Mass Tort Litigation Blog

Lead in the Water

In today's New York Times, Michael Wines & John Schwartz have an article called "Regulatory Gaps Leave Unsafe Lead Levels in Water Nationwide."  

What they describe in the article are not only regulatory gaps - that is places such as certain waterways or sources of water that are un- or under- regulated, but also cases where regulations are ignored, poorly followed, etc.   

On prawfsblawg, Rick Hills writes about the Flint water crisis in particular and the relationship between litigation and regulation. He correctly observes: "Darnell Earley, the emergency manager appointed by Governor Snyder to run Flint, had a bureaucratic mandate to save money and no electoral incentive to protect non-fiscal goals like voters' health. By switching Flint's water supply from the expensive Detroit water system to the cheaper and more corrosive Flint River, Earley maximized the first goal and ignored the second, with the result that Flint's residents now have elevated lead levels in their blood."  

 

 

Flint, Michigan Lead in the Water

In an environmental disaster of tragic proportions, the City of Flint, Michigan has discovered that by switching water sources to save money, it inadvertently corroded the lead pipes of the city's water system, leaching lead into the water supply.  The result is a generation of children who have been exposed to lead and likely will suffer permanent effects.  The story is reported, among other places, in this story in the Washington Post.   Residents filed a class action suit against the State and the City in mid-November - you can find the complaint here.  It is interesting in that it alleges constitutional violations - a violation of the right to bodily integrity and deprivation of property under the due process clause of the 14th Amendment. 

The Mayor declared a state of emergency this week. 

Food Industry Labeling Class Actions

Howard Mintz of the San Jose Mercury News reports in Food Fight: Bay Area courts center of legal battle against food industry.  I'm quoted in the article.

BGS

Junk Food: The Next Mass Tort?

The allegation that sugar is "toxic" and the recent article in the NYTimes "The Extraodinary Science of Junk Food" indicates that fast food litigation may indeed be the next tobacco.  I am interested, do we have readers who are litigating or defending cases?  I found a 2008 article in Findlaw on the subject for those interested: Obesity, the Next Tobacco?

UPDATED:  There is an article on one of the centers of food litigation: The Northern District of California in the Recorder (h/t Tort Prof Blog).

ADL

Kelsey Larson and Carlos Lazatin on Crafting a Defense in Food-Labeling Class Actions

Corporate Counsel has a short piece, Crafting a Defense in Food-Labeling Class Actions, by O'Melveny's Kelsey Larson and Carlos Lazatin.

BGS

"Hot Coffee" Film Director and Producer Susan Saladoff at Southwestern Law School

On this Monday, October 3, Susan Saladoff, the Director and Producer of the HBO film, Hot Coffee: Is Justice Being Served?, will speak at Southwestern Law School in Los Angeles, as part of Southwestern's Treusch Public Service Lecture Series.  Prominent plaintiffs' attorney and Southwestern alum Brian Panish will also offer commentary.  The film will be shown at 6:00 p.m., followed by the presentations at 7:30 p.m. and a reception afterwards.  The event is free, but parking is $8.  Space is limited, and an RSVP is necessary to attend; RSVP to [email protected] or 213-738-6710.  Here is the flyer, and here is additional information about the event and lecture series.

BGS

Consumer Fraud Claims for Substances in Food

BNA Law Week has an article by George Sibley and Alan Rudin called "Toxic Torts Minus Toxicity: Of Consumer Fraud Claims Relating to Food."  78 U.S.L.W. 2423.

The thesis of the article is that the proliferation of cases attacking the use of various substances in food (such as trans-fat) via consumer fraud claims rather than other types of torts (such as latent injury suits seeking medical monitoring or damages for increased risk).  According to the authors, these claims are succeeding.

We do a poor job of regulating the food supply and manufacturer representations about the healthfulness of their wares.  If you want to follow these issues from a plaintiff's perspective, Bill Marler's blog is very interesting.

ADL

Bill Marler on Legal Issues for Food Safety

Bill Marler has posted his brief article, Legal Issues for Food Safety, on Marler Blog.

BGS

Third Circuit Rejects FDA Preemption for Snapple Consumer Fraud Suit

More from Allison Frankel's short article in Am Law Daily.  Here's the opinion.

UPDATE:  The Consumer Advertising Law Blog has analyzed the opinion (H/t Point of Law).

BGS

The Law of the Banana, Part II

Article in the Los Angeles Times -- Pesticide cases could be upended, by Victoria Kim and Alan Zarembo.  Here's an excerpt:

The unraveling of multimillion-dollar Los Angeles cases alleging that Nicaraguan men had been sterilized by pesticide exposure is now threatening to upend hundreds of other claims in U.S. courts, as judges examine charges that plaintiffs' lawyers orchestrated an extraordinary international fraud.

At the center of the claims is the pesticide DBCP and allegations that workers in banana plantations in Central America and Africa were harmed by exposure to the chemical.

In November 2007, a Los Angeles jury awarded $5.7 million to six Nicaraguan men who sued Dole Food Co. and chemical companies, alleging they had been made sterile by DBCP on Dole's plantations. The amount was later reduced by a judge and is now on appeal. The case will probably be thrown out entirely in the wake of a judge's findings of fraud in two related cases.

Those cases against Dole, Dow Chemical Co. and AMVAC Chemical Corp. were set to go to trial this year. Then, in April, Superior Court Judge Victoria Chaney dismissed the claims, ruling that U.S. lawyers and their Nicaraguan partners had concocted the cases through an audacious fraud, recruiting plaintiffs who had never worked on banana plantations, training them to lie on the witness stand and then waging a campaign of intimidation to prevent the scheme from being uncovered.

For more, see Professor Lahav's prior blog post, The Law of the Banana.

BGS

Nestle Not Completely Cooperative with FDA Inspections Prior to E. Coli Outbreak

Article in the Wall Street Journal -- Nestlé Unit Denied FDA Requests, by Jane Zhang.  Here's an excerpt:

The Nestlé USA plant at the center of a federal probe into an E. coli outbreak involving cookie dough refused to give inspectors access to pest-control records, environmental-testing programs and other information, according to newly released inspection reports covering the past five years.

In a September 2006 visit, for example, managers at the Danville, Va., plant refused to allow a Food and Drug Administration inspector to review consumer complaints or inspect its program designed to prevent food contamination. The inspector found dirty equipment and "three live ant-like insects" on a ledge but nothing severe enough to give the plant a failing grade.

A year earlier, officials at the Nestlé plant presented another FDA inspector with a list of things it wouldn't do. "Among these are the refusal to review the firm's consumer complaint file, refusal to permit photography, refusal to sign affidavits or receipts and refusal to provide specific information on interstate commerce," the inspector wrote.

BGS

The "Hair Club for Men" Theory for Regulating Food Safety

Ian Ayers (Yale law) and Peter Siegelman (UConn Law) have posted a suggestion for regulating food safety: establish that the company CEO uses the product.  In other words, "I'm not only the president, I'm also a client."   See the idea developed more fully here at Freakonomics blog or here on Balkinization. 

Now for some civil procedure free association.  At the oral argument in the Iqbal v. Ashcroft case in the Supreme Court this term, Justice Breyer asked if a plaintiff finds a mouse in a can of cola, can he depose the CEO of a cola company?  If government regulations required the CEO to drink the cola, is the answer yes?  The answer it seems to me should be no, unless there is some demonstrable reason to depose the CEO (that is, deposing him or her will lead to the discovery of admissible evidence).  Just tasting the Cola is not such a reason, although "plausibly" alleging that the CEO had learned of the mice in cola and let the cola be distributed nevertheless or conspired to place mice in cola might be sufficient (at least, until Iqbal comes down). The majority of the members of the Court seemed to think that letting a CEO be deposed is pretty much the end of the world.  (Quite a turnaround from the Court's position that a civil suit against the President can proceed, including depositions.)  I wonder what they would make of forcing CEOs to eat the peanut butter their companies produce.

ADL

Split FDA into Separate Food Administration and Drug Administration?

According to this article in today's L.A. Times, pharmaceutical companies are quietly pushing to break up the FDA into separate entitites, in hopes of speedier drug approvals.  President Obama yesterday appointed a group to reassess the FDA, so there may be an opportunity for change.

BGS