Ear To The Ground

Do homeowners policies protect against liability from fracking operations? Probably not

My partner Dean Pappas and I recently had an article published by Best's Review (February 2012) that looks at the potential risks that arise from hydrofracking operations, and the extent to which a typical homeowner's insurance policy covers the damages and harms that may arise. For those of you interested in this subject, the article can be found at http://www.rmkb.com/tasks/sites/rmkb/assets/image/2-2012%20-%20Best's%20Review.pdf.

Messrs. Pappas & Clarke wish to thank Best's Review for publishing the article.

Children in nonsmoking families have higher levels of secondhand exposure if they live in multifamily dwellings

Prior posts have noted some of the chemical and adverse health effects that arise from the smoking of tobacco; a recent post also discussed the science developed to date regarding so-called thirdhand smoke.

Children who grow up in apartment buildings are more likely to inhale secondhand tobacco smoke than are kids living in detached homes, even if no one in their household ever lights a cigarette.  As evidence of the excess exposure, the researchers found that those living in apartments excreted 45 percent more cotinine, which is a marker of nicotine exposure, than children who grew up in detached houses.  Despite the fact that, depending on the type of dwelling in which they lived, cotinine concentrations were quite low (averaging 0.053 to 0.075 nanograms per milliliter of urine among all 5,002 kids, aged 6 to 18), such concentrations can enduce changes in behavior.  The researchers note that many studies have linked even low-level exposures to secondhand tobacco smoke to behavioral changes and an increased risk of allergy and asthma.  It should also be noted that the 2006 Surgeon General's report noted that there is no safe level of second-hand smoke.

The underlying study, as well as additional information that bears on this issue, can be found at http://pediatrics.aappublications.org/content/early/2010/12/13/peds.2010-2046.abstract?ijkey=6603bfff18bf547824f8ea580ccfdbd61d0e77b8&keytype2=tf_ipsecsha, http://eprints.gla.ac.uk/42802/, http://pediatrics.aappublications.org/content/127/1/93.abstract, and http://tobaccocontrol.bmj.com/content/18/6/438.short.

EPA adds 16 chemicals, each reasonably anticipated to be carcinogenic, to the TRI inventory requirements

On November 26, 2010, EPA finalized a rule, which became effective on November 30, 2010, that adds 16 chemicals to the TRI list of reportable chemicals. This is the first TRI program chemical expansion in over a decade.  Each chemical added has been classified as "reasonably anticipated to be a human carcinogen" by the National Toxicology Program in their Report on Carcinogens document. EPA has concluded, based on a review of available studies, that these 16 chemicals could cause cancer in humans and therefore meet the EPCRA section 313(d)(2)(B) statutory listing criteria.  [Based on this finding, California is likely to add these chemicals to the Proposition 65 list of chemicals, assuming they are not already listed.]

Four of the chemicals are being added under the polycyclic aromatic compounds category. The PAC's category is deemed to be of special concern because PAC's are persistent, bioaccumulative, toxic chemicals, and as such they are likely to remain in the environment for a very long time, are not readily destroyed, and may build up or accumulate in body.

The 16 chemicals are: 1-Amino-2,4-dibromoanthraquinone, 1,6-Dinitropyrene, 2,2-bis(Bromomethyl)-1,3-propanediol, 1,8-Dinitropyrene, Furan, 6-Nitrochrysene, Glycidol, 4-Nitropyrene, Isoprene, Methyleugenol, o-Nitroanisole, Nitromethane, Phenolphthalein, Tetrafluoroethylene, Tetranitromethane, Vinyl Fluoride,

Information about the chemicals and the TRI program can be found at http://www.epa.gov/tri/lawsandregs/ntp_chemicals/final.html. 

In litigation, experts need to refer to hard data and to note how they arrived at their conclusions, notes Connecticut District Court. Duh

It seems like second nature, but in trial one always needs to make sure that one's expert(s) point to specific data related to contaminants at a site or area under consideration in order to support their conclusions and to demonstrate that alternative explanations have been ruled out.  The failure so to do cost the plaintiff his lawsuit in Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 54135 (D. Conn. 2009) [a case noted in a prior post regarding a motion by defendants].

 

Plaintiff's property was contaminated with organic pollutants identified as polychlorinated biphenyls (PCB’s).  The experts for plaintiffs, who certainly had the credentials to address the issues in the case, concluded that the operators of adjacent property were responsible for the PCB contamination on plaintiff's property without considering any other explanations, let alone the obvious alternative causes, because the experts did not consider whether other nearby industrial properties were a source of the PCB’s on plaintiff's property.  The District Court found that the experts' methods and opinions were not capable of being tested or verified because the underlying data was not available.  The opinions were neither based on sufficient facts or data nor the product of reliable principles and methods.  Plaintiff's expert testimony was insufficiently reliable to be admissible, the Court held.  Without the experts' testimony, plaintiff could not have established a causal relationship between the costs it incurred in cleaning up its property and the PCBs found on the adjacent property, as required by 42 U.S.C. §9607(a)(4).

 

This case also has a spoliation aspect to it that will be discussed in a forthcoming post.

Federal judgment may collaterally estop re-litigation of the same action in state court, rules California Supreme Court

In a case which has application to environmental and toxic tort cases, by analogy, the California Supreme Court in Hernandez v. City of Pomona (2009), 46 Cal.4th 501, held that a Federal judgment may operate as collateral estoppel to preclude re-litigation of the same issues in a subsequently filed state court action.  In Hernandez, the plaintiff filed and lost a 1983 action in Federal court; he subsequently filed a wrongful death action in state court, based on the same set of facts.  The California Supreme Court applied collateral estoppel under this circumstance.

It is rare for environmental and toxic court cases in California to not include, if applicable, both Federal and State causes of action in the original complaint.  However, this case notes the risk of not so proceeding, and attempting to address Federal and state causes of action sequentially.

[For the sake of full disclosure, I should note in passing that the City of Pomona is a client of mine.]

Consistent with various rulings by federal courts, California's Court of Appeal holds that service on a foreign corporation is effective by serving the American subsidiary as the "manager"; the Hague Service Convention need not be followed

To say that the Hague Service Convention is a pain when it comes to serving a foreign company is an understatement.  It greatly slows a case because of the time consuming manner of service dictated by the Hague Service Convention.  Consistent with numerous rulings by Federal courts in the 9th Circuit, California's Court of Appeal in Yamaha Motor Co. Ltd. v. Superior Court (2009), 174 Cal.App.4th 264, held that service upon an American subsidiary of a foreign corporation is sufficient.  The Court did note, however, that such service may impair the ability of the party to execute abroad on any judgment obtained.

I should note in passing that the 9th Circuit permits service of a foreign corporation by Federal Express as long as the country in which the corporation is located has not opted out of the service-by-mail provision of the Hague Service Convention.  Thus, parties that seek to circumvent the Hague Service Convention's more traditional modes of service may wish to consider serving both the U.S. subsidiary and, if permitted, serving the parent by FedEx, especially given the cost savings.

Summary judgment cannot be subject to stipulation, rules California Court of Appeal

Occasionally, as a vehicle to get a case before an appellate court, especially when the sole question is one of law (not fact), parties will stipulate to a summary judgment in the trial court.  Following cases noted in prior posts, the Court of Appeal in Magana Carthcart McCarthy v. CB Richard Ellis, Inc. (2009), 174 Cal.App.4th 106, held (2-1) that a trial court may not grant summary judgment by stipulation unless the procedural requirements of Section 437c Code of Civil Procedure are followed.  This case follows in the footsteps of prior opinions that have held, consistent with California law, that explicit statutory requirements trump stipulations or other attempts to modify statutorily mandated procedural requirements.

Revivor of corporate powers can be applied retroactively, rules California appellate court

The general rule in California is that a corporation that is suspended (e.g., failure to file corporate tax returns) cannot file suit or a "responsive pleading" (e.g., answer, demur).  In Center for Self-Improvement v. Lennar Corp. (2009), 173 Cal.App.4th 1543, the plaintiff was suspended at the time that it gave notice under Prop. 65, a prerequisite to filing a lawsuit.  The trial court granted judgment for defendant on the grounds that plaintiff lacked standing.  The Court of Appeal reversed.  The Court noted that under Section 23301 Revenue & Tax Code, once deliquencies are corrected, revivor of the corporate status occurs "without prejudice to any action, defense, or right which has accrued."  The Court found that the revivor operates retroactively, thus validating the notice.

It is for this reason that any party seeking to disqualify an opposing party in an environmental or toxic tort or Prop. 65 action usually waits until the last moment (e.g., eve of trial) to raise the issue so that the opposing party lacks the time needed to correct the error.

California Governor signs new e-discovery legislation; it is effective immediately

Federal and State rules pertaining to e-discovery have been at odds for several years.  After several attempts, California has now enacted explicit e-discovery rules that will impact all litigation, including that related to environmental and toxic tort issues in State court.  A copy of the State legislation can be found at http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0001-0050/ab_5_bill_20090629_chaptered.html.  Since the bill is "urgency legislation" it takes effect immediately.

A copy of an e-discovery hold letter can be found at http://www.ediscoverycalifornia.com/insights/pdf/Preservation%20of%20Electronic%20Data.pdf.  [My thanks to the blog, e-Discovery Insights.] 

More later.

California Bay Air AQMD proposes faster phase-out of PCE dry cleaning

The staff of the Bay Area Air Quality Management District has proposed accelerating the phase-out of PCE dry cleaning equipment.  Under Regulation 11, Rule 16, the current deadline is for all PCE dry cleaning machines co-located in residential facilities, all converted machines, all machines manufactured prior to 1995, and all machines of unknown manufacturing date to cease operation by 7/1/10.  The staff is considering changing the date on machines made before 1995 to those made before 1998, 2000, or 2002.  Currently all machines manufactured after 7/1/95 must cease operation after 15 years; the staff is considering changing the 15 years time frame to 12, 10, or 8 years.  Currently all PCE machines are prohibited by 1/1/23; staff is considering changing the cutoff date to 2020, 2018, or 2016.

A workshop will take place tomorrow, June 10, from 1-3pm to address the proposed changes.