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

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. 

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. 

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. 

In a provocative thought piece appearing in the Wall Street Journal on March 9, 2009, L. Gordon Crovitz predicts that the United States Supreme Court decision in Wyeth v. Levine will usher in an era of increased prices for drug and create a disincentive for new product innovation. Mr. Crovitz compares the American legal culture behind the Court's decision to the Luddites that smashed mechanized looms in England at the beginning of the Industrial Age in 19th century England.  He also suggests that the decision's logic may lead product manufacturers to "carry 50 different warnings, one for each state, updated by local juries from time to time."  Despite his misgivings about the decision, it is not likely that any product manufacturers, drug makers or otherwise, are likely to start tailoring their warning on a state by state basis.  As a practical matter, products are sold nationally, often through distributors, and it would be virtually impossible to  ensure that product warnings for Texas purchasers ended up in Texas and that product warnings intended for California purchasers ended up in California.  Moreover, from a jury standpoint, nothing would please a plaintiff's lawyer more than to be able to argue that the manufacturer provided a less strict warning for the product in the jurisdiction where his client's accident occurred.