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Guantanamo Bay Attorneys Allege Unsafe Carcinogen Exposures at Camp Justice

Posted in Asbestos Litigation, Environmental Litigation, Toxic Tort

lawjUSTICEBWThis month, attorneys working at Guantanamo Bay’s Camp Justice filed a lawsuit against the Department of Defense (Seeger et al v. U.S. Department of Defense et al, U.S. District Court, District of Columbia, No. 17-00639), in which they allege that they have been exposed to dangerously high levels of carcinogens from working in contaminated areas. The four attorneys, who include Army Major Matthew Seeger and three civilian attorneys, represent Walid Bin Attash, a Yemeni man charged with helping to plot the attacks of September 11, 2001.

The attorneys’ complaint alleges that various environmental hazards at the Guantanamo Bay Camp Justice complex have been linked to nine cases of cancer since 2008 among individuals who worked at the camp, and that the U.S. Navy has not properly investigated these conditions. The nine individuals range between the ages of 35 and 52, and their diagnosed illnesses have included lymphoma, colon, brain, and appendix cancer. Camp Justice is located on the site of a former airfield, and includes temporary housing units, as well as offices where the attorneys both live and work while at the camp. This former airfield was at one point allegedly used to dispose of jet fuel.

The complaint alleges that the attorneys first approached authorities with complaints in July, 2015 and requested an investigation into whether conditions at Camp Justice had contributed to several cancer cases among employees who worked at the camp. The suit further alleges that the U.S. Navy conducted a flawed investigation of the alleged environmental hazards, failing to determine what kind of a risk they posed to personnel and further failing to determine appropriate measures to remedy the situation.

The Navy’s preliminary investigation included an industrial hygiene and habitability survey of Camp Justice’s buildings where personnel live and work. The investigation documented the presence of multiple environmental hazards, including poorly-maintained asbestos-containing floor tile, lead-based paint chips, air samples that tested positive for mercury and formaldehyde, and soil samples that tested positive for benzopryene. All of these substances have been found to be carcinogenic. The Navy’s report acknowledged that their environmental and historical investigations were limited, but nevertheless found that there was insufficient evidence to address potential exposures to carcinogens. With that, they deemed the property’s buildings to be habitable. Additionally, following a review of military health records, they concluded that the number and types of cancer cases did not meet the Center for Disease Control’s definition of a “cancer cluster” and therefore did not warrant a formal cancer cluster investigation. These and additional findings were detailed in a risk assessment report published in February, 2016, which ultimately found that the potential cancer risk cannot be determined and identified the need for further sampling in response to the carcinogens documented during the investigation.

While none of the Plaintiffs have been diagnosed with cancer at this time, they allege that they face an increased risk of developing cancer or other serious diseases, and suffer from emotional distress, upper respiratory symptoms and infections, migraine headaches, itching and burning eyes and skin, and a lack of support in their professional duties because team members refuse to travel to Guantanamo Bay due to the potential health risks.

The complaint alleges that when hearings are held at Camp Justice, attorneys and support staff, including plaintiffs, are required to travel to the camp for a week or more at a time, several times throughout the year. They further opine that as their client’s trial approaches, it will become necessary for them to spend weeks at a time at the camp. When these teams must travel to the camp, they receive orders from the Convening Authority, assigning them to specific housing, but the Navy controls housing decisions at the Naval Station and can reject the Convening Authority’s requests for certain housing. Since their complaint was filed in 2015, Plaintiffs have consistently requested alternative housing, but have not been permanently reassigned to different housing units.

Three of the nine cancer patients referred to in the complaint have died, including Navy Lieutenant Commander Bill Kuebler, who was 44 years old when he passed away from cancer in July, 2015, just a few days after plaintiffs’ original complaints were made to superiors. The complaint notes that the cancer cases have occurred among young, otherwise healthy individuals who have worked at Camp Justice. The attorneys who filed the complaint are seeking an injunction that would require the Defense Department to provide accommodations that would protect them from the risks, both known and unknown of living and working at the camp. They request proper testing of the conditions at the camp and that they, in the meantime, be moved to safer housing units.

 

 

Ring the Bell – Another Defense Verdict For Fresenius in Dialysis Treatment Bellwether Trial

Posted in Massachusetts Courts, Pharmaceutical and Medical Devices, Products Liability, Professional Liability

blood-pressure-1573037_1920On March 3, 2017, after less than four hours of deliberations, a Massachusetts federal jury found that Fresenius Medical Care was not liable for the 2012 death of one of their patients. The verdict drew to a close a four-week long bellwether trial, the second for plaintiffs who opted out of a $250 million settlement offered by Fresenius relating to dialysis products, NaturaLyte and GranuFlo.

The matter arose out of the death of fifty-seven year old North Carolina man, Carley Dial. The decedent’s wife and representative of the estate, Florella Dial, alleged that Mr. Dial suffered from cardiac arrest as a result of the misuse of NaturaLyte, a dialysis product manufactured and sold by Fresenius. Lead trial counsel, Robert Carey of Hagens Berman Sobol Shapiro, argued in his closing that Fresenius did not adequately warn about their products, nor did they have an understanding of their products to ensure they were safe.

Over the course of the fourteen day trial, several Fresenius staff members, from Mr. Dial’s treating nurse at the Pembroke, North Carolina clinic, to the current Chief Medical Officer of Fresenius, headquartered in Waltham, Massachusetts, testified before the jury to evidence the methods that were used to educate, train, and instruct dialysis clinics on their product, NaturaLyte. Plaintiff challenged this testimony by offering Mr. Dial’s treating physician assistant and staff member of Carolina Kidney Care, and PowerPoint presentations created by Fresenius in her attempt to evidence the alleged confusion regarding NaturaLyte.

Plaintiff expert, Dr. G.M. Samaras, a professional engineer and an expert in the field of industry accepted standards and risk management, testified that Fresenius was aware that the information and training they provided regarding NaturaLyte was confusing. Plaintiff also offered nephrologist, Dr. Borkan, who opined that Mr. Dial died from cardiac arrest as a result of metabolic alkalosis, caused by the mismanagement and overuse of NaturaLyte in Mr. Dial’s dialysis treatment. Ultimately, the jury disagreed and found that the use of NaturaLyte in Mr. Dial’s dialysis treatment was not the proximate cause of Mr. Dial’s death.

During his closing, lead trial counsel for Fresenius, James Bennett of Dowd Bennett LLP, argued that Mr. Dial did not die from cardiac arrest, but suffered a heart attack at home, hours after the conclusion of his dialysis treatment. He referred to Mr. Dial’s medical history which evidenced heart blockages and an undetected prior heart attack. Attorney Bennett argued that Mr. Dial’s blockages had been developing for several decades and Mr. Dial did nothing to correct them. Attorney Bennett highlighted that NaturaLyte has been on the market for more than three decades, contains the same amount of acid concentrates as competitors, and more than 305 million gallons of NaturaLyte were sold between 2000 and 2012.

Dr. William Buchanan, Mr. Dial’s treating nephrologist responsible for prescribing NaturaLyte, testified that he received appropriate training by Fresenius regarding the use of their products and that he had a clear understanding of the acid/base balance and conversions of NaturaLyte. Dr. Buchanan believed he provided individualized care for Mr. Dial based on guidelines set by the clinic’s standard order. As Mr. Dial’s treating physician, Dr. Buchanan was responsible for signing the death certificate. Upon Dr. Buchanan’s review of the ambulance notes indicating Mr. Dial suddenly collapsed and Mr. Dial’s previous diagnosis of coronary artery disease, he concluded that the patient had a major heart attack. No autopsy of Mr. Dial was requested or performed.

Defense expert and cardiologist, Dr. Peter McCullough, reviewed Mr. Dial’s medical records before the jury for over two hours. He agreed with Dr. Buchanan and opined that based on the decedent’s history of untreated heart blockages and comorbidities, Mr. Dial suffered from a heart attack unrelated to his dialysis treatment. During closing arguments, Attorney Bennett argued that Dr. McCullough was the only cardiologist to review Mr. Dial’s medical records and was 100% correct in his testimony. Indeed, the jury concluded, to a fair preponderance of the evidence, that the use of NaturaLyte was not the proximate cause of Mr. Dial’s death.

This is the second defense verdict for Fresenius. In December of 2015, a separate bellwether trial also resulted in a defense verdict before Judge Kirpalani in Massachusetts state court. Although another defense verdict is good news for Fresenius, thousands of other claims remain. Judge Woodlock expressed his intention to schedule the next Fresenius bellwether trial soon.

 

Veera v. Banana Republic, LLC: How the California Court of Appeals Has Reduced Proposition 64 (2004) to 40% Off its Intended Value

Posted in California Courts, Corporate Litigation, Professional Liability, Uncategorized

california-160550_960_720California’s Unfair Competition Law

The Legislature enacted California’s Unfair Competition Law (the “UCL”) to deter unfair business practices and protect consumers from exploitations in the marketplace. Allen v. Hyland’s Inc. (C.D. Cal. 2014) 300 F.R.D. 643, 667. Under the UCL “unfair competition” means “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act.” Bus. & Prof. Code, §§ 17200; 17500. The Legislature initially imposed no standing requirements for private litigants to bring suit and, “[a]s a result, a private individual or entity with no relationship to the alleged wrongful practice could use the statute to force a business to repay substantial sums arguably acquired through a UCL violation.” In re Tobacco II Cases (2009) 46 Cal.4th 298, 329 (dissenting opinion).

In November 2004, California voters passed Proposition 64, a ballot proposition designed to prevent “shakedown suits” brought under the UCL. In re Tobacco II Cases, 46 Cal.4th at 316. Lawmakers aimed Proposition 64 at “unscrupulous lawyers” who exploited the UCL’s generous standing requirement to extort money from small businesses by bringing frivolous lawsuits. Id.[1]  

Proposition 64 required that for private litigants to bring an action under the UCL the litigant must suffer an actual economic injury as a result of the unfair business practice at issue. Bus. & Prof. Code, § 17204. Critically, under Proposition 64, local public prosecutors can still bring UCL lawsuits without meeting the more stringent standing requirements applicable to private litigants. Bus. & Prof. Code, § 17204. Thus, while Proposition 64 limited private litigants’ standing to sue under the UCL, government prosecutors’ standing was in no way affected by this law. Californians For Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 232.

The Aftermath of Proposition 64

Ever since the Legislature amended the UCL pursuant to Proposition 64, California courts have been faced with the issue of interpreting the “as a result of” language under the UCL. The California Supreme Court has opined the “as a result of” language requires that a putative plaintiff actually relies on the conduct at issue in order to have standing to sue under the UCL. In re Tobacco II Cases (2009) 46 Cal.4th 298, 326. The actual reliance need not be the only cause of the plaintiff’s harm; so long as the reliance is a substantial factor in actually influencing the plaintiff’s decision, standing will lie. Id., at 326-27.

In 2016 the Court of Appeal for the Second District recognized that the “as a result of” language required “reliance on a statement for its truth and accuracy.” Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 185 (citing Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 327).

Veera v. Banana Republic, LLC

The California Supreme Court will have another opportunity to further define “as a result of” under the UCL in a case which appellant Banana Republic recently filed for review. In Veera v. Banana Republic, LLC the plaintiffs alleged that they were “lured” into a Banana Republic store by a 40% off sign only to be told at the register that some of the items they chose to purchase were not subject to the sale and were full priced. (2016) 6 Cal.App.5th 907, 910. According to the plaintiffs, they ultimately purchased some of the items at full price, despite the fact that they were informed that the clothing they chose was not subject to the sale, because they felt “embarrassed” because lines were forming behind them. Id.

Based on the foregoing, the plaintiffs brought claims pursuant to the UCL.[2] Banana Republic moved for summary judgment arguing that the plaintiffs did not have standing to sue because they did not suffer from a legally cognizable injury under the UCL as amended under Proposition 64, which the trial court granted. Veera, 6 Cal.App.5th at 911-12. In reversing the trial court’s order of summary judgment in a 2:1 decision, the Court of Appeals found a triable issue of material fact as to whether the plaintiffs actually relied on the 40% off sign to make their purchase. Id., at 919. The Court reasoned that plaintiffs’ reliance on the advertising “informed their decision to buy, which culminated in the embarrassment and frustration they felt when, as items were being rung up, they learned the discount did not apply,” thus concluding that the alleged misleading advertising was a substantial factor in causing their ultimate decision to buy. Id., at 920.

The dissenting justice, the Honorable Patricia A. Bigelow, honed in on the fact that the plaintiffs learned of the full price prior to buying the items, and that accordingly, the plaintiffs themselves were ultimately responsible for their “induced” purchases: “The only legally cognizable economic injury the plaintiffs in this case allege they suffered was the money they spent on full-priced clothes. Whether or not the store window signs were ambiguous or misleading, it is undisputed that before the plaintiffs incurred any economic injury, they learned the clothes they had selected were not 40 percent off. They then changed their purchase decisions, choosing to buy only some of the items they had selected, fully aware they were not discounted.” Veera, 6 Cal.App.5th at 924 (emphasis added). Ultimately, the dissenting justice reasoned that where a putative plaintiff “knows the true facts before consummating the transaction that causes the injury” this is, in effect, a superseding cause to any economic harm experienced by the plaintiff. Id., at 926 (emphasis added).

The Court of Appeals Diminished the Standing Requirement of the UCL

Given the purpose of Proposition 64, it seems the Court of Appeal’s interpretation and application of the UCL in Veera is a departure from the voter-chosen amendment and the Supreme Court’s interpretations of that amendment. Although protecting California’s citizens from unfair competition is a noble and necessary mission, “protecting” consumers from an action which they ultimately enter into with their eyes wide open is not consistent with the spirit of the UCL. Plaintiffs themselves broke the causal chain when they, with the knowledge that the price of the clothing was not discounted 40%, chose to proceed with the purchase anyway. Thus, the 40% off advertisement was no factor, let alone a substantial factor, in the plaintiffs’ ultimate purchasing decision.

Such a ruling, which allows plaintiffs to bring suit, despite the fact that the purchaser knew the items were full priced prior to making the purchase (i.e., prior to incurring any actual damages), is not what the Legislature, nor the voters, intended. Ultimately the Court of Appeals’ interpretation of the UCL renders Proposition 64 at 60% of its intended strength, that is, 40% off its voted-for value.

We expect this case will be subject to further scrutiny by the California Supreme Court.  Hopefully, it will hear this case and, consistent with the state of the law, affirm the trial court’s ruling which granted Banana Republic’s motion for summary judgment.

[1] See also http://blogs.wsj.com/law/2011/01/28/calif-high-court-to-corporate-america-labels-matter/?mg=id-wsj; http://vigarchive.sos.ca.gov/2004/general/propositions/prop64-title.htm

[2] Plaintiffs also brought causes of action under the False Advertising Law (Bus. & Prof. Code, § 17500 et seq.) and the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.).

 

Missouri Supreme Court Extends Daimler and Says No to Forum Shopping

Posted in Commercial Litigation, Corporate Litigation, Delaware Courts, Employment Litigation, Missouri Courts

supreme-court-building-1209701_1280 On February 28, 2017, the Missouri Supreme Court joined a growing list of tribunals to apply a strict reading of the United States Supreme Court’s seminal ruling in Daimler AG v. Bauman, 134 S. Ct. 746 (2014). In State ex rel. Norfolk So. Ry. Co. v. Hon. Colleen Dolan, No. SC95514, the Missouri Supreme Court held that Missouri courts lack the requisite personal jurisdiction, either specific or general, over a non-resident defendant, Norfolk Southern Railway Company, in a claim brought by a non-resident plaintiff who asserted a Federal Employer’s Liability Act (FELA) violation arising from his employment by Norfolk Southern in the State of Indiana. The ruling marks a significant victory for corporate defendants seeking to combat forum shopping by plaintiffs, the practice of bringing cases in jurisdictions which are more likely to provide a favorable judgment or a more lucrative verdict.

The plaintiff, Indiana resident Russell Parker, argued that Missouri courts had both general and specific jurisdiction over Norfolk based on the company’s contacts with the state. Specifically, the plaintiff cited Norfolk’s ownership of approximately 400 miles of railroad track in the state, 590 employees in the state, and approximately $232,000,000 in annual revenue from the company’s operations in Missouri. As grounds for its decision, the court found that the plaintiff’s allegations did not arise from or relate to Norfolk’s activities in Missouri so as to give rise to specific jurisdiction, nor were Norfolk’s operations in the State sufficient to give rise to a Missouri court’s exercise of general jurisdiction over a defendant such as Norfolk; a company incorporated in and with principal place of business in Virginia.

Citing the Second Circuit’s decision in Brown v. Lockheed Martin Corp., 814 F.3d 619, 627-30 (2d Cir. 2016), wherein .05 percent of the defendant’s employees and no more than .107 percent of total revenue were derived from the defendant’s activities in the state of Connecticut, the Missouri Supreme Court concluded that Norfolk’s activity in Missouri represents “a tiny portion” of the company’s business activities nationwide. Specifically, the court noted that the revenue derived from Missouri is approximately 2 percent of Norfolk’s total revenues; the tracks owned and operated in Missouri constitute approximately 2 percent of the tracks Norfolk owns and operates nationally; and the company’s Missouri-based employees account for only about 2 percent of its total employees.

The Missouri Supreme Court’s decision is particularly newsworthy for its refusal to find general personal jurisdiction based on a non-resident company’s appointment of a registered agent in the state. In its ruling, the court rejected the plaintiff’s argument that Norfolk’s compliance with Missouri’s mandatory business registration requirements for foreign corporations amounted to consent to the exercise of general personal jurisdiction by Missouri courts. To the contrary, the court held that as the relevant section of law provided only that registration is consent to service of process against non-resident corporations, “the registration statute does not provide an independent basis for broadening Missouri’s personal jurisdiction to include suits unrelated to the corporation’s forum activities when the usual bases for general jurisdiction are not present.” This finding echoes the recent ruling of the Delaware Supreme Court in Genuine Parts Company v. Cepec, 137 A.3d 123, 147 n.125 (Del. 2016), which held that a broad inference of consent based on a non-resident corporation’s registration to do business in a state would allow national corporations to be sued in every state, rendering Daimler pointless.

Further, the Missouri Supreme Court declined to go along with the plaintiff’s argument that FELA itself provides an independent basis for specific jurisdiction any place that a railroad corporation has tracks. Here too, the court rejected the contention that FELA confers specific jurisdiction on the grounds that such an interpretation would turn specific jurisdiction on its head, subjecting corporations to personal jurisdiction in every state regardless of the facts of the case or the defendant corporation’s contacts with the state.

The Missouri Supreme Court’s decision adds a significant brick in the Daimler wall, bolstering the protection it provides corporations against forum shopping and excessive litigation in magnet jurisdictions. The true measure of Daimler’s longevity will, however, come next month, as the United States Supreme Court hears oral arguments on two challenges involving the application of Daimler in BNSF Railway Co. v. Tyrrell, and Bristol-Myers Squibb Co. v. The Superior Court of San Francisco County. Stay tuned!

Recent Appellate Court Ruling Extends the Application of the Common Law Marriage Before Injury Rule to Apply in Florida’s Wrongful Death Claims

Posted in Asbestos Litigation, Complex Torts, Florida Courts, Litigation Trends, Products Liability, Toxic Tort

In a 2-1 opinion, the Fourth District Court of Appeal continued to apply the law which bars marrying into a cause of action, but a strong dissenting opinion and noted public policy concerns could trigger further review.

In Florida, as in various other jurisdictions, the courts follow the common law marriage before injury rule. This rule requires a party to be married to the injured person prior to the time of the injury in order to assert a claim for loss of consortium – i.e. loss of companionship and support. The rationale behind this rule is that a person should be unable to marry into a cause of action. This rule has been consistently applied in personal injury cases including toxic tort and products liability cases of the “creeping” variety, such as asbestos and tobacco.

In the recent decision issued in Janis Kelly v. Georgia-Pacific, LLC, et al., No. 4D15-4666 (Fla. 4th DCA February 22, 2017) the Court was asked to look at this issue in the context of a wrongful death claim. In Kelly, Plaintiffs originally filed a personal injury claim asserting causes of action for negligence, strict liability, and for Mrs. Kelly’s loss of consortium arising from Mr. Kelly’s alleged exposure to asbestos while working in construction from 1973 to 1974. Mr. and Mrs. Kelly were not married until 1976, two years after Mr. Kelly’s alleged asbestos exposure. Mr. Kelly died during the course of the litigation at which time Mrs. Kelly amended the complaint to allege a claim for wrongful death, which included a demand for loss of consortium damages. The Defendants moved to dismiss Mrs. Kelly’s claims for loss of consortium as Mr. and Mrs. Kelly were not married at the time of Mr. Kelly’s alleged injury. When the trial court granted the motion to dismiss, Plaintiff voluntarily dismissed the remaining claims and the appeal followed.

On appeal, the Court addressed whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the time of the injury to recover consortium damages. And, the Court revisited the question of whether the common-law marriage before injury rule should apply in “creeping” cases where the injury is a latent injury that does not reveal itself until after the parties marry.

On the first issue, the Court looked to the legislative intent of Florida’s Wrongful Death Act, to determine if the Act supersedes the common law of loss of consortium– i.e. did the statute unequivocally state that it changes the common law or is it so repugnant to the common law that the two cannot coexist. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990). In applying Thornber, the Court found that the plain language of the Act clearly intended to allow for the survivors of the decedent to recover damages, including the surviving spouse to recover “consortium-type” damages. See ACandS, Inc. v. Redd, 703 So.2d 494 (Fla. 3d DCA 1007). The Court found, however, that nothing in the Act nullifies the common law marriage before injury rule. Instead, the Court determined that the common law requirement merely limits the circumstances when damages for loss of consortium may be recovered. Ultimately, ruling that the common law marriage before injury rule can coexist with the Wrongful Death Act.

In further support of its position, the Court also looked to the legislature’s definition of the term “survivor” and the trigger for when consortium damages are recoverable under the Act. Specifically noting, the term “survivor,” is limited to a familial relationship only, and the provisions of the Act governing a survivor’s damages clearly provide that they are recoverable from the date of the injury. See §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Based on these provisions, the Court concluded that the Act clearly anticipated the surviving spouse would have been married to the decedent prior to the date of the injury.

Lastly, in making its determination to apply the marriage before injury rule in wrongful death cases as well as personal injury claims, the Court addressed the requirement that it avoid absurd or unreasonable results. Justice Levine, in writing for the Court, notably stated “it would make no sense to allow a spouse to recover consortium damages under the Wrongful Death Act simply because his or her spouse has died when that same spouse would be prohibited from recovering the same damage under a loss of consortium claim had his or her spouse survived.” It is clear that such a ruling would create an inconsistent standard and provide for a cause of action where none previously existed.

The Court then briefly addressed the second issue related to Mrs. Kelly’s argument that the marriage before injury rule should not apply in an asbestos case where the injury is latent because there is no risk, or at least a diminished risk, of a spouse marrying into a cause of action. While acknowledging the persuasive policy reasons for superseding the common law rule, especially where the injury is latent, the Court in relying on the decision in Fullerton v. Hospital Corporation of America, 660 So.2d 389 (Fla. 5th DCA 1995), declined to overrule the trial court’s order. Finding as the Court did in Fullerton, that absent a statute superseding the common-law requirement, it is required to follow the common-law rule.

Justice Taylor’s dissent focused solely on the position that the Wrongful Death Act explicitly abrogates the common-law rule. He argues that the statute was created to provide for a surviving spouse to bring a new cause of action that was not previously recognized by common law entitling them to make a claim for loss of consortium damages. And, that the legislature’s inclusion of loss of consortium damages without language limiting their recoverability based on the surviving spouse’s relationship to the decedent at the time of the injury, clearly shows intent that such damages be recoverable.

While this case provides clarity as to the application of the common-law marriage before injury rule in both personal injury and wrongful death cases, based on the dissent and noted public policy issues, this issue will most likely be addressed in the near future by the Florida Supreme Court.