Ear To The Ground

Cash register and credit card receipts are a likely source of BPA exposure

Prior posts have noted the controversy surrounding BPA, and the enormous evidence that it poses a significant threat to human health.  As noted in prior posts, research has been demonstrating that BPA is an estrogen-mimic that leaches out of polycarbonate plastics, resins used to line most food cans, and dental sealants; besides impacting gonads, there is also some evidence that BPA may make individuals more likely to develop cancer in the future.  Most of the concern has focused on the use of BPA in various plastics, and the leaching of BPA from these plastics into liquids contained in the bottles, tubing, and cans.  Now, cash register and credit card receipts have been identified as a potential route of exposure.

 

Some carbonless copy papers (now used for most credit card receipts) and the thermal imaging papers that are spit out by most modern cash registers, rely on BPA.  Manufacturers coat a powdery layer of BPA onto one side of a piece of paper together with an invisible ink.  When heat or pressure is applied, the ink and BPA would merge to yield color.

 

When reviewing the potential for harm from BPA in polycarbonate bottles, the quantities described as the leaching of nanogram quantities.  In contrast, the average cash register receipt that uses the BPA technology [and not all of them do] apparently has 60 to 100 milligrams of free BPA.  Free-BPA is not bound into a polymer, like the BPA in polycarbonates; in contrast, it represents individual molecules of BPA that are loose and, one might say, ready for uptake.  Ironically, this may mean that in the urban environment the largest source of human exposure to BPA is in the form of credit card and cash register receipts.

 

Once on the fingers, BPA can be transferred to foods.  Additionally, researchers note that some hormones (like estrogen in certain birth-control formulations) are delivered through the skin by controlled-release patches.  Thus, researchers are justifiably concerned that estrogen mimics like BPA might similarly enter the body through the skin.  The particular route is not a certainty at present.  BPA and real estrogen do not have the same structure, so their permeability might vary.  Additionally, there are all kinds of materials in the skin that might selectively degrade or alter this hormone imposter as it passes through.  At present, no one knows.

 

The data on this issue has not yet been published in a pier-reviewed journal.  However, media stories on the research can be found at http://www.usnews.com/money/blogs/fresh-greens/2009/10/08/bisphenol-a-another-reason-you-dont-need-your-receipt and http://www.newsinferno.com/archives/13299.

Adverse health impacts from 9-11 continue to linger, and in some cases worsen

Prior posts have noted studies of the adverse health impacts of exposure to the airborne waste products of the collapse of the World Trade Center twin towers.  A new study has found that as a result of exposure to 9-11 events and airborne wastes, as many as 25,500 people have developed asthma.  Even more, an estimated 61,000 have experienced post-trauma stress and related mental health problems after witnessing the twin towers fall; approximately 409 thousand were in the vicinity of the collapse.

 

Using telephone, e-mail and in-person interviews, researchers created a health registry by surveying more than 70,000 of the 409,000 in 2003 and 2004 and contacting 46,000 in a second survey in 2006 and 2007.  Survey participants were all adults and included office workers, residents of the area, passersby and rescue workers.  The new data show that more than 10% of exposed people who did not have asthma before the attack developed the breathing disorder during the six years afterward; normally, according to the researchers, less than 3% of the adult population would be expected to develop asthma over a six-year period.  Not surprisingly, the hardest hit were rescuers who worked on the rubble pile.  The survey shows that 21 percent of those workers with no previous history of asthma have developed it since the disaster.  Even among passersby with no history of the ailment (most of whom spent less than a day in the dust) the asthma incidence is now nearly 9 percent.  [This again demonstrates the deadly nature of the dust cloud that formed, and also again shows the shameful conduct of key EPA personnel who rushed to “assure” the public that the dust and debris did not pose a significant risk.]

 

Although the number of new asthma cases among people in this registry declined between surveys, the percentage reporting post-trauma stress symptoms in the second survey was higher than in the first.  Among those near the towers on September 11 who reported no traumatic stress before the attacks, 14 percent reported symptoms of it in the first survey and 19 percent in the second survey.  About half of those reporting emotional stress several years after the event said they did not seek care for it, suggesting their quality of life may be suffering, according to the researchers.

 

The data from those contacted was extrapolated to the 409,000 people in the towers’ vicinity.  The researchers thus estimate that conservatively 25,500 people may have developed new asthma and 61,000 may have experienced post-trauma stress since the disaster.

 

The study can be found at http://jama.ama-assn.org/cgi/content/abstract/302/5/502?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&fulltext=post-traumatic+stress+syndrome+9%2F11&searchid=1&FIRSTINDEX=10&resourcetype=HWCIT.  A news release pertaining to the study can be found at http://pubs.ama-assn.org/media/2009j/0804.dtl.

Connecticut Federal District Court bars evidence of soil samples as sanction for failure to preserve evidence

Two prior posts have noted holdings in the case of Innis Arden Golf Club v. Pitney Bowes, Inc. (D. Conn. 2009).  One of the holdings in the more recent case deserves further expansion and analysis.

In the holding at 257 F.R.D. 334 (2009 U.S. Dist. LEXIS 43588), one of the key issues was the failure of plaintiff to preserve evidence of contaminated soil from samples taken at the relevant property.  The Court held that the plaintiff had a duty to preserve the evidence once the plaintiff began to focus on the defendant as the source of the contamination, even if such occurred before the case was filed.  The Court found that the rule laid down in Kronisch v. U.S., 150 F.3d 113 (2nd Cir. 1998) was controlling:  "the obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation."  Because of this spoliation, the Court sanctioned the plaintiff by baring evidence from soil samples.

However, there are a number of questions that make this so-called general principle of questionable merit or application.  First, frequently samples can be duplicated.  If a party merely has to engage in ordinary site characterization activities to assess the causal issues, then the penalty imposed seems not only unduly harsh, but illogical.  Second, preservation of evidence in some cases is irrelevant because the sample cannot be tested in a meaningful manner.  Unlike the PCB's in this case in which there is no holding period limit, many chemicals and other contaminants must be tested within a fixed number of days or weeks of the taking of the sample [plus preserved in a specified manner] in order to yield results that are deemed meaningful and accurate.  Those time periods are often as short as a month.  Laboratory analyses made after the expiration of the holding period are deemed invalid.

Thus, the reality of this issue is much more complicated and complex than this ruling would appear to suggest.  However, prudence suggests that samples, even if meaningless will have to be preserved.  Given the time limits, counsel will need to consider if notice needs to be given to potential targets so that they can conduct their own testing even before a case is filed.  Of course, access agreements (with the usual indemnity and insurance requirements) will also be needed to make sure that third parties do not add to site contamination or cause contamination to be spread.  Data sharing requirements will also need to be part of any agreement.  The parties will have to be realistic to a fault in terms of engaging in good faith and speedy negotiations if they do not want another layer of complexity to be added to a case. 

Finally, the issue has general application to all types of environmental and toxic tort litigation.

So-called safe lead levels have adverse impacts on children, notes new study from University of Bristol

Researchers from the University of Bristol Centre for Child and Adolescent Health set out to see if there was any effect on the behavior and intellectual development of children who had ingested just below the so-called safe level of 10 micrograms per deciliter (or tenth of a liter) of blood.

 

The Bristol researchers took blood samples from 582 children at the age of 30 months.  They found 27% of the children had lead levels above five micrograms per deciliter.

 

They followed the children's progress at regular intervals and then assessed their academic performance and behavioral patterns when they were seven to eight years old.  After taking account of factors likely to influence the results, they found that blood lead levels at 30 months showed significant associations with educational achievement, antisocial behavior, and hyperactivity scores five years later.  With lead levels up to five micrograms per deciliter, there was no obvious effect.  But lead levels between five and 10 micrograms per deciliter were associated with significantly poorer scores for reading (49% lower) and writing (51% lower).  A doubling in lead blood levels to 10 micrograms per deciliter was associated with a drop of a third of a grade in their Scholastic Assessment Tests (SAT's).  And above 10 micrograms per deciliter children were almost three times as likely to display antisocial behavior patterns and be hyperactive than the children with the lower levels of lead in their blood.

 

Details on the study can be found at http://www.bristol.ac.uk/news/2009/6550.html.

The biochemical mechanism by which alcohol exerts its effects on the brain has been uncovered

Although alcohol has been consumed for millennia for its intoxicating properties, only recently has the biochemical mechanism by which the effect is caused been elucidated.  Researchers, utilizing results of recent research, have proposed a model that appears to explain the effects.  If further research confirms the research, then a potential new path for treatment of alcohol abuse may be found.

An NIH synopsis of the research results can be found at http://www.nih.gov/news/research_matters/july2009/07132009alcohol.htm.

CERCLA does not completely preempt state law causes of action arising from contamination, holds California District Court

Plaintiff California Water Service Company is a public utility water corporation that owns and operates public drinking water systems.  The complaint alleges that PCE and its degradation products ("PCE") are contaminating and damaging plaintiff's drinking water supply wells in dispersed locations throughout the state.  Plaintiff alleges that defendants are manufacturers, distributors, and retailers of PCE and/or PCE-containing products that caused the contamination of plaintiff's wells.  The complaint alleges eight state law causes of action: (1) strict products liability (design defect); (2) strict products liability (failure to warn); (3) nuisance; (4) trespass; (5) negligence; (6) negligence per se; (7) California Civil Code violations; and (8) equitable indemnity.  Plaintiff seeks to recover compensatory and all other damages, including but not limited to all necessary funds to reimburse plaintiff for "the costs of designing, constructing, installing, operating and maintaining the treatment facilities and equipment required to comply with state and federal safe drinking water laws and to remove PCE from the drinking water it supplies to the public and/or for the costs of securing alternative sources of water as a result of the PCE contamination ...".

 

Defendant PPG Industries, Inc., filed a timely notice of removal.  Defendant's notice of removal states that the eighth cause of action for equitable indemnity is actually a claim for contribution under CERCLA.  Defendant noted that the eighth cause of action for "equitable indemnity" alleged that the California Department of Toxic Substance Control ("DTSC") pursued an enforcement action against plaintiff arising from PCE contamination in Chico, California, and that a settlement between DTSC and plaintiff was approved by a court on May 23, 2007.  In contrast, the eighth cause of action alleged that plaintiff "is in no way legally responsible for the events giving rise to the Settlement, nor legally responsible in any manner for the damages allegedly sustained by DTSC" and that defendants' acts "were the direct and proximate cause of the PCE contamination that was the subject of DTSC's complaint and action against Plaintiff."

 

Plaintiff moved to remand, contending that the eighth cause of action arises under state law, not CERCLA, and also contending that PPG's notice of removal is procedurally defective because defendant MW Equipment did not join in the removal.

 

In Cal. Water Service Co. v. Dow Chem. Co. et al, 2008 U.S. Dist. LEXIS 109675 (N.D.CA. 2008), the District Court considered the issue.  The Court noted that “It is well-established that CERCLA does not completely preempt state law claims. See generally ARCO Environmental Remediation, L.L.C. v. Montana, 213 F.3d 1108 (9th Cir. 2000). Defendants do not contend otherwise, but instead argue that because the DTSC's lawsuit against plaintiff, and the resulting settlement, were under CERCLA, that the eighth cause of action necessarily also arises under Section 113(f)(3)(B) of CERCLA. As an initial matter, the Court notes that on its face, the eighth cause of action does not plead the elements of a Section 113(f) claim for contribution…”.  The Court also found that the cases cited by Defendants were not applicable to the issue at hand.  Further, “Defendants argue that because plaintiff settled the CERCLA action with the DTSC, plaintiff is a liable party under CERCLA. While that is correct, the Court finds that it is defendants' status, not plaintiff's, that is relevant for purposes of analyzing the nature of plaintiff's equitable indemnity claim. Here, defendants were not parties to the DTSC CERCLA action, and have never been alleged to be PRPs under CERCLA. Although not directly on point, the Court finds persuasive Edward Hines Lumber Company v. Vulcan Materials Company, 685 F. Supp. 651 (N.D. Ill. 1998), aff'd 861 F.2d 155 (7th Cir. 1988), where the court held that a defendant who was not a PRP under CERCLA could be subject to liability under state law… Here, although there has been no judicial determination that defendants are not PRPs under CERCLA as there was in Edward Hines, there has been no allegation either in the DTSC action or the instant lawsuit that defendants are PRPs under CERCLA. Accordingly, the Court finds that defendants' authority, which all addresses claims within a CERCLA context, to be inapposite. In light of the general principle that CERCLA does not completely preempt state law, and in the absence of any cases holding that a plaintiff may not pursue an equitable indemnification claim under state law against defendants who are not alleged to be PRPs under CERCLA, the Court holds that plaintiff's eighth cause of action arises under state law, not CERCLA. Because the Court finds that there is no basis for federal jurisdiction, the Court does not address the parties' arguments regarding the procedural defect in removal. Accordingly, the Court GRANTS plaintiff's motion for remand.”

       

Prenatal exposure to PAH's associated with lower IQ in young children who were exposed in utero

Researchers recruited pregnant mothers between 1998 and 2003; the mothers were monitored for their exposure to polycyclic Aromatic Hydrocarbons (PAH's) throughout their pregnancy.  PAH's are one of the byproducts of incomplete combustion of fossil fuels, tobacco, and other organic matter, and have been associated with cancer and other health and environmental problems.  [A synopsis of the human health effects can be found at http://toxnet.nlm.nih.gov/cgi-bin/sis/search/f?./temp/~zyPGLL:1:human; a summary of animal toxicity studies can be found at http://toxnet.nlm.nih.gov/cgi-bin/sis/search/f?./temp/~zyPGLL:1:animal.  A summary of environmental fate and exposure can be found at http://toxnet.nlm.nih.gov/cgi-bin/sis/search/f?./temp/~zyPGLL:1:enex.]

The researchers gave 249 English-speaking children IQ tests at 5 years of age.  The children's PAH exposures ranged from 0.49 nanograms per cubic meter (ng/m3) to 34.48 ng/m3.  140 of the 249 children were classified as having a "high" PAH exposure.  Children exposed to greater than the median 2.26 ng/m3 had an IQ score that was 4.31 points lower on average than those with less exposure.  Verbal IQ scores were 4.67 points lower.  Scores were controlled for maternal intelligence, home environment quality, tobacco smoke exposure, and other factors.  The researchers noted that the IQ decrease was equivalent to a lifetime blood lead concentration between 5 micrograms and 9.9 micrograms per deciliter.  The researchers also noted that PAH exposure can cause complications with the immune system, metabolism, and neurological functions throughout life.

The report can be found at http://www.hs.columbia.edu/dept/sph/ccceh/pdf-papers/PereraPediatrics2009.pdf.

EPA considering petition requesting ban on lead wheel weights

EPA has responded to a petition by the Sierra Club and Ecology Center, pursuant to TSCA, to prohibit the manufacture, processing, and distribution of lead wheel balancing weights.  See 74 FR 34,342 [http://www.epa.gov/EPA-TOX/2009/July/Day-15/t16815.htm].  The petition is similar to one rejected by EPA in 2005.  The Federal Register notice stated that EPA was seeking information about ways children and the environment could be exposed (e.g., dust around roadways, emissions from the smelting of the weights, emissions from the shredding of cars, and impacts on water from residues washed off of roadways).

The petitioners cited to "new information" since the rejection of the 2005 petition.  The petition argued that the voluntary program which EPA launched in 2008 [see http://www.epa.gov/osw/hazard/wastemin/nlfwwi.htm] does not go far enough in that said program will eliminate no more than 1/3 of the lead wheel weight market.  The petition also asserted that, since 2005, 1.6 million pounds of lead has fallen off of wheels onto streets where the wheel weights could be picked up and played with by children or ground into dust by vehicles.

EPA has now taken comments on the petition; the comments can be found at http://www.regulations.gov/search/Regs/home.html#home.  In the "Enter Keyword or ID" box, put EPA-HQ-OPPT-2009-0467, and hit "Enter".  The comments will be displayed.

A copy of the petition can be found at http://www.leadfreewheels.org/TSCA_Wheel_Weight_Petition_5-28-09.pdf.

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.

New studies associate schizophrenia with thousands of different genetic variants

As noted in prior posts, there has been a tendency to attribute life’s unfortunate circumstances to exogenous variables, a view often promoted by those with an unstated agenda (or just a naked financial interest).  For example, despite overwhelming evidence to the contrary, some parents still believe that their child’s autism results from preservatives used in various vaccines.  Similar views have been expressed about the cause(s) of schizophrenia (as though that were a single disorder rather than, as likely, a bucket into which a great number of somewhat related disorders are tossed; the only fact they may have in common in how the disorder manifests itself).  This is of course not to say that various environmental insults cannot cause harm; obviously they can.  However, one cannot paint with the broad brush used by many so-called advocacy groups.  The unfortunate result of all this paranoia and fear-mongering is that many parents are not having their children vaccinated, which is putting everyone at risk by decreasing the “herd immunity” upon which the success of vaccination depends.

 

In seeking a cause or the causes of schizophrenia, researchers have been pursuing the theme of genes as cause.  Many studies have thought they found the one or two or small number that were “the cause”, only to see their results dashed on the rocks of further research.  Now three large studies indicate that large collections of common genetic variants, rather than the harmful action of a few key mutations, may predispose individuals to schizophrenia.  At this stage the research is still in the associational stage, it would appear.  Each of the studies compared genome-wide association between schizophrenia and single letter differences (SNP’s) in genes.  Variants more common in those diagnosed as schizophrenic are presumed to be markers of regions of the genome that contribute to the disease.  Many thousands of SNP’s turn up more often in those with schizophrenia than those without the disease.  Each variant maybe adds 1% to the risk; collectively, the variations are thought to account for maybe 1/3 of the genetic risk.  As is often said, this is not the end of the journey, but the beginning.

 

From the perspective of toxic torts, however, it shows how little is known at this stage.  Proving causation will be difficult (a classic understatement) for any plaintiff seeking to show that a particular exogenous variable caused this particular disease.

 

What this reminds me of is prior posts that have described the results of truly sophisticated studies into the cause of various cancers.  It is the interplay of a huge number of factors that is responsible for some cancers.  What thus may arise from this type of study of schizophrenia is not only more linkage to causation, but the realization that (as I noted) schizophrenia is a bucket now, a collection of what will ultimately be a multitude of separate diseases.

 

The three studies, or information about them, can be found at http://www.nature.com/nature/journal/v460/n7256/full/nature08192.html, http://www.ncbi.nlm.nih.gov/pubmed/19571811, http://www.ncbi.nlm.nih.gov/pubmed/19571808, http://www.sciencedaily.com/releases/2009/07/090701131309.htm, http://pn.psychiatryonline.org/cgi/content/full/44/15/24, and http://www.phgfoundation.org/news/4701/.