SACRAMENTO, Calif. (Legal Newsline) - An obscure charity that has little revenue and doesn’t even bother to maintain a website won a major tactical victory last week when it forced a federal judge to recuse herself from a case that could impact dozens of its lawsuits over whether coffee must be sold with a cancer warning in California.
The Council for Education and Research on Toxics is based in the Long Beach, Calif., offices of Raphael Metzger, a plaintiff attorney who focuses on litigation over workplace exposures to toxic substances. But he also serves as the lawyer for CERT, which plays a prominent role in lawsuits based on California’s Proposition 65 - a regulation that allows private lawyers to sue companies over their failure to warn customers about chemicals the state believes can cause cancer.
Metzger and CERT suffered a severe blow earlier this year when U.S. District Judge Kimberly Mueller issued an injunction prohibiting CERT from filing any more lawsuits over acrylamide, a naturally occurring substance that can also be created by roasting foods such as potatoes and coffee beans. CERT had allied with California against the California Chamber of Commerce, which argued there was no scientific evidence showing dietary acrylamide causes cancer.
After Judge Mueller ruled against CERT, the organization launched what she described as “uncommonly aggressive, scorched-earth efforts” to have her removed from the case. Despite reporting less than $50,000 in revenue and under $200,000 in assets, CERT served subpoenas on the judge’s husband and his business, and an ally in the case dispatched lawyers to government offices to gather evidence it said showed he was associated with CalChamber and owned an almond ranch that could be the subject of acrylamide litigation.
Criticizing CERT and its lawyers for their tactics, Judge Mueller nonetheless recused herself and urged the judge who replaces her to investigate whether CERT’s lawyers violated federal and local rules of civil procedure and ethics by filing the recusal motion after the case had been pending for more than two years and only after an adverse ruling.
For such an aggressive litigator, CERT maintains a low profile. The group was formed in 2001 by C. Sterling Wolfe, a lawyer who was disbarred in 2020; Carl Cranor, a philosophy professor at the University of California Riverside who specializes in the morality of toxic exposures; and Martyn T. Smith, a professor of toxicology at University of California Berkeley School of Public Health.
In addition to teaching at Berkeley, Smith serves as an expert witness for plaintiffs in toxic tort lawsuits over benzene and the weedkiller Roundup and attorney Metzger has described him as “an internationally renowned expert.” Smith no longer is listed on CERT’s tax forms as an officer, although CERT donated $50,000 in 2009 to “support research into the health effects of toxic chemicals” at the Genes and Environmental Medicine Laboratory at Berkeley, and another $100,000 in 2017 “to support the research of the School of Public Health.”
The school doesn’t currently list a lab with that name, and Smith didn’t immediately respond to a request for comment.
Internal Revenue Service filings show CERT earned hundreds of thousands of dollars in the late 2000s from litigation. In a 2007 consent agreement, Burger King, McDonald’s, Frito-Lay and other companies agreed to place cancer warnings on French fries, hash browns and baked potatoes. The companies also paid $83,250 to CERT, “care of Raphael Metzger,” on top of $666,000 to California.
Since then, the group has reported only sporadic income, but it did take in around $125,000 from settlements in 2017 and 2018. The organization filed stripped-down “postcard” reports in other years, citing less than $50,000 in revenue. The Berkeley School of Public Health appears to be the main beneficiary of grants from CERT, and it’s not clear how the group has distributed the rest of its assets over the years.
CERT started filing dozens of lawsuits more than a decade ago against companies that sell coffee, like Starbucks. With a long-awaited payoff in jeopardy after Mueller's ruling, the group's successful recusal effort means a new judge will hold its fate in his or her hands.