The Current Docket

Advocating the Use of Sound Science in the Courtroom
Atlantic Legal recently represented a group of distinguished scientists in the Supreme Court of Florida in a case involving admissibility of testimony of plaintiffs' expert in a claim for compensation as a result of claimed exposure to a fungicide.

In a California case, Atlantic Legal opposes, on behalf of another group of distinguished scientists, a class action asserting claims for reimbursement of the costs of "medical monitoring" -- in cases where there has been no manifestation of injury.

For a more detailed look at Atlantic Legal's prominent role in sound science cases, see Science and the Law - Expert Testimony Controlled, below.

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Charter Schools Flourish -- And, Atlantic Legal is Helping
Charter School Associations and advocacy groups in New York and New Jersey have turned to Atlantic Legal to fend off legal challenges to charters where results are exceeding parental expectations and waiting lists are long. Labor unions and school districts have deeper pockets than small, independent charter schools whose interests would be left unprotected without Atlantic Legal's representaion in two New York appeals and one in New Jersey.

Atlantic Legal also is assisting an outstanding school in Paterson, New Jersey, where the charter has been revoked and negotiations for a new charter are on-going.

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Unlawful Race-Conscious Government Discrimination - Due Process and Equal Protection
Atlantic Legal is representing victims of reverse discrimination in a case in New Jersey which challenges the Justice Department's egregious circumvention of U.S. Supreme Court rulings outlawing government-imposed hiring preferences. Our clients are a diverse group of candidates for positions as firefighters in various New Jersey cities - including an African-American, an Hispanic, a woman, and several white males.

In another matter Atlantic Legal is representing a non-minority surveying and aerial photography firm, advising it with respect to claims against the State of New Jersey, arising out of affirmative action "goals" imposed for utilization of "disadvantaged" business enterprises. Atlantic Legal believes that the state used seriously flawed data and/or improper methodologies to calculate the utilization "goals." Atlantic Legal's client's business is heavily concentrated as a subcontractor on large scale public construction projects. Because of existing affirmative action programs, a substantial portion of those contracts has been awarded to minority-owned (and therefore presumptively "disadvantaged") firms; in many cases, Atlantic Legal's client is not even permitted to bid.

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Superfund Liability - Failure of Court to Consider Government's Own Tests a Violation of Daubert Principles
Atlantic Legal has filed an amicus brief in support of Alcan Aluminum's appeal to the U.S. Circuit Court for the Second Circuit in Alcan Aluminum v. United States, a Superfund case. Alcan was found liable after a breach trial in the U.S. District Court for the Northern District of New York. The United States claims that nickel and PCBs from a waste site in Oswego, New York leached into the ground water from the dump. Alcan was one of the companies that used the dump for disposal of industrial waste. The "Daubert" issue which Atlantic Legal addressed is whether the court improperly ignored 19 tests conducted by U.S. EPA which showed that the amount of nickel and PCBs in the groundwater at the site and in surrounding areas was no higher than "background" levels.

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Atlantic Legal Science in the Courtroom Review
The second volume of the Atlantic Legal Science in the Courtroom Review was published in November, 2000, and has been distributed to approximately 300 lawyers and scientists who are interested in issues involving science and the law, and to approximately 180 law school libraries.

The first article in this issue, "Weisgram v. Marley Co.: Strengthened Powers and Duties in Gatekeeping Under Daubert" deals with an important recent decision by the United States Supreme Court explicating the impact of Daubert v. Merrell Dow Pharmaceuticals and its progeny on the trial of cases in which expert testimony is a critical element of proof and the impact of the federal court's dismissal of a case because of a ruling excluding expert testimony on Daubert grounds.

The second article, "Junk Science in the States -- The Battle Lines" is a survey of the application of Daubert and its progeny in state courts.

Atlantic Legal Science in the Courtroom Review is devoted to issues concerning the interface of law and science, an area that is constantly and rapidly evolving. Planning for Volume 3 is underway.

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Concluded Matters

Aguilar v. ExxonMobil In an extraordinary contribution to the advance of free enterprise and sound science, on January 31, 2005, the California Court of Appeal ruled in one of the most contentious and costly toxic tort actions in recent California litigation and rejected an appeal from a decision dismissing claims by workers who participated in the building of the "stealth" bomber and fighter aircraft and who alleged exposure to chemicals that damaged their health. In September 2004, we filed an amicus brief in the case on behalf of a Nobel Laureate in chemistry and 10 other prominent scientists.

The Lockheed litigation cases have their origin in the top-secret work done at Lockheed's Southern California plants beginning in the 1960s. The Lockheed workers were exposed to a variety of chemicals supplied by some of the country's largest chemical manufacturers. A little more than a decade ago, more than 600 of these workers sued Lockheed and its chemical suppliers, alleging that exposure to chemicals had damaged their health. The "injuries" claimed ranged from rashes or headaches to cancer.

The workers' claims were divided into groups and were heard as a series of back-to-back trials. Lockheed settled, but judgments in excess of $760 million began piling up against the chemical companies named in the suit. Appeals were initially unsuccessful, but a significant procedural error in two groups of cases caused a panel of appellate judges to remand the cases for retrial. The results of those retrials have been very significant in their legal and economic implications.

The immense initial judgments for the plaintiffs are now in the process of being reversed. Where the courts originally found companies such as ExxonMobil, Ashland Chemical, Shell Oil, DuPont, and Unocal liable for the health problems experienced by Lockheed workers, they are now, on retrial, reaching very different conclusions about whether it is reasonable to claim that exposure to these companies' chemicals had any demonstrable effect on these workers' health at all. In the remanded retrial the court refused to admit the A\"expert" testimony of Dr. Daniel Teitelbaum, who did not offer solid scientific evidence to support his opinion that chemical exposure had harmed the plaintiffs. Without that testimony, the plaintiffs' case collapsed and judgment was entered for the defendants.

In our brief, we argued that the "requirement of reliability" of expert testimony imposed by the California Evidence Code is similar to the standard developed by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993) for cases in federal courts, even though the California courts have repeatedly eschewed adopting the Daubert tests, and in this decision, the Court of Appeal applied very Daubert -like criteria.

On January 31, 2005, The California Court of Appeal affirmed the trial court's dismissal of the complaint and approved the trial court's exclusion of the testimony of plaintiffs' expert.   In doing so, the Court of Appeal adopted many of the arguments we made in our amicus brief and relied on many of the authorities we cited.

The Lockheed cases are among the important examples of lawsuits that depend on medical causation. The principles established in Daubert and in cases interpreting the California Evidence Code clearly identify Dr. Teitelbaum's "science" as faulty and unscientific. There was no solid evidence to support the claim that the Lockheed workers were harmed by the chemicals they handled.

The decision of the Court of Appeal was particularly gratifying because (1) it adopted many of the arguments we made in our brief and cited several of the scientific treatises only we alone brought to the court's attention and (2) it severely limited the impact of Roberti v. Andy's Termite & Pest Control , in which the very same appellate court had admitted flawed expert opinion proffered by the plaintiff, in a case in which we had filed an amicus brief urging the court to reject that expert testimony.

Appellate counsel for ExxonMobil commented that "I think [your brief] will be very helpful to the court. You obviously took great care in preparing it, and we really appreciate it." and "I definitely think you [had] an impact on the court.   Thanks for your scholarly work."

Click here for more information on this case.

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Charter School Extension Supported in New Jersey Representing E3 ("Excellent Education for Everyone") Atlantic Legal has filed an amicus brief in support of the Red Bank (NJ) Charter School's application for a renewed charter. The State Board of Education's approval of the renewed charter has been challenged by the school district (and others) as contributing to racial segregation in the district school; the district also contends that the board denied it due process.

Atlantic Legal's brief supported the positions taken by the New Jersey Attorney General and raised additional factual and legal arguments.

The case is important because charter school enrollment is determined by parental choice and, because of the great demand for enrollment, admission lotteries. In this case, enrollments reflected the community's school age population; and, many of the charter students have been drawn from private and home schooling – to which they would likely return if the Red Bank charter were not renewed. The Superior Court of New Jersey, Appellate Division, adopted virtually all of Atlantic Legal's arguments on behalf of Excellent Education for Everyone, and has approved the renewal and extension of the Red Bank Charter School. Significantly, the appellate court flatly rejected arguments made by the district board and the New Jersey Education Association. The court's very comprehensive opinion eliminates many potential road-blocks for New Jersey charters when they seek renewal or expansion. Also in New Jersey, Atlantic Legal filed an appeal from the Commissioner of Education's revocation of the charter of the Paterson Charter School for Urban leadership. Subsequently, the state required the withdrawal of the appeal before it would consider the reinstatement of the charter. Negotiations continue as the former charter operates as an "academy" under the auspices of the local school district, now operated by the state.

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Should "Customary International Law" Override a U.S. Statute? Of Course Not! The Second Circuit Reaches the Right Result... But Ducks the Crucial Issue

Atlantic Legal, working with co-counsel Pacific Legal Foundation, filed an amicus brief in support of the United States in Beharry v. Reno. Donald Beharry is a convicted felon (for burglary and armed robbery) who held a green card. Pursuant to statute, the Immigration and Naturalization Service ordered him deported. Beharry sought a "hardship exemption" because his daughter, now 8 years old, was born in the U.S. and thus is a citizen. The exemption was denied on the grounds that Beharry's claim does not fall within any of the statutory exemption categories because he was convicted of an "aggravated felony." Beharry petitioned for a writ of habeas corpus in the U.S. District Court for the Eastern District of New York. Judge Jack Weinstein granted the petition and, while acknowledging that the U.S. statutes do not provide for an exemption in this case and that he was making new law, decided that "customary international humanitarian law," including treaties and conventions to which the U.S. is not a party, or which have not been ratified, "overrides" U.S. statutory law, and that "in the interests of the child," Beharry should be permitted to have a "discretionary hearing" on his claim for a waiver of deportation on "compassionate grounds." Atlantic Legal and PLF argued in their amicus brief that even if "customary international law" is part of "federal common law" it does not override clear statutory provisions, and that the district court also overreached its constitutional authority – essentially supplanting the judgment of Congress – by using "customary international law" to "interpret" an unambiguous federal statute.

In deciding the case, now entitled Beharry v. Ashcroft, in May 2003, the Second Circuit Court of Appeals reached the right result, reversing the district court's decision and dismissing the petition on the basis that Beharry had not exhausted his administrative remedies, but largely sidestepped the crucial issue briefed by Atlantic Legal and PLF. But, the court did observe that,

"Nothing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court's holding that interpretation of the INA [the Immigration and Naturalization Act] in this case is influenced or controlled by international law."

At the least this egregious example of judge-made law was voided. For our part, Atlantic Legal's fight to preserve our nation's sovereignty and constitutional form of government continues.

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Atlantic Legal Sues EPA Over Lead Reporting Rule

Atlantic Legal has filed suit against the U.S. Environmental Protection Agency (EPA) in the United States District Court for the District of Columbia to block a new lead-reporting regulation issued in the last weeks of Bill Clinton's presidency. The regulation requires thousands of businesses to report their use of lead. EPA Administrator Christie Todd Whitman and the Bush Administration have allowed this last-minute Clinton Adminstration regulation to be implemented.Atlantic Legal is representing the National Federation of Independent Business (NFIB), a nonprofit nonpartisan organization founded in 1943, which represents the consensus views of its 600,000 members in Washington and all 50 state capitals.The complaint cites EPA's failure to comply with the Small Business Regulatory Enforcement Fairness Act (SBREFA), which requires that regulatory agencies take into account the concerns of small businesses and the economic impact of new regulations on small entities when promulgating rules. Atlantic Legal and NFIB contend that EPA did not take the concerns of small business into account when issuing the regulation. The complaint also alleges that EPA did not apply sound science in reducing the reporting threshold from 10,000 pounds per year of lead usage to 100 pounds per year, thus more than doubling the number of firms that must monitor and report lead usage. EPA began treating lead and lead compounds as persistent, bioaccumulative, toxic chemicals (PBTs) before its own Science Advisory Board (SAB) peer review process was initiated and prior to a determination that PBT methodology is scientifically appropriate for lead and lead compounds; EPA did not have a definitive recommendation from SAB prior to issuing the rule, contrary to its normal procedure. In addition, the rule is retroactive to the beginning of this year, even though the regulation formally became effective on April 17, 2001.

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Reverse Discrimination - Improper Use of Judicial Notice and Insufficient Proof of a "Compelling Interest" in Adopting Race-conscious Discriminatory Program

Adarand Constructors v. Mineta [U.S. Supreme Court]

Atlantic Legal filed an amicus brief in Adarand Constructors v. Mineta before the U.S. Supreme Court for the third time, on appeal from the Court of Appeals for the 10th Circuit, which reversed the trial court's entry of summary judgment in favor of Adarand. The case involves a claim by Adarand, a small white male owned guardrail and highway sign company in Colorado that it lost a subcontract on a prime contract awarded by the Colorado Department of Transportation because the U.S. DOT regulations require states which receive federal highway construction funds to set "goals" for the utilization of minority and woman-owned ("MWBE") contractors and subcontractors, and a federal program which awarded monetary "incentives" to prime contractors who awarded subcontracts to MWBEs.

In 1995, the U.S. Supreme Court reversed the 10th Circuit for the first time, and held, in a landmark decision, that federal race-conscious affirmative action programs were subject to the same "strict scrutiny" as applied to state and local affirmative action programs under City of Richmond v. J. A. Croson, and that the federal courts owe no heightened "deference" to Congressional findings that there was a "compelling interest" in adopting race-conscious programs.

In November, 2000, the 10th Circuit again ruled against Adarand, and held that the government had demonstrated a "compelling interest" in adopting a new race-conscious program, based on a document prepared by the U.S. Department of Justice, entitled "The Compelling Interest" and published as an Appendix to new federal guidelines for affirmative action programs in government contracting. The 10th Circuit took "judicial notice" of the Appendix and the materials (consisting of Congressional debates, testimony at Congressional hearings and "disparity studies" prepared for state and local governments) cited in the Appendix. Atlantic Legal's brief specifically addressed the Appendix.

Unfortunately, on November 27, 2001, the Supreme Court dismissed the writ of certiorari as improvidently granted without reaching the merits of the case. The Court held that because the U.S. Department of Transportation had suspended the specific program challenged in the trial court, and because the Tenth Circuit's decision did not deal with direct procurement by U.S. DOT, which Adarand targeted in its oral argument before the Supreme Court, and because there had been no determination below whether Adarand has standing to challenge the regulations that pertain to direct federal procurement, that these issues were raised for the first time in the briefs on the merits and that the Court would not consider issues not raised in the petition for certiorari.

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Amicus Brief Filed in California to Oppose Use of Junk Science

Of Note - -

The California Supreme Court granted Atlantic Legal's motion to file an amicus brief on behalf of several prominent scientists regarding the propriety of certifying as a class action a claim for "medical monitoring" costs when there are no symptoms of disease.

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Payday Advance Lending Fights to Survive in Illinois

Illinois regulators, bucking the legislature, have adopted stifling regulations that threaten to put responsible, licensed payday advance lenders out of business. Thousands of hardworking employees with small, short-term cash needs will be deprived of a credit product no longer provided by traditional bankers. At the request of the payday advance national trade association, the Community Financial Services Association of America, Atlantic Legal filed an amicus brief to call the Illinois appellate court's attention to the true demographics of these consumers and to show that consumers benefit when the product is used as intended. CFSA represents about 6,000 payday advance locations and works to support responsible legislation and industry practices. The intermediate appellate court rejected the lenders arguments and a petition for leave to appeal to the Supreme Court of Illinois is pending.

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Charter Schools' Exemption Upheld

In February, 2002, the Appellate Division, Fourth Department, rejected a union's appeal of a decision holding that a New York charter school's renovation project was not to be deemed a "public work" for purposes of the Labor Law or the General Municipal Law. Atlantic Legal's amicus brief argued that the lower court's ruling was correct and sided with the arguments of the Department of Labor. The Attorney General contended that there was no exemption. A decision in the union's favor would have subjected charter school construction and renovation work to competitive bidding and prevailing wage requirements.

The appellate court reached the right result -- favoring less restriction on charter schools -- but did so in a curious way. It held that the appeal was moot because the renovation contracts at issue were entered into before the charter school took title to the property.

It is likely that this important issue will surface again. Atlantic Legal represented the New York Charter Schools Association and the Center for Educational Innovation - Public Education Association.

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Atlantic Legal Brief Cited in Stunning About-Face by Ninth Circuit

Kennedy v. Southern California Edison Co. [U.S. Court of Appeals, 9th Circuit]

In September 2000, Atlantic Legal Foundation filed an amicus brief in the United States Court of Appeals for the Ninth Circuit on behalf of four Nobel Prize winners in Medicine, Physics and Chemistry, the Vice-Chair of the Department of Radiation Oncology at the University of California at San Francisco, the Dean emerita of the School of Public Health at the University of California at Berkeley, and numerous other prominent scientists, including physicians specializing in cancer, epidemiologists, and physicists with expertise in nuclear physics and radiation exposure in support of Southern California Edison Company's and Combustion Engineering, Inc.'s petition for rehearing en banc of a decision by a three-judge panel, which held that a jury could find for the plaintiffs if they found that the likelihood of plaintiffs' decedent contracting cancer from exposure to radiation from a nuclear generating station was as low as "one in one hundred thousand."

Atlantic Legal's brief argued that the plaintiffs' decedent's exposure was purely hypothetical because there was no evidence that there was any radiation in her home, no evidence as to the amount of exposure, and no evidence as to the radiation dose she received. Atlantic Legal also argued that, even assuming the "worst case" scenario hypothesized by plaintiffs' experts, the dose received from the hypothetical particle of nuclear fuel that might have been carried into decedent's home was far less than the "background radiation" to which everyone is exposed, far below any levels deemed safe by the Nuclear Regulatory Commission and professional scientific bodies, and far too small to have been causally linked to any illness.

Before the petition for rehearing was formally ruled on, the original panel of the Ninth Circuit withdrew its opinion, and on September 26, 2001 issued a revised opinion, in which it reversed its original determination, and affirmed the decision of the trial court dismissing the case, and found that the likelihood of causation was "only a one in 100,000 chance that [Mrs. Kennedy's] CML was caused by the exposure" to the fuel flea. The Court held that this was insufficient to sustain plaintiffs' burden of proof as to causation. The court cited Atlantic Legal's amicus brief, referring to it as a brief submitted by "distinguished amici in the scientific community."

On December 26, 2001, the Ninth Circuit denied plaintiffs' petition for rehearing en banc.

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U.S. Trade Negotiators Resume Meetings with Industry Experts Following Atlantic Legal Suit

Atlantic Legal Sues Department of Commerce, Office of U.S. Trade Representative - -

Representing members of an Industry Sector Advisory Committee for Chemicals and Allied Products, Atlantic Legal has sought injunctive and declaratory relief to enable representatives of the U.S. chemical industry to advise U.S. trade officials regarding the negotiation and implementation of trade policies.

When the issue was first litigated, prior to the presidential campaign, the Administration agreed that committee membership had been limited by Congress, in the Trade Act of 1974, to producers, thus precluding sector committee membership for environmental organizations and other "special interests". As the campaign heated up, however, the Administration abruptly and without explanation did an about face. It refused to convene meetings of the Chemical Sector Advisory Committee - which for years had met on a monthly basis - and sought the nomination of an "environmental representative" to the Committee, even though the Committee's charter and the Trade Act limits membership to producers. Other trade advisory committees provide for membership of environmental interests.

The upshot was that international trade experts representing many producers of chemicals and allied products are frozen out of the negotiation and implementation of international trade agreements.

Atlantic Legal's suit, filed in January, 2001, resulted in resumption of monthly committee meetings after a year's hiatus. However, the district court dismissed the action, holding that the case presented a non-justiciable issue as to committee meetings and insufficient legislative guidance as to committee membership. Monthly meetings of the committee continue with an environmental representative in attendance.

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Atlantic Legal Urges Supreme Court to Require Showing of Criminal Intent for Felony Conviction of Corporate Officers

On May 1, 2002, Atlantic Legal filed an amicus brief in the United States Supreme Court on behalf of the National Association of Criminal Defense Lawyers, a preeminent bar organization advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime. The case involves the criminal conviction of three corporate officers accused of violating various environmental laws. The three were sentenced to prison terms of between four and eight years. Atlantic Legal's brief emphasized that the expansion of "regulatory crimes" which require no proof of criminal intent, or even knowledge, on the part of defendants has serious legal and policy implications because it permits conviction and severe punishment of innocent individuals, and also ultimately will deter participation in corporate behavior essential to economic growth and to responsible environmental practices.

The high court was not persuaded by these arguments and, in early June, certiorari was denied without dissent.

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Sound Science Prevails - Texas Court of Appeals Reverses Erroneous Trial Court Judgment, as urged by Atlantic Legal

In June 2002, the Texas Court of Appeals, reversing the trial court in Missouri Pacific Railroad Company v. Navarro, held that the decision to admit expert testimony by plaintiff's witnesses on the causation of Mrs. Navarro's multiple myeloma, including testimony of plaintiff's experts on toxicology, oncology, industrial hygiene, and epidemiology, was in error, because the testimony of plaintiff's experts was unreliable and that "one must make a huge leap from the data in the studies relied upon to arrive at the conclusion that exposure to diesel exhaust causes multiple myeloma and further, that such exposure caused [Mrs. Navarro's] multiple myeloma [and that] 'there is simply too great an analytical gap between the data and opinions proffered.'" Because the appellate court found that the expert testimony offered by plaintiff to prove exposure to diesel exhaust causes multiple myeloma to be unreliable, it held there was no evidence to support the jury verdict and it reversed the trial court's judgment and rendered judgment in favor of the railroad.

The appellate court's decision mirrored the points made in an amicus brief Atlantic Legal had filed on behalf of two Nobel Laureates (in Chemistry and in Medicine), the Director Emeritus of the National Center for Toxicological Research, the former Vice President for Epidemiology and Surveillance Research of the American Cancer Society, and 10 other prominent scientists in support of Missouri Pacific. The Foundation's brief argued that no reputable scientist had concluded or even asserted in any published article, monograph, study or textbook that diesel exhaust causes multiple myeloma, that the methodology used by the plaintiff's experts was not scientifically sound, that their opinions on general causation were not supported by scientific research, and that their opinions on specific causation were not supported by any scientifically sound data, theory, or methodology. We further argued that plaintiff did not satisfy his burden of meeting the general admissibility standard set forth in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) or the specific admissibility criteria set forth in Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), and that because plaintiff had adduced no admissible causation evidence, the judgment should be reversed.

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Georgia On Our Mind

Friends and supporters of the Atlantic Legal Foundation know of Atlantic Legal's longstanding commitment to promoting the use of sound science in the adjudicatory and regulatory processes. This is an ongoing battle and is being fought on multiple fronts.

On the Federal court level, Atlantic Legal has actively participated in the three key Supreme Court cases, Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Joiner, and Kumho Tire Company v. Carmichael, with Atlantic Legal's briefs being cited with approval in Daubert and Kumho Tire, an indication that our participation had a constructive impact in these important cases. The effect of those cases, to quote Henry Sorett in his important survey (Henry Sorett, "Junk Science in the States: The Battle Lines", 2 Atlantic Legal Foundation Science in the Courtroom Review, p.29) was to establish that, "…in the Federal Courts, expert testimony must be valid, reliable and relevant before it can be presented to juries and requires that trial judges act as gatekeepers to prevent junk expertise - the opposite or absence of knowledge - from being presented to juries." Sorett continues, "[t]he same battle which led to the Federal Daubert-Joiner-Kumho rules is being fought out in the state courts, often with widely divergent results in different states. Because the vast majority of tort, product liability and criminal cases are tried in state courts, the resolution of this battle in the trenches -state by state - will determine whether trials in the state courts will result in judgments which are truly verdicts." id.

The battle lines right now are drawn in Georgia, where Atlantic Legal has filed an amicus brief in Orkin Exterminating v. Carder in support of Orkin in the Supreme Court of Georgia which will determine "[w]hat standards or factors should govern the admissibility of expert scientific evidence in Georgia."

These are the facts: Edward Carder was employed by a company that retained Orkin to perform exterminating services at its offices. Orkin treated Carder's work area in July 1988. Carder alleged that months later, on November 4, 1989, he suddenly broke out with a rash as he was jogging. He also allegedly began to experience intense foot and joint pain, in addition to cold sensitivity. Over the course of the next two years, Carder consulted numerous physicians. Two specialists diagnosed Carder's condition as "probable" Sweet's Syndrome. Carder's condition improved upon taking a steroid treatment.

Despite the dermatologists' diagnoses of "probable" Sweet's Syndrome, Carder believed that pesticides were the cause of his ailments. Carder then consulted Dr. Howard Frumkin, an occupational and environmental health physician at the Rollins School of Public Health at Emory University. Dr. Frumkin created an experiment to attempt to connect pesticides with Carder's symptoms. Dr. Frumkin did not use standard tests generally used when pesticide poisoning is suspected because, as he testified, Carder "had none of the symptoms of typical poisoning." Dr. Frumkin developed his own, new and experimental test, which consisted of a series of six uncontrolled exposures of Carder to either a mixture of pesticides or a placebo. Dr. Frumkin admitted his test lacked many components that have been recognized by scientists and courts as indicia of scientific validity and reliability.

Orkin's experts testified in detail about the well-documented symptoms that are known to be linked to pesticide exposure, none of which was reported by Carder. One of Orkin's experts identified a variety of factors that rendered Dr. Frumkin's test unreliable.

This crucial case provides the Georgia Supreme Court with the opportunity to clarify for trial and appellate courts that Georgia's standard for the admissibility of expert evidence is the same standard being applied in the federal courts under Daubert and its progeny, and that factors set out by both Georgia and federal courts are applicable in determining whether proffered expert evidence is admissible.

Unfortunately, in a perplexing decision issued in September 2003, the Georgia Supreme Court—which earlier had granted certiorari—dismissed the writ as having been "improvidently granted." Two of the justices who had earlier voted to grant certiorari changed their minds—without explanation—leading to the 4-3 vote to dismiss.

In Orkin Atlantic Legal represented thirteen distinguished scientists, including a Nobel Laureate in Chemistry.

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Burma Sanctions Case - Massachusetts Tries to Set Foreign Policy
In June, 2000, the United States Supreme Court decided Crosby v. The National Foreign Trade Council, invalidating a Massachusetts law that barred state agencies from doing business with any firm that had commercial dealings with entities in Myanmar (formerly known as Burma). The Court affirmed the First Circuit Court of Appeals' decision on all major issues: federal pre-emption, the plenary foreign affairs power and the foreign commerce power of the Federal Government.

Partnering with the Washington law firm Wilmer, Cutler & Pickering, Atlantic Legal submitted an amicus brief on behalf of former President Gerald Ford and approximately thirty former senior executive branch foreign affairs officials, including former Secretaries of State, Defense, Treasury, Commerce, former Attorneys General as well as U.S. Trade representatives, National Security Advisors and White House Chiefs of Staff.

Atlantic Legal's brief focused on the plenary foreign affairs power of the federal government, and argued that not only did the United States Constitution and Supreme Court precedent assign exclusive jurisdiction over foreign affairs to the federal government, but that, speaking from their vast experience in making and implementing foreign policy, Atlantic Legal's amici believe that as a practical matter it would be inefficient and dangerous to permit the 50 states and thousands of local governments to engage in making foreign policy decisions.

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Science and the Law - Expert Testimony Scrutinized
Atlantic Legal is proud of the prominent scientists who are members of its Advisory Council. Their special perspective lead Atlantic Legal to file an amicus brief on behalf of 18 noted scientists, including six Nobel laureates, in the United States Supreme Court in connection with Daubert v. Merrell Dow Pharmaceuticals, a landmark case involving the standards that trial courts should apply with respect to the admissibility of scientific evidence. Atlantic Legal's brief was the first one cited to and quoted from in the Supreme Court's opinion.

Atlantic Legal's success in Daubert led to a continuing, active participation in science/expert testimony cases, reflecting Atlantic Legal's strong belief in opposing "junk science" and other spurious "expert" testimony - with the goal of maintaining the integrity of the judicial process, which too often is abused by the award of outrageous damages and contingent fee recoveries.

Atlantic Legal next submitted an amicus brief on behalf of a number of distinguished scientists in Joiner v. General Electric which was relied upon by the Supreme Court in holding that the plaintiff's scientific testimony was unreliable. These efforts were followed by filings in the U.S. Court of Appeals for the Fifth Circuit and in the Supreme Court of Oregon.

In 1999 and 2000, Atlantic Legal expanded its work in the "science and the law" arena, building on the reputation acquired as a result of work in Daubert and Joiner and the other cases.

In March, 1999, the Supreme Court held in Kumho Tire Co. that a trial court's obligation to ensure that only relevant and reliable expert testimony is admitted into evidence is not limited to "scientific" testimony. Atlantic Legal submitted an amicus brief on behalf of 10 engineers and scientists, including a professor at the Harvard School of Public Health who has specialized in automobile safety, an engineer whose expertise is in testing of automobile and aircraft tires and two former presidents of the American Society of Mechanical Engineers.

Kumho extends the holding of Daubert and expands the "gatekeeping" role of trial judges beyond expert testimony in fields of "classical" or "Newtonian" science to other types of expert testimony.

As in Daubert, the Court cited Atlantic Legal's brief and also cited a monograph by its lead client in its opinion.

The Kumho case potentially has a broader impact than Daubert, because the Court's decision could result in the exclusion from consideration by juries of proposed testimony of scores of expert witnesses, previously admissible and leading to outlandish jury awards.

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Electromagnetic Field Issues - Plaintiffs' Bar Retreats
In the past few years, Atlantic Legal has worked to ensure that expert testimony in electromagnetic field litigation (and in other tort cases) is sound and reliable.

As a result of several decisions of appellate courts in California and New York, in cases in which Atlantic Legal filed amicus briefs on behalf of prominent scientists, it appeared that the plaintiffs' bar had been deterred from bringing new EMF cases.

After the court decisions in New York, California and elsewhere, in October, 1998, the National Institute for Environmental Health and Safety (NIEHS) issued for public comment a draft report by its EMF Working Group, which concluded that powerline EMF is a "possible" carcinogen. There was concern in the scientific community that this conclusion might give new impetus to the plaintiffs' bar to pursue this issue.

Atlantic Legal submitted extensive comments challenging several of the basic methods and conclusions of the NIEHS Working Group. The Final Report was markedly more moderate and tempered than the Working Group draft, and dealt satisfactorily with almost all of the critical comments and suggestions made by Atlantic Legal and others.

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Canavan v. Brigham and Women's Hospital - Causation Held Key
In March, 2000 Atlantic Legal filed an amicus brief in a case involving application of the Daubert-Joiner-Kumho principles in a state court in Massachusetts. A surgical nurse claimed to have developed "Multiple Chemical Sensitivity" syndrome as a result of exposure to various chemicals. The issue was whether her physician should have been allowed to testify as to the causation of her condition.

Atlantic Legal represented 15 distinguished scientists, including Nobel Laureate James Watson (the co-discoverer of DNA), a Nobel Laureate in Chemistry, the Chairman of the Department of Epidemiology at Yale Medical School, the Director of the Environmental Medical Service at the Massachusetts Institute of Technology, and the editor-in-chief of the New England Journal of Medicine. Atlantic Legal argued that "Multiple Chemical Sensitivity" syndrome is not a recognized disease, and that the plaintiff's "expert" had not conducted the requisite epidemiological studies, nor were there any in the medical literature, which would support an attribution of causation of plaintiff's symptoms to any exposure to substances in the hospital.

The Supreme Judicial Court found for the defendant hospital, relying in large part on the arguments made in Atlantic Legal's brief.

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Private Fuel Storage - Disposal of Spent Nuclear Fuel Rods
Atlantic Legal continues to monitor developments in a Nuclear Regulatory Commission administrative licensing proceeding for a temporary storage facility on the Goshute Tribe Reservation in a remote part of Utah for spent nuclear fuel rods.

Atlantic Legal represents a coalition of several pre-eminent scientists (the Scientists for Secure Waste Storage), including two former Commissioners of the Atomic Energy Commission. Atlantic Legal advocates NRC approval of the storage facility on the grounds that nuclear energy is a safe and environmentally friendly source of electricity, that storage facilities for spent fuel rods are desperately needed, that the technology for safely storing the spent fuel rods is well-developed, and that the proposed location is geographically and geologically sound.

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New York City Watershed Issues
New York City, New York State and a number of upstate counties and towns entered into a Memorandum of Understanding (known as the "Watershed Agreement") with respect to New York City's jurisdiction over development in the upstate watershed area, in 1999.

New York City sought to avoid the costly requirement of building and operating EPA commanded filtration plants by exercising its long dormant authority under the state health law to regulate building and development in the watershed region.

New York City's potential power to severely limit development in upstate counties could deprive those counties of residential and commercial development and seriously curtail tax revenue needed by localities for education, public works and other services. The watershed communities, particularly those in Putnam County, are especially concerned that New York City has abused its extraterritorial prerogatives and will stifle and virtually end development to achieve the goal of clean water for New York City to the detriment and cost of upstate taxpayers.

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