Cal Biz Lit

Warning! This Cell Phone May Cause . . . Something. . . .Or Maybe Not . . .

CBL loves San Francisco.  He's had his practice here for decades.  It doesn't quite have the cool of Oakland (where CBL has long resided), but it's beautiful, the weather's fabulous, the people are great, the food is sensational, there's more fun stuff to do than any three people could squeeze into their leisure time, etc.  And if the city government is a little dysfunctional -- well, actually a lot dysfunctional -- so it goes.

Like almost every city in the United States right now, and like absolutely every city in California (and California itself), San Francisco is in deep financial trouble.  For the fiscal year starting July 1, it faces a $483 million deficit,which is more than 13% of its entire budget, and Mayor Gavin Newsom is proposing measures ranging from laying off public employees to paring back public transportation to washing city cars less frequently.

Well, desperate times call for desperate measures, and San Francisco's Board of Supervisors knows how to grab the bull by the horns.  Last Tuesday, it took aggressive action on one of San Francisco's most pressing problems:  radiation from cellular phones.  That's right:  one month after World Health Organization's International Agency for Research on Cancer released its huge international study finding no evidence of an increased incidence of brain tumors related to cell phone use, which followed similar findings in the American Journal of Epidemiology and the Journal of the National Cancer Institute, San Francisco's Supervisors enacted legislation requiring the city's cell phone retailers to disclose the amount of radiation emitted by cell phones sold here.  You can see the entire ordinance here.

The response of the cell phone industry was predictable:

While we have enjoyed bringing our three day fall show to San Francisco five times in the last seven years, which has meant we've brought more than 68,000 exhibitors and attendees and had an economic impact of almost $80 million to the Bay Area economy, the Board of Supervisors' action has led us to decide to relocate our show. We are disappointed to announce that the 2010 CTIA Enterprise and Applications show in October will be the last one we have in San Francisco for the foreseeable future.  We have already been contacted by several other cities that are eager to work with us and understand the tremendous benefits that wireless technology and our show can provide their area.

Well, who needs all that economic impact anyway, right?  Hat tip to arstechnica.

Court of Appeals Affirms Exclusion of Junk Science In Mold Case

    CalBizLit has lamented on many occasions the facts that (a) California is not a Daubert jurisdiction, and (b) even our version of the Frye test (known in these parts as the Kelly test) has limited application, being available only to exclude new tests.

    But once in a great while, we see a trial court exclude junk science from the courtroom anyway, and we see a Court of Appeal affirm the trial court for acting as as a gatekeeper.  Today, it's Los Angeles Superior Court Judge Warren Ettinger and Division Four of the Second Appellate District who give CalBizLit that warm and fuzzy feeling he gets when pseudoscientific nonsense gets excluded.

    Our case today is Dee v. PCS Property Management, Inc. (2009) ___Cal.App.4th___ (B18600).  It's a mold case.  And as a special bonus, it's the second reported decision where the courts gave thumbs down to Dr. Gary J. Ordog, expert witness in mold exposure cases.

More after the jump.

"To A Reasonable Medical Certainty" -- Legal Standard, Or Urban Legend?

    CalBizLit has been to tons of medical and other expert depositions where someone, usually a co-defendant counsel, has asked a series of questions along the lines of "Now Doctor, can you say to a reasonable medical certainty that . . . " [fill in blank:  this accident resulted in the need for future surgery, exposure to these chemicals caused this disease, there would have been a better outcome if the physician had met the standard of care, whatever].  In aweak moments, CalBizLit has even caught himself asking the same questions.

    But CalBizLit knows what the California rule is in tort cases:  In a case involving complex issues of medical causation, the plaintiff must show to a reasonable medical probability that the substance, the product, the negligence, the whatever, caused the present or future harm for which the plaintiff wants to be paid money.  That's Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953; Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, Whitely v. Phillip Morris, Inc. (2004) 117 Cal.App.4th 635, Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71 and a bunch of other cases.

    More after the jump.

More Charlie the Tuna: Blog Commentary On Experts Hired By Judges

    I posted here about three weeks ago on the Court of Appeals decision in  People ex rel. Edmund G. Brown Jr. v. Tri-Union Seafoods, LLC (March 11, 2009) ___Cal.App.4th___ (A116792), particularly discussing the court's wistful longing for replacement of today's hired gun litigation experts system with neutral experts at trial, selected by the judge. 

    Drug and Device Law picked up the same subject here, and Beck and Hermann have some more thoughts on the subject.

    But wish for it all you want.  Ain't gonna' happen.

Charlie the Tuna 1, State of California 0

    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.

The California Environmental Contaminant Biomonitoring Program and Medical Monitoring

     CalBizLit seems to be citing Beck and Hermann's Drug and Device Law Blawg an awful lot lately.  Not that they need it -- I think they have approximately 100 bazillion page views to date, compared with CalBizLit's 57. 

    But here goes again, because there's an interesting guest post there today by J.C. McElveen, who writes about the California Environmental Contaminant Biomonitoring Program, Cal. Health Safety Code § 105440-105459 (2008).  As McElveen accurately summarizes:

That program “shall utilize biological specimens, as appropriate, to identify designated chemicals that are present in the bodies of Californians.” Participation in the program is completely voluntary, but, once a person agrees to be in the program, he or she will be evaluated for the presence of “designated chemicals” (defined as “chemicals known to, or strongly suspected of, adversely impacting human health or development. . . .”). The individuals will be given the results of their tests (presumably blood, urine or saliva), if they ask, and “when either physiological or chemical data obtained from a participant indicate a significant known health risk (undefined by the statute), program staff experienced in communicating biomonitoring results shall consult with the individual and recommend follow-up steps, as appropriate.”

    Yes, our state is still looking at a $24 billion budget gap over the next two years, our schools are ranked 46th in the nation in per student spending, but at least I can volunteer to have my saliva and blood tested for chemicals.

    McElveen suggests that the end game here is litigation over exposure to measured chemicals, and I can't rule that out.  Our Supreme Court, in Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, authorized recovery for medical monitoring, at least in some instances, even in the absence of physical injury.  And so, when a chemical exposure / toxic tort plaintiff seeks damages for the future cost of medical monitoring, the jury is instructed as follows:

To recover damages for [the cost of future medical monitoring, the plaintiff] must prove both of the following:

            1. That as a result of the toxic exposure, the need for future monitoring is reasonably certain; and

            2. That the monitoring is reasonable.

            In deciding these issues, you should consider the following:

                        (a)  The significance and extent of [the plaintiff]'s exposure to the chemical(s);

                        (b)  The toxicity of the chemical(s);

                        (c)  The relative increase in [the plaintiff]'s chance of getting the disease as a result of the exposure, when compared to:

                                    (i)   [his/her] chances of developing the disease had [he/ she] not been exposed, and

                                    (ii)   the chances that members of the public at large will develop the disease;

                        (d)  The seriousness of the disease that may result from the exposure; [and]

                        (e)  The medical benefit of early detection and diagnosis; [and]

                        (f)  [Insert other relevant factor(s).]

[Defendant]  is not required to pay for medical monitoring that is required for reasons other than [plaintiff]'s exposure to toxic chemicals.

[Defendant]  is only required to pay for additional or different monitoring that is required because of the toxic exposure.]

CACI 3903B.

   

Pro-Defense Lockheed Gatekeeper Decision -- Gone for Good

I blogged a couple of times (here and here) and in a white paper about the Court of Appeals' decision in Lockheed Litigation Cases, where, despite the fact that Daubert has never been adopted in this state, the Court suggested that the courts might have a meaningful gate-keeper role when it came to the admissibility of expert testimony.   The Cal Supremes granted review (which takes the decision off the books, making it unciteable) then dismissed the review because there were too many justices disqualifying themselves from the case.

The defendants, Exxonmobile and Union Oil (now part of Chevron), asked the Supreme Court to at least reinstate the published opinion.  "Nope" said the Court yesterday.  So for the defendants, it's still a win.  For all other defendants facing junk scientists, the case has no precedential value.  More at Legal Pad here.

Off-Topic Post

It seems like almost all my off-topic posts are about music, and sometimes I think I should change the "About" section of the blog to indicate the subjects are California litigation, jazz and blues. 

Anyway, Ike Turner passed this week.  By most accounts -- particularly his ex-wife Tina's -- a genuinely bad guy for much of his life, he still played an awfully important role in the birth of Rock 'n Roll.  I saw the Ike & Tina Review once, in 1970, and there was nothing like it for raw energy, sex and soul music.  Ike may have been the Svengali, but as a reminder of who the talent was, here's a TNT clip from the mid-1960's:

Why Corporate Defendants Like the Federal Courts

I blogged not long ago (and there's also a discussion in my product liability white paper) on Lockheed Litigation Cases, a Court of Appeal decision upholding a California trial judge for performing something that looked a lot like Daubert gate-keeping when it came to renowned junk scientist Daniel Teitlebaum.  The case went to the Cal Supreme Court, then disappeared from the books when the majority of the Supremes disqualified themselves.

In a part of the case I didn't discuss, the trial court had held that epidemiology (as relevant here, the study of occurrence or non-occurrence of disease or its absence in persons who are or are not exposed to alleged toxins) was only admissible to prove causation if the "relative risk" exceeded 2.0 -- i.e., when the occurrence of the disease in the exposed persons was at least twice that in the unexposed.  The Court of Appeal held that was going too far, and that the 2.0 standard was not required.

Monday, Judge Charles Breyer of California's Federal Northern District (and brother of U.S. Supreme Court Justice Breyer) issued a Daubert ruling in the Pfizer Celebrex litigation.  The decision followed three days of hearings including examination and cross-examination of proposed expert witnesses.   

In dictum (but dictum he's pretty clearly going to follow in the future) Judge Breyer stated that epidemiological evidence cannot be used to prove "specific causation" -- whether the exposure caused the disease in a specific individual -- when the relative risk is less than 2.0.  There is an excellent discussion of statistical significance and confidence intervals, with the Judge excluding evidence which epidemiologists and statisticians would hold to be not statistically significant.

There's more on the ruling at the Wall Street Journal Law Blog, Legal Pad, and Drug and Device Law.

This is the sort of process I really wish we had in California -- it gives both sides a fair trial while substantially increasing the likelihood that case outcomes will be based on real science.

Cal Supremes Dismiss Potential Major Case Re: Science and the Law

In early 2005, the California's Court of Appeal for the Second District issued a fascinating (and highly favorable for defendants) decision in the toxic tort, solvent-exposure case Lockheed Litigation Cases, B166347.  In a case involving the admissibility of the opinions of the notorious and well-traveled  Dr. Daniel Teitelbaum , the Court of Appeal held that California Evidence Code section 801(b) allowed the trial court to act as a gate-keeper -- much as in Federal Court under Daubert --and excluded Teitelbaum's opinions because they were based on epidemiological studies of multiple solvent exposures, with no indication that there was a risk posed by the specific solvents involved in this case.  The Court also found no error in excluding expert opinion based on case reports, animal studies and toxic registries.  In short, the decision answered all kinds of frequently encountered toxic tort evidentiary questions, moved California a bit closer to Daubert, and contained much anti-junk science ammunition for defendants in these cases.

The California Supremes granted review a couple of months later, and under California law, this made the decision unciteable, and not authority for anything.  But it did look as though we would see some really useful evidentiary authority from the Supreme Court once the case was briefed and argued at that level.

No such luck.  Last week, the Supremes dismissed the review under very unusual circumstances:  that a majority of the members of the seven-justice court had been required to recuse themselves.  This despite the fact that rules of court (and common practice) provide for appointment of "pro tem' justices when members are disqualified, and on at least two past instances -- none recently -- all seven justices have been recused and replaced by pro tems.

So the current situation is that the Lockheed decision has no effect on anyone but the immediate parties, and the law on admissibility of expert testimony remains as wide-open as ever. 

(N.B.:  For more on expert testimony in a world without Daubert, see the Adams Nye white paper on product liability law starting at page 9, or my post here.)

(More N.B.:  The link to Dr. Teitelbaum above is to news about another California case where he testified, a case where the plaintiffs -- his clients -- lost.)

No Damage Suit Against Auto Makers For Causing Global Warming

Back when I was in law school in the 1970's, there was a fella named Jerry Brown, got himself elected governor of California.  He was disparagingly referred to as “Governor Moonbeam.”  He eschewed the perks of office, living in a small, barely furnished apartment in downtown Sacramento. Instead of riding in a limo or town car, he rode in a used Pontiac Satellite   (it turned out he had identical used cars in different parts of the state).  A lot of business interests felt he wrecked the state’s courts during that era, and although I’m not prepared to agree, there were certainly a good many off-the wall appellate decisions during that era (my favorite:  Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49 (Findlaw subscr. req'd), finding a legal duty on the part of the telephone company not to place a pay phone booth where a drunk driver might jump the curb and run into it).

Anyway, Jerry had a notoriously short attention span.  He ran for president three times times, chaired the California Democratic party, ran for the senate, ran kind of a zen-like think tank, operated a public radio show, then ran for and served two terms as Mayor of Oakland.  Most recently, he ran for and was elected Attorney General, an office he’s held since the first of this year.

As Attorney General, Jerry inherited a case (brought by his predecessor, Bill Lockyer) against the big six auto makers, contending that they were guilty of nuisance and owed the State of California bazillions in damages for causing global warming.  And if that weren’t enough of a reach, instead of filing it in San Francisco, Alameda or Los Angeles state courts, where there are some judges who might go for this sort of thing, Lockyer filed the case, and Jerry prosecuted it, in the Federal Northern District.  To try to create jurisdiction, they cooked up the theory that there was a federal tort cause of action for common law nuisance.  I haven’t yet checked to see who’s the lucky deputy AG who got saddled with that wonderful argument.

More after the jump.