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

Two electrifying Circuit Court of Appeals cases handed down in 2009 may set the stage for climate change litigation in the years to come. The decisions are Connecticut v. American Electric Power Co., et al., 582 F.3d 309 (2d Cir. 2009) and Comer v. Murphy Oil USA, et al., 585 F.3d 855 (5^th Cir. 2009). In both cases, the Court of Appeals reversed the decision of the federal district court and held that the plaintiffs had pleaded adequate facts to permit their cases to proceed. Therefore, unless the United States Supreme Court weighs in and reverses this growing momentum in climate change litigation, it is likely that federal trial courts will be grappling with all of the issues surrounding climate change liability, not least of which will be the science. Did defendant oil and coal producers, chemical companies and coal-using companies bring down the wrath of Hurricane Katrina on the Mississippi plaintiffs? What scientific evidence will be marshaled by plaintiffs to support their allegations? These are the questions that the Comer court will have to grapple with. The very idea that a corporate entity could be found legally responsible for unleashing the catastrophic power of a hurricane would have been unthinkable even ten years ago. Leaving aside epochal issues of public policy, justiciability and theology, the science surrounding climate change litigation will figure prominently in these lawsuits. 

An excellent article on scientific issues in climate change litigation, Issues of Proof in Climate Change Litigation, by Francis J. Menton, a partner at Willkie Farr & Gallagher, appeared in The New York Law Journal (12/29/09).  Mr. Menton’s discourse, commencing with the issuance in 2001 of the Third Assessment Report (“TAR”) from the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and bringing us up-to-date, reads like a Dan Brown conspiracy thriller, replete with conflicting claims and allegations of scientific fraud, data distortion, revelations by whistle blowers, and spoliation of evidence. On the one hand, the climate change plaintiffs allege that there exists a “clear scientific consensus that global warming has begun and that most of the current global warming is caused by emissions of greenhouse gases, primarily carbon dioxide from fossil fuel combustion.” On the other hand, there are those who deny that there is any consensus and that the entire hypothesis of human-caused or “anthropogenic” global warming is an “urban myth.” Undoubtedly, there will be Daubert–driven debates on both general and specific causation in the global warming litigation. 

Over the years, I have become an enormous fan of Michael Hoenig, a partner at Herzfeld & Rubin, who writes the Products Liability column in The New York Law Journal. More than any other product liability commentator, Mr. Hoenig has served as a muse and inspiration. His columns are thoughtful and well-written. 

Mr. Hoenig’s column titled, “When Attorneys Ghostwrite Experts’ Reports,” published December 14, 2009, is a case in point. Shortly after the column appeared, I prepared a motion for filing in the EDNY to disqualify an adversary’s expert after he confessed in deposition to not preparing his own expert report. In his article,  Mr. Hoenig poses the following questions: How much attorney involvement in the drafting of experts’ reports is permissible? Must the entire work product be that of the expert? Or, at the other extreme, would it be acceptable for an attorney to draft the entire expert’s report with the expert “adopting” it? And, if at least some lawyer input is tolerable, then what is the boundary line between permission and perdition? Federal Rule of Civil Procedure 26(a)(2)(B) calls for disclosure of experts retained or specially employed to provide expert testimony and which “must be accompanied by a written report prepared and signed by the witness.” Mr. Hoenig discusses the federal district court case law discussing the circumstances under which an expert’s failure to prepare his own report might lead to his being barred from testifying at trial. In evaluating the individual facts presented to determine Rule 26 compliance, courts will most likely base their decisions not on who actually penned the report but, rather, whose opinions and analysis the report contains. One federal district court has held that “substantial participation” by the expert in the preparation of the report is required. Even if your motion to disqualify the expert altogether does not succeed, if you can demonstrate to the trial court that much of the expert’s report was ghostwritten by your adversary, the court may be more kindly disposed to your Daubert arguments. After all, if the expert cannot be bothered to write his own report, how painstaking can his methodology be?

The United States Supreme Court yesterday held, in Mohawk Industries, Inc. v. Carpenter, No. 08-678, that a party may not immediately appeal court discovery orders that require the disclosure of documents and information covered by the attorney-client privilege.  This holding resolves a split in the circuits and will change the law in at least the DC and Ninth Circuits. The unanimous Court rejected the argument that attorney-client privilege disclosure rulings are different from other kinds of orders because once the privilege is lost, it cannot ever be restored. The Court (in Justice Sotomayor's first opinion) noted that the ultimate remedy lies in reversal and a new trial at which the materials at issue would not be disclosed. Justice Sotomayor stated:

"The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege."

This is not a particularly revolutionary decision. After all, the Court has, for several terms, been narrowing interlocutory appellate rights as, at the same time, also requiring specific pleading (see, e.g.,Ashcroft v. Iqbal) in an effort to reduce expensive litigation proceedings. Moreover, at oral argument in the case, the primary issue came down to whether the attorney-client privilege was sufficiently important to warrant interlocutory appeal when balanced against the policy interests of the finality rule. Why, the justices asked, should the attorney-client privilege be given greater deference than trade secrets, for example?  My D.C. partner Stuart M. Gerson notes that for practitioners, both litigators and others who may be involved in investigations later subject to litigation, the significance of this holding is that heightened attention should be given to how privileged information is recorded to minimize the impact if that information is later disclosed. As a safeguard against disclosure, Stuart adds, experienced litigators and investigators tend to write cryptically and briefly, if at all, when they take notes. If one is inclined to take the formal statement of a witness to lock him or her into a particular rendition of fact, it should be done with the expectation that the statement very well may ultimately be disclosed, even if the statement is made in the context of an Upjohn investigation. Of course none of this changes the prevailing rule that attorney-client privilege can only be overcome upon a showing of critical necessity. However, courts dislike privilege and frequently misapply the law.  So, be careful out there.

The Mass Tort Defense Blog reported recently that the North Carolina federal district court overseeing the MDL concerning panacryl sutures declined last week to certify a proposed national class action in In re Panacryl Sutures Products Liability Cases, 2009 WL 3874347 (E.D.N.C. 11/13/09).  The decision is a significant one for pharmaceutical and medical device MDL practitioners because the court's reasoning in denying class certification is broadly applicable to other medical device products. It is increasingly rare for plaintiffs to obtain class certification in medical device litigation and this case is no exception. Panacryl Sutures are synthetic, braided, absorbable surgical sutures, designed to remain in a patient's body for 24-36 months after surgery to provide wound support. Various plaintiffs alleged that Panacryl Sutures were defective in that they allegedly caused a high rate of foreign body reactions when used as directed. Plaintiffs further alleged that the defendants failed to provide adequate warning of the dangers associated with the devices. Plaintiffs eventually filed a motion to certify a National Class Action. The Panacryl sutures were the subject of a  2006 recall by FDA.

In his blog post, Dechert's Sean P Wajert, discusses the various rationale underlying the court's decision not to certify a national class. In evaluating the requirements under Rule 23(a) and Rule 23(b), the court considered the impact that the laws of the various states where plaintiffs reside would have on the proposed class.  Considering Rule 23(a)(3)'s "typicality" requirement, the court found that the plaintiffs had not considered the varying substantive laws governing every class member.  Considering to Rule 23(b), the court found that in class actions governed by the laws of several states, variations in state law often overwhelmed common issues.  The court held that the plaintiffs would have to demonstrate by "extensive analysis" that the laws of interested jurisdictions did not pose "insuperable obstacles" to class certification.  As Mr. Wajert points out, courts have generally found that common questions of fact do not predominate in medical device products cases. In the Panacryl Sutures litigation, the sutures were used in a variety of surgical procedures, which required different techniques and skill sets on the part of the surgeon and presented different risks of post-operative complications.  Thus, it is not likely that any class would have been certified due to a lack of predominance of common issues, let alone a national class. For a further discussion of the policy and legal considerations that warrant denial of class actions in pharmaceutical and medical device litigation, take a look at the enthusiastic discussion of the decision in the Drug and Device Law Blog authored by Jim Beck and Dechert and Mark Herrmann at Jones Day.