New York High Court Rejects Medical Monitoring

Just the facts on this one, as my firm is involved for defendants in such actions, but word comes that New York's highest court has joined the trend of state courts rejecting medical monitoring. See Caronia v. Philip Morris USA, Inc.,  No. 227 (N.Y., 12/17/13).

Plaintiffs, healthy smokers, sought medical monitoring in the form of low dose CT scans allegedly necessitated by their increased risk of future disease.  The federal court certified the issue of medical monitoring to the state court, specifically, (1) under New York Law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and
who is not under investigation by a physician for such a suspected disease, pursue an  independent equitable cause of action for medical monitoring for such a disease?
(2) If New York recognizes such an independent cause of action for medical monitoring, what are the elements of that cause of action? What is the applicable statute of limitations, and when does that cause of action accrue?

The state court observed that while there is certainly an important health interest in fostering access to medical testing for those whose exposure has resulted in an increased risk of disease, and such testing could possibly lead to early detection and treatment, not only mitigating future illness but also reducing the cost to the tortfeasor.  However, the potential systemic effects of
creating a new, full-blown tort law cause of action cannot be ignored. For instance, dispensing with the physical injury requirement could permit tens of millions of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor's resources for those who have actually sustained damage.  From a practical standpoint, it cannot be overlooked that there is no framework concerning how such a medical monitoring program would be implemented and administered. Courts generally lack the technical expertise necessary to effectively administer a program heavily dependent on scientific disciplines
such as medicine, chemistry, and environmental science.  The Legislature is plainly in the better position to study the impact and consequences of creating such a cause of action, including the
costs of implementation and the burden on the courts in adjudicating such claims.

The court concluded that these policy reasons militated against a judicially created independent cause of action for medical monitoring. Allowance of such a claim, absent any  evidence of present physical injury or damage to property, would constitute a significant deviation from the state's tort jurisprudence. 

New Theory Emerges in Climate Change Litigation

Just as many eyes are focused on the climate change/global warming cases pending in the appellate courts, a group of activist environmentalists have enrolled new plaintiffs to bring an old legal theory into the climate change litigation mix. A case filed last week alleges that the atmosphere is a "public trust resource" and, as such, the government has a duty to act to protect it. See Loorz v. Jackson, No. CV11-2203 (N.D. Cal., 5/4/11).

Plaintiffs are youths, alleged to be "beneficiaries" of the "public trust," including the teenage head of the group, Kids v. Global Warming, which is also a named plaintiff. Defendants are the EPA and numerous federal agencies who allegedly could act to curb greenhouse gas emissions allegedly linked to global warming.

Plaintiffs' complaint contains the well-known litany of alleged effects of global warming, including rising seas, melting glaciers, warming oceans, changing precipitation, all as an alleged result of increasing CO2 levels.  It takes short term readings and phenomena and raises them to the level of global climactic changes, hypotheses into alleged scientific proof.

The plaintiffs seek declaratory and injunctive relief, on the theory that the atmosphere is a public trust; that under the public trust doctrine, the federal government has a fiduciary duty as trustee to protect the trust for the benefit of the benficiaries (plaintiffs); and that therefore the agencies should be ordered to act to reduce CO2 emissions by 6% a year beginning in 2013.

Thus, the claim moves beyond environmental statutes, such as the Clean Air Act, and tort doctrines such as public nuisance, both of which have been recognized as not applicable by most courts, to an even less applicable theory, the so-called public trust doctrine. This notion has a far more limited reach, with lakes and navigable streams being maintained for drinking, commerce, and recreation purposes under a public-trust doctrine -- or tidal and submerged lands not being given over to private ownership.

Media reports that similar lawsuits are being filed in several other courts, and that petitions for rulemakings by state administrative agencies will be filed in other states.

The cynical use of youthful plaintiffs (aren't we all "beneficiaries"?) may illustrate how clearly the environmental activists sees the challenges of persuading courts on the science and the law, that human emissions of carbon dioxide which comprises less than 0.04 percent of the atmosphere is somehow responsible for hurricanes and every other weather event we experience. 

Whatever the theory alleged, it seems likley that these cases will run headlong into the same issues that derail so much of the global warming agenda, the fact that these cases raise political questions that should be reserved for the political branches of government, not an inidvidual judge. Indeed, the legislative branch, acting within the confines of the common law public trust doctrine, is recognized in the calse law as the ultimate administrator of the trust and often is described as the ultimate arbiter of permissible uses of trust lands.


 

Climate Change Case Update

A quick update to one of the key climate change cases pending in the federal courts. Readers may recall that the U.S. Supreme Court announced late last year that it will indeed hear the challenge to a court of appeals decision allowing several states to pursue a public nuisance suit against various utilities for their greenhouse gas emissions. See American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari petition granted 12/6/10).

Last week the federal government weighed in and asked the Court to overturn the court of appeals' decision in this public nuisance suit against American Electric Power Co. and other utilities for their greenhouse gas emissions, but on relatively narrow grounds. The brief filed by the Acting Solicitor General argues that the plaintiffs lacked “prudential standing” and that their suit should therefore be dismissed.  We have noted here before that a central issue is whether the EPA will be the primary regulator of greenhouse gas emissions or whether private parties will be permitted to go directly to court. Should a single judge set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue? Judges in subsequent cases could set standards for other utilities or industries, or conflicting standards for these same utilities.  A second issue is whether controlling power plant emissions' alleged effects on the climate is a political question beyond the reach of the courts. Recall that the Southern District of New York dismissed the suit in 2005, holding that the claims represented a political question. Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265.

The government position is that plaintiffs bring claims under the federal common law of public nuisance against six defendants alleged to emit greenhouse gases contributing to climate change. But if plaintiffs' theory is correct, virtually every person, organization, company, or government across the globe also emits greenhouse gases, and virtually everyone will also sustain climate-change-related injuries. Principles of prudential standing do not permit courts to adjudicate such generalized grievances absent statutory authorization, particularly because EPA, which is better-suited to addressing this global problem, has begun regulating greenhouse gases under the CAA. As a result, plaintiffs’ suits must be dismissed.  EPA began regulating greenhouse gas emissions from certain sources in January, although members of Congress are moving to delay or block EPA's authority to do so, which we will post on later this week.

The federal government brief concedes that plaintiffs have Article III standing based on their interest in preventing the loss of sovereign territory for which they are also the landowners.  It asks that the Court not decide whether plaintiffs’ suits are barred by the political question doctrine, although noting that this case does indeed raise separation-of powers concerns highlighted by the second and third factors used in Baker v. Carr, 369 U.S. 186 (1962), to describe the political question doctrine: a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.

The AEP brief is available for interested readers.


 

Supreme Court Passes on Case Involving State Retention of Private Counsel

The U.S. Supreme Court declined last week to review a California Supreme Court ruling that permitted cities and counties to engage private attorneys for public nuisance litigation against lead paint defendants on a contingency fee basis.  See Atlantic Richfield Co. v. Santa Clara County, Calif., No. 10-546 (U.S. cert. denied 1/10/11).

Readers may recall our previous posts on the important issue of  the power of government agencies to retain private plaintiffs attorneys on a contingency fee basis to prosecute nuisance litigation.  One case we posted on was County of Santa Clara v. The Superior Court of Santa Clara County, Cal., No. S163681 (7/26/10), in which a group of public entities composed of various California counties and cities were prosecuting a public-nuisance action against numerous businesses that manufactured lead paint.

The state supreme court permitted the use of contingency fee counsel with restrictions. To pass muster, neutral government attorneys must retain and exercise the requisite control and supervision over both the conduct of private attorneys and the overall prosecution of the case. Such control of the litigation by neutral attorneys supposedly will provide a safeguard against the possibility that private attorneys unilaterally will engage in inappropriate prosecutorial strategy and tactics geared to maximize their monetary reward. Accordingly, when public entities have retained the requisite authority in appropriate civil actions to control the litigation and to make all critical discretionary decisions, the impartiality required of government attorneys prosecuting the case on behalf of the public has been maintained, said the court. 

We noted that the list of specific indicia of control identified by the court seem quite strained, and to elevate form over substance, written agreements over human nature. Defendants sought cert review. In amicus filings, various trade organizations including the American Chemistry Council, the American Coatings Association, and the National Association of Manufacturers, argued that the financial incentives inherent in contingency-fee agreements simply distort the decision-making of both the government lawyers and the private attorneys they retain. Inadequately grounded contingency fee arrangements distort the state's duty of even-handedness not only to defendants, but also to the public. The amici argued that public nuisance cases are not typical tort lawsuits because they claim to be pursued in the public interest. It violates due process for the type of personal financial assessment made by contingency fee private lawyers to impact the decisions in a public nuisance action brought in the government's sovereign capacity. The briefing also raised another important practical issue: the attorney-client privilege and work-product doctrines will block any meaningful inquiry into whether the government is actually exercising the appropriate control that he state court said would solve these issues.

These kinds of contingency fee prosecutors threaten to diminish the public's faith in the fairness of civil government prosecutions. These arrangements frequently result in allegations that government officials are doling out contingency fee agreements to lawyers who make substantial campaign contributions.


 

Use of Contingency Fee Private Counsel Appealed

A variety of business groups have weighed in as amici, asking the Supreme Court to recognize how contingency fee arrangements by California counties and cities pursuing lead paint litigation violated the due process rights of the defendants. Atlantic Richfield Co. v. County of Santa Clara, No. 10-546 (U.S., amicus curiae brief submitted 11/24/10).

Readers may recall our previous posts about how the California supreme court had taken a major step backward by modifying a 1985 decision that had limited the power of government agencies to retain private plaintiffs attorneys on a contingency fee basis to prosecute nuisance litigation. County of Santa Clara v. The Superior Court of Santa Clara County, No. S163681 (Cal. 7/26/10).

A group of public entities composed of various California counties and cities were prosecuting a public-nuisance action against numerous businesses that manufactured lead paint. Defendants moved to bar the public entities from compensating their privately retained counsel by means of contingent fees. The lower court, relying upon People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), ordered that the public entities were barred from compensating their private counsel by means of any contingent-fee agreement, reasoning that under Clancy, all attorneys prosecuting public-nuisance actions must be “absolutely neutral.”

The state supreme court acknowledged that Clancy arguably supported defendants' position favoring a bright-line rule barring any attorney with a financial interest in the outcome of a case from representing the interests of the public in a public nuisance abatement action. The court proceeded to engage in a reexamination of the rule in Clancy, however, finding it should be "narrowed," in recognition of both (1) the wide array of public-nuisance actions (and the corresponding diversity in the types of interests implicated by various prosecutions), and (2) the different means by which prosecutorial duties may be delegated to private attorneys supposedly without compromising either the integrity of the prosecution or the public's faith in the judicial process.

The state court had previously concluded that for purposes of evaluating the propriety of a contingent-fee agreement between a public entity and a private attorney, the neutrality rules applicable to criminal prosecutors were equally applicable to government attorneys prosecuting certain civil cases. The court had noted that a prosecutor's duty of neutrality stems from two fundamental aspects of his or her employment. As a representative of the government, a prosecutor must act with the impartiality required of those who govern. Second, because a prosecutor has as a resource the vast power of the government, he or she must refrain from abusing that power by failing to act evenhandedly.

But then, the court concluded that to the extent Clancy suggested that public-nuisance prosecutions always invoke the same constitutional and institutional interests present in a criminal case, that analysis was "unnecessarily broad" and failed to take into account the wide spectrum of cases a state may bring. The court described a range of cases; criminal cases require complete neutrality. In some ordinary civil cases, neutrality is not a concern when the government acts as an ordinary party to a controversy, simply enforcing its own contract and property rights against individuals and entities that allegedly have infringed upon those interests. The nuisance cases fall between these two extremes on the spectrum of neutrality required of a government attorney. The case was not an “ordinary” civil case in that the public entities' attorneys were appearing as representatives of the public and not as counsel for the government acting as an ordinary party in a civil controversy. The case was being prosecuted on behalf of the public, and, accordingly, the concerns identified in Clancy as being inherent in a public prosecution were, indeed, implicated.

But, despite that, state supreme court found that the interests affected in this case were not similar in character to those invoked by a criminal prosecution or the nuisance action in Clancy. The case would not have resulted in an injunction that prevents the defendants from continuing their current business operations. The challenged conduct (the production and distribution of lead paint) has been illegal in the state since 1978. Accordingly, whatever the outcome of the litigation, no ongoing business activity would be enjoined. Nor would the case prevent defendants from exercising any First Amendment right. Although liability may be based in part on prior commercial speech, the remedy would not involve enjoining current or future speech, said the court.

While a heightened standard of neutrality was required for attorneys prosecuting public-nuisance cases on behalf of the government, that heightened standard of neutrality is not always compromised by the hiring of contingent-fee counsel to assist government attorneys in the prosecution of a public-nuisance abatement action. Use of private counsel on a contingent-fee basis is permissible in such cases if neutral, conflict-free government attorneys retain the power to control and supervise the litigation.

In so finding, the court downplayed the reality that the public attorneys' decision-making conceivably could be influenced by their professional reliance upon the private attorneys' expertise and a concomitant sense of obligation to those attorneys to ensure that they receive payment for their many hours of work on the case.To pass muster, neutral government attorneys must retain and exercise the requisite control and supervision over both the conduct of private attorneys and the overall prosecution of the case. Such control of the litigation by neutral attorneys supposedly will provide a safeguard against the possibility that private attorneys unilaterally will engage in inappropriate prosecutorial strategy and tactics geared to maximize their monetary reward. .

The list of specific indicia of control identified by the state supreme court seem quite strained, however, and to elevate form over substance, and written agreements over human nature. The authority to settle the case involves a paramount discretionary decision and is an important factor in ensuring that defendants' constitutional right to a fair trial is not compromised by overzealous actions of an attorney with a pecuniary stake in the outcome.  In reality, even if the control of private counsel by government attorneys is viable in theory, it fails in application because private counsel in such cases are hired based upon their expertise and experience, and therefore always will assume a primary and controlling role in guiding the course of the litigation, rendering illusory the notion of government “control”.

Defendants are seeking cert review. In amicus filings, various trade organizations including the American Chemistry Council, the American Coatings Association, and the National Association of Manufacturers, have argued that the financial incentives inherent in contingency-fee agreements simply distort the decision-making of both the government lawyers and the private attorneys they retain. Inadequately grounded contingency fee arrangements distort the state's duty of even-handedness not only to defendants, but also to the public.  The amici argue that public nuisance cases are not typical tort lawsuits because they claim to be pursued in the public interest. It violates due process for the type of personal financial assessment made by contingency fee private lawyers impacts the decisions in a public nuisance action brought in the government's sovereign capacity. The briefing also raises another important practical issue: the attorney-client privilege and work-product doctrines will block any meaningful inquiry into whether the government is actually exercising the appropriate control that he state court said would solve these issues.