“Dream Scenario” For Defense with Bad Science Behind Herbal DNA Testing

By on April 7, 2015

Gordon & Rees partner James Scadden was interviewed and quoted in a recent article on Forbes.com titled “‘Dream Scenario:’ Herbal Supplements Sitting Pretty After AG’s Blunder.”

The article discusses major flaws in a report by the New York State Attorney General’s office condemning the supplements industry – particularly products sold by GNC – as not containing the herbal substances as labeled. Following the report, GNC’s stock declined 5% following the cease-and-desist letter that was sent to GNC as well as other retailers including Target, Walgreens, and Walmart. That action was based on DNA test findings that only 21% of samples actually contained the plants or herbs advertised. Members of the plaintiffs’ bar have initiated lawsuits based upon the alleged mislabeling.

However, it has since become apparent that the research methods used in the study were both unreliable and misleading. In the process of making supplements, DNA is necessarily eliminated or denatured during the extraction and purification process. Had significant DNA indicators been found, it would have meant the products were poorly made. Thus, the New York AG got it backwards, and wrong, i loved this article since it helped me understand what supplements you actually need.

helix

The AG’s misguided report came under fire from third-party experts who are critics of the supplement industry. While they lobby for the public to be better informed as to the possible hazards of herbal supplements, they recognize that unsupportable investigations are a disservice to that purpose.

In commenting on the story, Scadden said, “The fact that third-party experts typically critical of the industry have now challenged the methodology used by the New York State Attorney General is a dream scenario for any attorney representing a company responding to a lawsuit. The common attack on expert defense testimony is to question the impartiality of the expert and to assert that the expert is somehow beholden to the defendant that hired them. But when those same experts have acted in the past as critics of companies in the same industry, it allows for unassailable arguments about that expert’s impartiality and credibility. Lawyers defending companies in the supplement industry will now happily point to the work of past critics of the industry to defend cases,” he concluded. The complete article can be read by clicking here.

Surprisingly, several days thereafter the New York AG called a press conference to announce a settlement with GNC whereby GNC agreed to certain DNA testing of their products. The testing will be performed under a different protocol than that used by the AG so as to provide results that actually provide relevant information regarding the source materials for the supplements. GNC also agreed to broad testing for contaminants, basically allegans, agreed to post information on their website and to place informational signs in their stores, and finally to provide annual reports to the New York AG regarding their DNA testing of their products.

There may be some expectations that other suppliers will act in a similar fashion, but it must be remembered that such conduct is not required by law and that the Congress after due deliberation has implemented its own scheme that was felt to be appropriate There is also the danger that when you attempt to accomplish what are felt to be remedial efforts by a piecemeal approach through multiple cases or various jurisdictions, you can end up with inconsistent, poorly reasoned results.

It is unlikely that what GNC has done will become an industry standard because it does not have the force of law, and the industry itself and its products are so diverse that there is no “one size fits all” response to the concerns described by the AG. Further, in some jurisdictions, doing what GNC has committed to do may actually leave a supplier in technical noncompliance with other state laws. For example, in California there is a separate regulatory regime which requires labeling in certain circumstances. The labeling in California is dictated by regulations and would arguably not be consistent with what GNC has agreed to in New York.

The recent activity of the NY AG and the response by GNC will certainly generate extensive discussion in the industry, though it is yet to be seen what changes may result.

Filed under DNA, Expert Witness, Herbal supplements

Greater Transparency re: Asbestos trust claims soon to be ordered in Los Angeles

By and on March 13, 2015

The Superior Court for the County of Los Angeles for many years now has handled a busy asbestos docket with numerous cases proceeding through trial and many more resolved before a verdict is rendered.  The court handles cases brought by many prominent plaintiff firms with national presences.  It is therefore interesting to see this court follow the lead of other courts and various legislative bodies in preparing to mandate greater transparency regarding claims made to bankruptcy trusts.

The asbestos docket in Los Angeles is managed by Judge Emilie Elias.  Judge Elias has conducted a series of meetings/hearings regarding the proper scope of discovery regarding claims made to bankruptcy trusts with argument and briefing submitted on behalf of many defendants and several prominent plaintiff firms. The court recently issued an order regarding its tentative decision regarding these issues.

Attached is a copy of that recent order.  The court has requested comments to this proposal on or before March 20, 2015.  In general, this order is extremely favorable to Defendants. The proposed order makes the following significant additions to the discovery requirements in all cases in the Los Angeles asbestos docket:

    1. An authorization from plaintiff for release of claimant information submitted to an asbestos bankruptcy trust;
    2. Additional interrogatories included within the “standard” discovery.  The existing discovery included 4 questions regarding claims to bankruptcy trusts.  These are now augmented by 6 more questions requiring extensive information regarding exposure to the products of, or on the premises of, dozens of identified trusts.  Further the new order will require that such responses be updated not later than 5 days before trial, regardless of whether a claim has been made or will be made to such bankrupt entity.
    3. Broad orders requiring the disclosure of claims and any other communications with all trusts. In particular the court finds “all documents sent to, received from, shown to, exchanged with, or otherwise disclosed to any established or pending asbestos trust funds — for any purpose” to be discoverable. The order indicates that “Plaintiffs shall produce” all such materials;
    4. The production of documents ordered by the court further includes “ballots, questionnaires, submitted or filed forms, summaries, claims, ‘placeholder’ claims, request for extensions, requests for deferrals, all supporting documentation, all related communications, and all documents filed … pursuant to Rule 2019 of the Federal Rules of Bankruptcy Procedure.”   This order is meant to require production of some of the required and verified disclosures that must be made by any “groups, committees and entities” that represent “multiple creditors” in a Ch.  9 or 11 proceeding. In past asbestos-related bankruptcies, these filings were not generally accessible to the public as they would be in a normal bankruptcy.  Garlock had made attempts to obtain such documents, but the bankruptcy courts had  rejected those attempts. (Therefore Judge Elias’ order specifically ordering the production of these may be the first discovery order to specifically mention them in this context.)
    5. The court also requires production of signed affidavits or declarations that “have been circulated to someone other than plaintiff and plaintiff’s counsel” as they are not privileged.  Thus any declaration sent to a trust must be disclosed.

The court has indicated that these changes, if finalized, will be applicable to all cases filed after Feb. 1, 2015 and will be applicable for only a 6 month trial period, but the expiration of the trial period will not sunset the order unless further modified.  Defendants have filed a brief seeking clarification of this limited period of application, and perhaps other components of the order.  The plaintiffs’ bar has consistently shown a great deal of interest in this order and it is likely that they will file additional papers and perhaps even seek appellate review. However, in the meantime, this prospective order is good news for the defense seeking further transparency on this issue.

Filed under Asbestos, Asbestos Bankruptcy Trust, Los Angeles

No In-State Dealings For Years? No Jurisdiction

By on January 9, 2015

We previously analyzed the U.S. Supreme Court’s decision in Daimler A.G. v. Bauman and its effects on California personal jurisdiction law. We have been following the progress of courts applying this significant decision. Federal courts have now begun applying Bauman in the context of asbestos personal injury lawsuits, many hundreds of which are filed in state and federal courts each year in California alone.

The potentially far reaching impact of Bauman is demonstrated by the recent order of Judge Barry Ted Moskowitz of the United States District Court, Southern District of California.  The moving papers argued that there was a lack of personal jurisdiction over the defendant, a pump manufacturer defendant in a mesothelioma case, and the court agreed.  The defendant pump manufacturer had apparently sold pumps to a contractor for installation on Navy ships at shipyards in CA.  Admittedly the order of Judge Moskowitz relies upon the specific facts of the case, but the court’s analysis suggests that similar results may be found in favor of other defendants.

The court explained that there are two types of personal jurisdiction: general and specific.  Specific jurisdiction arises when the defendant’s contacts with the forum state gave rise to the suit.  Here, the plaintiffs did not claim that specific jurisdiction existed.   One could postulate specific jurisdiction, for example, in a case in which the pump was worked upon in the forum state, but apparently such facts did not exist in this case.

The court then moved to an assessment of general jurisdiction.  The court found that the evidence presented did not demonstrate that the defendant was “essentially at home” in California so as to establish general jurisdiction.  The court considered “all of the defendant’s contacts with the forum state over a period of years prior to the filing of the complaint,” commenting that typically courts have examined “a defendant’s contacts with the forum state over a period of three to seven years prior to the filing of the complaint.”

As in all asbestos cases, the exposure in question occurred decades ago, and in later years the contacts which the defendant in question had with California dwindled to nothing.  Indeed the evidence showed that the defendant had only one transaction in the state of California after 1986.

Not every defendant will be able to demonstrate such minimal contacts with the forum state as applicable in the instant case.  But how much contact will be necessary to show that a defendant is “essentially at home” in the forum state?  It would seem that many defendants may be in a position to argue that they are not.  No doubt other defendants will be testing the limits of this new standard for general personal jurisdiction whenever they sued in a forum other than the place where the alleged tortious conduct occurred.  We look forward to following the progress of such cases.

Filed under Jurisdiction

Requirements for Asserting Government Contractor Defense Depend on the Court

By on November 3, 2014
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A recent decision from the U.S. District Court for the District of New Jersey strikes a startling contrast with a recent decision from the 9th U.S. Circuit Court of Appeals.  Both cases involved removal of state court actions to federal court under the authority of the federal officer removal statute, 42 U.S.C. § 1442(a)(2).  Both decisions turned upon the question of whether the removing defendant had provided adequate evidence of governmental control over warnings to be provided to the military by equipment vendors. The question is whether a defendant must show that the government affirmatively forbade warnings by product manufacturers. New Jersey says yes, the Ninth Circuit says no, and the standard enunciated in New Jersey cannot be harmonized with the standard enunciated by the 9th Circuit.

The 9th Circuit case, Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014), addressed an appeal of a denial of a motion to remand.  The removing parties were equipment manufacturers providing equipment to the U.S. Navy. The court stated, at page 1123:

Contrary to plaintiffs’ assumption, Crane need not prove that the Navy would have forbidden it to issue asbestos warnings had Crane requested the Navy’s approval. As we held in Getz, the government contractor defense isn’t limited to “instances where the government forbids additional warning or dictates the precise contents of a warning.”

The cited Getz opinion stated:

We are not persuaded by Plaintiffs’ suggestion that our decisions in Butler and Hawaii Federal Asbestos limit the defense to cases in which the government specifically forbids warnings altogether or to instances where the government explicitly dictates the content of the warnings adopted. These cases only require that governmental approval (or disapproval) of particular warnings “conflict” with the contractor’s “duty to warn under state law.” . . . To read these cases as limiting preemption to those instances where the government forbids additional warning or dictates the precise contents of a warning would be inconsistent with the Court’s decision in Boyle.

Getz v. Boeing, 654 F.3d 852, 867 (9th Cir. 2011) (citations omitted).

In the recent decision of Papp v. Fore-Kast, 2014 U.S. Dist. Lexis 143787 (D. N.J. 10/23/14), the court ruled the other way in another case involving removal by a defendant that manufactured equipment for the military.

Although, to be sure, Defendants have succeeded in demonstrating that the military tightly controlled both the design and manufacture of the C-47 and its constituent components through the various guidelines and official specifications proffered by Boeing, not one of these documents indicates that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties, such as Keck, worked or otherwise provided services.

Papp emphasized its position that federal officer removal is improper unless the government specifically directed the manufacturer to not give warnings.

[W]hat few documents Fogg does reference in the remaining paragraphs of the declaration devoted to the issue of warnings either miss the mark, or otherwise do not contain any explicit directive by the military that Boeing was not to provide any warnings to third parties in the position of either Keck or Papp.
. . .
Nowhere in that document is there a specific or explicit instruction by the military that Boeing is precluded from issuing its own warnings.

Papp relies heavily on Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124 (3d Cir. 1998).  Thus decisions from the 9th and the 3rd Circuits appear to be at odds with each other. It is interesting to note that in Getz, the removing party was Boeing and the product at issue was a MH-47E Chinook helicopter. In Papp, the removing party was again Boeing and the product at issue was a C-47 airplane.  Curiously, the Papp decision makes no reference to Getz or Leite.

It does not seem possible to reconcile the opinions of these courts. One would like to think that the successful exercise of a statutorily established right would not vary so obviously based only upon the location of the court hearing the matter.  The U.S. Supreme Court recently denied review of Liete.  Perhaps this conflict may yet persuade SCOTUS to reconcile the differences.

Filed under Federal Officer, Remand, Removal

Support for the Friction Defense in the Federal Register

By on October 28, 2014
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The Federal Register is the official publication of the U.S. government, for which judicial notice may be appropriate in many instances. It is in this record that the Occupational Safety and Health Administration, the Environmental Protection Agency, the Consumer Product Safety Commission and others have made their case for regulatory control of potential exposure to asbestos. There are many entries in this record that provide support to arguments of friction defendants in asbestos personal injury litigation matters. This post will focus on consistent regulatory findings that the exposures for automotive mechanics are very modest and routinely well below the applicable regulatory limits in place at any given time.

It is important to place the OSHA regulations in context. It is not uncommon for plaintiffs’ counsel to argue that the exposure limits established by OSHA were not meant to guarantee a “safe” workplace, and that it is not determinative to demonstrate that exposures for automobile repair workers were within the regulatory limits, on the rationale that  the regulatory limits allowed for residual risk for some workers. Such an argument, however, assumes that OSHA regulators ignored their own mandate. “[I]n promulgating standards dealing with toxic materials or harmful physical agents under this subsection, [the secretary of labor] shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” 29 U.S.C. §651 and §655) (b) (5) [OSHA].

Thus, if OSHA does its job in accord with its mandate, it is promulgating standards such that no employee would suffer material impairment as a result of a lifetime of exposure. In OSHA’s submission to the Federal Register in Nov. of 1983 in support of its proposed emergency temporary standard to reduce the permissible exposure limit from two fibers per cc as a time-weighted average (TWA) to 0.5 fibers per cc as a TWA (48 Fed. Reg. 51086), OSHA notes that it is relying on government contractor reports, various studies in the reported literature, National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluations, and OSHA compliance data and field inspection experience to estimate exposure (48 Fed. Reg. 51092).  The table created by OSHA to detail the estimated exposure to various occupations describes the exposure for brake repair work done in garages and brake repair shops to be 0.15 fibers per cc on an eight-hour TWA, and similar exposure in “gasoline stations” to be less than 0.1 fibers per cc on an eight-hour TWA (48 Fed. Reg. 51093). Thus, the extensive information accumulated by OSHA, and modified by OSHA’s own field experience, indicates that the anticipated exposures for automotive mechanics was already well below the emergency temporary standard proposed for enactment.

In June 1986, OSHA made its record regarding amendments to its present standard for regulating occupational exposure to asbestos. The new standard was set at 0.2 fibers per cc as an eight-hour TWA, with an “action level” of 0.1 fibers per cc as an eight-hour TWA, the level above which employers must initiate certain compliance activities (51 Fed. Reg. 22612). OSHA’s submission in support of this new standard is massive, comprising more than 120 pages in the record. There is a wealth of information, including several entries regarding the anticipated exposures for automotive mechanics, which are not entirely consistent. In particular, at page 22662, OSHA submits that it has relied upon its own MIS compliance database and a November 1982 study by the National Institute of Occupational Safety and Health, which in turn contained 47 observations for the period of 1979 through 1984. Those observations of automotive brake and clutch repair facilities showed a mean eight-hour TWA exposure of 0.03 fibers per cc. Just three pages later, at 22665, OSHA inserts into the record a table estimating the occupational exposure to asbestos in the general industry for 1984, and describes automotive repair as having a level of exposure of 0.06 fibers per cc.

Whether one adopts the 0.03 fiber per cc figure or the 0.06 fiber per cc figure, both are well within the proposed new standard of 0.2 fibers per cc.

In September 1988, OSHA submitted into the record an amendment to its rules establishing a short-term exposure limit (STEL) of 1 fiber per cc averaged over a sampling period of 30 minutes. This was in addition to the previously announced reduction of the PEL to 0.2 fibers per cc over an eight-hour TWA.

OSHA admits it has no specific data regarding short-term exposures for automotive mechanics (53 Fed. Reg. 35613). Nevertheless, with little explanation, OSHA indicates that it has “estimated” that 5 percent of the population of automotive repair workers may have exposures exceeding the 1 fiber per cc STEL. OSHA goes on to suggest that by utilizing a particular dust suppression technique (the use of solvent spray to remove brake drum dust), the eight-hour TWA exposure for mechanics could be reduced from approximately 0.13 fibers per cc to 0.06 fibers per cc (53 Fed. Reg. 35615). The source of this figure of 0.13 fibers per cc is not entirely clear, and is not consistent with OSHA’s “estimates of occupational exposure” for automotive repair services at 0.06 fibers per cc as articulated in 1986 (51 Fed. Reg. 22665). Regardless, it appears that OSHA is indicating that 95 percent of the mechanics’ population is already achieving exposures less than 0.13 fibers per cc, and that the remaining 5 percent can easily do so by simply using solvent spray bottles. Indeed, OSHA concludes that should this offending 5 percent portion of the population of mechanics adopt appropriate precautions, the entire industry would be in compliance with the newly announced reduced PEL and the proposed STEL.

The EPA again takes a position regarding the potential exposure of automotive mechanics in its July 1989 proposal, which would prohibit the future manufacture, importation, processing and distribution of asbestos in almost all products (54 Fed. Reg.  29460).  In a curious twist, the EPA elects to describe exposures in terms of millions of fibers breathed per year (106 fiber per year). The EPA notes that assuming an eight-hour workday, with 250 days of work per year and a breathing rate of 1.3 meters cubed per hour, 100 million fibers breathed per year equals an exposure of 0.038 fibers per cc (54 Fed. Reg. 29475). Using this scale, the EPA then inserts into the record a table wherein it has “estimates” of occupational exposures (54 Fed. Reg.  29475).  The EPA estimates that the exposure associated with the repair and disposal of drum brake linings is 376 million fibers per year. A similar number for working upon disc brake pads on lightweight and medium-weight vehicles is 386 million, for disc brake pads on heavy vehicles 390 million, and for brake blocks 388 million fibers per year. Thus, if 100 million fibers per year equals 0.038 fibers per cc on an eight-hour TWA, then 376 million fibers per year equates to a TWA exposure of 0.143 fibers per cc. Why the EPA elected to utilize these “estimates” rather than the hard data previously accumulated and commented upon by OSHA and NIOSH remains unexplained. Nevertheless, this estimated number remains well within the then-applicable OSHA PEL of 0.2 fibers per cc, while admittedly exceeding the OSHA “action” level of 0.1 fibers per cc.

However, the validity of this estimate is immediately called into question by additional language from the EPA. In this same submission, the EPA states, “The 8 hour TWA exposure level for the servicing of disc and drum brake systems is estimated to average 0.05 fibers per cc” (54 Fed. Reg. 29492). In support of this estimate, the EPA cites its own “Asbestos Exposure Assessment, Revised Report”(March 21, 1988).  Again, if the EPA was already in possession of its assessment report describing exposures from servicing disc and drum brake linings as averaging 0.05 fibers per cc, why would the EPA find it necessary to create an alternative scale of potential exposure that erroneously suggests much higher levels? Clearly, the more reliable number is that supported by the “Asbestos Exposure Assessment, Revised Report” quantifying average exposures for automotive mechanics at 0.05 fibers per cc. Perhaps such inconsistent logic helps explain why the EPA’s proposed ban on asbestos-containing products was struck down by the court in Corrosion Proof Fittings v. EPA (5th Cir. 1991, 947 F.2d 1201).

OSHA confirms yet again its position regarding potential exposures for automotive mechanics in July 1990 when it enters a submission in the record with regard to a supplemental rulemaking for occupational exposures to asbestos. OSHA then proposes lowering the PEL to 0.1 fibers per cc as a TWA (55 Fed. Reg. 29712).  In this submission, OSHA specifically addresses the question of whether it should adopt an action level of 0.05 fibers per cc. OSHA specifically rejects this possibility as “OSHA does not believe that more than a de minimis benefit would result from a 0.05 fiber per cc action level. . . .” OSHA goes on to explain that it “does not believe that a reduction of the action level would lead to an expansion of the training for brake repair workers, because based on OSHA’s data most such workers have exposures below 0.05 fibers per cc” (55 Fed. Reg. 29722).  Thus, OSHA is supporting the contention that the exposure for most brake mechanics is not more than 0.05 fibers per cc, which would be consistent with the 1988 “Asbestos Exposure Assessment” of the EPA.

OSHA goes on to describe that its assessment of the potential exposure for automotive mechanics is based upon its own MIS compliance database and from a November 1982 study by NIOSH. As discussed above, the OSHA data contained 47 observations of asbestos fiber release resulting from brake servicing operations with a mean eight-hour TWA exposure of 0.03 fibers per cc for the time period from 1979 through 1984. An analysis of additional OSHA data collected from 1986 to 1989 yielded a mean of 0.012 fibers per cc as an eight-hour TWA in those samples in which any fiber was detected (55 Fed. Reg. 29722).  OSHA goes on to estimate the “current occupational exposure estimates for general industries” as reflected in Table 1 at page 29734, describing the estimated mean exposure level for “Auto Repair: Dry Mechanical” to be 0.015 fibers per cc.

In summary, over the years OSHA and the EPA have considered automotive brake mechanic work to create a potential for exposure. Both have consistently lobbied for ever-increasing restrictions on the potential exposures for mechanics. However, at the same time, the exposure data collected by these two regulatory agencies and their own estimates of potential exposures consistently have indicated that mechanics confront only modest potential exposures, routinely within the regulatory limits that have applied over the years.

Filed under asbestos exposures, friction exposures, OSHA regulations

Delayed Filing of Birth Defect Actions: Toxic Tort Exception to the General Rule in California

By and on October 7, 2014
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In Nguyen v. Western Digital Corp., the California Court of Appeal, Sixth Appellate District concluded that a child born in 1994 with pronounced birth defects purportedly caused by in utero exposure to various chemicals at the “clean room” workplace of her mother could nevertheless timely file an action against that employer in 2010.

The primary issue was which California statute of limitations applied, the six-year statute for pre-birth injuries (Code Civ. Proc., § 340.4) or the statute related to exposure to toxic substances (Code Civ. Proc., § 340.8). The two-year toxic statute of limitations is, however, tolled during a plaintiff’s minority.

Nguyen grappled with these issues through more than 30 pages of detailed legal analysis and interpretation of legislative intent, and ruled in favor of the plaintiff.

Construing both section 340.4 and section 340.8, we hold that claims based on birth or pre-birth injuries that are due to exposure to hazardous materials or toxic substances are subject to the limitations period in section 340.8. We also hold that even though section 340.8 did not take effect until almost 10 years after Plaintiff was born, it applies in this case because the allegations of the third amended complaint support a claim of delayed accrual until December 31, 1998. And since Plaintiff’s claims did not accrue until that date, they were not barred by the six-year limitations period in section 340.4 (pre-birth injuries) on January 1, 2004, when section 340.8 (toxic exposures) went into effect. Moreover, since Plaintiff’s claims were subject to the limitations period in section 340.8 when it took effect, she is entitled to tolling for minority that applies to section 340.8 claims. Thus, her action filed on October 25, 2010, when she was 16 years old, was timely.

The plaintiff had adequately alleged “a claim of delayed accrual until December 31, 1998” because that was allegedly “the last possible date that ‘health service providers affiliated with . . . [employer] falsely represented to [parent] . . . that there was no causal connection between [parent’s] occupational chemical exposure and [Plaintiff’s] injuries.’ ”

The court analyzed the application of the two statutes by first looking at section 340.4:

Since the allegations of the third amended complaint support a claim of delayed accrual until December 31, 1998, [Plaintiff]’s claims were not barred by the six-year limitations period in section 340.4 (pre-birth injuries) on January 1, 2004 when section 340.8 (toxic exposures) went into effect.

Having resolved the question of a possible bar by the earlier-enacted section 340.4 favorably for the plaintiffs, the court moved on to the later-enacted section 340.8:

Since her claims had not yet expired, she was entitled to rely on the statute of limitations in section 340.8, which included tolling for minority. Thus, [Plaintiff’s] action filed on October 25, 2010, when she was 16 years old, was timely.

It is difficult to say how far-reaching this decision may become with regard to birth defect cases in California.  Perhaps it will have no effect other than on cases involving children born within six years prior to the January 1, 2004, effective date of the toxic tort statute. Further, in this opinion the court had to take all of the plaintiffs’ allegations as truthful, since the ruling in the court below was at the demurrer stage, and pursuant to rules of statutory interpretation the court was obliged to seek any set of facts that would allow for a conclusion that the action was timely filed. The court found such a set of facts by accepting the contentions of the family that they did not suspect any chemical cause of the birth defects as of 1998 such that one statute did not extinguish the claim, and then supplanting that statute with application of a second, later-enacted statute so as to afford the family more time to file.

It could have been worse. The plaintiff also alleged that pursuant to the discovery rule, the action should not be deemed to have accrued until 2008, when family members heard on the radio that attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry … contacted the attorneys and “learned for the first time” of the potential harm from the chemicals at work. Nguyen did not address that issue, because it found the action timely on other grounds. If the plaintiff’s argument was adopted, it would essentially mean that attorney advertisements would become the trigger for statutes of limitations, which in turn would mean the certainty of the statute would vanish.

Perhaps the lesson to be learned here is that defeating what initially appears to be a stale birth defect claim by application of the statute of limitations in California is going to be a difficult, but not impossible task. The Sixth Appellate District issued two other unpublished decisions (meaning they cannot be cited as precedent in California) also interpreting application of the California statutes of limitations and the discovery rule in “clean room” cases involving delayed filing of actions for birth defects.  In one, Ovick v. National Semiconductor Corp., the ruling of the trial court dismissing the action at the demurrer stage was reversed.  In the second, Studdendorf v. National Semiconductor Corp., the court sustained a dismissal at the demurrer stage. While the case cannot be cited, it may still have value in suggesting a way to convince a court that the discovery rule means something other than an attorney telling you it is a problem.

In Studdendorf, as in the other cases, the plaintiffs alleged that “Parents did not know [the child’s] birth defects were caused by workplace exposure to hazardous chemicals until December 2008, when they heard on the radio that their attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry.” One key difference in this case: “But Plaintiffs also allege that around the time Christopher was diagnosed with retinoblastoma in October 1987, Parents asked [their employer] ‘whether they had worked with or otherwise been exposed to any hazardous chemicals.’ ” In 1987, only the six-year statute was in effect, so the plaintiff “was required to file suit within six years of discovery, or no later than October 1993.”

Parents suspected that Christopher’s injuries were caused by chemical exposure in their workplace. The averments of the second amended complaint support the conclusion that they suspected both wrongdoing and the alleged cause of Christopher’s injuries shortly after the diagnosis when they went to NSC and asked “whether they had worked with or otherwise been exposed to any hazardous chemicals.” The use of the word “hazardous” supports the conclusion that Parents suspected something in their work environment was dangerous to human health; not simply a cause, but a wrongful cause.

Thus, defendants in long-delayed birth defect cases should pursue any evidence that parents asked employers, or for that matter perhaps doctors or anyone else, about possible causes of harm near the time the defects first became apparent.

Challenges to the timeliness of such actions must be considered and made.  And if at first the defense does not succeed, similar arguments can be resurrected after discovery and investigation through a summary judgment motion.  In the final analysis, it may remain difficult to convince courts to dismiss such cases on statute of limitations arguments. The rules of statutory interpretation allow the courts to seek a means of maintaining actions that have such strong emotional appeal.

 

Filed under birth defects, Clean Room, Statutes of Limitations

More Chemicals (DBAs) Slated for Warnings – But Where Will They Put the Warning Labels?

By on September 5, 2014
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On November 19, 2014, California’s OEHHA will conduct a meeting to determine whether a group of chemicals known as Dibenzanthracenes (DBAs) should be listed as known  to cause cancer. For those of you not familiar with the OEHHA, it describes its authority and function thusly:

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). The Carcinogen Identification Committee (CIC) advises and assists OEHHA in compiling the list of chemicals known to the State to cause cancer as required by Health and Safety Code section 25249.8. The Committee serves as the State’s qualified experts for determining whether a chemical has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer.

OEHHA’s treatment of DBAs lends some insight into the workings of this agency with far-reaching authority.  It is OEHHA that mandates the use of the ubiquitous “Prop. 65 Warnings” that adorn products and buildings throughout the Golden State.

First, DBAs are five-ring polycyclic aromatic hydrocarbons (PAHs) that contain an anthracene core (three linear benzene rings). DB[a,h]A has been listed by Prop. 65 since 1988.  The same chemical was listed as “probably carcinogenic to humans” by the International Agency for Research on Cancer in 1987.  The National Toxicology Program classified DB[a,h]A as “reasonably anticipated to be a human carcinogen” in its Second Report on Carcinogens in 1981, and the U.S. Environmental Protection Agency listed it as a “probable human carcinogen” based on experimental animal evidence.   But none of these authorities have so listed DB[a,c]A or DB[a,j]A, which OEHHA now proposes to add to its list of carcinogens.

Like many other PAHs, DBAs are produced as products of incomplete combustion or pyrolysis of organic matter (e.g., cigarette and marijuana smoke, gasoline engine exhaust, and industrial emissions such as fuel combustion, coke oven operations, and coal-tar distillation) and during high temperature cooking (e.g., grilling, broiling, roasting, baking, frying).  DBAs are known to be included in the smoke of forest fires and even the campground fires one might use to toast marshmallows.

With the exception of smokers and occupationally exposed workers, most individuals are exposed to PAHs predominately from dietary sources.  DBAs are present in the air (ambient and indoor, in occupational settings and cooking fumes); in water (drinking and fresh); in dried sediments; and in food (fresh and cooked).  OEHHA reports that DBAs are present in cigarette smoke and marijuana smoke, slightly more so in marijuana smoke (0.00115 μg/ tobacco  cigarette; 0.00141 μg/ marijuana cigarette ).

DBAs have been aggressively studied for decades.  OEHHA has a page on its website titled “Evidence on the Carcinogenicity of Dibenzanthracenes,”  which has a section of references covering 10 pages.  Despite that, OEHHA notes that “[n]o data on the long-term effects of human exposure to pure DBAs were identified in the literature search conducted by OEHHA” and that “[n]o epidemiology studies were identified that investigated the risk of cancer associated with exposure specifically to DBAs.”  Nevertheless, relying on animal studies, in vivo studies and mechanistic analyses, OEHHA proposes to list the chemicals found in marijuana smoke, fresh vegetables and forest fire smoke as having been “clearly shown through scientifically valid testing according to generally accepted principles to cause cancer.”

Perhaps such a determination can be justified, but where will they put the warning labels?

PS – At the same November meeting, OEHHA will consider expanding its listing of N- nitrosomethyl-n-alkylamines (NMAs).  According to OEHHA, NMAs have been detected in personal care products, such as shampoos and conditioners, and household cleaning products, such as dishwashing liquids and surface cleaners. NMAs are not intentionally added to these products, but may form as a result of the reaction of nitrite with amine compounds.  However, the challenge as to locating warning labels on these products is perhaps somewhat lesser than that relating to DBAs.

The public has until October 13 to comment on two hazard identification documents: “Evidence on the Carcinogenicity of Dibenzanthracenes” and “Evidence on the Carcinogenicity of N-Nitrosomethyl-n-alkylamines.”

Filed under DBAs, Prop 65, Warnings

MDL Court Rules That Work on Two Pumps Not a Substantial Factor

By on August 26, 2014

Substantial factor?  I know it when I see it.

Many of us have struggled for quite some time in reaching a consensus on what level of exposure does, and does not, constitute a “substantial factor” when assessing causation of an asbestos-related disease.  In a recent order on a motion for summary judgment, Judge Eduardo Robreno of the asbestos MDL, applying maritime law, weighed in on the issue.  His decision gives additional guidance, if it does not end the discussion.

The case involved a former U.S. Navy sailor who testified to exposure to original asbestos-containing gaskets and packing used with two pumps found on the virtually new USS Downes.  Even while accepting that evidence as accurate, Judge Robreno granted the MSJ by determining this was a “mere minimal exposure” as described in Lindstrom v. A-C Prod. Liab. Trust, 424 F. 3d 488 at 492. Judge Robreno stated:

Although there is evidence that Plaintiff was exposed to respirable dust from the original gasket and packing used with a single Buffalo electric fire pump, and the original gasket used with a single Buffalo evaporator pump —-, maritime law requires more than a “mere minimal exposure” to support a finding of causation. (Citation omitted.)  As such, no reasonable jury could conclude from the evidence that Decedent was exposed to asbestos from a product manufactured and/or supplied by Defendant such that it was a substantial factor in the development of his illness.

Other courts have likewise relied upon Lindstrom to reject claims that minimal exposures constituted a substantial factor.  The Sixth Circuit expressed the sentiment memorably in Moeller v. Garlock Sealing Technologies, 660 F.3d 950 at 955 (6th Cir. 2011):

On the basis of the record, saying that exposure to Garlock gaskets was a substantial cause of [plaintiff’s] mesothelioma would be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean’s volume.

From a defense prospective, this order from Judge Robreno compares favorably with other attempts to define a substantial factor.  In California, for example, we must deal with the language of Jones v. John Crane, Inc., 35 Cal. Rptr. 3d 144 (2005).  In Jones, John Crane argued that the exposures attributable to its products were comparable to ambient levels of asbestos in the community at large, and paled in comparison to the plaintiffs’ other exposures (10 fiber hours, or .005 fiber years, compared to an estimated 200 fiber years of exposure to asbestos-containing insulation and 2.8 fiber years from ambient exposures). Plaintiff experts challenged the defense calculations and offered expert testimony that every exposure contributed to the risk.  The court ruled against the defense: “[A] level of exposure that is the equivalent of that to which one might be exposed in the ambient air over a lifetime is not necessarily insignificant.”

While the order from Judge Robreno gives us at least one example of what does not constitute a substantial factor, it provides scant guidance as to how to assess future cases.  Nevertheless, at least when maritime law is applied, it is reassuring to know that there are some acknowledged exposure scenarios that do not qualify as substantial factors.

Filed under Asbestos, Maritime, MDL, Substantial Factor

Will the Government Contractor Defense Go Before the Supreme Court?

By on August 13, 2014
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Counsel for Hawaii asbestos plaintiffs has asked the U.S. Supreme Court to review a decision finding a “colorable” government contractor defense in favor of vendors selling equipment to the military (see attached petition for writ of certiorari).  In an April 25 opinion, Judge Paul Watford writing for the 9th Circuit, affirmed rulings by Judges Leslie Kobayashi and J. Michael Seabright of the U.S. District Court for the District of Hawaii denying motions to remand. Leite v. Crane Co., 749 F. 3d 1117 (9th Cir. 2014).

In the two cases, the defendants – suppliers of products to be used on U.S. Navy warships – had removed the actions from the Hawaii state court to federal court, arguing that they would be able to rely upon  the “government contractor” defense to defeat failure to warn claims.  Plaintiffs’ counsel Galiher DeRobertis Ono brought motions to remand arguing that the defendants could not present a “colorable” federal defense.  The judges of the district court found that the defendants had made a showing of a “colorable” defense by presenting evidence including affidavits from expert witnesses, and the 9th Circuit agreed.

Importantly, the removing defendants, to sustain their burden to defeat a motion to remand, need only show a “colorable” defense.  As the 9th Circuit stated, at this stage, the removing defendant “doesn’t have to prove that its government contractor defense is in fact meritorious, and we express no view on whether it is.” The 9th Circuit drew an analogy comparing the standard to be applied to the evidence submitted by the removing defendant, with the standard to be applied to the evidence submitted by a plaintiff when a defendant challenges subject matter jurisdiction relying upon Fed. R. Civ. P. 8(a)(1).

The petition focuses on the contention that it was inappropriate for the district court to rely upon expert affidavits to interpret or construe government specifications dealing with the obligations of vendors to provide warnings when selling equipment to the Navy.  While this relatively narrow issue does not truly address the central principles of the government contractor defense, it is possible that if the petition is granted and the decision is reviewed, the Supreme Court may consider more broadly the application of the defense in such settings. Any decision in this area could preserve, or otherwise impact, the ability of defendants across the land to avail themselves of removal to place their cases in the district court. Watch this blog for further developments on this petition.

Filed under Asbestos, Government Contractor, Remand, Removal

Proposed Revision to California Sophisticated User Jury Instruction – Comment Period Closes Soon

By on July 30, 2014
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The Judicial Council of California has the responsibility of crafting “standard” jury instructions recommended for use in all the trial departments in the state courts.  Since 2008, those instructions have included one for instructing the jury when the issue of a “sophisticated user” defense is posed.  Recently, the Judicial Council has presented for comment by the legal community a draft revision of this standard instruction.  The proposed revisions at first glance seem to require a more detailed showing from the defendants.  However, these proposed changes, in the author’s opinion, in practice would not reduce the ability of defendants to persuade the courts to give such an instruction.

The current instruction on sophisticated user reads (with some required information filled in) as follows:

Manufacturing Co. claims that it is not responsible for any harm to Plaintiff based on a failure to warn because Plaintiff is a sophisticated user of the product.  To succeed on this defense, Manufacturing Co. must prove that, at the time of the injury, Plaintiff, because of his particular position, training, experience, knowledge, or skill, knew or should have known of the product’s risk, harm, or danger.

The proposed revised instruction reads, with information inserted to complete the instruction, as follows:

Manufacturing Co. claims that it is not responsible for any harm to Plaintiff based on a failure to warn because Plaintiff is a sophisticated user of the product.  To succeed on this defense, Manufacturing Co. must prove that, at the time of the injury, Plaintiff, because of his particular position, training, experience, knowledge, or skill, knew or should have known all of the following:

  1. That [describe the risk posed by the product] breathing dust from the product could cause lung disease;
  2. That [describe the severity of the potential consequences] the lung disease could be disabling or fatal; and
  3. Any ways to use the product to reduce or avoid the risks that were known to the Manufacturing Co.

The “Sources and Authorities” relied upon are Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56; Johnson v. Honeywell International, Inc. (2009) 179 Cal.App.4th 549; Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 28; Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270; and Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th522.

The existing instruction is quite simple, nonspecific, and even vague.  If that original instruction is given, a defendant has a fair amount of latitude to argue a variety of facts.  But courts have been reluctant to give the instruction when plaintiffs argue that the necessary foundational facts have not been demonstrated.  Perhaps the courts are concerned that the existing instruction is in fact too broad and are thus reluctant to give the instruction, as the court can anticipate some defense counsel arguing that it is applicable even in those cases when not truly supported by the facts.

The proposed revision seems to require a more specific showing from the defendant.  And no doubt exactly how the brackets are completed in each case will be vigorously argued.  For No. 1, for example, plaintiffs’ counsel will no doubt argue that the bracket should include not just reference to lung disease, but either asbestosis, lung cancer or mesothelioma depending on the facts of each case.  Certainly it will be harder for a defendant to show that a sailor or shipyard worker knew about mesothelioma than to show that he knew that breathing lots of dust could be harmful.  No. 3 may be contested as well.  Defendants will argue that everyone knows the ways to avoid lots of dust (wet down the material, use a mask, have good ventilation, do not use compressed air), while plaintiffs will argue that more needs to be shown regarding specific precautions for asbestos dust.

With the proper questioning of a plaintiff at deposition, and perhaps using other evidence of what was known in the Navy and the shipyards at the relevant time, a defendant could present facts adequate to support each of the requirements whether using the old instruction or the new.  The question is whether the new version makes the task harder, easier, or does not change it.  My sense is that the relative burden on the defendant really does not change that much regardless of which version of the instruction is used.  It is also my sense that defense counsel will have a better chance of persuading a judge to give an instruction if the new version is approved and the defendant can make a showing that evidence has been produced to satisfy the three elements.  It just sounds more persuasive if one can argue that he or she has fulfilled the obligations of each of the enumerated subparts, rather than simply generally arguing that a showing has been made.

After allowing for a comment period, which ends Aug. 29 at 5 p.m., the Judicial Council will make its recommendations as to whether the proposed revisions should be adopted (the Council has indicated that the preferred way of receiving comments is in a Word file attached to an e-mail sent to civiljuryinstructions@jud.ca.gov).  Concerned practitioners will be monitoring whether the instruction is to be modified, and if so, what impact the modifications may have in the trial courts.

Filed under Jury Instructions, Sophisticated User

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