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Environmental Toxic Injury Claims Bringing or Defending Against Environmental Personal Injury Actions
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THURSDAY, FEBRUARY 16, 2012
Presenting a live 90-minute webinar with interactive Q&A
Jennifer Quinn-Barabanov, Partner, Steptoe & Johnson, Washington, D.C.
Randall J. Butterfield, Counsel, King and Spalding, Atlanta
Julia LeMense, Associate, Weitz & Luxenberg, New York
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An Overview
Theories of Liability
Attacking or Establishing Common Defenses
Typical Damages
Class Action and Mass Tort Issues and Trends
6
Theories of Liability for Environmental Toxic Tort Exposure
Claims 8
Common Law Public Nuisance Private Nuisance Trespass Negligence Negligence per se Strict Liability Battery Medical Monitoring
Statutory Clean Air Act Safe Drinking Water Act Resource Conservation and
Recovery Act Emergency Planning and
Community Right to Know State Hazardous Waste and
Environmental Laws Clean Water Act
C A U S A T I O N
•P E R S O N A L I N J U R Y • Dose • Exposure • Daubert issues
•P R O P E R T Y D A M A G E
• Fate and transport of pollution • Identification of particular contaminants
9
Attacking or Establishing Common Defenses
Causation - Overview
General Causation “exists when a substance is capable of causing a disease.”
Rstmt. 3rd Torts § 28 cmt. c(3) (2010)
Specific causation “exists when exposure to an agent caused a particular
plaintiff’s disease.” Rstmt. 3rd Torts § 28 cmt. c(4) (2010)
11
Causation – Personal Injury Claims
General Causation Epidemiology Toxicology
Specific Causation Exposure Assessment Differential diagnosis of medical condition Rule out other reasonable potential causes
• Alternative sources of exposure (e.g., occupational) • Individual risk factors (e.g., smoking, obesity, family
history)
12
Causation – Recent Developments
Reference Manual on Scientific Evidence (3rd ed.) (“RMSE”) Released online Fall 2011 3rd edition prepared in conjunction with the National
Research Council/National Academies of Sciences • Peer reviewed for 1st time
Courts have relied heavily on prior editions and are likely to continue to do so
13
General Causation - Epidemiology
Studies “the incidence, distribution, and etiology of disease in human populations.” “Epidemiology has its limits at the point where an inference
is made that the relationship between an agent and a disease is causal (general causation) and where the magnitude of excess risk attributed to the agent has been determined . . .” RMSE at 609.
Does not extent to specific causation.
15
General Causation - Epidemiology
Role of statistical significance Is expert testimony that relies upon studies that do not
find statistically significant results admissible to prove general causation? Cases are conflicting: • Statistical significance required:
o Brock v. Merrell Dow Pharmaceuticals, 874 F.2d 307, 313 (5th Cir. 1989), amended, 884 F.2d 167 (5th Cir.), cert. denied, 494 U.S. 1046 (1990).
o Good v. Flor Daniel Corp., 222 F. Supp. 2d 1236, 1243 (E.D. Wash. 2002) o Miller v. Pfizer, Inc., 196 F. Supp. 2d 1062, 1080 (D. Kan. 2002), aff’d., 356
F.3d 1356 (10th Cir. 2004)
• Statistical significance not required: o Milward v. Acuity Products Group, Inc., 639 F.3d 11 (1st Cir. 2011), cert.
denied, --- S. Ct. ----, 2012 WL 33303 (U.S. Jan 09, 2012) o Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1357 (6th Cir. 1992),
cert. denied, 506 U.S. 826 (1992) o In Re Viagra Prods. Liab. Litig., 572 F. Supp. 2d 1071 (D. Minn. 2008) o In Re Ephedra Prods. Liab. Litig., 393 F. Supp. 2d 181, 186 (S.D.N.Y. 2005)
16
General Causation - Epidemiology
Is expert testimony that relies upon studies that do not find statistically significant results admissible to prove general causation? Plaintiffs may cite recent U.S. Supreme Court decision in
SEC disclosure context to support argument that statistical significance is not necessary. • Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011)
(rejecting defendant’s position that adverse event reports about drug were not material because they were not statistically significant, citing cases that permitted expert testimony on general causation in the absence of statistically significant results)
17
General Causation – Epidemiology/Toxicology
Is epidemiology necessary to establish general causation in a personal injury case? Can expert testimony re: general causation
be based on animal data alone?
18
General Causation – Epidemiology/Toxicology Can expert testimony re: general causation be based on animal
data alone? Cases are conflicting:
• Critical of reliance on animal data: o Brock v. Merrell Dow Pharmaceuticals, 874 F.2d 307, 313 (5th Cir. 1989),
amended, 884 F.2d 167 (5th Cir.), cert. denied, 494 U.S. 1046 (1990) o Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 830 (D.C. Cir. 1988),
cert. denied, 493 U.S. 882 (1989) o Bell v. Swift Adhesives, 804 F. Supp. 1577, 1579-80 (S.D. Ga. 1992)
• Accepting reliance on animal data: o In re Heparin Prods. Liab. Litig., 2011 WL 2971918 (N.D. Ohio July 21,
2011) (animal toxicology in conjunction with other non-epidemiologic evidence can be sufficient to prove causation)
o Ruff v. Ensign-Bickford Indus., Inc., 168 F. Supp. 2d 1271, 1281 (D. Utah 2011)
o Metabolife Inc. v. Wornick, 264 F.3d 832, 842 (9th Cir. 2001) (lower court erred in per se dismissing animal studies)
19
General Causation - Toxicology
Can expert testimony re general causation be based on animal data alone? “One explanation for these conflicting lines of cases may be that when
there is a substantial body of epidemiologic evidence that addresses the causal issue, animal toxicology has much less probative value . . . Where epidemiologic evidence is not available, animal toxicology may be thought to play a more prominent role in resolving a causal dispute.” Green et al., Reference Guide on Toxicology, RMSE at 565 n.48.
“Opinions based on animal studies have been rejected because of reservations about extrapolating from animals to humans or because the plaintiff’s extrapolated dose was lower than the animals – which is invariably the case because one would have to study unmanageable, gigantic numbers of animals to see results if animals were not given high doses. The field of toxicology, which, unlike epidemiology, is an experimental science, is rapidly evolving, and prior case law regarding such studies may not take into account important new developments.” Berger, RMSE at 23.
20
Specific Causation – Exposure Assessment
Completely new “Exposure Science” section of RMSE
Study of “how people can come into contact” with chemicals in environmental media
Necessary to determine whether dose/duration was sufficient to cause disease
Not yet a distinct discipline • Possible exception in occupational setting – certified
industrial hygienist Does not typically extend to testimony re: health
consequences of exposure unless expert is also an epidemiologist or toxicologist
22
Specific Causation – Exposure Assessment
Dose (magnitude of exposure) Exposure dose: dose entering the body (inhalation,
ingestion, dermal, etc.) Target site doses: amount reaching blood/organs
• Pharmocokinetics – exposure science inside body; what is dose received where it may/can do most harm
Types of exposure assessment Current – based on sampling Retrospective – attempt to reconstruct historical exposure;
typically involve more assumptions and less certainty Future Often involves modeling
23
Specific Causation – Exposure Assessment
Process Describe exposure by identifying:
• Pathways – sources of exposure in environment
• Exposure routes into human body Quantify exposure
24
Specific Causation – Exposure Assessment
RMSE provides a list of more than a dozen questions exposure scientists “should be able to answer” RMSE at pp. 537-39 Must review for report and deposition preparation Highlights:
• “What is assumed duration of exposure, and what is its basis?” • What are the pathways . . . . How has it been established that those
pathways exist?” • “What is the variability among members of the population in their
exposure to the chemical of concern? How is this known?” • “What uncertainties are associated with the dose/duration findings?
Is it a ‘most likely’ estimate, or is it an ‘upper limit?’ To what fraction of the population is the ‘upper limit’ likely to apply?
• “What has been omitted from the exposure assessment and why?”
25
Admissibility Standards
Admissibility of expert testimony concerning causation is crucial Without it, summary judgment for defendant likely
Federal Trilogy Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)
• Codified in FRE 702
General Electric Co. v. Joiner, 522 U.S. 136 (1997) Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
States Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923)
• Used in about 10 states • Other states have their own tests
26
Trends – Daubert Under Attack?
To what extent can/should courts examine the underpinnings of expert opinion? Berger, Admissibility of Expert Testimony, RMSE Should courts examine studies expert relies upon one at a
time (“atomization”) or as a group for their “collective effect”? Berger argues that “scientists do not review each study
individually for whether by itself it reliably supports the causal claim being advocated or opposed.” • Berger claims consistent with approach taken by International Agency
for Research on Cancer (“IARC”), Institute of Medicine, National Research Council, and National Institute for Environmental Health Sciences
• Harshly criticized by defense bar as unsupported – reliability of a study is always an issue in weighing evidence
28
Trends – Daubert Under Attack?
Milward v. Acuity Special Prod., (2011), cert. denied --- S. Ct. ----, 2012 WL 33303 (U.S. Jan 09, 2012) Benzene/leukemia case
• Plaintiff had APL, an extremely rare sub-type of AML, which is also a rare disease
Plaintiff’s expert • Claimed to rely upon 4 lines of mechanistic evidence re:
benzene & leukemia and epidemiological studies re: benzene & AML
• Claimed methodology: “weight of the evidence”/Bradford-Hill
29
Trends – Daubert Under Attack? Milward 1st Cir. criticized district court for challenging the “factual
underpinnings” of expert’s opinion Underpinnings were subject of “extensive scientific research and
debate . . . on which reasonable scientists can clearly disagree.” District court improperly treated lines of support “atomistically, as
though his [expert’s] ultimate opinion were independently supported by each . . . The district court erred in reasoning that because no one line of evidence supported a reliable inference of causation, and inference of causation based on the totality of the evidence was unreliable.”
“The district court read too much into the paucity of statistically significant epidemiological studies.” • Not a situation where studies found no causation. • Rarity of disease made epidemiological studies difficult.
30
Trends – Daubert Under Attack? Milward
1st Cir. decision: Alleged flaws go to weight, not admissibility “There is an important difference between what is unreliable support and
what a trier of fact may conclude is insufficient support for an expert’s conclusion.”
Goal is to ensure that expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of the expert in the relevant field.” (citing Kumho Tire)
“[F]act that another explanation might be right is not a sufficient basis” for exclusion
As long as expert’s testimony “rests upon ‘good grounds, based on what is known’ [quoting Daubert], it should be tested by the adversarial process, rather than excluded . . .”
“[T]he Court both placed undue weight on the lack of general acceptance of Dr. Smith’s conclusions and crossed the boundary between gatekeeper and trier of fact.”
31
Trends – Daubert Under Attack? Milward
Defense critique of Milward: Pays lip service to Supreme Court’s decision in Joiner (conclusions
must be based on more than “ipse dixit” of expert) Ignores Daubert criteria of testing, validation and general
acceptance Inconsistent with Bradford-Hill criteria – statistically significant
epidemiology is the starting point; if there isn’t any, the analysis should end there.
Defense bar is concerned that Milward’s acceptance of “weight of the evidence” methodology could pave way for improper admission of regulatory standards and risk assessments performed using that methodology.
32
G O V E R N M E N T S T A N D A R D S
•R o l e o f G o v e r n m e n t S t a n d a r d s ( I f A n y ) i n P r o v i n g C a u s a t i o n
•R o l e o f G o v e r n m e n t S t a n d a r d s a s S u b s t a n t i v e D e f e n s e s / P r e e m p t i o n
Attacking or Establishing Common Defenses
34
Government Standards • How safe is safe?
• How should courts treat determinations by
regulatory scientists that . . .
― a given level of a substance might pose a health threat?
― that a certain level presents no real threat?
35
Government Standards — Causation • “Toxicity” according to regulators ― Risk Assessment
― Based on scientific literature and likely exposure scenarios
― Estimate and compare risks of hazardous chemicals ― Assign priority for avoiding adverse effects
― Performed by regulatory and public health agencies in
U.S. and abroad ― EPA, OSHA, NIOSH, ATSDR, IARC
37
Government Standards — Causation • Based on the “Precautionary Principle”
― Meant to protect public health ― Forward-looking ― Not wait for all scientific evidence to develop ― Use of conservative default assumptions ― “Compounding conservatism” ― Agency “may choose to err on the side of caution”
― Rider v. Sandoz Pharms. Corp., 295 F.3d 1194 (11th Cir. 2002)
38
Government Standards — Causation • Tension between regulatory standard and more
exacting standard used by courts to establish causation
• Plaintiffs’ argument ― One or more public health agencies have found that
exposure to this substance causes the disease; therefore, the substance caused plaintiffs’ disease
• Majority rule ― Regulatory standards are decided under a more lenient
standard and are inadmissible to prove causation
39
Government Standards — Causation • Representative cases ― McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005) ― Nat’l Bank of Commerce of El Dorado v. Associated Milk
Producers, Inc., 191 F.3d 858, 861 (8th Cir. 1999) ― Mitchell v. GenCorp Inc., 165 F.3d 778, 783 (10th Cir. 1999) ― Allen v. Penn. Eng’g Corp., 102 F.3d 194, 198 (5th Cir. 1996) ― Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir.
1996)
40
Government Standards — Causation • Why not give greater weight? ― Precautionary ― Policy-driven ― Do not meet scientific or legal standards of proof
of causation ― Industrial Union Dep’t v. American Petroleum Inst.,
448 U.S. 607 (1980).
41
Government Standards — Viability • Threshold
― At what point will the presence of a chemical substance rise to the level of actionable harm
• Not a new issue ― Courts wrestling with for at least a century
• Lower and lower detection limits raise further
questions ― ppm, ppb, ppt and beyond . . .
42
Government Standards — Viability • Varied approaches, but a general trend
― below the regulatory safe level not actionable ― mere exceedance not enough
• Dozens of cases ― Clean Water Act ― Safe Drinking Water Act ― CERCLA ― OSHA ― many, many more
43
Government Standards — Viability • Examples ― Emerald Coast Utilities Authority v. 3M Co., 746 F.
Supp. 2d 1216 (N.D. Fla. 2010)
― City of Moses Lake v. United States, 430 F. Supp. 2d 1164 (E.D. Wash. 2006)
― Allgood v. General Motors Corp., 2006 WL 2669337 (S.D. Ind. Sept. 18, 2006)
44
Government Standards — Viability • Significant 4th Circuit decision
― North Carolina v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir. 2010) ― expressly permitted & extensively regulated activity ― risk of balkanizing standards ― deference to agency expertise ― lack of guiding principle in nuisance law ― risk of multiple, conflicting standards ― reliance by states and regulated community on regulations
45
Government Standards — Viability • Not unanimous ― In re MTBE Products Liability Litig., 458 F. Supp. 2d
149 (S.D.N.Y. 2006) ― “[W]hile the MCL may serve as a convenient guidepost in determining
that a particular level of contamination has likely caused an injury, the MCL does not define whether an injury has occurred.”
― Municipal water providers had a statutory duty to protect groundwater; required to take action before levels reach the MCL
― Suffolk County Water Authority v. Dow Chemical Co., 2012 WL 164841 (N.Y. Sup. Ct. Jan. 18, 2012) ― “[C]ourts throughout the country have specifically rejected the use of the
bright line MCL test as a measure of when injury occurs.”
46
Government Standards — Viability
― For other cases, see J Kevin Buster & Randy J. Butterfield, “Recurring Issues in Environmental Toxic Tort Cases,” For the Defense (March 2011).
47
A F F I R M A T I V E D E F E N S E S
•S t a t u t e O f L i m i t a t i o n s
•S t a t u t e O f R e p o s e •P r i m a r y J u r i s d i c t i o n •P r e e m p t i o n
48
Attacking or Establishing Common Defenses
Affirmative Defenses • Statute of limitations
― Typically, tort claims begin once the injury
occurs ― When it comes to personal injury and property
claims, however, some (though not all) states include a discovery rule
49
Affirmative Defenses • Statute of limitations ― CERCLA’s Discovery Rule ― 1986 Superfund Amendments and
Reauthorization Act ― imposes “federally required commencement date” in
property damage cases involving any pollutant, contaminant, or hazardous substance
― defined to mean the date plaintiffs knew or should have known damages caused by pollutant, contaminant, or hazardous substance
50
Affirmative Defenses • Statute of limitations ― Some courts have limited application to where
the conditions for a CERCLA cleanup are met ― 5th Circuit ― Mississippi Supreme Court
― Some litigants have argued that federal imposed discovery rule unconstitutionally intrudes on state rights ― See Angle v. Koppers, 42 So.2d 1 (Miss. 2010)
(noting argument but ruling on other grounds)
51
Affirmative Defenses • Primary Jurisdiction ― Defer technical questions to agency with
expertise and authority ― promote uniformity ― utilize agency’s specialized knowledge
― Frequently invoked in environmental cases ― Generally stay judicial process pending agency
consideration
52
Affirmative Defenses • Preemption ― Claims may be preempted by CERCLA or other
regulatory activities at a site ― No express preemption under CERCLA
― But may be conflict preemption
53
Affirmative Defenses • Preemption ― Potential conflicts
― May not undertake remedial action at a facility absent EPA approval ~ 42 U.S.C. § 9622(e)(6)
― “Facility” defined very broadly — basically anywhere a hazardous substance has “come to be located” ~ 42 U.S.C. § 9601(9)
― Federal courts have no jurisdiction to review challenges to removal or remedial actions ~ 42 U.S.C. § 9613(h)
54
•C o m p e n s a t o r y D a m a g e s
•S t i g m a
•R e m e d i a t i o n
•D i m i n i s h e d P r o p e r t y V a l u e
•O t h e r C o s t s , e . g . , b o t t l e d w a t e r , c o n n e c t i o n c h a r g e s , f i l t r a t i o n s y s t e m s
•P u n i t i v e D a m a g e s
•I n j u n c t i v e R e l i e f , e . g . , v a p o r m i t i g a t i o n s y s t e m s
56
Property Related Damages
•H e a l t h E f f e c t s
• Personal Injury
• Medical Monitoring (If Not A Stand Alone Claim)
• Compensation
•L o s s O f U s e a n d E n j o y m e n t
•E m o t i o n a l D i s t r e s s ( I f N o t A S t a n d A l o n e C l a i m )
•P u n i t i v e D a m a g e s
•I n j u n c t i v e R e l i e f
•A t t o r n e y ’ s F e e s A n d C o s t s
57
Other Damages
T R E N D S
•E x p e r t s a t C e r t i f i c a t i o n S t a g e •C e r t i f y i n g a C l a s s •M e d i c a l M o n i t o r i n g •I n c r e a s e I n P r o p e r t y D a m a g e C l a i m s •M D L s a n d B e l l w e t h e r s
59
Class Action / Mass Tort Trends
State or federal forum?
Recent amendments to federal removal statute, 28 U.S.C. § 1441 Multi-defendant cases - each defendant now has 30 days
to file notice of removal, starting from the date that the defendant itself was served
o Resolved prior circuit split re "first-served" rule (notice due within 30 days of the date the first defendant is served) vs. “later served” rule.
Codifies unanimity rule – all defendants must consent to removal • Earlier-served defendant who did not remove can later
consent
60
State or federal forum? Class Actions
Class Action Fairness Act (“CAFA”) - §1332(d) Federal jurisdiction over class actions where:
• minimal diversity and • claims worth more than $5M
CAFA exceptions • Home State: 1/3 – 2/3 class + primary defendant are
residents; remand discretionary • Local controversy: > 2/3 class + significant defendant are
residents; remand mandatory
Absent CAFA jurisdiction, defendants seeking a federal forum will need to establish fraudulent joinder of a non-diverse defendant to defeat complete diversity
61
Class Actions - Trends
Increased scrutiny of experts at the class certification stage Courts were divided on whether Daubert applied at class
certification YES: American Honda Motor Co. v. Allen, 600 F.3d 813, 815–16 (7th Cir. 2010)
(“[W]hen an expert’s report or testimony is critical to class certification… a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion. That is, a district court must perform a full Daubert analysis before certifying the class if the situation warrants.”)
NO: Blades v. Monsanto, 400 F.3d 562, 575 (8th Cir. 2005) (holding that “findings as to the experts’ disputes were properly limited to whether, if appellants’ basic allegations were true, common evidence could suffice, given the factual setting of the case, to show classwide injury
62
Class Actions - Trends
Increased scrutiny of experts at the class certification stage Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. 2541 (2011) – seemed
to resolve the issue in dicta as a “YES” • “The District Court concluded that Daubert did not apply to expert
testimony at the certification stage of class-action proceedings. We doubt that is so.” 131 S. Ct. at 2553–54.
But – precise level of scrutiny not fully resolved • 8th Circuit’s post-Dukes decision in In re Zurn Pex Plumbing Prod.
Liab. Litig., 644 F.3d 604 (8th Cir. 2011) (holding that “an exhaustive and conclusive Daubert inquiry before the completion of merits discovery cannot be reconciled with the inherently preliminary nature of pretrial evidentiary and class certification rulings.”
63
Class Actions – Trends Substantially Raising the Bar for Certification
Federal class actions –Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. 2541 (2011) Commonality – prerequisite for all classes, including
(b)(2) (mandatory) and (b)(3) (opt-out) requires not just common questions, but ability to
reach common answers that apply to all in class Focus on common injury
Mandatory (b)(2) classes Question whether any claims for money damages
can be certified as a mandatory class under (b)(2) Mandatory (b)(2) class must seek an “indivisible”
injunctive remedy
64
Class Actions – Trends Substantially Raising the Bar for Certification
Medical monitoring mandatory (b)(2) certification – dead after Dukes?
Jennifer Quinn-Barabanov, Has Dukes Killed Medical Monitoring?, For the Defense (Nov. 2011)
need for medical monitoring – individualized determination preventing certification under (b)(2) or (b)(3)? Gates v. Rohm & Haas Co., 655 F.3d 255 (3rd Cir. 2011) – very
unfavorable for plaintiffs
65
Class Actions – Trends Substantially Raising the Bar for Certification
Property damage Common injury/common answer requirements –Dukes
• Gates v. Rohm & Haas Co., 655 F.3d 255 (3rd Cir. 2011) “Not all claims of property damage based on exposure are alike. Single instances or simple theories of contamination may be more apt for consolidated proceedings than extensive periods of contamination with multiple sources and various pathways. See In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 241 F.R.D. 435, 447 (S.D.N.Y.2007) (certifying class for damage to property from water contamination but noting “[c]ourts have repeatedly drawn distinctions between proposed classes involving a single incident or single source of harm and proposed classes involving multiple sources of harm occurring over time”); Reilly v. Gould, Inc., 965 F. Supp. 588, 602 (M.D.Pa.1997) (noting in refusing to certify a property damage class “it is the presence of additional individualized factors affecting individual plaintiffs which wreaks havoc on the notion that all plaintiffs' injuries have been caused solely by the defendant's actions”).
66
Class Actions – Trends Substantially Raising the Bar for Certification
Will states follow Dukes? Price v. Martin, --- So.3d ----, 2011 WL 6034519, 2011-0853 (La. Dec
06, 2011) (denying certification of proposed property damage class in toxic tort action citing Dukes)
67
MDLs and Bellwethers 68
MDL Developments Bellwethers Increases due to CAFA
and the ease of access to Federal Court
Venue objections waivers to address Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 40 (1998).
Common Benefit Fees
Bellwethers Generally accepted by both
courts and parties Helps parties ascertain
weaknesses in theories Provides concrete
information on the value of claims
Allows for the development of a framework to be used on remand or if MDL does not result in settlement
Facilitates settlement Promotes judicial economy
Bellwethers Generally 69
Two forms—binding and informational Binding bellwether - courts extrapolate
Results based on statistics Heavily criticized
Constitutionality questioned by 5th Circuit in In re Chevron U.S.A., Inc., 109 F.3d at 1021.
Informational bellwether Results of a bellwether trial used to obtain information about
the cases involved in the multidistrict litigation Minimizes the risk of violating constitutional
rights
Bellwether Selection 70
Critical that Bellwether plaintiffs be representative Sample should be based on “competent, scientific, statistical evidence that identifies
the variables involved and that provides a sample of sufficient size so as to permit a finding that there is a sufficient level of confidence that the results obtained reflect results that would be obtained from trials of the whole.” Fallon, et al., supra note 4, at 2332-42
Bellwether Selection Categorize the cases:
Objective criteria Easily identifiable variables Substantively significant variables
Create discovery pool of cases representative of the major variables chosen to catalogue the litigation
Select individual bellwether trials Randomly By court By counsel Most courts opt for hybrid
See In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Prods. Liab. Litig., 2010 WL 4024778.
Bellwether Trials 71
Likely to be consolidated Under Federal Rule of Civil Procedure 42, actions currently before a court may be
consolidated if they share a common question of law or fact Generally true of cases in MDL, but not always
Beware large consolidations of bellwethers from a resource standpoint – may defeat purpose
Make sure case specific discovery is manageable so that consolidation can be done to facilitate resolution of facts and law
Bifurcation of causation and liability Permitted under FRCP 42, but not favored
Collateral Estoppel Plaintiff Pitfalls
Withdrawal of venue waiver Need to substitute Loss of impact of large number of plaintiffs before jury Ongoing discovery – what to do?
Bellwether Resources 72
Earlier cases In re Chevron U.S.A., Inc., 109 F.3d 1016, 1018 (5th Cir. 1997) (noting that the presence of approximately 3,000
plaintiffs asserting claims for property damage and personal injuries complicates traditional dispute resolution) In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liability Litig., MDL 1358(SAS), No. 1:00-1898, M21-88, 2007
WL 1791258, at *2 (S.D.N.Y. Jun. 15, 2007) (“The obvious justification for a bellwether trial is that ‘a consolidation or a multi-district transfer has the potential of overwhelming the resources of a particular court.’”).
Hilao v. Estate of Marcos, 103 F.3d 767, 786 (9th Cir. 1996) (finding that it would be nearly impossible to try the claims of 10,000 plaintiffs)
Cimino v. Raymark Indus., Inc., 751 F. Supp. 649, 652 (E.D. Tex. 1990) (“[I]f the [c]ourt could somehow close thirty cases a month, it would take six and one-half years to try [the] cases and there would be over 5,000 untouched cases at the [] rate of filing. Transaction costs would be astronomical.”).
Helpful Law Review Articles, Treatises and Resources Fallon, et al., Bellwether Trials in Multidistrict Litigation, 82 TUL. L. REV. 2323, 2324 (2008) Rheingold, Litigating Mass Tort Cases, Volume 1 Rudlin & Shebelskie, Selecting Test Plaintiffs: The Advantages and Pitfalls of Trying a Mass Toxic Tort
Case, Trial, Oct. 1988, p. 37. Some recent cases for guidance and plans
In re Heparin Prods. Liab. Litig., MDL No. 1953, No. 1:08hc60000, 2011 WL 1097637 (N.D. Ohio Mar.22, 2011) In re Stand ‘N Seal, Prods. Liab. Litig., MDL No. 1804, No. 1:07-CV-686-TWT, 2009 WL 2224185 (N.D. Ga. Jul.
21, 2009) In re Fosamax Prods. Liab. Litig., --- F. Supp. 2d ---, 2011 WL 4343215, at *3-4 (Sept. 15, 2011) In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Prods. Liab. Litig., 2010 WL 4024778
Contact Information
Jennifer Quinn-Barabanov Partner 202.429.8027 jquinnba@steptoe.com
class actions toxic torts mass torts product liability
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Contact Information Julia A. LeMense
Attorney
WEITZ & LUXENBERG, P.C.
Environmental Tort Unit
jlemense@weitzlux.com
212-558-5573
Environmental Torts Multi-District Litigation Product Liability Class Action
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