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 →