California Appellate Court Narrowly Affirms Tuna Companies' Victory in Proposition 65 Case

On March 12, 2009, the California Court of Appeal, First Appellate District (Court of Appeal), affirmed a trial court victory for Tri-Union Seafoods, LLC, Del Monte Corporation, and Bumble Bee Seafoods, LLC (collectively, Tuna Companies) in The People ex rel. Edmund G. Brown, Jr. v. Tri-Union Seafoods, LLC, et al., A116792 (March 12, 2009). The Court of Appeal found that the State of California (State) was not entitled to any relief requested for the Tuna Companies’ failure to provide Proposition 65 (Prop 65) warnings on their tuna products.

The trial court had ruled that the State was not entitled to any relief based on three distinct and separate bases:

• Prop 65, as applied to the Tuna Companies, was preempted because it conflicts with federal law
• The amount of methylmercury in canned tuna does not rise to the threshold level that would trigger the warning requirement for the chemical
• Virtually all methylmercury is “naturally occurring,” and under the governing regulations does not count toward the threshold exposure

However, the Court of Appeal explicitly affirmed this judgment on the narrow ground that substantial evidence supported the trial court’s finding that methylmercury in tuna is naturally occurring, thereby removing the Tuna Companies from the reach of Prop 65. Also, the Court of Appeal notably clarified the reach of its opinion by explicitly providing that its judgment is “conclusive only as to the substantial evidence determination on the naturally occurring issue” and that notwithstanding its affirmance today that substantial evidence supported the trial court’s finding that methylmercury in tuna is naturally occurring, it is entirely possible that there are potential scenarios under which renewed Prop 65 claims against the Tuna Companies or similar companies could survive res judicata and collateral estoppel challenges.

Background
In 2004, the State sued the Tuna Companies for injunctive relief and penalties, asserting, among other things, violations of Prop 65 based on an allegation that the Tuna Companies distribute and sell canned tuna products in California without providing a clear and reasonable warning that the products contain methylmercury, a chemical known to the State to cause reproductive harm. The trial court found for the Tuna Companies, and the State appealed the trial court’s judgment. As stated above, the Court of Appeal limited its review to the issue of whether substantial evidence supported the trial court’s finding that methylmercury is naturally occurring in canned tuna.

The Court of Appeal summarized the facts relevant to the finding that methylmercury in tuna is naturally occurring by explaining the existence of methylmercury in the environment and summarizing the expert testimony that was presented on the issue at trial. The Court of Appeal then explained that at trial, the Tuna Companies had the burden to show by a preponderance of the evidence that methylmercury in canned tuna is naturally occurring, and that on appeal, it is bound to the highly deferential substantial evidence standards of review. It also explained that the substantial evidence rule also applied to expert and lay testimony, meaning that testimony itself must be based on substantial evidence.

The Court of Appeal’s Conclusion that There is Substantial Evidence to Support the Conclusion that Methylmercury in Tuna is Naturally Occurring
After reviewing the evidence that was presented at trial, the statement of decision, and the record, the Court of Appeal held that it “cannot say that there is no substantial evidence to support the trial court’s conclusion, under the preponderance of the evidence standard, that methylmercury in tuna is naturally occurring.” The Court of Appeal stated that the experts on both sides were credible, but that the trial court had sided with the Tuna Companies’ experts, and in explaining its reasoning, found them more credible and afforded their testimony greater weight than it afforded that of the State’s experts.

The Court of Appeal notably goes on to remark that “application of the substantial evidence rule to testimony and opinions of dueling experts serving under partisan commitments” bears contemplation and seems to suggest that court-appointed experts, subject to cross-examination by the parties (as provided for in California Evidence Code at the discretion of the trial judge), may have been more appropriate in the case.

Limitations of the Court’s Holding
In holding that the trial court’s conclusion was supported by substantial evidence, the Court of Appeal explicitly confines its ruling in several important ways. First, it explicitly confines its ruling to its conclusion that virtually all methylmercury is naturally occurring, and within that ruling, further confines its decision to the issue of whether the trial court’s ruling was supported by substantial evidence. The Court goes on to state that because its judgment is conclusive only as to the substantial evidence determination on the naturally occurring issue, the other grounds not considered are not conclusively established.

Second, the Court of Appeal notes that notwithstanding its affirmance that substantial evidence supported the trial court finding that methylmercury in tuna is naturally occurring, that there are “potential scenarios that could possibly lead to a renewed Proposition 65 claim against the Tuna Companies or similar companies that would survive res judicata and collateral estoppel challenges.” Examples provided by the Court of Appeal included a scenario in which the Office of Environmental Health Hazard Assessment (OEHHA) could amend the regulations to except the presence of methlymercury in canned tuna from the naturally occurring rules. A second potential scenario could exist where a determination of whether methlymercury in tuna is naturally occurring is lodged with OEHHA and its scientific advisors, “rather than [leaving it] to dueling expert witnesses in a trial court setting.” And finally, the Court of Appeal noted that a renewed Prop 65 claim could survive res judicata and collateral estoppel claims if and when scientific research on issues such as the source of methylmercury in the ocean evolves and changes. The Court of Appeal succinctly states that “a trial court determination on whether and/or to what extent methylmercury in tuna is naturally occurring is based on the state of the scientific inquiry at a given point in time” and points to the difference between “the quest for truth in the courtroom and the quest for truth in the laboratory.”

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If you have any questions about this alert or would like to discuss the topic further, please contact your Foley attorney or the following individuals:

S. Wayne Rosenbaum
San Diego, California
619.685.6413
[email protected]

Heidi K. Vonblum
San Diego, California
619.685.4637
[email protected]