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
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)
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-
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
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-
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
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
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.
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
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
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
Tom Walton-Page 4
4. Mass Psychogenic Illness, Mass Sociogenic Illness, and Environmental Somatization
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.
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
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
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
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
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”
Iowa courts allow plaintiffs to recover damages for “fear of future harm” in
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
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
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
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
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”).
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
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
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
Communications with outside public relations consultants are protected by the
attorney-client privilege only if clearly made for the purpose of giving or receiving
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
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
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.
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
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
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).
O:\THWalton\CLE\ISBA\Toxic Tort Speech Outline.doc
Tom Walton-Page 12