Mass Tort Litigation Blog

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. 

Lead Paint

Marketplace has a segment about lead paint litigation today featuring our own Elizabeth Burch.  The trigger is a lead paint trial that closed in California today.  See here for a news story.  The question posed is how the lead paint manufacturers have escaped the kind of liability that tobacco or asbestos.  What's the difference?  Here are some theories.  Caveat: These are just some ruminations, not a definitive work on lead paint by any stretch. 

1. Who's doing the suing?   

Municipalities vs. victims:  Beth points out that in these lead paint suits municipalities or states are pursuing a public nuisance theory against the paint manufacturers and this makes them different than some more successful mass torts.  Some courts think that this doctrine is a bad fit with the wrong at issue.   But not all lead paint cases have been brought by municipalities.  In the beginning, much like tobacco or asbestos, these cases were brought on behalf of victims.  This is a late-stage litigation after failures at the individual or group victim level. 

Poor children vs. workers:  The victims of lead paint were poor children who ingested the paint chips, whereas in the tobacco and asbestos cases they were adult workers. This is not a doctrinal explanation but a socio-political one. 

Scienter: In tobacco there was evidence of misrepresentation and manipulation.  That seems to be a big part of the argument in the California courtroom from press reports: what did the lead manufacturers know and when?   

2. What's the doctrine?

Market share liability.  First, and I think most importantly, the idea of market-share liability failed to gain traction after some initial gains early on.  Without being able to tie a particular manufacturer to the apartment where the paint was ingested, plaintiff can't show that this manufacturer caused the harm.   In that sense lead not like asbestos (where work places kept records) or tobacco (where people know what brand they smoked). 

Public nuisance doctrine is a relatively novel theory for this type of mass tort.  That doesn't make it wrong, but it doesn't make it an easy sell to courts either.

3. Is there insurance?  The asbestos manufacturers had more insurance coverage than you'd think due to some loose underwriting in mid-century.  What is the lead paint manufacturers' coverage and how is this affecting these suits? 

More theories welcome. 

ADL

In Memorium: Ronald L. Mottley (1944-2013)

Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."

HME

Update: here's a link to the New York Times article. 

ECB

Remaining Pockets of Lead Poisoning

An article today in The New York Times discusses the remaining pockets of lead poisoning in urban areas, despite the nationwide trend of decreasing lead poisoning.

BGS

Second Wall Street Journal Editorial on Plaintiffs' Lawyers Hired for Contingency Fee by State of Pennsylvania

Following last week's editorial, the Wall Street Journal expanded its discussion in today's editorial.  Here's an excerpt:

Our editorial last week on the state lawsuit racket has created a stir in Pennsylvania, where Governor Ed Rendell has finally had to defend his "pay-to-play" relationship with Houston plaintiffs lawyer F. Kenneth Bailey. That's the good news. The rest of this underreported story is that Mr. Bailey has been running a nationwide "pay-to-sue" operation with Democratic state Attorneys General.

As we reported, Mr. Bailey made repeated donations to Mr. Rendell's 2006 re-election campaign in the months before his law firm was given a no-bid, contingency-fee contract to sue Janssen Pharmaceuticals on the state's behalf. Mr. Rendell told the Philadelphia Inquirer -- whose reporters have roused from their slumbers -- that "there wasn't the slightest bit of pay-to-play here." But the Governor was obliged to acknowledge that Mr. Bailey had approached the state about suing Janssen. Normally, the state Attorney General would handle such legal matters, but the AG rebuffed Mr. Bailey. Mr. Rendell's office then decided to hire the law firm that was also his major campaign donor. Smile if you think the two were related.

The episode speaks volumes about Mr. Rendell's political ethics, but more important is what it reveals about the plaintiffs bar's latest "business" model. Mr. Bailey's Janssen suit is part of a national pay-to-sue operation, as he and his Bailey, Perrin & Bailey law firm have taken their pre-packaged lawsuit to many states. Janssen's complaint asking the Pennsylvania Supreme Court to dismiss Bailey Perrin from the suit notes that the firm has "taken on numerous engagements similar to this action, including representation in the states of Louisiana, South Carolina, Arkansas, Mississippi and New Mexico."

BGS

Russell Jackson on Lead Paint Litigation

J. Russell Jackson (Skadden, Arps) has published Products Liability: Lead Paint Litigation in the National Law Journal.  The article discusses the state of lead paint litigation after the Rhode Island Supreme Court's recent reversal of lead-paint nuisance claims.

BGS

Lead Pain Reversal in RI

The Supreme Court of Rhode Island reversed in State of Rhode Island v. Lead Industries Association.  The opinion below had imposed liability on lead paint manufacturers under a public nuisance theory.  The RI Supreme Court rejected that theory of liability.  I heard  the story on NPR's Marketplace.  You can find the RI Supreme Court opinion here.  Some commentary from the folks at the Drug and Device Law Blog (who, given that one of them represents defendants in lead paint cases, are very pleased) here. 

The problem with cases against lead paint manufacturers is that its impossible to prove that the lead paint present in buildings today comes from a particular company.  The problem from the defendant's perspective is that perhaps their lead paint didn't cause this damage.  The problem from the plaintiff's perspective is that they were damaged by some lead paint, they just can't prove whose lead paint.  Its really an issue of cost shifting in instances of uncertainty - who should pay for the cost of widespread distribution of substances like lead paint that cause damage, individuals or manufacturers?   The system generally imposes those costs on individuals because our system of torts is particularistic and doesn't recognize the concept of risk very well.  So as a general matter, a tort plaintiff has to prove that this defendant caused this particular harm, rather than this defendant participated in increasing the risk of the harm occuring.

I think the only state that imposes this type of global liability on lead paint manufacturers is Wisconsin, which as I recall was based on a slightly different theory.   There are cases pending in California and Ohio.

ADL 

CPSC to Toy Industry: Eliminate Lead in Toys

Article on cnn.com -- Toymakers, stores must act on lead - regulator.  Here's an excerpt:

The head of the U.S. Consumer Product Safety Commission said Monday that toymakers and retailers need to step up their efforts to eliminate lead from toys.

"I will not tolerate this industry or any other not complying with our regulations," said Nancy Nord, the acting chairwoman of CPSC. "This problem must be fixed."

Nord, speaking at the annual American International Toy Fair, called on manufacturers to audit their factories. She also said that retailers must do more to assure that they don't sell tainted toys.

"We will be relentless with recalls," Nord said. "There is no reason why they can't certify that every toy has been designed for safety."

The CPSC has been working with the Toy Industry Association over the past few months to hammer out tougher toy safety standards after more than 25 million toys were recalled last year because of lead paint hazards and defective designs.

The TIA board of directors on Sunday approved a proposal for testing and a safety verification system for toys sold in the United States. Specifics of the plan will not be released until Friday. The association said key elements include procedures for design hazard analysis, auditing manufacturing process controls and product safety testing.

BGS

Senate Compromise on Overhauling Consumer Product Safety Commission

Article in the Wall Street Journal -- Senate Forges Consumer-Safety Bill, by M.P. McQueen.  Here's an excerpt:

Following a rash of toy recalls last year, Senate Democratic and Republican leaders announced Friday that they reached a compromise on a bill to overhaul the Consumer Product Safety Commission.

The Senate is likely to vote this month on the bill, which would give the agency greater resources to remove unsafe products from the marketplace, but it would still have to be reconciled with a bill the House passed in December. Although industry groups have raised objections, the agreement appears to put CPSC-overhaul legislation back on track to clear Congress, especially in an election year when a crackdown on unsafe children's products has broad consumer appeal.

The bill would boost fines for safety violations to $20 million from the current $1.8 million, restore the commission to five members from three and require the safety agency to set up a database containing reports of injuries, illnesses or deaths from consumer products submitted by the public.

BGS

"Thomas" Toy Train Lead-Paint Class Action Settlement

Article on cnn.com -- 'Thomas' toymakers to pay $30M settlement.  Here's an excerpt:

The maker of "Thomas & Friends Wooden Railway" toys has agreed to pay $30 million to settle a nationwide class-action lawsuit by thousands of families who purchased lead-tainted products, a plaintiffs' attorney said Wednesday.

Under the deal, Oak Brook-based RC2 Brands will offer cash refunds or replacement toys, plus what the company calls a bonus toy; it also promises to implement new quality controls, said Jay Edelson, a plaintiffs' attorney in the case.

"We believe this really is the first step toward cleaning up the problem of lead paint in toys," the Chicago attorney said. "It will put a lot of pressure on other companies to step up and act morally. We hope this becomes a problem of the past."

BGS

More on Rejection of Lead-Paint Market-Share Liability

The Federalist Society's November 2007 State Court Docket Watch contains Missouri and New Jersey Courts Reject "Market Share" Liability for Lead Paint Manufacturers, by Brian Brooks, a partner at O'Melveny & Myers.

BGS

New Study on Lead in Popular Toys Released

The Associated Press reports on a study released today that tested many popular toys (purchased at well known retailers such as Toys "R" Us, Wal-Mart, etc.) found that 35% contain lead, many above federally mandated limits.  The AP article is available here.  An excerpt:

[Tracey Easthope, director of the Ecology Center's Environmental Health Project] said 17 percent of the children's products tested had levels of lead above the 600 parts per million federal standard that would trigger a recall of lead paint. Jewelry products were the most likely to contain the high levels of lead, the center said, with 33.5 percent containing levels above 600 ppm. Among the toys that tested above that limit was a Hannah Montana Pop Star Card Game, whose case tested at 3,056 ppm.

The American Academy of Pediatrics recommends a level of 40 ppm of lead as the maximum that should be allowed in children's products. Lead poisoning can cause irreversible learning disabilities and behavioral problems and, at very high levels, seizures, coma, and even death.

The timing of the study is inspired, of course, as it comes in the height of the shopping season, although some will already have completed their holiday shopping by now.  It certainly points to a need to rethink regulation (or the lack thereof) on this matter - whether it be through voluntary labeling, third party safety inspections or direct government regulation.  Will consumers reward markets, such as the EU, that regulate levels of hazardous chemicals in toys this season after the summer recalls?

ADL

History of U.S. Toy Safety Regulation

Article in the Wall Street Journal -- It Dawned on Adults After WWII: 'You'll Shoot Your Eye Out!', by Cynthia Crossen -- that discusses the history of toy safety regulation in the United States.  Here's an excerpt:

In late 1969, President Nixon signed into law the Toy Safety Act, the first national safety standard for playthings. The act authorized the Department of Health, Education and Welfare to test and ban hazardous toys. A year passed before the department ordered any toys removed from store shelves. On Dec. 22, 1970, it announced a ban on 39 toys, including several archery sets, some squeeze toys with easily removable squeakers, dolls with barely covered pins or wires and some breakable baby rattles.

By 1974, more than 1,500 toys had been banned by the newly established Consumer Product Safety Commission. Among them was a Smokey the Bear tent that was highly flammable; the popular clacker balls -- two plastic balls on a string -- that could shatter when banged together with enough force; several brands of xylophones, whose keys had sharp edges; and a Betsy Wetsy doll partly held together with a straight pin.

Some people thought the regulations were going too far. "I believe the decision as to whether or not Junior ought to be allowed to play with a sharp-eyes Sniffy Dog or a Talkie Tiger whose squeaker is removable is a decision that in a free society ought to be made by a child's parents and not the federal government," wrote a syndicated columnist, John Lofton, in 1973. "Why, pray tell, ban a battery-operated 'Cheerful Daschund No. 256' simply because it has a sharp pointed nose? Should it not be assumed that the average buyer will notice the shape of the nose and decide for himself whether or not it is too dangerously sharp?"

Both the government and the toy industry began to point to parents as part of the problem, charging they weren't always doing their jobs in protecting their children. Not all hazards came from poor design, a federal safety official said. Some came from the consumer's improper selection and use of toys. "Toys can never be designed or regulated with absolute safety," he said.

BGS

Cato's James Dorn on Toxic Toys from China

James Dorn, a China specialist at the Cato Institute, has posted an op-ed article on the lead-paint problems with Chinese imports and possible Congressional response -- Toxic Toys: Congress Risks Making Things Worse.  Here's an excerpt:

The role of government is to safeguard private property rights and, thus, to protect people against fraud and violence. But an overzealous government that tries to keep all bad products off the market is likely to err by keeping too many good products off the market. It is increasingly costly for government to monitor every product. The only viable alternative is to allow private agencies to supplement government regulation to ensure the optimal amount of safety - that is, the amount that is worth what it costs.

Former FDA deputy commissioner Scott Gottlieb noted that "the FDA cannot be everywhere, every time a risk arises, especially as the supply chain for both food and drug products continues to grow more diverse and more global. Ultimately, (the) FDA needs to enable companies to be inspected by reputable private third parties that are certified by the agency."

The execution of Zheng Xiaoyu, former head of the Chinese State Food and Drug Administration, for taking bribes while approving deadly drugs and lead-tainted toys is a stark reminder that government oversight does not guarantee product safety. Even an advanced economy like the United States can fail to prevent hazardous products from entering the market.

Neither the government nor the market will lead to perfectly safe toys, pet food, toothpaste, seafood or drugs. Achieving 100% safety - zero risk - is not an option, and utopian solutions to socioeconomic problems have always proved to be disastrous.

The danger is that new legislation could be a veil for protectionism, as special interests try to gain advantage in the domestic market by restricting imports and also by handicapping smaller domestic firms by increasing their regulatory costs.

BGS

Millions More Chinese-Manufactured Toys Recalled for Safety Issues

As reported by cnn.com, millions of packages of the hot-selling, Chinese-manufactured toy Aqua Dots have been recalled under order of the Consumer Products Safety Commission.  If swallowed, the Aqua Dots convert into a date-rape-drug chemical lead that is especially hazardous for children.  Two children in the United States and three in Australia have already been hospitalized.  The cnn.com article also mentions additional recalls of Chinese -manufactured toys because of high lead content in the paint.

These recent developments will surely further push Congress into wide-reaching expansion of the CPSC and FDA in connection with product safety.

BGS

Congress Considers Marked Expansion of CPSC

With political will stoked by the recent lead-paint scares in children's toys, Congress is considering significantly expanding the role of the Consumer Product Safety Commission.  The Wall Street Journal reports in Congress Weighs Sweeping Overhaul Of Consumer Product Commission, by M.P. McQueen and Christopher Conkey:

Spurred by a spate of scares over the safety of imported goods, Congress is weighing the most significant consumer-safety legislation in a generation -- even as states and nonprofit groups step up their own watchdog efforts.

A bill that would substantially boost fines, add staffers and increase transparency at the embattled Consumer Product Safety Commission is moving through the Senate. The moves represent efforts to address what consumer groups and critics widely see as the weakness and inefficiency of the commission, the tiny federal agency charged with regulating at least 15,000 types of consumer products, from toys to all-terrain vehicles to mattresses.

The Senate bill faces industry opposition and other hurdles on Capitol Hill, including conflict with President Bush over the direction of the CPSC. The House has already passed separate legislation. But consumer advocates predict the Democrat-controlled Senate could pass a version by year end. Industry groups say Republicans aren't likely to try to kill the bill, but hope to amend it to change provisions manufacturers find onerous.

Manufacturers and retailers say they will fight some of the bill's provisions, including the increase of fines to a maximum of $100 million from $1.85 million. But their clout has been diminished by a rash of highly publicized recent recalls involving everything from Halloween pails with lead paint to hazardous cribs to toys with small parts that present choking hazards.

BGS

Blog Roundup

Drug and Device Law Blog has posts on Tort Reform Works in Texas; Notes from the Scientific Underground; Preemption Scorecards; The Vanishing Trial; and Riegel Survives.

Food Law Prof Blog has posts on Cargill meat recall based on e.coli; Bush signs FDA Amendments Act of 2007; More on the Recall Process; CRS Report on Recall Authority; Roberts on Role of Regulation in Minimizing; Thinking About Recalls; and  Yet another meat recall -- this one enough for one picnic.

Point of Law has posts on Refik Kozic v. Merck; Absurd RI lead abatement plan developed; 
"Defendants See a Case of Diagnosing for Dollars"; and Zyprexa protective order enforcement VI: Egilman settlement.

Torts Prof Blog has posts on Topps Meat Recall: Let the Filing Begin; 9/11 Opt-Outers Settle; Lead Everywhere; Stent Safety and Patents;  USSC Denies Cert In Engle (Tobacco) Case; FDA Warns Against Use of Cold Meds by Toddlers; and Sebok's Part II on NJ Supreme Court's Vioxx Ruling.

BGS

Blog Roundup

Civil Procedure Law Prof has a post on Jennifer Wolsing's article, Daubert's Erie Problem.

Food Law Prof Blog has a post on meat recalls increasing (with link to Marlerblog).

Health Law Prof Blog has a post on the FDA and Clinical Trials.

Products Liability Prof Blog has several interesting posts: Senators Brown and Casey Introduce the Food and Product Responsibility Act of 2007; CPSC Announces Massive Crib Recall with Simplicity, Inc.;  Mattel Issues Apology to China Over Recalls;  and Rhode Island Wants $2.4 Billion for Lead Paint Cleanup.

Torst Prof Blog has interesting posts on NEJM Clears (Mostly) Thimerosol; Goldberg & Zipursky on "Tort Law and Moral Luck"; and Sebok on NJ Supreme Court's Vioxx Ruling.

BGS

New Issue of Federalist Society Class Action Watch

The Federalist Society has posted the September 2007 issue of Class Action Watch.  Here's the list of articles:

    * Omission in FACTA Might Be Windfall for Plaintiff's Bar by Ted Frank
    * New Jersey and Missouri Supreme Courts Reject Lead Paint Public Nuisance Claims by   Mark Behrens & Christopher Appel
    * ALI Principles and Litigation Trends by James Beck
    * More Searching Fact-Based Scrutiny of Proposed Class Actions Reaches Securities and Antitrust Actions by Brian D. Boyle & Julia A. Berman
    * Fluid Recovery: Manufacturing "Common" Proof in Class Actions? by Jessica D. Miller & Nina Ramos
    * Has the Eleventh Circuit Set a New Standard for Federal Diversity Jurisdiction? by Kenneth J. Reilly & Frank Cruz-Alvarez

BGS

Blog Roundup

Drug and Device Law has a post on two recent New York Times articles -- one on DaVita's involvement with Epogen and possible resulting litigation, and the other on interpretation of scientific studies.

Point of law's Walter Olson has a post on a $2.4 billion lead-paint abatement plan submitted by the state after defendants' were held liable in a nuisance trial.

Products Liability Prof Blog has a post regarding a Senate Judiciay Committee hearing on " “Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?”

Torts Prof Blog has a post linking The Examiner's multi-part series on class action abuse.

BGS