Plaintiffs Push to Initiate Asbestos Reporting Rules

Last week, various public health and environmental organizations sued to compel the Environmental Protection Agency to initiate an asbestos reporting rule under the Toxic Substances and Control Act (“TSCA”). Plaintiffs seek to compel importers, manufacturers, and possessors of asbestos and asbestos-containing materials to submit reports on the amounts of asbestos imported and used, the sites where use occurs, the nature of the use, and the resulting potential for exposure of workers and the public.

The complaint for declaratory and injunctive relief was filed in District Court for the Northern District of California by the Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, and Environmental Health Strategy Center. Plaintiffs’ firms Motley Rice, Simmons Hanley Conroy, and Early, Lucarelli, Sweeney & Meisenkothen are sponsors of the Asbestos Disease Awareness Organization’s annual conference.

The EPA “shall promulgate rules” for asbestos reporting as the “Administrator may reasonably require.” Using its TSCA authority, the EPA promulgated the Chemical Data Reporting rule, which requires reporting of all chemicals imported and manufactured in amounts of 25,000 pounds or greater at a site. However, the EPA advised an asbestos manufacturer and importer in a letter that asbestos was not subject to the Chemical Data Reporting rule because it is a naturally occurring chemical substance.

The EPA denied plaintiffs’ December 2018 petition to expand the Chemical Data Reporting requirements, designate asbestos as a reportable substance, and eliminate exemptions. The EPA reasoned that the Chemical Data Reporting rule did not apply to all asbestos manufacturers or importers, and reporting would not provide information that is not already known by the EPA. Following this denial, plaintiffs have a right to de novo review in a judicial proceeding within 60 days. This lawsuit says asbestos should be subject to the Chemical Data Reporting rule.

This complaint is not alone. Last month, the Attorneys General of 14 states and Washington, D.C. petitioned the EPA to initiate similar rulemaking on asbestos reporting. If a judge rules in favor of the asbestos reporting rule, defendants that manufacture, import, or possess asbesto may be subject to the requirements of the Chemical Data Reporting rule. If an asbestos reporting rule is not initiated, plaintiffs and plaintiffs’ firms will surely continue to challenge the EPA.

California Court Makes it Harder for Defense to Defeat Motions for Trial Preference

A recent California Court of Appeal case, Ellis v. Superior Court, adds another challenge for defendants opposing a motion for trial preference in an asbestos case. Ellis dilutes the standard and shuts down ways for litigants to attack motions for preference.

California requires a court to grant trial preference and set the case for trial within 120 days if the moving party is over 70 years old, has a substantial interest in the case, and his or her “health . . . is such that a preference is necessary to avoid prejudicing the party’s interest in the litigation.”

Plaintiff David Ellis moved for trial preference. It was based on Ellis’s declaration that he was age 75 and suffering from asbestos-related metastatic kidney cancer, pleural disease from exposure to asbestos-containing materials, and a host of other related illnesses. The motion was accompanied by declarations from Ellis’s attorney and expert, a cardiologist. The trial court denied Ellis’s motion for preference, ruling that the expert was not qualified to opine as to Ellis’s condition (in contrast to, for example, the oncologist who regularly saw Ellis). The court also ruled that the records considered by the expert were undated and vague.

The California Court of Appeal vacated the trial court’s decision as an abuse of discretion. The Court of Appeal found that the trial court “overlooked undisputed, convincing evidence” that the expert had extensive experience in internal medicine and was therefore qualified to opine on Ellis’s condition. The court so ruled even though the expert last examined Ellis in 2016, two years before the motion for preference. The court also found that even though the expert only vaguely described the medical records in his declaration, that was enough: “[H]is 2016 report and his declaration identifies and discusses a number of the extensive records and tests he administered and/or considered” in treating Ellis.

The Ellis decision further lowers the bar for preference. The same court recently decided Fox v. Metalclad Insulation, LLC,  which also reversed a trial court’s denial of plaintiff’s motion for preference. The defense in Fox argued that plaintiff’s declarations failed to demonstrate that plaintiff’s health necessitated the granting of preference. The defense in Ellis did not dispute the severity of Ellis’s illness, but that Ellis’s showing of preference was insufficient. In Ellis, the expert’s declaration lacked the right type of medical foundation and was based on his examination of Ellis from two years earlier. However, the court’s decision indicates that plaintiffs can have any doctor submit a declaration, and can rely on vaguely-described medical records without plaintiff undergoing an updated medical examination.

Ellis is (at least for now) an unpublished opinion, which is helpful to defendants because plaintiffs cannot cite it as precedent in California courts. Nevertheless, Ellis tells us where the courts are going on preference issues.