Judge Abused Discretion in Striking Expert Evidence, NJ Appellate Court Finds
Reverses 2016 Summary Judgment in Ovarian Cancer Cases
On August 5, a three judge panel from the New Jersey state appeals court reversed a 2016 summary judgment granted in favor of defendants, talc manufacturer Johnson & Johnson and talc miner Imerys Talc America in cases brought by two women who allege J&J’s talc products caused their ovarian cancer.
In its opinion, the panel ruled that Atlantic County Superior Court Judge Nelson C. Johnson abused his discretion by serving as the fact finder in deciding the credibility of the plaintiffs’ experts’ opinions instead of merely assessing whether the doctors’ opinions were based on sound scientific methodology. The trial judge acknowledged that the experts, Dr. Graham Colditz and Dr. Daniel Cramer, were qualified but opined that their scientific studies and evidence were narrow and shallow, showing a preference for cohort studies and their larger sample sizes over the case studies relied on by the experts. In overturning the ruling by the trial court and discussing the studies cited by Colditz and Cramer, the appeals court stated that those studies satisfied the criteria outlined in the Federal Judicial Center’s Reference Manual on Scientific Evidence and also noted that size and the types of study are not the sole determinants of reliability.
As a result of the plaintiffs’ experts’ testimony being reinstated, a dispute over a material fact exists in the matter and the case will proceed.
The two cases, brought by plaintiffs Brandi Carl and Diana Balderrama, were the first two to be tried from the group of 100 lawsuits included in New Jersey’s multi-county litigation.
Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution
Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution Assessing Harm, Proving Divisibility of Harm Defense Absent a Bright-Line Test, and Apportioning Costs The U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for divisibility under CERCLA. However, there is no bright-line test for determining divisibility, and the courts have taken different approaches in evaluating this issue.In decisions involving the Fox River in Wisconsin and the Upper Columbia River in Washington state, as well as opinions from courts in Rhode Island and South Carolina, judges and parties have wrestled with the critical question for divisibility: is the harm "theoretically capable of apportionment"?If a court answers this question with a yes, the party seeking to limit its liability succeeds. If the answer is no, that party must try again under a much less favorable equitable allocation approach. These and other opinions addressing the divisibility/apportionment divide continue to guide courts, litigants, and pre-litigation parties as they attempt to settle or otherwise resolve responsibility at contaminated sites.Listen as our authoritative panel examines the statutory language and what the Burlington Northern decision and its progeny mean for divisibility. The panel will also review cases applying this problematic technical issue and offer practice pointers on which circumstances lend themselves to a divisibility defense and how to present it. Outline Divisibility defense under CERCLA Statutory language What the BNSF decision means for divisibility Section 113 equitable contribution Lessons learned from recent decisions Best practices Circumstances lending themselves to a divisibility defense Presenting a divisibility defense A Strafford production specially selected for HB audiences. Jane B. Story Partner Jones Day Rachel K. Roberts Attorney Beveridge & Diamond The panel will review these and other key issues: How are different jurisdictions applying the Burlington Northern decision in divisibility cases? What circumstances lend themselves to a divisibility defense? What steps can counsel take to overcome the challenging issues involved in proving divisibility?
Environmental Audits: Privilege, Voluntary Disclosure, and Other Legal Issues
Environmental Audits: Privilege, Voluntary Disclosure and Other Legal Issues: Ensuring Compliance With Environmental Laws, Responding When Violations Are Discovered Environmental audits allow companies to proactively identify and address environmental problems before civil litigation or enforcement actions arise. The EPA and many states offer companies incentives to encourage compliance, including self-reporting identified issues in order to be eligible for potential reduced or eliminated penalties.Whether a newly acquired or long-standing business, companies and their counsel must take measures to ensure ongoing environmental compliance and environmental audits provide an avenue for detecting and correcting potential problems. Regular self-auditing can help reduce governmental penalties and limit injunctive relief faced in enforcement actions, apart from voluntary disclosure of noncompliance to regulatory agencies.There are potential risks associated with voluntarily uncovering and documenting violations, as well as with the disclosure of violations. Audit findings can be evidence of compliance gaps and a company's knowledge of those holes. And audit disclosures may not always lead to a clean resolution of disclosed violations with the regulatory agency. Disclosed information could still lead to enforcement action and also may provide ammunition in private actions against the disclosing party.Listen as our panel of environmental attorneys examines environmental enforcement policies and environmental auditing programs. The panel will discuss privilege and its exceptions, as well as the pros and cons of voluntary disclosures. The panel will also offer strategies for responding to enforcement actions. Outline Environmental compliance auditing Privileges available to protect audit-derived information Voluntary audit disclosure EPA program State programs Audit opportunities for new owners Complications for auditing and disclosure arising from recent enforcement trends A Strafford production specially selected for HB audiences. Joel D. Eagle Partner Thompson Hine Lawrence Schnapf Principal Schnapf LLC The panel will review these and other key issues: How can companies and their counsel use environmental audits to improve compliance and soften the impact of a government enforcement action? What are the best practices for counsel to advise clients that are considering utilizing environmental compliance audits? What are the expected costs and [...]
PFAS Consumer Fraud Litigation
HB Litigation Conferences presents a CLE-eligible webinar PFAS Consumer Fraud Litigation and Regulation On August 26, 2022, yet another PFAS consumer fraud lawsuit was filed against a product manufacturer in which it is alleged that since the products contained PFAS and the company marketed the products as environmentally friendly and safe for use by consumers, a proposed class of consumers was deceived into buying the allegedly unsafe products. The lawsuit is not an isolated incident, as there have been over 20 such lawsuits, almost all of them filed in 2022. With the ever-increasing media, political and scientific attention being given to PFAS, the panelists predict that these lawsuits will continue to increase at an exponentially increasing rate moving forward against companies of all sizes that manufacture and supply products. Bringing together almost 20 years of product litigation experience and decades of scientific expertise in the field of chemicals such as PFAS, the panelists will discuss the legal issues that companies are facing from current or legacy uses of PFAS (whether intentional or not) and practical solutions that can be taken pre-lawsuit to understand and minimize risk. Questions answered: What do state and federal regulations say about PFAS in drinking water? If your company doesn’t use the two original types of PFAS, are you at less risk of litigation? Which industries currently face the most risk of PFAS-related consumer fraud cases? Are plaintiffs securing significant verdicts in personal injury litigation? And more! Plus, email your questions to the presenters. On Demand CLE Webinar What you get PowerPoint and supplemental materials. Complete recording for later review. Answers to your questions via email. Invitation to contact speakers. 1.5 CLE credit*. CLE assistance. *Subject to state bar rules. For licensed attorneys. Register Download a free article! Meet the Speakers John Gardella Shareholder | CMBG3 John is a recognized thought leader on PFAS issues and a seasoned trial attorney with over 75 verdicts. He the Chair of the [...]
U.S. Government Enforcement Actions: Regulatory remediation settlement trends and claims administration best practices
HB Litigation Conferences presents a complimentary CLE-eligible webinar on-demand Government Enforcement Actions Regulatory Remediation Settlement Trends and Administration Best Practices Government enforcement actions are increasing. It’s important for attorneys to understand regulatory trends and best practices for remediation and administration, and how these actions differ from traditional class action settlements. Here are some of the questions our speakers will address in this CLE-eligible webinar: Why are government enforcement actions increasing? What are the common types of government consumer enforcement actions and how do they proceed? How do government enforcement actions differ from class actions? What are the key considerations in settlement negotiations in government enforcement actions? What are the components of settlement agreements in a government enforcement action? What notice efforts are required to help satisfy expected participation rates? Plus, answers to your questions via live chat. Webinar On Demand Recorded January 2023 What you get: PowerPoint and supplemental materials. Complete recording for later review. Answers to your questions via email. Invitation to contact speakers directly. 1 CLE credit*. CLE assistance. *Subject to state bar rules. For licensed attorneys. Register Meet the Speakers Mark Rapazzini Senior Director | Kroll Mark has more than 25 years of legal experience in cases ranging from individual personal injury litigation to class actions and complex mass torts. Prior to Kroll, Mark was an attorney at Alexander, Rapazzini & Graham, a partner at Duane Morris LLP, and as a founding partner at Rapazzini & Graham, LLP. While practicing law, Mark and his law partner founded RG2 Claims Administration, LLC, where he served as Chief Operating Officer responsible for business development and strategic direction. In 2008, Mark and his RG2 co-founder joined a national claims administration company, where he was a Senior Vice President in client services and consulting. Mark has more than 20 years of experience managing and supervising complex claims administration and government enforcement matters. He has served as a Court-Appointed Mediator, Court-Appointed Arbitrator, Settlement Judge [...]
Responding to Time-Limited Demands for Policy Limits: Reasonableness, Safe Harbors; Obtaining Summary Judgment
Responding to Time-Limited Demands for Policy Limits: Reasonableness, Safe Harbors; Obtaining Summary Judgment A time limited policy limits demand to a defendant's insurer is a frequent tool used by plaintiff's lawyers in an attempt to force crucial decisions on limited information. They have the capacity to force crucial decisions, sometimes with limited information and with very little time to decide. Bad faith liability can arise from the improper rejection or non-payment of a time-limited demand, often without showing intentional wrongdoing or motive.What constitutes a valid demand that triggers the obligation to respond and what constitutes a proper response has generated a broad body of case law. Statutory or judge-made "safe harbors" may allow a range of responses, but these rules can be narrowly construed and easily misinterpreted.If a bad faith claim is filed, the reasonableness standards that apply in a time-limited demand situation make summary judgment challenging but by no means impossible, as demonstrated by recent decisions in key jurisdictions.Listen as this experienced panel of insurance attorneys guides counsel through responding to time-limited demands and offers a roadmap to summary judgment if a bad faith case is filed. Outline Essential elements of a policy-limit, time-limit demand Standards for evaluation of time-limited demands Statutory Common law Covered vs. uncovered claims Safe harbors Roadmap to summary judgment if bad faith alleged CLE On Demand Webinar A Strafford production specially selected for HB audiences. Scott F. Bertschi Partner Clyde & Co US Rachel E. Hudgins Attorney Hunton Andrews Kurth Jay M. Levin Member Flaster Greenberg Kimberly Parson Partner Rebar Kelly The panel will review these and other pivotal issues: Who can make a time-limited demand, and is client consent required? Does the insurer have a duty to settle or a duty to make reasonable settlement decisions? Must the demand include any particular information? What is the importance of releases, indemnification, and lien treatment offered or omitted from a demand? Can the insurer consider coverage defenses or questionable liability when responding? [...]
Corporate Officer and Director Liability: Trend Toward Increased Exposure for Individual D&Os
Corporate Officer and Director Liability: Trend Toward Increased Exposure for Individual D&Os D&Os owe statutory and common law duties to shareholders, including fiduciary duties of care and loyalty. As long as they take reasonable steps to inform themselves and discharge their duties, D&Os are supposed to be protected by the business judgment rule. But this protection is not absolute, and even allegations of violations or breaches of fiduciary duties can lead to an expensive, time-consuming lawsuit with potentially devastating personal liability for directors, officers, and LLC managers. Our panel of experienced litigators from Williams & Connolly LLP and Gilbert LLP will discuss lessons learned from recent actions by federal and state regulators to hold individual D&Os liable for corporate misconduct. In addition, the panel will address recent cases where courts have made it easier to sue directors or officers in their individual capacities. The CLE will provide practical guidance on how to mitigate personal liability and fund the defense of individuals, including indemnification provisions and D&O insurance, without waiving privilege. Outline Director and officer liability Fiduciary duties Business Judgment Rule: statute/common law Limitations at the MTD stage Exposures Damages Disgorgement Penalties Recent efforts to impose liability on individual D&Os Government enforcement action DOJ SEC Other regulators Individual shareholder actions Direct shareholder actions Derivative shareholder actions Mitigating personal liability Indemnification Limitations Discretionary nature of advancement D&O insurance Understanding Side A and Side B coverage What constitutes a “claim” and when to provide notice Key exclusions: regulatory exclusion; insured-versus-insured exclusion; conduct exclusion Best practices Indemnification D&O insurance Mitigating risk of privilege waivers in communications with insurers A Strafford production specially selected for HB audiences. Steven M. Cady Partner Williams & Connolly Ryan T. Scarborough Partner Williams & Connolly Daniel I. Wolf Partner Gilbert The panel will address these and other key issues: Primer on the basics of D&O liability The trend for individual D&O exposure in government enforcement actions How D&Os can mitigate risk, including when a state allows shareholders to file direct claims of [...]