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Washington Supreme Court Forges New Path in Combating Implicit Racial Bias: Risks and Opportunities for Civil Defendants

May 2023  • Joseph Hogan, Scheer.Law PLLC

How can courts address racial bias when that bias is unintentional?  A white woman causes a car accident.  A Black woman is injured and sues.  The defendant admits liability but makes no offer to compensate the plaintiff before trial.  Her attorney argues the plaintiff’s lay witnesses were coached; her chiropractor is biased; and the plaintiff is financially motivated.  The plaintiff asks for $3,500,000.  The jury awards $10,000.  Did racial bias, implicit or express, affect the verdict?  If so, what should be done about it? 

In the groundbreaking opinion in Henderson v. Thompson, the Washington Supreme Court charted a new course in examining implicit bias in civil cases.  The Court outlined a new procedure for considering when to declare a mistrial due to implicit bias.  Under the new ruling, the trial court must decide whether an “objective observer” could view race as a factor in the verdict.  The objective observer is one “who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State.”  If a proponent of a new trial makes a prima facia showing, a hearing must be held.  The party seeking to preserve the verdict bears the burden to prove that race was not a factor.  If it cannot, a new trial must be held.  In the case of Henderson v. Thompson, a majority of the Court determined a prima facia case was met.

The ruling drew praise; but also concern.  The Court has been on a campaign to eradicate implicit bias.  But the aspects of the defense that were identified as calling for implicit bias are typical for many civil cases.  The Plaintiff was described as “combative” under cross examination.  The defense counsel highlighted the Plaintiff’s financial motive.  Lay witnesses were described as having bias.  Seasoned civil attorneys may be scratching their heads why these common arguments create grounds for a new trial.

The application of the new ruling is yet to be seen, but nothing limits its use to plaintiffs.  Close observers are keen to see what deference trial courts are given.  What is clear is that there is a new battlefield for overturning unfavorable verdicts—both for plaintiffs and defendants.  To be ready for that battlefield, civil attorneys must be or become familiar with the history and literature surrounding implicit bias.  Strong advocates should prepare such motions in any civil case regardless of the race of their client.  Attorneys should consider addressing racial bias throughout trial to Henderson-proof a favorable verdict.

Will other states follow Washington’s lead?  Only time will tell.  But savvy litigators in states with liberal supreme courts should consider making similar arguments.  And attorneys and claims professionals everywhere can look to Washington State to see what the future might hold for efforts to eradicate implicit bias.

The slip opinion in Henderson v. Thompson, No,. 97672-4 (Oct. 20, 2022) can be found here.

 

Finding More Time to Perfect Removal to Federal Court

Source: May 2023 • Willcox Savage

Even practitioners well-accustomed to federal practice often overlook the critical rule regarding the deadline for removal when a defendant has been served through a statutory agent, an agent appointed to receive process by operation of law, such as a state insurance commissioner or secretary of state. Most courts have held that the thirty-day window for removal in such a situation does not begin to run until the defendant has received the complaint. Thus, service on a statutory agent alone does not trigger the countdown to remove. Keeping the majority rule in mind when considering whether a case is removable may provide the extra time needed to remove a case that, at first glance, appeared destined to remain in state court.

An (All-Too-Common) Scenario

Frequently, defense counsel for an out-of-state defendant receives the case well after the statutory agent has been served with process. Especially in product liability cases involving multiple defendants, determining the citizenship of each defendant can take time. For example, it may not be immediately apparent what entities or people are members of a co-defendant LLC.  Given the delay between when many statutory agents, such as secretaries of state, receive process and when they transmit it to the defendant, the majority rule may provide the additional time needed to ascertain the citizenship of each defendant. Measuring the period for removal from the date when your client actually received the complaint may add the critical few days needed to pull together the loose ends that otherwise would prevent timely removal, if service on the statutory agent was the benchmark for calculating the removal period.

“Receipt by the Defendant” Through Service on a Statutory Agent

Title 28 of the United States Code establishes a thirty-day period for removal. The removal statute provides:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1) (emphases added). Accordingly, “receipt by the defendant” of the complaint, through service of process, triggers the beginning of the thirty-day period in which the defendant can remove the action. In most cases, the application of this rule is straightforward, because the plaintiff obtains service of process on the defendant through its registered agent. 

When the plaintiff serves a defendant’s statutory agent, the analysis becomes more complicated. Statutory agents are agents appointed by operation of law to accept process for a defendant. Though the defendant does not select it, as it would a registered agent, by statute, the agent—often a government entity—is deemed to be the defendant’s agent for the purposes of accepting service. If the plaintiff serves a statutory agent, in one sense, the defendant has received a copy of the complaint through its agent. After all, generally, a corporation is in “receipt” of the complaint when an agent authorized to receive service of process on behalf of the corporation has received same. In cases involving a statutory agent, the entity that receives service has—by statute—been deemed authorized to accept service of process on behalf of the corporation. But if the entity that received service only is the defendant’s agent by operation of a statute, can it truly be said that the defendant is in “receipt” of the complaint?

A few courts have answered that question in the affirmative and concluded that service of process on a statutory agent constitutes “receipt by the defendant” of the complaint, beginning the thirty-day period for the defendant to remove. For example, a Kansas district court has held that service on the Kansas state insurance commissioner qualified as “receipt by the defendant,” because a statute mandated that service on the commissioner “constitute[d] service upon an insurance company’s registered agent.” Ortiz v. Biscanin, 190 F. Supp. 2d 1237, 1242 (D. Kan. 2002). In a similar case out of the Middle District of Florida, the court found that, without a “definitive interpretation” of the portion of the removal statute regarding receipt of the complaint, the removal statute was ambiguous. Masters v. Nationwide Mut. Fire Ins. Co., 858 F. Supp. 1184, 1189 (M.D. Fla. 1994). Based on such ambiguity, in light of the rule that the removal statute must be strictly construed against removal, the court found that service on the Florida Insurance Commissioner was “receipt by the defendant” of the complaint because, under Florida law, the Commissioner was deemed to be an agent of the insurance company for the purposes of receiving service.  Id. 

However, the vast majority of courts that have considered the issue have concluded that service on a statutory agent does not qualify as “receipt by the defendant”; instead, the time to remove begins to run when the defendant actually has received a copy of the complaint. District courts across the country have held that, for removal purposes, a statutory agent is not a true agent of the defendant, such that a defendant is in “receipt” of the complaint when same is served on the statutory agent. See, e.g., White v. Lively, 304 F. Supp. 2d 829, 831 (W.D. Va. 2004). Under the majority rule, the period for removal does not begin to run until the defendant actually has received a copy of the complaint.  These courts have recognized that the intent of the thirty-day period is “to ensure that defendants know that they are the subject of a suit [] as well as the basis for the suit before the removal period begins.” Tucci v. Harford Fin. Servs. Grp., Inc., 600 F. Supp. 2d 630, 634 (D.N.J. 2009) (emphasis in original). Because a defendant must be able to review the complaint before it can evaluate whether it can (and should) remove the case, it follows that the removal period should be calculated based on when the defendant has received the complaint, rather than when the plaintiff has served it on the statutory agent. After all, allowing service on a statutory agent to trigger the running of the removal period effectively would shorten the period of time in which a defendant could remove, even though the defendant cannot review the complaint until it has received same from the statutory agent. 

The minority rule also would force the defendant to “depend upon the rapidity and accuracy with which statutory agents inform their principals of the commencement of litigation against them.” Calderon v. Pathmark Stores, Inc., 101 F. Supp. 2d 246, 247 (S.D.N.Y. 2000) (quoting Cygielman v. Cunard Line Ltd., 890 F. Supp. 305 (S.D.N.Y. 1995)). If the statutory agent has a serious enough backlog, the thirty-day period for removal might elapse even before the statutory agent has transmitted the complaint to the defendant. In other words, under the minority rule, a defendant might never have the opportunity to remove the case, because the statutory agent’s delay will prevent it from even learning of the complaint within the thirty-day period, much less filing a notice of removal. 

Given those problems with measuring the period for removal from the date of service on the statutory agent, rather than when a defendant actually has received the complaint, it is perhaps unsurprising that the two circuit courts of appeal to consider the question have rejected the former rule and embraced the latter. See Elliott v. Am. States Ins. Co., 883 F.3d 384, 394 (4th Cir. 2018) (“[W]e now hold that service on a statutory agent is not service on the defendant within the meaning of § 1446(b)(1).”); Anderson v. State Farm Mut. Auto. Ins. Co., 917 F.1126, (9th Cir. 2019) (“We join the Fourth Circuit and hold that the thirty-day removal clock under 28 U.S. § 1446(b)(1) does not begin upon service on and receipt by a statutorily designated agent, and begin in this case only when [defendant] actually received [plaintiffs’] complaint.”); see also Gordon v. Hartford Fire Ins. Co., 105 F. App’x 476, 480 (4th Cir. 2004) (unpublished) (per curiam). “These holdings reflect what ‘appears to be settled law’ nationwide ‘that the time for removal begins to run only when the defendant or someone who is the defendant’s agent-infact receives the notice via service.’” Sara v. Talcott Resolution Life Ins. Co., No. 21-CV-3094, at *6 (S.D.N.Y Jan. 3, 2022) (citing 14C Charles Alan Wright et al., Federal Practice & Procedure § 3731 (Rev. 4th ed. 2021 update)).

As an important caveat, even under the majority approach, courts have distinguished between service on a statutory agent and service on a registered agent. When a defendant has specifically designated an agent to receive process on its behalf, as opposed to having one appointed for it by operation of law, service of process on the designated agent triggers the removal period, even if the defendant does not receive, from the agent, a copy of the complaint until a later time. See, e.g.Val Energy, Inc. v. Ring Energy, Inc., No. 14-1327-RDR, 2014 WL 5510976, at *2 (D. Kan. Oct. 31, 2014) (unpublished). Courts distinguish service on a registered agent from service on a statutory agent because of the greater degree of control exercised over a registered agent. See, e.g., Hardy v. Square D Co., 199 F. Supp. 2d 676, 683-84 (N.D. Ohio 2002). Because a defendant itself selects a registered agent, the registered agent likely will be more accountable to the defendant for promptly notifying it of service and forwarding process than a statutory agent. Id. Accordingly, the receipt rule applicable to service on a statutory agent does not apply to service on a registered agent, and the time period for removal begins to run when process is served on the registered agent.

Conclusion

When an initial assessment suggests that the deadline for removal may already have passed, defense counsel should not overlook the possibility of additional time to remove following service on a statutory agent. Remembering the “receipt by the defendant” rule can be the difference between an unfavorable state-court venue and removal to federal court when a defendant has been served through a statutory agent. 

 

Matthew Vitucci Obtains Defendant's Verdict in Brooklyn Trial

May 2023 • Source: Gallo Vitucci Klar

On May 8, 2023, a Brooklyn jury returned a defense verdict following a one-week trial handled by Matthew Vitucci. The trial involved the claim by Plaintiff, Ausencio Aguirre Martinez, that he slipped and fell from a defectively constructed and inadequately maintained service entry stairway located between the lobby and basement of a building located 1056 5th Avenue, in Manhattan.

At trial, counsel for Plaintiff presented testimony, photographs and video of the incident which showed that Plaintiff, an appliance deliveryman, attempted to deliver, by himself, a 450-pound washing machine down the 22 service entry steps. He lost his balance and fell from the midpoint of the staircase.

Plaintiff claimed to have sustained various and severe injuries from the fall including a fracture dislocation of the right shoulder and lumbar herniations.

Plaintiff claimed that his fall was occasioned by a buildup of water on the steps; he claimed that melting snow from a storm, days earlier, led to melting and that wetness on the sidewalks surrounding the building was tracked into the service area stairway leading to a hazardous condition. Plaintiff alleged that the Defendants failed to inspect, clean, or maintain the steps. It was the further claim of plaintiff that the subject stairway contained treads of non-uniform height which contributed to the fall.

On cross examination, it was highlighted that plaintiff worked with a partner who was available to assist with the delivery of the washing machine. The co-worker admitted on the stand that plaintiffs taking a heavy piece of equipment down the stairway by himself was dangerous given the number of stairs.

Plaintiff produced an expert to opine on the various allegations presented; the expert's testimony was limited following a successful challenge via various motions in limine which pointed out that the expert's conclusions were not supported by any applicable building codes.

Following closing arguments, the jury returned a verdict for the defense after brief deliberations.

 

Rimkus Transportation Forensic Services
Industry-leading Expertise

May 2023 • Source: Rimkus

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The “right tools for the job” are paramount, and Rimkus has a vast array of tools in their toolbox.

Strategically located offices and experts across the country allow the Rimkus team to respond quickly to accident scenes. Rapid response to the scene is vital, as vehicles may be moved and roadway evidence can disappear or be impacted by weather, further complicating the reconstruction process.

Rimkus consultants can document site conditions, examine vehicle damage characteristics, inspect mechanical/electrical systems, and preserve hard evidence. Their experts can analyze the specifics, such as speed and direction of the vehicles, force of impact, skid-mark lengths, line-of-sight, road conditions, traffic controls, and other pertinent data, to determine the facts of the case.

Learn More About Rimkus Transportation Services

About Rimkus

Rimkus is a worldwide provider of engineering and technical consulting to corporations, insurance companies, law firms, and government agencies. 

Our experts specialize in forensic consulting, dispute resolution and construction management services, solutions for the built environment, and human factors support for the consumer, industrial, and healthcare industries. 

Since 1983, Rimkus professional engineers, architects, scientists, and technical specialists have been recognized for their commitment to service excellence by local, national, and international business communities.  

For more information, please visit www.rimkus.com or contact DeShaune Williams, VP Business Development, at 714-329-5639 or [email protected]

 

In Dealing with Field Failure of Plastic Building Products

May 2023 • Source: Jack Huang, Senior Scientist, and Andrew Schmit, Assistant Technical Director, Envista Forensics

Plastic is all around us. It’s in the clothes we wear, the electronic devices we use, the vehicles we drive, and even the concrete we walk on. Given the abundance of use, it shouldn’t be surprising that plastics are also used in building products, including pipes and fittings used for potable and processed water.

When it comes to the failure of plastic components, especially those carrying water, the resultant damages require the need to identify the exact cause of the failure as the root of the failure will be critical to multiple parties, e.g., the building owner, insurance companies, the manufacturer, and the installer. In any of these cases, there are a number of potential causes that must be considered.

First of all, the material choice likely comes to mind as the most intuitive suspect for the source of the problem. Subsequently if informed that a failed product is made with plastics, the idea of plastics being a lower quality substitute to their metallic counterparts is a common misconception held by the non-technical public, including juries.  The fact is, contrary to conventional wisdom, plastics can and might be the right/best candidate for many engineering applications.  After all, plastics far outperform metal in a variety of harsh service environments. They are also more lightweight and can be easily manufactured into highly complicated geometries.

Plastics, or technically polymers, are conglomerates of organic chains consisting of large numbers of repeating hydrocarbon subunits; imagine long chains made with ball-and-socket links.  Therefore, understandably, the chemical makeup of the subunits (choice of ball-and-socket links), the number of repeating units (length of chain), and the way the chains are packed together (random or ordered) will all influence the observable properties of the resultant polymer chain conglomerates, e.g., mechanical strength, chemical resistance, processing ease, etc.  The continued trend of increased use of plastics in many engineering and structural applications is the result of availability of many choices of the repeating unit (versatility) and the abundance of hydrocarbons from petroleum refinery process for raw materials (cost). 

To elucidate the richness of plastics and its utility, here are some of the most frequently utilized plastics in building products:

PEX

PEX stands for cross-linked polyethylene.  Polyethylene is the simplest hydrocarbon available and consists of just carbon and hydrogen atoms.  It is flexible and is normally used for articles such as grocery bags.  When cross-links are introduced into the structure, it is equivalent to introducing cross-stitches between straight yarns, and the restriction in movements makes PEX both structurally stronger and more chemically resistant.  Over the past two decades, PEX has gained tremendous popularity as a residential water supply piping material. However, the increased use has not come without downsides.  When PEX is used in aggressive environments, like supply lines for chlorinated water, negatively charged chloride ions act as an oxidizing agent and can cause degradation of the PE polymer chains.  To extend their life, PEX pipes require the addition of antioxidants to help stabilize the PEX material.  Continuous exposure to chlorinated water will ultimately lead to degradation of the PEX supply lines until eventual rupture. 

PVC/CPVC

PVC/CPVC are the chlorinated version of PE, meaning chlorine atoms are now incorporated onto the main carbon chains to replace some of the hydrogen atoms.  With the addition of chlorine atoms on the main chain, it adds stability to the polymer chain due to the extra electrons that chlorine atoms carry.  Additionally, the chlorine atoms surrounding the carbon main chains are larger atoms than the hydrogen atoms and therefore offer better protection of the chains from attack.  This makes PVC and CPVC excellent choices for sanitary sewer applications and water supply piping, whether buried or above ground.  However, in some service environments, problems still do occur.  

PVC/CPVC is generally not recommended for use with most solvents (soluble or insoluble) including ketones, ethers, furans, esters, alcohols, and aromatics.  The solvents can be absorbed into the CPVC substrate and lead to softening of the CPVC pipe.  Cases of CPVC pipes used for fire suppression systems have been reported to fail due to accidental contact with drywall sealant or an anti-freeze agent that contains esters.  Polyolester (POE) oils are another contaminant that can result in the degradation of CPVC pipe.  While POE oils are not a typical constituent of domestic water supplies, remnants of the oil can sometimes be found within iron pipes or heat exchangers.  It has been observed that, even at low levels, POE oil can lead to progressive cracking failures within CPVC pipes (Photograph 1).

Photograph 1: Interior cracking on CPVC joint exposed to POE oil

POM

Polyoxymethylene (POM), also known as acetal, polyacetal, and polyformaldehyde, is an engineering thermoplastic due to its high crystallinity.  It is therefore commonly used in precision parts requiring high stiffness, low friction, and excellent dimensional stability, such as supply line nuts and complexly shaped fittings.  However, acetal resins are sensitive to acid hydrolysis and oxidation agents such as mineral acid and chlorine.  Low levels of chlorine in potable water supplies (1–3 ppm) can be sufficient to cause environmental stress cracking, a problem experienced in both domestic and commercial water supply systems.  Refrigerator filters, pipe/tube connectors, and faucet components are also common POM parts that have exhibited ESC due to exposure to chlorinated water.

TPE

Thermoplastic elastomers (TPE), sometimes referred to as thermoplastic rubbers, are a class of copolymers or a physical mix of polymers that consist of materials with both thermoplastic and elastomeric properties.  While most elastomers are thermosets (plastics that don’t soften upon heating) and can’t be processed by injection molding, thermoplastic elastomers are relatively easy to manufacture by injection molding and other thermal processing techniques.  TPE thus shows advantages typical of both rubbery materials and plastic materials and is frequently used where conventional elastomers cannot provide the range of physical properties needed in the product.  Flexible thin-walled tubing and rubber roofing material are a couple of examples.

Field Failure Analysis of Plastics

Now that you have some introduction to commonly used plastic materials for building products under the belt, let’s look at how a field failure is approached next.  In the world of failure analysis, when it comes to component failure, regardless of the material, metallic or non-metallic, four relevant factors are to be considered before any verdict can be derived, i.e., material selection, part design, manufacturing processes, and installation errors.

Material selection is without a doubt the number one task when it comes to developing any commercial products.  On top of structural integrity requirements, application environment (likelihood of exposure to detrimental chemicals or not), expected life span, and overall cost target are the first level of considerations that will help define the probable material candidates.  However, it is not unusual to see cases where cost target overrides the structural integrity and application environment requirements.  Certainly, a landmine to watch out for when dealing with field failure cases.

Once the proper material is selected, then comes the part design.  Achieving desired structural integrity in a component requires not only inherent material strength but also structural stiffness, which is geometry dependent like wall thickness.  On top of wall thickness, sharp corners can cause stress concentration and lead to failure at lower than target nominal applied stress.  Consequently, proper radiuses to avoid sharp corners and proper bottom thread design for effective thread engagement are some of the seemingly trivial yet critical factors to look out for in a failed part.

After proper selection of material and appropriate design considerations, plastic parts then get fabricated commonly via injection molding (with 3D geometry) or extrusion (tubing).  Not surprisingly, proper fabrication process parameters will also impact the quality and end performance of the components.

Some of the critical processing parameters for injection molding are adequate raw material drying, molding temperatures, injection speed, mold design for efficient material flow path and mold cavity air venting, and lastly cooling speed to minimize residual stress.  For extrusion, temperatures for different process zones, proper screw elements configuration for material to be processed, and extrusion speed are some of the important parameters to pay attention to.  Localized stress concentration due to air entrapment associated with inadequate raw material drying and/or poor injection mold cavity air venting are regular issues encountered in injection molding.  For extrusion, premature material degradation frequently happens due to improper processing temperatures and/or excessive mechanical shearing imposed on the material by incorrect configuration of the screw elements.  Therefore, signs of air bubbles, localized defects, and lower than projected material properties are always something to keep in mind when processing mistakes are suspected.

Lastly, even if everything associated with producing the parts has been handled correctly, installation errors could wipe out all the good efforts leading up to the final step of the project.  Overtightening (over-torquing) is the most common mistake encountered in field failure of plastic parts.  Installers who are accustomed to installing metal fittings have the tendency to apply the same rules in connecting plastic fittings, especially if the installation involves a male metal component threaded into a plastic female component.  Failure at thread bases of the plastic components is the most observed field occurrence.  Another installation error involves accidental unintended exposure of plastic parts to detrimental chemicals.  CPVC pipes coming into contact with anti-freeze agent containing polyester or POE oil from heat exchangers are good examples of this category.

So, it is always good practice to consider the four factors before rendering any conclusion.  But, sometimes, even after taking into account all of the factors, exceptions can still occur.  One good example entails PEX water supply pipes.  ASTM (American Society for Testing and Materials) Standard F876 establishes the performance requirements for PEX pipes.  PEX manufacturers whose products pass the F876 requirements normally warranty their products for at least 25 years of field life.  Yet, periodic chlorine spikes in potable water and local water quality could still lead to premature failure of the PEX supply lines.  Photograph 2 and Photograph 3 show a PEX pipe degrading over time in a chlorinated water environment.  One can see the initiation and propagation of longitudinal cracks due to environmental stress cracking.  The hydrostatic water pressure intermittently applied on the pipe, coupled with the chlorine attack, has then caused the inner surface to develop surface and through-thickness propagating longitudinal cracks on the pipe.  The sad reality is the pipe has been in the field for less than 10 years.

Photograph 2 - Longitudinal cracks on inner surface of PEX pipe

Photograph 3 – Opened longitudinal cracks 

Finally, to sum it all up, failures of building products, plastics or not, contribute to billions of dollars in losses every year.  Even though something like a failed pipe causing a water leak may seem like a simple investigation on the surface, the actual underlying cause of the failure may be complex and involve many contributing causal factors.  Therefore, it is important for you to have the right forensic experts on your team with the right testing capabilities to ensure an accurate investigation so you can understand and be able to cover all facets of the failure in your case.

 
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