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For the neighbors of the Buckeye Farm outside Columbus, Ohio, the smell from the waste of 7 million chickens was so strong that children getting off school buses “would pull their coats over their heads until they reached their homes, just to get away from the odors,” says plaintiffs’ attorney Peter Hahn of Akron, Ohio’s Buckingham, Doolittle & Burroughs. The flies drawn by manure spills from the farm were so dense, he says, that a researcher counted 250 in one family’s kitchen. The saturation of liquid manure was so widespread that tubifex worms, which grow only in nearly septic conditions, were found at the base of the field drains that emptied into a nearby creek, adds plaintiffs’ attorney John Sproat of Columbus’ Britt, Campbell, Nagel & Sproat. “These stories made the jury cringe,” says Hahn, and led in September to a $19.7 million verdict, the largest-ever environmental nuisance judgment against a factory farm. The verdict provided the clearest indication that suits against confined animal feeding operations not only are gaining steam, but that they also can provoke substantial damages awards from jurors. For each of the past five years, The National Law Journal has conducted an investigation of new and emerging causes of action, trying to spot trends in litigation before success in such lawsuits becomes commonplace. Several are developing in addition to suits involving factory-type farming. Family law attorneys are winning — and sustaining on appeal — judgments for alienation of affection against seducers. Also, claims of fraud against tobacco makers, brought by individual and class plaintiffs, are drawing judicial acceptance. These causes of action follow what defense appellate specialist Ellis Horvitz calls the “popcorn theory” of American litigation. “There are few innovations,” says Horvitz, of the Encino, Calif., boutique, Horvitz & Levy. “Lawyers are devoted to precedent.” Unusual litigation tends to fail at the outset, Horvitz says, but if one case wins, it can set off a trend. “It’s as if the popcorn bag reaches a certain temperature and all the kernels start popping.” INCREASE IN ENVIRONMENTAL DAMAGE CLAIMS AGAINST ANIMAL FEEDING OPERATIONS Anyone who has ever lived near or driven by a large pig farm knows the smell can be overwhelming. Until recently, no one sued the farms. “But there’s a revolution going on in rural America,” says plaintiffs’ attorney Charles Speer of Overland Park, Kan.’s Payne & Jones. Confined animal feeding operations are replacing family farms. “These are nothing like traditional farms,” he says. “They shoehorn animals into confined spaces. The animals never get to touch the ground or have the sun on their backs.” The hogs stand on metal slats and manure is flushed every two hours into lagoons, Speer says. “There’s a constantly circulating stream of manure.” This liquid waste is sprayed on the land by water cannons, then migrates to adjacent land and waterways. Such factory farms are now in 36 states, says Kevin J. Madonna of White Plains, N.Y.’s Kennedy & Madonna. Speer and Madonna are members of a consortium of plaintiffs’ attorneys who have filed class actions against large farms in the hog and poultry industry. The suits allege violations of federal and state air and water regulations and violation of the federal Resource Conservation and Recovery Act. In class actions filed in Florida and Missouri, the plaintiffs are also charging violations of federal racketeering laws, contending that the operations are akin to organized crime. The class actions were spurred, Madonna says, by the aftermath of Hurricane Floyd in North Carolina in 1999, when the rivers around the Smithfield Foods operation were filled with hog waste. There is also an action pending in Oklahoma against the poultry company Tyson Foods Inc. The individual actions against these farms contend nuisance, negligence, property damage and trespass. In winning the verdict against Buckeye Farms, the plaintiffs’ attorneys concentrated on the testimony of the plaintiffs, and how the infestation of flies changed their lives, Hahn says. Seelke v. Buckeye Egg Farm, No. 99 CV 365 (Licking Co., Ohio, Ct. C.P.). MAKERS OF FOOD SUPPLEMENTS AND DIET AIDS FACE PRODUCTS LIABILITY, FRAUD SUITS The rise in weight-training and the ever-increasing demand for better weight-loss aids has created a multibillion-dollar industry in food and dietary supplements. These supplements can contain psychoactive ingredients, but the products are subject to almost no regulation, charges plaintiffs’ attorney Richard E. Vollertsen of Anchorage, Alaska’s Atkinson, Conway & Gagnon. In 1994, Vollertsen notes, Congress passed the Dietary Supplement Health and Education Act. It shifted the burden of proof on approval of such products, requiring the Food and Drug Administration to show that a product was not safe or not effective in order to take it off the market. But, he says, the FDA has only five full-time and two part-time employees to oversee some 20,000 products. As a result, he says, the law gave carte blanche to the industry to mix amphetamine-like ingredients in food supplements without testing or even ensuring purity. These ingredients include the herb ma huang, or ephedra. When combined with caffeine or taken in large doses, ephedra, or the synthetic form, ephedrine hydrochloride, can cause strokes, heart attacks and psychotic reactions, says plaintiffs’ attorney John Tiedt of Glendale, Calif.’s Moore, Winter, Skebba & McLennan. The defendants deny these products have any such effect. The FDA has more control over supplements using the synthetic form, because ephedrine hydrochloride is considered a drug, Vollertsen says. But many manufacturers do not reveal on product labels that synthetic ephedra is being used. Nor do supplement makers using the natural or synthetic form warn about possible side effects, he says. In 1995, Vollertsen client Rosalie Talbert, then 34, suffered a stroke after taking a weight-loss product called AMP II Pro Drops, which contained ephedrine hydrochloride. She filed a products action against E’ola Products Inc., the maker of the drops, charging that the product caused her stroke. In February, an Anchorage jury awarded her $13.2 million, the largest such judgment in any of these cases. Talbert v. E’ola Products Inc., No. 3AN97-4046 (Super. Ct., Alaska). The plaintiffs’ claims, whether the ingredient is synthetic or natural, are much the same, Vollertsen says. The plaintiffs contend defects in the product and its design, misrepresentation and failure to warn. To prove the failure-to-warn claim, the plaintiffs produce evidence that the product labels do not disclose the ingredients or what medications or other items these ingredients could interact with or how such ingredients could affect susceptible individuals. As to defect, Tiedt says, evidence is used showing “there is a pill-to-pill, dose-to-dose variability.” FIBROMYALGIA PAIN SYNDROME TREATED AS SEPARATE INJURY WORTH DAMAGES Fibromyalgia is a chronic pain syndrome that was accepted as an actual physical disorder in 1990 through recognition by the American College of Rheumatology. One of the primary causes of fibromyalgia is physical trauma, says plaintiffs’ attorney Steven P. Krafchick of Seattle. While rheumatologists have accepted fibromyalgia as a real disorder, and trauma as a primary factor, acceptance in courts, by judges and juries, has been slower in coming. Nevertheless, in the last two years, there have been several significant verdicts for plaintiffs claiming they sustained the disorder as a result of physical trauma. In 2001, for instance, a Beaver, Pa., jury awarded $263,500 to a woman who contended she sustained permanent pain from an automobile accident, even though she did not seek medical attention after the incident. In 2000, Krafchick won a $2.37 million verdict against the state of Washington for a former ferry worker who claimed continuing pain suffered as a result of a workplace accident. Before recent successes, claims of fibromyalgia did not gain much respect from defendants, says Michael B. Jones of Aliquippa, Pa.’s McMillen, Urick, Tocci & Fouse, who won that Pennsylvania lawsuit. What has changed the situation? Krafchick points to several factors. In 1997, an Israeli epidemiological study on chronic pain supported the claim that fibromyalgia was often caused by trauma. Medical literature also supported the relationship between fibromyalgia and trauma. The claim is still difficult to win. The primary obstacle is that pain, unlike a broken limb or damaged brain, cannot be seen. This gives the defendants formidable claims — among others, that the plaintiff does not feel much pain or that the pain is psychological. To win a fibromyalgia claim, Krafchick advises using extensive medical documentation, including medical literature about fibromyalgia, and linking the plaintiffs’ symptoms to the American College of Rheumatology diagnostic guidelines. The guidelines, for instance, state that the patient has to have pain in 11 out of 18 specific “tender points” on the body and that the pain has to be widespread for more than three months. In ferry worker Terry Greenwood’s case, his lawyers established that Greenwood had pain in 16 out of the 18 points and that the pain had lasted far more than three months. The case ultimately settled for more than $2 million. Greenwood v. State of Washington, No. 98-2-22537-8SEA (King Co., Wash., Super. Ct.). CONSUMER FRAUD CLAIMS FILED AGAINST TOBACCO INDUSTRY For years, despite the massive settlement between the states and the tobacco industry, individual plaintiffs suing tobacco companies were having limited or no success. In the past three years, that record has changed, with several significant verdicts for smokers claiming that their health problems were caused by the cigarette makers. In many of the most recent cases, the plaintiffs are not pursuing standard products liability actions alone. Instead, the plaintiffs are claiming fraud, intentional or negligent misrepresentation or deceptive trade practices. In a 1999 suit in Oregon that drew an $80.32 million verdict — subsequently reduced to $32.82 million — the plaintiff dropped his products liability claim and went to the jury solely on claims of negligence and consumer fraud. In a California trial that year, the plaintiff won a $26.5 million judgment on claims of product defects, fraud and conspiracy. Last year, a second California jury awarded $21.7 million to another plaintiff who contended fraud. Fraud has also become a significant part of several new class actions launched against the industry charging the tobacco companies with deception in the marketing of “light” and “ultra light” cigarettes. These class actions have been certified in Illinois and Massachusetts, says plaintiffs’ attorney Stephen A. Sheller of Philadelphia’s Sheller, Ludwig & Badey. In the suits tried so far, the plaintiffs have claimed that the tobacco industry committed fraud on consumers by casting doubt on the connection between smoking and disease and failing to disclose information known about the addictive and harmful effects of smoking. Using fraud charges allows plaintiffs’ attorneys to bring in explosive internal documents from the tobacco industry and thwarts one of the tobacco defendants’ most effective claims — that smoking is an individual choice. In November, the California 1st District Court of Appeal upheld the $26.5 million judgment against Philip Morris Inc., finding that the “defendant touted to children what it knew to be an addictive and cumulatively toxic product while doing everything it could to prevent addicts and prospective addicts from appreciating the true nature and effects of that product.” Henley v. Philip Morris Inc., 995172 (San Francisco Co., Calif., Super. Ct.). ALIENATION OF AFFECTION: LAWYERS DUST OFF OLD TORT FOR DAMAGES WHEN MARRIAGES END In 1997, Dorothy Rowen Hutelmyer won a $1 million verdict in North Carolina against the woman who she claimed stole her husband from her. The judgment, which was subsequently upheld on appeal, became the subject of a television movie and set off a flurry of litigation alleging alienation of affection in North Carolina and led to several substantial judgments and settlements. The most recent verdict came Nov. 2, when Guilford County, N.C., District Judge Susan Bray awarded $1 million in compensatory damages and $1 million in punitives to a woman who contended that her marriage was destroyed by a woman who aggressively pursued her husband. There have also been verdicts and settlements in other states that still either have alienation-of-affection laws on the books or have established the tort within their common law. The claim is covered in some states under criminal conversion statutes. Defendants in these alienation-friendly states have attempted to contest the litigation on appeal, but in recent years, South Dakota and Utah, along with North Carolina, have upheld the cause of action. Legislators in North Carolina are pushing to outlaw the tort, but have not yet been successful. To bring a suit alleging alienation of affection, several elements are required, says James Pfaff of Greensboro, N.C.’s Galloway, Pfaff and Elmore. The defendant’s behavior, he says, “has to be egregious, predatory and nasty.” To win a judgment, says plaintiffs’ attorney Bruce M. Ford, “you have to have something to anger the jury.” Ford, of Watertown, S.D.’s Bruce M. Ford Law Office, won a $265,000 alienation-of-affection verdict against a bank manager. The marriage also has to have been happy before the defendant came into the picture, Ford says. The standard defense, he says, is that “the marriage was dead long before the defendant came along. You have to prove the marriage was fine.” To do this requires bringing in friends and relatives of the couple to corroborate the plaintiff’s claim. In the recent $2 million judgment in North Carolina, a major part of the evidence against the defendant came from e-mails to the plaintiff’s husband, Pfaff adds. Bray cited the e-mails in her judgment against the defendant. Cooper v. Shealy, No. 98 CVD 11312 (Guilford Co., N.C., Dist. Ct.). PRODUCTS LIABILITY: ALTERNATIVE DESIGN TESTS USED AGAINST WATERCRAFT MAKERS Personal watercrafts, such as Jet Skis or Waverunners, use an inboard motor powering a water jet pump as their primary source of power. If the power is shut off, the operator has no control of the vehicle, because Jet Skis, Waverunners and Sea Doos are not equipped with rudders, says plaintiffs’ attorney Lawrence D. Murray of San Francisco’s Murray & Associates. This creates a problem, he says, when inexperienced operators are attempting to avoid hitting an object. With any other vehicle, such as a car or bicycle, “you slow down when you make the turn.” With a Jet Ski or Waverunner, “if you slow down or stop, it keeps going straight.” This has led to numerous accidents in which operators of these watercrafts ram into the obstacles they were trying to avoid, subsequently spawning a significant number of lawsuits against the makers, distributors and renters of personal watercrafts. The basic claim is that the Jet Skis are defectively designed in that they do not possess rudders that would allow off-throttle steering. The plaintiffs are also charging failure adequately to warn of the need to use power while turning to avoid a collision. The claims against the defendants were significantly bolstered by a 1998 National Transportation Safety Board report on personal watercraft safety, which noted that steering problems were a significant cause of many accidents, says plaintiffs’ counsel Ralph E. Chapman of Clarksdale, Miss.’ Chapman, Lewis & Swan. Until recently, however, these cases were always losers for plaintiffs, says Murray: “Plaintiffs’ lawyers did not understand the mechanics of why the things failed.” For a trial against Yamaha Motor Corp., maker of the Waverunner, Murray and Chapman adopted methods common in litigation against automobile manufacturers. They hired an outside expert, Marshall Poulo of San Francisco’s Collision Analysis, who built a test course, retrofit similar Waverunners with rudders, then tested the steering capabilities. At the end of the February 2000 trial, a Los Angeles jury awarded plaintiff David Cuenllas $8.36 million, finding Yamaha 50 percent and the rental agency 20 percent responsible for the accident that left Cuenllas paraplegic. The matter was later settled. Cuenllas v. Yamaha Motor Corp. U.S.A., No. BC 196681 (Los Angeles Super. Ct.). This verdict has significantly increased the chances of winning these cases at trial, says Murray. Poulo adds that since the verdict, he has been contacted by plaintiffs’ attorneys nationwide. To win such cases, Chapman advises screening the plaintiffs: “Make sure that there was no alcohol involved. Try to get a copy of the NTSB report into evidence.” And, he suggests, “order a transcript of our trial and read what the experts and engineers are saying.” The injury has to be significant, because of the costs of the case, Chapman adds. The Cuenllas team spent more than $300,000 for experts, depositions and other costs. But the next action, he says, should not cost as much.

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