce the likelihood of falling victim to expert witness fraud or abuse.

1. Obtain all the data. Well before the deposition of the plaintiffs’ expert, every piece of scientific data available should be obtained and reviewed. It may not be enough to rely upon reports submitted by the consultant to plaintiffs’ counsel or a regulatory agency. Often, the reports do not contain all the available information.

Where site investigation work is involved, it is good practice to obtain the consultant’s field notes so that defense counsel can investigate what on-site activities were performed on each day and by whom. If an issue in the case involves groundwater contamination, defense counsel should obtain the location, depth and construction details of each monitoring well, if detailed boring logs are not part of the report. The boring logs can provide important information concerning the observations of the staffers involved in the drilling, such as odors detected during drilling and soil composition.

2. Does the data permit the consultant to draw the conclusions made in his report? If there is a claim that groundwater contamination caused off-site impacts, for example, what assumptions were made in reaching this conclusion. Were on-site or off-site perimeter wells drilled? What does the data suggest about the presence of a groundwater plume? Was sufficient groundwater data obtained to permit reliable mapping of a plume? What assumptions does the consultant make concerning the size of the plume or the speed at which it is moving? Are these assumptions based on scientific evidence or guesswork?

Defense counsel should always be on the lookout for data that does not support the consultant’s conclusions. Does the consultant draw selectively upon certain pieces of data to support his thesis but ignore other data?

Often, an environmental consultant and a toxicologist are both retained to advance plaintiffs' theory of the case.  Does the plaintiffs’ toxicology expert misapply the information generated by the environmental consultant? If the toxicologist alleges that plaintiffs were injured due to an inhalatory exposure, for example, evidence of elevated groundwater levels is not relevant in the absence of evidence that contaminants in groundwater reached the ambient air where they could be inhaled.

Similarly, evidence of groundwater contamination in a monitoring well may not be indicative of the quality of the water at plaintiffs’ tap. There may be data gaps that plaintiffs' toxicologist will attempt to fill with mere speculation. Defense counsel must be prepared to exploit those gaps and reveal the fallacies in the expert's presentation.   

On April 10, 2013, I participated in “Justice Speaks,” an event sponsored by the Justice Action Center at New York Law School on hydraulic fracturing.

 Joining me on the podium was Daniel Raichel, a Project Attorney with the Natural Resources Defense Council (“NRDC”), and the lead attorney with the newly formed Community Fracking Defense Project. Pursuant to this initiative, NRDC provides legal assistance to towns and local governments in potential shale drilling zones upstate that seek to prohibit hydrofracking in their communities.

 My presentation concerning hydrofracking centered broadly around the following points:

1.  The technology under discussion, by which oil and gas is extracted from shale deposits, is a game-changer. Due to technological advances, the use of horizontal drilling and hydrofracking has had a transformative effect on oil and gas exploration;

2.  The discussion over hydrofracking is not merely an environmental debate. What is at stake has important economic and social implications, not just for the United States, but for the entire world. The extent to which this technology can make the United States energy independent has significant national security and foreign policy ramifications.

 3.  Among mainstream environmentalists, hydrofracking is no longer a “Yes/No” question. Both industry and the environmental community recognize a need for more comprehensive regulation and environmental oversight. This recognition has resulted in significant joint efforts to develop standards and best practices.

The players on both sides of the debate have come together to find common ground. For example, a partnership has emerged between energy firms involved in hydraulic fracturing, including Chevron and Royal Dutch Shell, and environmental groups that are often opposed to fossil fuel development, including the the Environmental Defense Fund, the Clean Air Task Force, and the Group Against Smog and Pollution.

These entities jointly established the Center for Sustainable Shale Development (“CSSD”), which will provide independent and voluntary evaluations and certifications of shale gas developers. CSSD will establish standards to limit flaring, maximize water recycling, and reduce the toxicity of injection fluids, among other initiatives.

There is recognition by both the environmental community and industry that industry made a number of missteps early on and did not do as good a job as it could have in bringing this new technology online. Part of the problem was that regulators in many states were overwhelmed by the increased industrial activity and did not have the manpower or the necessary regulations on the books to properly oversee the activity that was occurring. Another problem was that the horizontal drilling technology was developing so rapidly. However, as public scrutiny on horizontal drilling has increased and as the industry has become more mature with the passage of time, the likelihood of serious environmental problems occurring due to hydrofracking has significantly diminished.

Mr. Raichel argued convincingly that there remain many gaps in regulatory oversight of hydraulic fracturing, particularly in existing statutory schemes such as the Clean Water Act and the Clean Air Act. However, New York’s deliberate and painstaking approach to understanding the potential impacts of hydrofracking on human health and the environment will  hopefully result in a well-regulated program once permits are issued and gas exploration finally gets off the ground.

On March 27, 2013, a jury in federal district court in Bridgeport, Connecticut awarded Cara Munn, a 20-year-old  woman who formerly attended the Hotchkiss School  in Lakeville, Connecticut, $41,750,000 in a case styled Orson D. Munn III et al. v. The Hotchkiss School, No. 3:09cv0919 (SRU).  The case raises important issues concerning "duty" and "assumption of risk".

The jury determined that Hotchkiss, a prestigious prep school, was negligent for two reasons: (1) in failing to warn plaintiff before or during a school sponsored trip to China during the summer of 2007 about the risk of insect-borne illness on the trip; and (2) in failing to ensure that plaintiff used protective measures to prevent infection by an insect-borne disease while visiting Mt. Pan in China.

In an article appearing in the Connecticut Law Tribune (Vol. 39, No. 13), titled "Tick Bite Leads To Big Verdict",  it was reported that the school was faulted specifically  for not warning plaintiff (and her parents) that she would be traveling in mountainous and forested terrain. As a result, the jury determined that the plaintiff was not aware that she had to protect herself from insects by wearing bug repellent, long sleeve shirts and trousers, and by avoiding brushy undergrowth.

According to Plaintiffs' Amended Complaint, Ms. Munn's parents had Cara flown back to the United States in July '07, where she was hospitalized for several weeks at Weill Cornell Medical Center in the pediatric ICU and later at the Rusk Institute for extensive rehab.  As a result of her severe encephalitis, plaintiff suffered severe neurological and motor injuries, including permanent loss of speech. 

The case, which will almost certainly be appealed, raises significant issues concerning duty and the assumption of personal responsibility by parents who agree to have their child travel abroad for educational purposes. Apart from the obvious differences in food, culture and living conditions, traveling abroad carries many potential risks, some of which are foreseeable and some of which are not. Stepping back from the facts presented by this particularly tragic case, should a high school be held responsible for failing to prevent a student from being bitten by a tick in China? What if the tick had bitten her during a field trip to Central Park?

Assuming that the Second Circuit upholds this verdict, what does this case portend for high schools and colleges that plan educational trips abroad? Is there some bright line test that would provide guidance to a school evaluating the safety concerns of its students? Short of wrapping all of their students in cocoons and keeping them closely monitored in classroom settings, how can any school protect against the kind of unforeseen liability presented by this case?  

Hotchkiss' Answer to Plaintiffs' Amended Complaint states that plaintiffs' claims should be barred by the doctrine of assumption of risk.  The school argues that plaintiffs voluntarily assumed the risk of travel to China as evidenced by their execution of the pre-trip Agreement, Waiver, and Release of Liability.  In this agreement, plaintiffs agreed that Hotchkiss "would not be responsible for any injury to person or property caused by anything other than its sole negligence or willful misconduct" (emphasis added)   Would legal weight did the court give to this release? 

Based upon the Verdict Form presented to the jury, it would appear that the trial court gave short shrift to the language in the release.  The jury was asked the following questions: (1) Was one or more of Hotchkiss' negligent acts or omissions a cause-in-fact of Cara Munn's injuries; and (2) Was one or more of Hotchkiss' negligent acts or omissions a substantial factor, that acting alone or in conjunction with other factors, brought about Cara's injuries? 

Those inquiries are a lot different from asking whether the jury finds that Hotchkiss' "sole negligence or willful misconduct" caused the injuries.  Although the jury determined that plaintiff did not contribute to any degree whatsoever in causing her injuries, it was not asked to consider whether other intervening factors played any role in causing Cara's injuries.

There are circumstances when a school can and should be held responsible when things go wrong on a school outing.  Three examples come quickly to mind: (1) sending kids into a war zone despite State Department warnings; (2) sending kids abroad into an epidemic earlier identified by the CDC; or (3) taking non-swimmers for an ocean swim outing without proper supervision. 

How is Munn different from these scenarios?  Is a  random bug bite as foreseeable, if at all, as the kinds of risks discussed in the three scenarios above. According to Hotchkiss' summary judgment memorandum, the CDC reported that plaintiff was the first U.S. traveler ever to have reported TBE after traveling in China. Moreover, no U.S. traveler since plaintiff has developed the disease.  Therefore, how unreasonable was it for Hotchkiss not to take precautions against a risk of harm that arguably had such a slight likelihood of taking place?  Shouldn't plaintiffs have had to prove that the defendant was on prior notice of the existence of circumstances that could give rise to an injury? 

Plaintiffs' expert, Peter Tarlow once led a group of children, including his own son, on a  tour of Israel.  If a child on that Israel tour had been unexpectedly assaulted by someone holding anti-Zionist views, would Dr. Tarlow expect to be held responsible for any resultant injury because he was "on notice" of decades of endemic unrest in the region? 

Two strong CT trial lawyers squared off against each for this eight day trial--for the plaintiffs, Antonio Ponvert of Koskoff, Koskoff & Bieder, one of the New England plaintiff bar's preeminent  firms, and for the defendant, Penny Q. Seaman of Wiggin & Dana, one of Connecticut's oldest and most accomplished firms.  The bar should expect to see excellent post-trial briefing as events unfold.  

In a decision issued on March 7, 2013, the Supreme Court of Florida reaffirmed Florida’s commitment to adherence to the economic loss rule in product liability litigation. In Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc. etc., et al., No. SC10-1022, the high court provides a helpful discussion of the origin and development of the economic loss rule. In summary, the economic loss rule is described as “the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby encourages citizens to avoid causing physical harm to others.” Thus, economic loss has been defined by Florida courts as “damage for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits – without any claim of personal injury or damage to other property.” In other words, economic losses are “disappointed economic expectations,” which are protected by contract law, rather than tort law.

Despite the rule’s underpinnings in the product liability context, the economic loss rule has also been applied to circumstances when the parties are in contractual privity and one party seeks to recover damages in tort for damages arising in contract.

In a product liability context, the economic loss rule was developed to protect manufacturers from liability for economic damage caused by a defective product beyond those damages provided by warranty law.  In discussing the development of economic loss rule principles, the Florida Supreme Court analyzed the California Supreme Court’s holding in Seely v. White Motor Co., 403 P.2d 145 (Cal. 1965). In Seely, the California Supreme Court held that the doctrine of strict liability in tort did not supplant causes of action for breach of express warranty.

In that case, the court was confronted with a situation in which plaintiff sought recovery for economic loss resulting from his purchase of a truck that failed to perform according to expectations. The court concluded that the strict liability doctrine was not intended to undermine the warranty provisions of sales or contract law, but was designed to govern the wholly separate and distinct problem of physical injuries caused by defective products. In East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986), the U.S. Supreme Court adopted the reasoning of Seely when it considered the issue of economic loss resulting from defective products in the context of admiralty.

According to the Supreme Court, when the damage is to the product itself, “the injury suffered – the failure of the product to function properly – is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain.” Recognizing that the extending strict product liability law to cover economic damages would result in “contract law… drowning in a sea of tort,” the Supreme Court held that “the manufacturer in a commercial relationship has no duty either under a negligence or a strict products liability theory to prevent a product from injuring itself.” Thus, from the outset, the focus of the economic loss rule was directed to damages resulting from defects in the product itself.

In a  Client Alert, dated July 5, 2011, Stites & Harbison lawyers John L. Tate and Cassidy R. Rosenthal wrote about the Kentucky Supreme Court’s adoption of the economic loss rule in Giddings & Lewis, Inc. v. Industrial Risk Insurers (6/18/11). The Court unanimously held that “a manufacturer in a commercial relationship has no duty under a negligence or strict products liability theory to prevent a product from injuring itself.” The Court wrote: “We believe the parties’ allocation of risk by contract should control without disturbance by the courts via product liability theories.”

As discussed by Mr. Tate and Ms. Rosenthal, in Giddings & Lewis, the manufacturer sold a sophisticated machining center to an industrial concern. The parties set forth their mutual obligations in a detailed commercial contract. After seven years of continuous operation, and after the contract’s express warranty expired, the machining center malfunctioned in a spectacular fashion – throwing chunks of steel weighing thousands of pounds across the factory floor. The costs to repair the machining center and to get the business up and running again were almost $3 million. After reimbursing the machine’s owner for its losses, a consortium of insurance companies asserted a subrogation claim against the machining center’s manufacturer. With the warranty expired, the insurance companies sued in negligence, strict liability, negligent misrepresentation, and fraudulent misrepresentation. What could be more tortious conduct that this?  

Applying the economic loss doctrine, the Kentucky Supreme Court agreed with Mr. Tate holding that the purchaser could not recover from the manufacturer under any tort theory. The consortium was limited to contractual remedies, all of which expired years earlier.

Despite such groundbreaking decisions, is the economic loss rule  under-utilized in products liability and commercial litigation today?  Of course, if personal injury results from an alleged defect, the rule does not apply. However, not infrequently, complaints alleging damages arising from a defective product that purportedly caused economic loss sound in negligence or strict products liability. Are defense lawyers seeking dismissal of these tort claims on the basis of the economic loss rule as often as they should?.
 

As a general proposition, a defendant at trial suffers unfair prejudice when the court does not permit the jury to learn of certain facts that, if disclosed, would reveal a witness’s bias or self-interest.  If a witness with no apparent motive for lying gives strong testimony favoring one side at trial, that testimony may have a significant impact on the jury.  It is for this reason that all potential bias or self-interest of both fact and expert witnesses must be vigorously explored during pre-trial discovery.

In Polett v. Public Communications, Inc., No. 1865 EDA 2011, slip op. (Pa. Super. March 1, 2013), a verdict for a whopping for $27.6 million in the Court of Common Pleas of Philadelphia County, Civil Division, was reversed on multiple grounds. However, for purposes of this article, we focus on the finding by the Superior Court that it was error for the trial court not to permit the jury to learn that plaintiff’s treating physician, Dr. Richard Booth, an orthopedic surgeon, had been a named defendant earlier in the litigation and had entered into a tolling agreement with the plaintiffs. Under such a tolling agreement, a plaintiff can await the outcome at trial and decide afterward whether to pursue the party with whom she had entered into the tolling agreement.  Dr. Booth's best protection against being sued at a later date was to ensure that the plaintiffs made a substantial recovery at trial.  Is this self-interest?  You bet!

By way of background, in mid-2006, Zimmer, a medical device manufacturer, launched the Gender Solutions Knee, a knee replacement device designed specifically for women. Zimmer hired Public Communications, Inc. (“PCI”), a marketing firm, to produce a sales video, which would include interviews and footage of patients who had undergone successful knee replacement surgery using the device. Plaintiff Margo Polett underwent successful bilateral knee replacement surgery. On account of her good surgical outcome, her treating physician, Dr. Richard Booth, recommended Mrs. Polett to Zimmer as a candidate to participate in Zimmer’s sales video.

Plaintiffs allege that following the videotaping, which involved Mrs. Polett riding on a stationery exercise bike, her condition worsened and she underwent four further surgeries in failed attempts to repair the damage that plaintiffs alleged occurred during the filming of the promotional video.
Dr. Booth admitted in deposition that the “sword of litigation” hung suspended above his head. Substantial evidence was developed during discovery that when Dr. Booth first gave his causation testimony, which supported plaintiffs’ theory of the case, he had a strong incentive to place responsibility on the medical device manufacturer and the filming company and away from himself.

Due to his clear self-interest in presenting causation testimony favorable to plaintiffs, the  Superior Court determined that the defendants should have been permitted to demonstrate Dr. Booth’s partiality as a doctor who faced the possibility of litigation; who did not think he was at fault; who did not want to alienate his patient; and who squarely placed repsonsibility for Mrs. Polett’s injuries on the filming company and the device manufacturer.  

In so holding, the appellate court concluded that the probative value of the tolling agreement outweighed the danger of unfair prejudice. Although the use of a tolling agreement for impeachment purposes was a matter of first impression for Pennsylvania courts, other Pennsylvania courts had found that analogous agreements were admissible to show bias or prejudice.

Another type of agreement between a plaintiff and a defendant is referred to as a “Mary Carter agreement". These agreements are a means of effectuating a settlement with some but not all defendants in a multi-party lawsuit.  Like the tolling agreement in Pollet, evidence of a Mary Carter agreement's existence should be presented before the jury, but they are often shrouded in secrecy and never reach the light of day.

Mary Carter agreements usually incorporate the following basic elements although the terms vary from case to case:

1. the defendant in an multi-party lawsuit who enters into the agreement guarantees that the injured plaintiff  will receive a certain amount, even if the plaintiff fails to receive a judgment against that defendant or the amount of the judgment obtained is less than the guaranteed amount;

 2. the agreeing defendant’s liability, which is capped, can be reduced or even eliminated by increasing a co-defendant’s liability;

3. the agreement is kept secret from the jury absent court-ordered disclosure; and

4. the agreeing defendant remains in the lawsuit as a party.
 

For obvious reasons, Mary Carter agreements have been challenged as being unethical. Arguably, the agreement contravenes the canons of professional conduct concerning candor and fairness; conflicts of interest; unjustified litigation; and taking technical advantage of opposing counsel. Because Mary Carter agreements are collusive agreements between parties with supposedly adverse interests, they create an inherent danger of perjury.

Moreover, these agreements mislead the jury into thinking that the agreeing defendant has interests adverse to those of the plaintiff, when, in fact, the defendant may some times share in the proceeds of the plaintiff’s recovery. In my view, lawyers who enter into Mary Carter agreements are walking into an ethical minefield. In New York, these agreements are considered contrary to public policy and are not permitted..

But whether the agreement in question is a tolling agreement or Mary Carter agreement, the finder of fact should be fully apprised of any relevant information that might give rise to bias or interested testimony. It is discouraging that the Polett court seemingly failed to understand this basic premise of trial fairness.

On February 11, 2013, the IADC conducted a lively, interactive panel discussing the risks and benefits of shale oil and gas extraction at the IADC Mid-Winter Meeting. The panel represented the spectrum of political, regulatory and scientific views on the issue and debated perceived potential risks to human health and the environment.

In addition to me,  the panel consisted of Blaine D. Edwards, Assistant General Counsel at Superior Energy Services, Inc.; Raymond G. Mullady, Jr., a partner at Blank Rome LLP in Washington, D.C.; and Niall A. Paul and Nathan D. Atkinson, partners at Spilman Thomas & Battle PLLC. Eric Lasker at  Hollingsworth LLP in Washington, D.C. assisted in the preparation and coordination of the event.

Ray Mullady presented his paper, “Defending Marcellus Shale Groundwater Contamination Claims: The Case Against Class Actions and Other Theories of Liability,” which he co-authored with other lawyers at his firm. I presented my paper titled, “Shale Oil and Gas Development: The Stakeholder Perspective.”

My paper concerning stakeholder perspectives was presented against the backdrop of the debate in New York concerning whether to permit fracking to occur. In researching this issue, I learned that some stakeholders representing county and municipal interests expressed deep concern regarding perceived secondary societal impacts of fracking, including diminution of property value; increased demands placed on community infrastructure, particularly roads; increased crime rates and rental prices associated with an influx of out-of-state workers; and the fragmentation of rural landscapes with pipelines, roads and staging areas. Surprisingly, for these stakeholders, these concerns outweighed environmental or health concerns.

These stakeholders express deeply held fears – whether rational or not – that gas exploration will be detrimental to their established way of life in rural upstate New York.
The natural gas industry possesses both the science and the practical know-how to be confident that fracking can be performed without causing the contamination of groundwater and surface water. However, social concerns raise questions beyond purely environmental issues. In a largely rural region that is unaccustomed to the perceived sprawling industrial impact of natural gas drilling, unlike other parts of the country, there is apprehension that adverse societal effects may outweigh the predicted economic benefits.

There are a number of tools an industry can utilize to address concerns over infrastructure impacts of hydrofracking. Better public relations to win over the hearts and minds of upstate New Yorkers is paramount.  Perhaps because public relations efforts have not been necessary in other areas of the country long accustomed to natural gas exploration, there may not have been a perceived need for PR in upstate New York.  

Explaining how horizontal drilling works is an important first step in reassuring folks that gas exploration will not bring about an end to their semi-agrarian way of life.  For example, there is a superb animation that explains how horizontal drilling works on the website of the Oklahoma Oil & Natural Gas Producers & Royalty Owners.  In the immediate vicinity of drilling operations, companies can provide, among other things, Value Assurance Programs (“VAPs”) to homeowners to protect them against diminution of property value as a result of their living in an area where industrial activity is taking place. As discussed in other articles on this blog, a VAP is a contractual commitment to the community that assures homeowners that the proposed activity will not result in loss of investment in their homes.  

Any day now, the blue ribbon panel appointed by NYS Health Commissioner, Dr. Nirav Shah, to assist in the NYSDOH's consideration of the health risks of fracking, will issue its report.  The panel experts – Lynn Goldman, dean of George Washington University’s School of Public Health and Health Services; John Adgate, chair of the Environmental and Occupational Health Department at the Colorado School of Public Health; and Richard Jackson, chair of the Department of Environmental Health Sciences at UCLA’s Fielding School of Public Health – are among the foremost experts in the country in their respective fields and in the field of health impact assessment. Environmental advocacy groups, including NRDC, were extremely pleased with these appointments. It is likely that the issuance of the panel's report will re-energize the hydrofracking debate.

In an earlier article, we discussed the significance of Magistrate Judge Andrew J. Peck’s (SDNY) opinion in Da Silva Moore v. Publicis Groupe (2/24/12), a highly publicized decision that approved of the use of computer-assisted review in place of “eyes on” document review.

Eric Seggebruch, the Regional Manager for eDiscovery at Recommind, Inc., testified before Judge Peck as an expert witness during a  Da Silva Moore discovery hearing. Seggebruch has authored a helpful article titled “Electronic Discovery Utilizing Predictive Coding,” that provides both technical and practical insights concerning predictive coding and its likely future in the legal marketplace.  

At its heart, the ESI debate revolves around the discussion of the concept of proportionality. By way of example, Da Silva Moore is an employment discrimination case with a universe of some three million records subject to review for document production purposes. Proportionality asks the question whether the costs involved in identifying potentially relevant documents are justified by what is at issue in the underlying litigation.

Nearly one year after Judge Peck’s decision in Da Silva Moore, the attorneys in that case reportedly continue to submit extensive (and presumably costly) briefs on ESI discovery issues. It is for this reason that the title of this article asks whether e-discovery will swallow the judiciary. Leaving aside the staggering costs to parties in litigation, the judicial resources necessary to address these issues may not be up to the task considering the time and intensity with which these battles are fought.

In evaluating the efficacy of predictive coding, Seggebruch tells us that there are two critical terms of art – “recall” and “precision.” “Precision” asks how many documents one has to look at to find a relevant document. By way of example, if you review one hundred documents and find fifty relevant documents, you have achieved 50% precision. “Recall” may be the more important element of the two. If a search of one hundred documents brings back twenty-five relevant documents but twenty-five relevant documents are missed, then “recall” is only 50%. The rate of “recall” in any document production, whether predictive coding or “key word” searches are used, is critical to the integrity of the process.

With increased acceptance of predictive coding over time, it is likely that the “key word” paradigm, with which most lawyers and judges are familiar, will most likely change. According to Seggebruch, scientific studies have shown that “key word” document analyses are less efficacious than predictive coding. However, adversary counsel cannot complain about the level of “recall” obtained from the “key word” analysis performed if they had significant involvement in selecting the “key words” used in the search.

As an indication of how quickly the technology in this field is moving, in some cases, lawyers are now demanding ESI discovery “do overs.” These lawyers argue that when their adversary performed their initial ESI production early in the case, they were admittedly adhering to the then prevailing best technology. However, since that initial production, new ESI techniques, such as predictive coding, have become available to provide potentially  better results. To date, courts that have considered the “do over” petitions have either rejected them out of hand or required the requesting party to assume the costs.
 

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 scientific literature 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.

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.

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 be adversely 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.  

The publication of “Diet for a Small Planet” in 1971 by Francis Moore Lappé was a conscious-raising event for many Americans. The book makes the case that grain-fed meat production is wasteful and a contributor to global food scarcity. The author argues that eating a planet-centered diet means choosing what is best for the Earth and our bodies – a daily action that reminds us of our power to create a more rational world. The book’s most significant conclusion is that world hunger is not caused by a lack of food but by ineffective food policy. A vegetarian diet can  produce sufficient protein for one’s nutrition, according to the book.

Fast forward some forty years to today. The organic food movement has transformed the way many Americans think about food and has had a significant impact on food shopping. Organic food has become a multi-billion dollar industry with significant influence in education and public policy, and on law makers. We have certainly become more educated consumers by understanding how food products are manufactured and processed, which is an important part of the organic food industry's message. But as Business Week put it, the organic food industry is a "far cry from the old food co-ops, wheatgrass, tofu, and alfalfa sprouts options, organic food and the industry supporting it has grown up".

There is a certain romanticism about the organic farming, which leads some to ask why can’t we just go back to the way we farmed in the 19th century? From a societal standpoint, what are the pros and cons of organic food vs. “genetically modified” food? How can we differentiate between the myths about the food we eat and the facts? In an article in the Wall Street Journal on December 24, 2012, John R. Block, the former secretary of the Department of Agriculture (1981-1985) tackles this issue head on.

Food Safety  According to Mr. Block, there has never been a single instance in which genetically modified food has caused an illness or contributed to a contaminated product. Nevertheless, you can open a newspaper or a website on any given day and be barraged by scientific-sounding warnings that gene-altered substances can enter our bodies and wreak genetic havoc.  One such article is titled, "Is Genetically Modified Food Killing Us?" or another simply "Genetic Roulette".  

 In fact, America’s farmers and ranchers have built a sophisticated food-safety infrastructure to improve the health of their animals and deliver fresh, clean produce. There is no evidence that organic food is “better for you” from a safety perspective. As a result of the use of biotechnology in agriculture, genetically modified crops taste better, take less time to mature, provide increased nutrients, yields and stress tolerance, and have improved resistance to disease, pests, and herbicides.  According to the Human Genome Project, on the horizon are bananas that produce human vaccines against infectious diseases such as hepatitis B and cows that are resistant to Mad Cow Disease. 

Crops from biotech seeds are identical to those from non-biotech seeds. In addition, organic foods are identical in nutritional value to non-organic foods.   Numerous studies have shown no nutritional difference between commercially available GMO (short hand for "genetically modified organisms") and non-GMO foods.

Food Choices  Not that long ago, what Americans ate depended on the farmer’s skill, the weather and other unpredictable variables. Pre-industrial agricultural yields were low before the introduction of machines, fertilizers, plant and animal breeding, pesticides and genetic engineering. We are no longer limited to a small variety of local and seasonal food. Modern agriculture is simply more productive, providing more variety at lower prices. As romantic as it would be to only eat food grown on a farm where two horses pulled a two-row corn planter, it probably wouldn’t feed the world's population for all that long.

Environmental Stewardship  Today’s farmers use agricultural practices that improve the sustainability of the land and limits the use of herbicides, pesticides and fertilizers. The goal of the much of the research into genetically engineered crops is higher yield with less water and chemical use.

Sustainability  Most significantly, the large scale sophisticated farming of today is better equipped to sustain the world’s growing population.

According to Mr. Block, America’s farmers grow five times as much corn as they did in the 1930’s on 20% less land. To meet the goal of helping to feed a global population of what the United Nations estimates will be eight billion people in 2030, our farmers and ranchers will have to use the latest and most effective technologies to produce more with less.  

I support organic and conventional farming. I love shopping at Whole Foods. I shop at every Farmer's Market I come across.  Thanks to the organic farming movement, our collective consciousness about food  has been heightened.  However, a higher consciousness alone cannot meet the world’s food demands. The underlying assumptions are different than they were forty years ago, but the basic premise holds true today.  Effective food policy remains the key to feeding the planet. A strong first step in developing effective food policy is separating fact from fiction when it comes to biotechnology and American agriculture.
 

We have written previously about the increasing acceptance by courts to entertain the use of Lone Pine orders as a case management tool. For example, in 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 identify as being in the club at the time of the fire.

More recently, we discussed the use of a Lone Pine order by a Colorado state court in a hydrofracking toxic tort case. In that matter, the court dismissed the claims of plaintiffs who failed to submit sworn expert affidavits establishing a causal relationship between their illnesses and hydrofracking chemicals they claimed to have been exposed to.

Increasingly, Lone Pine orders are being employed as a case management tool in pharmaceutical mass tort cases. Most recently, Judge John F. Keenan, who presides over the Merck Fosamax Products Liability MDL in the SDNY, issued a sweeping Lone Pine order on November 20, 2012.

In its Opinion and Order, the court considered whether to apply the Lone Pine order to all of the plaintiffs’ cases or merely a sub-set. In evaluating this issue, the court observed that was at least some medical or scientific evidence that Fosamax could cause osteonecrosis of the jaw (known as “ONJ”). In light of this purported evidence, the court refused to apply the Lone Pine order to those plaintiffs alleging that they suffered from ONJ.

Why did Judge Keenan enter the Lone Pine order in 2012 when he had rejected earlier efforts by Merck to enter a Lone Pine order in 2010 and 2011? In short, he had become skeptical about the bona fides of plaintiffs’ claims and the candor of Plaintiff’s Steering Committee. “Plaintiffs’ habit of dismissing cases after both parties have expended time and money on case-specific discovery demonstrates that this MDL is ripe for a Lone Pine order.”

Based upon plaintiff’s pattern of behavior, the court said it had “reason to believe that spurious or meritless cases are lurking in the some 1,000 cases on the MDL docket.” The court noted that “more than 50% of the cases set for trial had been dismissed by plaintiffs as had some 31% of cases that had been selected for discovery.

Judge Keenan has been hearing cases in the SDNY since September 1983. Having presided over trials for thirty years, he has developed good instincts in determining when judicial resources are being squandered. Although he did not come right out and state as much, he had clearly become frustrated by Plaintiff’s Steering Committee wasting the court’s time and forcing Merck’s trial counsel to jump through unnecessary hoops. 

Apart from the litany of stringent (and precedential) Lone Pine requirements imposed upon the plaintiffs to whom the order applied, the decision is helpful because it cites with approval the decisions of multiple other courts overseeing complex pharmaceutical MDLs using Lone Pine orders to streamline their dockets. The cited cases include: In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1871 (E.D. Pa. Nov. 15, 2010); In re Zyprexa Prods. Liab. Litig., MDL No. 1596 (E.D.N.Y. June 2, 2010); In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., MDL No. 1699 (N.D. Cal. Aug. 1, 2008); In re Vioxx Prods. Liab. Litig., MDL No. 1657 (E.D. La. Nov. 9, 2007, July 6, 2009); In re Rezulin Prods. Liab. Litig., MDL No. 1348 (S.D.N.Y. May 9, 2005); In re Baycol Prods. Liab. Litig., MDL No. 1431 (D. Minn. Mar. 18, 2004).

In ruling on the Lone Pine application, the court rejected the Plaintiff's Steering Committee’s suggestion that the MDL had outlived its usefulness and that the court should adopt an “exit plan” and remand all of the cases for trial rather than entertain a Lone Pine order. The court also rejected Plaintiffs’ argument that a Lone Pine order should only be entertained after a global settlement was reached.

The court reasoned that the primary purpose of Lone Pine orders is to eliminate meritless cases, which is at best only tangentially related to the status of settlement negotiations. Whether the MDL culminates in a global or partial settlement, or the remand of cases back to their home districts, the court believed that a Lone Pine order would boost efficiency under either scenario. “In the event the parties reach a settlement, the elimination of spurious claims will ensure that only plaintiffs with meritorious cases are compensated. If the MDL concludes without settlement, and cases are transferred back to their home districts, Lone Pine will ensure that the home districts receive only viable cases.”