Earlier this month, the New York State Court of Appeals – New York State’s highest court – reversed a decision in a product liability action based on a jury instruction that listed an improper standard.  The case – Reis v. Volvo - involved a claim for defective design of an automobile, and much of the evidence presented at trial, including expert evidence, involved the standard practices of automobile manufacturers.  The jury was ultimately instructed that the defendant manufacturer must be found negligent if it did not use the “same degree of skill and care” as its peer manufacturers, an instruction that is generally issued in professional malpractice cases for defendants with special skills – such as doctors and lawyers – who are expected to uphold the level of care used by others of the same profession in their community.  The Court of Appeals held that the standard is different for other types of negligence defendants in actions outside of the malpractice context, who ought to be held only to a reasonable person standard.  At the same time, the Court agreed that the general practices of the industry is relevant and may be taken into account in determining whether the defendant acted with reasonable care, though a defendant manufacturer’s compliance with the industry standard should not be dispositive.

Both the majority and dissenting opinions agreed that the distinction here was subtle, and it’s slight enough that many people – even practicing litigators – might not see the difference.  Indeed, the dissent argued it wasn’t enough of a difference to warrant reversal, particularly in light of the fact that additional jury instructions clarified that the verdict should not be based on industry practices alone.  Nevertheless, the majority found that charging the jury to determine negligence based on whether the defendant used the degree of skill and care typical of its industry was reversible error.  The case was thus remanded, and now the parties must present their evidence for trial all over again.  This outcome is a reminder to litigators that among all the preparation that goes into a trial, it is critical not to overlook the specific details of the legal standards and jury instructions at play, particularly when litigating in state court where there might be nuances in the standards for even typical common law claims like negligence that could ultimately determine whether or not a verdict will stand.

Several years ago, most people had never heard of genetically modified organisms — commonly referred to as GMOs.  Chances are, if you were not a farmer or a scientist and did not work for a food manufacturer, you had never heard of GMOs.  Now, however, you can add lawyers and self-proclaimed healthy-eating advocates to the list of people who are very familiar with GMOs.  As the flood of suits against asbestos manufacturers and the tobacco companies slows down, enterprising plaintiffs’ lawyers are looking for the next tidal wave of litigation on the horizon.  One area where plaintiffs’ lawyers are trying to get a foothold is claims against food and beverage companies alleging false and deceptive advertising claims on their product labels.  As the U.S. attempts to respond to a growing obesity crisis, food and beverage companies have been forced to alter their product labels in order to comply with changing labeling requirements and to market their products to a more health-conscious consumer base.

One area of product labeling litigation that courts are currently dealing with is the propriety of manufacturers using terms such as “all natural” on products that contain GMOs.  Recently, in Brisneo v. ConAgra Foods, Inc., a federal court in California — which has recently been the epicenter of food-related litigation — denied an attempt to certify a putative class of consumers from eleven states who allege that ConAgra’s Wesson-brand vegetable oils are not “100% Natural” as the label claims because they contain oils extracted from GMOs.  However, the court dismissed the complaint without prejudice and allow the plaintiffs to replead in an attempt to justify its claim that the suit is amenable to class treatment.

Before discussing the specifics of the case, it may be helpful to briefly explain what GMOs are and why they are used in foods.  According to the World Health Organization (WHO), GMOs are defined as “organisms in which the genetic material (DNA) has been altered in a way that does not occur naturally.”  GMOs are used in food products because they have some perceived advantage either to the producer or the consumer.  The main benefit of using GMOs is the ability to develop crops which are more resistant to plant diseases caused by insects or viruses or to make crops more tolerant to herbicides used to protect the crops.  There have not been any scientific studies showing any health risks associated with the consumption of products containing GMOs, but given the various products that can be altered and the various techniques for altering a plant’s DNA, it is impossible for any organization to make a blanket statement regarding the safety of consuming GMOs.  Notwithstanding the benefits of using GMOs from a crop protection standpoint and the lack of any evidence that anyone has been injured through the consumption of GMOs, plaintiffs across the country have brought suits against food manufacturers whose product labels do not make it clear that they contain GMOs alleging false and deceptive advertising.  The FDA has not established clear guidelines for product labels that may include some form of GMOs, nor has the FDA clarified whether it is appropriate to include terms such as “natural” on the labels of products that include some GMOs. [click to continue…]

Fracking_bw1Last month, I posted on the oral argument that took place at the New York Court of Appeals addressing two local towns’ bans on fracking within its borders.  On June 30, 2014, the Court of Appeals issued its decision, rejecting the companies’ preemption argument and upholding the fracking ordinances.

On appeal, the companies argued that the Oil, Gas, Mining Law (OGSML) contains a supersession clause that expressly preempts local zoning laws that restrict oil and gas activities. In response, the towns claimed that they acted within their home rule authority, enabling them to preserve their communities and protect the “health, safety and general welfare” of their towns.

The relevant part of the supersession clause of the OGSML states: “The provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution local government jurisdiction…”  The court analyzed this section in light of its decision in Matter of Frew Run Gravel Prods v. Town of Carroll, which set forth a three-factor inquiry to determine whether a supersession clause preempts a local zoning law.  The three factors to be considered are: (1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislature history.  Applying these factors, the Court found that the supersession clause of the OGSML only preempts local laws that regulate “how” fracking operations are conducted, not “where” they are conducted through zoning ordinances.  In addition, the court found it significant that the provision did not explicitly mention zoning, which the Court explained was a core function of local municipalities.

For a more detailed analysis of the Court’s decision and its potential implications, please visit my article entitled NY High Court Cases May Impact Fracking Nationwide, published by Law360, available at http://www.law360.com/articles/555577/ny-high-court-cases-may-impact-fracking-nationwide.

Another Victory For The Learned Intermediary Doctrine

July 9, 2014

Tim Howard’s performance in the Americans’ World Cup game against Belgium was one for the ages.  He saved more shots than any goalie had in the World Cup in almost fifty years.  But, he did let two goals in.  Neither were his fault but that did happen.  A reminder that even an incredible defense can […]

Read the full article →

Headline-Grabbing Reports on Fracking Emissions Are Unlikely to Gain Traction in Courts

July 8, 2014

Methane emissions from hydraulic fracturing (“fracking“) wells have received a wave of coverage in the press recently, but plaintiffs will likely face an uphill battle in attempting to translate these headlines into legal claims. At the end of June, the Proceedings of the National Academy of Sciences published a report on the number of “casing and […]

Read the full article →