The U.S. Supreme Court decision in the alleged mercury-poisoning tuna case is triggering a major response from the legal community. But not because it seems to deliver another blow to federal preemption.
This morning Jones Day partner Chuck Mollenberg shared his concern about the implications of this ruling on the "failure to warn" issue.
As evening is coming to the East Coast, R. Trent Taylor, a partner with McGuireWoods, responds with a very different concern. Recently, Taylor published a major article on public nuisance, as it relates to "State of North Carolina v. TVA" in the TOXICS LAW REPORTER. It received considerable attention from the legal media. Taylor does a fair amount of work in the food-contamination field, from the defense side.
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R. Trent Taylor, Partner at McGuireWoods LLP, on-the-record:
"Jane, I am having trouble getting too lathered up about the U.S. Supreme Court's denial of cert here since it was largely expected. All it does is let stand the Third Circuit's decision that the plaintiff's case should not be dismissed due to preemption. In fact, given the U.S. Supreme Court's reluctance this term to find preemption in anything, as well as previous pronouncements by the Court that a mere decision not to regulate does not constitute preemption, it would have been a lot more surprising if the Court had accepted cert.
"I think the bigger problem is highlighted in a related case. The same defendant, Tri-Union Seafoods LLC, faced an almost identical lawsuit in California state court recently (although there, the question was whether labeling was required pursuant to California's Proposition 65), and the trial court there, just like the trial court in the Fellner case, found it had been preempted after a bench trial (though the court also entered judgment for the defendant on at least two other grounds.)
"Just last month, however, an intermediate California appellate court, while affirming the court's entry of judgment for Tri-Union, effectively overruled the finding of preemption. Instead, the appellate court found that the proper ruling was that Tri-Union should not be held liable because the evidence at trial determined that the mercury found in the canned tuna was naturally occurring. [See "People ex rel. Brown v. Tri-Union Seafoods, LLC, 90 Cal.Rptr,3d 644 (Cal App. March 11, 2009)]
"A happy ending for Tri-Union, right? Not so much. The case was originally filed in 2004, and it took almost five years of litigation and a six-week bench trial in order to reach a conclusion that some would argue is mere common sense. And history might well repeat itself in the New Jersey case. Even when the defendant wins, it loses. That's because it was forced to expend so many resources.
"The challenge, Jane, is to implement changes to our court system that permit courts to get rid of merit-less claims at an early stage. This seemed to be a priority of the Roberts Court a couple of years ago (e.g. Twombley, Stoneridge, Tellabs, and so on). The Court's preemption rulings in favor of business dovetailed that trend. But with the Court's about-face on preemption this term, those days may be over. Though the Tri-Union denial of cert is a mere drop in the bucket compared to some of the preemption cases, it does serve as a reminder of the challenges facing corporate defendants like Tri-Union these days."
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R. Trent Taylor is a partner in the Toxic Tort and Environmental Litigation Department as well as the Climate Change Practice Group in the Richmond, Virginia Office of McGuireWoods LLP. He can be reached at rtaylor@mcguirewoods.com.
Further input wanted on all these issues generated by the U.S. SC ruling in the alleged mercury-poisoning case. Please leave a comment or contact Mgenova981@aol.com.
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