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

Ed Lowenberg, the Coordinator of the Toxic Torts Group in the Litigation Department at ExxonMobil, is retiring after 32 with the company on November 30, 2010.  He will be greatly missed by members of the toxic tort bar--by both the defendant and plaintiff lawyers with whom he has worked over his long career  To many of us, Ed Lowenberg personified Exxon.  Over the years, he was responsible for some of the most high profile toxic tort litigations in the United States.  Like the consummate fighter that he was, Ed always looked to land a decisive  knockout blow on an adversary. At the same time, however , Ed handled all of his matters with professional integrity, creativity and good humor.  He will be greatly missed by the toxic tort bar. 

After receiving a B.A. in Political Science from the City College of New York in 1967 and a J.D. from the University of Texas in 1970, Ed worked at HEW, as a Trial Counsel for Justice, and as Special Counsel for the SEC. He also served as Special Assistant United States Attorney in Houston, New Orleans and in other venues. However, he found his true calling working in-house at Exxon, which he joined in 1978, defending the the company's toxic tort litigation.

Ed was an early advocate of joint defense groups in mass tort litigation.  In cases in which plaintiffs would sue 20 chemical manufacturers, each manufacturer would routinely retain its own legal team to defend the case.  In a joint defense, the defendants agree to waive conflicts and to retain a single law firm to represent the entire defense group.  When joint defense groups were initially proposed, there was a tremendous backlash within both the in-house bar and among outside law firms, who feared the  loss of significant clients to the "joint defense counsel"  and bemoaned the the loss of revenue from defending the case.  However, Ed and other pioneering in-house lawyers recognized that the industry could more properly defend baseless toxic tort cases once a joint defense group comprised of in-house lawyers could was able to instruct defense counsel how best to defend a case.  With multiple law firms appearing for multiple defendants, the temptation for some companies to settle for "nuisance value" to avoid high defense costs was often irresistible.  In a joint defense, in which each of the twenty law firms pays only a fraction of the cost of defense, nuisance value is greatly diminished and plaintiff lawyers often lose their enthusiasm about their claims.  The joint defense was just one of many innovations Ed brought to toxic tort defense.

On January 28, 2010, the Louisiana Court of Appeal, Fourth Circuit, affirmed the New Orleans  trial court’s denial of class certification in a series of putative class actions involving alleged exposure to Normally Occurring Radioactive Material (“NORM”) on industrial property located in , Louisiana, which had been used for oilfield pipe and equipment cleaning operations for over forty years. Although class certification was rejected on multiple grounds, the decision relied in large part upon the Louisiana Supreme Court’s landmark decision in Ford v. Murphy Oil USA, Inc., 703 S.2d 542, which involved alleged exposures from hazardous materials from several distinct sources. As in Ford, the class action failed because the Harvey plaintiffs alleged toxic exposures as a result of pipe cleaning activity on the non-contiguous property of three separate and distinct landowners – Rathborne, Grefer and ITCO – over a forty-six year period, with varying amounts of pipe cleaning taking place at different times in different locations (in almost checkerboard pattern) by different companies. Ford stands for the proposition that only mass torts arising from a single common cause or disaster are appropriate for class certification.

How did pipe cleaning cause the alleged NORM exposure? Pipe cleaning involves the mechanical reaming of the inside of oilfield pipe to remove scale or crust that builds up on the interior of the tubing to the point where the scale impedes the flow of oil up the pipe. The scale, formed from natural elements, gradually clogs the pipes that are inserted deep into the ground during the course of petroleum production. At some point, it was determined that the scale inside the pipe contained material determined to be radioactive, with varying half-lives (time for half of the atoms of a radioactive substance to decay), which is called “NORM” or “TERM,” an acronym referring to Technologically Enhanced Radioactive Material. When precisely the oil industry knew or should have known that pipe cleaning could result in occupational exposure to NORM is hotly disputed. The plaintiffs allege that over the decades this pipe cleaning occurred in Harvey, “toxic dust” (NORM/TERM) was deposited in their neighborhoods and was the source of various diseases and illnesses.

What I find interesting about the Fourth Circuit’s opinion is its rejection of the trial court’s determination that the plaintiffs failed to satisfy the numerosity requirement of the Louisiana Class Action Statute, which was a primary basis for the trial court’s denial of class certification. The trial court  found that there was not sufficient numerosity because so many potential class members had already opted out, citing other lawsuits in which 3,748 individuals, a large percentage of the putative class, were involved. These so-called opt-outs were represented by several outspoken plaintiff lawyers, who did not want to see a class certified. The Fourth Circuit ruled that it was premature to opt out of a class before it was certified. A plaintiff could not opt out of a class that did not yet exist. Therefore, the Fourth Circuit found that the numerosity requirement had been met. However,  the Fourth Circuit held that sufficient commonality for class certification was not present. In addition, the Fourth Circuit held that the broad diversity of the diseases and ailments of the plaintiffs underscored the inadequacy of the class representatives representation, leading the court to conclude that there was no typicality. The Harvey TERM plaintiffs complained of diseases ranging from common cold symptoms to reproductive problems and many different forms of cancer.  The plaintiffs' strategy at both the trial court and appellate level was to argue that the court should not be required to conduct a rigorous analysis of whether the facts satisfied the class action requirements.  Plaintiffs argued that the trial court confused a motion to certify a class with a trial on the merits, essentially asserting that it had made too many "factual findings".  However, the Fourth Circuit soundly rejected this argument, citing the Louisiana Supreme Court's decision inBrooks v. Union Pacific Railroad Co., 2008-2035, *6, 2009 WL 1425972 (La. 05/22/09), which recognized the "essentially factual basis of the certification inquiry and of the district court's inherent power to manage and control pending litigation."  Brooks, 08-2035 at p. 11, 13 So 3d at 554