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July 2018

 

Update on the Respirable Crystalline Silica General Industry and Maritime Standard


On March 25, 2016, the Occupational Safety and Health Administration (“OSHA”) published a final rule that increased the protections in place for employees exposed to silica in the workplace and imposed new obligations on employers.  The final rule created two separate standards addressing occupational exposure to silica – one for general industry and maritime and another for the construction industry. Most of the provisions of the standard for general industry and maritime became enforceable on June 23, 2018.  


The new standard establishes a permissible exposure limit (“PEL”) of 50 µg/m3 as an eight-hour time-weighted average and an action level of 25 µg/m3.  Once the action level is triggered, the employer must comply with the PEL and the ancillary requirements under the standard.  For example, employers subject to the general industry and maritime standard must perform an exposure assessment using either a performance option or scheduled monitoring option.  


On June 7, 2018, OSHA published a memorandum addressed to regional administrators regarding the enforcement launch for the general industry and maritime standard.  In the memorandum, OSHA states that, “[d]uring the first 30 days of enforcement, OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements.”  However, if upon inspection, it appears that the employer is not making any efforts to comply with the new standard, OSHA compliance officers will conduct air monitoring and consider citations for non-compliance.  The full memorandum can be found on OSHA’s website, at: https://www.osha.gov/laws-regs/standardinterpretations/2018-06-07. OSHA published a similar memorandum regarding the launch of enforcement of the standard for the construction industry, which became enforceable on September 23, 2017 (after a delay in enforcement from the original June 23, 2017 deadline).  (See https://www.osha.gov/laws-regs/standardinterpretations/2017-09-20).


On December 22, 2017, the United States Court of Appeals for the D.C. Circuit entered a decision regarding the Petitions for Review of the final rule that were filed by both industry and union petitioners.  The D.C. Circuit concluded that OSHA failed to adequately explain its decision to omit medical removal protections from the final rule. See North America’s Building Trades Unions v. OSHA, et al., No. 16-1105 (D.C. Cir. 2017).  The case was remanded back to OSHA for further consideration of this issue.


For a detailed summary of the new silica standards for general industry and maritime and the construction industry, please see our previous blog post titled “How Will OSHA’s Crystalline Silica Rule Affect Construction and General Industry Employers?” posted in the Toxic Tort and Environmental Law Section on January 19, 2017.   



Melissa S. Brown
is an associate at HeplerBroom LLC who assists in representing clients in all aspects of environmental law.

 


 

May 2018

Submitted by: Michael P. Murphy

 

Illinois Attorney General to Challenge USEPA Clean Air Act

“Attainment” Determination for Area in Southeast Wisconsin

 

On May 4, 2018, Democratic Illinois Attorney General Lisa Madigan issued a press release announcing that she intends to challenge a determination by the U.S. Environmental Protection Agency (USEPA) “that will allow Foxconn, an electronics manufacturing company slated for massive construction in Southeastern Wisconsin’s Racine County, to avoid installing stringent emission controls.”  Foxconn plans to build a $10 billion facility in Racine County, Wisconsin, which borders Lake Michigan between Chicago and Milwaukee. 

 

The USEPA determination relates to its designation of areas as “attainment” or “non-attainment” under the Clean Air Act.  “Attainment” areas meet national air quality standards and therefore businesses in those areas have less stringent air pollution control requirements.  “Non-attainment” areas do not meet the national air quality standards and businesses in those areas must meet stricter requirements for controlling smog and air pollution. 

 

Madigan contends that “despite indisputable pollution monitoring data showing Racine County exceeds” air quality standards, and thus should have been labeled a “non-attainment” area, USEPA nonetheless ruled that it is an “attainment” area.  While USEPA’s determination is good news for Foxconn, Madigan criticized the decision, stating that she will file suit because “[d]espite its name, the Environmental Protection Agency now operates with total disregard for the quality of our air and water, and in this case, the U.S. EPA is putting a company’s profit ahead of our natural resources and the public’s health.”  

 

Republican leaders in Wisconsin, on the other hand, agree with the “attainment” designation.  According to an article in Racine-based newspaper, The Journal Times, a spokesperson for Governor Scott Walker noted that Wisconsin had reduced emissions of certain air pollutants by 50 percent since 2002.  Further, according to Walker’s office, pollutants in Wisconsin are primarily coming from Chicago, Illinois, and Gary, Indiana.  Wisconsin, therefore, “should not be penalized for issues [it] is not causing,” and the “State of Wisconsin will push back.” 

 

Wisconsin Attorney General Brad Schimel responded, according to the same newspaper article, by opining that Illinois’ potential lawsuit “is as meritless as it is ironic.”  He criticized Illinois, “the largest contributor of ozone pollution to Racine,” for threatening “to sue to stop Wisconsin from growing our economy” in that area.  Schimel suggested Illinois should address its own pollution issues and its “inability to attract job creators, rather than needlessly attacking Wisconsin for its success.”      

 

Madigan’s lawsuit would need to be filed in the United States Court of Appeals for the D.C. Circuit within 60 days of the final USEPA determination being published in the Federal Register.  If filed, the suit will set up an interesting debate, with Illinois essentially claiming that USEPA Administrator Scott Pruitt made the “attainment” designation of Racine County for political purposes, as opposed to relying on scientific data, to support President Trump’s pro-business agenda.  Wisconsin may counter that even if the data shows that Racine County exceeds the national air quality standards, then it is because air pollution is migrating from Illinois and Indiana to Wisconsin.  Other states, as well as environmental groups, may join Illinois in challenging USEPA’s decision.       

 

The Madigan press release can be found here: 

 

http://www.illinoisattorneygeneral.gov/pressroom/2018_05/20180504c.html

 

The article from The Journal Times can be found here:

 

http://journaltimes.com/news/local/wisconsin-will-push-back-walker-administration-responds-to-threat-of/article_6b39f812-7965-51ab-b1a6-ba4da8ea98cc.html

 


 

April 2018

Submitted by: Rachel T. Reynolds, Bullivant Houser Bailey PC, Seattle, WA

 

 A Causation Theory By Any Other Name…Would Smell Just As Scientifically Unreliable

 

            A federal court in Seattle recently issued an order soundly rejecting the “each and every exposure” causation theory in an asbestos case, and further rejecting a plaintiff’s attempts to characterize the “cumulative exposure” theory as scientifically different that the “every exposure” theory.  In other words, the Court held that regardless of what one calls it, both the “every exposure” and “cumulative exposure” theory are scientifically unreliable under FRE 702 and Daubert

 

In Barabin v. Scapa Dryer Fabrics, Inc. (Case No. C07-1454JLR, W.D. Wa., Feb. 12, 2018), the learned Judge James l. Robart (yes, THAT Judge Robart, who achieved notoriety when President Trump called him a “so-called/judge,”) considered defendant Scapa’s motion to exclude expert causation testimony.  Scapa argued that the plaintiff’s four causation experts improperly based their opinions on the unreliable “every exposure” theory.  According to the Court, “the ‘every exposure’ theory posits that ‘any exposure to asbestos fibers whatsoever, regardless of amount of fibers or length of exposure constitutes an underlying cause of injury.”  In accord with courts across the country, Judge Robart rejected the “every exposure” theory, holding that the theory allow “unbounded liability” by essentially nullifying the substantial-factor test.  In short, the Court found that the “every exposure” theory allows the imposition of liability for any exposure to an asbestos-containing product, “no matter how fleeting the exposure.”

 

In response to the wave of courts who have similarly rejected the “every exposure” theory, plaintiffs’ experts have tried to recharacterize the theory as one of “cumulative exposure.”  “The ‘cumulative exposure’ theory posits that every exposure, no matter how small, becomes a substantial factor whenever the total cumulative dose results in mesothelioma, because every exposure is necessarily part of the total dose.”  The Court held the “cumulative exposure” theory therefore suffers from the same reliability challenges as the “every exposure” theory in that it is not based upon sufficient facts and data and devolves into untestable speculation.  The Court thus rejected both theories under FRE 702 and Daubert

 

The Court then excluded the causation testimony of Drs. Allan Smith and Richard Cohen because their testimony improperly relied upon the “every exposure” and “cumulative exposure” theories. 

 

Distilled, the Barabin decision makes clear that renaming the “every exposure” theory does not make the theory scientifically reliable.  Call it what you want, but the Courts require more from proffered causation experts and those that seek to rely upon conjectural theories of causation are susceptible to defense challenges before trial.

 


 

March 2018

Submitted by: Kelley Barnett, Frantz Ward, LLP, Cleveland 

 

(Click here to download a .pdf of this section update)

 

On February 8, 2018, in Schwartz v. Honeywell International, Inc., Slip Opinion No. 2018-Ohio-474, the Ohio Supreme Court rejected the cumulative exposure theory of causation in asbestos cases, concluding that evidence of a plaintiff’s cumulative exposure to a variety of asbestos-containing products is insufficient under Ohio law to establish that exposure to asbestos from one defendant’s product was a substantial factor in causing a plaintiff’s asbestos-related disease. The full opinion can be accessed here.

 

In Schwartz, decedent Kathleen Schwartz died from peritoneal mesothelioma in 2012. The case proceeded to trial with Honeywell, successor-in-interest to Bendix, as the remaining defendant at trial. Plaintiffs presented evidence that decedent’s father performed five to ten brake jobs using Bendix brakes in the family garage during the 18 years when she lived in the family home. Plaintiffs also presented evidence that, while her father was performing those brake jobs, decedent routinely used the garage to access the backyard where she would play. There was also evidence that decedent’s father worked around asbestos-containing products from other manufacturers during his full-time job as an electrician. Decedent’s father testified that asbestos dust from performing brake jobs and working as an electrician contaminated his work clothing which he would sometimes wear while playing with decedent and her siblings after work.  Decedent’s mother testified that she may have helped launder her father’s work clothes.

 

Ohio law requires that plaintiffs asserting asbestos claims must prove that a particular defendant’s product was a substantial factor in causing their injuries. However, as in other states, for years plaintiffs’ experts in Ohio asbestos cases have used the cumulative exposure theory to overcome their inability to quantify any particular exposure.

 

At the trial in Schwartz, Plaintiffs’ pathology expert, Dr. Carlos Bedrossian, testified that decedent’s exposure to asbestos dust from her father’s work with Bendix brakes and his work as an electrician were both “contributing factors” to her “total cumulative dose” of asbestos exposure. Dr. Bedrossian did not testify that her exposure to asbestos dust from Bendix brakes was a substantial factor in causing her disease. Rather, he testified that there is no known threshold of asbestos exposure “at which mesothelioma will not occur” and that decedent’s cumulative exposure, which includes her exposure to Bendix brakes, caused her mesothelioma.

 

Honeywell’s motions for directed verdict were denied, and the jury returned a $20.2 million verdict for plaintiffs and assigned five percent of the liability to Honeywell. The verdict was affirmed by the Eighth District Court of Appeals in Cuyahoga County.

 

The Ohio Supreme Court reversed and entered judgment in favor of Honeywell, finding that the cumulative exposure theory is inconsistent with Ohio Revised Code § 2307.96 which requires an “individualized determination” that each defendant’s conduct was a substantial factor in causing decedent’s illness. The Court further found that the cumulative exposure theory “is also at odds with the statutory requirement that substantial causation be measured based on the manner, proximity, length and duration of exposure” and “does not consider the relationship that different exposures may have to the overall dose to which an individual is exposed.” Regarding decedent’s exposure to Bendix brake dust, the Court concluded that the evidence of her exposure to Bendix brakes “in relation to ‘other factors which contribute in producing the harm,’” was insufficient to establish that her exposure to Bendix brakes was a substantial factor in causing her mesothelioma.

 

Ohio law does not define “substantial factor.” But the Schwartz case will hopefully provide a basis for challenging the manner in which plaintiffs’ experts attempt to establish causation in other asbestos cases.

 

 


 

 

February 2018

Submitted by: Evelyn Fletcher Davis & Todd C. Alley

 

(click here to download a .pdf of this section update)

 

 

FLORIDA STANDARD FOR DETERMINING THE ADMISSIBILITY OF EXPERT

WITNESS TESTIMONY – HELLHOLE OR DARK AGES?

 

Evelyn Fletcher Davis

Todd C. Alley

Hawkins Parnell Thackston & Young LLP

edavis@hptylaw.com

talley@hptylaw.com

 

The American Tort Reform Association’s recently released 2017-2018 Judicial Hellholes® Report once again highlighted the state of Florida.  The Report focused, as it has in the past, on recent decisions by the Florida Supreme Court that expand liability and show the high Court’s “barely contained contempt for the lawmaking authority of legislators and the governor.”  In particular, the Report highlighted that the Florida Supreme Court recently sided with the State Bar of Florida’s recommendation against the Court’s adoption of the Daubert standard, in which the Court cited vague constitutional concerns despite the use of the Daubert standard in a majority of state courts and every federal court.   So where does that leave Florida when it comes to the standard for determining the admissibility of expert witness testimony – still in the “dark ages” using the old Frye standard, or in a “hellhole” where litigants do not know which standard is applicable and, thus, have to attempt to satisfy or defeat both?

 

Procedural Background

 

The path that led to Florida litigants being between Scylla and Charybdis, of sorts, began in 2013, when the Florida legislature passed a bill requiring Florida state courts to follow the Daubert standard (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) in determining the admissibility of expert witness testimony.  Because the law is one that amends a rule of court, however, it is subject to scrutiny by the Florida Supreme Court, which has constitutional authority to approve or reject a legislative change to a rule of court to the extent it is procedural. 

 

Prior to 2013, Florida courts followed the Frye standard (Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) for determining the admissibility of expert witness testimony.  Although the Florida Evidence Code is modeled on the Federal Rules of Evidence, the Florida Supreme Court refused to follow the U.S. Supreme Court’s lead in replacing the Frye standard with the Daubert standard.  The Florida legislature then attempted to override the Florida Supreme Court’s intransigence and force the adoption of the Daubert standard.  The legislature rewrote the Florida statute on admissibility of expert witness testimony, Florida Evidence Code § 90.702, to incorporate the Daubert test.  Florida Evidence Code § 90.702, as it now stands, reflects its federal counterpart, Federal Rule of Evidence 702, which itself is a codification of the Daubert test.

 

Because the change in the Florida evidence law concerns a “rule of court,” however, it is subject to review by the Florida Supreme Court.  The Supreme Court has constitutional authority to adopt or reject legislative changes to “rules of court”—including rules of evidence—to the extent they are procedural (as opposed to substantive). [1]  It is the duty of the Florida Bar’s Code and Rules of Evidence Committee (CREC) to make recommendations to the Florida Supreme Court on whether to approve or reject legislative amendments to the rules of evidence to the extent they are procedural.  In the case of the 2013 law, the CREC initially voted to recommend approval of the Daubert amendment.  After turnover in the Committee’s membership, however, the CREC reconsidered the issue and narrowly voted to recommend that the Supreme Court reject the Daubert amendment to the extent it is procedural.  Following various further proceedings and hearings, on December 4, 2015, the Florida Bar’s Board of Governors voted to approve CREC’s recommendation and make that the State Bar’s recommendation to the Supreme Court.  On February 1, 2016, the CREC made its official recommendation that the Court reject the Daubert amendment to the extent it is procedural. 

 

Following lengthy and contentious public hearings on the issue, on February 16, 2017, the Florida Supreme Court declined to adopt as a rule of evidence the Daubert standard, as enacted into law by the Florida Legislature, following the recommendation of the Florida Bar’s Board of Governors and the Florida plaintiffs’ bar. In Re: Amendments to the Florida Evidence Code, Supreme Court of Florida, Case No.:SC16-181.  The Court rejected replacing the Frye standard with the Daubert standard and, as its only reason for doing so, expressed “grave constitutional concerns” about the Daubert standard, which included that Daubert undermined the right to a jury trial and denied access to courts.  The Court provided this nebulous and unsupportable basis despite the fact, as pointed out by the lone dissenting Justice that “the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in 1993, and the standard has been routinely applied in federal courts ever since.  The clear majority of state jurisdictions also adhere to the Daubert standard.”

 

Practical Application

 

In September 2016, Florida’s Fourth District Court of Appeal, which covers Broward and Palm Beach Counties, among others, issued an opinion in Crane Co., et al. v. Richard Delisle, which had potentially significant implications for asbestos litigation in Florida as the Court struck a blow to the “every exposure” theory in Florida using the Daubert standard as its cudgel. 

 

Following a trial that lasted more than four weeks in August and September of 2013, a Broward County jury returned a plaintiffs’ verdict against the remaining defendants in a living mesothelioma case.  The jury awarded damages in the amount of $8 million, and apportioned liability among the three defendants and two nonparties.   On appeal, the Appellants argued, among other issues, that the trial court erred by failing to exclude Plaintiff’s expert causation testimony as it failed muster under the Daubert standard. 

 

The argument on appeal centered on the trial court’s decision to admit the testimony of Plaintiff’s expert, Dr. James Dahlgren, over objection on Daubert grounds.  Dr. Dahlgren, a toxicologist, testified that “every exposure” above background to airborne asbestos of any kind would be a substantial contributing factor. 

 

The 4th District Court of Appeal agreed, finding that Dr. Dahlgren had failed to provide support for his opinion that there is an association between mesothelioma and chrysotile asbestos and had failed to base his opinions on reliable principles and methods.  The Court stated: “The opinion that every asbestos exposure level above background level is a substantially contributing factor has been rejected repeatedly by courts as insufficiently supported by data or testing to satisfy Daubert.”  With no methodology and no support from data or studies, the Court of Appeal found that the trial court erred in admitting Dr. Dahlgren’s “every exposure” theory opinions. 

 

In February 2017, shortly before the Florida Supreme Court declined to adopt the Daubert standard, the Delisles filed a cert petition challenging the law enacted by the Florida Legislature making the Daubert standard the rule for expert admissibility in Florida on the ground of separation-of-powers.  The Delisles claimed that, at the September oral argument to the Florida Supreme Court on whether the Court should approve the Daubert amendment, “several Justices noted the lack of a pending case formally seeking review in this Court of an appellate decision from a final judgment touching on objections to Daubert and making pertinent arguments in the context of the actual application of Daubert.”   The Delisles argued that theirs is just such a case.  The Florida Supreme Court, apparently on a razor’s edge, agreed in July 2017 by a 4-3 split to take up the case.  Oral arguments are now set for March 6, 2018.

 

It remains to be seen what the immediate impact of the Supreme Court’s decision not to adopt the Daubert standard will be, but it likely means the Fourth District Court of Appeal’s DeLisle opinion will be vacated.   At a minimum, the DeLisle appellate decision is now no longer good law.  The only bright spot for the litigants in the case may be the footnote in which the DeLisle court indicated that it would have ruled most of the expert testimony inadmissible even under Frye: “Moreover, if the Frye standard applied, most of the expert testimony clearly would be inadmissible as the experts failed to show that the methodology was generally accepted in the scientific community.”  However, any small victory in the case would pale in comparison to the dim view of defendants from the “Hellhole” of Florida litigation if the Florida Supreme Court, as it is expected to do, returns Florida to the Frye standard in which junk science is admitted under the lax “general acceptance” rule.  Despite the efforts of the Florida legislature to bring the Florida evidence code in line with more enlightened thinking, the Florida Supreme Court and the plaintiff bar-dominated Florida Bar seem determined to keep Florida in the dark ages.



[1] The Florida Supreme Court has rejected only one legislative amendment to the rules of evidence since the adoption of the Florida Evidence Code in 1976.

 

 


 

 

January 2018

Submitted by: Rachel Tallon Reynolds & Taryn Basauri

 

 

 

“On Trend” - Recent Lessons for Talc Defendants

Taryn Basauri & Rachel Reynolds

Bullivant Houser Bailey

 

 

            If talc litigation were on Twitter, it would be “trending.”  Although the science is still far from established in plaintiffs’ favor, these cases are gaining momentum.  As evidenced by the massive verdicts awarded by juries in 2017, talc litigation presents a very real threat to manufacturer and supplier defendants.  Talc is a mineral commonly used to make talcum powder.  Talcum powder is commonly used in baby powder and cosmetic products.  In its pure form, talc may contain asbestos because the ore of the two minerals are often mined together.  There is a seemingly common misconception that talc itself is harmful.  However, the International Agency for Research on Cancer determined non-asbestos-containing talc is “not classifiable as to carcinogenicity in humans”—in plain English, talc is not harmful unless it is contaminated with asbestos (and even then, we all know causation would still be a hotly contested issue).  Thus, the theory behind the advent of talc cases is that the talc used in these common products contains asbestos. 

 

The theory behind talc litigation renders it susceptible to jurisdictional challenges following the U.S. Supreme Court decision in Bristol-Meyers-Squibb.[1]   A recent Washington case demonstrates that BMS ushered in a new basis for dismissal of non-resident talc manufacturers and suppliers.

 

            In the subject case, a Washington-based plaintiff alleged that the talc in her cosmetic products caused her to develop mesothelioma.  Plaintiff named as a defendant a non-resident corporation that manufactured talc.  Plaintiff faced two major hurdles.  First, plaintiff needed to provide some evidence that would suggest the talc used in her cosmetic products contained asbestos.  The Court strongly urged (really it was the next best thing to an order) plaintiff to have the mine tested to establish the presence of asbestos and admonished plaintiff’s failure to do so toward the discovery cut-off date.  Plaintiff’s second and, as to the non-resident defendant, insurmountable hurdle was establishing personal jurisdiction over a non-resident talc manufacturer.  As a reminder, BMS reiterated the requirement for a court to assert personal jurisdiction over a non-resident.  For specific personal jurisdiction, the non-resident’s alleged acts in the forum state must give rise to plaintiff’s injuries.  In other words, there must be a causal link between the defendant’s alleged acts in the forum state and the plaintiff’s alleged injuries. 

 

            Because the non-resident defendant allegedly manufactured only a component of the end product and did not sell directly to plaintiff, the stream of commerce doctrine applied.  Plaintiff argued that that the manufacturer purposefully availed itself of the benefits of the laws of Washington because it knew or should have known the end product would be sold in Washington.  This argument was based on the fact that the brands of common cosmetic products plaintiff used were so common they were indisputably available in every state and even nearly every store.  The non-resident defendant argued that plaintiff needed to allege that our client’s contacts with Washington gave rise to plaintiff’s injuries, and asserted that plaintiff’s theory would provide a basis for personal jurisdiction in any state for any manufacturer of a component part to a common end product.  The King County Superior Judge agreed, relying on the overarching principles in BMS and the stream of commerce sub-analysis in Noll v. American Biltrite Inc., 395 P.2d 1021 (2017).  Noll held that “[s]howing only that an out-of-state manufacturer sold a component part to another out-of-state manufacturer who then sold the finished product into Washington is not enough to confer specific personal jurisdiction in Washington.”  Id. at 1028.

 

            In Noll, the non-resident defendant supplied asbestos for use in another defendant’s asbestos-cement pipe, which was ultimately sold in Washington.  Id. at 1027.  Noll criticized the lower court’s failure to limit its jurisdictional focus to the non-resident defendant’s “suit-related conduct.”  Id. at 1028.   It was not enough that the non-resident asbestos supplier knew the asbestos-cement pipe manufacturer would widely distribute its products through each and every state.  Id.  Rather, plaintiffs must allege facts to show a manufacturer purposefully availed itself of the privilege of doing business in the forum state.  Then under BMS, those acts of purposeful availment must be the alleged cause of plaintiff’s injury in the forum state.  In the subject case, the Court granted plaintiff leave to amend the complaint to allege facts showing that the defendant purposefully availed itself of Washington and specifically said it was insufficient to allege unilateral sales to Washington by the cosmetic product manufacturer.  Because the defendant had no direct contracts with Washington, nor sold to a Washington-based company, the ruling forced plaintiff to dismiss defendant.  Although Noll is a Washington case, it was decided based on the seminal U.S. Supreme Court cases following the stream of commerce analysis for personal jurisdiction—World-Wide Volkswagen and Asahi Metal. 

 

            It follows that BMS may have a significant impact on talc litigation because many talc manufacturers will not be subject to personal jurisdiction in the plaintiff’s chosen forum.  At the very least, it showed that a plaintiff cannot merely allege unilateral acts by the end product’s manufacturer as a basis for specific personal jurisdiction over the talc manufacturer.  We hope to see an increase in early motions to dismiss for lack of personal jurisdiction in talc cases and hope these will stave off this new category of asbestos litigation.

 

--

           

Taryn Basauri is an associate at Bullivant Houser Bailey, PC, in Portland, Oregon, where she represents clients in product liability and toxic tort matters. 

 

Rachel Tallon Reynolds is a Shareholder at Bullivant Houser Bailey, PC, in Seattle, Washington, where she represents product manufacturers, insurers, and municipalities in product liability, toxic tort, and catastrophic personal injury cases.

 

 


 

 

December 2017

Submitted by: Vicki M. Smith

 

A Slick Mess:  PFC Litigation Expanding in Alabama

By, John W. Scott

 

1.         Introduction to PFCs, PFOA and PFOS

 

PFCs are a class of synthetic chemicals which have been, and continue to be, used in a variety of industrial and consumer applications and products.  While there are a number of different PFCs, the two primary PFCs at issue in current litigation are perfluorootanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”).  PFOA and PFOS were once widely used in the manufacturing of products such as carpets, clothing, fabrics for furniture, paper packaging for food and other materials to make them resistant to water, grease or stains. 

 

According to the EPA, “PFOS and PFOA are extremely persistent in the environment and resistant to typical environmental degradation processes.  As a result, they are widely distributed across the higher trophic levels and are found in soil, air and groundwater at sites across the United States. The toxicity, mobility and bioaccumulation potential of PFOS and PFOA pose potential adverse effects for the environment and human health.” 

 

PFCs at this point generally are not regulated by the EPA.  In 2009, the EPA developed national drinking water provisional health advisory levels for PFOA at 0.4 ppb and PFOS at 0.2 ppb.  In May 2016, the EPA announced revised drinking water health advisories reducing the advisory levels in drinking water to 70 ppt for PFOA and PFOS based upon lifetime exposure.  A definitive link between PFC exposure and adverse health effects in humans is still unclear at this point, although there have been studies linking PFOA to certain diseases.  The EPA considers PFOA and PFOS to constitute “emerging contaminants.”  As such, the EPA is continuing studies regarding possible risks of adverse health effects and continuing to assess possible further regulatory action. 

           

2.         PFCs and the North Alabama Tennessee River Area

 

PFCs have been manufactured or used in manufacturing in the Decatur, Alabama, area since the early 1960s by a number of companies, including 3M Company.  The current crop of PFC-related litigation began in 2002 with a worker’s compensation lawsuit filed against 3M involving its Decatur plant, which is located on the Tennessee River.   This case eventually morphed into an environmental class action involving property owners in the surrounding three counties.  The defendants include 3M, its subsidiary Dyneon, LLC, as well as other manufacturers with plants along the Tennessee River in the Decatur area.  Plaintiffs also sued the local municipal wastewater treatment plant based on allegations that the plant has received process wastewater from the industrial defendants over the years which contained PFCs, as well as leachate from local landfills which also contains PFCs.  The treated waste water is then discharged into the Tennessee River. 

 

 More recently, an environmental organization, Tennessee Riverkeeper, Inc., filed a federal RCRA lawsuit seeking to reduce PFC discharges and compel defendants to effectively reduce current PFC levels in the river.  In addition, a lawsuit was filed in federal court by a water authority that draws its source drinking water from the Tennessee River.  That lawsuit also includes class action allegations involving a class consisting of the water authority customers.  Two other mass actions have been filed in state court primarily alleging property damage by certain water authority customers in the area.

 

Significantly, and most recently, a federal class action was filed alleging serious personal injury claims.  The putative class consists of water authority customers and users in the Decatur, Alabama, area who allegedly suffer from various illnesses that have been linked to PFOA exposure.  The defendants consist of the water authority itself, as well as three of the manufacturing defendants, including 3M. The named plaintiffs allegedly suffer from thyroid disease, hyperthyroidism, kidney cancer, and ulcerative colitis.

 

3.         PFCs and the East Alabama Coosa River Area

           

Dalton, Georgia, is known as the “carpet capital” of the world, and is reportedly home to over 150 carpet manufacturers.  Some of these manufacturers have historically used PFOA and PFOS, as well as other PFCs, in the carpet manufacturing process to make carpets stain and water resistant. 

 

Industrial process wastewater from these manufacturing facilities allegedly containing these chemicals was discharged by certain manufacturers and treated at the Dalton Utilities’ wastewater treatment plant.  Treated wastewater was then applied to the surface of a 9,800 acre area as a “land application system” for treatment of the wastewater.  The Dalton Utilities land application system has allegedly resulted in PFC contamination of the Conasauga River in north Georgia.  The Conasauga River, in turn, is one of five tributaries of the Coosa River which flows from Georgia into northeast Alabama through a complex watershed system.

 

In May 2016, after the EPA revised its drinking water advisories for PFOA and PFOS, the Alabama Department of Environmental Management (“ADEM”) issued a drinking water advisory for five water systems in the Coosa River basin, including the City of Gadsden Water Works and the Town of Centre Water Works.  ADEM’s advisory was based on testing that showed drinking water from these systems did not meet the new EPA advisory levels for PFOA and PFOS.

                                                                                    

These two water authorities have sued Dalton-area carpet manufacturers, distributors, and a number of chemical companies in Alabama state court.  Defendants removed both actions to federal court, but both have been remanded and are in the early stages of litigation in state court.

 

 


 

 

November 2017

Submitted by: Vicki M. Smith

 

Talc Litigation Has Been Active the Past Few Months:

 

There has been a lot of activity in talc litigation these past few months, with significant highs and lows.  Even if you’re not directly involved in the litigation, it is worth watching as it has taken the driver’s seat in applying the U.S. Supreme Court’s decision from this summer concerning jurisdiction over personal injury lawsuits. 

 

For those not familiar with the litigation, there are approximately 4800 lawsuits filed nationally involving allegations that the talc in baby powder and other personal products causes cancer.  Most of those lawsuits involve ovarian cancer, but a California jury is currently hearing a case alleging a link between talc and mesothelioma (because of allegations that asbestos was in talc).

 

A significant number of the lawsuits were filed in Missouri, despite very few of the plaintiffs actually residing in Missouri. Forum shopping is alive and well. Certain evidence linking talc to cancer has been allowed in Missouri, but was rejected by a New Jersey state court judge overseeing hundreds of talc cases.  (FYI: Johnson & Johnson is based in New Jersey.)  Not surprising, jurisdiction has been a big issue in this litigation.

 

In June, the United States Supreme Court ruled that jurisdiction for personal injury lawsuits is proper where the defendant is based or where the alleged injury occurred.  Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2017). Based on that decision, last month a Missouri appellate court threw out a $72 million verdict in favor of an Alabama resident in an ovarian cancer case.  The plaintiffs are arguing that jurisdiction is appropriate because they are including local sellers and drug stores as defendants.  This argument recently prevailed in a Louisiana case when the New Jersey federal court overseeing the multidistrict litigation docket for talc cases ruled the case was proper in Louisiana.  McBride v. Johnson & Johnson et al., MDL No. 2738; Civil Action No.:16-7891 (D. N.J. October 12, 2017). 

 

Jurisdiction is not the only hot issue.  The science is, of course, central to these cases.  In August, a California jury awarded the largest talc verdict to date- $417 million on an ovarian cancer case where the plaintiff claimed the manufacturer failed to warn of the cancer risks when using talc.  $347 million was punitive damages.  However, in October, the Los Angeles County Superior Court tossed that award.  The court granted JNOV based on insufficient evidence of causation and malice.  The court also granted the defendants’ motion for new trial based on insufficiency of evidence as to causation, error in law, jury misconduct, and the excessive damages. 

 

Keep an eye on the current Los Angeles trial – Tina Herford et al. v. Johnson & Johnson et al., case number BC646315. It is the first lawsuit to go to trial including allegations that asbestos was in talc and may also provide a clue as to the value of talc lawsuits outside of Missouri and New Jersey.  

 

 

 

OCTOBER 2017

By Beth Bauer, HeplerBroom LLC

 

Hi Friends,

 

Autumn has arrived, and I am thrilled!  All things scented or flavored with pumpkin and cinnamon are available everywhere.  And, it’s almost time to Trick-or-Treat!  I love the tradition of dressing up to beg for candy although now I just live out the Halloween fun through my kids.  I have a new fall tradition – attendance at the FDCC Corporate Counsel Symposium.  I recently attended this meeting for the first time.  No tricks:  It was all treats.  This seminar offered outstanding CLE, a client-rich atmosphere for networking, and time with good FDCC friends.  Here are some of my top take aways from the presentations at the seminar: 

 

1.      Natural disasters and man-made disasters, such as cyberattacks, are absolutely crippling for the businesses affected, including law firms. Planning for these events is critical to business continuity, protecting our clients’ information and interests, and providing for our employees.  Find ways to be resilient by understating the risks your firm may face due to your geographic location as well as trends for manmade risks.  One tool to help you is the Lloyds’s City Risk Index, which can be found here:  https://www.lloyds.com/cityriskindex/

 

2.     When making a pitch to get business from in-house counsel, demonstrate that you and your law firm understand the principles of running a business and operate in a business-minded way.  For example, propose alternatives to the hourly rate billing arrangement, understand the client’s business, know their competitors, and appreciate the pressures of the client’s business, such as price erosion year after year.

 

3.     Workplace violence is on the rise and so are lawsuits that allege an employer is liable for failing to prevent it.  How can your law firm protect itself from such liability?  Develop a policy that describes workplace violence and how employees can report it.  Conduct training of employees on workplace violence and how they should respond.  Have local law enforcement do a facility assessment to identify how to make the workplace safer with locks, lighting, exit routes, etc.  If you have clients that are part of the national critical infrastructure, the FBI and other governmental agencies will also help them with safety assessments, advice, and training.  Demonstrating layer upon layer of proactive conduct to educate and train employees regarding workplace violence may help avoid liability for these occurrences.

 

4.     Diversity in the first chair matters.  In-house counsel value diversity in our law firms, but also want to see law firms do more to help women and minorities become equipped to take on first-chair trial responsibility for a variety of reasons.  One of the chief reasons is that clients want trial teams to reflect the diversity of the jury pool where they face a lawsuit.  They suggest that law firms be intentional about training and providing opportunities to women and minorities to acquire the skills necessary to take on the role of lead trial lawyer, and make clients aware of those initiatives. 

 

In other news, here are some notes of interest from the FDCC Project and Objectives Committee Meeting, held last month.  Be alert to new and improved opportunities to network and market through FDCC’s refreshed LinkedIn page, coming soon.  Did you know that FDCC has a YouTube channel?  Watch for an invitation to subscribe to the channel.  You can share content from CLE presentations and other material posted there with your clients, others in your firm, and those interested in membership in FDCC.  Be sure to check out FDCCEvolve.com.  There are developments coming related to FDCCEvolve to ensure that FDCC members can market themselves as the most tech savvy lawyers.  Scott Kreamer, the other officers, and the Board have many more exciting things to come this year that will increase the value you receive from FDCC membership. 

 

Finally, Paul Knobbe with Goldberg Segalla has written our section’s blog for this quarter.  It is a helpful and quick primer on the latest developments on personal jurisdiction jurisprudence and how those principles apply to toxic tort cases.  If you are relying on what you learned in your Civ Pro class, you need to read Paul’s blog post, which is available by clicking here.


 

SEPTEMBER 2017

 

Happy Fall!  The leaves are slowly starting to change color, daytime humidity is gone, and evenings are cool and perfect for roasting marshmallows at the fire pit. I grew up on a farm in central Illinois and love to see the corn and soybean crops turn from deep green to seas of gold ripe for harvest.  Farmers input time, effort, fertilizer, pest and weed repellants, often prayer, and other work to maximize the return on investment.  And generally, they reap far more than they sow.  For example, each corn plant grows from a single seed, yet yields up to three large ears of corn per plant.  That is good return on investment! 

Likewise, if we all put effort into FDCC activities, it can yield big returns, such as new business, professional development and great friends.  Currently, FDCC planning is in full swing, so it is the perfect time to assess what your contribution to FDCC will be for 2017-2018.  Your Toxic Tort and Environmental Section needs your effort.  The below is a list of ways you can plug in that will not require a large amount of your time.  Please contact me at bab@heplerbroom.com to volunteer for a specific item on the list:

  • Monthly newsletter update—content for one month only (Very flexible format and not time intensive.)
  • Blog post (Re-publish some timely and informative posts from your firm’s blog.)
  • Insights article (Not due until July 2018 – plenty of time to plan and execute!)
  • New member outreach (You just need to be friendly.)
  • Candidates for membership (You will not be working on this alone).
  • Spearhead Annual Meeting Programming (Topic has been chosen, which is like 90% of the work needed.)

I am really looking forward to hearing from you.  At the end of the 2017-2018 FDCC season, we will have reaped great rewards from our membership. 

Exchange of Ideas

The United States has suffered two major hurricanes within the past month, which have caused tremendous damage in Texas, Florida, and other southern states.  As I write this, Irma is just making landfall.  While we hope and pray for the safety of friends and loved ones and help with recovery any way we can, my mind also naturally turns to the legal issues associated with such catastrophic events.  We all represent clients that will be touched by these storms – energy, transportation, and construction industries, as well as insurance companies come immediately to mind.  What are you doing to help your clients through the aftermath of these storms?  Please share your experiences with me for next month’s newsletter.  The first three people to send me their thoughts and ideas will receive a gift. 

Upcoming Events

I am attending the CCS in Philadelphia September 17-19 and I hope to see you there. 

There are deposition boot camps this fall, so check the website for dates and send your associates for the best training by the best lawyers.

Mark your calendars for the Winter Meeting in Amelia Island, February 24-28, 2018.  This meeting is designed with our corporate and industry members in mind, with programming specific to their interests and complimentary registration.  Invite a client to attend with you that may be interested in FDCC membership.

 

 

AUGUST 2017

 

At the Annual Meeting in Montreux, there was a joint presentation by the Energy Utilities Law and Toxic Tort and Environmental Law sections. This of course was in the toughest time slot, being 7:45 a.m. on the last day of the meeting and following many late nights.  The meeting was well attended and speakers G. Bruce Parkerson, J. Richard Caldwell Jr., and Michael J. O’Connor didn’t  disappoint those that got up to make the meeting. The presentation dealt with the aftermath of the gas pipeline explosion in San Bruno, California in September 2010, which resulted in 8 deaths and millions of dollars of property damage.  Pacific Gas and Electric was defending hundreds of civil lawsuits while at the same time being subject to investigation by both state and federal regulatory agencies.  Federal criminal charges were also brought against the company, which resulted in criminal convictions.  All of the presenters spoke in practical terms of the strategic decisions that have to be made by the company that would have direct impact on all areas of the legal defense. Issues such as cooperation with the prosecution and sacrificing of the well- being of employees, the relationship between the in-house counsel and outside counsel were all discussed.  The paper that was written and provided as one of the meeting materials makes for a good resource for those dealing with issues of defending in a situation of multiple legal fronts. On behalf of the sections, I would like to thank the presenters for the time in writing the paper and presenting on a very interesting and challenging situation for defense lawyers.

 

Be sure to contact Section Chair Beth Bauer at bab@heplerbroom.com to volunteer to provide content for our monthly newsletter, blog posts, and Insights columns.  Additionally, if you are friendly and would like to be on a team to reach out to new members that express an interest in the TTEL section, please contact Beth.  If you enjoy coordinating social events, please volunteer to organize a social event at one of the upcoming meetings that our section members attend sponsored by sister organizations, such as DRI, or other bar associations, such as the ABA.  Again, contact Beth to volunteer.

 

We will be together again at the Winter Meeting in Amelia Island in late February, so block the time on your calendar to join us in that beautiful location.  In the meantime, FDCC offers several programs to add value to your membership for you and others in your firm.  For example, the webinar series is kicking off in September and FDCC deposition boot camps are gearing up for the fall.  Also this fall, we hope to see you at the Corporate Counsel Symposium in Philadelphia in September or at the I-3 in New York in November. 

  

 

JULY 2017

 

Upcoming Events:

We are about to close out another Federation year with the Annual Meeting in fabulous Montreux, Switzerland.  Please plan to attend our CLE program presented with the Energy and Utilities Law Section on July 28 at 7:45 a.m., titled “Walking the Tightrope: Balancing the Defense in a War on Multiple Fronts.” The presentation will analyze aspects of the aftermath of the gas pipeline explosion in San Bruno, CA on September 9, 2010, which resulted in 8 deaths, multiple injuries and millions of dollars in property damage. Pacific Gas & Electric (PG&E) was forced to defend hundreds of civil lawsuits and claims while undergoing intense inquiries by several regulatory agencies at the state and federal levels. Federal criminal charges were brought against PG&E in the Northern District of California, which ultimately resulted in the company’s conviction on several counts. The presentation will explore the difficulties inherent in fighting multiple battles on multiple fronts, arising from the same set of circumstances, where each action in any context is likely to affect the defense in others.  The speakers are G. Bruce Parkerson, Plauche Maselli Parkerson, LLP, New Orleans, LA; J. Richard Caldwell, Jr., Rumberger Kirk & Caldwell, Tampa, FL; and Michael  J. O’Connor, Associate General Manager and Chief Legal Executive Law & Human Resources, Salt River Project, Phoenix, AZ.  The presenters have worked very hard, and I know you will learn something that you can share with a current or potential new client.

 

Recent Toxic Tort and Environmental Developments:          

The DC Circuit has at least temporarily thwarted the Trump administration’s efforts to ease some of the regulatory pressure on your oil and gas industry clients related to methane emissions.  For more information that you can share with your clients, please see the blog post titled, Delay in Implementing Obama-Era Environmental Rule Found Improper, explaining the court’s ruling in  Clean Air Council v. Pruitt, ___ F.3d ___, 2017 WL 2838112 (D.C. Cir. July 3, 2017), written by HeplerBroom LLC partner Michael Murphy.  

Click here to read it and share!


Looking Back and Planning Ahead:       

Thank you to all of the section members who contributed to our section programming, publications, and other section work in the past year.  I look forward to another year of leadership and hope that you will lend your talents to make the upcoming year the best for our section.  Below are the meeting minutes from our business and planning meeting, which recap our activities for 2016-17 and note plans we are making for new fellowship opportunities, CLE programs, and our section publications for the next year.  Please review the notes below and volunteer for one of the open slots.   

 

Toxic Tort and Environmental Law Section
Meeting Agenda and Minutes, July 13, 2017

1)    Pillars of the Strategic Plan and Brief Recap of Past Year’s Activities

a.    Fellowship
             
 i.  DRI Events

1.  Asbestos Medicine Seminar, Nov. 2016

2.  Products Liability Seminar, Feb. 2017

3.   Winter Meeting Dine Around, March 2017

 

b.    Membership
               i.  “All In” Drive – thanks for participating, and here are some results

  1.  258 names

  2.   54 new members so far

  3.   24 currently before the Admissions Comte.

  4.  180 names still on the prospect list

 

c.     Visibility/Value

  i.     CLE Programming at Winter Meeting –water rights and contamination litigation,
         well attended, cutting edge topic, lots of interest by attendees

  ii.    Publications by the Section Members

  1.  Quarterly Blogs

a.    OSHA Silica Exposure Rule

b.    OSHA Limits on Beryllium Exposure

  2.   Insights article –watch for it in July 2017:  “Can Biomarkers and
        Genetics Help Predict the Future of Malignant Mesothelioma?” by Kurt
        Reeg and Paul Knobbe

  3.   Monthly Newsletter – written by Chair and Vice Chairs each month

 

2)    Montreux 2017 Annual Meeting

a.    Fellowship Day, July 25, 2017

b.    Presentation with Energy and Utilities Law Section, July 28, 7:45 a.m.

 

3)    Planning for Winter Meeting 2018 in Amelia Island

a.    Convention Chair Brett Preston

b.    Program Chair Reid Manley

c.    Theme – Enlightening the Practice

d.    Ideas for presentation at Amelia Island?

 i.   Talc litigation

 ii.   Personal jurisdiction across various mass torts

iii.   Attacks on legislation to limit asbestos cases

iv.   Issues related to bankrupt  trusts – discovery, fraud

 v.   Piecemeal asbestos claims – plaintiffs filing against different groups of  
      defendants in different jurisdictions

e.    Volunteers interested in presenting at the Winter Meeting should contact Beth Bauer

 

4)    Upcoming fellowship and networking opportunities – Besides Annual Meeting

a.    Upcoming DRI and ABA meetings related to our section

b.    Corporate Counsel Symposium, Philly Sept. 17-19, registration open

c.     Asia Pacific Insurance Conference, Singapore, Oct. 18-20, early bird ends 7/31

d.    Insurance Industry Institute (I3), New York City, Nov. 9-10, 2017

e.    2018 Winter Meeting, Amelia Island, FL Feb. 24-28, 2018

f.      2018 Annual Meeting, Maui, HI July 29-Aug. 3, 2018

 

5)    Publication opportunities to grow your network

a.    Monthly newsletter – Volunteers needed

b.    Quarterly blog

  i.    Third Quarter – Paul Knobbe

  ii.    Fourth Quarter – Volunteer needed

c.     Insights –Volunteer needed

 

6)    Nominees for membership

a.    “All In” very effective, but still have requirement for section to nominate 2 people for
        membership each year

b.    Volunteer needed to spearhead this for the remainder of this term and next term
       (4 names total)

 

7)    New member outreach

a.    Volunteers needed

 

8)    Other business – None raised

 

 

Note:  After the conference call, I received notice that the following members are the section Vice Chairs for 2017-2018:

Vicki M. Smith

David A. Zuber

Kurtis B. Reeg

Paul J. Schumacher

Please contact any of us with your ideas for improving the TTEL section.

 

 

JUNE 2017

The summer of 2017 is shaping up to be a busy and exciting time for FDCC members in general and our section in particular.

2017 Annual Meeting:  Our much-anticipated 2017 FDCC Annual Meeting, which will take place in Switzerland from July 24 through July 29, promises to be one of our most memorable events ever. This year’s meeting will begin in the international business center of Zurich, where the FDCC and AIDA Switzerland will jointly present the Bridging the Gap Insurance Summit.  This dynamic half-day conference will be packed with international speakers and attendees who will address the complexities that insurance companies face in global litigation, especially in the North American and European markets.  Speakers will address the litigation risks that foreign corporations and their insurers face in the U.S. marketplace, and our European colleagues will discuss the new transatlantic data transfer rules that U.S. companies will have to confront in the EU and beyond.  The Zurich summit will conclude with a networking luncheon cruise on Lake Zurich.


For the remainder of the conference, we will head south to the exquisite Fairmont Le Montreux Palace, nestled on the banks of Lake Geneva and surrounded by breathtaking Alpine views.  Nearby, fine dining, outdoor activities, historical sites, vineyards and other great attractions beckon.  Montreux is just twenty minutes from the French border and less than an hour from the Italian border, offering a truly multicultural getaway.  Less than an hour’s drive is Mount Blanc, Europe’s tallest mountain, which towers above the fairytale village of Chamonix, France. Just an hour east of Montreux is the famed Matterhorn, which straddles the Swiss and Italian borders.  Ned and Sue Currie, Montreux Convention Chairs, have created a program of fun-packed and illuminating events in this incredible setting, including a day in Old Town Bern, a picturesque medieval village and a UNESCO World Heritage site.  Don’t miss the conference’s distinguished keynote speaker, human rights advocate Nontombi Tutu, daughter of international social rights and spiritual leader Desmond Tutu.


Todd and Debbie Roberts, Program and Registration Chairs, have put together five days of educational programs with the theme “Practicing with Swiss Precision.” As usual, our section and members will be active contributors to the program. The Energy Utilities Section and Toxic Tort and Environmental Law Section are partnering on a program titled “Walking the Tightrope: Balancing the Defense in a War on Multiple Fronts.” The presentation will analyze aspects of the aftermath of the gas pipeline explosion in San Bruno, CA on September 9, 2010, which resulted in 8 deaths, multiple injuries and millions of dollars in property damage. Pacific Gas & Electric (PG&E) was forced to defend hundreds of civil lawsuits and claims while undergoing intense inquiries by several regulatory agencies at the state and federal levels. Federal criminal charges were brought against PG&E in the Northern District of California, which ultimately resulted in the company’s conviction on several counts. The presentation will explore the difficulties inherent in fighting multiple battles on multiple fronts, arising from the same set of circumstances, where each action in any context is likely to affect the defense in others.  The speakers are G. Bruce Parkerson, Plauche Maselli Parkerson, LLP, New Orleans, LA; J. Richard Caldwell, Jr., Rumberger Kirk & Caldwell, Tampa, FL; and Michael  J. O’Connor, Associate General Manager and Chief Legal Executive Law & Human Resources, Salt River Project, Phoenix, AZ. 


At the plenary session on the first day of the meeting, I will join Chris McCall, Fotokite CEO and Kate Browne, Senior Vice President at SwissRe to present “Commercial Uses and Liability Exposures Associated with Drones.”  The audience will gain insight on the emerging uses, regulatory issues and potential exposures of the commercial use of drones.  Drone and autonomous vehicles (air, land and sea) are reshaping our society as well as our law practices.  Find out where potential exposures lie and how to develop and implement effective strategies to handle a potential new and emerging wave of litigation. 


I look forward to seeing many of you in Switzerland in July for an illuminating professional, educational and recreational experience.


Other section news: Keep your eye out for an article by our section members, Kurtis B. Reeg, Paul Knobbe and Lynn Lehnert in FDCC Insights entitled “Can Biomarkers and Genetics Help Predict the Future of Malignant Mesothelioma?”  The field of genetic markers as a defense in toxic tort litigation is intriguing.  This article addresses the ever-changing defenses to medical causation in the field of toxic torts.  We all must keep abreast of the science and medicine which effects toxic torts, and this paper will illuminate a potential path to a new defense. 


By this point, everyone has probably heard about our Section Leader Beth A. Bauer’s defense verdict in the City of Saint Louis Circuit Court in a talc case.  I am just starting to immerse myself in talc litigation and will be tapping Beth as a resource to get insight on her successful strategies.  I mention this as a reminder to everyone that colleagues in our section can be a great resource to each other and that we should share our collective knowledge.  Our section members are a strength to us all. 

The emerging area of toxic talc tort litigation seems to be moving at a fast pace with major developments occurring monthly.  For those about to just enter into this litigation, I highly recommend reviewing Judge Nelson C. Johnson’s decision in the Carl and Balderrama cases out of the Superior Court of New Jersey, Atlantic County.  This decision provides a good primer on general and specific medical causation issues in these types of cases.  I also recommend that you become familiar with the science and the medicine that is set forth in this decision, in which two of the plaintiffs’ main experts, Dr. Graham A. Colditz and Dr. Daniel W. Cramer were excluded from testifying and the case was ultimately dismissed.  As a side note, Judge Nelson is also the author of the book that was the basis of the popular HBO television series, Boardwalk Empire.  New Jersey also happens to be the venue for the talc MDL litigation, which is being administered by Hon. Freda L. Wolfson, U.S.D.J. and Hon. Louis H. Goodman, U.S.M.J.

Mark your calendars for the Corporate Counsel Symposium, which will be held in Philadelphia, September 17 through September 19, 2017, and the I3, which will be in New York November 9 through November 10, 2017.  Both of these events will be amazing educational and networking opportunities for our members.  The Corporate Counsel Symposium in Philadelphia will talk about the Trump administration’s effect on general counsel’s role in the regulatory and compliance environment; trade and international relations; crisis management; and best practices for in-house counsel in effectively marshaling and managing their in-house and outside legal teams in a global economy.  As always, it will address some of the hot issues and trends that in-house counsel confront on a daily basis and the best practices on how to address them.

As always, our section is looking for members to participate and volunteer in FDCC activities, and there is always a plethora of opportunities to do so.  We welcome your suggestions on ways of making our group a shining gem within the FDCC, and on giving you each an opportunity to shine.  You can have that opportunity at the 2018 FDCC Winter Meeting in Amelia Island, Florida, a popular return location that has proven to be an oasis in the heart of winter for our members.  The section is seeking ideas for presentation topics and papers, and you are encouraged to participate and get involved.  If you are interested, please contact our Section Leader, Beth A. Bauer (beth.bauer@heplerbroom.com).


This truly looks to be a fun and enriching summer for us, leading into an amazing fall.  I look forward to seeing you at upcoming FDCC events, maybe lakeside in Montreux, or in a Swiss vineyard while we share a glass of wine.

 

 

MAY 2017


Message to members of the Toxic Tort and Environmental Litigation Committee

The water presentation at our Charleston TTEL Section meeting entitled “A Tsunami of Rising Water Litigation” was outstanding and well-attended.  Our speakers were Attorneys William K. Koska and James E. Smith, and Hydrogeologist Gary E. Hokkanen. Topics included: damages (remediation, market value, stigma); the proof necessary for general and specific causation; safe harbor issues; emerging contaminants; lessons learned from the Flint, Michigan litigation to date; fracking; evolving regulatory actions; climate change; and water rights litigation, among others. Click here to go to our FDCC website and review the course materials.

 

There are many other ongoing developments, upcoming meetings, and exciting activities for FDCC members.  We all receive numerous emails concerning various FDCC programs and announcements and we thought it might be helpful to include a few of the these programs in our monthly announcements so that you have them all in one place. 

First, there are two important and valuable training programs scheduled to take place in June. The first is the Deposition Skills course that will be conducted at Hinshaw Culberson's offices in Chicago on June 12 and June 13. The same program will take place at Hinshaw Culberson on October 23 and October 24 in New York City. Please consider and encourage young lawyers from your firms to attend this fantastic training program.  There is additional information on the FDCC website that explains registration and includes a copy of the brochure.

Next, there is a Litigation Management Program scheduled to take place between June 4 and June 8 at Emory University in Atlanta. This is one of the crown jewel programs of the FDCC.  Spend a few moments thinking about the network of insurance professionals that you work with and send the brochure or a link to the FDCC website to someone today.  They will thank you for the referral for this excellent training event.  The registration materials and additional program information is on the FDCC website.

A recent announcement from FDCC President-Elect Scott Kreamer concerning the upcoming Switzerland meeting, FDCC appointments and committee selections, and other FDCC news was sent out to members at the end of April. The following is an excerpt concerning what you need to do to sign up for committees:

Committees and sections are a great place to start.  If you would like to become a member of specific sections, or want to be considered for a committee appointment, please complete the electronic “2017 Committee & Section Request Form.”  The form is posted on the FDCC website, www.thefederation.org and is accessible by logging in as a member, click on Committees and Sections, next click on “More in the Section” and select the form or Click here.

 

We are always looking for new section members and current section members that want to become more active.  FDCC is a great way to network and grow your practice.  When you invest some time with others on FDCC projects, the dividends are great – new friends, rewarding professional development, and often referrals of new cases and clients.  So log on to the website and sign up and plan to be active in the coming Federation year.  Contact any of our section leadership for more information:  Beth Bauer bab@heplerbroom.com; Dave Erickson (derickson@shb.com); Paul Schumacher (pschumacher@dmclaw.com); Kurt Reeg (kreeg@goldbergsegalla.com); or Jack Delany (jjd@delanymcbride.com).

 

Our next annual meeting is in Montreux, Switzerland this summer.  The Energy Utilities Section and Toxic Tort and Environmental Law Sections are partnering on the following section program for the Annual Meeting:

“Walking the Tightrope: Balancing the Defense in a War on Multiple Fronts.”  The presentation analyzes aspects of the aftermath of the gas pipeline explosion in San Bruno, CA on September 9, 2010, which resulted in 8 deaths, multiple injuries and millions of dollars in property damage. Pacific Gas & Electric (PG&E) was forced to defend hundreds of civil lawsuits and claims, while at the same time being the subject of intense inquiries by several regulatory agencies at the state and federal level.  Federal criminal charges were brought against PG&E in the Northern District of California, which ultimately resulted in the company’s conviction on several counts. The presentation will explore the difficulties inherent in fighting multiple battles on multiple fronts, arising from the same set of circumstances, where each action in any context is likely to affect the defense in the others.  The speakers are: G. Bruce Parkerson of Plauche Maselli Parkerson, LLP, New Orleans, LA; J. Richard Caldwell, Jr. of Rumberger Kirk & Caldwell, Tampa, FL; and Michael  J. O’Connor, Associate General Manager and Chief Legal Executive Law & Human Resources, Salt River Project, Phoenix, AZ.

 

For Switzerland, please make you non-refundable hotel reservations ASAP and make sure your passport will not expire within 6 months of the meeting.

Kudos to our Section Leader, Beth A. Bauer, who won a defense verdict just before the Charleston meeting in the 4th talc case tried in the City of St. Louis Circuit Court. Beth is continuing to participate in the series of trials in St. Louis and elsewhere concerning talc. At some point in the future, we hope to have Beth do a presentation at an FDCC meeting on the talc litigation.  If you have wins, important legal developments, or other news to report to the section, please send a note to any of the section leaders listed above and we will be sure to report them in the next section update.

 

 

APRIL 2017

The water presentation at our Charleston TTEL Section meeting entitled “A Tsunami of Rising Water Litigation” was outstanding and well-attended.  Our speakers were Attorneys William K. Koska and James E. Smith, and Hydrogeologist Gary E. Hokkanen. Topics included: damages (remediation, market value, stigma); the proof necessary for general and specific causation; safe harbor issues; emerging contaminants; lessons learned from the Flint, Michigan litigation to date; fracking; evolving regulatory actions; climate change; and water rights litigation, among others.    

 

Our next meeting is in Montreux, Switzerland this summer.  The Energy Utilities Section and Toxic Tort and Environmental Law Sections are partnering on the following section program for the Annual Meeting:

“Walking the Tightrope: Balancing the Defense in a War on Multiple Fronts.”  The presentation analyzes aspects of the aftermath of the gas pipeline explosion in San Bruno, CA on September 9, 2010, which resulted in 8 deaths, multiple injuries and millions of dollars in property damage. Pacific Gas & Electric (PG&E) was forced to defend hundreds of civil lawsuits and claims, while at the same time being the subject of intense inquiries by several regulatory agencies at the state and federal level.  Federal criminal charges were brought against PG&E in the Northern District of California, which ultimately resulted in the company’s conviction on several counts. The presentation will explore the difficulties inherent in fighting multiple battles on multiple fronts, arising from the same set of circumstances, where each action in any context is likely to affect the defense in the others.  The speakers are: G. Bruce Parkerson of Plauche Maselli Parkerson, LLP, New Orleans, LA; J. Richard Caldwell, Jr. of Rumberger Kirk & Caldwell, Tampa, FL; and Michael  J. O’Connor, Associate General Manager and Chief Legal Executive Law & Human Resources, Salt River Project, Phoenix, AZ.

 

For Switzerland, please make you non-refundable hotel reservations ASAP and make sure your passport will not expire within 6 months of the meeting.

 

Kudos to our Section Leader, Beth A. Bauer, who won a defense verdict just before the Charleston meeting in the 4th talc case tried in the City of St. Louis Circuit Court.

 



BLOGS

 

OSHA Replaces 40-Year Old Permissible Exposure Limits On Beryllium

March 2017 - Just before the new administration was sworn in, OSHA took the opportunity to revise some seriously outdated exposure limits. On January 6, 2017, OSHA dramatically lowered its 40-year old permissible workplace exposure limit to beryllium. Beryllium is a strong, lightweight metal used in the aerospace, electronics, energy, telecommunication, medical and defense industries. However, it is highly toxic when beryllium-containing materials are processed in a way that releases airborne beryllium dust, fume, or mist into the workplace air that can be then inhaled by workers, potentially causing devastating lung diseases.
The new beryllium standards for general industry, construction and shipyards will require employers to take additional, practical measures to protect an estimated 62,000 workers from these serious risks. Recent scientific evidence shows that low-level exposures to beryllium can cause serious lung disease. The new rule revises previous beryllium permissible exposure limits, which were based on decades-old studies.

The final rule will reduce the eight-hour permissible exposure limit by ten times, from the previous level of 2.0 micrograms per cubic meter to 0.2 micrograms per cubic meter. Above that level, employers must take steps to reduce the airborne concentration of beryllium. The rule requires additional protections, including personal protective equipment, medical exams, other medical surveillance and training, as well. It also establishes a short-term exposure limit of 2.0 micrograms per cubic meter over a 15-minute sampling period.

OSHA estimates that - once in full effect - the rule will annually save the lives of 94 workers from beryllium-related diseases and prevent 46 new cases of beryllium-related disease. Workers in foundry and smelting operations, fabricating, machining, grinding beryllium metal and alloys, beryllium oxide ceramics manufacturing and dental lab work represent the majority of those at risk.

To give employers sufficient time to meet the requirements and put proper protections in place, the rule provides staggered compliance dates. Once the rule is effective, employers have one year to implement most of the standard's provisions. However, just this week, in accordance an Executive Order to freeze new regulations, OSHA bumped back the effective date of this regulation from February 1, 2017 to March 21, 2017 to give the Agency time to review and reconsider the new regulation. Only time will tell if OSHA will now allow the regulation to become effective, but based on the dangers posed by exposure to beryllium, and the input OSHA received from industry and labor, we would expect this particular updated regulation to stand scrutiny by the new administration. Employers will need to begin working toward compliance very soon.

For more information about these changes and how they will affect your business, please contact Paul Schumacher at (216) 685-1827 or pschumacher@dmclaw.com.

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