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Toxic Torts and Environmental Law

The newsletter of the DRI Toxic Torts and Environmental Law Committee

A LITIGATOR’S GUIDE

Using Spatial InformationPart 1

Rick C. CrowseyCrowsey IncorporatedCharlottesville, VA

Introduction

Your client is facing a class action lawsuitwith thousands of claimants located any-where from next door to the incident tomore than 15 miles away. The plaintiffsall submit fear and fright claims, and mostof them submit claims for personal injuryand property damage. With more than3,000 potential claimants spread over 100square miles, how are you going to under-stand and communicate the de minimisnature of these claims? How will youshow similarity or the lack of similarityamong claims? What approach will youuse to understand and communicate thecomplexities of the case to co-counsel,underwriters, and clients? What strategywill you use to review risk systematicallyand to structure a settlement offer?

Spatial information tools can allow youto understand quickly the nature of allthe claims, to assess numerous scenar-ios, and to communicate the complexi-ties of the case simply and persuasively.

Spatial information has a geographic con-tent; in other words, the location, or thewhere, is a key relational component ofspatial information. “But my cases aren’tspatial,” you say. Oh, really? Cases in-volving property damage, environmentalissues, trespass, substance spill or leak,electromagnetic field exposure, and bothnatural and manmade disasters are just afew examples of cases that have substantialspatial content and that are well served bythe use of spatial information. Many ofyour clients will face or pursue litigationthat has a substantial spatial component.

The use of spatial information will in-crease your likelihood of success, depend-ing on how effectively you understand,visualize, and communicate the facts ofthe case. Spatial information enables thissame type of visual understanding persua-siveness as a photo or video of the defen-dant in the act of the crime. If a picture isworth a thousand words, spatial informa-tion is worth thousands of pictures.

What is Geospatial Information?

Geospatial information comprises three

In This Issue…

A Litigator’s Guide: UsingSpatial Information, Part 1 ... 1

Toxic Torts andEnvironmental LawCommittee Leadership .......... 2

From the Chair: A Strongand Active Committee ......... 4

Mold Litigation: A NewDance to an Old Song—Spoliation of Evidenceand SubsequentRemedial Measures ................ 8

Proposition 65: NewRequirements in 2002Benefit Defendants ............. 13

Staying Out of Troublein the Courtroom ................ 16

Spoliation of Evidence:Trend to a New Tort ............ 19

continued on page 5

Summer 2002

©2002 DRI. All rights reserved.

2 Summer 2002Toxic Torts and Environmental Law

Chair

Brickford Y. BrownMoran, Kiker & Brown4112 E Parham Rd, Ste ARichmond, VA 23228(804) 421-6250(804) 421-6251 – faxbbrown@

morankikerbrown.com

Vice Chair

Robert P. Scott, Jr.Abrams, Scott & Bickley600 Travis St, Chase Twr,

Ste 6601Houston, TX 77002-3007(713) 228-6601(713) 228-6605 – [email protected]

Membership Chair

Timothy Allen ClarkVickers Riis Murray106 Saint Francis St, 11th FlMobile, AL 36602-3419(334) 432-9772(334) 3432-9781 – [email protected]

Corporate Co-ChairCarl B. Epps IIINelson, Mullins, Riley &

Scarborough1330 Lady St, 3rd FlColumbia, SC 29201-3332(803) 255-9751(803) 256-7500 – [email protected]

Corporate Co-ChairRobert E. MeadowsKing & Spalding1100 Louisiana, Ste 4000Houston, TX 77002-5219(713) 276-7370(713) 751-3290 – [email protected]

InsurersMichelle I. SchafferCampbell Campbell EdwardsOne Constitution Plz, 3rd FlBoston, MA 02129(617) 241-3000(617) 241-5115 – faxmschaffer@campbell-trial-

lawyers.com

Private PracticeStephen J. ImbrigliaHecker, Brown, Sherry and

Johnson18th and Arch Sts, Ste 1700Philadelphia, PA 19103(215) 446-6209(215) 636-0366 – [email protected]

Marketing Chair

TBA

Publications Chair

George P. PappasSheehy, Serpe & Ware909 Fannin St, Ste 2500Houston, TX 77010-1003(713) 951-1067(713) 951-1199 – [email protected]

For The DefenseCommittee PerspectivesSection August 2002George P. Pappas

Program Chair

Barbara ArrasPhelps Dunbar365 Canal St, Ste 2000New Orleans, LA 70130-

6534(504) 566-1311(504) 568-9130 – [email protected]

Expert Witness Chair

TBA

Legislative/RulemakingLiaison

Mary H. TerzinoThe Dow Chemical Co.2301 N Brazosport BlvdFreeport, TX 77541(409) 238-9308(409) 238-3587 – [email protected]

State Liaison Chair

TBA

Diversity Liaison

Demarcus J. GordonJohnson & Bell55 E Monroe St, Ste 4100Chicago, IL 60603-5896(312) 372-0770(312) 372-0522 – [email protected]

Web Page Chair

Marc E. WilliamsHuddleston Bolen Beatty611 Third AveHuntington, WV 25701(304) 691-8306(304) 522-4312 – faxmwilliams@

huddlestonbolen.com

Subcommittee Chairs

Agricultural Chemicals &Pesticides Co-ChairBurton M. Harris (Burt)Dow AgroSciences9330 Zionsville RdIndianapolis, IN 46268(317) 337-4845(317) 337-4848 – [email protected]

Agricultural Chemicals &Pesticides Co-ChairP. Gerhardt Zacher (Gary)Gordon & Rees101 W Broadway, Ste 1600San Diego, CA 92101(619) 696-6700(619) 696-7124 – [email protected]

TOXIC TORTS AND ENVIRONMENTAL LAW COMMITTEE LEADERSHIP

Asbestos/SilicosisF. Grey Redditt, Jr.Vickers Riis Murray106 Saint Francis St, 11th FlMobile, AL 36602-3419(334) 432-9772(334) 432-9781 – [email protected]

Communications HotlinePatrick T. GarveyJohnson & Bell55 E Monroe St, Ste 4100Chicago, IL 60603-5896(312) 984-0203(312) 372-9818 – [email protected]

Environmental &Regulatory LawBrian J. ClarkBuchanan Ingersoll213 Market St, 3rd FlHarrisburg, PA 17101(717) 237-4823(717) 233-0852 – [email protected]

Environmental CoverageRobert B. JaskowiakRider Bennett Egan333 S Seventh St, Ste 2000Minneapolis, MN 55402(612) 340-7984(612) 340-7900 – [email protected]

Indoor Air Quality/MoldRonald E. HurstMontgomery McCracken

Walker123 S Broad St, 26th FlPhiladelphia, PA 19109(215) 772-7242(215) 772-7620 – [email protected]

mailto:[email protected]



















3Summer 2002 Toxic Torts and Environmental Law

LeadChair TBA

Mass Tort/IndustrywideLitigationThomas M. GoutmanWhite & Williams1650 Market St, Ste 1800Philadelphia, PA 19103(215) 864-7057(215) 864-7123 – [email protected]

Members Forum ChairDonald H. PyleLane Powell Spears Lubersky601 SW Second Ave, Ste

2100Portland, OR 97204-3158(503) 778-2100(503) 778-2200 – [email protected]

Solvents & ChemicalExposuresChair TBA

Spills, Explosions &Underground StorageTanksChristen A. MattisonHall & Evans1200 17th St, Ste 1700Denver, CO 80202(303) 628-3300(303) 628-3368 – [email protected]

Trial TacticsKevin C. MayerSteptoe & Johnson633 W Fifth St, Ste 700Los Angeles, CA 90071(213) 439-9400(213) 439-9599 – [email protected]

White Collar CrimeWilliam A. CoatesRoe Cassidy Coates100 E North StGreenville, SC 29601(864) 349-2603(864) 349-0303 – [email protected]

Public RelationsContacts

EastCarl B. Epps III

CentralH. Patrick MorrisJohnson & Bell55 E Monroe St, Ste 4100Chicago, IL 60603-5896(312) 984-0244(312) 372-9818 – [email protected]

WestTBA

Young Lawyer Liaison

Thomas V. McCarronSemmes, Bowen & Semmes250 W Pratt StBaltimore, MD 21201(410) 539-5040(410) 539-5223 – [email protected]

Newsletter Editor

Eric K. FalkDavies, McFarland & CarrollOne Gateway Ctr., 10th FlPittsburgh, PA 15222-1416(412) 281-0737(412) 261-7251 – [email protected]

Substantive CommitteeAdvisory Board Liaison

E. Wayne TaffSherman, Taff & Bangert1100 Main St, Ste 2950Kansas City, MO 64196(816) 471-6900(816) 474-7346 – [email protected]

Law Institute Liaisons

2002 SeminarRandall R. RiggsLocke Reynolds201 N Illinois St, Ste 1000Indianapolis, IN 46204-

4210(317) 237-3800(317) 237-3900 – [email protected]

2003 SeminarRobert E. Scott, Jr.Semmes, Bowen & Semmes250 W Pratt StBaltimore, MD 21201(410) 576-4725(410) 539-5223 – [email protected]

William G. GandySaperston & Day2000 HSBC Plz 20th FlRochester, NY 14604-2404(716) 325-7570(716) 325-5458 – [email protected]

Patrick T. GarveyJohnson & Bell55 E Monroe St, Ste 4100Chicago, IL 60603-5896(312) 984-0203(312) 372-9818 – [email protected]

Cameron F. KerryMintz Levin CohnOne Financial Ctr.Boston, MA 02111(617) 542-6000(617) 542-2241 – [email protected]

William A. RuskinShipman & GoodwinOne Landmark Sq, Ste 1700Stamford, CT 06901(203) 324-8113(203) 324-8199 – [email protected]















4 Toxic Torts and Environmental Law Summer 2002

FROM THE CHAIR

Moran, Kiker & Brown4112 E. Parham Rd., Ste. ARichmond, VA 23228(804) 421-6252(804) 421-6251 – [email protected]

I am pleased to report that the Toxic Tortsand Environmental Law Committeecontinues to be strong and active. TheCommittee held its 2002 annual seminarin Miami on March 14-15, with the sec-ond highest attendance in history. Theprogram was, as always, very well re-ceived with balanced presentations onscience, law, and medicine. The Ameri-can Chemistry Council, as co-sponsor ofthe program, had a very large presence atthe seminar, and the expectation is thatthe relationship will continue to nextyear’s program. We are finalizing the 2003program scheduled for the Hotel delCoronado in San Diego. Please mark yourcalendars for March 20–21. The pro-gram was held previously in San Diegoin 1999, and the city proved to be anoutstanding location with its wonderfulclimate and proximity to Mexico pro-viding a beautiful backdrop.

We have had participation from anumber of companies, most significantlyDowAgro Sciences and Syngenta SpecialtyChemicals, in the panel/counsel pro-gram, which provides corporate attend-

ees special incentives to hold a meetingof their outside counsel in conjunctionwith the seminar. For the terms of thearrangement, please contact me. Thisinitiative is only available to five corpo-rate participants, and one of the Com-mittee’s goals for the 2003 program is tohave full participation. Please let meknow of any companies that might beinterested in this initiative.

I would encourage every Committeemember to join a subcommittee, whetherit be a Substantive Law Committee(“SLC”) or an administrative subcom-mittee. This will allow more active par-ticipation in the Committee for thosewho would like to take full advantage ofwhat the Committee has to offer. SteeringCommittee and subcommittee assign-ments are currently being made, with aparticular need for help on the member-ship and marketing subcommittees. Thecurrent list of subcommittees includes:Corporate Membership, General Mem-bership, Marketing, Web Site, Programs,Publications, Expert Witness Database,Trial Tactics, Environmental and Regu-latory Law, Spills Explosions and Un-derground Storage Tanks, Asbestos/Silicosis, Solvents and Chemical Expo-sures, Mass Torts and Industrywide Liti-gation, Agricultural Chemicals andPesticides, White Collar Crime, IndoorAir Quality, Environmental Coverage,and Young Lawyers. Please let me knowif you have any interest in serving onany of the subcommittees or if you have

a suggestion for a new subcommittee.(Warning: If you suggest it, you are atrisk of chairing it!)

Barbara Arras, who now serves as ourProgram Chair, has chaired the ExpertWitness Database subcommittee since itsinception. Because of her duties with theannual program, it has been necessary tofind a replacement. When the call wentout, more than two dozen committeemembers responded immediately with awillingness to help. Kirk Marty of Shook,Hardy and Bacon has agreed to take onthis responsibility. If you haven’t already,you should receive an e-mail explaininghow to get in touch with Marty to dis-tribute any inquiries you may have.

The Web Site subcommittee is solicit-ing Committee members for commentsfor the Committee’s web page. Pleasecontact Marc Williams at [email protected] with any sugges-tions or offers to help.

One of our goals this year is to increasethe committee’s membership by 20 per-cent, taking it to 900 members. Please en-courage those whose practices touch ontoxic tort and/or environmental law tojoin our Committee and take advantagethe unique opportunities it offers.

Finally, please consider attending theDRI Annual Meeting in San Franciscofrom October 2–6. There will be ameeting of the Toxic Torts and Environ-mental Law Committee from 4:30 p.m.to 6:00 p.m. on Thursday, October 3. Ilook forward to seeing you there.

A Strong and Active CommitteeBrickfordY. Brown




5Toxic Torts and Environmental LawSummer 2002

basic components: geographic informa-tion systems, remotely sensed imagery,and the Global Positioning System.

Geographic Information SystemsA geographic information system, or GIS,combines layers of information about aplace to yield a better understanding ofthat place. A GIS is commonly defined asa system of hardware and software usedfor storage, retrieval, mapping, and anal-ysis of geographic data. Most people thinkof maps when the term GIS is used, buta GIS can encompass areas as large as aplanet or as small as a cell. A hard copymanifestation of a GIS is the humanbody overlays found in the H Volumeof the World Book Encyclopedia.

Each transparent sheet contains athematic “map” of different parts of thebody. One sheet’s theme is the circulatorysystem, another sheet’s theme is the bones,and so on. A computer-based GIS allowsfor much more flexibility in analysis andvisualization than a hard copy.

Remotely Sensed ImageryRemotely sensed imagery is often used asone or more themes in a GIS, as a back-drop, as an overlay, or for extraction ofvarious themes of information. Remotely

sensed imagery comes in a variety of fla-vors, from common aerial photographs tothe various kinds ofsatellite imagery.Remotely sensedimages are simplypictures. Theseimages are usefulfor identifying acondition or forverifying the exist-ence of an objectat a specific location.

Global Positioning SystemThe Global Positioning System,or GPS, was developed by the UnitedStates military to assist in the location

and targeting of assets andresources. The GPS iscomposed of ~24 satellitesin orbit around the Earth,all transmitting a signalthat includes a precise timecode. GPS receivers calcu-late their location on theEarth by using signalsfrom several satellites totriangulate their location.The Global PositioningSystem has been a boon togeospatial information by

making it possible to determine loca-tion precisely anywhere on the globe.

How Can Geospatial Information

Be Used?

Until recently, satellite imagery had beenthe exclusive province of governmentalagencies and the military. Now, however,it’s a commercial reality. As a result, in-credibly sharp Earth photos from spaceplatforms reveal spatial, temporal, andspectral information about our world in

ways never before possible or even imag-ined. Satellites circling the Earth from400 miles in space at 16,000 miles perhour transmit data to the ground at high-speed rates. Aided by the Global Position-ing System, these satellites know theirorbital positions precisely. This precisionpermits very accurate positioning ofground features for mapping and forother applications to within a few meters.Moreover, space cameras with high-res-olution and multispectral (blue, green,red, near-infrared, and so on) imagingcapabilities can identify objects on theground that have never before been vis-ible to the human eye. Detection andidentification of objects as small as 24inches in size is now possible. Conse-quently, satellite imagery has the clearpotential to become not only a staplefor industries such as land use, hydro-carbon exploration, agricultural, envi-ronmental, and disaster assessment, butalso a powerful tool for litigators.

Remote sensing, and in large measuregeospatial information, activities in theU.S. are governed by three distinct in-formation regimes: national security,civilian government, and commercial.

Using Spatial Information, from page 1


The national security space assets areregulated as a closed information systemwith the goal of collecting as much infor-mation as possible about the world whilepreventing the release of this informationor the technology necessary to collect thisinformation. The civilian governmentsphere of activity includes the operationalmeteorological satellites and the scien-tific research satellites and is governed asan open system. Its main objective is tocollect and disseminate broadly envi-ronmental data as a public good and tomaximize technological efficiency towardthat end. Commercial remotesensing is regulated as a con-ditionally open system. Likethe civilian government, thecommercial sector seeks tocollect and distribute spatialinformation on a wide scale.

Applications of geospatialinformation, and likewiseremotely sensed images, tothe legal process can begrouped according to threebroad general categories: 1)applications aimed at thedevelopment of public pol-icy and at the creation of in-ternational agreements, legislation, oradministrative regulations; 2) investiga-tory applications used in the monitor-ing of compliance with existing treaties,laws, and regulations; and 3) evidenceadmissible in litigation. See also RemoteSensing Evidence and EnvironmentalLaw, 64 Calif.L.Rev. 130 (1976), for adetailed discussion of these applicationsareas in environmental law.

The use of geospatial information insupport of a legal matter is the same as itsuse for any other application. Geospatialinformation provides for understandingand for persuasively communicating com-plex and difficult to understand issues.

The following examples show a few ofthe potential legal applications of geo-spatial information.

Examples of Legal Uses of

Geospatial Information

Bossier City, Louisiana,Aerial PhotographyThis spatial analysis of the temporal use ofland in the Bossier City, Louisiana, areawas performed by NASA’s CommercialRemote Sensing Program Office at theJohn C. Stennis Space Center. The use

of this information can be as simple asreviewing the historical aerial photo-graphs over a particular location or ascomplex as performing sophisticatedimage processing and decision analysis.The figure above shows an example ofthe power of examining historical imag-ery over a particular location.

Consider the following hypothetical:In the mid-1990s, the residents of theapartment complex (shown in the lowerright, labeled 1994) begin to experiencea large number of debilitating illnesses.They band together and sue the apartmentcomplex. The Environmental ProtectionAgency and the Louisiana Department

of Environmental Quality are involvedin the case. It occurs to these agencies toreview the historical use of the land,whereupon they discover that the apart-ment’s gunnite swimming pool is locatedon top of what appears to have been apetroleum refinery waste pit.

This use of imagery to discover andunderstand the historical use of land iscommonly referred to as temporal (ortime series) analysis. The series of aerialphotographs shown in the figure at leftillustrate the Bossier City Citgo refinerybuildup and dismantlement and the sub-

sequent development of anapartment complex on landthat was previously a refinery.This type of analysis and vi-sualization is very powerfulin helping decision makersto understand the factors ofa case that are correlated tolocation. Many legal mattershave a significant tie to loca-tion. A NASA programmanager looking at the useof spatial information incommerce stated that 85percent of business docu-ments contain a significant

geographic content. This suggests thatlegal professionals might be well servedto consider geography and spatial infor-mation in most cases.

Rowan Odessa GeographicInformation SystemThis “picture” (a 135+ layer geographicinformation system built by CrowseyIncorporated for defense counsel), page7 at top, illustrates the effectiveness of aspatial information exhibit at persuasion.This case involved two tugboats thatmoved an offshore drilling rig near BellePass (on the Louisiana shore south ofNew Orleans). Upon lowering the jack


up legs, a 16-inch diameternatural gas pipeline waspunctured. The lawsuit forwhich this GIS was createdsought damages from thetwo tug companies. TheGIS illustrated that the cap-tain parked perilously closeto pipelines in this area onprevious occasions. Oncethis was disclosed to theplaintiff team via this spatialinformation exhibit, theyentered settlement discus-sions with the defense teamand quickly reached a settlement.

Geospatial Information in

Class Action Cases

An extensive geographic informationsystem can provide various visualizationsand analyses in support of a defense teamin class action cases. What is a reasonableclass boundary? How many potentialclaimants are enclosed within the classboundary? How far are the plaintiffsfrom the incident? How many residentsin the class boundary did not make aclaim? What is the nature of the claimswith respect to each claimant’s location?How can a toxicologist bestdescribe the potential dan-ger area? How can an airdispersion expert best showthe fate and transport of thefire and plume? Where is thefire and plume with respectto the claimants? These arejust a few of the many ques-tions that can be answeredand visualized by the legalteam using geospatial infor-mation.

Class Certification AssessmentIn a class action case, one of the first ques-tions frequently asked is, “Where are theclaimants and what are reasonable classboundaries given the facts of the case?”Geospatial information is the best, andreally the only, way to visualize the in-formation that answers this question. Theillustration below was used to begin tounderstand what happened and to answerthese questions in this case. One of thenext questions asked is, “How many po-tential plaintiffs fall within the proposedclass boundaries?” Either side of a classaction will find the answer to this ques-tion critical to its strategy and tactics

when considering settlingand evaluating the nuisancelevel of a frivolous claim.

Claimant InformationOne of the requirements ofa class action suit is multi-plicity; in other words, theremust be a significant num-ber of claimants. Geospatialinformation is really the onlyapproach available to visual-ize, analyze, and consider ef-ficiently various scenarios ofmultiple geographic loca-

tions. The example above is a productliability case with over 23,000 claimantsacross the United States. The defenseteam needed to know not only where theclaimants were located but also wherethey sought remedy and from whom. Ageospatial information exhibit, such asthe one above, allows the legal team tovisualize where the claimants are withrespect to the other pertinent facts of thecase. In addition, once the geographic in-formation system is created, counsel canquickly create and consider various sce-narios of risk and settlement, as well asexplore relationships and correlate factorsin ways that otherwise would be impos-

sible to perform in a reason-able manner.

Recommended Reading

Visual Explanations, Ed-ward R. Tufte, GraphicsPress, 1997, 158 pp.

The Visual Display ofQuantitative Information,Edward R. Tufte, Graph-ics Press, 1983, 200 pp.

Envisioning Information,Edward R. Tufte, Graph-ics Press, 1990, 128 pp.


Tracking Spills and Releases: High-Tech inthe Courtroom, Wilson, Jones, Smithand Liles, Tulane Environmental LawJournal, Volume 10, 1997, at 371-96.

Photographs and Maps Go to Court,edited by Larry Gillen, American So-ciety for Photogrammetry and Re-mote Sensing, 1986 (now out of

print, but ASPRS can provide a copyupon special request).

Earth Observation Systems: Legal Con-siderations for the ’90s, jointly pub-lished by American Society forPhotogrammetry and Remote Sens-ing and the American Bar Associa-tion, 1990.

Satellite Imagery: The Space Odyssey Ar-rives in the Courtroom, Krouse, Ferry,and Crowsey, For The Defense, June2000, at 18-23.

How to Lie with Maps, Mark Mon-monier, The University of ChicagoPress, Chicago and London, 1991.

MOLD LITIGATION

A New Dance to an Old SongSpoliation of Evidence and Subsequent Remedial Measures

Michael J. PietrykowskiGordon & ReesSan Francisco, [email protected]

Introduction

The well-defined legal concepts of spolia-tion of evidence and subsequent remedialmeasures usually offer little challenge tothe practitioner. However, when appliedagainst the backdrop of mold litigation,these evidentiary concepts offer new twistsand turns. This article reviews spoliationof evidence and subsequent remedial re-pairs and discusses their application inthe context of mold litigation.

Spoliation of Evidence

DefinitionThe loss, destruction, fabrication, altera-tion, or suppression of evidence is knownas “spoliation.” In the context of litiga-tion, spoliation of evidence is commonlyunderstood as the failure to preserveproperty that could be used as evidenceby another party in pending or future

litigation. The elements of a viable spo-liation claim are: (1) the accused spolia-tor has notice of pending or futurelitigation; (2) the evidence is within theaccused spoliator’s possession, custody,or control; and (3) the spoliated evidenceis relevant. Dillon v. Nissan Motor Co.,986 F.2d 263 (8th Cir. 1993).

With regard to the first element of aspoliation claim, a party need only be con-cerned with the preservation of evidenceif it knows or has reason to know thatthe threat of future litigation is a reality.Shimanovsky v. General Motors Corp.,181 Ill.2d 112, 692 N.E.2d 286 (1998).

The second element applies not only tothe actual spoliator but also to the agentand includes experts, attorneys, and ac-countants. Vodusek v. Bayliner MarineCorps., 71 F.3d 148 (4th Cir. 1995).

RemediesIf spoliation occurs, the prejudiced partywill have several remedies against thespoliator. Arguably, the most severe rem-edy allows the prejudiced party to pros-ecute a legal claim seeking damages forthe spoliation. At least ten jurisdictions

have recognized spoliation of relevantevidence to be an independent tort causeof action. In these jurisdictions, the in-dependent tort cause of action may beasserted against the spoliator, and theparty presenting the claim is entitled tomonetary damages. These damages areusually difficult to prove and require themoving party to show that it suffered aloss (e.g., judgment) because evidencewas not available to them. The remain-ing majority of jurisdictions have eitherconsidered and rejected spoliation ofevidence as a separate cause of action orhave routinely ignored the possibility ofspoliation as a separate cause of action.

Although the majority of jurisdictionsrefuse to recognize spoliation of evidenceas an independent cause of action, thesestates still provide considerable remediesfor the victims of spoliation. These rem-edies include sanctions, adverse jury in-structions, exclusion of evidence, and evendismissal of the underlying lawsuit. For amore detailed listing of the remedies per-mitted by each state, refer to the statesurvey chart beginning on page 19 ofthis newsletter, which is taken from “Spo-



liation of Evidence: Trend to a New Tort,”reprinted with permission of author.

The range of court-imposed sanctionsupon a finding of intentional spoliationvaries widely, and includes striking de-fenses, precluding evidence, and dismiss-ing claims on the entire action. Somestates, including Texas, allow a jury in-struction that if a party has destroyedevidence, there is a presumption thatthe evidence would have been unfavor-able to that party’s case. Malone v. Fos-ter, 956 S.W.2d 573 (Tex. 1997).

Negligent spoliation of evidence is themore common allegation underlyingcourt-imposed sanctions because badfaith or willfulness of the spoliator neednot be proven. Generally, courts considerthe following factors in determiningwhether a charge of negligent spoliationexists and the imposition of sanctions isjust: (1) Was relevant evidence lost, de-stroyed, altered, or suppressed?; (2) Is themishandling of evidence prejudicial tothe opponent?; (3) Can the prejudice becured?; and (4) What is the appropriatemethod by which the prejudice may beremedied? Tracy v. Cottrell, 206 W.Va.399, 524 S.E.2d 879 (1990). Sanctionsfor negligent spoliation are often limitedto the exclusion of expert or lay testi-mony and the barring of any evidencederived from the spoliated evidence.Travelers Insurance Co. v. Dayton Power& Light Co., 76 Ohio Misc.2d 17, 663N.E.2d 1383 (1996).

Spoliation of Evidencein the Mold LitigationIn the context of mold litigation, bothplaintiffs and defendants are faced withunique and difficult challenges as theydetermine what and how evidence shouldbe preserved. These challenges involveevidentiary issues and litigation strate-gies, and can be further complicated by

plaintiffs’ ongoing health problems anddefendants’ economic concerns.

Pre-Litigation SettingAs discussed above, spoliation claims arenot limited to spoliation during pend-ing litigation. Parties and their lawyersshould be particularly wary of possiblespoliation claims even if renovation and/or remediation efforts are made prior tolitigation. Although visual testing, airsampling, and limited bulk sampling arenot likely to lead to allegations of spoli-ation, remediation is destructive and mayexpose the unwary tester to allegationsof intentional or negligent destructionor alteration of relevant evidence. Sev-eral years ago, the statement “I didn’tknow that this mold stuff could be thebasis for a claim” would not likely bechallenged. Today, however, once moldis so much as mentioned, the potentialfor litigation must be realized, and allparties are thereafter put on notice thatfuture litigation is a likely possibility.

If an individual determines that abate-ment, remediation, or destructive testingmust be performed, the individual shouldconsider whether it is necessary to pro-vide written notice to potential claimantsand adversaries. Although this may seemburdensome and may be rejected forstrategic reasons, an individual who uni-laterally abates, remedies, or otherwisedestroys evidence, regardless of intent,faces the possibility of a court imposingsanctions such as striking pleadings, im-posing adverse evidentiary presump-tions in jury instructions, or, at the veryminimum, excluding any future expertor lay testimony pertaining to the de-stroyed evidence.

Even in the event that none of thepotential parties objects or refuses toparticipate in the abatement, remedia-tion, or destructive testing efforts, the

acting party should retain a consultantwho can participate in the remediation,abatement, or destructive testing. Theconsultant can thereby collect, chronicle,identify, and even preserve any potentialevidence. If evidence is to be destroyed,the consultant’s inspection record andanalysis of that evidence can, if neces-sary, be offered as the evidence and willlikely prevent or minimize later sanc-tions for spoliation.

Plaintiff TenantsMany mold plaintiffs are tenants—commercial or residential—and are usu-ally limited in their ability to collectevidence. They are typically not entitledto perform any destructive testing or toengage in investigation that may result insome destruction. This is a significantlimitation for plaintiffs who suspect thatthe mold is more extensive than what isvisible and accessible. In the pre-litiga-tion setting, the tenant is usually with-out recourse. However, once litigationcommences, the tenant may seek a courtorder permitting such destructive inves-tigation or testing. In this scenario, thecourt will likely require that the evi-dence be made available to defendant.

Short of these extreme measures,plaintiff tenants will have to limit theevidence gathering process to visual ob-servations (photographs, videos, eyewit-ness accounts, etc.) and rely on air andbulk sampling for counts and speciesidentification. It is unlikely that spolia-tion of evidence will become an issueunder these circumstances because de-fendant will have access to the same evi-dence. Still, the safest approach toensure that the evidence will be admis-sible at trial is to make sure that thephysical evidence is either preserved orwell documented.

Plaintiff tenants will most likely have


damage claims for contaminated per-sonal property. In many instances, theseclaims can be adjusted and resolved im-mediately. However, when that is notthe case and when it is not economicalto store the property, the tenant shouldprovide the landlord with the opportu-nity to examine the items before theyare destroyed. Regardless, the tenant willwant the property recorded, photo-graphed, and examined by an appropri-ate consultant who can later providesufficient testimony and documents inlieu of presenting the actual items.

Defendant LandlordsWhile plaintiff tenants face the chal-lenges of limited access, the defendantlandlords arguably have the contraryproblem of having too much availableinformation. This unlimited access andinformation can create quite a dilemmafor the landlord and requires an analysisthat balances evidentiary issues, litiga-tion strategies, economic concerns, andtenant health issues.

A typical mold defendant is a prop-erty manager or building owner (“land-lord”) who has or can obtain completeaccess to the subject space or building.As such, this defendant faces difficultdecisions at an early stage about whetherany evidence should be obtained. Thelandlord runs the risk of creating “badevidence” which, if not preserved, willinvite a sanction remedy for spoliationof evidence.

The evidentiary issues and litigationstrategy may also be colored by the likelyscenario that there is an alleged ongoingrisk to the occupants. As such, the failureto act may become the basis of furtherclaims of negligence, fraud, and evenpunitive damages. Thus, the landlord isfaced with the situation that if it aggres-sively explores and investigates the mold

contamination claims, it may be memo-rializing evidence that will be detrimentalin future or subsequent litigation. Onthe other hand, if the landlord fails toinvestigate the claim, it will be portrayedas the “heartless landlord” who failed torespond to tenant’s complaints. This latterclaim is particularly problematic for de-fendants because there are no acceptedguidelines for admissible exposure levelsand the mere presence of any mold maybe sufficient to maintain an action formold contamination.

If, while investigating the claim, thelandlord discovers evidence of mold con-tamination, it must decide whether andhow the evidence will be preserved. If thelandlord decides to proceed with abate-ment, and litigation is imminent or on-going, it will have to provide plaintiffwith the opportunity to inspect beforethe abatement.

Although a landlord’s intent may berenovation, not remediation, the land-lord must still consider whether it has anobligation to preserve the evidence. Simi-lar to the scenario in asbestos propertylitigation, defendant (or plaintiff, if theownership roles are reversed) may avoid aclaim of spoliation if it puts plaintiff onnotice and provides an opportunity toexamine and, as appropriate, test thediscovered mold.

Plaintiff Property OwnersIn some situations, the mold plaintiffwill be the property owner (e.g., bad faithcases and claims against the developeror contractor responsible for the waterintrusion). Like the defendant propertyowner, plaintiff property owner facesdecisions concerning the preservation ofevidence. However, unlike defendant,plaintiff is usually not concerned withcollecting “bad evidence.” Rather, thefocus will typically be on whether and

how evidence should be preserved. Fail-ure to maintain the evidence, even if itis favorable, could result in dismissal,evidentiary sanction, or a negative infer-ence at trial.

An extreme example of this arose in arecent mold case in Eugene, Oregon,where plaintiff homeowners abandonedtheir home and then burned it down.Mealey’s Litigation Report: Mold, June2001, Vol. 1, Issue No. 6, citing Oregoncase O’Hara v. Stangland, No. 16-00-12848 (2001). Plaintiffs alleged that theconstruction company defendant per-formed faulty work that allowed moistureto be drawn into the structure, facilitat-ing the growth of “toxic mold.” Plain-tiffs, who claimed that their home andbelongings were so contaminated thatthey were unsalvageable, burned theirhome down prior to bringing the suit.Defendant claimed that plaintiffs inten-tionally committed spoliation of evidenceand sought dismissal of the case for the“misconduct,” alleging that this inten-tional act was done to “inflame andprejudice the entire jury community.”

In response to defendant’s allegations,the court ordered that all of plaintiffs’consultant reports, which were madebefore the house was burned and beforelitigation began, had to be disclosed. Al-though the case settled before trial, thedisclosure of otherwise non-discoverablereports was arguably detrimental toplaintiffs’ case.

Subsequent Remedial Measures

General RuleA subsequent remedial measure is an ac-tion taken after the occurrence of anevent that, if taken previously, wouldhave made the event less likely to occur.The overwhelming majority of statesfollow the subsequent remedial mea-


sures exclusion set forth in Federal Ruleof Evidence 407, which provides:

When, after an injury or harm alleg-edly caused by an event, measures aretaken that, if taken previously, wouldhave made the injury or harm lesslikely to occur, evidence of the subse-quent measures is not admissible toprove negligence, culpable conduct, adefect in a product, a defect in a prod-uct’s design, or a need for a warningor instruction. This rule does not re-quire the exclusion of evidence ofsubsequent measures when offeredfor another purpose, such as provingownership, control, or feasibility ofprecautionary measures, if contro-verted, or impeachment.The subsequent remedial measures

exclusion, which is the model exclusionin the majority of jurisdictions, rests onthree main policy grounds. First, theconduct is not in fact an admission be-cause the conduct is equally consistentwith injury by mere accident or throughcontributory negligence. Second, socialpolicy encourages people to take, or atleast not discourage them from taking,steps in the furtherance of added safety.The third, and perhaps most important,policy ground underlying the subse-quent remedial measures exclusion is thatpeople who err on the side of cautionand take measures to protect fellow citi-zens from even the possibility of futureinjury should not be expected to bearthe risk that a jury will read more into arepair than is warranted.

Therefore, in every state except RhodeIsland, mold abatement and remediationmeasures will not be admissible to provethat the abating or remediating defen-dant was negligent. While the subsequentremedial measures exclusion providesconsiderable protection for the well-meaning defendant, the mold litigator

must beware of the four significant ex-ceptions to the exclusionary rule.

The Exceptions andthe Mold LitigationIn the majority of states, all evidence ofsubsequent remedial measures is excludedand is inadmissible unless evidence ofsuch conduct is presented under one ofthe four exceptions to the exclusion. Thefirst exception provides that evidence ofsubsequent remedial measures may beadmitted if the party performing the re-medial conduct denies ownership of theinstrumentality causing the injury orharm. In the mold context, if a defen-dant denies that it had any ownershipinterest in the mold-infested building,plaintiff will be allowed to present evi-dence of abatement and/or remediationefforts that were made by defendant,funded by defendant, authorized by de-fendant, or even so much as acknowl-edged by defendant.

The second exception to the exclu-sionary rule provides that evidence ofremediating conduct may be admitted ifthe remediating party denies having con-trol over the instrumentality, circum-stances, or event causing the injury orharm. Thus, a court may admit any evi-dence of mold abatement or remediationmeasures taken by mold defendant if itis to rebut defendant’s denial of control.

Under some circumstances, partiesmay wish to stipulate on the control is-sue, rather than cause the issue to be“controverted” and open the way for ad-mission. By stipulating that defendantindeed was in control of a given area,defendant will later be protected from aplaintiff trying to produce evidence ofdefendant’s subsequent remedial mea-sures under the guise of trying to provethat the area or instrumentality waswithin defendant’s control. However,

such an admission may be particularlyproblematic if there is a dispute amongstco-defendants (e.g., property owner,property manager, and homeowners as-sociation) regarding who was in a posi-tion of control.

The third exception allows that evi-dence of subsequent remedial measuresmay be admitted in the event that theremediating party challenges or contro-verts the feasibility of precautionarymeasures. If a party relying on the exclu-sion denies that the injury could havebeen prevented if it had taken appropri-ate action, evidence of defendant’s sub-sequent remedial measures will beadmissible to illustrate how precaution-ary measures were possible and yet notperformed until after the injury or harmoccurred. In a mold case, defendant’s re-construction, remodeling, rebuilding,or rehabilitating of the mold-infestedproperty could be evidence of subse-quent remedial measures and admissibleif that same defendant denies that anyprecautionary measures could have beentaken to prevent the growth of mold inthe subject building.

The fourth and most important ex-ception to the exclusionary rule providesthat evidence of subsequent remedialmeasures may be admitted if it tends toimpeach the testimony of a witness. Forexample, evidence of such measures maybe used to impeach a witness, if, afterhaving testified that the instrumentalityallegedly causing the accident was inproper condition, he is shown to haveordered the remedial measure. In thisinstance, the witness can then properlybe asked whether such action was not atvariance with his prior statement ofproper condition.

Even if one of the exceptions is appli-cable, the court must find that the evi-dence is probative of a permissible


purpose that is actually in controversy.In the event that ownership, control, orthe feasibility of precautionary measuresis controverted, and a party seeks topresent evidence of the subsequent re-medial measures, that evidence may stillbe subject to exclusion when the dan-gers of prejudice or confusion substan-tially outweigh the probative value ofthe evidence. This balancing test, how-ever, establishes a strong presumption infavor of admitting probative evidence.

Investigation? Renovation?Remediation?The rule excluding evidence of subse-quent remedial measures encourages indi-viduals and entities to remedy hazardousconditions without fear that their ac-tions will be used as evidence againstthem. However, to qualify for exclusionunder the rule, the action taken by de-fendant must in fact be a “remedialmeasure,” and not simply investigationsor reports made after the event.

For example, in Prentiss & Carlisle v.Koehring-Waterous (1st Cir. 1992) 972F.2d 6, plaintiff was injured when aproduct manufactured by the defendantcaught fire. Defendant sent employeesto the site of the accident to investigate.These investigations resulted in reportsconcerning the cause of the fire. Thecourt held that the reports were notsubject to the exclusion because theydid not constitute remedial measures.According to the court, it “would strainthe spirit of the remedial measure prohi-bition in Rule 407 to extend its shieldto evidence contained in post-eventtests or reports.” Id.

Plaintiff may also argue that defend-

ant’s purported remediation was actuallya renovation that was not responsive toplaintiff ’s claims or complaints. If plain-tiff can convince a judge of this claim,the discovery of more mold made duringrenovation may become admissible. Oneway for defendant landlord to combatplaintiff ’s characterization is to have anOperations and Maintenance Plan (“O& M plan”) that clearly sets forth land-lord’s response plan to complaints. Thelandlord’s strict and consistent compli-ance with the O & M plan can helpbolster its assertion that it was reactingto a claim.

Additionally, evidence of subsequentrepairs might not be admissible to shownegligence; however, the type, location,and extent of the mold may become ad-missible as the parties dispute the levelof contamination and causation. There-fore, documents created by landlordsand their consultants in the remediationprocess may become discoverable. Cau-tionary landlords will consult legalcounsel regarding the preparation of re-ports, memoranda, and other docu-ments created during a remediation.

Fraud-Related ClaimsThe general rule excluding subsequentremedial repairs does not apply to fraud-related claims. In the mold context, thesubsequent remedial repairs may becomecritical evidence to determine when de-fendant landlord became aware of con-tamination. Although the work may besubsequent repairs, plaintiff will arguethat the information gathered duringthe process should be admissible toprove the landlord’s knowledge and sub-sequent failure to disclose information.

Moreover, other plaintiff tenants mayargue that the work was not subsequentrepairs as to them, rather just investiga-tion and therefore discoverable.

Conclusion

Spoliation of evidence in the context ofmold litigation imposes significant de-mands on both parties and presents anumber of new challenges. Practitionersin mold litigation must be wary of pre-suit spoliation in each and every cir-cumstance where litigation is reasonablyforeseeable. Both plaintiffs and defen-dants must painstakingly chronicle,track, and preserve evidence. Moreover,the initial discussion as to whether toinvestigate and collect evidence shouldconsider litigation strategies, economicconcerns, and ongoing health concerns.If the desire is to avoid a spoliation ofevidence claim, whether before or dur-ing litigation, the parties need to pro-vide notice of any destructive testingand conscientiously chronicle, track,record, and preserve evidence with theassistance of experts.

Evidence of abatement measures andremediation will not be admissible toprove that the remediating party wasnegligent. However, defense counsel fora party who has performed subsequentremedial measures must be vigilant andavoid controverting matters of control,ownership, or feasibility of precaution-ary measures. Witnesses in mold litiga-tion must be made aware of the risks oftheir own testimony and, particularlyparty witnesses, must be apprised of theimpeachment exception to the exclu-sionary rule.


PROPOSITION 65

New Requirements in 2002 Benefit Defendants

Frederick J. UfkesKirkpatrick & Lockhart, LLPLos Angeles, [email protected]

Before January 1, 2002, anyone “actingin the public interest” could file a Prop-osition 65 (“Prop 65”) action in Cali-fornia against any business entity withten or more employees claiming a viola-tion of the statute and requesting penal-ties of $2,500 per day for each allegedviolation. In what is clearly a victory forcorporations and individuals conductingbusiness in California, changes in Prop65 legislation make it more difficult forprivate “bounty hunters” to initiate andsettle lawsuits brought under the privateenforcement provision. The new require-ments, effective January 1, 2002, weredesigned to curb frivolous lawsuits, butmay generate more litigation in the nearfuture.

Background of Prop 65

The Safe Drinking Water and Toxic En-forcement Act of 1986, commonlyknown as Prop 65, was an initiative stat-ute adopted by 63 percent of Californiavoters in November 1986, and is codi-fied in California Health & Safety Code§25249.5 et seq. The intended purposeof Prop 65 was to protect consumersfrom harmful chemicals being releasedin the air and water and used in variousproducts and food.

The principal component of Prop 65,which is the subject of the 2002 legisla-tive reforms, requires that an employer

with ten or more employees who “know-ingly or intentionally” “exposes” anotherindividual to a chemical known to thestate to cause cancer or reproductive tox-icity must give such individual “clear andreasonable” warning. The scope of thewarning requirement is sweeping. As ofApril 2002, there were 739 chemicalssubject to Prop 65 warning requirements,including such common chemicals asaspirin, tobacco smoke, and paint fumes.

Defendants have challenged these al-leged violations by asserting numerousdefenses including the safe-harbor pro-vision set forth in the statute. Cal. Healthand Safety Code §25249.10(c). Forchemicals listed as carcinogens, employ-ers are exempt from the warning require-ment if the claimed exposure poses “nosignificant risk.” A significant risk existswhen there is one excess cancer for every100,000 people exposed (assuming ex-posures occur over a 70-year lifetime),per Cal. Code Regs., title 22, §12705.For chemicals listed as causing reproduc-tive harm, no warning is required if theexposure level in question is below the“no observable effect level” (“NOEL”),divided by 1,000. Cal. Code Regs., title22, §12805. The high threshold for prov-ing the applicability of the exemptionoften leaves businesses without an effec-tive defense against a Prop 65 claim.

Prior to January 1, 2002, private in-dividuals could file a Prop 65 action onbehalf of the general public after satisfy-ing relatively few requirements. Under theformer law, the plaintiff had to providea 60-day notice of the claimed violationto the alleged violator, the Attorney

General, and other appropriate law en-forcement agencies. If such law enforce-ment officials had not commenced and“diligently prosecuted” an action againstthe violator, the private individual couldfile his or her own action after 60 days.A successful plaintiff could collect 25percent of the civil penalties.

The California legislature finally tar-geted this “private bounty hunter” pro-vision after years of complaints frombusinesses that plaintiffs’ attorneys wereforcing them into settlements despitethe lack of evidence supporting the al-leged violation. Effective January 1,2002, SB 471 added certain safeguardsto protect businesses against meritlessand unsubstantiated claims. The mostimportant reforms include the certifi-cate of merit requirement, court ap-proval of settlements, and expandednotification requirements.

Certificate of Merit

The “certificate of merit” requirement isone of the most important changes inProp 65. In the certificate of merit, theplaintiff or the plaintiff ’s attorney mustdeclare that he or she has consulted witha person who possesses relevant and ap-propriate experience or expertise and hasreviewed the “facts, studies, or other data”relating to exposure to the listed chemi-cal that is the subject of the action. Cal.Health & Safety code §25249.7(d)(1).Based upon this “expert’s” investigation,the declarant must assert that there arereasonable and meritorious grounds forinstituting the action. The plaintiff must



serve the certificate of merit, along withthe 60-day notice, to the Attorney Gen-eral and the alleged violator. The factualinformation making up the “facts, stud-ies, or other data” must be attached tothe certificate of merit served on the At-torney General. The statute does notspecify the type or quantity of factualinformation that is sufficient to estab-lish the basis for the certificate of merit.

To clarify the requirement, the Attor-ney General has proposed additional reg-ulations to be codified in Title 11 of theCalifornia Code of Regulations (“Regu-lations”), addressing the contents of thecertificate of merit and its supportingdocumentation. First, the declarant mustrecite in the certificate of merit that heor she believes, and has factual supportfor the belief, that the case is “reasonableand meritorious.” This standard is satis-fied if the plaintiff ’s information providesa credible basis that all elements of theplaintiff ’s case can be established andthat the information does not providethe alleged violator with any affirmativedefenses. Thus, the declarant must haveevidence that (1) the claimed violator issubject to the act (an employer with tenor more employees); (2) an exposure toa listed chemical occurred; and (3) the“violator” failed to give adequate warn-ing. The “facts, studies, or other data”provided to the Attorney General in-cludes the identification of the personconsulted, his or her relevant background,training, and expertise, and the factualinformation relied upon by the consult-ant to determine that an exposure of alisted chemical occurred or is occurring.

Placing the initial burden on theplaintiff to provide factual evidence sup-porting the certificate of merit does not,however, shift the burden of proof fromthe defendant, who must prove that thealleged violation falls within the safe-

harbor exemption. In a recent judicialdecision, the California Court of Appealnoted that the exemption is an affirma-tive defense, meaning the defendant hasthe initial burden of proving that theexemption applies to its conduct. SeeConsumer Cause, Inc. v. SmileCare, 91Cal.App.4th 454 (2001) (holding thatplaintiff does not have to provide a“scintilla of evidence” to prove the expo-sure is not exempt from the warning re-quirement).

The changes under SB 471 and theRegulations do not abrogate the hold-ing in Consumer Cause; the defendantstill has the burden to prove that the ex-posure is lawful and does not require aProp 65 warning. However, in the situa-tion where the plaintiff ’s initial investi-gation reveals information showing thatthe exposure comes within the exemp-tion, the plaintiff would be precludedfrom asserting that there are “reasonableand meritorious” grounds for the claim.Consequently, the plaintiff would bebarred from issuing the certificate ofmerit, and presumably, initiating a pri-vate action under Prop 65.

Thus, in theory, the required consul-tation with appropriate experts to ini-tially determine the validity of a Prop65 claim will likely screen out cases thathave scant scientific support. To date,however, there has been no judicial re-view of the certificate of merit require-ment or the adequacy of the supportingfactual evidence. Further, defendants arestill burdened by the ruling in ConsumerCause that permits plaintiffs to move for-ward on their claims despite the lack ofevidence that the exposure exceeds the “nosignificant risk” level or would cause anobservable effect at 1,000 times the levelin question. These issues, among others,will likely generate significant litigationin the near future.

A defendant cannot challenge thefactual information supporting the cer-tificate of merit during the course oflitigation. SB 471 expressly precludesdiscovery of the information, classifyingit as confidential official information pur-suant to Section 1040 of the CaliforniaEvidence Code. To the extent that generaldiscovery tools are employed to circum-vent this limitation, it is possible that adefendant may not be hindered by suchlimitation. Further, the plaintiff is pro-hibited from objecting to a general dis-covery request solely on the ground thatthe discoverable information was usedin support of the certificate of merit.

At the conclusion of the litigation, asuccessful defendant may challenge thebasis for the certificate of merit and re-quest sanctions against the plaintiff or theplaintiff ’s attorney for filing a “frivolous”action pursuant to California Code ofCivil Procedure §128.5, the Californiaequivalent to Federal Rules of Civil Pro-cedure, Rule 11. Upon a motion by thedefendant or the court itself, the courtmay review the factual basis for the cer-tificate of merit to determine whetherthere was a credible basis for the claim. Ifthe court finds that the factual evidenceis insufficient to support a credible claim,the court may impose sanctions pursuantto Section 128.5. Thus, while the cer-tificate of merit is a welcomed reform forbusiness owners threatened with unsub-stantiated and meritless claims, the newrequirement may generate more litiga-tion and present additional challengesto potential defendants.

Court Approval of Settlements

SB 471 requires that the court, uponnoticed motion, approve all settlementsbrought by a private individual underProp 65. The plaintiff must also submit


the settlement, and all supporting papers,to the Attorney General. Cal. Health &Safety Code §25249.7(f )(5). The Attor-ney General may participate in the hear-ing without intervening in the case.

To approve the settlement, the courtmust find that the Prop 65 warnings re-quired by the settlement comply withthe “clear and reasonable” standard setforth in Section 25249.6 and the penal-ties and attorneys’ fees provided underthe settlement are “reasonable.” Cal.Health & Safety Code §25249.7(f )(4).The plaintiff has the burden of providingevidence sufficient to establish each of therequired findings. The new legislationprovides the court with certain criteriato determine whether the civil penaltiesawarded are reasonable. Such criteria in-clude: (1) the nature and extent of theviolation; (2) the number of, and sever-ity of, the violations; (3) the economiceffect of the penalty on the violator; (4)whether the violator took good faithmeasures to comply and the time thesemeasures were taken; (5) the willfulnessof the violator’s misconduct; and (6) thedeterrent effect of the penalty. The stat-ute also provides a catchall provision al-lowing the court to consider “any otherfactor that justice may require.” Cal.Health & Safety Code §25249.7(b)(2).The proposed Regulations set forth var-ious factors that compose the “[otherfactors] which justice may require.” Onesuch factor is whether an additional pay-ment is made in lieu of a civil penalty,including payments to fund public edu-cation programs or environmental activi-ties. These types of “cy pres” paymentsare proper only when the funded activityhas a nexus to the public harm addressedby the litigation, the recipient of thefunds is a non-profit, governmental or-ganization or other publicly accountableentity, and the recipient selection proce-

dure is set forth in the settlement or in apublic document referenced by the set-tlement.

The Regulations provide settlementguidelines for attorneys and courts alike.These settlement guidelines have no le-gally binding effect, but are useful indetermining the Attorney General’sposition on acceptable settlements. Theguidelines suggest, among other things,that the plaintiff provide evidence toestablish that the proposed warning sat-isfies the “clear and reasonable” require-ment, including the text, appearance,and location of the warnings and proofthat the listed chemical is present in theproduct or environment in which thewarning is posted.

With respect to the award of attorneys’fees for the first time, the proposed Reg-ulations provide guidelines for the re-covery of attorneys’ fees in a Prop 65settlement. The guidelines are draftedconsistent with the criteria set forth in theCode of Civil Procedure §1021.5, whichprovide for the recovery of attorneys’fees for a private litigant who is success-ful in enforcing an important publicright. First, the plaintiff must be the “suc-cessful party” in the action. The plain-tiff is the “successful party” if the actionwas the cause or catalyst of change inthe defendant’s conduct. Second, theplaintiff ’s action must have conferred a“significant benefit” on the public. Asignificant benefit is measured by thenecessity of the warning and the degreeof risk of exposure. Third, the plaintiffmust show that the action was necessaryto enforce the requirements under Prop65. Fourth, the attorneys’ fees must bereasonable such that the hourly fees arecomparable to those charged by an at-torney of similar skill and experience inthe same market area. Finally, the feesmust be documented with contempora-

neously kept records. Cal. Health &Safety Code §25249.7(j).

Because SB 471 requires the submis-sion of settlement by noticed motion tothe court, the Attorney General has is-sued emergency regulations that require,among other things, the submission ofthe settlement and supporting papers tothe Attorney General 45 days before thehearing on the settlement. According tothe Attorney General, this regulationwill provide the Attorney General withsufficient time to review the evidenceoffered in support of the motion.

Expanded Notification

Requirements

Proposition 65 requires that privateplaintiffs notify the Attorney Generalwhen they have filed a Prop 65 actionand when the action has been resolved,either by settlement or judgment. Cal.Health & Safety Code §25249.7(e), (f ).The reporting form submitted to theAttorney General upon the filing of acomplaint must include the date thecomplaint was filed and the nature ofthe relief sought. Cal. Health & SafetyCode §25249.7(f )(3). Upon settlementor entry of judgment, the plaintiff mustsubmit a reporting form indicating thefinal disposition of the case, the amountof settlement or civil penalty assessed,other financial terms of the settlement,and any other information that the At-torney General deems appropriate. Id.At the time of filing any judgment withthe court, the plaintiff must also submitan affidavit to the court indicating thatthe reporting form was accurately com-pleted and submitted to the AttorneyGeneral. Cal. Health & Safety Code§25249.7(f )(1).

SB 471 expands the notification re-quirements to the filing and settlement


Staying Out of Trouble in the Courtroom

Bruce J. BergerSpriggs & HollingsworthWashington, [email protected]

The concept of “staying out of trouble”in the courtroom is an oxymoron. Theonly reason ever to step into a courtroomfor a trial is because trouble has occurred(some event has happened that presum-ably no one wanted to occur), more trou-ble has followed (someone thinks thatyour client’s product was the cause), evenmore trouble then followed (someonediscovered documents that, taken out ofcontext, of course, make it seem likeyour client really did want the untowardevent to happen), and then yet moretrouble (plaintiffs’ lawyers have madeoutrageous settlement demands). So, alawyer who thinks he or she is going to trya case but wants to “stay out of trouble”in the largest sense of that term shouldnot be going to bat for the client. Rather,the effective trial lawyer is one who rel-ishes the idea of trouble, i.e., loves thechallenge of meeting trouble and trying toface it down. The effective trial lawyer isone who also realizes that, despite bestefforts, sometimes trouble will prevail.

Trouble in the courtroom can comefrom a variety of directions and affectmany aspects of one’s presentation. Be-cause the trial lawyer is always in thespotlight, trouble often arises from twoinclinations in tension with each other,when one or the other gets the upperhand. The first is the “killer instinct,”which we have all heard about and whichrequires making every point that can bemade, in as forceful a manner as pos-sible. The “killer instinct” wants to takeno prisoners; it wants to annihilate theopposition; it wants to humble the judge(if by chance the judge has made a mis-take); it wants blood on the floor of thecourtroom; it wants, at the end of theday, to see the trial lawyer, sword upraised,victorious, standing upon a heap of dis-carded bodies. The second inclination isthe “good guy instinct” (for want of abetter term). The “good guy instinct”wants everyone to like the trial lawyer;it wants to show humanity; it wants toshow consideration to everyone, includ-ing the opposition; it never wants to makethe judge angry or cross or annoyed andwill do everything in its power to avoidsuch an occurrence; at the end of thecase, the “good guy instinct” wants only

to make sure that he or she is on the topof everyone’s list as a collegial and pleas-ant comrade.

Needless to say, each of these instinctsis important but must be kept in checkby the other. They must exist in balancewith each other, and the impression thatthey leave together must be an integratedwhole, where their separate identitiesmerge and cannot be distinguished.

How can these platitudes be translatedinto practical ideas? Clearly, a trial law-yer must be sensitive to needs of the im-portant people in the courtroom: the jury,first; the judge, second; and one’s ownwitnesses, third in importance. So, oneelement of trial practice truly is beingconcerned and considerate. Appropriatebehavior encompasses an appropriatetone of voice, e.g., talking to judge in arespectful manner. It involves makingsure that the key participants in the trialare kept in mind constantly and made tofeel that their involvement is meaning-ful and their time is precious. A jury hasto hear the testimony and the objectionsto understand anything about the trial,and if one’s voice drops or one’s witnessesdo not pay attention to the jury, this re-flects disrespect of the jury’s needs.

of claims brought under other statutes,including Business & Professions Code§17200 et seq., which nonetheless allegea Prop 65 violation. Consequently, pri-vate enforcers are precluded from utiliz-ing alternative statutes to avoid thereporting requirements of Prop 65. Theplaintiff is required to submit any pro-posed settlement of an action not di-

rectly based on Prop 65 to the AttorneyGeneral 30 days before submitting thesettlement to the court. During the 30-day period, the Attorney General hasthe opportunity to object.

Conclusion

The new reforms in Prop 65 provide de-

fendants with additional protectionsagainst private bounty hunters utilizingProp 65 as a form of judicial extortion.However, there is no guarantee that thereforms, or the proposed CCR regula-tions, will remedy the widespread abuseof private actions brought under Prop65. Only time, and significant litiga-tion, will tell.



Similarly, not making sure that breaksoccur when they’re supposed to occur,going on too long on a particular issuewhen a point has been made, not hav-ing documents in order, and not beingable to run high-tech demonstrativeequipment reflect disrespect to the im-portant people in the courtroom. And,without showing the most possible re-spect for one’s own witnesses, one can-not expect them to perform well on thestand. The witness who has needlesslybeen kept waiting from 9:00 am until4:00 pm to testify cannot be expectedto be at his or her top form when thechance to testify finally comes.

On the other side of the coin, the triallawyer has to be aggressive to be success-ful. She cannot let the other side’s expertsappear to be in control or to know more;she cannot let the opposing lawyers walkover her, i.e., back down unnecessarilywhen an objection is made or let the op-posing lawyer get away with outrageousconduct. Nor can she let the judge thinkthat she can be pushed around. The judgemust be made to understand that, whenthe lawyer speaks, serious and well-thought-out points will be made thatmust at least be considered carefully.

How can these two completely differ-ent sides of trial lawyering be made tobalance each other in any individualtrial lawyer? What does one do to makesure that the instinct on one side of thespectrum does not overbalance the in-stinct from the other side? How does oneachieve firmness and resolution on keypoints, without falling into nastiness orridicule? Each trial lawyer must decidethese questions for himself, and the an-swer will be different for everyone. Yet,there are some general lessons to belearned.

First, anticipate that many rulings ingeneral and some of the most important

rulings in particular will go against one’sposition. Expect some bad testimony toemerge from the mouths of plaintiffs’witnesses whom you thought you hadnegated completely in deposition andfrom the mouths of your own witnesses.This does not mean that one must keepone’s expectations low about ultimate suc-cess in the trial. It means that the path tosuccess in any trial is going to be strewnwith hidden land mines, some of whichwill inevitably explode. It is more im-portant to know how to react when themine explodes than to put all one’s ener-gies into avoiding them in the first place,because complete avoidance is impos-sible. Anticipating the occasional blast isimportant because a trial lawyer’s naturalhuman tendency to react visibly withdisappointment when things go poorlymust absolutely be warded off. Whateverhappens during a trial, the best visage toconvey to the jury is that one plannedthe event oneself or, if not planned, an-ticipated it with a planned response.

Second, anticipate outrageous con-duct on the part of one’s adversary thatsomehow the judge doesn’t seem to findobjectionable. Figure out in advance howone is going to respond to such conduct.Often, too much concern is voiced bytrial practice instructors about the effectof objections on jury, i.e., about whetherobjections will be considered obstreper-ous or intended to hide damaging evi-dence. Clearly, objections can go too farand must be used judiciously. But ob-jections do more than just preserve rec-ords for appeal. Objections educate ajury, whether or not they are sustained,on the lawyer’s theory of the case, andthe mere fact that the judge may overrulean objection, e.g., as to relevance, doesnot mean automatically that the jury willbelieve the evidence now being heard isrelevant. The jury may in fact perceive

the irrelevance, disagree with the judge,and award the lawyer points for makingthe objection. This is a corollary of alarger principle of trial practice that, forthe jury to understand the lawyer’s story,the lawyer’s conduct must be consistentthroughout the trial. If the lawyer’s posi-tion is, e.g., that reports of similar acci-dents are not relevant to the accident atissue, the jury will not understand thispoint if it hears it for the first time duringclosing argument. The jury will under-stand, however, if appropriate objectionsto plaintiffs’ evidence are made through-out the trial. And, of course, all objec-tions should be made politely, but firmly.

Talking about politeness leads to an-other issue, i.e., when, if ever, objectionsare appropriate during an opponent’sopening statement and closing argument.The author will not object unless theimpropriety of the argument is immedi-ately clear and likely to result either in anadmonishment, a mistrial, or reversal ofan adverse verdict. Usually one’s oppo-nents are not so obliging. This position isnot motivated so much by politeness aspracticality. Typically, objections duringopening statements and closing argu-ments will be overruled, e.g., on the the-ory that “what the lawyers say is notevidence,” and even limiting instruc-tions, if obtained, may not be that use-ful unless they are well thought out. Thebest response to an opening statementor closing argument that is packed withlies is to point out the most egregiouslie in one’s own opening statement orclosing, and imply that nothing the juryheard can be relied upon.

Politeness, like any virtue, can be car-ried too far. It is carried too far when itmakes no sense in the context of the case.When an opponent acts inappropriatelyand one does not respond, jurors willjustifiably start to think that perhaps the


conduct was appropriate or the accusa-tion just. So, don’t pull punches unnec-essarily when it comes to the conduct ofthe opposing attorney. With a witnesson the stand, if the opposing attorneymakes a statement not supported by therecord and—in fact—inconsistent withthe record, jump on that immediately.Even anger can be an appropriate re-sponse, depending upon the seriousnessof the impropriety.

It is not necessary to use the most in-vective words, e.g., “liar,” and, indeed,the “L” word should be avoided in all but

the most extreme circumstances. Butone’s tone, facial expressions, and bodylanguage can reflect the same feelingsabout improper conduct as the choiceof words. It is a good idea—almost al-ways—to allow jurors to think the “L”word about one’s opponent for them-selves. Jurors appreciate a lawyer whocan cut up her opponent and appearcourteous while doing so.

Finally, have a sense of humor aboutwhat is happening. This is often very dif-ficult to do, given the incredible amountof effort put into a trial and the import-

ance of each trial to one’s client and firm.Yet, there must be some detachment ifone is to keep an even keel. When some-thing really funny happens in the court-room, as it inevitably will at least onceduring the course of a trial, it is inhumannot to laugh. A joke can be on one’s op-ponent, so don’t laugh too hard, but itcan often be on oneself, and the triallawyer needs to be human in order to becredible.

Now you know most of what I knowabout trial practice. Keep facing downthose troubles. Good luck.


This chart below is a guide to the appli-cation of sanctions for spoliation, theintentional or unintentional destructionor disappearance of evidence in antici-pation of or during litigation. The com-mon law doctrine is several hundredyears old, but the law has developedsubstantially in the past few years. Arti-

cles on Spoliation can be found at TheFICC Quarterly, Vol. 49, No. 2, Winter1999; and FICC Quarterly, Fall, 1997.Courts apply different sanctions forspoliation based upon several factors,including 1) whether the conduct wasintentional; 2) the prejudice to theother side; and 3) the availability of al-

ternative evidence. Moreover, somecourts have recognized the dependenttort of “spoliation.” The chart belowidentifies the current state of the law in47 states with respect to the types ofsanctions that are imposed, and furtheridentifies each state’s position with re-spect to the tort of spoliation.

SPOLIATION OF EVIDENCE

Trend to a New Tort1

state survey chart2 (as of September 1, 2001)

Alabama Verchot v. General Motors Corp.,2001 Ala. LEXIS 188 (May 25, 2001)

X

Environmental Monitoring & TestingCorp. v. Kidd, 623 So.2d 1031(Ala.1993)

Smith v. Atkinson, 771 So.2d 429(Ala. 2000)

X

Wal-Mart Stores, Inc. v. Goodman,789 So.2d 166 (Ala. 2000)

X

Alaska Hazen v. Municipality of Anchorage,718 P.2d 456 (Alaska 1986)

X

Arizona Southwest Cotton Co. v. Clements,213 P. 1005 (Ariz. 1923)

X

LaRaia v. Superior Court, 722 P.2d286 (Ariz. 1986)

X

Arkansas Middleton v. Middleton, 68 SW.2d1003 (Ark. 1934)

X

Viking Ins. Co. of Wisconsin v.Jester, 836 S.W.2d 371 (Ark. 1992)

X

State CaseAdverse

Inference

Expert orEvidence-Preclusion Dismissal

Tort—Negligent

Tort—Intentional

Tort—Rejected

1 Copyright 2001, all rights reserved, Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello, One Riverfront Plaza, Newark, NJ 07102.2 Rebecca Levy Sachs is special counsel to Podvey Sachs. She is the principal of LawSHIFT, a legal consulting firm, and is on the DRI Board of Direc-

tors. Lisa J. Trembly is a litigation associate at the law firm of Podvey Sachs, Seton Hall University School of Law, J.D., 1994; Helaine Wexler is a lawclerk at the law firm of Podvey, Sachs, Fordham University School of Law, J.D., anticipate in May 2002. Rebecca can be reached [email protected]. Podvey Sachs’ web site is located at www.podveysachs.com.


http://www.podveysachs.com


State CaseAdverse

Inference


Tort—Negligent

Tort—Intentional

Tort—Rejected

California Pate v. Channel Lumber Co., 59Cal.Rptr.2d 919 (App.Ct. 1997)

X

Temple Cmty. Hosp. v. Superior Ct.,20 Cal.4th 464 (1999)

X

Williamson v. Superior Court of LosAngeles County, 582 P.2d 126 (Cal.1978)

X

Colorado Lauren Corp. v. Century GeophysicalCorp., 953 P.2d 200 (Colo.App.Ct.1998)

X

Connecticut Beers v. Bayliner Marine Corp., 675A.2d 829 (Conn. 1996)

X

Delaware Collins v. Throckmorton, 425 A.2d146 (Del. 1980)

X

Florida Bondu v. Gurvich, 473 So.2d 1307(Fla.Dist.Ct.App. 1984)

X

Continental Ins. Co. v. Herman, 576So.2d 313 (Fla.App.Ct. 1990)

X

New Hampshire Ins. Co. Inc. v.Royal Ins. Co., 559 So.2d 102(Fla.App.Ct. 1990)

X

Sponco Manufacturing Co., Inc. v.Alcover, 656 So.2d 629 (Fla.App.Ct.1995)

X

Georgia Lane v. Montgomery Elevator Co.,484 S.E.2d 249 (Ga. App. Ct. 1997)

X

Gardner v. Blackston, 365 S.E.2d454 (Ga.Ct.App. 1988)

X

Hawaii Akiona v. U.S., 938 F.2d 158 (9thCir. 1991)

X

Idaho Houser v. Austin, 10 P. 37 (Idaho 1886) X

Illinois American Family Ins. Co. v. VillagePontiac-GMC, Inc., 585 N.E.2d1115 (Ill.App.Ct. 1992)

X

Wilson v. Beloit Corp., 725 F.Supp.1056 (W.D.Ark. 1989), affd, 921F.2d 765 (8th Cir. 1990)

X


State CaseAdverse

Inference


Tort—Negligent

Tort—Intentional

Tort—Rejected

Graves v. Daley, 526 N.E.2d 679(Ill.App.Ct. 1988)

X

Haynes v. Coca Cola Bottling Co. ofChicago, 350 N.E.2d 20 (Ill.App.Ct.1976)

X

Shelbyville Mut. Ins. Co. v. SunbeamLeisure Products Co., 634 N.E.2d1319 (Ill.App.Ct. 1994)

X

Indiana Porter v. Irvin’s Interstate Brick andBlock Co., Inc. 691 N.E.2d 1363(Ind.App.Ct. 1998)

X

Murphy v. Target Prods., 580 N.E.2d687 (Ind.Ct.App. 1991)

X

Iowa Kilker v. Mulry, 437 N.W.2d 1 (Iowa1988)

X

State v. Langlet, 283 N.W.2d 330(Iowa 1979)

X

Kansas In re Grisell’s Estate, 270 P.2d 285(Kan. 1954)

X

Foster v. Lawrence Memorial Hosp.,809 F.Supp. 831 (D.Kan. 1992)

X

Koplin v. Rosel Well Perforators, Inc.734 P.2d 1177 (Kan. 1987)

X

Kentucky Crook v. Schumann, 167 S.W.2d 836(Ky. 1942)

Welsh v. United States, 844 F.2d1239 (6th Cir. 1988)

Louisiana Moorehead v. Ford Motor Co., 694So.2d 650 (La.App.Ct. 1997)

X

Edwards v. Louisville Ladder Co.,796 F.Supp. 966 (W.D.La. 1992)

Maryland Larson v. Romeo, 255 A. 2d 387(Md. 1969)

X

Boyd v. Travelers Ins. Co., 652N.E.2d 267 (Ill. 1995)

X


State CaseAdverse

Inference


Tort—Negligent

Tort—Intentional

Tort—Rejected

Massa-chusetts

Capital Bank & Trust Co. v.Richman, 475 N.E.2d 1236(Mass.App.Ct. 1985)

X

Nally v. Volkswagen of America, Inc.,539 N.E.2d 1017 (Mass. 1989)

X

Michigan Trupiano v. Cully, 84 N.W.2d 747(Mich. 1957)

X

Panich v. Iron Woods Prods. Corp., 445N.W.2d 795 (Mich.Ct.App. 1989)

X

Minnesota Fonda v. St. Paul City R. Co., 74N.W. 166 (Minn. 1898)

X

Himes v. Woodings-Verona ToolWorks, Inc., 565 N.W.2d 469(Minn.App.Ct. 1997)

X

Patton v. Newmar Corp., 538N.W.2d 116 (Minn. 1995)

X

Federated Mut. Ins. Co. v. LitchfieldPrecision Components, Inc., 456N.W.2d 434 (Minn. 1990)

X

Mississippi DeLaughter v. Lawrence Cty. Hosp.,601 So.2d 818 (Miss. 1992)

X

Missouri Brown v. Hamid, 856 S.W.2d 51(Mo. 1993)

X

Baugher v. Gates Rubber Co., 863S.W.2d 905 (Mo.Ct.App. 1993)

X

Montana Livingston v. Izuzu Motors, Ltd., 910F.Supp. 1473 (D.Mont. 1995)

X

Oliver v. Stimson Lumber Co., 993P.2d 11 (Mt. 1999)

X X

Nebraska Scout v. City of Gordon, 849 F.Supp.687 (D.Neb. 1994)

X

Nevada Fire Ins. Exchange v. Zenith RadioCorp., 747 P.2d 911 (Nev. 1987)

X

XMiller v. Montgomery County, 498A.2d 1185 (Md. 1985)


State CaseAdverse

Inference


Tort—Negligent

Tort—Intentional

Tort—Rejected

NewHampshire

Rodriquez v. Webb, 680 A.2d 604(N.H. 1996)

X

New Jersey Aetna Life & Cas. Co. v. IMETMason Contractors, 309 N.J.Super.358, 707 A.2d 180 (1998)

X

Hirsch v. GM Motors Corp., 266N.J.Super. 222, 628 A.2d 1108 (1993)

X

State v. Council in Div. ResourceDevelopment of the Dept. ofConserv. & Economic Dev., 287A.2d 713 (N.J. 1972)

X

Viviano v. CBS, Inc., 597 A.2d 543(N.J.Super.Ct.App.Div. 1991), cert.denied, 606 A.2d 375 (N.J. 1992)

X

Callahan v. Stanley Works and HomeDepot, U.S.A., Inc., 703 A.2d 1014(N.J.Super.Ct.App.Div. 1998)

X

NewMexico

Gonzales v. Surgidev Corp., 899 P.2d594 (N.M. 1995)

X

Coleman v. Eddy Potash, Inc., 905P.2d 185 (N.M. 1995)

X

New York Kirkland v. NY City Housing Auth.,666 N.Y.S.2d 609 (A.D. 1997)

X

Laffin v. Ryan, 162 N.Y.S.2d 730(A.D. 1957)

X

Squitieri v. City of NY, 669 N.Y.S.2d589 (A.D.1998)

X

Fada Indus., Inc. v. Falachi Bldg- Co.2001 N.Y. Misc. LEXIS 225 (N.Y.Gen. Term June 22, 2001)

X

Pharr v. Cortese, 559 N.Y.S.2d 780(A.D. 1990)

X

Stubli v. Big D International Trucks,Inc., 810 P.2d 7 85 (Nev. 1991)

X

Reingold v. Wet’n Wild Nevada, Inc.,944 P.2d 800 (Nev. 1997)

X


State CaseAdverse

Inference


Tort—Negligent

Tort—Intentional

Tort—Rejected

Krueger v. North Am. Creameries, 27N.W.2d 240 (N.D. 1947)

X

Ohio Bright v. Ford Motor Co., 63 OhioApp.3d 256 (1990)

X

Travelers Ins. Co. v. Dayton Power &Light Co., 76 Ohio Misc.2d 17 (1996)

X

Smith v. Howard Johnson Co., 615N.E.2d 1037 (Ohio 1993)

Oklahoma Harrill v. Penn, 273 P. 235 (Okla. 1927) X

Oregon Whitney v. Canadian Bank ofCommerce, 374 P.2d 441 (Or. 1962)

X

Penn-sylvania

McHugh v. McHugh, 40 A. 410 (Pa.1898)

X

RhodeIsland

Rhode Island Hospital Trust Nat.Bank v. Eastern General Contractors,Inc., 674 A.2d 1227 (R.I. 1996)

X

SouthCarolina

Wisconsin Motor Corp. v. Green, 79S.E.2d 718 (S.C. 1954)

X

Tennessee Murphy v. Reynolds, 212 S.W.2d686 (Tenn.App.Ct. 1948)

X

Texas Malone v. Foster, 956 S.W.2d 573(Tex. 1997)

X

San Antonio Press, Inc. v. CustomBuilt Machinery, 852 S.W.2d 64(Tex. 1993)

X

Vermont F.R. Patch Mfg. Co. v. ProtectionLodge, No. 215, International Assn.of Machinists, 60 A. 74 (Vt. 1905)

X

NorthDakota

Bachmeier v. Wallwork Truck Centers,544 N.W.2d 122 (N.D. 1996)

X X

NorthCarolina

Henderson v. Hoke, 21 N.C. 119(1835)

X

Silverstri v. General Motors, 4th Cir.,applying N.Y. law, Nov. 2001

X


State CaseAdverse

Inference


Tort—Negligent

Tort—Intentional

Tort—Rejected

Sentry Ins. Co. v. Royal Ins. Co. ofAmerica, 539 N.W.2d 911 (Wis.1995)

X

Wyoming Hay v. Peterson, 45 P. 1073 (Wyo.1896)

X

Virginia Hoier v. Noel, 98 S.E.2d 673 (Va.1957)

X

Washington Walker v. Herke, 147 P.2d 255(Wash. 1944)

X

WestVirginia

Kirchner v. Smith, 58 S.E. 614(W.Va. 1907)

X

Wisconsin Jagmin v. Simonds Abrasive Co., 211N.W. 810 (Wis. 1973)

X

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