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MASS TOXIC TORT LITIGATION

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					                          MASS TOXIC TORT LITIGATION


                       George LaMarca, Dan Schuck and Tom Walton.


*The panelists wish to thank Christian Walk with the Nyemaster law firm for his assistance in preparing
                                             this outline.



   1. Iowa DNR Regulations Regarding Excess Emissions Procedures
          Any incident of excess emission is a violation, unless it occurs during “startup,
            shutdown or cleaning of control equipment.” Iowa Admin. Code § 567-24.1(4)
            (2008).
                o “Startup” is defined by the DNR as “the setting into operation of any
                    control equipment or process equipment or process for any purpose.” Id.
                    at § 567-20.2.
                o “Shutdown” is defined as “the cessation of operation of any control
                    equipment or process equipment or process for any purpose.” Id.
          If excess emissions are occurring, either the control equipment causing the excess
            emission shall be repaired in an expeditious manner or the process generating the
            emissions shall be shutdown within a reasonable period of time. Id. at § 567-
            24.1(4).
                o DNR acknowledges that “expeditiously” is not specifically defined, but
                    asserts that it is “not a period of days, weeks, or months.” Iowa DNR.
                o Rather, “an expeditious manner” is the time necessary to determine the
                    cause of the excess emissions and to correct it within a reasonable period
                    of time. Iowa Admin. Code at § 567-24.1(4). DNR further interprets a
                    “reasonable period of time” as eight (8) hours plus the period of time
                    required to shut down the process without damaging the process or control
                    equipment. Id.
          Malfunction of control equipment, alone, in the absence of information
            demonstrating compliance with emissions standards, will create a presumption of
            excess emissions. Iowa DNR.
          If the excess emission was due to a malfunction, the owner/operator of the source
            must show that the conditions which caused the incident were not preventable by
            reasonable maintenance and control measures. Iowa Admin. Code at § 567-
            24.1(4).
          Reporting: An oral report of the incident of excess emission, other than during a
            period of startup, shutdown, or cleaning, must be made to the department within
            eight hours of, or at the start of the first working day following, the onset of the
            incident. Id. at § 567-24.1(2).




                                         Tom Walton-Page 1
               o A written report shall be submitted as a follow-up to all required oral
                 reports to the department within seven days of the onset of the excess
                 emission. Id. at § 567-24.1(3).

2. Impact of Violations of Environmental Statutes and Regulations
       Courts have permitted plaintiffs to use proof of violations of environmental
         statutes and regulations to establish negligence per se, to establish a prima facie
         case of negligence, or as mere evidence of negligence.
             o See generally Sheila G. Bush, Can You Get There From Here?:
                 Noncompliance with Environmental Regulations as Negligence Per Se in
                 Tort Cases, 25 Idaho L. Rev. 469 (1989).
             o Timm v. Clement, 574 N.W.2d 368, 372 (Iowa Ct. App. 1997) (noting that
                 Iowa courts recognize the doctrine of negligence per se for statutory
                 violations and holding that the violation of DNR rules and regulations was
                 evidence of negligence).

3. Daubert/Causation Issues in Mass Air Pollution Cases
      A. Failure to establish harmful effect of exposure
            o Wright v. Willamette Indus., Inc., 91 F.3d 1105 (8th Cir. 1996) (applying
                Arkansas law) (holding plaintiffs’ experts, an industrial hygienist and
                pharmacologist, failed to establish the level of exposure necessary for
                formaldehyde-laced wood fibers to cause harm or that plaintiffs’
                symptoms were likely attributable to exposure).
                     Facts: Residents near a manufacturing plant brought a negligence
                        action against the plant owner for exposure to emissions of wood
                        fiber particles containing formaldehyde. Id. at 1106, 1008-09.
                        These wood fibers reportedly fell like “snow” onto nearby
                        properties, and residents complained of headaches, sore throats,
                        watery eyes, running noses, dizziness, and shortness of breath as a
                        result of their exposure. Id. Medical tests revealed wood fiber
                        particles from the plant in plaintiffs’ houses, sputum, and urine.
                        Id. at 1107.
                     “We do not require a mathematically precise table equating levels
                        of exposure with levels of harm, but there must be evidence from
                        which a reasonable person could conclude that a defendant’s
                        emission has probably caused a particular plaintiff the kind of
                        harm of which he or she complains before there can be a
                        recovery.” Id.
            o Satterfield v. J.M. Huber Corp., 888 F. Supp. 1567 (N.D. Ga. 1995)
                (dismissing claims due to plaintiffs’ failure to provide adequate
                medical/expert testimony linking plant emissions to plaintiffs’ alleged
                injuries, establishing that the plant emissions were toxic, ruling out other
                potential sources of plaintiffs’ injuries, or establishing that the source of
                the airborne pollutants/odors emanated from defendant’s plant).




                                   Tom Walton-Page 2
                 Facts: Landowner and residents of property brought negligence,
                    trespass, and nuisance claims against a nearby plant for exposure
                    to its harmful emissions. Id. at 1569.
       o Martinez v. City of San Antonio, 40 S.W.3d 587 (Tex. App. 2001)
           (dismissing plaintiffs’ claims after they failed to produce reliable expert
           testimony establishing plaintiffs’ injuries, the extent of plaintiffs’
           exposure to lead dust, and ruling out alternative sources of lead exposure).
                 Facts: Neighborhood residents brought negligence, nuisance, and
                    trespass claims for injuries caused by lead dust disseminated by
                    construction on the Alamodome. Id. at 590.
                 “Causation cannot be established by mere speculation, and . . .
                    [plaintiffs] must have presented more than a scintilla of evidence
                    that lead dispersed during Alamodome site construction activities
                    caused their injuries.” Id. at 592.
       o Cunningham v. Masterwear, 2007 WL 1164832 (S.D. Ind. April 19, 2007)
           (excluding plaintiffs’ expert testimony due to unreliability, noting the
           experts failed to show that the specific dose and duration of exposure
           could cause the condition suffered by the plaintiffs, failed to rule out
           alternative causes of the injuries, and based their opinions on unreliable
           epidemiological studies).
                 Facts: Neighbors sued a dry-cleaner for exposure to chemical
                    emissions from the dry-cleaning store. Id. at *1.
       o Molden v. Georgia Gulf Corp., 465 F. Supp. 2d 606 (M.D. La. 2006)
           (granting defendant’s motion for summary judgment after plaintiffs failed
           to present sufficient scientific evidence establishing their exposure to a
           harmful level of phenol).
                 Facts: Nearby residents filed lawsuits following a fire at a phenol
                    plant, alleging personal injuries due to exposure to phenol released
                    during the fire. Id. at 608-09.
                 “In the absence of an established scientific connection between
                    exposure and illness . . . the temporal connection between
                    exposure to chemicals and an onset of symptoms, standing alone,
                    is entitled to little weight in determining causation.” Id. at 611
                    (citing Moore v. Ashland Chemical Inc., 151 F.3d 269 (5th Cir.
                    1998)).
B. Failure to rule out potential alternative sources of injury
       o Cunningham, 2007 WL 1164832, at *8; Martinez, 40 S.W.3d at 594-95;
           Satterfield, 888 F. Supp. at 1570-71.
C. Unreliable scientific evidence
       o Cunningham, 2007 WL 1164832, at *7 (irrelevant epidemiological
           studies); Martinez, 40 S.W.3d at 593-94 (unreliable calculations).
D. Affect of violation of government environmental regulations/standards
       o Wright, 91 F.3d at 1107 (rejecting suggestion that violation of government
           standards establishes causation in toxic tort context).




                            Tom Walton-Page 3
               “A legislature might well altogether outlaw a substance on the
                   ground that it is known to involve a risk of appreciable harm to
                   human beings, without having precise data on the question of how
                   much harm, or what kind of harm, some specific amount of that
                   substance might reasonably be expected to cause to some
                   particular kinds of persons or even to an average or an ordinary
                   person. . . . Whatever may be the considerations that ought to
                   guide a legislature in its determination of what the general good
                   requires, courts and juries, in deciding cases, traditionally make
                   more particularized inquiries into matters of cause and effect.” Id.
      o Molden, 465 F. supp. 2d at 611 (“[R]egulatory and advisory bodies make
          prophylactic rules governing human exposure based on proof that is
          reasonably lower than that appropriate in tort law, which ‘traditionally
          make[s] more particularized inquiries into cause and effect’ . . . .”).
      o Cunningham, 2007 WL 1164832, at *5 (“The government levels for a
          substance are not set for the purpose of proving the causation of every
          ailment suffered by those exposed to the substance.”).
E. Daubert Analysis in Iowa
   o Iowa courts take a liberal view on admissibility of expert testimony and are
      not required to apply Daubert analysis when evaluating expert testimony.
          o Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 531 (Iowa
              1999).
          o Ranes v. Adams Laboratory, No. LALA001519 (Iowa Dist. Ct. 2006)
              (on appeal with oral argument scheduled before the Iowa Supreme
              Court on June 26, 2008) (excluding expert testimony, based on
              Daubert analysis, that phenylpropanolamine caused neurological
              injuries).
F. Daubert Applied to Treating Physicians
    Courts have held that where treating physicians seek to testify regarding
      medical causation, their testimony is subject to Daubert analysis.
          o Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1207-08 (8th Cir.
              2000) (applying Missouri law) (“A treating physician’s expert opinion
              on causation is subject to the same standards of scientific reliability
              that govern the expert opinions of physicians hired solely for the
              purposes of litigation.”); Farris v. Intel Corp., 493 F. Supp. 2d 1174,
              1181 fn.3 (D.N.M. 2007) (citing Turner for same proposition);
              Leathers v. Pfizer, Inc., 233 F.R.D. 687, 693 (N.D. Ga. 2006) (“Dr.
              Firth’s status as Plaintiff’s treating physician does not immunize his
              testimony from Daubert.”); Munafo v. Metro. Transp. Auth., 2003 WL
              21799913, at *18 (E.D.N.Y. 2003) (“These [Daubert] requirements
              are not diminished merely because the expert witness is a treating
              physician rather than an expert retained solely for the purpose of
              litigation.”).




                            Tom Walton-Page 4
4. Mass Psychogenic Illness, Mass Sociogenic Illness, and Environmental Somatization
   Syndrome
      A. Mass Psychogenic Illness (MPI)
            o MPI, also referred to as “mass hysteria,” is generally characterized as
                involving people with real symptoms often triggered by misunderstood or
                false information. See Timothy F. Jones, Mass Pscyhogenic Illness: Role
                of Individual Physicians, American Family Physician 2469 (Dec. 15,
                2000). MPI is usually preceded by an environmental event, such as
                detection of an odor, or upon report of contamination of food or water.
                See Timothy F. Jones, Mass Psychogenic Illness: A Case Report and
                Overview, Psychiatric Times (April 2000). Outbreaks are often enhanced
                by a vigorous emergency response and substantial media attention. Id. In
                one illustrative case of MPI, a teacher noticed a gasoline-like odor in her
                classroom. Id. She soon developed symptoms of headache, nausea, and
                dizziness. Id. Several students subsequently reported similar symptoms.
                Id. The school was thereafter evacuated, and media reports quickly
                reported the evacuation was related to a presumed toxic gas exposure. Id.
                Over a hundred additional students reported illness, yet medical tests
                revealed no abnormalities. Id. Further, despite an extensive
                environmental investigation, officials found no signs of toxins that might
                have explained the outbreak. Id.
      B. Mass Sociogenic Illness
            o Mass Sociogenic Illness is technically defined as the “rapid spread of
                illness signs and symptoms affecting members of a cohesive group,
                originating from a nervous system disturbance involving excitation, loss or
                alteration of function, whereby physical complaints that are exhibited
                unconsciously have no corresponding organic aetiology.” Erica Weir,
                Mass Sociogenic Illness, Canadian Medical Association Journal (Jan. 4,
                2005), available at http://www.cmaj.ca/cgi/content/full/172/1/36 (last
                visited April 14, 2008). However, like MPI, Mass Sociogenic Illness is
                more simply defined as “epidemic hysteria.” Id. The illness generally
                results in varying symptoms that occur in the context of some credible
                threat that provokes mass anxiety—such as detection of a noxious odor in
                a school amid fears of chemical or biological warfare. Id. According to
                one expert, a review of literature has revealed over 200 published accounts
                of this type of “epidemic hysteria.” Id.
      C. Environmental Somatization Syndrome (ESS)
            o ESS is defined as “a tendency to experience and communicate
                psychogenic distress in the form of physical symptoms and to seek
                medical help for them.” Carl-Johan Gothe, Carol Molin & Carl Gustaf
                Nilsson, The Environmental Somatization Syndrome, Psychosomatics 1
                (Jan.-Feb. 1995). In particular, patients with ESS are often falsely
                convinced their symptoms are the result of exposures to perceived
                environmental hazards—for example, exposure to poisonous substances or
                electromagnetic fields. Id. Further, the illness is often characterized by




                                  Tom Walton-Page 5
                   symptoms such as dizziness, fatigue, palpitations, headache, and pains in
                   different parts of the body. Id. at 5. ESS is mentally contagious and, like
                   the previously described illnesses, tends to occur in epidemic outbreaks.
                   Id. at 1.

5.   Nuisance
     A. Medical/Expert Testimony & Causation
         Courts have held that nuisance claims, sounding in toxic tort, require expert
           testimony to establish causation.
               o Marmo v. IBP, Inc., 2005 WL 675806, at *1-2 (D.Neb. 2005) (“Under
                  either negligence or nuisance theories, Nebraska law requires that expert
                  medical testimony be used to demonstrate causation with regard to
                  permanent personal injuries.”).
                       “While the elements of a negligence claim are different than the
                          elements of a private nuisance claim, the proof required to
                          establish medical causation is the same.” Id. at *2.
               o Rianda v. Olin Corp., 2006 WL 1525694, at *5 (N.D. Cal. 2006)
                  (dismissing plaintiffs’ claims for failure to present expert testimony
                  establishing the link between the contamination caused by defendant and
                  the personal injuries suffered by plaintiffs); Fletcher v. Conoco Pipe Line
                  Co., 323 F.3d 661, 666 (8th Cir. 2003) (applying Missouri law) (holding
                  landowners had not provided sufficient proof of causation, in failing to
                  present any expert testimony demonstrating the connection between stray
                  electricity from a pipeline and the alleged injuries); Sramek v. Korth, 559
                  N.W.2d 924, at *3 (Wis. Ct. App. 1996) (noting nuisance claims based on
                  “complex injuries” require expert medical corroboration); Satterfield v.
                  J.M. Huber Corp., 888 F.Supp. 1567, 1572 (N.D. Ga. 1995).
     B. Application of Comparative Fault to Nuisance Claims
            Iowa courts have not yet applied comparative fault to nuisance claims.
                  o See Martins v. Interstate Power Co., 2002 WL 534890, at *3 (Iowa Ct.
                      App. 2002) (“If the nuisance claim is not based on negligence,
                      comparative fault is not an issue. This concept has long been the law
                      in Iowa.”); but see Iowa Code § 668.1 (2008) (defining “fault” as
                      including “one or more acts or omissions . . . that subject a person to
                      strict tort liability”); Buechel v. Five Star Quality Care, Inc., 745
                      N.W.2d 732, 735 (Iowa 2008) (noting Iowa’s comparative fault statute
                      defines fault to include claims rooted in strict liability, such as
                      products liability).
                  o Comparative fault has been used to apportion fault between multiple
                      defendants on separate theories of liability.
                           Egelhoff v. Holt, 875 S.W.2d 543, 547 (Mo. 1994) (holding
                               that use of a single comparative fault instruction was not
                               improper where there were two defendants and each was sued
                               on a different theory of recovery – strict liability and
                               negligence).




                                    Tom Walton-Page 6
                  o Courts have also held that liability for nuisance does not hinge on
                     whether a defendant owns, possesses or controls the property.
                          County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App.
                             4th 292, 306 (Cal. Ct. App. 2006); Tetzlaff v. Camp, 715
                             N.W.2d 256, 263 (Iowa 2006) (holding that a landlord could, in
                             limited cases, be held liable for a nuisance created by a tenant
                             where the landlord had sufficient knowledge of the existence of
                             the nuisance); Gray v. Westinghouse Elec. Corp., 624 N.E.2d
                             49, 53 (Ind. Ct. App. 1993) (“We hold that the party which
                             causes a nuisance can be held liable, regardless of whether the
                             party owns or possesses the property on which the nuisance
                             originates.”); Brown v. City of Marshall, 71 S.W.2d 856, 858
                             (Mo. Ct. App. 1934) (noting that “the one who creates a
                             nuisance, whether on his own property or not, is liable for the
                             damage caused thereby”).
             Tennessee courts have recognized the application of comparative fault to
              nuisance claims.
                  o Manis v. Gibson, 2006 WL 521466, at *5 (Tenn. Ct. App. 2006)
                     (noting that because the comparative fault statute had previously been
                     applied in strict products liability cases, which are analogous to
                     nuisance claims, comparative fault principles should likewise apply to
                     nuisance suits).
                  o Blackwell v. Westerwall, 1995 WL 153351, at *5 (Tenn. Ct. App.
                     1995) (“Plaintiffs argue that comparative fault is inapplicable to an
                     action for nuisance. No Tennessee authority is cited for such a rule,
                     and this court is not disposed to initiate such a rule under the
                     circumstances of this case.”).

6. Exposure Claims Based on “Fear and Concern”
   A. Generally
       Iowa courts allow plaintiffs to recover damages for “fear of future harm” in
         exposure cases.
            o Kosmacek v. Farm Service Co-op of Persia, 485 N.W.2d 99, 105 (Iowa
                Ct. App. 1992) (requiring that “plaintiffs are aware they possess an
                increased statistical likelihood of developing cancer, and from this
                knowledge springs a reasonable apprehension which manifests itself in
                mental distress.”).
       Other courts have similarly required plaintiffs both prove exposure and provide
         medical/scientific evidence supporting the reasonableness of their fear of
         developing a future disease.
            o Brooks v. Stone Architecture, 934 So. 2d 350 (Miss. App. 2006)
                (asbestos); Prata v. Vigliotta, 253 A.D.2d 746 (N.Y.A.D. 2nd Dept. 1998)
                (petroleum products); Potter v. Firestone Tire & Rubber Co., 863 P.2d
                795 (Cal. 1993) (hazardous waste).
       Other courts have rejected claims based on fear of future disease.



                                  Tom Walton-Page 7
          o Galaz v. U.S., 175 Fed. Appx. 831, 832 (9th Cir. 2006) (noting that Nevada
              had not yet recognized fear of cancer, absent proof of physical injury or
              illness, as sufficient to sustain a cause of action in tort); Ironbound Health
              Rights Advisory Comm’n v. Diamond Shamrock Chemicals Co., 578
              A.2d 1248, 1249-50 (N.J. Super. 1990) (“Their claimed emotional distress
              is the fear that they might some day become seriously ill from the previous
              inhalation and absorption of dioxin. They are apprehensive. Their
              concerns may be understandable but they are not compensable.”); Bondy
              v. Texas Eastern Transmission Corp., 701 F. Supp. 112, 114 (M.D. La.
              1988) (requiring physical or present injury to maintain an action for
              mental anguish caused by fear of contracting cancer or other future
              disease).
B. Nuisance Claims
    Some courts have held nuisance claims can be based on fear alone without
      evidence of actual contamination.
          o Cook v. Rockwell Int’l Corp., 273 F. Supp. 2d 1175, 1205 fn.31 (D.Colo.
              2003) (citing Allen v. Uni-First Corp., 558 A.2d 961, 963-65 (Vt. 1988)
              (holding evidence that property values decreased based on public
              perception of generalized contamination of city was sufficient for jury to
              find private nuisance)); Lewis v. General Elec. Co., 37 F. Supp. 2d 55, 61
              (D. Mass. 1999) (holding where plaintiff’s property had not been
              contaminated, but where plaintiff suffered loss of property value and
              feared for her children’s health based only on nearby contamination, claim
              should not be dismissed).
    Other courts have dismissed nuisance claims based solely on the “unfounded
      fears” of third parties which resulted in decreased property values.
          o Adkins v. Thomas Solvent Co., 487 N.W.2d 715, 721 (Mich. 1992)
              (“Negative publicity resulting in unfounded fear about dangers in the
              vicinity of the property does not constitute a significant interference with
              the use and enjoyment of land.”).
    Even where a plaintiff’s property has been contaminated, courts disagree as to the
      level of contamination required for a plaintiff to successfully assert a nuisance
      claim based on fear of future health effects.
          o Rockwell Int’l Corp. v. Wilhite, 143 S.W.3d 604, 627 (Ky. Ct. App. 2003)
              (holding that in cases of imperceptible contamination where no health or
              safety hazard exists, “Any annoyance or interference sustained by the
              landowners . . . is the result of an irrational fear of [the contaminants].
              The law does not allow relief on the basis of an unsubstantiated phobia.”);
              see also Smith v. Carbide and Chemical Corp., 298 F. Supp. 2d 561, 572-
              73 (W.D. Ky. 2004) (holding under Kentucky law, claims for nuisance
              and trespass based on imperceptible contamination of property require
              proof of “a scientifically demonstrable health or safety hazard”); but see
              Cook, 273 F. Supp. 2d at 1202-04 (noting contamination of plaintiff’s
              property by defendant nuclear plant may constitute a nuisance even if
              there is no verifiable health risk, if a normal member of the community in




                                Tom Walton-Page 8
                   similar circumstances would experience sufficient fear or anxiety to render
                   the contamination offensive, annoying, or inconvenient).

7. Public Nuisance: Lead Litigation
      A. Public Nuisance: “[A]n unreasonable interference with a right common to the
          general public.” In re Lead Paint Litigation, 924 A.2d 484, 496 (N.J. 2007).
             o Pottawattamie County v. Iowa Dept. of Environ. Quality Air Comm’n,
                 272 N.W.2d 448, 453 (Iowa 1978) (“The elements of public nuisance are:
                 (1) unlawful or anti-social conduct that (2) in some way injures (3) a
                 substantial number of people.”).
             o Public nuisance theories have been used to bring lawsuits against gun,
                 tobacco, and lead paint manufacturers. Anna Stolley Persky, Primed for
                 Lead Paint Litigation, 94-APR A.B.A. J. 18, 19 (April 2008).
                      Some commentators say the tort of public nuisance may pave the
                         way for a new trend in mass tort litigation. Id. at 20.
                      Public nuisance theory threatens to “become a monster that would
                         devour in one gulp the entire law of tort.” In re Lead Paint
                         Litigation, 924 A.2d 484, 505 (N.J. 2007).
             o The Rhode Island Supreme Court will likely decide by summer’s end
                 whether to uphold a jury’s verdict holding three lead paint manufacturers
                 liable for creating a public nuisance. Persky, Primed for Lead Paint
                 Litigation, 94-APR A.B.A. J. at 18 (chronicling the use of public nuisance
                 theory in Lynch v. Lead Indus. Assoc., Inc., in which the State of Rhode
                 Island sued several lead paint manufacturers). The Rhode Island verdict
                 could require the manufacturers to fund the state’s lead paint abatement
                 program, at a cost of $2.4 billion. Id.
      B. Lead Paint Litigation Issues
             o Role of the Property Owner
                      Courts disagree as to whether the public nuisance is created by the
                         property owner or the lead paint manufacturer. Compare In re
                         Paint Litigation, 924 A.2d at 501 (noting the “premises owner” is
                         responsible for creating the public nuisance) with Aileen Sprague
                         & Fidelma Fitzpatrick, Getting the Lead Out: How Public
                         Nuisance Law Protects Rhode Island’s Children, 11 Roger
                         Williams U. L. Rev. 603, 626-27 (2006) (explaining that the trial
                         court in Lead Indus. Assoc. rejected defendants’ arguments that the
                         actions of premises owners immunized the defendants from
                         liability).
             o Legality of Lead Paint Sales
                      Courts also appear to disagree as to the impact of the legality of
                         lead paint at the time of its sale.
                               “[T]he suggestion that plaintiffs can proceed against these
                                  defendants on a public nuisance theory would stretch the
                                  theory to the point of creating strict liability to be imposed
                                  on manufacturers of ordinary consumer products which,




                                    Tom Walton-Page 9
                                  although legal when sold, and although sold no more
                                  recently than a quarter of a century ago, have become
                                  dangerous through deterioration and poor maintenance by
                                  the purchasers.” In re Lead Paint Litigation, 924 A.2d at
                                  502.
                                 But see Aileen Sprague & Fidelma Fitzpatrick, Getting the
                                  Lead Out at 629 (noting that the trial court in the Lead
                                  Indus. Assoc. litigation instructed the jury that “the fact that
                                  the conduct which caused the public nuisance otherwise is
                                  lawful . . . does not preclude liability”).
               o Causation
                     Courts disagree as to the evidence required to prove causation in
                        lead paint public nuisance cases.
                             City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d
                                110, 116 (Mo. 2007) (holding proof of product
                                identification was required to prove causation and rejecting
                                plaintiff’s contention that causation could be established
                                based on market share theory).
                                    o “The City . . . must meet the same causation
                                        standards as must other nuisance claimants, and
                                        must show specific and particularized harm.” Id. at
                                        116.
                             County of Santa Clara v. Atlantic Richfield Co., 40 Cal.
                                Rptr. 3d 313, 325 (2006) (holding plaintiffs had sufficiently
                                alleged a claim against defendants in asserting they created
                                a public nuisance by concealing the dangers of lead,
                                mounting a campaign against regulation of lead, and
                                promoting use of lead paint despite knowledge of its health
                                hazards).
                             Lynch v. Lead Indus. Assoc., Inc., 2004 WL 2813747, at
                                *3 (R.I. Super. 2004) (rejecting product identification
                                requirement, and holding that lead paint manufacturers
                                could be held jointly and severally liable if plaintiffs
                                demonstrated that the cumulative effect of lead paint sales
                                and advertising resulted in a public nuisance).

8. Discoverability of Attorney Communications with Public Relations/Media
   Consultants
    Communications with outside public relations consultants are protected by the
      attorney-client privilege only if clearly made for the purpose of giving or receiving
      legal advice.
          o Compare In re Grand Jury Subpoenas, 265 F. Supp. 2d 321, 332 (S.D.N.Y.
              2003) (applying attorney-client privilege to communications with public
              relations firm for purpose of seeking legal advice); F.T.C. v.
              GlaxoSmithKline, 294 F.3d 141, 148 (D.C. Cir. 2002) (holding



                                   Tom Walton-Page 10
             communications with outside public relations and government affairs
             consultants were protected by attorney-client privilege); with Haugh v.
             Schroder Inv. Mgmt. North Am. Inc., 2003 WL 21998674, at *3 (S.D.N.Y.
             2003) (holding that attorney-client privilege did not apply to communications
             with public relations firm performing “standard public relations services”);
             Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 54 (S.D.N.Y.
             2000) (rejecting attorney-client privilege claims where communications were
             made for the purpose of seeking “ordinary public relations advice”).
      Work-product doctrine appears to provide more expansive protection for
       communications with public relations consultants.
          o See Calvin Klein Trademark Trust, 198 F.R.D. at *55 (upholding work-
             product privilege); Haugh, 2003 WL 21998674, at * 5 (same).

9. Ethical Issues in Settlement of Mass Joinder Lawsuits: Aggregate Settlements
      A. Generally
              o “When two or more clients who are represented by the same lawyer
                  together resolve their claims or defenses or pleas.” ABA Formal Ethics
                  Op. 06-438 (2006).
              o A defendant’s proposal of an aggregate settlement is not an ethical
                  violation. See ABA/BNA Lawyer’s Manual on Professional Conduct,
                  Conflicts of Interest § 51:375 (2008) (“There is nothing unethical about
                  proposing [an aggregate settlement], even though the offer may engender
                  conflicts among opposing counsel’s clients.”); New Jersey Ethics Op. 616
                  (1988).
      B. Model Rule of Professional Conduct 1.8(g)
              o Iowa Rule of Professional Conduct 1.8(g) mirrors the Model Rule.
              o According to ABA Formal Ethics Op. 06-438, an attorney seeking consent
                  of multiple clients to a proposed aggregate settlement under Rule 1.8(g)
                  must fully inform each client of the:
                       Total amount or result of the settlement;
                       Existence and nature of every client’s share;
                       Fees and reimbursement costs the lawyer will receive; and
                       Method by which the costs will be apportioned to each client. Id.
                       In addition, each client must consent to the settlement in writing.
                          Id.
              o Informed consent to settle generally cannot be obtained in advance. Id.
              o If a case involves the possibility of an aggregate settlement, the clients
                  should also be informed at the outset that if an aggregate settlement
                  requires consent of all the clients, each client has the power to block the
                  settlement by withholding consent. Id.
              o See In re Hoffman, 883 So.2d 425 (La. 2004) (holding lawyer failed to
                  make sufficient disclosures in accepting an aggregate settlement). But see
                  An Anonymous Member of the South Carolina Bar, 377 S.E.2d 567 (S.C.
                  1989) (holding lawyer’s failure to disclose to each client the name and
                  amount to be received by every other participant in the aggregate




                                  Tom Walton-Page 11
             settlement was not an ethical violation); Scamardella v. Illiano, 727 A.2d
             421 (Md. Ct. App. 1999) (rejecting view that attorney violated ethics rules
             in failing to disclose exact share of settlement proceeds each client was to
             receive).
   C. Client Confidences: Model Rule of Professional Conduct 1.6
          o In some cases, the disclosures required by Rule 1.8(g) will involve
             revealing confidential information protected by Rule 1.6. ABA Formal
             Ethics Op. 06-438. To prevent an ethical violation, an attorney must
             obtain informed consent from all the clients to share information among
             them. Id. The best practice is to obtain this consent at the outset of the
             representation. Id.
   D. Dividing the Settlement
          o An attorney representing multiple clients may employ one of several
             alternatives to dividing a lump sum settlement. These approaches include:
             (1) requesting the clients consult and agree to an appropriate division; (2)
             dividing the settlement based on the attorney’s evaluation of the merits; or
             (3) seeking assistance from a special master or judge to properly allocate
             individual awards. ABA/BNA Lawyer’s Manual on Professional
             Conduct, Conflicts of Interest § 51:381 (2008).

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