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ATRA Announces Mid-Year Addition of Twin Cities to Judicial Hellholes List

Troubling trends in Twin Cities courtrooms, unprincipled actions by Minnesota’s attorney general and multiple vetoes of common sense reforms by Governor Mark Dayton (DFL) have earned the Twin Cities of Minnesota the unenviable distinction of being named a rising jurisdiction on the Judicial Hellholes Watch List.  There is a pervasive liability-expanding view that is spreading throughout the state.

While it is only July, the first half of 2018 has been especially concerning in the “Gopher State,” and it is our hope that the Twin Cities and the state’s leaders will quickly correct their path to avoid becoming a full-blown Judicial Hellhole in December.

Minnesota voters sent a strong message in 2016 when they elected a reform-minded, pro-business majority in the state legislature for only the second time since the early 1970’s.  During the 2017 session, legislators passed several commonsense initiatives long stalled in the state.  Regrettably, however, Governor Mark Dayton’s (DFL) ‘Veto Triple Play’ preserved the status quo in favor of the personal injury bar – a generous supporter of his campaigns.  The measures that Governor Dayton vetoed enjoy widespread support across the country.  The “trespass” bill that the Governor vetoed, which merely codified existing law to guard against judicial adoption of an extreme proposal of the American Law Institute is extraordinary since he is the only governor ever to veto such a measure.  By contrast, 24 other governors of both parties have signed such legislation since 2011. The other bills he vetoed would have lowered the prejudgment interest rate and allowed defendants in auto-accident cases to introduce evidence as to whether plaintiffs were wearing their seatbelts.

Minnesota Attorney General’s Outrageous Handling of Groundwater Contamination Case against 3M

One would hope that, since Governor Dayton will not seek re-election in 2018, prospects for successful enactment of reform legislation will improve.  That remains to be seen, but if one of the leading candidates, Minnesota Attorney General, Lori Swanson (DFL), follows Dayton into the Governor’s mansion, that may not be the case, based on recent actions she has taken in her current position.

Recently, Attorney General Swanson has come under fire for paying $125 million in attorneys’ fees to an out-of-state law firm after hiring it to manage a suit against 3M for ground water contamination caused by its disposal of perflourochemicals (“PFCs”). After seven years of litigation, 3M and the state agreed to a settlement in the form of an $850 million grant. Of that settlement, the state paid $125 million in contingency fees to the private attorneys, or roughly $47,000 per day for seven years.

Members of the Minnesota House Ways and Means Committee held a hearing on the settlement in mid-May over concerns about the fees paid and the fact that none of the fees would be injected back into the Minnesota state economy because it was paid to an out-of-state law firm. Following the hearing, efforts were undertaken in the House to prevent these types of contingency fee payments in the future. The House passed a budget bill that included a provision prohibiting the attorney general’s office from contracting with outside private attorneys on a contingency fee basis, except in limited cases; however, it was excluded from the final version of the bill.

The state agency responsible for the safety and welfare of residents also raised a central problem with the attorney general’s case.  The Minnesota Department of Health concluded in reports as early as 2007 that there was no increase in the number of health problems seen in the affected areas. The Department of Health released a statement saying, “After hundreds of hours of review and analysis by highly trained and experienced statisticians and epidemiologists … [the department] has concluded that there are no unusual occurrences of adverse birth outcomes or cancer occurrences that could plausibly be related to PFC exposure in the East Metro area.”

Despite the conclusion of her own state’s Health Department that there were no health issues attributable to 3M’s actions, Attorney General Swanson chose to move forward with the lawsuit.

Had the case gone to trial instead of settling, the Attorney General was prepared to rely on the testimony of Dr. David Sunding, a professor at UC Berkeley. Alan Bender, a health department official and associate professor at the University of Minnesota, claimed the data used by the state’s department was “far superior” to that used by Sunding. According to Bender, Sunding’s claim that PFC pollution caused increased rates of childhood cancer deaths was the “most off-the-wall of his many mischaracterizations.”

Moreover, despite the fact that the case is sealed, Attorney General Swanson has made public many of the arguments and documents her office obtained in discovery that support her side. She failed to publish several key factors in the case, including the fact that the disposal was permitted under Minnesota law, the chemicals are dispersing as time passes, and that the Minnesota Department of Health had a differing view of the health impact.  She also failed to publicize that the state began a clean-up program with financial support by 3M, but it was not done properly.

Hennepin County Trial Court Judge Hands Down Unwarranted Sanctions

This liability-expanding mindset has trickled down to the trial court level, where a recent series of judicial decisions in a case involving BNSF Railway clearly demonstrates why defendants believe they face an unfair and uphill battle in Twin Cities’ courtrooms.

Judge Amy Dawson, a judge in the Hennepin County District Court, the largest trial court in Minnesota and the court for Minneapolis, showed extreme disregard for the rule of law and failed a basic test of fairness in her handling of this case, which helped solidify the Twin Cities’ position on the Watch List.

Here, the plaintiff claimed to have sustained permanent injuries as the result of an alleged exposure to “hazardous chemicals” while working next to a specific railcar in BNSF’s yard in January of 2014. BNSF conducted an immediate and thorough investigation with the local fire department, company hazmat responders and two emergency-response contractors, and found no odors, signs of leakage, or abnormalities in the railcar identified by Plaintiff.

It was not until three years later, after litigation had commenced, that the plaintiff for the first time declared that his injuries were the result of exposure to “hydrocarbons” leaking from one of eleven different railcars, not owned or leased by BNSF, located on a different track in the yard. The court ordered BNSF to produce the eleven cars during the discovery stage; however, they were unable to do so because three years had passed and they did not own or lease the cars in question.

Following BNSF’s inability to produce the cars, the plaintiff filed a motion for sanctions.  The motion was not limited to the missing cars but also included broad claims of spoliation of evidence and other alleged discovery and evidentiary abuses, without supporting evidence.

In the motion, the plaintiff failed to provide evidence that the product being transported in the specified cars on the day of the alleged injury was “hydrocarbons”, also known as “natural gas condensate.”  He argued, however, that he “unearthed” documentation that BNSF reported to the federal government on six different occasions the unintentional release of “natural gas condensate” around the same time period of his alleged exposure. Plaintiff argued that this proved BNSF had additional documents concerning the exposure that it failed to produce and that the material in the cars must have been “natural gas condensate.”

BNSF repeatedly disputed the accuracy of this information and offered to provide testimony in support of its position, but the Court refused to allow in the evidence, and instead, wholly accepted and adopted Plaintiff’s claims.

Data in the documents relied on by Plaintiff were later corrected by the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration because a technical glitch in the reporting system inaccurately reported “natural gas condensate” as the technical/trade name for BNSF’s submission of the materials involved in the incidents. Despite this fact, the judge relied on the inaccurate data and denied BNSF’s attempt to introduce refuting evidence.

Plaintiff also claimed that BNSF engaged in spoliation of evidence by not providing the 11 cars for discovery.  BNSF argued that, because they were not aware of the involvement of the specific cars in the accident until nearly three and a half years later and they had no control over their whereabouts, this claim is baseless.  Judge Dawson, not surprisingly, nevertheless agreed with the plaintiff.

Not only did Judge Amy Dawson impose sanctions, she took the additional step of striking all of BNSF’s liability and causation defenses in the underlying case, allowing it to proceed to trial solely on the issue of damages, and ordered BNSF to pay the plaintiff’s costs and attorney’s fees. Essentially, BNSF was forced to go to trial with both hands tied behind its back.  The judge unfairly stripped BNSF of its right to have a jury decide the question of liability, and it simply became a question of how much money the plaintiff should be awarded.

Following the order for sanctions and the judge’s decision to strike all liability and causation defenses, BNSF also was denied the opportunity to present essential testimony on damages, including evidence that the plaintiff’s condition was actually the result of an underlying pre-existing condition and natural causes, and not related to the alleged exposure to any chemicals.

In a result that should surprise no one, the jury returned a $15 million verdict in favor of Plaintiff.  In April 2018, Judge Dawson, again without a hearing or any responses by Plaintiff to BNSF’s post-trial motions, denied BNSF’s post-trial motions and entered final judgment against the company.  The case is now on appeal.

Adoption of Daubert Standard and Appointment of New Supreme Court Justice

The Minnesota Supreme Court is poised to rule on whether or not to adopt the Daubert standard for admitting expert evidence testimony sometime this summer.  This decision will serve as a true litmus test for the court.   Adoption of Federal Rules of Civil Procedure 702 ensures that junk science is kept out of the court rooms, and that all expert evidence is based on reliable principles and methods.  It instructs the trial judge to serve as a gatekeeper who must ensure that testimony is the product of reliable scientific method.

Adoption of the Daubert standard would bring Minnesota in line with more than two-thirds of the states. It would bring about greater consistency among courts and discourage forum shopping, which is of great concern as Minnesota has increasingly become an outlier in its approach to evaluating the admissibility of expert testimony.

While there is hope that the court will do the right thing and adopt the new evidentiary standard, especially after the Advisory Committee recommended similar amendments, there is concern after the appointment of a new Supreme Court justice.  In April, Governor Dayton appointed longtime Democratic state Representative Paul Thissen (DFL) to replace Justice Stras, who was recently appointed to the 8th U.S. Circuit Court of Appeals.

Thissen is the fifth justice appointed to the Supreme Court by Governor Dayton, and the latest in a long line of partisan selections.  The other two members of the seven-judge panel were appointed by former Governor Tim Pawlenty (R). Thissen also is the first lawmaker to make the immediate jump to the Minnesota Supreme Court. While he does not have a judicial track record, he was known to support progressive liability-expanding initiatives during his time in the House.

We will be watching closely as Justice Thissen and his colleagues address this issue. Will they follow the mainstream of state procedures for expert evidence, or will they preserve the status quo, which serves the interest of the personal injury bar?

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