In December 2017, the EPA approved revisions to the Louisiana State Implementation Plan (“SIP”) addressing regional haze. Neither environmental groups—Sierra Club and National Parks Conservation Association—nor affected utility companies—Entergy and Cleco—are satisfied with the EPA’s rule, and they are now petitioning the Fifth Circuit as intervenors on behalf of the EPA. Both sides filed briefs on October 30, 2018.

By way of background, Congress added regional haze provisions to the Clean Air Act (“CAA”) in 1977. The Act requires pollution sources that emit any air pollutant that may reasonably be anticipated to cause or contribute to visibility impairment to operate with the best available retrofit technology (“BART”).

In evaluating BART, the CAA requires states to balance cost with 1) the energy and non-air quality environmental impacts of compliance; 2) existing pollution control technology in use at the source; 3) the source’s remaining useful life; and 4) the visibility improvements that may reasonably be anticipated to result from the use of such technology.

The EPA issued BART Guidelines in 2005. The Guidelines help states determine whether BART applies to a particular source of pollution. In June 2008, Louisiana submitted its first Regional Haze SIP. The EPA did not approve the plan because it relied on the Clean Air Interstate Rule, which was judicially invalidated before the EPA ruled on the plan. The EPA also found deficiencies in BART determinations for four non-electrical generating units.

Louisiana submitted a revised SIP in July 2017, which the EPA approved in December 2017. The revised SIP was based on analysis conducted by the EPA and Entergy. The Fifth Circuit litigation primarily addresses the BART for Entergy’s Nelson power plant and Cleco’s Brame Energy Center, which both emit large amounts of sulfur dioxide. Continue Reading Utilities and Environmental Groups Spar over EPA’s Approval of Louisiana’s Plan to Address Regional Haze

MG+M obtained on June 1, 2018, an order granting summary judgment and dismissal of its client, a nationwide distributor of Asian food products in the 24th Judicial District Court for the Parish of Jefferson in the state of Louisiana. The plaintiff consumed sushi at a New Orleans area sushi restaurant and within days became violently ill, followed by 9 days of hospitalization caused by salmonella poisoning.  The Centers for Disease Control eventually traced the plaintiff’s poisoning to contaminated ground tuna that had been imported into the United States from India.  Some of the ground tuna that originated from India had been distributed by MG+M’s client to the New Orleans sushi restaurant chain.  Other defendants in the case included Little Tokyo Restaurant, and Moon Marine (settled manufacturer). Over 400 cases of the poisoning were reported nationwide, with many lawsuits brought in several jurisdictions.  The plaintiff’s alleged medical conditions resulting from the poisoning episode were: autoimmune thyroid disease, Cushing’s Syndrome, gastrointestinal problems, kidney tumors, lifetime vitamin B-12 deficiency, and Stargardt’s disease (early onset macular degeneration leading to blindness). MG+M persuaded the court, following ample discovery, that its client notified the New Orleans restaurant chain customer of the nationwide recall of the tuna product in a timely manner, and otherwise met its legal duty to the plaintiff and consuming public in this food-provider poisoning case.

MG+M’s Lake Charles Partner, David R. Frohn, was lead counsel, and he received excellent support from the firm’s New Orleans Associate, Helen M. Buckley.

 

A tale of two verdicts (1)Frequently as litigators, we are faced with questions about which factors can make or break a trial. The facts of each case and skill of counsel are obvious elements to obtaining a favorable verdict, but outcomes can also be heavily influenced by the venue, pre-trial rulings, voir dire, jury instructions and even the sheer whim of a jury.

Within the last few weeks, two separate verdicts came down in mesothelioma lawsuits. Both cases were heard in state courts, both cases involved a deceased plaintiff, both cases were brought by the same plaintiffs’ firm that specializes in asbestos claims, and both cases had only one defendant remaining at the time of verdict. However, one jury found for the defense, while the other awarded $81.5 million to the plaintiffs. What were the specific facts of each case, and what were the factors that might explain how two similar cases turned out so differently?

New Orleans, Louisiana

Mr. Thomas Hayden died of pleural mesothelioma in March 2016. He served in the Navy aboard the USS Edson in the 1960s, during which time he often worked in the boiler rooms. He later worked as a mechanic for a several decades, working on tractors, and, during this time, he also worked building scaffolding at various industrial facilities throughout South Louisiana. He alleged generally that he had worked with asbestos-containing friction products while working on tractors, and that he was in the vicinity of asbestos-containing products, particularly asbestos insulation, while he constructed scaffolding. Importantly, the plaintiffs in Hayden stipulated that they would not seek any damages for exposure to asbestos related to Mr. Hayden’s time in the Navy. Accordingly, the suit remained in state court.

Of the 72 originally sued defendants, only ExxonMobil, Corp. remained at the time of verdict. About 15 parties were dismissed via summary judgment, one (1) party was bankrupt, and the remaining parties settled or were dismissed voluntarily. Mr. Hayden was never employed directly by Exxon, but rather he allegedly worked as a contractor building scaffolding at an Exxon facility in Baton Rouge, Louisiana. He could not identify whether he worked on the chemical or the refinery side of the Exxon facility. He could not recall if the scaffolding he built was for new construction or maintenance. Nor could he recall handling any asbestos-containing products at Exxon.  Moreover, he could not identify the brand name or manufacturer of any products installed by other crafts. He could not even recall seeing any pipe insulation at Exxon. Finally, his work at Exxon was for a total of approximately one (1) week, sometime between 1982 and 1985.

Counsel for Exxon stressed Mr. Hayden’s inability to recall basic details about his alleged work at the Exxon facility, suggesting to jurors that this lack of memory was because Mr. Hayden never actually worked at Exxon. In closing arguments, counsel for Exxon contrasted the dearth of testimony regarding Mr. Hayden’s alleged work at Exxon with his ability to recall co-workers, supervisors, and products at other worksites. Counsel suggested to the jury that the real reason Exxon was sued was because plaintiff’s counsel gave Mr. Hayden a checklist of refineries and plants to “help” him recall where he had worked.

Although Exxon was the sole remaining defendant, fault allocation according to Louisiana law for a wrongful death claim allows for all potentially liable entities to be listed on the verdict form. Therefore, defendants are able to introduce evidence as to the fault of those entities, and the jury is presented with a relatively comprehensive list of parties when it begins its deliberations. After five (5) weeks of trial, the Hayden jury received a verdict form with 30 potentially liable entities, including the US Navy. Based on the evidence and arguments, the jury returned a defense verdict in Exxon’s favor, finding that exposure to asbestos on Exxon’s premises, if any, was not a substantial contributing factor in Mr. Hayden’s illness and death.

Tacoma, Washington

Mr. Jerry Coogan died of peritoneal mesothelioma in 2015. He served six (6) years in the Army National Guard from the 1960s to early 1970s. He also worked at the Wagstaff Machine Works in Spokane, WA for a little over one (1) year, a facility where Johns-Manville marinite board was fabricated; however, there was no direct evidence that Mr. Coogan worked directly in the area where the marinite was cut. He later started and operated his own excavating business, purchasing it from his grandfather in the mid-to-late 1970s. Also, Mr. Coogan’s hobby was restoring hot rods and classic cars. He alleged that he was exposed to asbestos through his work digging up old asbestos cement pipe, cutting and laying new pipe, working with automotive friction products, including gaskets, brakes and clutches, and through work on boilers in the late 1970s at the Boise Cascade facility in Kettle Falls, Washington.

Trial began with four (4) defendants, including three (3) automotive friction product manufacturers and one (1) asbestos cement pipe supplier. Plaintiffs’ case focused, for over two (2) months, on the liability of both the pipe supplier and the friction products. First, plaintiffs focused on Mr. Coogan’s excavation work, arguing that Mr. Coogan was heavily exposed to both crocidolite and chrysotile asbestos by cutting and installing asbestos cement pipe. Second, plaintiffs focused on Mr. Coogan’s work with gaskets, brakes and clutches, urging the jury to find that Mr. Coogan’s repair work on both his heavy machinery and his hobby cars also exposed him to heavy amounts of chrysotile asbestos.

None of the defendants disputed that Mr. Coogan’s disease was asbestos related.  Each defendant argued, however, that the evidence in this case failed to demonstrate either: (1) that he actually worked with their products; or (2) that any work with their products was sufficient to cause Mr. Coogan’s mesothelioma based on varying issues specific to each defendant. Defendants in the suit also filed a motion in limine to preclude the use of “Reptile Tactics” by plaintiffs’ counsel in voir dire, opening statement, witness examination or in closing. This MIL was denied by the court, with the judge specifically noting that under Washington law “conscience of the community” was a perfectly acceptable argument. Plaintiffs’ counsel embraced “Reptile Tactics” throughout the trial, for example, telling the jury that “hundreds of thousands” of people are dying from asbestos-related diseases each year, and that small-town-folks, like the community of Kettle Falls and Mr. Coogan, were not getting the warnings they should have from any seller of asbestos-containing products. At one point in the trial, plaintiffs’ counsel went further, attacking a defense expert by implying that he did not want to protect children from water-borne toxins and telling the jury that first responders to the World Trade Center terrorist attacks are now contracting asbestosis and other asbestos-related diseases. She told jurors that asbestos is “an epidemic for our country” that affects not only the people who worked with it, but spouses and children who did their laundry, and people in  communities across the county that lived even hundreds of yards away from facilities that manufactured, sold or even used asbestos-containing materials.

Over the course of the trial, the defendants cross-examined plaintiffs’ experts and presented evidence regarding whether Mr. Coogan actually worked with any of their individual products; the scientific evidence concerning whether chrysotile could cause mesothelioma at low doses; whether chrysotile asbestos could cause peritoneal mesothelioma, at all; whether low doses of asbestos, in any form, could cause peritoneal mesothelioma; whether their respective warnings regarding potential hazards of asbestos were timely and sufficient. Three (3) out of the four (4) defendants, however, dropped out over the course of two and a half (2 ½) months, leaving GPC/NAPA as the sole defendant at the time of verdict. Moreover, and of great importance, Washington law apportions fault jointly and severally in asbestos cases, and the only name submitted to the jury on the verdict form was GPC/NAPA. No other potentially liable parties were listed for the jury to consider. After quite literally months of testimony regarding Mr. Coogan’s asbestos-related disease, the jury rendered a verdict in plaintiffs’ favor against the only defendant on the form for $81.5 million.

Take Aways

State-specific laws can be as damaging to a case as a bad set of facts. Would the jury have returned a verdict solely against GPC/NAPA had other parties been listed on the form?  Would the verdict have been the same had plaintiff’s counsel been prohibited from asking the jury to be the conscience of the community? Did the length of the trial have a significant effect on the amount of the verdict?

It is easy to play Monday-morning quarterback and point out rulings we believe the judge got wrong or why the jury may have believed one expert over another. We are continually learning, both through our own experiences, and when possible, from the experiences of others. However, one important lesson to be learned from comparing the verdicts in Hayden and Coogan is that to be effective trial attorneys, we must understand and anticipate the complicated interplay of all of these factors, and must communicate and counsel our clients on both the benefits and risks associated with trial.

Artboard 1You get served with a citation in a new products suit. The facts do not look good. The airbag system didn’t deploy. Maybe a tire exploded. Perhaps the steering assembly failed. A call is made to the plaintiff’s attorney – you want an expert to use an onboard diagnostic tool to test for what went wrong. Expecting to reach an amenable date for an inspection, you get a response that you were not quite expecting – the vehicle (or tire or steering assembly) has been salvaged and is no longer available for inspection. What happens next, and the legal theories involved, undoubtedly vary from state to state. Here we take a brief look at Louisiana law on the “case of the missing product.”

Adverse Presumption

In Williams v. General Motors Corp., 639 So. 2d 275, 276 (La. App. 4 Cir. 1994), the plaintiff was driving as 1985 Buick manufactured by GM when his steering failed and his vehicle veered into a guardrail. After the accident, the Williams’ damaged vehicle was taken to Jackie Rowan’s Automotive Repair where “[a]n employee of the repair shop discarded the rack and pinion steering assembly. Mr. Williams, therefore, could not produce those parts at the trial in support of his claim that they were defective.” Id. at 278. General Motors asserted that the failure to produce those parts in court “creates a presumption that the evidence would have been unfavorable to his cause.” Id. The court held that “[w]here a litigant fails to produce evidence available to him and gives no reasonable explanation, the presumption is that the evidence would have been unfavorable to him….the record supports Mr. Williams’ contention that the part was inadvertently discarded when it was mistaken for scrap metal by an employee of Jackie Rowan’s Automotive Repair Shop.” Id. The court held that Mr. Williams therefore provided a reasonable explanation for his failure to produce the evidence in court and no such unfavorable presumption applied. Id.

While in the Williams case the plaintiff was able to provide a ‘reasonable explanation’ for his failure to produce the allegedly defect part, such a determination is fact intensive and varies from case to case. Depending on the plaintiff’s response to the inquiry requesting an inspection of the product, there may be an opportunity to seek an adverse presumption prior to trial.

 

The Firestone Case & Summary Judgment

firestoneAlternatively, if the facts so align, a more cost effective approach may be a motion for summary judgment. In a very recent case, Gladney v. Milam, 39, 982 (La. App. 2 Cir. 9/21/15); 911 So. 2d 366, the plaintiff was driving a leased van equipped with Firestone tires when the van’s right front tire failed and the plaintiff lost control of his vehicle. Firestone filed a motion for summary judgment on the grounds that plaintiff could not prove a defective condition without producing the tire at issue, which had gone missing for reasons unknown. Id. at 368. The plaintiff had “photographs of the damaged tire, a copy of the state police accident report listing tire failure as the cause of the accident, [and] the affidavit of Sidney Youngblood, a manager of a tire store who had reviewed photographs of the tire, and correspondence concerning the location of the tire.” Id. The court ultimately held as follows:

 

At trial, the plaintiffs would have the burden of proving by a preponderance of evidence that a characteristic of the tire made it unreasonably dangerous, or that the tire was negligently maintained, thereby causing the accident. However, the plaintiffs’ experts did not know the air pressure at the time of the accident or when the pressure was last checked, and could only speculate that the tire was defective given the visible damage to the tire depicted in the photographs. Thus, although the circumstantial evidence offered by plaintiffs raised several plausible explanations for the cause of the tire’s failure, the record does not contain sufficient evidence from which a reasonable juror could conclude that more probably than not the accident was caused by either a defective condition of the tire or negligent maintenance.

Consequently, we cannot say the district court erred in granting summary judgment in favor of Firestone . . . . Id. at 372.

 

While the above brief discussion only serves a cursory analysis of the ‘Case of The Missing Product,’ it shows that when you have a products liability case with no product, there are substantively powerful and potentially cost effective procedural paths to go down that can advantageously position a manufacturer’s defenses. Proper discovery inquiries also undoubtedly go a long way toward setting the framework for these defenses and, as in any case, require attention to detail so as to garner the right information.