Cal Biz Lit

Still More Chemicals Up For Proposition 65 Listing

    Now we all got a good chuckle over the Proposition 65 Cancer Identification Committee's recent action in listing marijuana smoke as a carcinogen (see:  Proposition 65 Now Protects Stoners.  As they say, however, "but seriously folks . . . ."

    The CIC voted on May 29 to prioritize 38 more chemicals for possible listing as carcinogens.  Nine were designated as high priority, and these include fluoride (yep, the stuff the dentists use, Crest puts in its toothpaste and many water districts add to the water), Perfluorooctanoic acid (PFOA) (a once-common surfactant used in Teflon, Goretex, Scotch Guard) and -- "towards the bottom of the 'High' category depending on exposure considerations" Diisononyl phthalate (DINP).

    Now, if past is prologue, it may be a long, long, time before the CIC gets to a chemical that is "towards the bottom of the 'High' category."  But if it ever does, look out.  The Proposition 65 plaintiff bar has been going after the plasticizer DEHP with a vengeance for the past eighteen months.  While DEHP is listed both as a Proposition 65 carcinogen and a reproductive toxin, there is likely no duty to provide a cancer warning for DEHP because of the trial court's decision in Baxter v. Denton (2004) 120 Cal.App.4th 333.  But until somebody proves that human exposures are below the MADL, there will be a duty to provide Proposition 65 warnings about that chemical's reproductive/developmental toxicity. 

    What does this have to do with DINP?  Well, for non-children's items, the substitute plasticizer of choice has been DINP (DINP is already banned on an interim basis pending further study by the recently enacted Consumer Product Safety Improvement Act).  If DINP makes it to the cancer list, the impact on manufacturers of inexpensive vinyl goods (think about just about any cheap soft plastic product you can imagine) is going to be huge.

    For more on Proposition 65 wackiness, you can always look at CalBizLit's collection of Proposition 65 posts here, or download my firm's White Paper on the subject here.

Cal Supremes Put Another Bullet in The Unfair Competition Law

    In a post here last May, I talked about the California Supreme Court's decision in In Re Tobacco II Cases (2009) 46 Cal.4th 298, suggesting that in that decision, the Supremes might have enlarged the field of potential litigation under California's notorious UCL, and I also gave a little history of how the UCL grew out of control, became a playground for uninjured bounty-hunters and eventually ran into a voter buzz-saw in 2006.

    Well, today the Supremes moved in the opposite direction, holding in Arias v. Superior Court (Angelos Dairy, RPI) (June 29, 2009) ___ Cal.4th ___ (S155965) and Amalgamated Transit Union, Local 1756, AFL-CIO et al. v. Superior Court (First Transit, Inc., et al., RPI) (June 29, 2009) ___Cal.4th___(S151615) that a UCL plaintiff who seeks to represent the interests of others must bring suit as a class action and meet class certification requirements.

Proposition 65 Now Protects Stoners

    Dude.  Two and one half years of CalBizLit, and finally, our first marijuana story.   I go away for a three day weekend and what happens?  California's Cancer Identification Committee lists marijuana smoke as a carcinogen.  Twelve months from now, look to see the Proposition 65 safe harbor warning on those baggies.

    The San Jose Mercury News quotes NORML's Allen St. Pierre:  "This will be a vexing series of conversations and negotiations."  Ya think?  Per the Merc, "St. Pierre believes it may accelerate what he calls the "pharmaceuticalization" of the drug: marijuana pills, arm patches, under-tongue sprays and suppositories," as well as vaporizors. 

    I love California, I really do.  But this is the second post in a week that feels like "Through the Looking Glass."

More on Removal -- Not Always Protection Against Big, Big Verdicts

   

I blogged last week on whether removal to Federal court was the best idea for defendants in product liability cases, the short version being, generally, yes.

    But it isn't a panacea.   Pierson v. Ford Motor Co., 3:06-cv-06503-PJH was a crash-worthiness case brought by bay area indie musician Dax Pierson, who was rendered a quadriplegic in a 2005 roll-over accident.  Ford dutifully removed the case.  The jury dutifully rendered its verdict against Ford last month for $18,349,391.

Well That Sure Didn't Take Long: OEHHA Adding 30 Chemicals To Proposition 65 List

    CalBizLit blogged here and here about the suit by Sierra Club and others to force expansion of the Proposition 65 list of carcinogens and reproductive / developmental toxicants.  As discussed, the Alameda County Superior Court ruled in April and May that Proposition 65 required the State to list all of the chemicals referred to by Labor Code sections 6382(b)(1) and 6382(d), including all reproductive / developmental toxicants for which threshhold limit values had been set by the American Conference of Governmental Industrial Hygienists.

    Now the lead agency for Proposition 65, California's Office of Environmental Health Hazard Assessment ("OEHHA") had issued notice that it intends to add 19 chemicals as reproductive or develomental toxicants (although three to be added are already there as reproductive toxicants and now being added as developmental, or vice verse) and 11 chemicals as carcinogens. 

    There's a comment period running until July 13.  But good luck with that.  As OEHHA notes in bold font, it won't look at scientific evidence:

Because these are ministerial listings, comments should be limited to the question whether IARC or NTP [or ACGIH in the case of the reproductive/developmental list] have identified the specific chemical or substance as a known or potential human or animal carcinogen [or developmental/reproductive risk].  Under this listing mechanism, OEHHA cannot consider scientific arguments concerning the weight or quality of the evidence and will not respond to such comments if they are submitted.

    This is even more "through the looking glass" than is usual with Proposition 65.

More Misuse of Discrimination Laws, Major League Baseball Division

    Last November, CalBizLit reported here on an unreported appellate decision favoring the Los Angeles Angels involving Mothers Day mom's only give-aways.  Short version:  Angels give tote bags to moms on Mothers Day, lawyer with too much time on his hands sues for discrimination, Angels decide to fight the case, win at trial court level, Court of Appeal tells plaintiff to go pound sand.  Good. Correct outcome.  Good for the Angels for fighting it.

    How disappointing to see my home team, the Oakland A's not only get swept by the Giants over this past  weekend but apparently capitulate in the face of a similar suit:  One Alfred G. Rava, an attorney from L.A., sues the A's over their egregious wrongdoing in depriving men of floppy plaid sunhats given away on Mothers Day, 2004.  Wall Street Journal and ESPN report that the A's have settled for $500K+ -- obviously small potatoes in the world of both class litigation and Major League Baseball, but still.  And Athletics Nation has the info for potential class members here.  Surprise, surprise:  it's a coupon settlement with gift certificates to Macys for class members and $260,000 in attorneys' fees.

    Pathetic.

Removal In Product Liability Cases -- Always A Good Idea?

    Like about 42 kajillion other people, I'm a member of Linked-In.  I'm also a member of a number of groups, including DRI and several groups dedicated to product liability issues.

    I'd just written a post on the "common wisdom" when it comes to arbitration -- the common wisdom being, always good for defendants.  I then came across this discussion, started by attorney Jonathan Michaud from Massachusetts. The question was:

"Do you agree with the conventional wisdom that removal to Federal court, based on diversity jurisdiction, is beneficial to a products liability defendant sued in state court on state law claims?"

    I think many defense attorneys would say that the answer is either "yes" or "hell yes."  And this time, I was of no mind to be a contrarian.  My only reservations came from a natural inclination to avoid absolutes;

"My answer to this question is "usually, but not always." In California, where I practice, there are three considerations: Daubert, bench and unanimous jury. California doesn't follow Daubert. In fact, it barely follows Frye. So in an expert case where you hope expert qualifications to be a significant issue, it's a no-brainer. California state 12 person juries decide by at least 9 - 3. Federal juries of 6 have to be unanimous. And that unanimity requirement probably suppresses damage awards.

"The one real variable is the bench. Most of us would take the average federal court judge over the average state court judge 10 cases out of 10. But that's not always what you are comparing. Most districts in California have pretty strong federal benches, but there are some judges nobody on the defense is going to want, and unlike in state court, there is no remedy for getting the judge who hates you, your client and your case. An increasing number of our state courts assign us our judge from the start, so we can make a comparison. And the final judge question is this: is this a case the judge will think belongs in Federal court? Defendants who remove $150,000 property damage cases -- technically removeable, but not by much -- tend to sometimes get a rather chilly reception from the federal courts.

"So like most strategic decisions in the practice of law, there is no blanket rule. "

Arbitration: Maybe The Common Wisdom Isn't Always So Wise

       Here are some elements of the "common wisdom" about arbitration:

• Arbitration is good for defendants, bad for plaintiffs;
• This is particularly so in employment cases, where arbitration removes a case's "high-end" (i.e., "runaway") risk;
• It's better for defendants to have retired judges as arbitrators, particularly judges retired from conservative venues;
• Defendants in disputes with arbitration agreements should move to stay the civil case and compel arbitration.

    Now, here's the thing about the common wisdom:  sometimes it isn't so much.  Take, for example, the case of Paul Thomas Chester v. Freedom Communications Incorporated, et al., Los Angeles Superior Court Action No. BC353567.  Case looks to be a fairly high-powered employment dispute.  According to the Los Angeles Superior Court web site, one or more of the defendants moved to stay the case and compel arbitration.  Off to arbitration it went, before Judge William McDonald (Ret.) from Orange County Superior Court.  Judge McDonald, a former business lawyer, sat in one of the most conservative counties in the State of California. 

    Then the wheels started to fall off.  The one individual defendant began representing himself and the remaining corporate defendants.  The matter proceeded to arbitration by default.  And Judge McDonald awarded $3.9 billion -- yes, that's $3.9 billion dollars in damages, attorneys' fees, costs, penalties and interest, including $2,926,276,674.27 in punitive damages. 

    And the trial court judge in Los Angeles Superior Court confirmed the award and entered judgment on May 28, 2009.

Hat tip to California Punitive Damages an Exemplary Blog
and Settle It Now.

More About The Smelly Bentley: Court of Appeal Finds Trial Court Was Required to Impose Terminating Sanction For Discovery Abuses

    Earlier today, I posted about the Court of Appeals' decision in Doppes v. Bentley Motors, Inc. (June 8, 2009) ___Cal.App.4th___ (GO39922),
There, the Court held that the trial court had jurisdiction to award 7% pre-judgment interest in an action under California's Song-Beverly Consumer Warranty Act, California Civil Code section 1790 and following.

    But when it issued this decision, the Court of Appeal also issued a decision in Doppes v. Bentley Motors, Inc. (June 8, 2009) ___Cal.App.4th___ (G037834).  In this case, the Court of Appeal took the remarkable step of reversing a judgment in favor of the plaintiff because the trial court judge's discovery sanction against the defendant had not been sufficiently severe.  

    More after the jump.

Breaking News: Pre-trial Interest Awardable for Smelly Bentley Automobile

    As CalBizLit has discussed previously, consumer warranties in California are governed by the Song-Beverly Consumer Warranty Act, California Civil Code section 1790 and following.  The act requires manufacturers, or their California designees, to correct consumer product nonconformities within a reasonable number of attempts.

    More after the break.