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Monthly Archives: June 2009

Toxic tort claim against dry cleaner booted

Some toxic tort plaintiffs need to get their act together when it comes to lining up expert witnesses.

Every day, I scour the federal and state courts for “game-changers,” decisions on issues that determine whether a case is won or lost.


And all too often I see cases involving poisonous products being scuttled because the plaintiff’s expert lacks the basic credentials, science or conviction to render a credible opinion on causation.


Now, we all know these cases are tough to win. Typically, the plaintiff’s attorney is faced with  pushing the boundaries of both law and science.


But if you don’t have a squared-away expert, you probably shouldn’t be wasting everybody’s time.


A perfect example of this is a recent case out of the 7th Circuit.


Billy and Mary Ann Cunningham of Martinsville, Indiana, lived in a building from which they operated a photography studio.


Their studio was located next to a building that until 1991 contained a dry-cleaning business run by a company called Masterwear.


The Cunninghams experienced headaches and severe respiratory problems until they moved. An EPA investigation concluded that their building contained perchloroethylene (PCE) vapors.


Although there is apparently no national standard for PCE contamination, the levels of PCE in the Cunninghams’ building was higher than what the Indiana EPA considers safe.


According to the Cunninghams, the PCE contamination was the result of Masterwear’s failure to properly store chemicals used in its dry-cleaning business.


So they sued Masterwear, seeking damages for their health problems and the depressed price for which they ultimately sold their studio.


So far so good until we get to the Cunninghams’ medical expert.


Problem Number One: According to the 7th Circuit’s opinion, despite the fact that the expert was a doctor who specialized in the treatment of respiratory diseases, he had never treated a respiratory illness caused or aggravated by exposure to PCE.


Problem Number Two: The doctor had no knowledge as to why the Indiana EPA set the PCE safety standard where it did.


On this point, the court explained: “Suppose that a concentration of some chemical above a certain level has been found to increase the incidence of birth defects, and as a result that level is fixed as the maximum safe level of exposure to the chemical; a person who was exposed to a higher level of the chemical and developed asthma could not attribute his ailment to his exposure.”


Problem Number Three: In light of his not being a toxicologist, the Cunninghams’ expert was unable to present a viable causation theory through direct testimony or citation to scientific studies .


As succinctly summed up by the court, the expert “thus presented no evidence from which a trier of fact could infer that the plaintiffs’ exposure to PCE is likely to have contributed significantly (or for that matter at all) to their ailments.”


Is it any wonder that this case was dismissed? (Cunningham v. Masterwear Corp.)


— Pat Murphy



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Employer not liable under ADA despite ‘100% healed’ policy

Does an employer violate the Americans with Disabilities Act by firing an injured employee who can’t return to work under a “100% healed” policy?

On Tuesday, the 10th Circuit answered that question in the negative in a “regarded as” disability case involving a miner who was unable to return to work without restrictions after being injured in an on-the-job accident.


Jared Dillon worked as a maintenance mechanic for Mountain Coal Company at the West Elk Mine in Colorado. Dillon suffered permanent back and neck injuries when he was struck by a part that fell off a piece of equipment.


Dillon returned to work for a short time until the pain became unbearable. Eventually, Dillon’s doctor decided that he had “reached maximum medical improvement” and gave him the go ahead to return to work, but only with permanent lifting restrictions.


The problem was that Mountain Coal had a “no restrictions” or “100% healed” policy, barring any employee with medical restrictions from working in any capacity at the mine.


Accordingly, the company fired Dillon after he had exhausted his short-term disability period.


While Mountain Coal claimed that it fired Dillon for reasons other than the no-restriction policy, Dillon argued that the policy itself established that the company regarded him as being substantially limited in performing mining jobs.


Unfortunately for Dillon, the trial judge and the 10th Circuit decided that the no-restrictions policy in and of itself did not establish this necessary element of his ADA claim.


“The policy … only speaks to whether Mountain Coal regarded Mr. Dillon as substantially limited in his ability to work at West Elk Mine,” the 10th Circuit explained. “The policy does not reveal ‘the number and types of jobs utilizing similar training, knowledge, skill or abilities’ in the geographic area, as the EEOC regulations require. Mr. Dillon did not put on other evidence describing the jobs available in the area that fell into the class of ‘mining jobs,’ nor did he produce evidence demonstrating that mining jobs are, in fact, a class of jobs. He therefore produced no evidence from which a reasonable jury could conclude that Mountain Coal regarded him as substantially limited in the ability to perform a class of jobs.” (Dillon v. Mountain Coal Co.)


— Pat Murphy



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Blogging gets teacher in hot water

Blogging has its risks. And if you’re a public employee, blogging might put your job on the line.

At least that’s the lesson provided by the 9th Circuit in a recent §1983 case involving a public school teacher and the Central Kitsap School District in Washington state.


Tara Richerson worked as a “curriculum specialist” and “instructional coach” for the district.


Apparently, Kitsap is one of those rare school districts that has plenty of money to shovel around.


That aside, Richerson’s jobs required her to enter into “trusting mentor relationships” with less-experienced teachers and provide them with sage advice on surviving the classroom wars.


Unfortunately, Richerson had some “issues” with a few of the people she worked with. No, make that she had a lot of issues with a lot of those she worked with.


And rather than bite her lip, Richerson felt the need to express herself in a publicly available blog.


According to the court, Richerson’s blog “included included several highly personal and vituperative comments about her employers, union representatives, and fellow teachers.”


None too pleased with the comments, the targets of Richerson’s running commentary complained to school officials.


Given the apparent breach of trust, the school district felt the need to relieve Tara of her mentoring duties and (Horror of horrors!) transfer her back to the classroom.


So, naturally, Richerson sued.   


But the 9th Circuit decided that the “legitimate administrative interests” of the school district outweighed Richerson’s right of free speech under the First Amendment.


“It is abundantly clear from undisputed evidence in the record that Richerson’s speech had a significantly deleterious effect [on the performance of her duties]. [Her supervisor] provided testimony, not controverted by Richerson, indicating that several individuals refused to work with Richerson in the future. Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. [Her supervisor] need only make a ‘reasonable prediction’ that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty,” the court said. (Richerson v. Beckon)


— Pat Murphy



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Crunchberries aren’t real? Noooooo!

THIS is why we all went to law school.

Picture this: The Great American Morning Ritual. Bunny slippers a-floppin’ you stumble to the breakfast table, intent on getting the day off right.


You know how important a healthy breakfast is. And you know it’s nothing but donuts and burritos once you step out that front door.


So, of course, a big bowl of Cap’n Crunch with Crunchberries is the only way to kick off the day.


But what’s this? An article in The Los Angeles Times about false advertising and children’s foods?


And what’s this? A study by the Strategic Alliance for Health Food and Activity Environments (WHAT?) that says there’s no fruit in Crunchberries?


You never gave it much serious thought, but in the back of your mind you kind of figured there were groves of crunchberry trees somewhere.


Or maybe there were these underwater, bushy-type plants that produced crunchberries in these huge tracts of marshland, you know, sorta like cranberries.


But no fruit? How foolish you must feel. All those years…


There’s only one thing to do!


Sue! And let’s make it a class action! That will really get those Quaker Oats guys.


Thank you, Janine Sugarawa of California. You fought that fight.


A year ago, Janine sued Quaker Oats’ parent, Pepsico, in U.S. District Court in California.


Quite rightly, in this observer’s opinion, Janine accused the company of deceiving consumers by using the word “berry” in the product name and showing “brightly depicted fruit-shaped cereal” in marketing Crunchberries.


“In truth, however, the product contains no actual berries of any kind,” accused her complaint.


Alas, Judge Morris C. England Jr. would have none of it, dismissing Janine’s bid for justice late last month. (Sugawara v. Pepsico)


England wrote that “while the challenged packaging contains the word ‘berries’ it does so only in conjunction with the descriptive term ‘crunch.’ This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a ‘crunchberry.’


“Furthermore, the ‘Crunchberries’ depicted on the [principal display panel] are round, crunchy, brightly-colored cereal balls, and the [principal display panel] clearly states both that the Product contains ‘sweetened corn & oat cereal’ and that the cereal is “enlarged to show texture.” Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist.”


Reasonable consumer? What world does he live in?


— Pat Murphy



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Penile identification testimony has its limits

All right, class, let’s get the snickers out of your system before we turn to a serious matter of identifying a perpetrator in a truly sad criminal case.

Here’s the deal in a case reported Tuesday out of the 11th Circuit.


Donatos Sarras of Florida was charged with various federal offenses relating to his alleged use of his step daughter to produce child pornography.


Apart from the victim’s statements, the government’s case rested largely on 41 digital photographs allegedly found on Sarras’s laptop computer.


Most of the photographs showed the step daughter alone, posing nude.


However, 14 of the images showed the victim engaging in sex acts with an adult male.


The problem was that the photographs didn’t show the adult male’s face.


At trial, Sarras argued that he was not the man in the laptop photos because he has a mole on his penis and no mole is visible in the images.


The government contended that no mole is visible because the photos show only the top of the penis, and Sarras’s mole is actually near the bottom of his penis.


Thus we have one of the more unusual duels of experts in legal history.


An erectile dysfunction expert retained by Sarras testified that the penis in the photographs did not belong to Sarras. The doctor’s opinion was based on his personal examination of Sarras’s member in both its flaccid and erect states, and the position of Sarras’s mole.


But the doctor was not allowed to testify that Sarras’s “vein pattern” did not match the vein pattern of the penis shown in the photographs.


As blandly stated by the 11th Circuit in affirming Sarras’s conviction, “no record evidence explains the so-called methodology of comparing veins in erect penises as an identification technique.”


Perhaps even more damaging was the 11th Circuit’s decision that the government’s board certified urologist could testify as a rebuttal witness, both as to the location of the infamous mole and regarding whether Sarras manipulated his penis in defense photos in order to hinder identification. (U.S. v. Sarras)


— Pat Murphy


New trial granted in ‘low impact’ airbag case

The fascinating thing about airbag cases is the stew of all the variables that come into play to determine liability.

Did the airbag deploy too quickly? Too late?


At what speed was the vehicle traveling at the time of deployment?


Was the driver or passenger wearing a seatbelt?


Was the driver drunk? Reckless?


The Pennsylvania Superior Court recently sifted through many of these variables to decide that a new trial was warranted in the case of Andrew Gaudio, who died eight years ago when his 1996 Ford F-150 pickup truck skidded through an intersection into a ditch.


To set the stage, Gaudio was found dead in the passenger seat of the truck with the airbag deployed. Gaudio was not wearing a seatbelt.


Ford’s experts conjectured that he may have been leaning over to pick something up when the accident occurred. 


The best guess as to what happened is that, because the stop sign at the intersection was down, Gaudio failed to slow down in time to avoid the ditch across from the stop.


The best estimates are that Gaudio was travelling between 30 and 34 mph when he first hit the brakes, and nine to 14 mph when his pickup hit the side of the ditch.


Gaudio’s widow submitted two theories as to why the F-150’s airbag system was defective.


First, she argued her husband would have been able to avoid the accident had the airbag not deployed at all. Under this scenario, the F-150 was defective because timing sensors triggered the airbag at a low speed when there should have been no deployment.


The second theory is that the airbag deployed too late — when forward momentum had already brought Gaudio too close to the steering wheel.


A jury found that the airbag system was not defective, but Gaudio’s widow found the sympathetic ears of two of three appellate judges who granted her a new trial. (Gaudio v. Ford Motor Co.)


Here are the key points you need to take from the appeal court’s decision:


Crashworthiness: The “crashworthiness” doctrine remains viable in Pennsylvania strict liability cases, allowing the imposition of liability where a product defect that doesn’t cause the accident nonetheless increases the severity of the injury.


Seatbelt evidence: Ford should not have been allowed to introduce evidence of Gaudio’s failure to use a seatbelt because the state’s restraint system law prohibits such evidence with respect to product liability claims just as it does for claims of contributory negligence.


Pre-impact conduct of driver: Ford could introduce evidence showing that Gaudio was leaning over and out of position at the time the airbag deployed, but its experts could not speculate on why he was out of position because such evidence was unfairly prejudicial.


Industry standards: Ford’s experts could not testify regarding the F-150’s compliance with Federal Motor Vehicle Safety Standards and the door was not opened to such evidence by the plaintiff’s introduction of evidence regarding the government’s accident  investigation or expert testimony on timing guidelines for airbag sensors.


Statistical evidence: Ford could introduce statistical evidence regarding the frequency of fatalities due to airbag deployment in Ford 150s, but could not introduce evidence that the vehicle had a “Five Star Safety” rating from the NHTSA.


— Pat Murphy



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You gotta be kidding me! Moviegoer trips over ‘Wet Floor’ sign

Sometimes suing a merchant for a customer’s fall must seem like shooting fish in a barrel.

Take a Georgia trip-and-fall case involving American Multiplex Cinema.


In order to avoid personal injury suits, the theater chain instructs and trains its employees to place “Wet Floor” signs to mark spills until they are cleaned up.


One fateful Christmas Day, a fresh-faced, eager beaver employee spots a small spill outside a theater entrance at an AMC multiplex.


With high hopes of wrapping up the “Employee of the Month Award,” the employee dutifully places a warning sign over the spill.


And that act sets up Nancy Sue Brown’s date with destiny.


Out of the auditorium steps Brown, who just finished enjoying Steve Martin’s remake of Cheaper by the Dozen.


According to Brown, the theater was crowded (Cheaper by the Dozen? — crowded theater?  — hmmm).


So in the “crowd” leaving the theater Brown doesn’t see the “Wet Floor” sign, which somehow has fallen over.


Of course, Brown’s foot gets caught in the sign and she topples over.


Now, there’s absolutely NO WAY that the theater is going to have to cough up damages for causing a trip through its use of a warning device to prevent slips, right?


Not according to the Georgia Supreme Court.


First, the court refused to adopt a rule immunizing merchants from suits for injuries caused by common warning devices, like “Wet Floor” signs.


That done, the court said that Brown was entitled to her day in court on whether “AMC breached its duty of care by knowingly setting up the sign on the floor when it knew the packed audience would be spilling into the hallway any minute.” (American Multi-Cinema v. Brown)


— Pat Murphy



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Chronic Fatigue Syndrome: 5th Circuit gives ADA plaintiff a second chance

On Friday, the 5th Circuit served up a primer on Chronic Fatigue Syndrome and the Americans with Disabilities Act.

The court overturned a summary judgment against Lorin Netterville, a Chevron employee with CFS who alleged the company failed to accommodate her known substantial limitations and discharged her in violation the ADA.


Here are the bullet points from the case: 

  • The court joined other circuits in explicitly recognizing that sleeping and thinking are major life activities.
  • Relapsing-remitting conditions like Chronic Fatigue Syndrome may be of sufficient severity and duration to constitute an ADA disability throughout the time period at issue.
  • A finding of disability was not precluded by the fact that sleep and certain medications relieved the plaintiff’s symptoms.
  • The plaintiff’s failure to disclose at the time she was offered a job that she had had a previous bout with CFS did not necessarily amount to a misrepresentation of her medical history justifying termination.

 “Contrary to [Chevron’s] arguments, a jury reasonably could find that [Chevron’s] management immediately reacted to Netterville’s announcement of her CFS recurrence and need for medical leave by looking for reasons to fire her because of her disability or request for accommodations, or both,” the court concluded. (EEOC v. Chevron Phillips)   


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— Pat Murphy


Employer’s after-acquired evidence triggers new trial for employee

When is after-acquired evidence of a plaintiff’s cessation of employment with a prior employer admissible in a wrongful discharge case?


The New Jersey Appellate Division took a stab at that question on Tuesday in a case brought by a former employee of Automated Data Processing.


Diane Redvanly worked as a controller for ADP until she had a falling out with her boss.


Redvanly claimed she was fired because she was about to blow the whistle on certain shady corporate practices.


According to ADP, Redvanly was fired for “behavior” problems.


What’s more, the company claimed it was independently justified in firing Redvanly because she had allegedly misrepresented her employment history.


You see, Redvanly allegedly told ADP that her position with her prior employer had been eliminated.


But the circumstances of that departure are far murkier because a sealed settlement with Redvanly’s prior employer indicated that she received $210,000 in satisfaction of another wrongful discharge claim.


The problem with ADP’s defense was that the company learned of this settlement after it had terminated Redvanly.


The Appellate Division decided that evidence of the settlement never should have been admitted on the issue of ADP’s liability and granted Redvanly a new trial on that basis.


Defense attorneys take heart, however, because the court did say that the after-acquired evidence was admissible on the issue of damages, both for the purpose of limiting ADP’s damages and assessing Redvanly’s credibility.


Moreover, the court rejected the “blanket contention that New Jersey public policy dictates against applying the after-acquired evidence defense to allegations of resume or [job] application fraud.” (Redvanly v. Automated Data Processing)   


— Pat Murphy