In January, CalBizLit posted about then scheduled argument in People v. Tri-Union Seafoods, LLC, the Proposition 65 mercury in canned tuna case. I mentioned then that my tea-leaf reading indicated, from the Court of Appeal's pre-argument letter to the parties, that
things weren't going to go well for the Attorney General. The decision is out today, and for once, CalBizLit's crystal ball was functioning properly: the tuna industry won. But there are some other features to the decision that are pretty interesting for anyone litigating Proposition 65 matters, and, for that matter, anybody litigating science-based cases of any kind.
More after the jump.
First, the holding of the case, People ex rel. Edmund G. Brown Jr. v. Tri-Union Seafoods, LLC (March 11, 2009) ___Cal.App.4th___ (A116792): Methylmercury is a Proposition 65 listed reproductive toxicant, found in trace amounts in canned tuna. Proposition 65 requires a clear and reasonable warning prior to exposures to listed chemicals unless the defendant company can prove the application of an exception. The Attorney General sued the canned tuna industry for failure to warn of exposures to methylmercury.
The industry defended on the basis of three potential exceptions: that FDA regulations pre-empted Proposition 65 as to this issue; that exposures were below the MADL (maximum average daily allowance); and that the presence of the chemical in tuna was naturally occurring. Under the applicable regulations, Cal.Code Regs., tit. 27, sec. 25501, subd. (a), human consumption of food is not an exposure if a defendant can show that the targeted chemical is naturally occurring in food.
After twenty-four days of trial, San Francisco Superior Court Judge Robert Dondero ruled in favor of the tuna industry on all three grounds. The Attorney General appealed, and as the Court of Appeal pointed out, he had to show reversible error on all three grounds in order to get a reversal.
Reviewing the expert testimony, the Court of Appeal found that there was substantial evidence to support the finding that the mercury in canned tuna was naturally occurring. There had been evidence of two studies on the subject, and while there were certainly grounds for attacking both studies, there was also a basis for believing them, so the trial judge was justified in doing so. Since this was the weakest link in the Attorney General's attack, and affirmance on this ground was sufficient to affirm the trial court's ruling that no warning was required, the Court felt no need to look further at the preemption or MADL issues.
Now, it gets interesting. Because the Court of Appeal decided to take this opportunity to express some general beliefs on the subject of scientific evidence and litigation, essentially turning up its nose at the process of experts for hire:
It bears contemplating, however, whether the truth about complex, threshold scientific issues encompassed within Proposition 65—such as whether methylmercury in fish is naturally occurring—is best derived by application of the substantial evidence rule to the testimony and opinions of dueling experts serving under partisan commitments. The public has a significant health and welfare interest in the accurate determination of these issues based on the whole scientific truth of the matter—or as near to the whole truth as is possible. More than a century ago our Supreme Court proposed that rather than relying on expert witnesses called by the parties, the trial courts should summon a disinterested body or board of experts to give their opinion and reasons therefore to the court and jury regardless of the consequences to either litigant. (Estate of Dolbeer (1906) 149 Cal. 227, 243.) Our Evidence Code now provides for a similar remedy, authorizing courts to appoint experts to investigate and render a report on the matter in question, subject to cross-examination by the parties. (Evid. Code, §§ 730, 732.) Resort to such a procedure could reduce the risk of a decision based on anything but the most valid scientific investigation and assessment.
The justices on this decision were all experienced and well-respected trial judges before they went to the Court of Appeals. I wonder how many times they appointed their own experts under Evid. Code sec. 730? In all the years I've handled product liability, Proposition 65 and toxic tort cases, I've never had it happen. And looking at the annotations for this section of the Evidence Code, I didn't see a single Proposition 65, product liability or toxic tort case where this procedure was followed. Indeed, nearly all of the cases were criminal, eminent domain or parental custody cases.
And the Court had some even more interesting ruminations, suggesting that, while it was deciding this case for now, the tuna industry could easily look forward to more litigation in the future:
And, notwithstanding our affirmance today that substantial evidence supports the trial court finding that methylmercury in tuna is naturally occurring, there are potential scenarios that could possibly lead to a renewed Proposition 65 claim against the Tuna Companies or similar companies that would survive res judicata and collateral estoppel challenges. For example, the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency designated by the Governor to implement the provisions of Proposition 65, could amend the regulations to except the presence of methylmercury in canned tuna from the naturally occurring rules. (Regs., tit. 27, § 25102, subd. (o); see § 25249.12, subd. (a).) Similarly, the determination of whether methylmercury in tuna is naturally occurring could be lodged with the OEHHA and its scientific advisors, rather than left to dueling expert witnesses in a trial court setting. Moreover, we must recognize that scientific research on issues such as the source of methylmercury in the ocean is ongoing, and a trial court determination on whether and/or to what extent methylmercury in tuna is naturally occurring is based on the state of the scientific inquiry at a given point in time. Therefore, unlike findings based on an historical occurrence such as facts giving rise to a tort or a crime, findings based on scientific inquiry and research can easily become dated and outmoded as science develops and new research explains the phenomena in question more thoroughly and completely. “ „Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.‟ ” (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 590, construing the term “ „scientific . . . knowledge‟ ” as used in rule 702 of the Federal Rules of Evidence governing admissibility of expert testimony.) The high court captured succinctly the essential difference: “[T]here are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.” (Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, at pp. 596-597.)
So, it isn't over 'til it's over. And according to the Court of Appeal, it may not ever be over.
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