Court Holds Spicy Meatball, Not Pesticide, Caused Plaintiff's Illness
In an Opinion and Order, dated May 31, 2013, the Hon. Sandra J. Feuerstein granted summary judgment to a defendant pesticide manufacturer after determining that plaintiff''s expert failed to meet the reliability requirements of Rule 702 and Daubert, in Mallozzi v. EcoSMART Technologies, Inc., E.D.N.Y., no. 11-cv-02884, 5/31/13.
Defending toxic tort claims against pesticide manufacturers is always challenging because pesticides, by their very nature, are designed to cause injury and death to pests. Plaintiff’s counsel is only too willing to permit the jury to infer that a pesticide product that can be harmful to bugs can also be injurious to humans. Therefore, if a defendant pesticide manufacturer can subject plaintiff’s expert to Daubert scrutiny prior to trial, it may be possible to dispose of scientifically suspect cases before they reach trial.
In Mallozzi, plaintiff claimed that he developed severe gastroesophageal reflux disease (“GERD”) and laryngopharyngeal reflux (“LPR”) as a result of an inhalatory exposure to EcoSmart Organic Home Pest Control, which contains 1% peppermint oil.
However, it was not until plaintiff returned from dinner at an Italian restaurant the night of the alleged pesticide exposure that he experienced nausea, a racing heartbeat and burning in his stomach and chest. Plaintiff obtained the expert opinion of Dr. Barry S. Levy, an occupational and environmental health physician and epidemiologist, that his exposure to peppermint oil caused his LPR by relaxing his lower esophageal sphincter.
In its motion for summary judgment, the defendant argued that Dr. Levy’s testimony was unreliable and did not meet the Daubert standard primarily because Dr. Levy was unable to establish the
amount of peppermint oil inhaled.
The articles that Dr. Levy relied upon discussed ingestion of peppermint oil rather than inhalation, which was the case here. Moreover, none of the articles relied upon by Dr. Levy addressed whether inhalation of a substance containing 1% peppermint oil, over the course of a matter of minutes, could relax the lower esophageal sphincter or cause LPR.
In part, defendant's motion was successful because defendant’s counsel laid the groundwork for the motion by obtaining helpful testimony from plaintiff's expert in deposition. During Dr. Levy’s deposition, defendant's counsel elicited testimony that none of the scientific articles relied upon by Dr. Levy involved inhalation of peppermint oil.
In addition to establishing a strong record in deposition, defendant’s counsel was also able to
raise issues concerning the cause of plaintiff’s illness by obtaining a detailed medical history of plaintiff. The court rejected Dr. Levy’s reliance on the temporal proximity between plaintiff’s exposure to the product and the onset of plaintiff’s symptoms. In particular, the court observed that plaintiff began experiencing reflux hours after having a heavy meal of “spaghetti with seafood.”
Indeed, plaintiff had been hospitalized in 2001 for esophageal reflux after eating a donut and drinking coffee. On another occasion, he had experienced reflux prior to April 2010 when he had apparently overindulged on linguini with clam sauce. This prior medical history no doubt predisposed the court to believing plaintiff's causation claim was suspect. The court found that Dr. Levy had “failed to justify his conclusion that reflux specifically caused by inhalation of the product caused plaintiff’s LPR and not reflux caused by plaintiff’s persistent GERD, both before and after April 19, 2010.”
It is the dream of many landowners in the United States to one day have both oil wells and wind turbines on their land. For this happen, however, landowners must play an active role in keeping oil and wind companies from trying to overreach each other in concurrent development of the land.
raised concerns among mineral rights owners because of the large swaths of land needed for wind development. Today’s turbines, like those produced by
not own the minerals underneath their own property. Although the mineral lessee may interfere with a landowner’s ranching or farming operation, many courts view it as unreasonable to allow the mineral estate owner to give way to grazing animals and not be allowed to develop the underlying minerals, i.e., by not drilling wells, building roads, powerlines, flowlines and tank batteries.
Wind power can help address the nation’s compelling demand for electric power without increasing greenhouse gas emissions or enlarging our carbon footprint. Environmental activists, who are critical of the use of fossil fuels due to their perceived negative impact on the environment, are generally supportive of developing wind power as an alternative energy source. Wind is renewable, sustainable and non-polluting.
power, should be to mediate siting disputes rather than oppose development. From the environmentalist’s perspective, the more available wind power to generate electricity the better.
In 
There is a constructive role for environmental activists to play in the wind power siting discussions, but single-minded opposition to the expanded use of wind power as an energy source is misplaced. These so-called “environmentalists” would better serve their stakeholders by engaging in constructive discussion rather than running to the courthouse. 
In determining that Dow was entitled to the statutory presumption, the court held that Dursban TC’s compliance with both FIFRA and Indiana law had a significant impact under IPLA’s consumer expectation-based product liability regime because the risk of harm had been evaluated by agencies with the duty of monitoring the effects of Dursban TC. Furthermore, Dursban TC’s labeling and warnings had been approved by experts.
On April 10, 2013, I participated in “.png)
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.
The publication of “
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
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.
More recently, we discussed the use of a
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.
In product liability litigation, a single tactical advantage may determine whether the case is won or lost. Often, being able to anticipate an issue before it arises and addressing it in the Case Management Order may be critical. This is particularly the case in pharmaceutical mass tort litigation.
The Second Circuit yesterday rendered its much-anticipated decision in
Given the importance of the case, it is likely that rehearing en banc will be sought and, perhaps, a petition filed by the government with the Supreme Court. However, it also may be the government’s strategy to follow a policy of non-acquiescence and litigate the point in other circuits, hoping to create a split. In any event, this is a case that pharmaceutical and medical device companies need to watch closely.
In an article titled, “
Opponents of fracking argue that it is necessary for the public, and health and safety professionals, to have full access to information on the constituents of hydraulic fracturing fluids and waste. In a report released on July 26, 2012 titled, “
The Texas Supreme Court rendered judgment in favor of .png)
What is the duty of a real estate developer to disclose to prospective residential purchasers information about the neighborhood that may adversely impact property values? Apparently none if the developer is not in privity with the homeowners, according to the Eleventh Circuit.
On April 18, 2012,
Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.
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DEC Commissioner Joe Martens told a panel of state lawmakers on February 7, 2012, that it was “conceivable” that a handful of hydraulic fracturing permits could be issued in 2012 but that a final decision is “months, not years away.” Martens cautioned that the number of permits that could be issued in 2012 would be “extremely limited” in part due to the “considerable work that remains before we finalize our regulatory framework.”
Guest Blogger
Guest Blogger ANDREA J. LAWRENCE is a Senior Counsel at Epstein Becker & Green in New York. She provides legal advice and counsel to clients in the real estate industry. Andrea has extensive commercial litigation experience, and has provided legal representation to real estate companies, landlords, developers, property management companies, and commercial tenants She recently published an article about bed bug litigation in the
In the case of
A recent Michigan Court of Appeals decision,
although they could still be of concern to a property owner, tenant or lender.
Sunovion Pharmaceuticals obtained
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At a recent .jpg)
on Cancer ("IARC"), which is part of the World Health Organization ("WHO"), has classified low-level radiation from cell phones as "possibly carcinogenic to humans" based on limited evidence linking cell phone use to glioma, a type of brain cancer. Although Consumer Reports concluded in its article that IARC's action was based on "limited evidence" and doesn't "convincingly" link typical cell phone use with cancer, an American public that often skims only headlines of articles, may be susceptible to appeals of sympathy by plaintiff lawyers representing long-time cell phone users with brain cancers. Throughout the 1980's the utility industry battled spurious claims, premised upon junk science, that electromagnetic field radiation was responsible for "cancer clusters" of child leukemias and other dreaded diseases. Although virtually every major EMF toxic tort claim was successfully defended by industry over a period of years, tens of millions of dollars was spent defending these lawsuits, which were brought in courts all across the country. As in the case of low dose radiation from cell phone use, there were millions of millions of potential plaintiffs in the EMF cases and all of the prospective utility industry defendants had deep pockets. Following issuance of the IARC release, a spokeswoman for the Federal Communications Commission ("FCC") stated that FCC currently requires that all cell phones meet safety standards based upon the advice of federal health and safety agencies. Moreover, according to the National Cancer Institute's Surveillance Epidemiology and End Results Program ("SEER"), the incidence of brain cancer in the United States has actually declined over recent years as cell phone use has skyrocketed. Despite these reassuring pronouncements, well-heeled plaintiff lawyers may bring some cases as trial balloons to test industry resolve based upon other equally ambiguous pronouncements, such as the contention that cell phone use can affect "brain function". As in the cases brought against chemical manufacturers in the 1980's, which alleged that chemicals cause generic "immune system dysfunction", enterprising plaintiffs may attribute any number of injuries to purported "brain function" impacts. Hopefully, courts will continue to exercise their gatekeeper roles to maintain some semblance of scientific rigor in the courtroom to exclude inconclusive science if these cases are brought. 
the Interstate Environmental Commission, a tri-state water and air quality enforcement authority, where she conducted and managed litigation to control and abate water pollution and ensure adequate water and sewer infrastructure. She teaches environmental law at the Syracuse University College of Law.
According to recent reports in the
natural gas and oil drilling buried in the DEC’s hazardous spills database. However, it was reported on January 11, 1010 that
Environmental groups and proponents of economic development and natural gas exploration are on a collision course of competing economic and environmental interests involving an enormous untapped reservoir of natural gas in the
In a first-of-its-kind litigation, the
in the product liability defense bar, has authored a thoughtful piece titled,
According to
In his recent article, "
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.
Whether electricity supplied to a homeowner by the local electric utility is viewed as a "product" or a "service" may have significant ramifications in litigation. If providing electricity constitutes a "product", injured plaintiffs can seek recovery under a theory of strict liability. If it is not a product, the plaintiff would have to demonstrate the electric utility failed to use reasonable care. In a recent Connecticut case, Travelers Indemnity Company of America v. Connecticut Light & Power Co, Hartford J.D. at Harford (Docket No. CV-07-5012441-S ) 2008 WL 2447351 (Conn. Super.), the trial court held that once electricity entered the homeowner's residence, it constituted a "product" rather than a "service" and that plaintiff could proceed under the Connecticut Product Liability Act ("CPLA"). In the case, a fire allegedly caused by voltage fluctuations broke out in the home of Travelers' insureds, Linda and Michael Murphy, resulting in property damage. Apparently, the Murphy's had complained to CL&P earlier about the voltage fluctuations and had been assured that the problem had been addressed. After paying the claim,