A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge
March 22, 2021 —
Anthony B. Cavender - Gravel2GavelFebruary saw the usual array of significant environmental decisions and federal regulatory notices.
THE FEDERAL COURTS
U.S. Court of Appeals for the District of Columbia
Luminant Generation v. EPA
The court will be grappling with a difficult venue case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses that were made part of the Texas State Implementation Plan (SIP) and which applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction. These defenses were challenged in the Fifth Circuit and were rejected. On the national stage, EPA has been involved in litigation over these affirmative defenses and recently excluded from a “SIP Call” the Texas program, which was carved out. This EPA decision is being challenged in the DC Circuit (see Case number 20-1115),with the State of Texas arguing as an intervenor that any issues involving Texas belong in the Fifth Circuit, and not in the DC Circuit because the Act allows regional issues to be decided in the regional federal courts.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Maine Court Allows $1B Hydropower Transmission Project to Proceed
August 31, 2020 —
Mary B. Powers - Engineering News-RecordMaine’s Supreme Court cleared the way for construction to begin on the nearly $1-billion, 145-mile high voltage transmission line that will feed hydroelectric power from Quebec into the New England power grid.
Mary B. Powers, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Client Alert: Disclosure of Plaintiff’s Status as Undocumented Alien to Prospective Jury Panel Grounds for Mistrial
February 05, 2015 —
R. Bryan Martin, Lawrence S. Zucker II, and Kristian B. Moriarty – Haight Brown & Bonesteel LLPIn Velasquez v. Centrome, Inc. (No. B247080, filed 1/30/2015) the Court of Appeal, Second District, held that a trial judge’s disclosure to the panel of prospective jurors of plaintiff’s status as an undocumented alien was prejudicial and grounds for a new trial.
Plaintiff, Wilfredo Velasquez, brought suit against defendant, Centrome, Inc., alleging personal injuries related to on-the-job exposure to diacetyl, which was purportedly distributed by Centrome.
Prior to trial, numerous motions in limine were filed with the trial court including a motion brought by Plaintiff to preclude Centrome from referring to or making any comments about Mr. Velasquez’s citizenship or immigration status. Plaintiff contended the information was not relevant (as no loss of earnings claim was asserted), and was substantially more prejudicial than probative. Defendant opposed the Motion arguing the information was relevant for the limited purpose of allowing expert testimony about Mr. Velasquez’s inability as an undocumented alien to participate in a lung transplant he claimed was needed. The Court deferred ruling on the motion.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
R. Bryan Martin,
Lawrence S. Zucker II and
Kristian B. Moriarty
Mr. Martin may be contacted at bmartin@hbblaw.com;
Mr. Zucker may be contacted at lzucker@hbblaw.com;
and Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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California Court Forces Insurer to Play Ball in COVID-19 Insurance Coverage Suit
December 13, 2022 —
Latosha M. Ellis & Yosef Itkin - Hunton Insurance Recovery BlogOne of the threshold issues in COVID-19 insurance coverage cases that have been brought across the country is whether the policyholder’s allegations meet the applicable pleading standard in alleging that the virus caused physical loss or damage. In many cases, the courts have gotten it wrong, effectively holding policyholders to a higher standard than required. But recently, a California federal judge righted those wrongs by acknowledging the correct pleading standard in that case, which is whether the allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court, here, correctly recognized that the policyholder, the Los Angeles Lakers, met that pleading standard when it alleged that the COVID-19 virus can cause physical loss or damage by physically altering property.
In its complaint, the Los Angeles Lakers alleged that the virus physically altered its property by changing its chemical and physical property conditions, creating viral vectors that required remedial measures before the property was safe again. Los Angeles Lakers, Inc. v. Fed. Ins. Co., 591 F. Supp. 3d 672 (C.D. Cal. 2022), adhered to on reconsideration, 2022 WL 16571193 (C.D. Cal. Oct. 26, 2022). The Court agreed that these allegations by the Lakers adequately pled physical alteration to support a claim for property damage. The insurer requested reconsideration of the decision, and the Court emphatically affirmed its prior decision, explaining its rationale as follows:
The Court lacks the scientific expertise necessary to conclude, based solely on the allegations in the FAC . . . that it is not plausible for the Lakers’ property to have been physically altered by the Virus, which the Lakers adequately alleged. Consequently, the Court, in the March 17 Order, concluded that the Lakers’ theory was plausible. Whether the Lakers can actually prove its theory will be determined at summary judgment or trial.
Reprinted courtesy of
Latosha M. Ellis, Hunton Andrews Kurth and
Yosef Itkin, Hunton Andrews Kurth
Ms. Ellis may be contacted at lellis@HuntonAK.com
Mr. Itkin may be contacted at yitkin@HuntonAK.com
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Lien Claimant’s Right to Execute against Bond Upheld in Court of Appeals
February 10, 2012 —
Douglas Reiser, Builders Council BlogStonewood v. Infinity Homes is a simple construction dispute over a matter of about $9,000.00. But sometimes these tiny little disputes turn into expensive legal battles over mere procedural quivering. In Stonewood, a small subcontractor won a big victory yesterday when the Divison 1 Court of Appeals upheld its judgment against a lien release bond posted by an owner.
Infinity Homes contracted with Stonewood Design to lay tile in one of its customer’s homes. Stonewood did the work, but Infinity withheld roughly $9,000.00 of the contract sums for what it alleged were trade damages left on the tile. The two parties were unable to come to an agreement over payment and Stonewood proceeded with a lien under RCW 60.04. It then filed an action to enforce the lien against the homeowner, Infinity and its bonding company.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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Forethought Is Key to Overcoming Construction Calamities
February 10, 2020 —
Mitch Cohen - Construction ExecutiveWithout warning, an under-construction structure in the southern United States suffered a catastrophic collapse. The tragedy resulted in the death of several people. As a result, engineering and construction post-collapse forensics experts engaged in an 18-month investigation.
Those involved in the design and build project included the general contractor hired by the owner, a prime engineer, a consulting peer-review engineer and a prime structural design firm supported by a sub-consulting structural engineer. Although significant cracking was noticed several weeks before the failure, no one sounded the alarm or deemed the cracking worthy of corrective action.
In their findings, forensic experts found the collapse resulted from the combined failure of the general contractor, engineers and even the owner, who all failed to shut down the work once the cracking reached unacceptable levels and/or take the appropriate actions needed to secure the public safety and mitigate the risk. This was even after the general contractor requested that the engineer-of-record and design manager assess the structure’s extreme cracking. Consequently, the choice to not seriously investigate the crack or seek an independent peer review to design a rectification plan contributed directly to the tragedy. This is typically referred to within the industry as a “negligent professional design error.”
Reprinted courtesy of
Mitch Cohen, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Cohen may be contacted at
mitch.cohen@rtspecialty.com
The Reptile Theory in Practice
September 06, 2021 —
Nicholas P. Hurzeler - Lewis BrisboisThe “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.
The term “Reptile Theory” originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a “reptilian complex” that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication “Manual of the Plaintiff’s Revolution” by David Ball and Don Keenan, the authors first described the “Reptile Theory” in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat “Reptile” tactics resulting in runaway jury awards.
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Nicholas P. Hurzeler, Lewis BrisboisMr. Hurzeler may be contacted at
Nicholas.Hurzeler@lewisbrisbois.com
Texas Allows Wide Scope for Certificate of Merit
January 07, 2025 —
Lian Skaf - The Subrogation StrategistThe purpose of certificate of merit (sometimes referred to as affidavit of merit) statutes is to identify frivolous claims before the court wastes time and resources during litigation. More common in medical malpractice cases, several states have enacted similar requirements for professional negligence claims dealing with construction-related issues. While a subrogation attorney should not be bringing a frivolous case to suit anyway, the requirement adds another step in the process that plaintiffs need to properly navigate.
Chapter 150 of the Texas Civil Practice and Remedies Code requires that in an action arising out of professional services by a licensed or registered professional, claimants must file an affidavit from a qualified expert attesting to the theories of recovery, the negligence and the factual basis for the claims. The expert must be competent, have the same professional license or registration as the defendant and practice in the area of practice of the defendant.
In Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV, 2024 Tex. App. LEXIS 7961, the Court of Appeals of Texas, Third District (Court of Appeals) addressed a challenge from the defendant as to the sufficiency of the plaintiff’s certificate of merit in an interlocutory appeal. The Court of Appeals affirmed the lower court’s dismissal of the defendant’s motion to dismiss based on the allegedly improper certificate of merit, holding that the plaintiff’s expert was sufficiently qualified to certify the legitimacy of the case.
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Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
