Law | Environmental and Toxic Tort Defense Insight

The Impact Of Twombly & Iqbal In Products Cases

By admin on July 2, 2012

The Toxic Tort Litigation Blog brings to the attention of defense practitioners weapons to add to their defense arsenal. An article in the Bloomberg BNA Toxics Law Reporter (6/14/02), titled "Making the Most of Twombly/Iqbal in Product Liabililty Cases", offers a valuable primer concerning how the pleading requirements under Rule 8(a) of the Federal Rules of Civil Procedure have been reinterpreted and reshaped by the U.S. Supreme Court in two landmark decisions, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S 662,129 S. Ct. 1937 (2009).

In the article, Arnold & Porter’s Anand Agneshwar and Paige Sharpe review how these two decisions have been employed in product liability litigation either to win outright dismissals of complaints or to force plaintiffs to clearly state in their complaints – and not after discovery – precisely what they seek to prove. Motions brought under Twombly and Iqbal have come to be known as Twiqbal motions.

Prior to the Supreme Court’s publication of Twombly in 2007, federal trial courts were guided by the holding in Conley v. Gibson, a U.S. Supreme Court case decided in 1957. Pursuant to the holding of that case, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” As Mr. Agneshwar and Ms. Sharpe point out, Twombly retired the “no set of facts” language of Conley, and in its place issued a plausibility standard under which plaintiffs must provide “more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do so.” Thus, in order to “nudge[] their claims across the line from conceivable to plausible,” plaintiffs must provide a complaint with “enough heft to show that the pleader is entitled to relief.”

The policy rationale for this holding is the avoidance of “potentially enormous expense of discovery in cases with no reasonably founded hope that the discovery process will reveal relevant evidence.” Twombly left unclear whether its pleading directives applied to all civil cases brought in federal court, or just antitrust cases. However, two years later, the Iqbal court made clear that the pleading requirements in Twombly were to be applied across-the-board.

How successful have Twiqbal motions been in product liability cases? A 2011 law review article by Professor William M. Janssen in the Louisiana Law Review, which focused on pharmaceutical and medical device litigation, found that some 21% of the 264 cases studied were dismissed on Iqbal grounds during the relevant time period. This statistic suggests that it would be imprudent to file a Twiqbal motion in every product liability case. Thankfully, Mr. Agneshwar and Ms. Sharpe provide a series of factors that should be considered prior to filing a Rule 8(a) motion.

As a general rule, defense counsel should carefully scrutinize their adversary’s pleadings in products cases to evaluate whether plaintiff has properly alleged facts to support an essential element of a claim, such as how a product is defectively designed (design defect claim) or how specifically defendants’ product labeling is insufficient (failure to warn claim). A complaint that contains only conclusory allegations is vulnerable to Twiqbal attack.

Filed under Anand Agneshwar, Ashcroft v. Iqbal, Bell Atlantic Corp. v. Twombly, BNA, Federal Court Litigation, FRCP Rule 8(a), Law, Motions', Paige Sharpe, Product Liabilitiy Litigation, Reporter', Toxics, Twiqbal, William M. Janssen Tagged with 'Ashcroft v. Iqbal' ' Bell Atlantic Corp. v. Twombly' 'Product Liabilitiy Litigation' 'Twiqbal Motions' Twiqbal 'Anand Agneshwar' 'Paige Sharpe' 'FRCP Rule 8(a)' 'William M. Janssen' 'Bloomberg BNA To

Hydraulic Fracturing Risks and Opportunities

By admin on April 19, 2012

On April 18, 2012, Winston & Strawn and the Environmental Law Institute co-hosted an informative seminar on, “Hydraulic Fracturing Risks and Opportunities: Regulator, NGO, Industry and Investor Perspectives,” in New York City. The meeting was expertly chaired by May Wall, a partner in the law firm’s Environmental Law Department in Washington, D.C. The panelists included Kate Sinding, an NRDC Senior Attorney and Deputy Director of NRDC’s New York Urban Program; John Imse, a principal at Environ in Denver, who advises clients in the oil and gas industry; Lawrence A. Wilkinson, an analyst with Standard & Poor’s Oil & Gas Team; and Carol P. Collier, the Executive Director of the Delaware River Basin Commission. All four speakers were knowledgeable, informative and articulate. Unfortunately, there is insufficient space here to summarize all of the speakers’ discussion points.

John Imse emphasized how horizontal drilling evolved from the development of “game-changing technology,” which has spurred significant changes in the gas exploration industry. As a result of new technology, there may be multiple horizontal wells drilled and developed from a single pad location – four to eight wells from a single drilling pad is not uncommon. Each well may have from as few as four to as many as twenty fracturing intervals. According to Imse, “these are not your wildcat wells of the early twentieth century,” but represent highly sophisticated technology.

Imse also discussed the evolving environmental consciousness of the gas exploration industry. He emphasized that “protective steel casing” and “a good cement job” is critical to a well’s success. Contrasting prior poor practices with current practices, Imse described the construction of drilling pads as “highly engineered sites” with liners and berms for spill control, and structural panels on working surfaces to protect the integrity of the liner. He emphasized the evolving consciousness concerning materials management, including the handling of chemicals in large volume containers; spill containment and secondary containment; and on-site 24/7 spill response.

To date, thirteen states have enacted statues requiring disclosure of fracking chemicals used by industry. These thirteen states account for 90% of current gas drilling, according to Imse. In response to pressure by the public and environmentalists, the additives used in fracking have evolved to “more green and more benign components.” For example, Halliburton is increasingly using guar-based gels and food grade mineral oil carriers, and less diesel for fracking.

There are a number of new web-based resources available to the industry. For example, the University of Colorado Natural Resources Law Center has assembled a compilation of Best Management Practices, which Imse strongly recommends as a reference.

Carol R. Collier, the Executive Director of the Delaware River Basin Commission, discussed the importance of the Delaware River Basin to New York City, which extracts 8.7 billion gallons of water per day. Collier’s “bosses” are the governors of the four states that comprise the Delaware River Basin – Pennsylvania, New Jersey, New York and Delaware. Significant portions of Marcellus Shale underlie portions of the Delaware River Basin. Water withdrawal from the Delaware River Basin is a significant concern. In addition to the 100,000-500,000 gallons of water extracted during the drilling of the well, another 5,000,000 gallons of water is withdrawn during the production life of each well.

Kate Sinding, a Senior Attorney with NRDC, discussed the highly charged political backdrop to the fracking controversy. According to Sinding, experiences in Pennsylvania over the past three to four years have given rise to much of the current environmental debate. Fracking has challenged the long held assumption that natural gas is a more environmentally benign fuel than coal, an assumption that is now coming under fire. Sinding expressed concern about environmental issues that she believed were “not amenable to best practices.”

Filed under Delaware River Water Basin" "horizontal drilling" "Marcellus Shale", Environ, Environmental, Hydraulic Fracking, Institute, Law, NRDC, Oil & Gas Tagged with "hydraulic fracking" hydrofracking NRDC 'Delaware River Water Basin" "horizontal drilling" "Marcellus Shale" 'Environmental Law Institute" Environ

The “Googling Juror”

By admin on March 21, 2012

In an on-line article titled, “Rely on Instructions to Curb the Socially Networked Juror” (3/19/12), Dr. Ken Broda-Bahm writes that “the ‘Googling Juror’ has emerged as a massive concern in the courts with plenty of stories on the process being thrown into mistrial by panelists who had to look up a fact, couldn’t take their finger off the Tweet button, and felt the need to “friend” parties, attorneys, and other jurors.” Dr. Broda-Bahm references a new article in the Duke Law & Technology Review (St. Eve & Zuckerman, 2012) titled, "Ensuring an Impartial Jury in the Age of Social Media" that discusses a survey of 140 former jurors. He quotes a juror as saying that “nothing” could prevent her from using social media during the trial. The good news is that of a sample of 140 jurors surveyed, only 6 reported a temptation to use social media during their trial, and none of those 6 succumbed to the temptation.

In her article, the Hon. Amy J. St. Eve (Northern District of Illinois) and her law clerk, Michael A. Zuckerman, discuss the juror anecdotes that leave trial lawyers sleepless: the Arkansas death sentence set aside by a tweeting juror, the British juror who conducted a Facebook poll on how she should vote in deliberations, and the Florida juror who may face jail time for “friending” a defendant. Although all these anecdotal examples are important cautionary tales, Dr. Broda-Bahm contends that they do not define the common experience of most jurors.

As a possible solution to social networking abuses, he recommends asking the court for specific social media instructions that take the additional step of explaining why the jurors are being asked to refrain from social networking during trial. However, will a social media instruction be sufficient to curb social networking behavior among jurors?

Filed under Dr. Ken Broda-, Duke, Facebook, friending, googling juror, Hon. Amy J. St. Eve, Jury Instructions, Law, Litigation Issues and Factors, Review', St. Eve & Zimmerman, Technology, Tweeting Tagged with 'googling juror' 'social networking' 'Dr. Ken Broda- 'Duke Law & Technology Review' 'Hon. Amy J. St. Eve' Facebook 'jury instructions' Tweeting friending 'St. Eve & Zimmerman'

Is DEC Ill-Equipped to Oversee Marcellus Shale Natural Gas Drilling?

By admin on January 15, 2010

According to a report issued by Cornell Law School, the State of New York’s blueprint for Marcellus Shale development proposes 187 new regulatory activities necessary for the oversight of natural gas drilling, but the blueprint does not explain how DEC will carry out these activities. Cornell’s report concludes that DEC does not have the manpower to appropriately regulate economic development in the Marcellus Shale Formation. According to Adjunct Professor Keith Porter at Cornell Law School, “There is no way they [DEC’s Division of Mineral Resources] have enough people to visit the sites to make sure conditions are met.” The Cornell study notes that DEC’s proposals require firsthand inspections and the development of detailed spill prevention plans on a site-by-site basis. The proposals also involve assessing and monitoring water resources to ensure they are not damaged by the gas industry’s need for huge volumes of fresh water to stimulate gas production in the fracking process. This process involves shooting millions of gallons of chemical solutions into each well, which then regurgitate brine and wastewater with chemicals, heavy metals and naturally occurring radioactivity. For their part, industry proponents point to New York’s strict regulations and a strong track record by industry. Environmental advocates challenge industry claims, pointing to hundreds of incidents and complaints involving natural gas and oil drilling buried in the DEC’s hazardous spills database. However, it was reported on January 11, 1010 that DEC Commissioner Pete Grannis had asserted in a letter to Assemblyman William Parment, a member of the legislature’s Environmental Conservation Committee, that reports of accidents relating to natural gas drilling in New York have been overblown and taken out of context. Without additional DEC inspectors, says Professor Porter, Marcellus Development “will rely on self-compliance.” Environmental advocates point to the water contamination and regulatory violations that plagued the operations of Cabot Oil & Gas in Dimock, Pennsylvania as an object lesson. The Cornell study summarizes the proposed regulatory obligations DEC sets forth in the draft Supplemental Generic which include, among other things, protecting water resources such as New York’s portion of the Great Lakes Basin; reviewing permits for equipment and structures that might disturb surface water bodies such as rivers and streams or potentially impact aquatic wetland and terrestrial habitats and water quality; impacts to wetlands; aquifer depletion arising from proposed groundwater withdrawals for high-volume hydraulic fracturing; reviewing major water withdrawals and approved diversions in the Great Lakes-St. Lawrence River Basin under the Great Lakes-St. Lawrence River Water Resources Compact; comprehensive storm water pollution prevention plans and review of permits to address storm water runoff and storm water discharges; industrial activities, including addressing potential sources of pollution and determining when drilling and hydraulic fracturing operations are completed; surface spills and releases at the Well Pad; drilling rig, fuel and tank refueling activities; groundwater impacts associated with well drilling and construction; private water well testing; infrastructure control from waste transport to road spreading; and, not least, protecting New York City’s subsurface water supply infrastructure. The import of the Cornell Law School study is that New York can build an elaborate regulatory scheme designed to protect the environment, but unless there are enough of the right people to enforce the regulations and ensure that they are being rigorously adhered to, the regulations do not amount to much.