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

To  make expert depositions more efficient, the U.S. Judicial Conference Advisory Committee on Civil Rules has proposed that lawyers no longer be permitted to interrogate opposing experts about their communications with the lawyers who retained them.  Under the proposed rule changes, draft reports will be subject to work product exemption and will not be discoverable.  As Jeffrey Greenbaum, a partner at Sills Cummis & Gross, P.C. in Newark and an officer of the ABA Section of Litigation, which recommended that the rule be changed, advised Law360, "There is interplay between attorneys and experts in terms of strategy that takes place."  Therefore, prohibiting discovery about "who said what to whom" will allow depositions to focus on the expert's analysis of the case.  At the end of the day, jurors care about issues of bias, but could not care less about who said what to whom.  Some trial lawyers are concerned that the new rule will give license to "hired guns" who do the bidding of the lawyer who retained them.  However, the view shared by most is that interrogating an expert about his conversations with counsel and prior report drafts is a big waste of time.  Nevertheless, some lawyers value the opportunity to fully inquire of an expert witness his or her connection to counsel and are concerned the new rule will chip away at that inquiry. 

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Larry Schnapf recently started a blog on CommonGround concerning developments in environmental law.  Larry has been a thoughtful commentator on developments in this field for over 20 years. I look for Larry to continue providing wise counsel on thorny environmental issues.  We recently discussed the potential reach of the Supreme Court's decision in Burlington Northern, which evaluated what is necessary to establish "arranger" liability under CERCLA.  In my view, the discussion of "arranger" liability is relevant only to CERCLA 107(a)(3) claims; it has no bearing on a PRP's liability under CERCLA 107(a)(2).  In other words, a product manufacturer cannot escape CERCLA liability for contamination to the manufacturer's former property by arguing that the relelases did not constitute "intentional steps" to dispose of a hazardous substance.  The PRP's conduct in causing a release under (a)(1) or (a)(2)--whether intentional or merely negligent--is entirely irrelevant--always has been, always will be.  In contrast, in cases involving the sale of a product to a customer's location, intent will now figure into any (a)(3) analysis.  Has the Supreme Court carved out what is basically a "product exception" to CERCLA liability? 

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At last night's Spring Gala for the New York League of Conservation Voters ("NYLCV"), former New York Governor George Pataki and Mayor Michael Bloomberg received well-deserved standing ovations from both environmental activists and business leaders for their truly heroic accomplishments on the tough environmental issues New York faces.  It is rare that I come home completely inspired and renewed after listening to speeches, but that is precisely how Mr. Pataki and Mr. Bloomberg made me feel.  Based upon his exemplary record as New York's governor, Mr. Pataki should give consideration to running for the U.S. Senate seat left vacant when Senator Clinton became Secretary of State.  Senator Kirsten Gillibrand is terrific (she delivered last night's keynote address), but she would be challenged to match Mr. Pataki's charisma and his record.  The prospect of having the strongest environmental governor in New York's history representing the State in the Senate, particularly on the Republican side of the aisle, would be potentially transformative were Mr. Pataki to bring to Washington the passion for the causes he championed in  Albany.  Paul Elston, NYLCV's Founding Board Chair, was right when he said last night that George Pataki forced environmentalists to change how they dealt with politicians.  Previously, environmentalists prodded the politicians to adopt pro-environmental policies.  After Mr. Pataki became governor, environmentalist had to run just to keep up with Mr. Pataki's broad-based initiatives, according to Mr. Elston.  Mr. Pataki's legacy resides in every sip of water New Yorkers drink (because of his historic efforts to protect the upstate watershed as a pristine source of our water) and in every breath of air public school children inhale (due to Clean Air/Clean Water Bond Act funds used to replace out-dated and dangerous coal-burning furnaces in the City's schools. 

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Governor Corzine signed Executive Order No. 140 on May 7, 2009, which will almost certainly shake up the regulatory scene in the Garden State.  Under the new bill, some 19,000 properties, encompassing everything from residential USTs to large industrial facilities, may now be supervised by contractors who are licensed by a new state board.  New Jersey's new program is modeled after a similar program in Massachusetts, which has increased its cleanup efficiency since it began privatizing cleanups some years ago. Under the MA program, Licensed Site Professionals ("LSPs") are selected and regulated by the Board of Registration of Hazardous Waste Site Cleanup Professionals. Demands for an overhaul of the remediation program in New Jersey began in 2006 after mercury contamination was found at a child care center in Gloucester County.  (So much for the bright idea of housing a day care facility, Kiddie Kollege, in the former thermometer manufacturing plant!).  At the time, NJDEP officials cited staff cuts that hampered the ability of the agency to oversee cleanups and an increase in the average case load of NJDEP project managers.  Of course, not everyone is thrilled about the new law.  Jeff Tittel, director of the New Jersey Sierra Club, believes the law will leave a "polluted legacy" throughout the state and "toxic time bombs" to be discovered by future generations.  But the real issue is how tough the new licensing board is likely to be in setting up the criteria for its LRSP's and what disincentives will be put in place to discourage LRSP's from cutting corners.  The New Jersey Sierra Club's Press Release cautions that this law may have a transformative effect on how the government protects the public's health.  Certainly, no one can reasonably dispute that the new legislation will be create an employment mini-boom among environmental consultants in New Jersey.  More importantly, the law should result in a re-focusing on polluted sites that have not been given adequate regulatory attention in the past.  Based upon the Massachusetts experience, the new law has the potential to be extremely beneficial for the environment and public health in New Jersey. 

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John C. Stivarius, a trial lawyer, at Elarbee, Thompson, Sapp & Wilson LLP in Atlanta, is defending a chemical exposure toxic tort case in which plaintiff presents a case for toxic chemical exposure with a twist. Plaintiff's decedent worked for some thirty years at the defendant's facility as a maintenance worker. During the last five years of his life, he was allegedly exposed to a variety of chemical products, including industrial cleaners. One of these cleaners was involved in the chrome plating process. John's issue is this. None of the Industrial Hygiene reports issued for the 5 years prior to his death show any exposure levels above the PEL or TLV for any of the chemicals alleged in the suit. Plaintiff 's expert contends, however, that the decedent was genetically pre-disposed to pulmonary fibrosis and that any level of exposure to these chemicals could have triggered the disease, notwithstanding the low exposure. In this scenario, do the safety standards have no meaning? Can and should an MSDS be drafted to provide a warning to a genetically fragile pre-disposed population, assuming such a population exists? As a matter of law, assuming someone can be predisposed to developing pulmonary fibrosis, does this render the chemical in question unreasonably dangerous?  Should plaintiffs be required to undergo genetic testing to demonstrate their genetic susceptibility?  Readers are encouraged to provide John any leads to relevant case law on this issue and thoughts concerning the Daubert arguments that may be raised.

Professor Gary E. Marchant, a Professor of Law at Arizona State University Law School and a Professor of Genetics at ASU, has written a superb article that addresses many of John's questions titled, "Genetic Data In Toxic Tort Litigation", Journal of Law and Policy (4/6/06).  Professor Marchant discusses those cases in which plaintiffs have advanced claims of genetic susceptibility to try to circumvent causation barriers to recovery.  He also discusses the "idiosyncratic response" defense that may be invoked by defendants in strict product liability cases to defend against failure to warn claims.  In the conclusion to his article, Professor Marchant  considers how genomic data has the potential to transform toxic tort doctrine and practice.  I commend this article and Professor Marchant's other work to all toxic tort practitioners.

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According to Senator Herb Kohl, the intention of the "Sunshine in Litigation Act of 2009" (S. 537) is to require federal judges to perform a " simple balancing test" to ensure that in any proposed secrecy order, the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety.  Citing court-approved confidential settlement agreements in product liability cases entered into by drug and tire manufacturers, Senator Kohl argues that federal judges must be required to consider public health and safety when deciding whether to allow a secrecy order.   Although this proposal may have a populist appeal, the  American Bar Association believes that the proposed law would make discovery more burdensome, more expensive, and more time-consuming, and would threaten important privacy interests.  The Act would change Federal Rule of Civil Procedure 26(c) by limiting a court's ability to enter an order in a civil case: (1) restricting disclosure of information obtained through discovery; (2) approving a settlement agreement restricting the disclosure of such information; or (3) restricting access to court records in civil cases. Before entering a secrecy order, a court would first have to perform the balancing test discussed by Senator Kohl or reach a determination that the order would not restrict the disclosure of information relevant to the protection of public health or safety.  I concur with the ABA that the Sunshine Act is a bad idea; its adoption would not serve the public interest.

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States reported last year that empirical studies demonstrate that there is no evidence that protective orders create a significant problem of concealing information about public hazards.  The Judicial Conference Advisory Committee on Civil Rules strongly opposes the measure as unnecessary legislation that will burden the courts and have significant adverse consequences for civil litigation.  Moreover, the ABA already has adopted policy that encourages courts to permit disclosure of information relevant to potential hazards.  Typically, in cases involving a sealed settlement agreement, there is sufficient information available to the public providing details of a potential public health or safety hazard. As product liability litigators are well aware, protective orders serve to facilitate the timely production of documents. Requiring that a court hearing be conducted before such an order is entered into in every civil case would consume precious judicial resources and further delay litigants' day in court.

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If you litigate in federal courts and have not yet reviewed the Sedona Conference Cooperation Proclamation, wake up!  The final exam is about to start and you have slept through your alarm!  Although not as revolutionary as Thomas Paine's Common Sense, the Cooperation Proclamation is premised upon the heretical (to some) proposition that "Cooperation In Discovery is Consistent with Zealous Advocacy" and makes a sharp distinction between advocacy (good!) and adversarial conduct (self-defeating when it comes to e-discovery).  Significantly, a number of federal judges have "signed on" to the Cooperation Proclamation and their published discovery decisions provide the wise practitioner with a road map for navigating through the shark-infested waters of  e-discovery.  On March 19, 2009, SDNY Magistrate Judge Andrew J. Peck issued what he characterized as a "wake-up call to the Bar in this District about the need for careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or "keywords" to be used to produce emails or other electronically stored information ("ESI")." William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company, 07 Civ. 10639 (LAK) (AJP).  In his well-crafted decision, Magistrate Peck derides lawyers, who design "keyword searches in the dark, by the seat of the pants" without even bothering to consult with their clients beforehand.  The danger for practitioners in not "getting it right" the first time is running the risk that the Court may issue an e-discovery order that is more costly and burdensome to your client than might have otherwise been the case.  Some very good articles have been written by practitioners concerning how to anticipate meeting the concerns of a Cooperation Proclamation jurist during your initial client meetings in preparation for the Rule 26(f)(3) ESI meet and confer.  One such article is "The Collaborative Model of E-Discovery" written by J. Mark Coulson at Miles and Stockbridge PC in Baltimore in Product Liability Law 360 on March 11, 2009 (Law 360 requires a subscription)  Mr. Coulson provides  practical advice such as being aware before offering to search your client's hard drive for documents that each gigabyte on a hard drive may contain 30,000 to 50,000 documents.  The "take-away" from most of the good  e-discovery articles is for the practitioner to be proactive and to address ESI issues with both the client and opposing counsel early in the meet and confer process.  Strong client advocacy in the ESI realm requires not hiding the ball about relevant witnesses, e-mail system and retention schedules. 

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My hometown newspaper Greenwich Time, reported in a front page headline on March 25, 2009 "Mold found again at Ham Ave."  The Hamilton Avenue Elementary School in Greenwich was closed in 2005 largely due to the perception that mold made the school unsafe for students and faculty.  For the past three years, the youngsters attended classes in temporary modular classrooms, which ironically also suffered from mold problems, while awaiting completion of the oft-delayed reconstruction of the school, the Greenwich Time reported.   It was discovered last week at the newly re-opened school that a 2-to-3-square-foot patch of mold was discovered due to a leaky interior pipe that hadn't been properly sealed during construction. It is not surprising that the school's industrial hygienist, Hygenix, found "exceptionally low" levels of mold after sampling. What is surprising is that the decision was made to perform sampling at all considering that the source of the water infiltration was addressed and the mold removed.  Sampling is often not necessary and sampling results are frequently misinterpreted to suggest a health hazard where none exists.  In its guidance for "Mold Remediation in Schools and Contaminated Buildings", the USEPA cautions that there a number of pitfalls associated with mold sampling which at best only provides a "snapshot" of conditions as they exist at a given time.  To suggest, as the school's consultant did, however, that any "residual microbial hazards" had been eliminated is an unfortunate choice of words because it is probably the case that no hazard ever existed in the first place.  Ron Gots, a toxicologist based in Rockville, Maryland, who has written extensively about public misinformation about mold describes how medical statements by mold testers may result in unintended consequences in the event of a claim.  For example, the statement in a hygienist's report that "This mold is known to produce toxins which can cause a variety of adverse health effects including......"  is not only irrelevant, but begs the question whether:(1) the mold is producing toxins in this instance?; (2) those toxins are getting to people?; and (3)  they are getting to people in sufficient quantity to cause harm?  As Dr. Gots points out, the issue is not what molds can do; the question is what they are likely or proven to do under these particular circumstances in this setting.  To avoid further fear and confusion about mold (and unnecessary costs) at the Hamilton Avenue school,  a more scientifically objective approach should be considered by the Town. 

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In his  recent article, "Made in China: Consumer Product Lawsuits Imported to the United States", Seattle defense lawyer and IADC member Gregory Shelton offers American importers several good suggestions for avoiding potential liability from imported products.  These include: (1) requiring the exporter to comply with all applicable U.S. product quality standards and product safety regulations; (2) obtaining legal counsel in the exporter's home jurisdiction; (3) requiring the exporter to obtain appropriate insurance coverage from an American or international insurer that will protect the importer in the event of a recall or lawsuit; and (4) retaining good legal counsel early.  I would add to Greg's checklist: (5) having an independent U.S. consultant available to test, if necessary, the components of imported products, particularly if an American consumer reports a complaint to the company or to the CPSC.  Early independent product evaluation can be critical for an importer in planning its next steps, such as whether to perform a recall or halt future shipments until an issue can be addressed.  There are many good consultant firms to chose from. One excellent consultant up-to-speed on the new CPSC requirements is Exponent.

However, we disagree with Mr. Shelton when he argues that Chinese imports are more likely to result in lawsuits or recalls than imports from other countries.  There is simply no empirical evidence to support this assertion.  To the contrary, China has made enormous progress, particularly over the last year, to police its domestic suppliers.  To blame China for the spate of recalls over the last couple of years is to ignore the past lack of adequate funding for the CPSC, the agency that provides regulatory oversight of consumer products.  Moreover, blaming China results in Americans turning a blind eye to problems in our domestic product supply chain. 

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