bringing or defending against environmental personal

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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CURRENT TRENDS IN ENVIRONMENTAL TOXIC TORT CA SES

ENVIRONMENTAL TOXIC TORTS

5

An Overview

Theories of Liability

Attacking or Establishing Common Defenses

Typical Damages

Class Action and Mass Tort Issues and Trends

6

THEORIES OF LIABILITY

Environmental Toxic Torts 7

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


DEFENSES CAUSATION


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

DEFENSES GENERAL CAUSATION


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


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


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

DEFENSES SPECIFIC CAUSATION


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


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


Process Describe exposure by identifying:

• Pathways – sources of exposure in environment

• Exposure routes into human body Quantify exposure

24


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

CLASS ACTIONS AND MASS TORTS

EMERGING LEGAL ISSUES


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

DEFENSES GOVERNMENT

STANDARDS


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


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

• Two critical issues

― Causation

― Viability

36

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


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

DAMAGES


•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

CLASS ACTIONS AND MASS TORTS

TRENDS


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


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


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


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

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Jennifer Quinn-Barabanov Partner 202.429.8027 [email protected]

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WEITZ & LUXENBERG, P.C.

Environmental Tort Unit

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212-558-5573

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bringing or defending against environmental personal

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