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Causation and Bare Metal Defenses Prove Effective as Asbestos Liability Shield

Posted in Asbestos Litigation, Products Liability, Toxic Tort

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A recent ruling in an asbestos-related case provides an important lesson for defendants in framing their defenses.

In Malone v. Air & Liquid Systems, et.al. (Report and Recommendation, C.A. No. 14-406-GMS-SRF (D. Del. Aug. 29, 2015)), a mesothelioma case pending in the U.S. District Court for the District of Delaware which involves allegations of asbestos exposure to several products at Ingalls Shipyard in Pascagoula, Mississippi, the court recently found summary judgment was appropriate for three defendants based on lack of evidence to support causation and the “bare metal defense.”  The court, however, rejected the defendants’ other arguments based on the “learned intermediary doctrine” and the “government contractor defense.”

U.S. Magistrate Judge Sherry R. Fallon confirmed that the well-established “frequency, regularity, and proximity” causation standard adopted by Mississippi courts in asbestos actions is a uniform standard regardless of the alleged asbestos-related disease.  The court recommended granting summary judgment for three defendants – Cummins, Inc. (“Cummins”); CBS Corporation f/k/a Westinghouse Electrical Corporation (“CBS”); and Foster Wheeler Energy Corporation (“Foster Wheeler”).[1]  In the recommendation, the court noted that “Mississippi courts have not distinguished between different asbestos-related diseases when applying the frequency, regularity, and proximity test.”  The court found the Malones’ argument that the factors should be applied “less rigidly” in mesothelioma cases unavailing, and that plaintiffs did not meet their burden to prove causation with respect to these defendants’ products.

Cummins, CBS, and Foster Wheeler each moved for summary judgment asserting as an additional ground the “bare metal defense.”  The “bare metal defense” shields from liability companies that did not manufacture or distribute asbestos-containing components which were incorporated into the manufacturer’s product after its sale.  In recommending summary judgment for each defendant, the court substantially followed its prior ruling in Dalton v. 3M Co., 2013 WL 4886658 (D.Del.), where the court found that “it is reasonably likely that the Supreme Court of Mississippi would follow the majority of jurisdictions that have refused to find defendants liable for other manufacturers’ asbestos products.”  The court rejected plaintiffs’ argument that Dalton is inapplicable where the use of an asbestos-containing product in association with the defendant’s product was foreseeable, where the defendant did not require its use.

While the court granted judgment as a matter of law to all three defendants based on defendants’ causation and “bare metal” arguments, the court rejected CBS’ argument that it was entitled to summary judgment based on the “learned intermediary doctrine” and CBS’s and Foster Wheeler’s argument that each was entitled to summary judgment based on the “government contractor defense.”  The court rejected CBS’s “learned intermediary” argument because, despite the fact that if offered evidence that the United States Navy was aware of the potential hazards associated with asbestos, it “offer[ed] no facts . . .  to support whether Westinghouse reasonably relied on the Navy to warn users like Mr. Malone . . .”  With regard to the government contractor defense, the court held that a factual issue concerning whether military specifications cited by plaintiffs were applicable to the Westinghouse turbines at issue, and thus whether the Navy required Westinghouse to create asbestos warning labels, precluded summary judgment on the government contractor defense.

Based on the court’s decision in Malone, defendants should take solace in the rejection, yet again, of a plaintiff’s argument for a less stringent causation standard in mesothelioma cases and the confirmation that yet another court adopts the majority approach to the “bare metal defense.”  The ruling also, however, illustrates that defendants should expect a tough go of it when arguing the “learned intermediary doctrine” and “government contractor defense” at the summary judgment stage in this jurisdiction.

The entire Malone decision can be found here.

[1]       The parties had fourteen days from the date of the Report and Recommendation to file written objections with the court.  Because no party filed written objections within that time frame, it is likely the court will accept the Report and Recommendation as its opinion on the matter.

Massachusetts Appeals Court Upholds Judgment in Birth Control Patch Case

Posted in Massachusetts Courts, Pharmaceutical and Medical Devices
Massachusetts Appeals Court

Massachusetts Appeals Court

On September 21, 2016, the Massachusetts Appeals Court upheld the grant of summary judgment to Johnson & Johnson (“J&J”), the manufacturer of the Ortho-Evra birth control patch at issue in the case of Niedner v. Ortho-McNeil Pharmaceutical, Inc., No. 15-P-1272, 2016 WL 5106479 (Mass. App. Ct. Sept. 21, 2016).  In so doing, the Appeals Court held that J&J had a duty to warn the decedent, but that it adequately did so.

Neidner involved the death of 17-year-old Adrianna Duffy, which resulted from blood clots allegedly caused by the Ortho-Evra birth control patch worn by Ms. Duffy.  Plaintiff claimed that she and Ms. Duffy had not been adequately warned about the increased risk of developing blood clots to those who use the patch.

In June, 2009, Ms. Duffy and her mother met with Ms. Duffy’s doctor to discuss birth control options. Ms. Duffy specifically asked her doctor about the Ortho-Evra patch, as she had previously taken an oral birth control pill but now wanted an easier birth control method. Id. at *1. Ms. Duffy’s doctor prescribed her the patch after this meeting and informed Ms. Duffy and her mother of the risks associated with using the patch, including that of blood clots. The prescription package filled by Ms. Duffy came with an insert from the manufacturer (J&J), as well as a leaflet from the pharmacy at which the prescription was filled, both setting forth the risks associated with the patch, including heart attack, stroke, and blood clots. After approximately three months of use, Ms. Duffy collapsed and died from a massive bilateral pulmonary embolus. Id. at *1.

Ms. Niedner filed suit in October, 2010, alleging, among other things, that her daughter’s death was caused by her use of the patch and that J&J was liable for breach of warranty under the theories of design defect, failure to warn, and manufacturing defect. Id. at *1.  J&J filed a motion for summary judgment, arguing that the patch’s risks, including the increased risk of blood clots, was sufficiently disclosed. Id. at *1. A Superior Court judge agreed, allowing the motion, and plaintiff appealed.

Typically, a manufacturer has a duty to warn product users of dangers associated with the reasonably foreseeable use of its product.  Manufacturers of prescription drugs and medical devices are, however, generally excepted from that rule based on the “learned intermediary” rule, which provides that the manufacturer fulfills its duty by providing physicians with an adequate warning about the risks associated with its product. In these instances, the physician acts as the “learned intermediary” between manufacturer and consumer to ensure the patient understands the potential risks and benefits. In MacDonald v. Ortho Pharmaceutical Corp., however, the Massachusetts Supreme Judicial Court created a narrow exception to this rule for the manufacturer of oral contraceptives, which it held has a duty to directly warn not only medical professionals, but also the consumer, about the risks associated with birth control medications. Id. at *2. The Neidner court held that this same exception to the “learned intermediary” rule applies to birth control patches, such as the Ortho-Evra patch, and as such, J&J had a duty to warn Ms. Duffy directly of the risks associated with the use of the patch. Id. at *2.

The Appeals Court also held, however, that J&J had satisfied that duty.  It noted that the box of patches purchased by Ms. Duffy contained a pamphlet which explained the risks associated with its use and contained instructions to consult a physician concerning information contained in the pamphlet. Both Ms. Duffy and her mother read the insert, though neither then consulted with Ms. Duffy’s doctor. Among other topics, the pamphlet thoroughly discussed in multiple locations the risk of developing blood clots while using the patch, particularly in the lungs like those Ms. Duffy developed. Id. at *3. The Appeals Court found as a matter of law that the pamphlet adequately warned of the increased risk of developing blood clots that could result in death, and described these warnings as “plain, numerous, and comprehensive.” Id. at *4.

U.S. Court of Appeals Reverses Summary Judgment in Lung Cancer Asbestos Case

Posted in Asbestos Litigation, Products Liability, Toxic Tort

Lady JusticeOn September 13, 2016, the United States Court of Appeals for the Third Circuit partially reinstated a plaintiff’s claims that his decedent developed lung cancer as a result of asbestos exposure that he allegedly experienced from work in the vicinity of switchgear components manufactured by Westinghouse Electric Corporation, a predecessor to CBS Corporation.  In re: Asbestos Prods. Liab. Litig. (Frankenberger), — F.3d —-, 2016 WL 4750507 at *1 (3d Cir. 2016).

 

In Frankenberger, the plaintiff originally filed suit in the United States District Court for the Northern District of Indiana and the matter was subsequently transferred to the United States District Court for the Eastern District of Pennsylvania as a result of consolidation under a multi-district litigation (MDL-875).  Id. at *2.  Plaintiff alleged, via the decedent’s co-worker and expert testimony, that the decedent was exposed to asbestos as a result of: (1) maintenance performed on Westinghouse turbines that required the removal and installation of insulation that may have contained asbestos until 1973; and (2) maintenance and cleaning of Westinghouse switchgear that incorporated asbestos-containing components until approximately 1985.  Id.  Critically, plaintiff did not present evidence that the thermal insulation on the turbines to which he alleged the decedent was exposed was the original insulation supplied by Westinghouse or that Westinghouse supplied the insulation that was used to replace the original insulation.  Id.  In contrast, plaintiff produced evidence that the Westinghouse switchgear contained asbestos and released respirable fibers when cleaned and maintained.  Id.  Westinghouse moved for summary judgment arguing that plaintiff did not satisfy his burden of demonstrating that Decedent’s lung cancer was caused by exposure to Westinghouse products.  Id.  District Judge Robreno held that summary judgment was appropriate because there was no evidence that: (a) the decedent was exposed to asbestos-containing thermal insulation for which Westinghouse was responsible; and (b) the decedent was exposed to asbestos-containing dust from the Westinghouse switchgear.  Id. at *3.  Plaintiff appealed to the Third Circuit.  Id.

 

On appeal, the Third Circuit partially reversed the District Court and held that plaintiff presented evidence sufficient to present a question of material fact as to the decedent’s alleged switchgear exposure, but failed to demonstrate that Westinghouse was liable for the thermal insulation or even that the thermal insulation to which Decedent was allegedly exposed actually contained asbestos.  Id. at *4-5.  In analyzing plaintiff’s evidence, the Third Circuit applied Indiana’s causation standard, which requires that

 

A plaintiff . . . must produce evidence sufficient to support an inference that [the decedent] inhaled asbestos dust from the defendant’s product.  This inference can be made only if it is shown that the defendant’s product, as it was used during [the decedent’s] tenure at the job site, could possibly have produced a significant amount of asbestos dust and that the asbestos dust might have been inhaled by [the decedent].

 

Id. at *4 (internal citations omitted) (ellipsis in original).

 

In analyzing the plaintiff’s claims related to the switchgear, The Third Circuit held that summary judgment was inappropriate because the plaintiff presented evidence that: (1) Westinghouse manufactured the switchgear; (2) asbestos-containing components in the switchgear deteriorated over time, thereby releasing respirable asbestos fibers; (3) the cleaning and maintenance of the switchgear caused these fibers to be released into the atmosphere; and (4) the decedent was present at the worksite when such release occurred.  Id. at 5.  Consequently, the Court held that a reasonable juror could conclude that Decedent’s lung cancer was caused by exposure to asbestos from the Westinghouse switchgear.  Id.

 

While the Court held that summary judgment was inappropriate on the switchgear claim, it conversely held that the plaintiff had failed to satisfy his burden of establishing exposure to thermal insulation which Westinghouse manufactured, installed, or supplied.  Id. at 4.  Furthermore, the plaintiff did not establish that the thermal insulation actually contained asbestos when the decedent was proximate to that insulation’s removal and installation.  Id.  As a result, plaintiff’s claims of exposure from the turbines could not survive summary judgment.  Id.

 

Frankenberger presents an interesting contrast in the Court’s treatment of a product identification defense as opposed to a defense based on causation.  With regard to the Westinghouse turbines, the Court applied the “bare metal” or “replacement parts” defense in granting partial summary judgment, holding that plaintiff produced no evidence that any insulation around which decedent may have worked was original to the turbines or was later manufactured or supplied by Westinghouse.  Thus CBS could not be held liable for any potential asbestos exposure associated with the turbine insulation.

 

In contrast, Westinghouse did not have such a product identification defense to plaintiff’s claims concerning its switchgears and was forced to argue causation.  Frankenberger, along with the Third Circuit’s recent decision in Haas v. 3M Co., 613 Fed. Appx. 191 (3d Cir. 2015) (reversing district court’s grant of summary judgment based on the plaintiff’s provision of evidence of exposure to asbestos-containing products manufactured by the defendant), seems to demonstrate, however, that the Third Circuit is becoming increasingly reluctant to grant summary judgment on the basis of causation—instead, it is more likely to find that a question regarding causation is a material issue of fact that should be determined by the jury.

 

The plaintiff was represented by Robert G. McCoy of Cascino Vaughn law offices.  CBS was represented by Christopher G. Conley of Evert Weathersby & Houff.  The Third Circuit panel consisted of Circuit Judges McKee, Ambro, and Scirica, with Judge Scirica delivering the unanimous opinion.

Massachusetts Appeals Court Overturns Jury’s Verdict in Pelvic Mesh Case

Posted in Pharmaceutical and Medical Devices, Products Liability

Gavel_editOn September 13, 2016, the Massachusetts Appeals Court decided Albright v. Boston Scientific Corporation by vacating a jury’s verdict in favor of Boston Scientific Corporation (BSC) and remanding the matter to the Superior Court for retrial. No. 15-P-633, 2016 WL 4736686 (Mass. App. Ct. Sept. 13, 2016).

By way of background, the Plaintiff, Diane Albright, sued BSC alleging that she suffered serious injuries following a March 2010 surgery in which she had a Pinnacle Pelvic Floor Repair device implanted to correct a pelvic organ prolapse. Id. at *1. That is, after Ms. Albright’s surgery she “developed painful bladder syndrome and other complications” due to the implant’s degradation. Id. at *2. BSC designed, manufactured, and marketed the device in question. Subsequently, Ms. Albright tried her case before a Middlesex County jury, which found in BSC’s favor with respect to Ms. Albright’s defective design and inadequate warning claims.

The plaintiff appealed arguing that the trial justice erred when she (1) excluded from evidence a medical application caution found within a 2004 and 2007 Material Safety Data Sheet (MSDS) concerning the polypropylene material used to form the mesh within the device and (2) prevented the jury’s consideration of two 2012 FDA letters to BSC. Id. at *1. The first letter ordered BSC to conduct a postmarket surveillance study of its Pinnacle devices. In its second letter to BSC, the FDA agreed to the postmarket surveillance study’s suspension following receipt of BSC’s representation that it planned to cease manufacturing and marketing the implant in the United States. Id. at *7.

After reviewing the trial court record, the appeals court agreed with the plaintiff’s position. It reasoned that the medical application caution “was relevant, material evidence for the limited purpose of showing that BSC, which had received the MSDS well before 2009, had notice or knowledge of the content of the caution.” Id. at *6. Thus, the medical application caution was not hearsay for the sole purpose of showing that BSC had notice or knowledge of the foreseeable risks associated with the Pinnacle implant. Id. Likewise, the appeals court concluded that the two FDA letters were admissible “for the limited purpose of cross-examining BSC’s witnesses, who had testified, without qualification, that the Pinnacle device was safe as of the time of trial.” Id. at *7. Such a limited purpose use of the FDA letters, the court found, would constitute reasonable cross-examination to show bias or to rebut BSC witness opinion testimony.

 

 

 

Legal Ethics 2.0: Massachusetts Makes Changes to its Rules of Professional Conduct – Outsourcing Client Work

Posted in Massachusetts Courts, Professional Liability

File Cabinet_iStock_000022952167Small(Purchased 8-4-14)Last summer the Massachusetts Supreme Judicial Court (SJC) made several significant changes to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.). Previous posts highlighted some of these changes, including to the Rules pertaining to jury contact following trial and the duty to remain current on technologies which impact the practice of law. The Rule discussed herein relates to a trend often seen in the service sector, and which has over the past years become more prevalent in the legal sector – outsourcing.

 

According to the American Bar Association, “globalization, technology-driven efficiencies developed and utilized by many providers of outsourced services, and the demand by clients for cost-effective services” are some of the factors that have contributed to the significant growth of outsourcing. Many firms have taken advantage of (or been directed by their clients to take advantage of) lower rates charged by companies which conduct document reviews, provide legal transcriptions, conduct research and process patents. These companies are often located outside of the United States in countries such as India and Malaysia. Several authors have noted that these efficiencies can be attractive to firms by enabling them to better compete for large matters without fear that they lack adequate resources to perform legal work and to clients by bolstering the affordability of legal services.

When lawyers outsource activities traditionally performed by them or their staff, several ethical considerations are implicated, including the protection of privileged and otherwise confidential information, and of course, quality control. See e.g., Mass. R. Prof. C. Rules 1.1 (competence); 1.2 (allocation of authority); 1.4 (communication with client); 1.6 (confidentiality); 5.4(a) (professional independence of the lawyer), and 5.5(a)(unauthorized practice of law).

To protect clients from inadequate representation the American Bar Association provides detailed guidance on the retention of lawyers and non-lawyers from outside the firm setting. See Model Comments 6 and 7 to ABA Model Rule 1.1 and Model Comments 1-4 to Model Rule 5.3. The SJC, clearly concerned about the evolution of lawyering and the growing practice of outsourcing client work followed suit, and adopted the following comments to Mass. R. Prof. C. 5.3:

3. A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include retaining an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. . . .; and

4. Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

To satisfy the Rules of Professional Conduct, Massachusetts attorneys must properly vet the recipients of outsourced work to ensure they have adequate security measures in place to guard against the release of confidential information. They must also maintain close oversight of the work being performed to ensure that it is carried out in a manner consistent with the high standards set out by the Rules.

For more information, please contact us. To read the revised rules visit:

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

The Reptile Slithers Into Massachusetts and Makes History

Posted in Uncategorized

In what is believed to be one of the largest verdicts for a sexual assault victim in Massachusetts history, Kira Wahlstrom*, now 41 years old, was awarded $6.6 million dollars as a result of a parking garage owner’s negligence.  The jury found that JPA I Management Co. Inc., which owned the Radisson Hotel and its parking garage, where the rape occurred, and JPA IV Management Co. Inc., which operated them, failed to provide adequate security and warnings. Ms. Wahlstrom was the second women brutally attacked in a two week span in 2009 by the same individual inside the parking garage which is located in Boston, MA.  Ms. Wahlstrom maintained that she was never informed a rape had occurred in the same parking garage less than two weeks prior to her rape, and that JPA did not take preventative measures to prevent the incident. Wahlstrom alleged that the hotel should have warned customers and posted extra garage security.  The jury agreed, awarding Ms. Wahlstrom $4 million dollars.  An additional $2.6 million was added to the verdict pursuant to Massachusetts’ pre-judgment interest statute.

One member of Ms. Wahlstrom’s trial team was attorney Don Keenan of the Keenan Law Firm, who is a well-known plaintiff’s attorney and co-author of “Reptile: The 2009 Manual of the Plaintiff’s Revolution.”  Keenan’s methods are commonly referred to as the “Reptile Theory,” which at its core is used by plaintiffs to frame a case so it appears the defendant chose to violate a safety rule and that the same defendant should not be allowed to needlessly endanger the public.  Reptile Theory proclaims that you can prevail at trial by speaking to, and even scaring the primitive and instinctual part of jurors’ brains.  The Reptile Theory may be a newer approach, but it is not without success – Keenan’s website boasts that plaintiffs have recovered more than $6 billion dollars in verdicts and settlements as a result of utilizing this theory. The Reptile Theory purports to provide a blueprint to succeeding at trial by applying advanced neuro-scientific techniques to pretrial discovery, jury selection and trial.  Plaintiffs state that the Reptile Theory is a strategy calculated to manipulate jurors to fear for the safety of themselves, their families, and their communities, and to play upon that fear to encourage jurors to punish defendants for their perceived unsafe and dangerous conduct in order for the jurors to protect themselves and their families.

There is little doubt that Reptile methods played a key role in the verdict amount. Keenan’s and Wahlstrom’s post-trial comments highlight the Reptile Theory and the impact it could have on plaintiff’s receiving large verdicts:

 

“It’s a national problem, a wake-up call to all of us: parking garages are not as safe as we think…This is not a ma and pa parking garage — there are 700 spaces. If anybody should have the resources to keep customers safe, it should be this company, and they didn’t.” – Don Keenan

 

“It was about helping people and maybe changing the way that people run their parking garages and the way they treat rape victims and, hopefully, more men and women will speak out when things like this happen.”

“We need to have better parking garage security, whether it be cameras or one person on every floor. They need to do something so that people are safe when they go there” -Wahlstrom

 

There are many legitimate criticisms of the purported science behind the Reptile Theory. That is, however, beside the point.  The bottom line is that the strategy is very effective as the framework of a plaintiff’s case, and the methods utilized by Reptile plaintiff counsel can lead to extremely damaging testimony by unprepared defense witnesses and experts both at deposition and trial. Furthermore, the methods are highly effective in voir dire, and also in influencing a jury in the opening/closing statement statements of trials. The verdict in the Wahlstrom matter, undoubtedly one of the highest for a sexual assault victim in Massachusetts history, highlights that defense counsel must be proactive in preparing their clients and case for the Reptile.

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At MG&M, we have worked closely with jury consultants, litigation psychologists and respected co-defense counsel in developing methods for combatting the Reptile. This includes witness preparation; motions in limine to preclude or limit the use of Reptile at trial; enhanced voir dire methods designed to counteract the Reptile during the first interactions with the jurors; and opening/closing statement strategy.  The defense of companies against the Reptile starts early, and spotting the Reptile Theory and its themes is imperative to a favorable outcome. Even your first witness in discovery needs to be prepared to face it. By way of one example, many of the questions posted by a Reptile plaintiff’s counsel at a deposition appear to be innocuous general safety questions that, on their face, are difficult with which to disagree. In fact, a defendant may be eager to agree with these questions posed by plaintiff’s counsel in an effort to demonstrate they are safety conscious and concerned about public safety.  These questions are, however, anything but innocuous.  Instead they are a carefully crafted set-up by plaintiff’s counsel to box defendants into a corner before they turn to case-specific questions.

Plaintiff’s counsel across the country certainly took notice of another Reptile victory this week, which resulted in a verdict significantly in excess of historical values in Massachusetts. And it is certain that they will continue to enhance and refine their amphibian ways. The question for defense counsel and their clients is, will you be ready to face it?

*Consistent with the approach taken by the Associated Press, we do not usually identify people who say they are victims of sexual abuse, but Ms. Wahlstrom has spoken publicly often about her case.

Legal Ethics 2.0: Massachusetts Makes Changes To Its Rules Of Professional Conduct – The Requirement To Be Technologically Savvy

Posted in All Practice Areas, Massachusetts Courts, Professional Liability

As previously reported, following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post is the second in a series designed to inform practitioners of several important changes to the Massachusetts rules.

 

The Duty to Remain Current on Latest Technologies

Gavel_Computer_2

Before an attorney can accept a matter, he or she has to comply with the competency standards found in Mass. R. Prof. C. 1.1.  According to said Rule, competent representation requires “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

 

In response to the rapidly changing technologies impacting the practice of law, the SJC adopted Comment 8 to Rule 1.1, which states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . (emphasis supplied).

With the rise of e-discovery, this Comment is particularly appropriate.  The State Bar of California Standing Ethics Committee on Professional Responsibility and Conduct in its Formal Opinion No. 2015-193, noted that “[I]n today’s technological world almost every litigation matter potentially involves [e-discovery],” and failing to have a “basic understanding of, and facility with, issues relating to e-discovery” can eliminate an attorney’s competency for a case.

 

We expect Massachusetts to follow the guidance provided by California’s Committee, and interpret the new Comment to allow an attorney who is not competent in this regard to nonetheless perform legal services competently by: 1) associating with or consulting technical consultants or competent counsel; or 2) acquiring sufficient learning and skill before performance is required.  Lawyers must decline the matter when they cannot meet these two provisos, and when they do not, Comment 8 gives the Board of Bar Overseers an additional tool to sanction lawyers who mishandle e-discovery by producing confidential or privileged information, or by failing to locate and produce electronically-stored discoverable data.

 

Comment 8 should not, however, be viewed solely in the e-discovery prism.  The headlines scream about the latest hacking attacks and disclosures of personal information.  Failing to maintain proper firewalls and other security features, notwithstanding a lack of bad faith conduct, may also viewed as a disciplinary rule violation.  Given that the use of computers and e-mail are unavoidable, lawyers should follow the same guidance applied to e-discovery.  That is, engage technical consultants or acquire sufficient learning and skill.  It may cost a few dollars, but it’s worth it, particularly in light of the potential the risks associated with Comment 8 to Mass. R. Prof. C. Rule 1.1.

 

For more information on the revised rules visit:

 

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

Legal Ethics 2.0: Massachusetts Makes Changes To Its Rules Of Professional Conduct – Communications With Jurors

Posted in All Practice Areas, Massachusetts Courts

Following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post will be the first in a series designed to inform practitioners of several important changes to the Massachusetts rules.

 

Communicating with Jurors

courtroom-12jury-002b-564x338Last summer then Governor Patrick signed into Massachusetts law House Bill 4123 which made two significant changes to Massachusetts Superior Court procedure involving trials.  The first allowed Plaintiffs’ counsel to request a specific dollar amount as damages; the second allowed for questioning of prospective jurors (voir dire).  This summer, the SJC made a significant change to the Massachusetts Rules relating to communications with jurors after they render their verdicts by amending Mass. R. Prof. C. 3.5 to largely conform to ABA Model Rule 3.5.

The former Mass. R. Prof. C. 3.5, articulated in Commonwealth v. Fidler, 377 Mass. 192 (1979) and reaffirmed in Commonwealth v. Solis, 407 Mass. 398 (1990), prohibited lawyer-initiated, post-verdict juror contact unless authorized by court order for good cause shown.  Although the Standing Committee noted that “good cause” was a relatively low threshold, it remained concerned that a complete prohibition of non-judicially approved lawyer-initiated communications with jurors after a verdict may violate the First Amendment and prevent lawyers from receiving useful feedback.

As such, the SJC followed the Standing Committee’s recommendation and revised Mass. R. Prof. C. Rule 3.5 to largely follow the corresponding Model Rule.  Under the new Rule 3.5, attorneys may communicate with jurors post-verdict unless: (i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer, directly or indirectly, a desire not to communicate with the lawyer; or (iii) the communication involves misrepresentation, coercion, duress or harassment.

Clearly, the Standing Committee’s desire for clarity of the rules and concerns over potential First Amendment issues were strong, and unlike several other revision recommendations, unanimously recommended this significant alteration to the rules.  In effectively abrogating Solis and Fidler, the SJC agreed, and appeared to have little concern regarding the impact the new rules may have on jurors’ willingness to serve or the potential for improper challenges to their verdict.

 

For more information on the revised rules visit:

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

 

 

Noise-Induced Hearing Loss Claims Against Employers Fall On Deaf Ears

Posted in Employment Litigation, Premises Liability

Occupational Hearing Loss (OHL) is one of the most prevalent work-related illnesses in the United States with 22 million workers exposed to hazardous noise each year, according to the Centers for Disease Control.

With approximately $242 million spent annually on workers’ compensation claims for disabilities arising from hearing loss, this number is set to increase in light of a new favorable holding for Louisiana employers with industrial workplace settings.
hearingThe Louisiana Supreme Court held in Arrant et al v. Graphic Packaging International, Inc. et al that defendant Graphic Packaging, which owns and operates a paper mill, box plant, and carton plant in West Monroe, Louisiana, is immune from suits in tort brought by its employees for noise-induced hearing loss injuries sustained from working around industrial machinery. The Supreme Court held that these injuries fell within the Louisiana Workers’ Compensation Act (“LWCA”) definitions of a covered “personal injury by accident” or an “occupational disease.”

“Arrant is the symbolic shot heard round the world in Louisiana when it comes to noise induced hearing loss suits.”

The Court heard testimony from expert audiologists that when high levels of energy enter the cochlea of the ear “it damages and destroys that row of hair cells in that particular part of the ear.” There is an “immediate injury to the inner ear” though the effect only becomes gradually perceptible over time and only with repeated or continuous exposures to high levels of noise. As such, the Court held that traumatic injury to the inner ear qualified as a personal injury by accident under the LWCA.

The Court also found that “hazardous levels of industrial noise . . . was a condition very characteristic of and peculiar to the particular employment of working in a paper mill or box plant” and as such was an occupational disease under the LWCA.

Caution-Hearing-Protection-RequiredThe legal effect of Arrant is that suits against an employer for noise induced hearing loss injuries are now within the exclusive remedy provision of the LWCA. The practical effect of Arrant is that noise-induced hearing loss suits against employers are coming to an end. While technically the LWCA provides an exception for intentional acts, this is a difficult burden to meet. Were plaintiffs to amend their petition to assert an intentional tort against their employers, they would have to prove that the employers either desired that their employees sustain noise-induced hearing loss, or were substantially certain that such injuries were going to occur from their work around noise producing machinery inside their facilities.

Simply, Arrant is the symbolic ‘shot heard round the world’ in Louisiana when it comes to noise induced hearing loss suits.

Craft V. Crafty: The Blue Moon Class Action Suit Against MillerCoors LLC

Posted in False-Labeling Claims

MillerCoors LLC, owner of the Blue Moon Brewing Company (“Blue Moon”) brand and purported brewer of the Belgian-style witbier, recently removed to the U.S. District Court for the Southern District of California a class action lawsuit filed by Evan Parent on behalf of himself and all similarly situated consumers.  Despite the fact that he claims to be a “beer aficionado,[1]” Parent alleges to have purchased Blue Moon beer from various retailers from 2011 to mid-2012 under the mistaken belief that it was a “microbrew or ‘craft’ beer.” Parent asserts that MillerCoors deceptively marketed and charged a premium for Blue Moon beer by: (1) misleadingly characterizing it as a “craft” or “artfully crafted” beer; and (2) withholding the name “MillerCoors” from its label.

In 1980, there were 8 craft breweries in the United States. By 2014, that number had grown to 3,418.  During that time, craft breweries have slowly cut into the massive share of the $100 billion domestic beer market held by large breweries, such as Anheuser-Busch and MillerCoors. Craft beer has quickly grown from roughly a 3% market share in 2000 to 19% in 2014.  The large breweries have responded by creating their own “craft beer” brands, such as Blue Moon and Shock Top, and by purchasing craft breweries, such as Goose Island, Kona Brewing Co., Leinenkugel, and 10 Barrel Brewing.

Parent’s claim is founded upon the definition of “craft beer” set forth by the Brewer’s Association, a not-for-profit trade association, “dedicated to small and independent American Brewers, their beers and the community of brewing enthusiasts.”  The Brewer’s Association defines “American Craft Brewer” as:

  • Small: Annual production of 6 million barrels of beer or less;
  • Independent: less than 25 percent is owned or controlled by an alcoholic beverage industry member that is not itself a craft brewer; and
  • Traditional: a brewer that has a majority of its total beverage alcohol volume in beers whose flavor derives from traditional or innovative brewing ingredients and their fermentation.

Parent alleges that Blue Moon is located in Coors Field, but that the Blue Moon beer sold in stores is brewed at MillerCoors’ Colorado and North Carolina breweries. Parent asserts that MillerCoors’ massive annual production takes it outside the definition of Craft Brewer set forth by the Brewers Association.

It is undisputed that MillerCoors does not qualify as a “Craft Brewer” pursuant to the guidelines set forth by the Brewer’s Association. Contrary to plaintiff’s assertion, however, the Brewer’s Association is not the arbiter of how “Craft Brewer” is defined.  Additionally, it remains to be seen whether “craft beer” can only be brewed by a “Craft Brewer.” In other words, it is unclear whether the term “craft beer” is reflective of the brewer who produces it or relates to the product itself. Does MillerCoors’ size preclude it from producing a “craft beer,” even if it uses quality ingredients and small batch sizes? Presumably, Parent will have a difficult time disputing the “quality” of Blue Moon beer given he purchased and consumed it regularly over an 18 month period. Despite being an “aficionado,” over that lengthy time period, Parent was unable to distinguish the “quality” of Blue Moon from the other craft beers he presumably consumed.

craft beer 2Parent’s suit is the latest foray of plaintiffs into the requirements of truth in labeling, as it relates to the beer industry, following Anheuser-Busch’s settlement with a class of consumers alleged to have been misled that Kirin Ichiban beer was brewed in Japan. Similar battles have been fought within the food and soft drink industry over terms such as “all natural” and “organic.”

Parent’s initiation of a legal battle over the definition of the term, “craft beer,” and the ability of the large breweries to use that phrase in reference to their product represents the culmination of a significant “craft beer” movement that has dramatically changed the landscape of the beer industry.  The outcome of this case will not only set an important precedent for future mislabeling and deceptive marketing class actions, it could also have a significant and widespread impact on the beer industry, particularly in how large breweries, such as Anheuser-Busch and MillerCoors, respond to their market share losses, and promote their own “craft beer” brands and subsidiaries. Many interested parties will be watching this case carefully, including this writer.

 

[1] No self-respecting beer nerd buys Blue Moon., or refers to themselves as an “aficionado.”