Concern is raised over bisphenol-A (BPA) in printed cash register receipts [Gordon Gibb, Lawsuits and Settlements] Adds reader Rogers Turner: “Brilliant…what does almost every single person in the U.S. touch multiple times a day?”
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toxic torts
An editorial in the Palm Beach Post advises reader caution about the glamorous tort-chaser’s efforts to drum up clients for Weitz & Luxenberg and Searcy Denney Scarola Barnhart & Shipley based on allegations of a cancer cluster with a claimed link to radioactive drinking water:
The lawyers discussed water samples from 10 homes of cancer patients that showed at least trace amounts of radium, a naturally occurring metal. Those studies, however, echoed Florida Department of Environmental Protection results from 50 randomly selected homes. …
…one resident concluded on a Web site after the meeting: “Last night, we were validated.” Amid the personal appeals came the business pitch. Attorney Jack Scarola explained the contingency contract, which means that clients would pay nothing, even if they lost. He urged residents to take their time reading the contract because if “you inform yourselves well, you will find it’s in your best interest to sign with us.”
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- “Jury Says No to Libel Claim Over Truthful E-Mail” [NLJ, Ardia/Citizen Media Law; high-profile First Circuit Noonan v. Staples case, earlier here and here]
- Transmission of folk music is getting tangled in copyright claims [BoingBoing]
- Scientific shortcut? Veterans Department will presume Parkinson’s, common heart ailment are caused by Agent Orange for GIs who set foot in Vietnam [NY Times]
- Federal hate crimes bill: yes, courts will consider speech and beliefs in assessing penalties [Sullum and more, Bader]
- Texas trial lawyer Mark Lanier’s famed Christmas bash will feature Bon Jovi this year [ABA Journal, background here and here]
- Let’s explain our Constitution to her: U.K. cabinet minister thinks Arnie can close private website because it’s based in California and he’s governor [Lund, Prawfsblawg]
- Ten best Supreme Court decisions, from a libertarian point of view? [Somin, Volokh]
- Cert petition on dismissal of suit against Beretta shows Brady Center still haven’t given up on undemocratic campaign to achieve gun control through liability litigation [Public Nuisance Wire interview with Jeff Dissell, NSSF]
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Another round of coverage [BBC] for a health peril we’ve covered a number of times in the past. Gawker: “How many more people must die before Michael Bloomberg does something about candles? Children can buy them and everything! We must sue Big Candle.”
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Judge Kurt Engelhardt of the Eastern District of Louisiana, who held in October that the Federal Emergency Management Agency does not enjoy immunity from suit by plaintiffs seeking to recover from exposure to formaldehyde in trailers, yesterday dealt plaintiffs a setback by holding that they are not entitled to present their claims against various trailer manufacturers through a class action.
I have not read the opinion, but one can find a good summary of the issues presented in this story from the Times Picayune, which emphasizes the court’s concern over impossibility of determining liability, proximate causation of injury, and damages for a “class” of people of varying health, age, demographics, and lengths of exposure. Each plaintiff will have to try his or her case separately.
All of the above are individual issues that render analysis on a class-wide basis utterly impossible, ” Engelhardt ruled in a 50-page decision. “Each plaintiff’s claims and alleged injuries will require an examination of individual evidence.
This makes sense because, from a practical standpoint, it would be impossible to present over 100 chemical injury claims to one jury, a problem that isn’t present in class settlements such as Vioxx. (The Vioxx case still had problems aplenty.) The opinion also emphasizes that each of the trailer manufacturer defendants may have separate defenses, including different manufacturing techniques and levels of formaldehyde within its trailers.
If anyone knows of a publicly available link to the opinion (I’m not writing this from a computer where a PACER download would be practical), it would be greatly appreciated.
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Apparently a few of the ones with exotic striations have enough radioactive mineral content that you might have to worry if you spent many of your waking hours strapped to them as to a hospital gurney. (Staying even a few inches away should be enough to lower the risk to pretty much zero, which is fortunate given that the posture most of us use while chopping celery does not involved prolonged whole-body contact.) Nonetheless, per a New York Times account yesterday that does little to discourage reader alarmism, “Personal injury lawyers are already advertising on the Web for clients who think they may have been injured by countertops.” (Kate Murphy, “What’s Lurking In Your Countertop?”, Jul. 24).
Let me be the first to predict that if such litigation has any future, it will not be in recovering large sums for the unprovable (because almost certainly nonexistent) toxic effects, but in $20,000 claims against insurers and contractors for rip-out and replacement*, which, in the usual circular fashion, will be stimulated by alarmist accounts like the one in the Times. And the predominant injury risk from a chunk of hewn granite will continue to be, as it has always been, being in the way when it drops.
*I’m not sure why people choose a countertop material that will dull their knives and chip their china, to say nothing of being cold and ungrateful to the touch. But that’s another topic.
P.S. The EPA has a statement (scroll).
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In 1991 portions of Texas’s Rio Grande Valley saw an upsurge in babies born with neural-tube defects. Litigation resulted:
Residents and lawyers had blamed pollution, and General Motors and other U.S.-owned factories paid $17 million without admitting wrongdoing to settle a lawsuit accusing their border factories of poisoning the air.
The claimed linkage of cause and effect between the factory pollution and the birth defects was, to say the least, much controverted at the time, and is looking even less impressive in hindsight:
no chemical links to the disease were ever proven, and Texas health officials began suspecting fumonisin, a toxin in corn mold. Experts had noted a high concentration in the corn harvest just before the outbreak. Some Texas horses died from brain disease caused by the toxin.
Now, a study in the February issue of the journal Environmental Health Perspectives adds impetus to the corn-mold theory:
The study found that pregnant women who ate 300 to 400 tortillas a month during the first trimester had more than twice the risk of giving birth to babies with the defects than did women who ate fewer than 100 tortillas.Blood samples indicated that the higher the level of fumonisin, the greater the risk of neural tube defects.
Tortillas are an inexpensive dietary staple along the Texas-Mexico border, and studies suggest that the average young Mexican-American woman along the border eats 110 a month.
(”Study: Bad corn caused birth defects”, AP/Seattle Post-Intelligencer, Feb. 8). See also Dallas Morning News, Mar. 4, 2001; AP, Jan. 2001; Nicole Foy, “Border birth defects are tied to poverty”, San Antonio Express-News, Apr. 9, 2004.
Among its other implications, the episode may suggest the safety gains to be had in the shift from a pre-modern food regime based on local farm and home production to the sort of industrially based food regime more familiar to most Americans. Even aside from the issue of folic acid fortification, a big-city tortilla factory run by a large company would probably have had a better likelihood of screening out moldy batches of corn.
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Two plaintiffs, Alida Hernandez and James Moore, had claimed that the chemicals used in the “clean rooms” by IBM had led to “systemic chemical poisoning” of themselves and other IBM workers, and that company executives knew about the hazard and concealed it. (The latter allegation was necessary to get around California worker compensation law, which doesn’t permit recovery merely for a hazardous workplace.) IBM protested that rubbing alcohol and acetone, the main chemicals the workers handled, weren’t dangerous unless ingested; that there was no such thing as “systemic chemical poisoning” that led to disparate diseases of non-Hodgkin’s lymphoma and breast cancer; further, the plaintiffs “had a host of health problems, including diabetes, smoking and obesity, that defense experts said may have contributed to the development of cancers.” (Moore smoked two packs a day.) The Santa Clara jury agreed, unanimously finding that the plaintiffs did not suffer from “systemic chemical poisoning.” Plaintiffs’ lawyers now go to New York, where they hope to blame birth defects of a woman who was six months’ pregnant when she started at IBM on the company (see Sep. 25). “Because of the heart-wrenching anecdotes from cancer victims and relatives, many companies settle such cases out of court – sometimes for hundreds of millions of dollars. Several IBM chemical suppliers initially named in Moore and Hernandez’s case reached settlements last year.” (Shannon Lafferty, “IBM Cleared in Toxic-Exposure Trial”, The Recorder, Feb. 27; Elise Ackerman and Therese Poletti, “Jurors rule for IBM in toxics suit”, San Jose Mercury News, Feb. 27; Chris Gaither and Terril Yue Jones, “IBM Found Not Liable for Ex-Workers’ Cancers”, LA Times, Feb. 27; Matt Richtel, “I.B.M. Wins Ex-Workers’ Cancer Suit”, NY Times, Feb. 27; Benjamin Pimentel, “IBM case goes to jury”, San Francisco Chronicle, Feb. 25; Rachel Konrad, “Jurors debate whether IBM lied about cancer-causing chemicals”, Canadian Press, Feb. 24; Peter Aronson, “Wave of IBM Suits Reaches Trial”, National Law Journal, Feb. 13; Therese Poletti, “Final witness testifies for IBM”, San Jose Mercury News, Feb. 12; Michael Santarini, “Allergist refutes chemical poisoning claims against IBM”, EE Times, Feb. 10; Rick Merritt, “Chemical exposure did not cause IBM-ers’ cancer, says expert”, EE Times, Jan. 30; full EE Times IBM trial coverage).
Did you know that MSNBC talk host and former Republican Congressman Joe Scarborough is an attorney with Pensacola, Fla.’s Levin Papantonio, one of the nation’s premier mass tort firms, which has its fingers in everything from asbestos, breast implants and prescription drugs to aviation accidents to tobacco to Wall Street to environmentalist assaults on factory farming? Or that Scarborough continues on the firm’s payroll despite his on-air fame? We didn’t. Now Scarborough has gotten in a bit of trouble by inviting name partner Mike Papantonio to come on the show and attack “a wood-preserving company called Osmose, saying it makes a dangerous product used in playground equipment and has ‘figured out how to poison our children and make a profit in the meantime.’” — all without mentioning that Papantonio is his law partner and that his/their firm happens to be suing Osmose. (Howard Kurtz, “MSNBC Host Gets Bitten by His ‘Rat of the Week’”, Washington Post, Sept. 13; Doug Haller, “Joe-TV”, Pensacola News Journal, Sept. 14). Radley Balko and Arthur Silber comment. (Update Jan. 3: Scarborough ceases taking stipends from law firm).
How dangerous is “pressure-treated” (chemically preserved) wood, anyway? Once you get past the scare-headlines about arsenic on the playground, the National Law Journal noted in March that trial lawyers suing makers of the wood have enjoyed very limited success, one reason being that there is no particular illness that predictably results from routine exposure to chromated copper arsenate (CCA). Take care not to inhale gusts of sawdust or fumes from burning wood, and it seems you’re unlikely to have anything to worry about (David Hechler, “The Poisoned Wood Mystery”, National Law Journal, Mar. 20)
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