Wednesday, October 9, 2013

Eastman Ekes Out Equivocal Lawsuit Win, Judge Says Verdict Not Necessarily Based On Trial Evidence

Eastman Chemical company has been denied all damage claims against two small start-up companies it accused of a laundry list of violations including deceptive advertising. Eastman did win a symbolic victory from a Texas jury, but the presiding judge expressed his views that the jury verdict was not necessarily based on the evidence presented and that he could easily have returned a different verdict.

When George Bittner (University of Texas neurobiology professor) decided to go into the business of testing and marketing "safe" plastics there was no indication that he'd wind up dodging a million-dollar, howitzer-sized bullet lobbed at him by a $9 billion chemical company who didn't like being his target.

And Eastman Chemicals, who sued Bittner's companies -- CertiChem and PlastiPure -- probably didn't think it would have to eat almost $4 million in legal fees to gain a mostly phyrric victory for what they claimed was Bittner's bad science and over-the-top marketing.

But life's full of surprises and that's what they both got at the hands of a Texas jury of average citizens who were asked to try and make sense out of rules, lab tests and science that even the best of scientists cannot agree upon.

Indeed, while Eastman Chemical touts its court victory as proof that its star plastic -- Tritan -- is safe, the verdict was so equivocal that the federal trial judge stated on the record that given his choice, he might well have found against Eastman, and that the jury verdict was not necessarily supported by the evidence presented at the trial:

"The jury ultimately sided with Eastman, but was by no means required to do so based on the record at trial ...."

The battle shaped up as on between two market competitors: Eastman Chemical, New York Stock Exchange company with $9 billion in revenues, versus a couple of small-sister company start-ups.

When the battles heated up in 2008 over concerns and bans over BPA (Plastic-bottle scare is a boon for some) Eastman began promoting its Tritan product as the "safe" alternative. This, despite mounting evidence, that BPA is one of hundreds of endocrine disruptors -- most of which have not been tested.

Eastman did not like having the tables turned on it by Bittner and his upstart companies who conducted a National Institutes of Health-funded study indicating that Eastman's Tritan plastic was one of several in a study done by Bittner and coauthors they said leached a class of endocrine disruptors (EDCs) that -- like BPA -- exhibit estrogenic activity (Most Plastic Products Release Estrogenic Chemicals: A Potential Health Problem That Can Be Solved).

Thus began a legal battle -- not over the paper itself -- but over what Eastman termed "false advertising" claims made in CertiChem and PlastiPure promotional material.

After a long, bitter, tangled trial filled with secret testimony and sealed documents, a federal jury in Texas District Court held the opinion that CertiChem and PlastiPure went over the promotional line when -- according to Eastman's court filings -- Bittner's companies used their study data in an attempt to sell their plastics and testing services.

Sam Sparks, the gruff, no-nonsense District Court trial judge on the other hand, seemed skeptical of the jury's decision and denied Eastman's request for $3,458,859.40  million in lawyer's billings and $318,745.73 in expenses.

Instead, the judge required CertiChem and PlastiPure to pay $174,000 in court costs. A hefty amount, but far short of what the damage could have been.

Judges frequently do this when they think the losing party had a good case but was out-lawyered by the side who had the most money to throw at the case.


In his judicial order of August 30, the judge said:

"Although the jury heard from a dizzying number of experts and was subjected to hours upon hours of complex scientific testimony, often with little to no interpretive assistance from counsel, this case was ultimately nothing more than a battle of the experts in which the jury was properly tasked with crowning a victor. ... The classification of this case as a typical battle of the experts was confirmed at trial when the parties allowed every witness offered as an expert to testify as such without objection, despite the filing of a mountain of Daubert motions pre-trial."

"A different jury on a different day may have reached a different conclusion, but that does not diminish the validity of the jury's verdict in this case," he said.

And in his October 4 Order, the judge commented that,

"This was a case of highly speculative liability. The jurors were required to sift through complex scientific testimony and determine if particular statements made by Defendants were false or misleading. 

"Although the jury found those statements were "more likely than not" false and
misleading, the Court would have sustained the opposite finding without difficulty. 

"From the evidence presented at trial, reasonable jurors could have found either side's scientific testing to be flawed. The jury ultimately sided with Eastman, but was by no means required to do so based on the record at trial ....

"The evidence at trial consisted primarily of experts paid by each side testifying about the soundness of their own results and the weaknesses of their opponents' results. All of these experts testified without any objection to their qualifications to offer such scientific opinions. Truth is a legitimate defense to accusations of false advertising, and Defendants presented considerable evidence demonstrating their good faith basis for believing the statements they made were true."

Finally, the judge denied any claims for damages from Eastman because, 

"Eastman was unable to produce any evidence of actual damages at trial, such as lost sales, sufficient to support a non-speculative jury award. The only hard numbers Eastman could generate were the expenses it paid to an advertising agency to conduct "corrective advertising," but there was no evidence other than Eastman's say-so this advertising was necessary, corrective, or actually in response to actions taken by Defendants."

If anything, the trial demonstrated that non-scientific laypeople may not a suitable tribunal to sort through the highly complicated, technical and arcane science and still-emerging regulatory issues surrounding EDCs that are still controversial and being argued among governments, scientists, companies and universities"


The court battle may have been a small victory for Eastman's promotion, but not for Tritan as this piece explains: Eastman Wins; Jury Still Out on Plastic.

Indeed, other studies have shown that compounds with estrogenic activity do leach from Tritan. This study, "Migration of plasticisers from Tritan™ and polycarbonate bottles andtoxicological evaluation,"  stated that:

"Compounds identified in Tritan™ were 2-phenoxyethanol (2-PE), 4-nonylphenol (4-NP), bisphenol
A (BPA), benzylbuthyl phthalate (BBP) and dimethyl isophthalate (DMIP) at levels from 0.027 ± 0.002 to 0.961 ± 0.092 lg/kg, ..."

And while the author of that study has concluded that the levels measured would not be harmful, no solid standards have been established to make that a valid claim. Indeed, with multiple sources of EDCs, the total body burden may be unhealthy even if a single source dose may not be. (Environ Health Perspect 115(suppl 1):98–105 (2007). doi:10.1289/ehp.9357 available via [Online 8 June 2007])

Further, testing for Estrogenic Activity is only a start at looking at safety. Other hormones such as thyroid, Pituitary, adipose (Leptin etc) and even the new field of hormones issued by bones are all important biochemical messengers whose proper activity if vital for health.

By those measures, neither Tritan and its resins and monomers nor PlastiPure's can be said to be "safe" without further testing. And no government body has established a regulatory framework for that research.

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