Focus On; Public Interest Law Firms- Atlantic Legal Foundation : Defending the Rule of Law Interview


Edwin L. Lewis And Dirk Soutendijk


Pg. 26

Editor: Please tell us who you are and about your respective roles with the Foundation.

Lewis: I’ve been President of the Atlantic Legal Foundation now since January 1998. The Foundation was formed in 1976 and is a public interest law firm with its main office here in New York City. I came to the Foundation after being general counsel of a public company in Chicago and prior to that, general counsel of two of its subsidiaries for 14 years. Before that, I was Senior Attorney at Atlantic Richfield. So, I’ve had pretty broad contact with business and legal issues.

Soutendijk: I’m Vice President, General Counsel and Secretary of Union Camp Corporation. Our company was involved in the founding of the Foundation in 1976. Over the last twenty-two years we have been involved in literally everything that the Foundation has done. I’ve served on its Board of Directors from the beginning, and have been its Secretary for the past ten years. Because of the importance of its work, the Foundation has always gotten a fair share of Union Camp’s legal charitable budget.

Lewis: Dirk’s company, and companies like Dirk’s, have been very active and enthusiastic about supporting the Foundation because of our private enterprise mission and our opposition to unfair or unnecessarily burdensome government regulations.

Editor: Ned, what is the structure of the Foundation?

Lewis: The Foundation has a very active and involved Board of Directors. Our chairman, Dan Fisk, is Vice President, General Counsel and Secretary of Computer Sciences Corporation in El Segundo, California. The Board includes the General Counsels of Pfizer, DuPont, Bethlehem Steel, Eastman Kodak, Becton Dickinson, Rockwell International and others. George Frazza, the former General Counsel of Johnson & Johnson, is also on the Board. So is Ernest Hueter, President of the National Legal Center for the Public Interest in Washington, DC, as well as Steve Harmelin, managing partner of Dilworth Paxon, in Philadelphia, and Chuck Work, head of litigation at McDermott, Will and Emory in Washington, D.C. We are also guided by an Advisory Council which is made up of a cross section of the business, legal, science and academic communities. The science segment of our advisory council is led by Professor Richard Wilson, Mallinckrodt Professor of Physics at Harvard, and our New York area science members include Rodney Nichols, President of the New York Academy of Science, and Fred Seitz, President Emeritus of Rockefeller University. The Foundation itself is a 501(c)3 organization supported by contributions from individuals, corporations and foundations.

Editor: Your name "Atlantic Legal Foundation" seems to imply that your activities are pretty much limited to the east coast.

Lewis: We are not limited geographically. Our Chairman, Dan Fisk, and Bill Calise, general counsel of Rockwell International, are both based in California and the issues we address often have nationwide importance. We have offices in New York City and Harrisburg, PA. Editor: How large is your staff?

Lewis: Our core staff is basically four people. We have a general counsel, Marty Kaufman. Marty is a Columbia Law graduate and former partner of a major law firm in New York City and has been with the Foundation for approximately twelve years. He is an expert litigator and appellate brief writer with a tremendous depth of experience. Doug Foster, our retired president, also assists us from time to time on major litigation projects. Rosemary Heckard is our vice president – administration and is headquartered in Harrisburg, PA. We get additional help from interns; we had a second year law student from Harvard Law School last summer. Law firms provide pro bono assistance. We’re always looking for good interns and pro bono help.

Editor: Ned, what are some of the important things that the Foundation does?

Lewis: Our mission, broadly stated, is to advocate traditional American values in the courts. To be specific, we support the principles of private enterprise and individual rights. We conduct first chair litigation on behalf of individual clients, corporate clients, trade associations, elected officials and commerce groups. We also have very vigorous program of filing amicus curiae briefs in the various appellate courts. We challenge unconstitutional government regulations at the federal, state and local level. A major recent thrust of the Foundation has been our strong opposition to the admissibility of junk science evidence and, what we’ve termed, "bad medicine." By junk science I mean poorly reasoned scientific, medical or other technical testimony. Our advocacy in this area makes us unique among public interest law firms. We’ve built a good relationship with approximately 30 preeminent scientists including several Nobel Laureates. Their main concern is to make sure that scientific and other technical testimony is well reasoned and sound. We represented several scientists in the seminal Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals which established the federal trial judge as gatekeeper to make sure that scientific testimony is reliable and relevant and enforced the application of Rule 702 of the Federal Rules of Evidence. We also filed amicus briefs in two other Supreme Court cases on this issue G.E. v. Joiner and Kumho Tire v. Carmichael. These cases form what I call the "Daubert Trilogy."

Editor: Dirk, did you want to comment on the work of the Foundation, looking at it from the standpoint of general counsel of a large corporation?

Soutendijk: Al, junk science is clearly an important issue for Corporate America. My company has been involved in environmental and patent litigation where a plaintiff’s attorney who gets some bad science on his side could unfairly prevail before a jury. Also, we are very concerned about the impact of excessive punitive damages and class action settlements or judgments. The mere possibility of such awards has led to increases in insurance costs and introduced a major element of uncertainty into business planning. Sometimes the attack by the trial lawyers is on fundamental principles of corporate law. In the Best Foods case, for example, the superfund hierarchy sought to avoid traditional "piercing the corporate veil" tests and impose liability on a parent company even though the subsidiary responsible for the cleanup had been sold, was free standing and had observed all corporate formalities. Cases in areas such as these are typical of the cases in which the Foundation gets involved. Bad precedents can be generated by these kinds of cases though the outcome in this case was very sound. This is the reason why Union Camp supports the Foundation.

Editor: Have conditions changed in recent years which make it even more important for business to support the Foundation.

Lewis: The plaintiff’s bar has become very creative, let’s face it, in finding new ways to get into the pockets of Corporate America, particularly in the class action arena. The problem is further complicated by the fact that a number of state courts, known to be very plaintiff friendly, attempt to nullfiy state civil justice reform efforts. We are also concerned about jury nullification in civil cases where the jury is improperly influenced by plaintiff’s expert testimony resulting in "runaway" jury verdicts that defy logic and precedent. The Foundation attempts to level the playing field.

Editor: Would you like to mention a few of the cases in which the Foundation has been involved.

Lewis: In the last few months we’ve filed amicus briefs in nine matters: U.S. v. Best Foods in the Supreme Court, which Dirk mentioned, where the EPA imposed an overbroad CERCLA liability on defendant; Moore v. Ashland Chemical, a Fifth Circuit decision affirming the application of Daubert to medical causation testimony, and Jennings v. Baxter Healthcare, an Oregon Supreme Court breast implant case challenging the admission of unreliable medical testimony. In the past we’ve also represented U.S. Senators, Paul Coverdell of Georgia and Slade Gorton of the State of Washington as amici to challenge President Clinton’s illegal executive order banning striker replacements by federal contractors. We also participated in San Diego Gas and Electric v. Covalt and other cases to show that there was no admissible evidence linking electromagnetic fields to injury or illness. This was supposed to be the next mass tort after asbestos. It keeps popping up from time to time and we are still active in following and speaking out on this topic.

Editor: Do you also represent clients at the trial stage of a proceeding?

Lewis: First chair, or direct representation of clients, is about a third to one half of our work on average. For example, we’re representing a small business and building owner in Harlem who is being threatened with condemnation by a state agency so that a developer can put in a Home Depot. We successfully represented a Putnam County homeowner located in the New York City watershed who was being sued by the City’s Department of Environmental Protection for making a small home addition.

Soutendijk: We have taken a lot of cases on behalf of individuals and small corporations, and here the Foundation wrote the briefs and argued the motions. We were involved in cases in New Jersey and New York which contested the right of the State University system to automatically deduct part of the tuition being paid by students and send it to a Public Interest Research Group, a politically oriented advocacy group. The court ruled the deduction to be unconstitutional compelled speech which violated the students’ rights. We argued and won another case for a small fish farmer in Pennsylvania whose business was jeopardized by efforts of the Pennsylvania Department of Agriculture to prevent him from protecting his fish from other wildlife.

Editor: What are your plans for the Foundation in 1999?

Lewis: This year we plan to expand the Foundation and its mission. One area we want to work on is agency rulemaking and enforcement. We want to apply the same strict standards for science and technology in the rulemaking process that Daubert has imposed in the judicial process. We’re going to be looking very hard at the Chevron deference rule which, basically, says that the courts will defer to the decisions and analysis, good or bad, that have been reached by the agencies. We’re now preparing to publish a Science in the Courtroom Review which will be a regular analysis and summary of cases and issues that relate to Daubert vs. Merrell Dow Pharmaceuticals.

Editor: How do you find out about cases?

Lewis: We have a variety of sources. Certainly, our board of directors and our advisory council, including our scientists, are very fertile resources. I’m reaching out to a variety of trade associations to identify the legal concerns of the business community. I’ve met with the National Association of Manufacturers, the Business Round Table, the National Federation of Independent Business, and other trade and tort reform groups and asked them to identify issues where we can be useful. We welcome suggestions from your readership.

Editor: How can our readers help spread the word about the good work of the Foundation?

Soutendijk: They can ask their professional or trade associations to invite us to come to talk. Ned is wonderful on his feet and entertaining. For example, I invited him to a meeting of the American Forest and Paper Association’s general counsel group. Ned gave a twenty-five minute talk to this group of forty. They were spellbound. That’s the way to get the word out to these groups.

Lewis: Speaking of addressing groups, we’ve developed presentations on a variety of issues to show how companies can reduce their exposure to liability from bad expert testimony, legal and ethical compliance problems and regulatory enforcement. It’s part of our mission to help private enterprise use defensive tools such as the Daubert v. Merrell Dow Pharmaceuticals ruling and its progeny as effectively as possible. I’d be happy to visit individual law departments, corporate counsel groups and trade associations to share the Foundation’s insights into the effective ways to challenge the use of junk science, including the use of the principles developed in the Daubert trilogy. Expert witnesses have an unusual ability to sway a jury unless you attack that testimony early on and keep it out.

Editor: How can our readers find out more about Foundation?

Lewis: They can call our general counsel, Marty Kaufman, or me directly at (212) 573-1960. Our e-mail address is atlanticlaw@earthlink.net. Our website is www.atlanticlegal.org. The website gives a general description of what we are about and some of the cases we’ve been involved in. We will be downloading our briefs very shortly onto the website so anybody who is interested in our work product can have access. Also, we can provide a copy of our recent Atlantic Legal Foundation Report which gives a further description of our activities during the year. We like to hear from people who have cases where we can be helpful and we want to hear as soon as possible so we can be most effective.