Cal Biz Lit

Suing The Unknown Defendant: How The Doe Device Works

    Here's what got this post started:  I'm a big fan of Beck and Hermann's Drug & Device Law Blog, and have had it on CBL's list of approved blogs for years.  Although they both practice in the world of big law, they write like -- dare I say it? -- real people.  I even enjoy it when they post about how wacky California is, although that's supposed to be my department.

    However.  In a post late last week, they were puzzled over an unpublished decision in a district court case in Los Angeles called Dorsett v. Sandoz, Inc.   Their puzzlement seemed to stem from confusion between principles of deferred accrual of the statute of limitations law and relation back of so-called "Doe allegations." Anybody left awake now?

    So let's see if we can either put the rest of you to sleep, or else straighten this out.  And CBL will use the opportunity to show how the statutes of limitations and California's fictitiously named defendant statute interact with each other.

    To non-lawyers, the concept of statute of limitations probably seems straightforward:  you have so many years to file a lawsuit, if you're on one side of the line you're in, on the other you're out.  Simple?  Ha!  First of all, we have tons of different statutes of limitations, ranging from ninety days for conversion of property left at a hotel to ten years for an action against a real estate developer for latent property defects.  The statute for personal injuries and wrongful death is most often two years, although there are some exceptions (the most commonly applied one being the one year statute for asbestos-related disease or death).      But that's the simple part.  More after the jump.

Component Parts In Product Liability: Now It's 2 - 1 Defense (And A Blow Against Junk Science, Too)

    Cal Biz Lit has been following the evolution of the Courts of Appeals' efforts to answer this question:  if a manufacturer's product is not itself defective, but becomes defective when used in conjunction with a third-party's defective products (e.g., the defendant's valves were made of steel, but are used with asbestos gaskets and packing made by somebody else), can the manufacturer be held liable for failure to warn of the dangers posed by the component it neither manufactured nor sold? 

    The score had been 2 - 1 for the defense (based on the decisions in Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, -- "no" --, O'Neil v. Crane Co. (September 21, 2009) ___Cal.App.4th___ (B208225) -- "yes" -- and Merrill v. Leslie Controls, Inc. (Reh Granted, so not citeable:  September 25, 2009) -- "no."  The the Court of Appeal granted reconsideration on Merrill, depublishing the decision and making it unciteable. 

    Well, the Court of Appeal is done with its reconsideration, and today it came back with exactly the same decision and exactly the same language as before, (with no mention of September's contrary decision from the same district in O'Neil) .  In the published part of the decision, the court rules that if you didn't manufacture or distribute the component, you have no duty to warn, and there's no failure to warn strict liability.

    So it's now 2-1 in favor of the defense on this issue.  And as readers of CBL know, every trial court in the the State can follow either Taylor and Merrill or O'Neill.  Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal. 2d 450.

    There is some other interesting language in the decision that I missed when it first came out in December.  Those in the toxic tort defense world are used to the junk scientist argument that when it comes to toxins, every molecule of exposure is dangerous, every hit is cumulative, and blah blah blah.  Well, on that subject, and in the published part of the decision, the Court of Appeal offers the following:

. . . to provide a basis for inferring that a product was a substantial factor in causing injury, a plaintiff must provide evidence of substantial exposure for a substantial period of time; minimal exposure is not sufficient . . . .

(Slip op. at p. 14.)

    I don't think I've seen quite this a definitive statement in any California case.  So much for the "one hit," "one fiber," "one molecule" sort of junk science nonsense.

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.

Dole Banana Workers' Contempt Hearing Set For This Friday

     Like practically every other California law blogger, I've put up a number of posts on the bizarre goings on in the Los Angeles Superior Court DBCP cases brought by supposed Nicaraguan banana plantation workers against Dole, many of which were dismissed by Judge Chaney last month for fraud.  You can see past posts here, here, here and here.  Judge Chaney's from-the-bench ruling dismissing cases for fraud is like nothing I've ever heard or read before, and thanks to The American Lawyer, the transcript is available here.

    Judge Chaney has apparently set a contempt hearing for Friday, May 8 at 3:00 p.m. p.d.t.  (I say apparently because the on-line docket is a little ambiguous).  Courtroom View Network will have live recorded on-line coverage available here.  Courtesy of CVN, I hope to have a link to a portion of the hearing available here over the weekend or Monday morning.

  Update:  CVN advises that due to technical problems, it won't have live coverage this afternoon.  It does expect to have recorded coverage at its site on Monday.

"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.

Not Hard To See That Coming (Dole DEHP Litigation Department)

    L.A. Superior Court Judge Victoria Chaney dismisses two cases by Nicaraguan banana workers against Dole because of attorney misconduct.  Per Bloomberg.com: 

“What has occurred here is not just a fraud perpetrated on this court, but a blatant extortion of the defendants,” Chaney said. “I cannot in good conscience allow this case to continue.”

    Further:

Chaney said she will refer the case to the appropriate state bar associations and to prosecutors. 

This Really Is Ridiculous

    Although I usually represent defendants in tort, consumer and business litigation,  CalBizLit.com is not a tort reform site.  CalBizLit believes in the civil courts and the jury system.  CalBizLit thinks that while there are occasional aberrant, and even shocking, results (which of course get all the headlines), more often than not, courts and juries get it right.

    However.  There are exceptions.  And today, CalBizLit discusses one of them.  It's an  exception that is indefensible, that clearly offended a Los Angeles trial judge, and that needs fixin' at the appellate level.

    More after the jump.

Dole Fraud Hearing Begins

    I've blogged here and here about the Dole DBCP cases in Los Angeles.  First, six Nicaraguan filed workers tagged the company for $3.2 million, claiming sterility from exposure to this nematocide while working in the fields.  Plaintiffs were awareded punitive damages, which the trial judge took away, and she reduced the compensatoris to $1.58 for good measure.  Then the trial judge got wind that many of the related cases might be invented and ordered a hearing, which started yesterday.

    The LA Times reports that Dole's attorney, in his opening statement, told the court that "witnesses feared being killed for testifying about the scheme," and described a "decades long" scheme to defraud companies.  Judge Chaney "said she was concerned for the safety of investigators and attorneys and feared obstruction of justice and interference with due process." 

    But here's the real tell: 

Attorneys for the plaintiffs who sought to sue Dole made only a brief opening statement. But one of the lawyers, Michael Axline, said he agreed with the Dole lawyer that "all parties were in a nightmare situation."

He expressed regrets for the actions of a onetime co-counsel in Nicaragua who is now accused of engineering the fraud.

Blogging From DRI's Product Liability Conference: Chemical And Toxic Torts

    I want to learn more about this, but if it works as advertised, this is  something pretty amazing.  Bruce Gillis, M.D., MPH, from The Cytokine Institute made a presentation yesterday afternoon.  The institute describes its business related to toxic torts this way: 

. . .a fast growing DNA- and genomic-based research and consulting organization that is reshaping and redefining the way the world perceives and manages the impacts and uncertainty associated with chemical and toxic exposures, as well as their effects on human health, the environment, and a company’s economics.

    What this means in the world of toxic torts:  they undertake challenge testing of a plaintiff or decedent's DNA, exposing the DNA to the chemicals alleged to have made him or her sick.  If the challenge comes back positive, it only means it could have caused the disease.  But if it comes back negative, there is no way. 

    So far, they've studied the genomic changes unique to lead exposures, and those unique to exposures to a variety of molds. Obviously, most lead exposures don't cause the neurological symptoms associated with lead, most mold exposures don't cause the associated respiratory symptoms, most benzene exposures don't cause leukemia, etc.  And The Cytokine Institute claims that it can use this challenge testing with DNA samples to determine whether a plaintiff is one of the few individuals who could have the illness or disease from the exposure, or in the vast majority of persons who could not.

The Future is Green – A Panel Discussion on the Emerging and Regulatory Landscape in the U.S. and the E.U.

    This is a panel, moderated by Thomas C. Regan of LeClairRyan in Newark, and with Christopher Bell of Sidley Austin LLP and Rod Freeman, of Lovells LLP in London.  It occurred to me  that no defense lawyer (including the publisher of CalBizLit) ever went broke raising dire alarms about litigation to come.  But I have some doubts about the extent to which the litigation threats  described by this panel are real.

    The panel began with a good summary of the current European regulatory structure for chemicals and other products.  First and foremost is the development and expansion of the precautionary principle – that when there is doubt about whether or not there is risk, the risk will be avoided.  This began in the environmental movement, but has now been extended to product regulation generally (e.g., General Product Safety Directive).

     Also, there has been a blurring of regulations to protect the environment with regulations to protect human health:  Restriction on Hazardous Substances in Electrical and Electronic Equipment (2006 – RoHS Directive) is expressly intended to protect both.

     And proposed changes to Europe's Energy Using Products (EUP) Directive  would extend  the CE marking regime to Eco-Design for energy-using products.  Products can’t be marketed in much of Europe without the CE mark, so the issue of green manufacturing becomes increasingly important.

      Meanwhiile, the Registration, Evaluation, Authorisation and Restriction of Chemicals regulation  (“REACH”) (also human safety and environmental considerations) has a very detailed set of requirements concerning public disclosure of safety data, liability for non-compliance and product recalls.

     Next, there was a discussion of American lawsuits on public nuisance theories, alleging that the emission of greenhouse gases causes a public nuisance.  The targets so far have been coal-fired power plants, oil and automobiles.  These cases, to date are at the motion stage.  There is one case in New York, one in San Francisco (although involving alleged damages to a village in Alaska).  One case in Federal Court in North Carolina has been successful at the trial court stage, involving emissions that took part in another case.

     The speaker, Chris Bell, posited the potential for design defect product liability cases. 

     EPA is poised to issue a Clean Air Act “endangerment finding” that greenhouse gases are pollutants that endanger public health or welfare.  There is also a clean air act amendment under discussion in the House with a citizen suit provision.  A potential plaintiff would be one who has suffered  “or reasonably expected to suffer a harm attributable, in whole or in part, to a violation or failure to act.”

     New claimed toxicological effects are being debated in the U.S. and  EU regulatory community before they hit the courtrooms:  endocrine disruption, adverse impacts at the genetic level, nuanced developmental effects.  By the time this gets to the courtroom, there will be a large peer-reviewed body of evidence, and an up-hill battle for the defense.

     California, in addition to Proposition 65, has been "bringing the EU to the state.  If it can’t be marketed in Europe, it can’t be marketed in California."  And California has “issued mandatory data call in to many carbon nanotube manufacturers and importers.”