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NY Appeals Court Shifts Goal Posts For Environmental Class Actions

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The decision of the Appellate Division, Third Department, in Burdick v. Tonoga, Inc., decided November 21, 2019, affirms the trial court’s decision certifying four classes, including a medical monitoring class, arising from claims of property damage and personal injury allegedly resulting from PFOA exposure. The decision potentially expands significantly class action plaintiffs’ use of CPLR 901 and CPLR 902, New York’s rules governing class certification, in environmental tort actions. Although the members of the medical monitoring class do not claim to suffer presently from any demonstrated PFOA-related physical injury, the appellate court nonetheless determined that certification of a medical monitoring … Continue reading →

WATER: Is it a Public Trust Resource? Private Resource? Or Both?

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co-authored by Devon Bombassei What is the Public Trust Doctrine? Is it a concept that can be wielded like a sword to bring environmental miscreants to their knees in a courtroom? Or is it a shield to protect the citizenry against overzealous private interests that would seek to use this precious natural resource for profit and corporate gain? As the debate over the use of water intensifies, the water industry–comprised of regional, municipal and private companies–is unsure whether the formal adoption of the Public Trust Doctrine by states and municipal entities may undermine long accepted business models and place constraints … Continue reading →

Causation Science Really Does Matter In NY Toxic Tort Litigation

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In what may arguably be the most terse “landmark decision” to be published by the New York Court of Appeals (68 words/two sentences), New York’s highest court affirmed a trial court order setting aside an $11m jury verdict holding Ford Motor Company liable for a former auto mechanic’s mesothelioma, alleged to have been caused by 25 years of exposure to asbestos while servicing Ford vehicles.    The tweet-length decision in Juni v. A.O. Smith Water Products, was a re-affirmation by the New York Court of Appeals of its reasoning in two prior key decisions, Parker v. Mobil Oil, 7 NY3d 434 [2006] and Cornell v 360 W. 51st … Continue reading →

Why The Long Island Sound Watershed Requires Protection

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There is the Long Island Sound and then there is the Long Island Sound Watershed.  Before you can effectively protect Long Island Sound from environmental contamination, it is necessary to understand the Long Island Sound Watershed and its strategic role in maintaining the water quality in Long Island Sound. We are all familiar with Long Island Sound.  With some 600 miles of coastline, the Sound covers over 1,320 square miles.  The Sound is an estuary, a body of water where fresh water from rivers draining from the land mixes with salt water from the Atlantic Ocean.  The Sound’s coastline includes more than 60 bays, with beaches … Continue reading →

Defendants Enter Batter’s Box With Two Strikes Already Called

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Until April 3, 2018 when the New York Court of Appeals handed down Rodriguez v. City of New York, it was well-established law in personal injury litigation in New York that a plaintiff was not entitled to summary judgment if he could not make a prima facie showing he was free of comparative negligence. The sharply divided Rodriguez court, overturning precedent, held in a controversial 4-3 decision that requiring a plaintiff to make such a showing is inconsistent with Article 14-A of the CPLR, which codified the State’s comparative negligence principles. From now on, a plaintiff responsible for 99 percent of culpability may have an opportunity to prevail on a motion … Continue reading →

Sen. Chris Murphy Battles Headwinds To Protect Connecticut’s Environment

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Senator Chris Murphy  believes  that everything that one needs to know about environmental conservation is embodied in the rototiller rule, which he learned from his Senate colleague, Angus King of Maine.  In short, the rototiller rule is that if you borrow your neighbor’s rototiller, you should always give it back in as good of shape as you got it.  If you screw up the rototiller, it is your obligation to fix it.   According to Murphy, we have the planet on loan from future generations and we have the solemn responsibility to leave our descendants with the planet in as good shape as we found it. This should not be considered a partisan issue, … Continue reading →

Reference Manual On Scientific Evidence: A “Must-Have” In Defense Lawyer’s Toolbox

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The Reference Manual for Scientific Evidence (3rd Ed.) (“RMSE Third”), published by the Federal Judicial Center and the National Research Council of the National Academies,  is an indispensable tool that can support defense lawyers’ efforts  in making their Daubert  motions persuasive.  Contrary to the suggestion made in a recent article appearing in the DRI publication, The Voice (2/21/18), that RMSE Third is “an overlooked litigator’s tool”, it should be consulted not just when crafting Daubert arguments, but in preparing to take plaintiff’s expert’s deposition as well.  In summary, RMSE Third provides a roadmap for handling most, if not all, of the complex technical and scientific issues in your matters.  You overlook … Continue reading →

NY Court Of Appeals Rules That Facebook “Private” Postings Are Discoverable

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In a striking reversal of a decision of the Appellate Division, First Department, the New York Court of Appeals firmly rejected the notion that there is a heightened “factual predicate” standard for discovery of material posted by a plaintiff on social media in Kelly Forman v. Mark Henkin, 2018 WL 828101, 2018 N.Y. LEXIS 180(February 13, 2018).  In its ruling, the high court explained that: “While Facebook–and sites like it–offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.” Prior to this … Continue reading →

A Local Counsel’s Duties and Responsibilities

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Are there potential pitfalls in accepting a role as a “mailbox”, or a local counsel whose role is to merely facilitate  an out-of-state lawyer’s working on a pro hac vice basis in your  jurisdiction?   Upon being retained, most lawyers asked to serve as local counsel will advise national counsel that they will do as much or as little as national counsel requires.  Are there instances, however, when doing too little is not doing enough?   Local counsel’s duties and responsibilities are governed by (1) first and foremost,  referring out-of-state counsel’s requirements (2) local counsel’s obligation to the court and (3) the Model Rules of Professional Conduct.  In most circumstances, local counsel has no difficulty navigating among … Continue reading →

Bring That Lawsuit….What Have You Got To Lose?

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In its January 2018 Legal Bulletin, USI Affinity, which markets Lawyers Professional Liability Insurance to members of the New York State Bar Association, discusses the sharp increase in settlements of cases alleging Traumatic Brain Injury (“TBI”) and Spinal Fusion Surgery due, in large part, to the perceived high liability exposure presented by these types of claims and the difficulties inherent in defending them. The Challenge of Defending Against a TBI Claim In an article prepared by Andrew R. Jones and Nir Gadon of Furman Kornfield & Brennan LLP for the Legal Bulletin, the authors discuss how notoriously difficult it can be to defend a TBI claim because the … Continue reading →