SACRAMENTO, Calif. (Legal Newsline) – A California federal judge will step down from a case that will impact dozens of lucrative coffee-causes-cancer lawsuits, but she is not happy with the way the request was handled by a group pursuing that litigation.
Five months after Judge Kimberly Mueller ruled it was far from settled science that the chemical acrylamide, which is found in food that is roasted or cooked (like coffee beans), causes cancer, the Council for Education and Research on Toxics filed a motion to disqualify her from the case that questions whether a may-cause-cancer label is required on those foods under the state’s notorious Prop 65.
CERT has filed more than 100 lawsuits in state court over acrylamide and called Mueller’s husband’s business interests into question.
“Although CERT’s counsel avers that he did not discover the facts behind his client’s motion until a few weeks before it was filed, the timing of that motion suggests CERT’s and (the Healthy Living Foundation’s) goals are strategic at least in part,” Mueller wrote Sept. 24.
“This case had been pending for almost two years when CERT moved for recusal on the basis of information it received from HLF and its counsels. CERT’s motion followed uncannily on the tail of several orders I issued against CERT’s and HLF’s interests, including orders preliminary enjoining new private enforcement actions under Proposition 65, denying a stay pending appeal, and denying ex parte applications to intervene and participate as a nonparty.”
A footnote mentions the case’s new judge could consider whether the motion for disqualification was presented for any improper purpose.
“CERT and HLF claim their efforts to obtain my recusal were spurred by recent discoveries, suggesting this is not a case in which a litigant has held a meritorious motion in reserve,” Mueller wrote.
“A different danger lurks. Consider a litigant who is satisfied with the assignment of a particular judge or a court’s decisions in the early stages of a case, but is later disappointed by a ruling on a crucial pretrial motion.
“The disappointed litigant could go hunting for bias or could even attempt to manufacture bias where none exists. Even without seeking reconsideration, it could then file a late-breaking recusal motion in an attempt to delay an adverse judgment or to obtain reassignment.”
Mueller’s April ruling blocked CERT from filing acrylamide lawsuits, citing unresolved debate on whether acrylamide can cause cancer. CERT was one of the first to sue over acrylamide after it was discovered in food and is allied with private lawyers who have made millions of dollars from Prop 65 litigation.
The California Chamber of Commerce’s lawsuit seeks to protect businesses from acrylamide lawsuits. State Attorney General Xavier Becerra claimed in defense of the chemical’s place on the Prop 65 list that there is “strong evidence” from decades of research that it causes cancer in lab animals.
“(B)usinesses — from large companies to corner stores — must either warn consumers that they will be exposed to a chemical ‘known to the state to cause cancer’ or else risk state court litigation in which they face penalties of $2,500 per unit sold if they are unable to bear the expensive burden of scientific proof,” CalChamber’s lawyers wrote.
“Many businesses have been sued to date by both the Attorney General and private enforcers. But because acrylamide forms naturally during cooking and is found in thousands of food products many more businesses remain to be sued.”
CERT said Mueller’s husband, Robert Johnson Slobe, is the president of the North Sacramento Chamber of Commerce, but CalChamber responded that the NSCC is no longer a member of CalChamber (though it was a member at the beginning of the case).
Slobe is also the president of the North Sacramento Land Company, which operates an almond ranch in Colusa County – “roasted almonds are a significant source of acrylamide,” the motion to disqualify says
“Thus, there are many connections between Judge Mueller and Plaintiff CalChamber, and financial interests of Judge Mueller’s husband which create conflicts of interest, none of which have been disclosed by Judge Mueller,” the motion says.
Mueller said reasonable people could not believe she’d have a financial interest in the future of acrylamide litigation but chose to step down anyway. She slammed CERT for filing a reply brief that exceeded a page limit and submitting a supplemental brief without seeking permission to do so.
“CERT even pursued relief on an emergency basis in an unsuccessful petition for a writ of mandamus from the Ninth Circuit after this court had directed CERT to published decisions in which the circuit had rejected its position,” Mueller wrote.
She calls CERT’s and HLF’s tactics “uncommonly aggressive” and “scorched earth.” Many of their claims about her business interests are incorrect, and they even got her home address wrong, she says.
“I cannot exclude the possibility that these details were included in an attempt to engender public animus against me and to increase the personal costs of my continued assignment to this action, including the costs of safety and security to my husband and myself, which is no phantom worry,” Mueller wrote.