California: Statute of Limitations for Prenatal Exposure Tolled Until Adulthood, and (Effectively) Beyond

The California Supreme Court yesterday ruled, contrary to the interest of defendants, that the statute of limitations for alleged in utero exposure to “a hazardous chemical or toxic substance” is tolled while the plaintiff is a minor. Further, the applicable statute is subject to a “discovery rule.” This means that such cases may lie dormant for decades before being sprung on defendants.

In Lopez v. Sony Electronics, the court resolved the question “which statute of limitations applies: that for toxic exposure claims, or that for prenatal injuries?” The court recognized that a claim for prenatal toxic exposure “appears to fall within the ambit of both statutes of limitations.”

“Because the toxic exposure statute was more recently enacted, and its language plainly encompasses prenatal injuries, we conclude it applies here.” The court also found persuasive that the toxic exposure statute included two express exclusions, reasoning that if the legislature had intended to exclude prenatal injuries as well that would have been in the statute. “Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions.”

The effect on defendants is potentially drastic. “The limitations period for toxic exposure suits is two years, but it is tolled while the plaintiff is a minor.” The prenatal injury statute of limitations, in contrast, is six years but with no tolling during minority. That alone is a difference of fourteen years. Further, the toxic exposure suit (but not the prenatal statute) is subject to the discovery rule, meaning that the two-year period may not begin to run until even later, when plaintiff claims first knowledge of “(1) an injury, (2) the physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another.” Thus, the Lopez decision means more defendants will be faced with suits on stale facts, disappeared witnesses and documents, frayed memories, and everything else that statutes of limitation are supposed to protect against.

Click here and here for previous blog posts on this issue.

Only Minimal Medical Evidence Sufficient to Grant Trial Preference by California Court of Appeal

California just made it easier for plaintiffs to get mandatory trial preference. Fox v. Metalclad Insulation LLC required that preference be granted based on a mere attorney declaration comprised of generic symptoms of an over-70 year old plaintiff, and even though plaintiff is in partial remission.

California allows plaintiffs to move for a preferential trial date in certain circumstances depending on the age or health of the plaintiff. If granted, the judge must set the matter for trial no more than 120 days from the date the motion was granted, with a maximum continuance of up to 15 days. The mandatory preference statute requires the granting of preference if three elements are satisfied: (1) plaintiff is over 70 years old; (2) he/she has a substantial interest in the action; and (3) “[t]he health of the party is such that preference is necessary to prevent prejudicing the party’s interest in the litigation.” The focus of the Fox decision was primarily on the third, more subjective requirement.

Trial Court
Ms. Fox sued eighteen defendants, alleging that she developed stage IV lung cancer, asbestosis, and asbestos-related pleural disease as a result of shaking and laundering her husband’s work clothing. Plaintiffs filed a motion for preference, almost a year after the initial filing of the case, supported solely by (1) an attorney declaration, with attached medical records, and (2) a declaration from Ms. Fox describing her recent medical history and current symptoms, including “fogginess in [her] thought process that impairs [her] ability to focus, concentrate and effectively communicate.” The defense opposition argued that 1) the two declarations failed to demonstrate that plaintiff’s health necessitates the granting of preference and 2) that the court should balance interests, including defendant’s due process rights, when ruling on this motion. Judge Ming-mei Lee of San Francisco Superior Court denied plaintiffs’ motion, noting that plaintiffs “failed to demonstrate that the health of Ardella Fox is such that preference is necessary to prevent prejudicing her interest in the litigation.” Plaintiffs sought a writ of mandate to compel the trial court to grant their motion.

Appellate Court
The appellate court granted the petition and issued the writ. The court extrapolated information about her current condition from her attorney’s declaration including that she is undergoing chemotherapy every three weeks, suffers from “chemo brain” leading to brain fog, and is getting increasingly weaker.

The court ruled that an attorney declaration relying on hearsay and conclusions suffices under the mandatory preference statute (although under a companion discretionary statute, “clear and convincing medical documentation” is required). Finally, the court addressed when a party’s health would make preference necessary. Here, the court found that plaintiff’s diagnoses, accompanied with her treatment, “constant discomfort,” and deteriorating mental state necessitated preference, despite her partial remission. “The absence of more specifics about Ms. Fox’s prognosis was insufficient reason to deny the Foxes’ request for calendar preference.” The court rejected defendant’s arguments that a balancing of interests must be conducted, concluding that no balancing of defendant’s due process rights or fundamental fairness was necessary. Finally, the court held that plaintiffs’ should not have to wait to file a preference motion until plaintiff “is clearly in her final days,” because this would subvert the legislative intent of granting preference to prevent prejudice.

After Fox, plaintiffs will have an easier time showing that their health makes it necessary to grant preference, as even a plaintiff in partial remission got preference granted.

As it points out, the bar for evidence to oppose (and win) this type of motion is very high. “If by way of opposition, [the defense] had submitted, say, a photograph of 81-year-old Ms. Fox scuba-diving in the Galapagos Islands just last fall, there might be some basis to expect more medical detail, but on this record we see no genuine dispute that Ms. Fox is very sick.” This decision is a win for asbestos plaintiffs in California and defendants should be aware of this decision and the high standard set for opposing preference motions.

Ohio Supreme Court Rejects Plaintiff’s “Cumulative-Exposure” Causation Theory

Asbestos defendants notched a victory when the Supreme Court of Ohio rejected the “cumulative exposure” asbestos causation theory. This theory, also known by several other names (including the “each and every fiber theory”), postulates that each exposure or asbestos fiber above background asbestos exposure is a substantial factor in causing disease. This case brings Ohio in line with several federal and state courts in rejecting this plaintiffs’ theory.

In Schwartz v. Honeywell International, Inc., decedent’s father was exposed to asbestos both in the course of his employment as an electrician and while installing Bendix brakes on family cars five to ten times. Plaintiff alleges that it was decedent’s contact with her father’s asbestos-laden clothing that caused decedent’s mesothelioma and subsequent death.

At trial, plaintiffs’ pathology expert, Dr. Carlos Bedrossian, testified 1) that there is no known threshold at which mesothelioma “will not occur” and 2) decedent’s take home exposure both from her father’s occupational exposure and his work with brakes contributed to her “total cumulative dose.” It was her cumulative exposure, the expert opined, that caused her mesothelioma. Honeywell International Inc. (the successor-in-interest to Bendix) moved for a directed verdict twice “arguing that Schwartz had failed to demonstrate that [decedent’s] exposure to asbestos from Bendix brakes was a substantial factor in causing her disease,” but both motions were denied. Instead, the jury found defendant Honeywell 5% liable for decedent’s injuries and awarded plaintiff just over $1 million.

On appeal, defendant argued that plaintiff did not present sufficient evidence that decedent’s exposure to Bendix brakes was a substantial factor in causing her mesothelioma. The appeals court disagreed, found the expert’s testimony to be “based on reliable scientific evidence,” and affirmed the trial court’s denial of defendant’s motions.

Thus, defendant appealed to the Supreme Court of Ohio on a single discrete issue: “whether the ‘substantial factor’ requirement may be met through a ‘cumulative exposure theory.’” Schwartz ruled that it may not. The decision was based on an Ohio statute incorporating requirements found in many other jurisdictions: that in an asbestos case with multiple defendants, plaintiff must prove that the conduct of a particular defendant was a substantial factor in causing the injury, and the trier of fact must consider the “manner . . . proximity . . . [and] frequency and length” of plaintiff’s exposure to that particular defendant’s asbestos-containing product. (R.C. 2307.96.)

The court explained that the cumulative exposure theory “examines defendants in the aggregate” and does not consider each individual defendant’s contribution to the overall exposure. “It is impossible to reconcile a statutory scheme that requires an individualized finding of substantial causation for each defendant with a theory that says every defendant that contributed to the overall exposure is a substantial cause.” Moreover, the cumulative exposure theory does not consider dose or reflect consideration of the manner, proximity, length, or duration of exposure, which the statute delineates must be considered by the trier of fact in this instance. The court noted that plaintiff’s theory is flawed because Dr. Bedrossian arbitrarily elected only to include exposures above background in deeming which exposures were causative in this case. “In a theory that starts with the premise that the total cumulative dose causes the disease, there is no rational reason to exclude even minimal exposures, because they also contribute to the cumulative dose.”

Next, the court determined that exposure to asbestos from Bendix brakes was not a substantial factor in causing decedent’s mesothelioma because plaintiff did not meet his burden of proof. Notably, decedent’s father worked on Bendix brakes only 5 to 10 times while decedent lived at home, compared with occupational exposure over 33 years. The court concluded that “[t]hese regular exposures that [decedent] received as a result of her father’s years of working as an electrician with products containing asbestos contrasts strongly with the limited and irregular exposures that [decedent] might have had a result of her father’s occasional brake jobs.” Further, plaintiff did not provide sufficient evidence regarding the manner, proximity, frequency, and length of decedent’s exposure.

The Schwartz decision is a victory for defendants by rejecting the cumulative exposure theory as insufficient. This brings Ohio in line with several other jurisdictions, including the Sixth Circuit, the Ninth Circuit, Georgia, Texas, and Pennsylvania. Notably, California state courts have allowed similar “every exposure” theories to go before the jury (see here and here). As plaintiffs suffer setbacks while attempting to advance this theory, they will transform this into other theories that defendants must be ready to tackle.

Cleaning Products, Air Fresheners, and Automotive Products Sold In California Must Disclose Ingredients in 2020

California Governor Jerry Brown signed the Cleaning Product Right to Know Act into state law in late 2017, making California the second state to require the disclosure of information about ingredients found in cleaning products. The Act contains two disclosure provisions; the first, an online compliance portion, is scheduled to go into effect in 2020. The second, a labeling requirement, will take effect a year later.

Pursuant to the Act, manufacturers of “general cleaning products,” “air care products,” and “automotive products” sold in California must disclose ingredients on their product labels and online. The definitions of applicable products are broad, and include soap, detergent, products intended to freshen the air, and products intended to maintain the appearance of a motor vehicle. Notably, automotive paint products and pesticides are excluded. In addition to the actual manufacturers of applicable products, the Act also applies to entities for which the products are manufactured or by which the product is distributed. The Act further prohibits California retailers from selling products that do not comply with the new disclosure requirements.

For the labeling requirement, the Act permits the manufacturer to choose one of two sets of information to disclose on the product’s label: (1) each fragrance allergen contained in the product that is included in Annex III of the EU Cosmetics Regulation Number 1223/2009 as required to be labeled by the EU Detergents Regulation Number 648/2004 (“Annex III”), when present in the product at a concentration of .01% or above (100 ppm), and intentionally added ingredients contained in the product that are included on a “designated list,” or (2) a list of all intentionally added ingredients contained in the product, unless the ingredient qualifies as confidential business information (“CBI”).

For the first option, the designated Annex III list includes chemicals found on twenty-two regulatory lists published by state governments, the European Union, the federal government, the Canadian government, and international agencies.

The second option requires the disclosure of all intentionally added ingredients, with the exception of ingredients that qualify as CBI. However, CBI is defined narrowly, and does not apply to ingredients found on the designated list, all nonfunctional constituents, and all fragrance allergens included in Annex III when present at a concentration of .01% or above. A manufacturer can list fragrance ingredients and colorants generally as such, but the label must also state that the product “[c]ontains fragrance allergen(s),” if it contains a fragrance allergen that is included on Annex III at .01% concentration or above.

In addition to the labeling requirements, a manufacturer must starting in 2020 disclose certain information on its website. The Act requires manufacturers to list every intentionally added ingredient in descending order of predominance (except for CBI and fragrance ingredients), state the purpose of each intentionally added ingredient, and provide links to the regulatory lists on which the ingredient appears. The manufacturer must also list all nonfunctional constituents that are found in the product at a concentration of .01% or more.

Interestingly, the Act does not create a mechanism for enforcement nor does it impose penalties for violations. California statutes without enforcement provisions are often enforced by private litigants and district attorneys under the state’s consumer protection laws. However, while private litigants may only seek injunctive relief under these laws, actions brought by government officials are eligible for the recovery of civil penalties up to $2,500 for each violation. It is anticipated that the Act will be enforced most often through this mechanism.

California’s Cleaning Product Right to Know Act goes further than current federal disclosure obligations, which simply require that consumer and industrial cleaning products provide warnings about the physical and health hazards, but do not require full ingredient lists. It is indicative of a nationwide trend of increased state regulation of chemicals found in consumer products in the absence of significant federal regulation.

California Court of Appeal Embraces Presence – Not Evidence – As Causation

Last month, a California court of appeal ruled that “a plaintiff has no obligation to prove asbestos exposure from a specific product on a specific date or time.” Rather, in Turley v. Familian Corp., the court found that exposure can be inferred if a defendant’s product was at a work site and “sufficiently prevalent to warrant an inference that plaintiff was exposed to it.” In other words, the court ruled that circumstantial evidence of a product’s mere presence is sufficient to defeat a motion for summary judgment.

In Turley, defendant Familian moved for summary judgment on the basis that the plaintiffs could not show exposure to asbestos in a Familian-brand product. The plaintiffs’ opposition to the motion included a declaration from a third-party witness who had not been deposed, but who testified that defendant-supplied asbestos-containing gaskets were frequently used on the many high-pressure and/or high-temperature valves at the two compressor stations supervised by the plaintiff, and that the plaintiff was commonly present when the work of replacing the asbestos-containing valves was being done. The trial court ruled that this was speculative and granted summary judgment.

The court of appeal reversed. The court found that the co-worker’s testimony had adequate foundation and was not speculative. “For example, [the co-worker] testified that when he was ordering gaskets, he knew they were asbestos-containing based on PG&E’s codes and other vendor numbers … [and] that the PG&E codes were necessarily based on content, because certain applications required asbestos-containing gaskets.”

This evidence was held sufficient to defeat summary judgment, even without evidence of “exposure from a specific product on a specific date or time.” Turley relied heavily upon the 1995 decision Lineaweaver v. Plant Insulation Co., which reversed a nonsuit where “[w]hile there was no direct evidence that [plaintiff] was exposed to [defendant’s product], the circumstantial evidence was sufficient to support a reasonable inference of exposure.” The Turley court also discussed the more recent decision, Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, for the proposition that this kind of circumstantial evidence was sufficient in establishing causation. In Webb, the California Supreme Court rejected summary judgment where the plaintiff “was exposed to dust from Johns-Manville products containing trace amounts of crocidolite at roughly the same time Special Electric was supplying crocidolite asbestos to Johns-Manville. While evidence of the link could be stronger, it is nonetheless sufficient for the jury to have found that Special Electric’s asbestos was a substantial factor in causing [the plaintiff’s] mesothelioma.”

Turley v. Familian Corp. is yet another in a long line of California decisions that appear to expand liability by tempering the summary judgment standard. Unfortunately, the result may be opening the door for a rush of rather dubious asbestos cases.

Prenatal Injuries and California’s Statutes of Limitation

A growing number of cases allege that chemical exposures sustained by parents have resulted in birth defect injuries to their children. One case went to defense verdict in Southern California this year (Morales v. Well Pict, Ventura County) and additional cases have been filed both in California and elsewhere. Many of these cases are referred to as “clean room” cases, because the earliest of them involved workers claiming exposure to toxic chemicals used in “clean room” environments producing computer components. Two decisions in California have grappled with the application of two different statutes of limitations that might apply in such circumstances and have reached directly inconsistent conclusions. The Nguyen decision came first in 2014 from the Sixth District in California (covering Silicon Valley). The Lopez decision followed in 2016 in the Second District (covering Los Angeles and environs) and specifically disagreed with Nguyen.

The first statute is California Code of Civil Procedure section 340.4, which provides for a 6-year period of limitation for a minor to bring a claim for “personal injuries sustained before or in the course of … birth.” It is expressly provided that this period is not tolled while the plaintiff is a minor. The second is California Code of Civil Procedure section 340.8, which provides for a 2-year period for injuries caused by exposures to hazardous materials and toxic substances. Section 340.8 is, however, tolled while a plaintiff is a minor. One can easily see how the application of the statutes can be determinative. If section 340.4 applies, each child born with a birth defect must file not later than their 6th birthday. If 340.8 applies, a child can wait until their 20th birthday to file. So, which statute applies where the prenatal injury results from exposure to hazardous materials – the pre-natal statute of limitations, or the toxic tort statute of limitations?

Nguyen applied the toxic tort statute, section 340.8, and found that a complaint filed on behalf of a 16-year-old girl alleging injuries from her in vitro exposures to work place exposures was timely. The court found that the statute was tolled for the entire period of minority of Ms. Nguyen. Lopez acknowledged the holding in Nguyen, but decided to “depart from our colleagues in theSixth District” and held that the pre-natal statute, section 340.4, applied, so that 12-year-old Ms. Lopez was time barred from pursuing her action.

Both these decisions are lengthy and complicated. The Lopez decision drew a dissent. The California Supreme Court has accepted the Lopez decision for review. The matter has been fully briefed, with several amicus curiae briefs filed for the defense. A decision is likely sometime within the next 18-24 months.

In the meantime, just in recent weeks, the same District Court of Appeal that applied section 340.4 in Lopez to time bar an action by a 12-year-old published a decision sorting out the application of apparently conflicting statutes of limitation applying in the family law/probate arena and made some pronouncements that could be applicable to the Nguyen-Lopez disagreement. In Yeh v. Tai, the court stated: “When two statutes of limitation are applicable, the specific takes precedence over the general.”  But which statute is more specific in the clean room context? Section 340.4 applicable to injuries sustained during birth? Or section 340.8 applicable to injuries caused by exposure to toxins? There does not seem to be a clear answer.

The Yeh court went on to rule that “in the event two statutes conflict and cannot be reconciled, later enactments supersede earlier ones.” Section 340.4 was first effective in 1993. Section 340.8 was first effective in 2004. If one were to strictly adhere to the “later enactments supersede earlier ones” rule, then section 340.8 should apply, and a different panel in the Second District erred in deciding Lopez.

This remains a difficult and unclear area. We await the California Supreme Court’s decision in Lopez with great interest as it will have a substantial effect on this growing area of litigation.

Connecticut Supreme Court Rules That Plaintiff Must Use Expert Testimony To Prove That Work With Defendant’s Product Can Create Respirable Dust

In Bagley v. Adel Wiggins Grp., No. 19835, 2017 Conn. LEXIS 304 (Nov. 7, 2017) Connecticut’s Supreme Court directed the trial court to grant defendant’s directed verdict where there was no expert testimony that decedent’s work with defendant’s adhesive can create respirable asbestos fibers. Both negligence and strict liability claims failed because plaintiff did not prove that the subject product, an adhesive used in the manufacture of helicopter blades, was unreasonably dangerous or that the adhesive was the legal (proximate) cause of plaintiff’s decedent’s mesothelioma. The court required that plaintiff use admissible expert testimony to prove that the adhesive emitted respirable asbestos fibers, and that without such evidence a direct4ed verdict for the defense was proper.

In Bagley, the plaintiff executrix of decedent’s estate sought damages pursuant to Connecticut’s Product Liability Act (§ 52-572m et seq.) (the “CPLA”) for inter alia, wrongful death of the decedent under both negligence and strict liability theories. The evidence at trial showed that, for approximately ten (10) months in 1979 and 1980, the decedent worked as a manufacturing engineer at Sikorsky. Plaintiff’s decedent’s office was on a mezzanine above the helicopter blade shop where defendant’s adhesive, FM-37, was used to bind together interior parts of the blades. The evidence further showed that FM-37 contained 8.6% asbestos and was chiseled or sanded off if it ended up on unwanted portions of the blades. Decedent was diagnosed with mesothelioma in 2011 but acknowledged, to his medical providers before his death, that he had been exposed secondarily to asbestos through his father’s work at a shipyard.

The plaintiff called multiple witnesses during trial, including a former co-worker of the decedent and three experts. It was established at trial that the decedent was exposed to dust from the sanding of FM-37, that FM-37 contained 8.6% asbestos and that the inhalation of asbestos fibers is a cause of mesothelioma. At the close of plaintiff’s evidence, the defendant moved for a directed verdict, which was denied by the trial judge. The jury subsequently returned a verdict of $804,777 for the plaintiff on the strict liability, negligence, and loss of consortium claims. Following the jury verdict, the defendant filed a motion to set aside the verdict and for judgment notwithstanding the verdict, which was again denied by the trial court.

The Connecticut Supreme Court agreed with the defendant. Because the plaintiff failed to prove that respirable asbestos fibers were released from defendant’s adhesive, there was insufficient evidence to show either that the adhesive was dangerous, or that it was the legal cause of the decedent’s mesothelioma. Therefore, the court reasoned that the trial court improperly denied both the defendant’s motion for directed verdict and motion to set aside the verdict for motion notwithstanding the verdict. Moreover, the court directed the trial court to grant the defendant’s motion for directed verdict.

The court reasoned that, while one of the plaintiff’s experts opined that the defendant’s product could have caused the decedent’s mesothelioma, the expert’s opinion was not based on any evidence specific to defendant’s product. In this regard, none of the experts or witnesses performed any testing or examination of defendant’s or any similar product to establish that respirable asbestos fibers may be emitted when the product is sanded. The court reasoned that there was also no evidence presented that plaintiff’s causation expert had any specialized knowledge concerning how modified epoxy adhesives behave under the conditions in the Sikorsky blade shop. Because of these gaps in the evidentiary record, the court found that the jury could not have relied on this expert opinion to find that the decedent had been exposed to respirable asbestos fibers from defendant’s product.

The Bagley decision is undoubtedly a victory for defendants in the Connecticut asbestos litigation. In particular, the court made it more difficult (and more costly) for plaintiffs to pursue newer asbestos defendants or to pursue new product lines. This is especially true where plaintiffs’ experts have yet to test the new product for creation of respirable asbestos fibers during work allegedly performed by their plaintiffs. Defendants in the Connecticut asbestos litigation should be aware of the Bagley decision and the requirement for specialized testing or knowledge regarding release of asbestos fibers from a particular type of product.

A link to the Connecticut Supreme Court’s decision is available here: http://jud.ct.gov/external/supapp/Cases/AROcr/CR327/327CR114.pdf

Landmark Lead Paint Ruling Imposes Nuisance Liability Because Defendants “Must Have Known” Product Dangers, and Even If Their Product Not Used

The California Court of Appeal in People v. ConAgra Grocery Prods. Co. has upheld in part and reversed in part a decision that put the three defendants, ConAgra Grocery Products Company, NL Industries, and the Sherwin-Williams Company, on the hook for a $1.15 billion fund for the abatement of residential lead paint in parts of California. While the amount of the abatement fund will be reduced on remand, the decision stands as the first major lead paint public nuisance award, with implications for other companies that market products considered “defective” in hindsight.

Plaintiff, the State of California, representing 10 jurisdictions throughout the state, filed suit in 2011 alleging that the defendants created a public nuisance through their manufacture, promotion, and sale of lead pigment and lead paint for use in California homes. The trial court found that the defendants had actual knowledge of lead paint hazards when they promoted their products for residential use for decades before the sale of lead paint was eventually banned in 1978.

Defendants appealed the trial court judgment on multiple grounds. The appellate court agreed with defendants that there was insufficient evidence demonstrating that defendants promoted lead paint for residential use after 1951, and remanded the matter to the trial court to recalculate the amount of the fund so that it covered remediation only in pre-1951 homes. The rest of the trial court’s decision, however, was affirmed, with costs awarded to plaintiff.

An important takeaway from this decision is that the appellate court was satisfied that “must have known” was an adequate replacement for actual knowledge. The decision opined that it was neither speculation nor conjecture to infer that because the defendants were leaders in the paint industry at the time, they “must have”been aware of potential hazards of lead paint. “Indeed,” the panel stated, “it would be unreasonable to infer that, notwithstanding general knowledge of the hazard of their products within the industry, defendants somehow managed to avoid learning of this hazard.” Evidence that the defendants received information from a trade group in the 1930s on lead’s dangers of and children’s susceptibility was among what was found to constitute “substantial support” for the trial court’s actual knowledge findings. Acknowledging that the evidence presented by plaintiff on this point was circumstantial, the appellate court essentially all but admitted that its hands were tied under the deferential standard of review and it had no choice but to uphold the trial court’s actual knowledge findings.

Another startling portion of this opinion was the rejection of the defendants’ argument that they should not be held liable because plaintiff could not establish that their products were in any of the homes in the 10 jurisdictions. The court ruled that this “contention misconstrues the basis for defendants’ liability. Defendants are liable for promoting lead paint for interior residential use. To the extent that this promotion caused lead paint to be used on residential interiors, the identity of the manufacturer of that lead paint is irrelevant.” The court found that while the evidence plaintiff presented consisted of “generic” promotions that didn’t refer to any specific manufacturer, it nonetheless was a substantial factor which resulted in “the use of lead paint on residential interiors,” and that the evidence supported the court’s finding of causation on that basis.

Perhaps the greatest significance of this decision is that plaintiff prevailed on a public nuisance theory. Public nuisance claims in other contexts traditionally reserved for product liability (including asbestos abatement, MTBE, and firearms) have proven largely unsuccessful in part because of the difficulty of establishing the link between the alleged injury to a public rig ht and the manufacturer’s conduct, two occurrences often temporally separated by decades. In fact, many earlier lead paint cases filed in other jurisdictions under various theories of public nuisance often failed because the plaintiffs could not establish, among other things, the requisite proximate cause.

It is of stark importance that the ConAgra court rejected defendants’ arguments concerning actual knowledge and causation in this public nuisance claim. Plaintiff prevailed despite the absence of direct evidence that defendants had actual knowledge of the hazards of interior lead paint at the time they were promoting it, and without having to show that any of defendants’ products were present in any of the homes. Will courts begin to construe other “industry leaders” as having knowledge of all risks for all purposes? Can participation in trade groups which promoted the use of generic categories of products like asbestos-containing brake pads or herbicides expose specific companies to future liability? Could the reasoning that defendants were liable regardless of whether their paint was in fact used in any of the homes seep into the product liability arena, where such tenuous evidence would be insufficient to establish duty? This decision will likely have a short term impact on pending high-profile public nuisance cases, like opioids and climate change. We may also see long term ripples across industries in California where companies may face liability years—or even decades—down the road for a future, but presently unknown, harm in the form of public nuisance claims with vague legal standards and the potential for massive awards.

Coffee – a health risk or a health promoter? “Private attorneys general” or the British Journal of Medicine?

There have been a variety of media reports of late regarding the health effects of coffee. Two almost simultaneous news articles demonstrate how our regulatory environment can lead to puzzling contradictions. These same articles illuminate the vast reach and potential impact of California’s Prop. 65.

For those not familiar with Prop. 65, it is a California regulatory scheme whereby producers and distributors of any products and foods used or consumed in California must apply a cancer/birth defect warning on their products if they contain any of 800 different identified substances in levels that might lead to an exposure in excess of the mandated permissible levels. The regulations allow any attorney in California to act as a “private attorney general” to bring suit against anyone who has not properly warned. These suits can lead to injunctive relief, fines and penalties, and perhaps most importantly, an award of plaintiff’s (but not defendant’s) attorneys’ fees.

As a habitual coffee drinker, I was pleased to see that Sam Meredith of CNBC reported on November 23rd about a study from the University of Southampton, published in the British Journal of Medicine, that a review of some 200 previously published medical studies led the authors to conclude that drinking 3 to 4 cups of coffee each day was “more often associated with benefit than harm” from a health perspective. Consuming coffee can reduce the risk of numerous ailments from heart disease to dementia, and even some cancers it is reported.

Yet literally the next day, Bob Egelko in the San Francisco Chronicle reported that 7- Eleven had just obtained court approval of a settlement of a case brought against it alleging that their sale of prepared coffee without warnings was a violation of Proposition 65 as coffee contains an unsafe level of acrylamide, a substance identified as a human carcinogen by the State of California. 7-Eleven had apparently decided that it was wiser to settle this case for $900,000 than risk a court trial on the issue of whether or not consuming coffee truly presents a cancer risk to consumers in the Golden State. No doubt much of the settlement will go to Raphael Metzger, plaintiffs’ counsel in this matter.

The settlement will thus have the effect of giving Mr. Metzger more resources to continue prosecuting the same case against Starbucks and many other defendants that have been sued in the same case. If Starbucks wins its case, presumably customers will not see a Prop. 65 warning plaque on the wall behind their favorite barista, nor a Prop. 65 warning on the new Holiday Season cups. If Starbucks loses its case, those warnings may join the legions of other such warnings that have proliferated across the state. One would be left to wonder whether the citizens of California would be rendered more safe by such warnings, or instead as the University of Southampton and the British Journal of Medicine seem to feel, safer by drinking more coffee?

How Perilous are Consolidated Trials?

We recently were involved in two living mesothelioma cases consolidated roughly one month before trial in Solano County, CA. The cases were fully resolved after plaintiffs’ opening statement. So how adversely, if at all, were the defendants affected by the consolidation?

Some of my friends and colleagues have tried consolidated cases in the past, but I have not. This was my first experience with such a process, and I offer some observations for those of you who may have to face this in the future.

When the cases were consolidated, there were many defendants in each of the two cases and expert discovery was underway. We proceeded through hearings on motions in limine, took literally a week to pick a jury and proceeded to opening statement. Along the way many defendants dropped out. Plaintiff counsel gave his opening statement with only two defendants left in the proceedings, both of them involved in the same single case.

Since the consolidation was ordered after we had already submitted motions in limine, this meant that we needed to reconsider our filed motions in limine. For example, the claimed exposures in the two cases arose from the same worksite, but with different durations. So our motion in limine re: excluding evidence of post-sale conduct had a much different potential impact in one case than the other. And the arguments to be made in favor of it in one case were stronger than in the other. Having the motion heard in both cases at the same time had the effect of reducing our chances of success in either of them.

In expert discovery our work was made more difficult. We had to consider that something said by an expert in one case might have an adverse impact, intended or unintended, in the other. This meant attending more expert depositions and reviewing more expert reports and notes. The same applied to coworkers identified in one case, but not the other. The court made an order that a witness identified only in one case could not testify in regards to the other, and adopted a “limiting instruction” meant to clarify things for the jury. That alleviated our concerns to some extent, but did not eliminate them. How were we to prepare for testimony by a coworker for whom we did not participate in his deposition and who had not been questioned about the products of our client?

We never reached the point of writing a verdict form, or forms, but can only think that asking one jury to decide two cases simultaneously could only increase the risk of jury confusion or error.

We did pick a jury, and that was difficult indeed. Since we were to try two cases simultaneously, the court provided our prospective jurors an extra-lengthy time estimate. This meant that many on our panel sought a “hardship” excuse. We spent more than a day dealing with hardship requests. Many, many prospective jurors were excused. This effectively eliminated from our jury pool many people that a defense attorney would be happy to see.

Voir dire was equally challenging. Once the jurors understood how one might be excused for cause, it was remarkable how many professed to be unable to be fair for one reason or another.

And throughout the voir dire there were repeated references to the fact that the jurors would be listening to evidence about two men, with the same cancer, each alleging it came from exposures at the same work site. Since we were dealing with exposures at a U S Navy shipyard, it was never contemplated that the defendants would argue there was no exposure, but it still left us to worry how the jury might be impacted by hearing about two soon-to-be-fatal cancers at the same time. And as noted above, by the time plaintiff opened, there were only two defendants left, and they were both in the same single case. So we picked a jury telling them that they would hear the cases of two men with fatal cancers, and would be in the court for many, many weeks, only to have one case settle and plaintiff open for only one case that would clearly take much less time. Many of our prospective jurors had been excused based upon a trial estimate that would have proved to be much longer than what was actually needed.

Our client resolved the case during opening statements, with the final defendant doing likewise immediately thereafter. So we will never learn how the case may have been presented and decided. But we saw enough to know that orders consolidating cases for trial make a defense lawyer’s work much more challenging.