Major U.S. Government Report Acknowledges That People Cause Climate Change

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On November 3, 2017, the United States issued an exhaustive scientific report, titled the “Climate Science Special Report”, which acknowledges that human activity is a major cause of the temperature rise that has occurred over the past century.  The climate science report is part of a Congressionally mandated review that occurs every four years known as the National Climate Assessment.  The National Climate Assessment represents the findings and analyses of hundreds of experts and scientists from federal agencies, national laboratories, universities, and the private sector. The final work product was peer reviewed by the National Academy of Sciences. The National Oceanic and … Continue reading →

Defending Ecosystem Damage Claims: A Primer

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Claims alleging natural resource or ecological damage are on the rise, but the standards governing the performance of ecological risk assessments are  not nearly as developed as the standards used for evaluating human health risks.  Consequently, the legal defenses to natural resource or ecological damage claims are not as well-developed as the defenses to claims of risk to human health.   Fortunately for the environmental defense bar, Carol M. Wood, a partner at King & Spalding; Judi L. Durda, a vice-president and toxicologist/ecologist at Integral Consulting; and Stephen Rahaim, chief environmental counsel at E.I. duPont de Nemours and Company, have written an excellent primer for navigating through … Continue reading →

Climate Change, Ecosystem Damage Claims and the Radicalization of the Court System

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The use of the court system to address what is at its root  a political and social problem is not only misguided, but dangerous. I have discussed in prior articles the danger implicit in using public nuisance law to effect political change. California plaintiffs in the current climate change litigation are effectively blaming a handful of large industrial concerns for the evolution of our present-day civilization when the blame, if blame is even the appropriate term, should be collectively shared by countless other “responsible” parties.  At a time when USEPA is scrubbing from its website any and all references to climate change or global … Continue reading →

Connecticut Asbestos Court Gives Short Shrift To Daimler AG v. Bauman

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In a decision, dated September 7, 2017, in Rice v. American Talc Co., No. FBT CV-15-6053658-S (9/7/17), the Hon. Barbara N. Bellis of the Connecticut Superior Court of Fairfield at Bridgeport, who presides over the asbestos docket, ruled that the U.S. Supreme Court’s decision in Daimler AG v. Bauman did not preclude Connecticut from exercising specific jurisdiction over Milwhite, Inc., a Texas-based talc mining company.  To better understand the court’s ruling, the undisputed facts are set forth briefly here: Ernest Rice, Jr, plaintiff’s decedent, worked at American Standard’s plumbing fixtures plant in Connecticut from 1962-1968 and alleges exposure to asbestos-containing talc (and … Continue reading →

Methodology “Mishmash” Dooms Plaintiff Experts in Talcum Powder Mesothelioma Case

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In a decision, dated September 25, 2017, a Philadelphia state trial court excluded the opinions of plaintiff’s experts, Mr. Sean Fitzgerald and Dr. Ronald Gordon, on the ground that they did not use generally accepted methodology in forming their scientific opinions.  The case, Sally Brandt v. The Bon-Ton Stores, Inc. et. al. (Court of Commons Pleas of Philadelphia County, First Judicial District of Pennsylvania, September 25, 2017), was being carefully watched because it was alleged that J&J’s cashmere bouquet talcum powder caused, not ovarian cancer–the disease entity at issue in the J&J talcum powder cases pending in St. Louis and elsewhere–but mesothelioma, which affects the … Continue reading →

Using Public Nuisance Law To Effect A Political Outcome

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The classic definition of public nuisance is “an unreasonable interference with right common to the general public” Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536, 539 (3d Cir.2001).  However, the utilization of public nuisance  theories in non-traditional product liability and environmental litigation, if given sustenance by the courts, threatens to generate multi-billion dollar exposure for corporate defendants. Remarkably, in many public nuisance cases, the defendant’s conduct  was proper and the product lawfully marketed and sold. It is partly for this reason that public nuisance has been described by various legal scholars and commentators as a “wilderness of law”, “an impenetrable … Continue reading →

The Challenge of Evaluating Plaintiff Exposure in “Eggshell Skull” Injury Cases

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All defense counsel have at one time or another experienced the exhilaration that comes from discovering, as a result of a deep dive into a claimant’s prior medical records,  that (1) the serious personal injuries alleged by the plaintiff are in fact the result of an aggravation of a serious pre-existing disease or injury and (2) but for the pre-existing disease or injury the present disability and/or impairment claimed would not have resulted.  You advise the client of the gravity of the pre-existing disease or injury.   In response, the client asks defense counsel whether the disclosure of the pre-existing condition warrants downgrading the … Continue reading →

Life Of An MDL Case Post-Remand

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What must defense counsel do to prepare for trial after a MDL court remands a case to the transferor court?  How are issues not resolved in the Multidistrict Litigation preserved for trial following remand. Not a great deal has been written about the strategic trial issues that may arise post-remand.  This may be because most cases transferred under 28 U.S.C. 1407 are resolved in the MDL and there is often little need to transfer back many cases at the completion of MDL proceedings.  Indeed, the Judicial Panel on Multidistrict Litigation reported that, as of September 2013, only slightly more than six … Continue reading →

Judicial Roadblocks Truncate CERCLA “Arranger” Liability

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Ever since the Supreme Court issued its landmark 2008 decision in Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 129 S. Ct. 1870, 173 L. Ed. 2d 812 (2009), significantly limiting the application of CERCLA “arranger” liability, federal courts have been re-examining the application of “arranger liability” with renewed purpose.  The upshot is that it is much harder for a plaintiff to prevail on an “arranger” theory of liability today than it was  ten years ago.  The recent Tenth Circuit decision in Chevron Mining Inc. v. United States,  No. 15-2209, 2017 U.S. App. LEXIS 12959 (10th Cir. July 19, … Continue reading →

Growing Acceptance of Value Assurance Plans to Address Diminution of Property Value Claims

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Some 25 years ago, I published an article in the Journal of Trial Advocacy that discussed the benefits of  implementing Value Assurance Plans (“VAPs”) as a strategy for dealing with community anxiety over the impact of environmental contamination on property values.  The article praised the creative approaches implemented by two well-known U.S. companies–Eastman Kodak Company (“Kodak”) and E.I. du Pont de Nemours  Company (“Du Pont”).  Kodak developed a VAP for neighborhoods in and around its Rochester, New York headquarters in 1988 following the discovery of contaminated groundwater in bedrock under its property fence line. Du Pont rolled out a VAP in Pompton Lakes, New Jersey in 1989 … Continue reading →