Cal Biz Lit

I Can't Believe It's Not A Lawsuit

Here's another reason defendants love federal court.

Plaintiff files a putative class action in the Northern District of California (or else it's removed there -- I'm not sure which) against Unilever involving the butter substitute "I Can't Believe It's Not Butter."  She alleges violations of the Consumers Legal Remedies Act (Civil Code § 1750 et seq.), our old friend the Unfair Competition Law (Bus. & Prof. Code §17200 et seq.) and the False Advertising Law (Bus. & Prof. Code  §17500 et seq.). And what's the terrible wrongdoing she's trying to challenge?

Well, it seems that Unilever advertises and labels "ICBINB" as being "nutritious, healthy to consume, and better than butter and similar products" when it contains partially hydrogenated oil, which "is an artificial, man-made substance that has no nutritional value and is known to cause a number of health problems."

But Plaintiff runs into the Twombly and Iqbal buzz saws.  Judge James Ware restates her allegations as a "categorical syllogism" to demonstrate their implausibility:

For the representation "blend of nutritious oils" to be true, all constituent oils must be nutritious.  One of the constituent oils in the product [partially hydrogenated oil' is not nutritious.  Therefore, the product representation is false.

And the Court finds both the major premise (that all constituent oils must be nutritious in order for the blend to be nutritious) and the minor premise (that partially hydrogenated oil is not nutritious) to be "mere conclusions" lacking factual support.  So under the first prong of Iqbal (conclusions are disregarded) the allegations are implausible.

But then, just to finish putting nails in the case's coffin, Judge Ware proceeds with an "even if" analysis, slamming the complaint under the second Iqbal prong (do the non-conclusory statements state a plausible claims?).  And he concludes that even if the allegations are not "mere conclusions," they fail because they commit these fallacies:

• "petitio principii," (begging the question);
• "fallacy of composition" (reasoning from the properties of a part to those of the whole);  and
• "fallacy of division" (reasoning from the properties of the whole to those of the part).

Wow.  That's what a Stanford Law education gets you.  The decision is in Rosen v. Unilever United States, Inc., ___ F. Supp. 2nd ___, 2010 U.S. Dist. Lexis 43797 (May 3, 2010).

Record Sacramento Personal Injury Verdict

Today's post is not about a runaway jury in Los Angeles, San Francisco or Alameda Counties.  Nope, this report is from Sacramento, California's conservative state capitol, where the jurors know the value of a dollar. . . .

And where they, like jurors just about everywhere, really hate nursing homes.  Which is why, after they banged Horizon West Healthcare for $1.1 million in a wrongful death case involving a 79-year-old patient, they finished the job with a punitive damage award of $28 million.  A mere 25 to 1 ratio that obviously isn't going to stick.

Per the Sacramento Bee, the previous record personal injury verdict in that county was $22.5 million.

Hat tip to California Punitive Damages, An Exemplary Blog, always a good source for information on this subject.

Huge California Asbestos Verdict

Ah yes, there will always be Los Angeles juries.  And one of them came back last week with this verdict in a mesothelioma case against Certainteed Corporation, former manufacturer of pipe made with crocidolite, the most virulently dangerous asbestos fiber:

    Compensatory damages:  $8.8 million

    Punitive damages:             $200 million

Wow.  To paraphrase the quote often attributed to the late Everett Dirksen (who apparently never said it), "$200 million here, $200 million there, pretty soon you're talking real money."

Plaintiff Rhoda Evans' husband worked at the LA Department of Water and Power for twenty years cutting the asbestos pipe.  She laundered his clothing, and allegedly became ill from exposure to asbestos fibers and dust that came home with him. 

Mesothelioma personal injury cases usually involve plaintiffs with very short life expectancies.  Therefore, they are typically granted preference for trial, and this case was no exception.  Trial started less than seven months after the complaint was filed. 

Department of Water and Power was also at the trial, but had a sliding scale settlement agreement:    DWP would stay in the case, and if the jury found it 0 - 3% at fault, it would pay the plaintiff's $600,000, if 3.1% - 4% at fault, $800,000, and if 4.1% or more, $975,000.  As it turned out, the jury allocated 30% of the liability to DWP, but did not assess punitive damages against it (and of course, plaintiff did not seek punitives against DWP).  Because of California's complex rules for calculating set-offs from prior settlements (of which there were many), we can't tell yet whether DWP benefited from its settlement or not.

You can see a segment from plaintiff attorney Bill Levin's opening statement here, courtesy of Courtroom View Network.  California Punitive Damages also has coverage here.