Sand in My Shoe – CERTainly

Late last week, the California Court of Appeals reversed a dismissal on the pleadings in a claimed silicosis case. Uriarte v. Scott Sales Co., NO. B244257, California Ct. App. (2d Dist. Div. June 13, 2014)(certified for publication).

The defendants supplied silica sand to plaintiff’s employer for use as sandblasting media. Plaintiff, Mr. Francisco Uriarte, alleging that he developed lung fibrosis from sandblasting, sued the defendants.  Rather than defending on the ground of adequate warning, common knowledge, employer knowledge, plaintiff’s knowledge, and the like, defendants moved to dismiss on the pleadings on the grounds of the component parts doctrine, by which a “manufacturer of a component part is not liable for injuries caused by the finished product into which the component has been incorporated unless the component itself was defective and caused harm.” Id.  The California Court of Appeals reversed, and held that the component parts doctrine does not apply.  Fairly predictable, and probably correct to leave the defendants to their important, substantive defenses.

The appeal, however, is noteworthy for another reason, which received no comment from the California appellate court. The Council for Education and Research on Toxics (“CERT”), along with a list of physicians and scientists, filed an amicus brief in support of reversal. The individual amici[1] and CERT sought an opportunity to participate as

“a public benefit organization whose charitable purposes are education and research regarding toxic substances… . The other amici are all physicians. epidemiologists, scientists, and scholars of science and the history of science and public health.”

Amicus Brief for CERT at 1 (Oct. 10, 2013).  This participation is their right, but the amici avow that:

“None of the amici has any financial or other similar interest in the outcome of this lawsuit.”

Id. at 1.  This claim is not so clear. The Appendix to the Amicus Brief provides background on the individual amici. Although it may well be correct that none has a financial interest in the Uriarte case itself, most of the amici have been active as testifying expert witnesses, exclusively or nearly so for claimants, in cases just like the appeal.  The individual amici have been financially compensated for their witnessing. The brief fails to mention the amici’s advocacy roles, their testifying for remuneration, or their positional, political, and professional conflicts of interest.

The appearance of impropriety, however, is much greater than suffering the court system to have expert witnesses become advocates in disguise as neutral scientists, in a silicosis case. The CERT organization, one of the amici, is a non-profit California corporation, EIN: 42-1571530, founded in 2003, with a business address at:

401 E Ocean Blvd., Ste. 800, Long Beach, California 90802-4967,

and a telephone number: 

1-877-TOX-TORT

The person answering a telephone call to this number identified “The Metzger Law Group,” which makes CERT seem like the alter ego of The Metzger Law Group.

CERT’s mission statement? Furthering scientific understanding of toxins. But lawyer Ralph Metzger is noted as the contact person for CERT!  That is the same Ralphael Metzger, with the same Metzger Law Group, at the same Long Beach, California, address, who is the attorney for Mr. Uriarte in this case. Metzger apparently controls CERT, and he appears to be involved in CERT as a corporate officer.

Representing a party, and being a corporate officer in an amicus that attempts to influence an appellate court as a neutral entity, would seem to offend fundamental fairness in the appellate process.  In Uriarte, there was probably no harm, but surely the participation of amici in appellate proceedings needs to be policed more vigilantly.


[1] Richard W. Clapp*, Ronald Crystal, David A. Eastman*, Arthur L. Frank*, Robert J. Harrison*, Ronald Melnick*, Lee Newman, Stephen M. Rappaport*, Joseph Ross, and Janet Weiss*.  An asterisk indicates that the amicus was also an amicus in a brief filed by CERT, in the Milward case. SeeCERT” (July 9, 2013).

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