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Weintraub Tobin Participating in Food Safety Webinar

By Lee N. Smith on Posted in Agriculture Law, Food Safety, Food Safety Modernization Act

Food Safety Product Liability Claims

Mastering the Standards for Fault, Causation and Damages in Foodborne Illness Litigation

A live 90-minute CLE webinar/teleconference with interactive Q&A

Thursday, June 13, 2013 (2 days) 1:00pm-2:30pm EDT, 10:00am-11:30am PDT

 

This CLE webinar will provide product liability defense and plaintiff counsel with a review of the legal issues particular to foodborne illness litigation and will discuss the definition of standards for fault, causation and damages.

Description

The CDC estimates that there are over 48 million cases of foodborne illnesses in the U.S. each year. Jury verdicts can reach millions of dollars and garner unfavorable media attention. Whether bringing or defending a food safety claim, success hinges upon mastering the standards unique to these cases.

Foodborne illness liability requires the establishment of fault and causation by the plaintiff. Both plaintiff and defense counsel must understand the scientific link between the foodborne illness, the alleged harm to a plaintiff, and the defendant’s product to prove or defend against such suits.

In food safety litigation, counsel must also understand how to assess damages. The financial liability of all parties involved, the anticipation of plaintiffs’ future medical costs, and defendants’ insurance coverage all play a key role in determining damages.

Listen as our authoritative panel of product liability attorneys defines the standards for establishing fault and causation and proving damages in food safety cases. They will also discuss current trends in food safety litigation and best practices to bring or defend these cases.

Outline

  1. Compliance issues in food safety
    1. Overview of legal requirements in food safety
    2. Statutes
    3. Regulations
  2. The food safety product liability claim
    1. Brief overview of science of foodborne illness
    2. Delineating fault
    3. Defining a scientific causal link
  3. How to pay for a food safety problem
    1. Types of costs a food liability problem can cause
    2. Role of insurance and other risk-spreading tools
    3. Early steps to take when claims or recalls occur
    4. What your company or client can do now to prepare

Benefits

The panel will review these and other key questions:

  • What are the standards for liability and negligence and which defendants are held to each standard in food safety litigation?
  • How does available insurance coverage influence how counsel approaches the legal issues involved?
  • What is the role of expert witnesses in establishing causation and determining damages?

Following the speaker presentations, you’ll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Jonathan M. Cohen, Partner Gilbert, Washington, D.C.

His practice focuses on the litigation and resolution of complex, multiparty disputes involving insurance, product liability, and supply-chain issues.  wide range of coverage matters, including bodily injury and property damage, food-contamination, asbestos, product recall, technology-related property damage, advertising injury and pharmaceutical-related coverage issues.

Lee N. Smith, Shareholder Weintraub Tobin, Sacramento, Calif.

His practice includes food safety, Proposition 65, land and natural resource regulation, and environmental compliance, water law and litigation. He has also been involved in state court litigation concerning pesticide contamination, the California Environmental Quality Act, and Prop. 65 litigation, as well as federal litigation involving pesticide registration and CERCLA.

Felicity A. McGrath, Partner Bonner Kiernan Trebach & Crociata, Washington, D.C.

She is experienced in litigating matters in the areas of personal injury and products liability. She represents manufacturers and retailers across the United States in the areas of food safety and foodborne pathogens, product tampering, allergies, and food sensitivities.

New Energy Disclosure Requirements for Non-Residential Buildings

By Susan Edling on Posted in Leasing, Real Estate Development

Major deals involving a whole non-residential building will soon require owners and agents to disclose energy use data to a prospective buyer, tenant, or lender before any sale, lease, financing or refinancing of the entire building.

How?   By using the Environmental Protection Agency’s (EPA) online software, Energy Star Portfolio Manager, energy usage data is collected, calculated per square foot and given a percentile ranking according to the building’s size, location and operational characteristics.  A score of 50 is average – above is better, below not as good.

Timing

Section 25402.10 of the Public Resources Code requires owners to start complying with the new requirements on a rolling basis, depending upon the square footage of the building:

Starting July 1, 2013, for buildings with a total gross floor area of more than 50,000 square feet;

Starting  January 1, 2014, for buildings with a total gross floor area between 10,000 square feet and 50,000 square feet; and

Starting July 1, 2014, for buildings with a total gross floor area between 5,000 square feet 10,000 square feet.

To Obtain and Deliver Disclosures

First, the building owner opens an account on EPA’s Energy Star Portfolio Manager and creates a profile for the building.   Using the Portfolio Manager account, the building owner requests local electrical and/or gas utilities to release the building’s energy use data for the last 12 months.  The utilities will do this within 30 days of receiving the owner’s request.  Then the building owner must log back on, complete a compliance report, and download the following:

 

  • Disclosure Summary Sheet;
  • Statement of Energy Performance;
  • Data Checklist; and
  • Facility Summary (collectively, the “Disclosure Data”).

These documents expire 30 days after they are generated.   While current, the building owner is required to provide the Disclosure Data for the building to:

  • a prospective buyer of the entire building, at least 24 hours before execution of the sales contract;
  • a prospective lessee of the entire building (but not a space lease of just a portion) at least 24 hours before execution of the lease; or
  • a prospective lender financing the entire building, no later than submittal of the loan application.

Penalties and Issues

There is no specific penalty for non-compliance, but there is an issue about whether this data is a material fact in a covered transaction.   Also failure to plan for the disclosure process in a transaction could result in execution or closing delays.  Building owners should consider including a statement in a purchase and sale agreement, loan agreement, or lease, acknowledging that disclosures have been made in accordance with Section 25402.10.

We invite you to contact us with questions or requests for assistance in drafting and modifying documents.

A win for the Kings, a win for Sacramento, a win for the region

By Michael Kvarme on Posted in Real Estate Development

Great news. As one of the members of the Mayor’s Arena Task Force who pushed for the downtown arena location, I am thrilled that Sacramento is retaining the Kings AND that we will try and locate the arena downtown. The contribution and boost to our local economy and our civic life should be extraordinary. Let’s hope we can continue to move our community forward.

Check out the full scoop on the deal in the Sacramento Bee article, “Deal reached on Kings sale” (published Friday, May 17).

I am happy to share my knowledge of the downtown arena plans and development with you off-the-clock, just give me a call!

Brown Supports Changes to Prop 65

By Lee N. Smith on Posted in Agricultural Law, Prop 65

Governor Brown announced yesterday  proposed reforms to  Proposition 65, a three decade old proposition approved  by voters to protect Californians from harmful chemicals.    It has,  according to Brown , been abused by some unscrupulous lawyers driven by profit rather than public health.

The law which prohibits the exposure to the public  of certain chemicals  ”known to the State” to cause cancer and/or reproductive hazards without warning to the public.  The issue is that the statute has allegedly been abused by plaintiff attorneys more interested in fees then the  public benefit.

The administration,  will discuss reforms to:

• Cap or limit attorney’s fees in Proposition 65 cases.

• Require stronger demonstration by plaintiffs that they have information to support claims before litigation begins.

• Require greater disclosure of plaintiff’s information.

• Set limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties.

• Provide the State with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm.

• Require more useful information to the public on what they are being exposed to and how they can protect themselves.

Because the requirements for making changes to voter-approved laws such as Proposition 65 are more stringent, the Legislature would need to pass the Brown administration’s bill by a two-thirds margin vote and to approve ithey would also have to show that the changes advance the purpose of the act.

Court Enjoins BPA Prop 65 Reproductive Listing, More to Come.

By Lee N. Smith on Posted in Agricultural Law, Food Safety, Prop 65
On April 19, 2013 Superior Court Judge Cadei on  Motion for Preliminary Injunction enjoined OEHHA from listing or taking further action with respect to Bisphenol A (“BPA”) with respect to its listing as a Prop 65 Reproductive hazard.  The fact that the Court issued the injunction indicates that the Court believes that the Petitioners are likely to prevail at trial. The issues with the listing is whether the document from the authoritative agency that OEHHA alleges made findings that BPA was a reproductive agent was more equivocal than is permitted by the statute and regulations.   An additional factor was the fact that the prior attempt to list BPA also failed.

The Court also distinguished this case from Exxon v. OEHHA  (2009) 169 Cal. App.4th 1264 which  with the issue of whether animal studies alone are sufficient to support listings;   as noted here  there was  a lack of definitive statements relative to its potential effect.  The next step in the judicial process is normally the hearing for on a permanent injunction which the Court will re-try the issue at a formal hearing.

Sacramento Kings and Downtown Development – After the Roar

By Michael Kvarme on Posted in Construction, Real Estate Development

Once all the hoop-la is over, the Sacramento Region needs to plan for one of two contingencies:  (1) Seattle wins in OT and the Kings leave or (2) Kings win and stay.

  1. What if the Kings leave?  Does Sacramento still build an arena downtown?  Go for an expansion team?  Would the whales stay playing in the pond?  Can we still create a downtown arts and entertainment district?  If we lose the NBA finals, we should begin planning immediately as to how to win next year.  We have a history of losing momentum after a loss, have we learned from that?  Somehow, our region needs to continue the momentum that has developed and keep going.
  2. What if the Kings stay?  The entire region, both sides of the American River, need to make a downtown arena the catalyst to moving the region forward.  Another downtown plaza debacle is something we cannot afford.  Done correctly, redevelopment of downtown can change the entire region, as was rightly discussed in this Sunday’s Bee article “Will Sacramento’s downtown grow in the whale’s wake?”  We need to be true to who we are.  We are not now, nor have we ever been, Manhattan.  Looking at our neighborhoods, we can be an even greater place to live.  Let’s make sure we dream big, not fall in love with any proposal, and make our area great.  We need to start the planning now and not do it all at the last minute.

Go team Sacramento!

 

Sulphur Dioxide MADL Raised to 10,0000 microgram/day

By Lee N. Smith on Posted in Agricultural Law, Prop 65

The MADL (maximum allowable dose) for sulphur dioxide has been raised by OEHHA from 220 micrograms per day to 10,000 micrograms per day, based on a calculation error in the original document relied upon by the state.     That error  was discovered by the Grocery Manufacturers Association (“GMA”). Thus OEHHA concluded that a 1989 study on mice is actually the most sensitive acceptable study and it calculates the MADL from that study resulting in a new proposed MADL of 10,000 micrograms per day. The change means that higher levels of exposures to SO2 will fall within the safe harbor and will not be subject to the Proposition 65 warning requirement. http://www.oehha.ca.gov/prop65/law/031413suldiox.html.

Superior Court Issues Writ to Set Aside Dairy General Order and Return Writ in 180 Days

By Lee N. Smith on Posted in Agricultural Law, Dairies

In the Asociacion de Gente Unida Por El Agua v. Central Valley Regional Water Quality Control Board, 210 Cal. App. 4th 1255 (2012) the third District Court of Appeals found that the Central Valley Regional Board had violated and the State’s antidegradation policy in issuing the Dairy General Order issued by the Central Valley Regional Board, (Order No. R5-2007-0035).  The appeals court found in particular that the failure to properly monitor dairies’ groundwater and the probability that there would be additional discharges was where the order was violated.  The appeals court remanded the case to the Superior Court to with directions to grant the petition and to require the Regional Board to comply with the resolution number 68 -16 concerning antidegradation.

On  March 20 the Judge Frawley of the Superior court issued what was styled as a Judgment after Remittitur.  In that judgment the court  granted the plaintiff’s original petition that had been overturned by the prior Superior Court action.

The court also issued a Writ of Mandate commanding the Regional Board to set aside the waste discharge requirements of the General Order and reissue them only after compliance with anti-degradation policy,  as interpreted by the Court of Appeal in its decision.  This  included without limitation; adequate findings that any allowed discharges to high-quality water will be consistent with maximum benefit to the people and will not unreasonably affect present anticipated beneficial uses , and will not result in water quality less than that prescribed in the applicable water quality objectives . Additionally that waste discharge activities will be required to use the best practical treatment or control of the discharge necessary to assure that a pollution or nuisance will not occur and the highest water quality consistent with the maximum benefit to the people of the state. The writ also required a return within hundred and 80 days for the Board to inform the court what it intended to do.

The question then is how the board will comply with this order; it is assumed that there will be additional scrutiny of monitoring requirements as well as additional scrutiny of situations where lined ponds will be required; particularly in light of potential beneficial uses.  It will also require an examination of the current proposal for representative monitoring that may be impacted by this order.  The Superior Court Order can be found here.

Weintraub Tobin to Help Sponsor Western Dairy Air Quality Symposium

By Lee N. Smith on Posted in Agricultural Law, Air Quality, Dairies

Western States Dairy Producers Trade Association is sponsoring the 2013 Western Dairy Air Quality Symposium in Boise on April 16-17. The purpose of this symposium is to have a round- table exchange on the status of air quality research, demonstration projects, and pending regulations in the west, and to plan for coordination of research efforts among states and groups. This symposium brings together researchers, regulators and policy advocates from universities, USDA, EPA, regional air regulatory agencies and industry organizations.