Not Fair in Pennsylvania: Application of The Pennsylvania Fair Share Act to Strict Liability Cases Reviewed by State Supreme Court


In Pennsylvania, the proper method by which shares of liability are allocated to asbestos defendants (and strict liability defendants more generally) has been unclear for some time. The Supreme Court of Pennsylvania heard argument on March 6, 2019 in a case that should clarify matters and provide some certainty regarding the Pennsylvania Fair Share Act.

Background

The Pennsylvania legislature passed the Fair Share Act in 2011, eliminating joint and several liability from most tort cases. See 42 Pa. C.S. §7102. Under the Fair Share Act, each defendant is only liable for its apportioned amount of lability:

Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

42 Pa. C.S. §7102(a.1). From a practical standpoint, this provision of the Fair Share Act makes “pro rata” or “apportioned” allocation the default mechanism for allocating liability amongst tortfeasors in Pennsylvania.

Subsection (a.2) provides that “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” 42 Pa. C.S. §7102(a.2). This provision eliminates joint and several liability and makes all tortfeasors severally liable to the injured party except in a few defined circumstances. For instance, where a defendant is found more than 60% liable to plaintiff, that defendant is jointly and severally liable. See 42 Pa. C.S. §7102(a.1)(3).

Although the Fair Share Act specifically applies to “actions for strict liability,” trial courts have inconsistently applied pro rata allocation in asbestos strict liability litigation. Many courts have relied upon a prior version of the Fair Share Act which apportioned fault amongst strictly liable defendants on a per capita basis whereby each defendant is equally responsible for a portion of the verdict (e.g. five defendants would each be 20% liable).

Roverano

The Superior Court held in December 2017 that the Fair Share Act applies to both negligence and strict liability actions. See Roverano v. John Crane, Inc., 177 A.3d 892 (Pa. Super. 2017). In Roverano, a Philadelphia jury awarded $6.4 million to a former utility worker and his wife in an asbestos (lung cancer) lawsuit. The trial court ruled that the Fair Share Act did not apply and apportioned the judgment equally among the eight defendants determined to be tortfeasors. The two defendants left at trial appealed, arguing (1) that the Fair Share Act applies to strict liability matters and (2) that the jury may consider evidence of settlements with bankrupt entities in connection with apportionment of liability.

The Superior Court agreed, finding that “liability in strict liability cases must be allocated in the same way as in other tort cases, and not on a per capita basis” and that “settlements with bankrupt entities [may be] included in the calculation of allocated liability” under the Fair Share Act provided that defendants at trial “submit evidence to establish that the non-parties were joint tortfeasors.” Roverano, 177 A.3d at 909.

The Pennsylvania Supreme Court granted a petition for appeal in Roverano to settle these issues of “first impression” to determine the proper method of allocation in strict liability cases. The Roverano case was argued before the Supreme Court on March 6, 2018.

The justices were generally skeptical of proportional allocation of fault in asbestos litigation, finding that such an approach would lend itself to “junk science” over how fault should be apportioned between defendants. Further, the justices questioned how it would be possible for a jury to determine proportional fault in a “non-arbitrary way” in asbestos cases. Counsel for the defense argued that the Fair Share Act is specifically focused on apportionment of damages, not liability, such that the cause of action is not altered. Plaintiffs’ counsel asserted that it would be impossible for the jury to apportion fault in this manner where the medical community has not been able to do so in the asbestos context. Plaintiffs also argued that bankrupt entities should not be allowed on the verdict sheet because it would violate federal law that bars bankrupt entities from defending lawsuits.

Roverano presents an opportunity for the Supreme Court to set the record straight once and for all as to whether the Fair Share Act applies to strict liability litigation. It appears based on oral argument, however, that the Supreme Court is focused more narrowly on whether the Fair Share Act should apply in asbestos cases, entertaining argument as to whether it is medically and scientifically possible to do so at all. Some commentators were anticipating that the Supreme Court might – in the interest of predictability in products litigation – take a broader approach and establish a framework as to how liability should be apportioned generally in strict liability cases. A decision is expected in a few months.

Plaintiffs Claim “No One Has Ever Identified a Safe Level of Exposure to Asbestos.” Cal/Osha Begs to Differ.

If you have been in an asbestos trial lately you have probably heard the claim that “no one has ever identified a safe level of exposure to asbestos.” You may have seen power point slides sprinkled a smorgasbord of acronyms for regulatory agencies such as OSHA, NIOSH, WHO, IARC and more, all accompanied by the claim that they all say no safe level of exposure has ever been established. Leaving aside for the moment that all such pronouncements, if they occurred at all, would probably be hearsay, there is another fundamental problem with this  contention. While it may be true now that everyone says that,  it was not always the case. To the contrary, at least one notable regulatory agency said just the opposite, and said it repeatedly over many years. If one looks back to when the exposures were occurring and evaluates what was being said at that time, often a much different picture comes into focus than what the plaintiffs’ bar and their experts claim.

As a case in point, look at the State of California’s Department of Industrial Relations General Industry Safety Orders (“GISOs”) Title 8, Chptr 7 CA Administrative Code. These regulations had the force of law. They existed as early as 1936. Violations were punishable by fines and could be prosecuted as misdemeanors. The law has provided that a branch of the Department of Industrial Relations enforce the safety orders as adopted by the Board. In effect, therefore, a company must comply with the GISOs and follow the standard set by the regulators.

Plaintiffs’ assertion that no organization has ever declared that asbestos exposure is safe is factually and historically false. For example, in 1949, the GISOs indicated that asbestos exposures at a level of 5 million particles per cubic foot is “considered safe for men to work whether for brief periods or for full working periods daily for an indefinite time.” (Emphasis added.) Widening the hole in plaintiffs’ arguments, the 1949 GISO also stated that “differences of opinion are found among authorities. The [5 million particles per cubic foot is] given as an indication of current opinion and practice, doubts being resolved on the side of safety.” (emphasis added) Thus, even after considering all the differences of opinion available to the Department of Industrial Relations at the time, it still considered a certain level of exposure to asbestos as safe.

Subsequent revisions to the GISOs create even a greater issue for plaintiffs. Similar language was used again in the 1955 revisions. As late as 1968, the following language was included: “The following table represents airborne concentrations of substances which will provide a reasonably safe environment for nearly all workers. The concentrations represent conditions under which nearly all workers may be repeatedly exposed day after day without adverse effect.” Again, the 1969 GISOs indicate that exposures of 5 million particles per cubic foot or less are safe.

Defendants should be ready with these and other documents to rebut plaintiffs’ misleading generalizations during trial. Left unchecked, these statements can be detrimental to your case and be a factor for a plaintiff’s verdict. These type of statements are factually and historically incorrect, and the jury must be alerted to the true standard that companies were held to during the time of plaintiff’s alleged exposure.

California to Apply Sharia Law in an Asbestos Exposure Case!…Sort Of

A judge in the southern California coordinated asbestos matters issued an order applying Iranian law where all of a California plaintiff’s alleged exposure to asbestos occurred in Iran. In Sabetian v. Air and Liquid Systems Corporation, Judge John Kralik applied Iranian law on (1) punitive damages, (2) strict liability, and (3) joint and several liability. However, the court declined to apply the Iranian (1) standard of negligence, (2) the cap on general damages, and (3) the formula to determine loss of consortium damages.

Other judges in this court when presented with a similar issue have declined to apply Iranian law due to the religious influence on Iranian law. Judge Kralik nevertheless stated that “these provisions of law appear well-established, civil, and secular in nature…and these laws do not radically or offensively differ from traditions in the law of the various United States.”

Judge Kralik’s decision to apply Iranian law is a step forward for defendants who often face plaintiffs who now reside in California but allegedly were injured elsewhere. Judge Kralik’s decision relies heavily on McCann v. Foster Wheeler, LLC (2010) 48 Cal.4th 68, in which one of this post’s authors persuaded the trial court to apply Oklahoma law to a California resident suing a New York manufacturer for injuries caused by alleged exposure from asbestos-containing products in Oklahoma. In both McCann and Sabetian, plaintiff was a resident of California at the time of suit, but alleged exposure to asbestos elsewhere.

I. The governmental interest analysis

Similar to other jurisdictions, California applies the governmental interest analysis to determine choice-of-law inquiries. The analysis involves three steps: First, the court determines whether the applicable rules of law are different. Second, the court analyzes each jurisdiction’s interest in having its own law applied to the dispute. Third, the court determines which jurisdiction’s interest would be more significantly impaired if its law were not applied, and applies that jurisdiction’s law.

Here, Judge Kralik determined that Iranian law was materially different from California law. Both California, where plaintiff has lived for decades, and Iran, the “locus” of the injury, have an interest. Judge Kralik also determined that Iran’s interest would be more significantly impaired if Iranian law was not applied. The government of Iran would have a “strong interest in applying its own laws to a refinery it owned and an employee that it employed…California has little interest in legislating behavior at such refineries and oil fields.”

II. Iranian law applied

Because neither punitive damages or strict liability are recognized by Iranian law, the court ruled that defendants would be subject to neither in this case.

Iranian law does not recognize joint and several liability unless there is an explicit statutory exception. Plaintiff argued that a statutory exception existed for those determined to be an “employer” under the Civil Responsibility Act. Here, the court decided that it would apply Iranian law, but that it would issue a post-verdict determination of whether plaintiff has shown whether any of the defendants were “joint employers” for the exception to apply.

III. Iranian law not applied

The court declined to apply Iranian law in three areas, not because the “government interest” analysis was different but because either the court could not satisfy itself as to what Iranian law was on that point, or because the Iranian law offended American norms.

For example, the Iranian negligence standard of care is based on “custom and usage” rather than the California reasonable person standard. The court declined to apply the Iranian standard because there was a lack of authority explaining “custom and usage.”

Similarly, although Iran generally prohibits loss of consortium damages, the court ruled that “the prohibition is not established with sufficient clarity ion Iranian law to allow for application in this case.”

Iranian law has a cap on general damages that is set by reference to a memorandum prepared by unnamed Iranian government lawyers who have the power to alter the cap as they see fit. Judge Kralik declined to apply the Iranian limit because its apparently arbitrary nature could “offend fundamental due process if applied in an American court.”

IV. Conclusion

This decision offers hope that defendants will be able to apply the law of the jurisdiction in which the injuries allegedly occurred, rather than the law of a more plaintiff-friendly jurisdiction like California. Judge Kralik conceded that this issue had substantial grounds for difference of opinion and expressly invited appellate resolution. However, as of the posting of this article, plaintiff had not sought any appellate review.

“But Everyone Else Did It This Way:” Industry Custom Admitted in California Strict Liability Cases

The California Supreme Court has ruled that industry custom and practice may be admissible in a strict products liability action, “depend[ing] on the purpose for which the evidence is offered.” (Kim v. Toyota Motor Corp.) The decision is a win for product liability defendants. Many trial courts have ruled all industry custom and practice evidence irrelevant as to strict liability, while allowing it in negligence.

Disapproving several prior appellate decisions, the court ruled that such evidence is admissible for the purpose of “the jury’s evaluation of whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs.” In contrast, “[e]vidence that a manufacturer’s design conforms with industry custom and practice is not relevant, and therefore not admissible, to show that the manufacturer acted reasonably in adopting a challenged design and therefore cannot be held liable.” Thus, it is admissible, but never dispositive.

Mr. Kim was injured when his 2005 pickup rolled over and crashed on the Angeles Crest Highway. Plaintiffs alleged that if the pickup had been equipped with a safety feature that came as standard equipment on SUVs, it would not have rolled over. Toyota introduced evidence that no manufacturers included that feature as standard on pickup trucks. The trial court, Court of Appeal and Supreme Court all approved.

The issue … is not whether the manufacturer complied with a standard of care, as measured by prevailing industry standards, but instead whether there is something ‘wrong’ with a product’s design … because, on balance, the design is not as safe as it should be.

[E]vidence of industry custom and practice sometimes does shed light not just on the reasonableness of the manufacturer’s conduct in designing a product, but on the adequacy of the design itself.

Another description: industry practice “illuminates the relative complexity of design decisions and the trade-offs that are frequently required in the adoption of alternative designs.” The court was persuaded in part by the fact that trade association standards are admissible, and there seemed no logical reason to distinguish those standards from industry custom.

The court was also persuaded in part by the fact that plaintiffs themselves introduced industry custom evidence, such as the evidence that many manufacturers included the safety feature on their SUVs. “[T]he rule is a two-way street.”

Is this the proverbial camel’s nose in the allegorical tent, thus the beginning of the end of the rule against introducing custom and practice in strict liability cases? If no manufacturer of a particular product ever included a warning about a supposed toxin, is that relevant? If all manufacturers of a set of products allowed a trace amount of say benzene because it was so hard to eliminate it 100%, is that admissible in a strict liability case? If all employers operating a certain kind of facility adopted one level of protections against chemical exposure, even though more could almost always at least theoretically be done? The Kim decision arguably allows such evidence, but other courts may limit the effect of the decision.

There are at least two significant limitations to the reach of this decision.

First, it applies only to the risk-benefit strict liability test. Not consumer expectations, which plaintiffs more frequently assert.

Second, it applies to “industry custom and practice,” but not “state of the art.” “By ‘industry custom and practice,’ we refer to the use of the challenged design within the relevant industry—‘what is done’—as opposed to so-called ‘state of the art’ evidence, which concerns ‘what can be done’ under present technological capacity.”

This second limit may benefit defendants. What “can be done” for safety likely includes more than what others in the industry actually do.

The Kim result may be less notable in other jurisdictions: the decision recites it is joining “the majority of states that have permitted the admission of [such] evidence.” It is, however, a major development in California.

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.

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. Even though coffee cn affect your health, if you follow the best health tips from https://tophealthjournal.com/ you will be fine. 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, while also improving the health of the body with the use of exercise and strength training, for this you can buy legal steroids online to improve your performance on this.

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.

Government Contractor Defense Victory in California

A recent California decision describes a set of facts in which the government contractor defense can be successfully applied. Such circumstances have been few and far between.

In Kase v. Metalclad Insulation Corp., the appeal was from an order by San Francisco’s soon-to-be Presiding Judge Teri Jackson granting summary judgment to defendant.

12-2Mr. Kase claimed exposure to asbestos-containing insulation products while working on US Navy nuclear submarines in the 1970’s. The court pointed out that unlike other defendants who have in the past unsuccessfully attempted to assert the defense, Metalclad did not design or produce a piece of hardware or equipment. Instead, Metalclad was a broker of Unibestos. The court finds the government contractor defense was properly asserted for Metalclad while simultaneously acknowledging other decisions that have denied its application for equipment manufacturers. We are left with the predicament wherein a broker who distributes Unibestos can assert the government contractor defense, whereas an equipment manufacturer who has its products insulated with Unibestos cannot. The court notes that the record demonstrated that the Unibestos product at issue was never in the possession of Metalclad. Instead, Metalclad had only arranged for its delivery to the shipyard.

The opinion is lengthy, 28 pages, and includes several points benefitting potential government contractor defendants, including:

  • There is no “off the shelf” limitation to the application of the defense.
  • Products “incidentally sold commercially” may still qualify as military equipment.
  • Insulation specifications required, first explicitly and later impliedly, the use of asbestos. The court ruled that that if only asbestos will fulfill the performance requirements, then it is not necessary that the government specifications explicitly use the word asbestos. “Performance requirements can mandate a design choice, and the uncontroverted evidence is that it did so in this case.”
  • There was no duty to warn as the Navy “was well aware of the potential hazards of asbestos.”
  • Similarly, although this case did not involve “back and forth” negotiations characteristic of other successful government contractor defenses, that not necessary. “We recognize this is not a case involving substantial “back and forth” between a government agency and a contractor designing a unique piece of equipment, such as an aircraft or transport vehicle. [Citations omitted] No case involving that scenario, however, has involved the decades of naval studies and investigations, and the history of naval specifications, unique to the universe of asbestos cases.”
  • Unibestos had asbestos warnings on its insulation products not later than 1968.

While this decision is certainly good news for Metalclad and other similarly situated defendants, other courts may limit it to the specific facts of this case. It seems odd that a company that arranges for the delivery of boxes of Unibestos to the shipyard is protected from liability, while the company that ships its pumps to the same shipyard with comparatively miniscule rings of asbestos containing packing inside their pumps nevertheless is frequently denied the same defense. Perhaps arguing this inconsistency will gain some traction for government contractor equipment manufacturers in the future.

Criminal Prosecution and “Restitution” in Toxic Tort Cases?

As they are wont to do, the voters in the State of California in 2008 passed an initiative amending the state constitution. The admirable purpose was to ensure that victims of crimes, who suffered pecuniary loss as a result of a crime would have a right to monetary “restitution” from the criminal. There is now a plethora of statutes and regulations governing who may seek restitution in California, in what amount and under what circumstances (see California Government Code section 13959 et seq). Numerous other states have their own statutory schemes providing for similar rights, and working with specialized lawyers like David Mirsky could help bring resolution for cases happening in these states. Indeed, there are lawyers you can find on the internet who proclaim their expertise in obtaining restitution for victims.

You might ask what that has to do with toxic torts? But think of all the statutes and regulations that make toxic spills, releases or dumping a crime. As an example of how this constitutional amendment might impact a toxic case in California, consider our recent experience in Santa Clara County, CA.

A client was in the business of selling, and sometimes delivering, chemicals for public swimming pools. One on occasion, the unfortunate happened: the wrong chemical was placed in the wrong tank and a cloud of potentially hazardous gas was released at the pool. Numerous swim instructors and patrons of the pool were exposed. Paramedics, ambulances, fire trucks, police vehicles, and even TV news helicopters were soon on the scene.

Though to our knowledge none of the exposed people suffered anything more than transitory discomfort, the District Attorney elected to pursue a criminal prosecution against the deliverer of the chemicals.

California’s Health and Safety Code section 42400.1(a) makes it a criminal misdemeanor to cause a “negligent emission of air contaminants” under certain circumstances:

Any person who negligently emits an air contaminant in violation of any provisions of this part or any rule, regulation, permit or order of the state board or of a district pertaining to emission regulations or limitations is guilty of a misdemeanor and is punishable by a fine of not more than twenty-five thousand dollars ($25,000), or imprisonment in a county jail for not more than nine months, or by both that fine and imprisonment.

The chemical delivery man was arrested, he and his corporate employer were prosecuted and pled nolo contendere to the criminal charges.

Pursuant to California Penal Code section 1191.2, the Probation Department and the District Attorney undertook to ensure that all the victims were provided information regarding their rights, including the right to seek monetary restitution. The Probation Department is directed to contact each victim for which it has a mailing address. Curiously, the Court of Appeal of California has held that this language is “directory” as opposed to “mandatory,” so that the Department has some latitude in deciding when to issue such notice (People v. Superior Court (1984) 154 Cal.App.3d 319.) Several victims did provide information supporting such claims for pecuniary losses and the court ordered restitution to be made.

This process did not include or even contemplate the filing of a civil complaint. There was no formal discovery and certainly no depositions. No records were subpoenaed, and no sworn testimony was heard. There was no trial, though there was a hearing before the court when it considered adopting the recommendations of the Probation Dept. for orders requiring restitution.

The number of questions and issues proceedings like these may raise in any subsequent civil case for damages is daunting. Certainly one has to think of res judicata or collateral estoppel. And does insurance coverage play a role in paying the restitution or any part of it? The answers to these questions will vary depending on the jurisdictions, statutes and insurance policies that are at play in any given case. We were frankly very surprised to learn that there was going to be a criminal prosecution in connection with our swimming pool chemical mishap case and an order for restitution entered. Defense counsel should be cognizant of the possibility for criminal prosecution affecting the disposition of cases involving purportedly hazardous chemical exposures.

The HPV-Lung Cancer Link: A New Issue for the Asbestos Bar?

011516_hpv_THUMB_LARGELong known for its link to cervical cancer, recent medical research suggests a potential link between the Human Papilloma Virus (“HPV”) and lung cancer. While the science in this field is still developing, it is trending towards a conclusion that HPV may independently cause lung cancer in non-smokersincluding those that have never smoked —  and may also contribute to the causation of lung cancer in smokers and former smokers.

Two recent papers have addressed this hypothesis. The earlier is HPV and lung cancer risk: A meta-analysis from Zhai et al in the Journal of Clinical Virology 63 (2015) 84 – 90.  These authors looked at nine published studies spanning 1995 to 2013 and covering 1094 cases of lung cancer.  They set the context by commenting that “Lung cancer (LC) is the most common cause of morbidity and mortality worldwide”  and “approximately 25% of those with LC are never smokers.”

The authors broke out their results for HPV in general, and for subtypes such as HPV 16 and HPV 18.  For HPV in general they reported:  “A statistically significant association was observed  between HPV and LC patients” and recorded an Odds Ratio (OR) of 5.67 with a 95% confidence interval.  Compare that odds ratio for the similar calculations that are discussed in asbestos disease cases involving auto mechanics for example. They then looked at specific subtypes of LC and noted:

We also evaluated the cancer risk of HPV16/18 in different LC histological types. In SCC (squamous cell cancer), HPV 16/18 was significantly associated with cancer risk (OR=9.78, 95% confidence interval: 6.28 – 15.22, P<0.001, l2=44.9%); however, OR was not significant in AC (adenocarcinoma) (OR=3.69, 95% confidence interval: 0.99 – 13.71, P= 0.052; l2 + 75.5%).  [Author’s note:  this OR is not “significant” because the 95% CI includes 1, but just barely so.]

In discussing their findings, these authors note that “Most people are infected with HPV at some point in their lives, but only persistent infections cause pathological changes.” They reiterate their conclusion that HPV plays a distinct role in the pathogenesis of different LCs.  They ultimately address the elephant in the room by stating “Whether smoking interacts with HPV to promote the development of LC is unclear.”

A second recent paper is Human papillomarivirus infection and risk of lung cancer in never-smokers and women: an “adaptive” meta-analysis; Bae et al, Epidemiology and Health 37 (2015).  One of their initial observations is: “The increasing incidences of lung cancer among women never-smokers is a global trend {citations omitted} and it has been suggested that lung cancer in never-smokers should be considered separately, a disease different from lung cancer in smokers {citations omitted}.”  These researchers note the work of Zhai discussed above and comment that they are expanding on it by analyzing women and never-smokers.

These researchers ultimately focused on four case control studies and calculated a “summary odds ratio” (SOR).  They found a SOR for women of 5.32 and for never-smokers of 4.78.  The authors conclude that the risk of HPV caused lung cancers for women never-smokers was expected to be even higher.

Given the substantial increase in asbestos-related lung cancer civil case filings over the past five years, the hypothesis, if ultimately proven, could result in novel new claims by both plaintiffs and defendants in the litigation. This issue has already arisen in a recent California case, in which a core needle biopsy of the lung tumor of the plaintiff was obtained and reviewed by two defense pathologists.  Administering an accepted immuno-histochemical test to that tumor tissue, the pathologists found it to be positive for P16, signifying the presence of the HPV  in the tumor.  From that, both experts were prepared to opine that the presence of the HPV in this plaintiff more probably than not caused or contributed to her cancer. The literature discussed above was part of the scientific basis they were prepared to point to in support of their conclusion.    Therefore, while more research may be indicated, in lung cancer cases for which tumor tissue is available, defense counsel may want to consider if testing for the presence of HPV is indicated.