Environmental Toxic Torts Blog : Colorado Toxic Torts Lawyer & Attorney : Davis Graham & Stubbs Law Firm : Environmental Torts, Property Damage, Class Action

It continues to be difficult to predict the outcome of motions to certify classes in toxic tort cases. In a recent medical monitoring case in West Virginia, Rhodes v. E.I. du Pont de Nemours & Co.,     F.R.D.     , 2008 WL 4414720 (S.D. W. Va. September 30, 2008), the plaintiffs patterned their certification motion on a medical monitoring class settlement involving the same defendant, the same chemical (perfluorooctanoic acid or PFOA or C-8), and similar exposure levels. However, the court refused to certify the class.

See Continue Reading for more detail.

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 Last month, EPA reached a “preliminary determination” not to regulate perchlorate in drinking water. Unless EPA changes its position, there will be no national primary drinking water regulation or Maximum Contaminant Level (“MCL”) established for perchlorate. Perchlorate is frequently discovered in soil and water. It is also increasingly the subject of toxic tort litigation. The absence of a clear national standard like an MCL to define “injury” is an element of uncertainty in a toxic tort case and increases the litigation risk for both plaintiffs and defendants. 

See Continue Reading for: why is perchlorate important; what are perchlorate sources; and why is the lack of a perchlorate MCL important.

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Continuing with my series of posts on “Hiring Counsel for an Environmental Toxic Tort Case,” this week I address the third criterion - FAIRNESS

The criterion of Fairness is slightly different for plaintiffs than for defendants, but it essentially relates to whether you are charged a fair price for the lawyer’s help. Three thoughts:

1. For a plaintiff, if you are agreeing to a contingent fee arrangement, take a hard look at the terms of proposed agreement, especially the treatment of expenses (expert witness fees, travel, document management, etc.) and the percentage of any verdict or settlement that the lawyer will take.   Although expenses usually come off the top of any recovery, it can have a huge impact on the amount of your and your fellow plaintiffs’ recovery if the percentage for legal fees is calculated before or after expenses are deducted. A 30 percent contingent fee is typical, so ask for an explanation if the percent is higher.
    
2.  For both plaintiff and defendant, ask for a budget for expenses. Expert witness fees, travel and document management costs can be substantial. For example, in an environmental toxic tort class action that is tried, expenses could easily top a million dollars. Up-front understandings on these expense categories help avoid unpleasant surprises. In addition, it may be appropriate for you to participate in some of the major decisions on expenses such as whether to retain an expert on a particular topic, whether to select a particular expert from several candidates, or whether to pay for a Cadillac-type document management system as opposed to a Chevrolet-type system.
    
3. Talk to the lawyer’s clients from prior cases about whether they felt they received fair treatment.

The bottom line for choosing a lawyer is to do your due diligence on each of the candidates (and you will likely have several to choose from for one of these cases) and then select the one that best meets the three criteria I addressed in these posts (Expertise, Commitment, and Fairness) as well as any other criteria you identify.  

My next series of posts will addressthoughts about working with your lawyer going forward with one of these cases.

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Continuing with my series of posts on “Hiring Counsel for an Environmental Toxic Tort Case,” this week I address the second criterion - COMMITMENT. 

Commitment applies to both plaintiff and defendant. You want the lead lawyer and his/her team to commit fully to your case. Environmental toxic tort cases are difficult to win if your lead lawyer is pulled in multiple directions and not focused on preparing your case. Having too large or small of a team, or a team composed of an inappropriate mix of people, interferes with efficient and effective preparation and trial of one of these cases.   Similarly, repeated turnover of team members always costs you, the client, even if you are not billed for the time for a new person to get up to speed because you lose case-specific knowledge of the departing team member. Three thoughts:

1. Ask the lead lawyer to commit to you to make your case his/her priority for as long as it takes. Environmental toxic tort cases are complicated and frequently have a lot of moving parts. You want your lead lawyer to be on top of all aspects of your case so s/he can make good judgments and adjust strategy as needed. 
    
2. Discuss staffing with the lead lawyer and his/her firm. At the end of the initial discussion, you want an understanding that the case will be staffed leanly, i.e., with a smaller number of people who have substantial continuing roles, rather than with a larger number of people who may drop in and out on a project-by-project basis. You also want to see a team staffed with lower costs people where appropriate. Finally, you want a commitment from the firm to revisit staffing with you periodically or as the case develops to make sure that staffing continues to be appropriate. 
    
3.  Talk to the lawyer’s clients in prior environmental toxic tort cases and ask about the level of commitment they experienced.

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Since I started blogging on environmental toxic torts earlier this year, I received several emails from readers asking me questions about choosing an attorney to represent them in an environmental toxic tort case. Unlike most of the issues I address, there are no cases on point. There probably are no black and white answers either. 

Nonetheless, I have handled environmental toxic tort cases (mostly for defendants) for a number of years and have observed and talked with attorneys and their clients. As a result, it seems to me that whether you are a plaintiff or a defendant in such a case, you need to consider at least three things when you choose an attorney: Expertise, Commitment and Fairness.

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In March 2008, ASTM International issued its Standard E2600-08 entitled “Standard Practice for Assessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions.”   The goal is to identify whether there is a potential for a vapor intrusion condition to exist.  The stated purpose of the standard is to define “good commercial and customary practice” for real estate transactions in the United States for conducting vapor intrusion assessments for properties with, or in proximity to, contamination of soil and groundwater by certain volatile compounds.    However, it is likely that the standard will be significant in litigation involving claims based on alleged vapor intrusion.

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As is probably no surprise to lawyers and real estate professionals, a Pennsylvania appeals court held that title insurance does not protect a buyer from claims arising from the physical condition of the property such as later discovered environmental problems like asbestos, lead paint or abandoned septic tanks.  In Rood v. Commonwealth Land Title Ins. Co., 936 A.2d 488 (Pa. Super. 2007), a landowner made a claim against his title insurance company thirty five years after the policy had been issued, claiming that an abandoned septic tank discovered in his yard was a “defect” under the policy. Mr. Rood asserted that the presence of the tank made his title unmarketable because he would have to disclose the presence of the tank if he tried to sell his home under Pennsylvania’s Real Estate Sellers Disclosure Law and such a disclosure might cause a reduction in the price he was able to obtain. The trial court entered summary judgment in favor of the title company. 

The appellate court affirmed because title insurance insures only marketability of title. It cautioned title insurance policyholders not to confuse economic lack of marketability based on physical conditions possibly affecting property use with title marketability that relates solely to “defects affecting legally recognized rights and incidents of ownership.” 936 A.2d at 494.

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Often Daubert or similar motions are the key pre-trial motions in environmental toxic tort cases because exclusion of an expert, particularly the plaintiff’s causation or damages expert, provides the basis for a summary judgment in favor of the defendant. Player v. Motiva Enterprises, LLC. 240 Fed. Appx. 513 (3^rd Cir. 2007), is such a case. Plaintiffs owned or formerly owned 27 parcels of residential real estate in Gloucester Township, New Jersey. They claimed that leaks at a nearby gas station contaminated groundwater under their properties. Twenty six of the properties depended upon wells for drinking water. Of those properties, the wells on eighteen properties showed no contamination. Wells on the remaining eight properties showed some VOC contamination but the amounts detected were within the permissible range for drinking water under New Jersey’s ground water Quality Standards. 

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Often, plaintiffs in environmental toxic tort cases seek to recover property damages based on a theory that contamination or other environmental conditions have imposed a “stigma” on the property. Sometimes the property is itself contaminated or formerly contaminated. Other times the property is only in proximity to contamination or the other environmental condition.  The latter situation is often a difficult one for plaintiffs to convince courts to allow.

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