New York’s Highest Court Puts the “Brakes” on Asbestos Causation Evidence

Earlier this week, New York’s highest court effectively endorsed the “Forsterite defense” for chrysotile in friction products. By a 4-1 decision, the Court of Appeals affirmed a trial court order setting aside a jury verdict on the basis of plaintiffs’ failure to prove causation. In Juni v. A.O. Smith Water Products, the court ruled that plaintiffs’ expert evidence “was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries.”

The majority opinion is sparse, only two sentences and sixty-eight words long. A concurring opinion by Judge Wilson, however, is more enlightening. Judge Wilson held that while there was no dispute that raw chrysotile asbestos carries increased risk of mesothelioma, plaintiffs did not submit any proof that chrysotile asbestos, as contained in Ford’s friction products, posed any causal relationship to disease. Ford’s experts set forth the “Forsterite defense” – that as a result of high heat in manufacturing and braking, any chrysotile in friction products would be converted into the “biologically inert” substance Forsterite. Plaintiffs did not produce an expert to rebut this opinion. Instead, plaintiff’s own expert conceded that “no one knows whether the friction product dust to which Mr. Juni was exposed when replacing the used products was toxic.”

This decision is a positive development for friction defendants in New York asbestos litigation and elsewhere. It is also authority for the broader proposition that the central issue is whether asbestos as a purported component of another product can cause disease -and not whether asbestos standing alone causes disease. Plaintiffs need to prove the former to establish general causation, and need to prove general causation before they can demonstrate specific causation.

At the same time, the decision emphasized that it was based “on this particular record.” Thus, the decision may be the result of inadequate trial preparation on the plaintiffs’ part rather than some significant shift in asbestos causation law. We expect the plaintiffs’ bar to respond aggressively in working up causation proof in pending and future cases. This may include finding experts who will attempt to dispute the amount of chrysotile converted into Forsterite, or the toxigenic properties of Forsterite.

 

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.

Illinois Appellate Court Reverses $4.6M Verdict: No Duty If No Knowledge of Product Risks, and Presence on Site Not Enough for Causation

On Sept. 5, 2018, an Illinois appellate court reversed a McLean County $4.6 million jury verdict against defendant Hobart Brothers Company on two grounds that offer hope to defendants in other cases. First, the court ruled that the defendant owed no duty to warn if defendant and the industry were unaware of a hazard in their asbestos-containing product at the time of plaintiff’s exposure, even if they were aware of the dangers of raw asbestos. Second, the court ruled that the mere presence of a defendant’s product at plaintiff’s workplace is insufficient evidence that the defendant’s product was a substantial cause of plaintiff’s mesothelioma.

BACKGROUND

Plaintiff brought suit against defendant for failure to warn of the dangerousness of its product—Hobart 6010 welding stick electrodes, which contained chrysotile asbestos in the flux. Plaintiff himself did not use the Hobart 6010 welding rods. Rather, he testified that for seven months in 1962 and 1963, stick welders using those rods worked on a grated mezzanine above his work area, and that the used stubs of the stick welders’ 6010 welding rods would fall through the grated mezzanine floor, onto the floor below where plaintiff performed spot-welding. Plaintiff also testified that each day, he had to walk by the stick welders and over the mezzanine floor which was littered with welding stubs.

LACK OF DUTY

The appellate court stated that whether the defendant had a duty, in 1962 and 1963, to warn about its welding rods depended on whether, in 1962 or 1963, knowledge existed in the industry of the dangerous propensity of the defendant’s welding rods.

Although there was evidence that, in 1962 and 1963, knowledge existed in the industry of the dangerous propensity of raw asbestos, the court made “a crucial distinction” between raw asbestos and welding rods containing encapsulated asbestos. Knowledge about raw asbestos was not evidence that knowledge existed in the industry that this product—the Hobart 6010 welding rod—was harmful. The appellate court ultimately found that the record contained no evidence of contemporaneous knowledge in the industry that welding rods with asbestos encapsulated in the flux were hazardous. The lack of knowledge resulted in a lack of duty, entitling defendant to judgment notwithstanding the verdict.

LACK OF SUBSTANTIVE CAUSATION EVIDENCE

The appellate court found that the defendant was likewise entitled to a judgment notwithstanding the verdict because the record was devoid of any evidence that defendant’s welding rods were a substantial cause of plaintiff’s mesothelioma.

The court ruled that the chestnut Illinois case of Thacker v. UNR Industries, Inc., 151 Ill. 2d 343 (1992) did not help plaintiff. Thacker involved raw asbestos, not a finished asbestos-containing product like the welding rods here. More significantly: “Proving merely that plaintiff came into frequent, close, and regular contact with welding rods manufactured by defendant would not, on the logic of Thacker, prove substantial causation any more than proving he routinely walked on floor tiles containing asbestos would prove substantial causation.” [¶77] Rather, to meet his burden of production, the plaintiff “must prove he actually inhaled respirable fibers from defendant’s welding rods—and that he inhaled enough of the fibers that one could meaningfully say the welding rods were a ‘substantial factor’ in causing his mesothelioma.” [¶78]

The appellate court ruled that the Thacker frequency, proximity and regularity criteria had not been met. For instance, although plaintiff worked on the second floor and the stick welders worked on the third floor, his work station was not directly below the grated mezzanine floor where the stick welders worked, but rather off to the side. Further, the appellate court noted that plaintiff testified that the stubs from the stick welders on the third floor fell through the grates of the mezzanine floor and onto the second floor, but that plaintiff did not testify that the stubs fell into his work area. Although plaintiff testified that his workplace was dirty, there was no evidence that the dirt indeed contained asbestos. Moreover, plaintiff never testified to seeing clouds of dust in the workplace (unlike in Thacker where various employees testified that dust from the sacks of raw asbestos was continuously visible in the air of the plant when viewed in bright light).

“For all that appears in the record, the amount of asbestos fibers released from defendant’s welding rods by rubbing them together or stepping on them was no more than the amount one would have encountered in a natural environment. Without any idea of the concentration of airborne asbestos fibers the welding rods would have produced, it would be conjectural to say the welding rods were a substantial factor in causing plaintiff’s mesothelioma.” [¶ 83]

TAKE AWAYS

Though this case involved the specific product of asbestos-containing welding rods, the potential effect on future failure-to-warn cases involving other asbestos-containing products is much broader. Importantly, the appellate court focused on the industry’s knowledge of the dangerous propensity of the manufacturer’s product itself, not on the industry’s knowledge of the dangerous propensity of asbestos generally. In so doing, the appellate court distinguished the inquiry as a product-specific issue, not as a more general asbestos issue. Going forward, each failure-to-warn case will need to be carefully considered based on its individual facts regarding the product, time frame and industry knowledge of the hazards of the product at issue at the time of exposure to determine whether a duty existed.

Furthermore, this decision may likely impact the scrutiny of causation evidence. In its application of Thacker, the appellate court discussed the need for a plaintiff to prove more than just frequent, close and regular contact with a defendant’s product; a plaintiff must also prove that he not only inhaled respirable fibers from the defendant’s product but also inhaled enough of the fibers that one could meaningfully say the defendant’s product was a substantial factor in causing a plaintiff’s disease. Additionally, the appellate court’s decision peripherally touched on alternative exposures. The extent of this decision’s impact in asbestos-related lawsuits remains to be seen. Nevertheless, it is a favorable ruling for defendants in asbestos litigation.

Read the full opinion in McKinney v. Hobart Brothers Company here.

Illinois Appellate Court Issues a Win for Out-of-State Defendants in Asbestos Litigation Involving Non-Illinois Exposures

On July 12, 2018, an appellate court in Illinois issued a long-awaited decision allowing the dismissal of an out-of-state defendant for lack of personal jurisdiction. Ruling on due process grounds, the court’s decision flies in the face of the common practice that allows plaintiffs in asbestos-related lawsuits to force out-of-state defendants into Illinois state court, including to the nation’s busiest asbestos docket, Madison County.

In Jeffs v. Ford Motor Company, plaintiff brought suit in Madison County, Illinois alleging that her deceased husband was exposed to asbestos-containing products in Michigan while working at Ford. The trial court denied Ford’s motion to dismiss for lack of personal jurisdiction, and instead found that Ford was subject to general, or all-purpose, jurisdiction in Illinois based on Ford’s substantial business dealings within the state. For an in-depth discussion of the trial court’s decision, please see our related post here.

In reversing the trial court’s decision, the appellate court considered both plaintiff and defendant’s interpretations of Daimler AG v. Bauman, but ultimately allowed much of their opinion to rest on Ford’s reliance on Aspen American Insurance Co. v. Interstate Warehousing, which the court found mandates a narrow definition of general jurisdiction under Illinois law. (For a discussion of Aspen, please see our related post here.) The appellate court found Aspen controlling when rejecting plaintiff’s argument that maintaining an agent to receive service of process—a condition of doing business in Illinois as an out-of-state corporation—was equivalent to consent to general jurisdiction. It further held that any argument equating registration with consent would similarly fail.

The appellate court next considered the Illinois long-arm statute’s ability to hale Ford into Illinois state court without case-specific contacts. The Illinois long-arm is limited only by the requirement that it comport with due process standards under the Illinois Constitution and United States Constitution. Under Aspen, because Ford is incorporated in Delaware and has its principal place of business in Michigan, it may only be subject to general jurisdiction in Illinois in “exceptional circumstances.” Consistent with Daimler and Aspen, a defendant may only be subject to general jurisdiction when their contacts are so continuous and systematic that the defendant is “essentially at home in the forum.” Looking to Ford’s contacts in Illinois: 7.5% of global employees, 5% of independent dealerships, 4.5% of sales, the court determined that despite Ford’s major business contacts, it could not be said to be essentially at home in Illinois.

Despite the fact that this opinion is unpublished and unable to be cited as precedent, its potential effect on future rulings should not be undervalued. Given that a once typical ruling in Illinois trial courts has now been reversed, at least in the Fifth District, it would seem likely that trial courts will now rule in favor of defendants asserting lack of personal jurisdiction in circumstances similar to those in Jeffs. Another interesting aspect will be how this ruling will affect filings in Madison County. All of this said, the presence of a potentially viable defense may not mean the end of litigation for a defendant asserting it. There remains the potential that plaintiffs may come to the individual defendant’s home state to sue them there. In some circumstances, this may still be a favorable outcome. In others, it may be best to remain in, for example, Madison County, for a variety of reasons. This is a strategic decision that should be carefully considered based on the facts of each individual case. Nonetheless, the Jeffs decision marks a clear procedural victory for out-of-state defendants in asbestos litigation involving non-Illinois exposures.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Connecticut Superior Court Imposes Jurisdiction on Texas Defendant and Narrowly Interprets Daimler AG v. Bauman

Since the United States Supreme Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014) defendants, especially those defending product liability claims, have increasingly pursued motions to dismiss on personal jurisdiction grounds. A Connecticut superior court recently denied such a motion and held that a Texas-based manufacturing company was subject to personal jurisdiction in Connecticut, even though the defendant’s sales into Connecticut were less than .01% of total company sales, and the defendant did not sell to plaintiff’s workplace until after he worked there. Daimler held that a specific jurisdiction is limited to where the defendant’s in-state activities are continuous and systematic, and give rise to the liabilities sued on, the Connecticut decision, suggests that at least one Connecticut superior court does not consider the Daimler as greatly limiting the reach of the state’s long-arm statute.

The Honorable Judge Barbara Bellis of the Connecticut Superior Court in the Judicial District of Fairfield at Bridgeport decided Rice v. American Talc Co., No. FBT CV-15-6053658-S (Sept. 7, 2017), applying Connecticut’s broad long-arm statute:

Every foreign corporation shall be subject to suit in this state, … on any cause of action arising as follows: … (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; …

Conn. Gen. Stat. § 33-929 (f)(3).

The plaintiff argued that the defendant Texas company was subject to the court’s jurisdiction under Conn. Gen. Stat. § 33-929 (f)(3) because plaintiff’s decedent was allegedly exposed to defendant’s asbestos-containing talc while working at an American Standard plant in Connecticut. Plaintiff further argued that the defendant had a reasonable expectation that its products would be used in the State of Connecticut. Defendant was a producer of talc, American Standard allegedly used that talc in the manufacturing process, and American Standard was one of the defendant’s customers. Additionally, plaintiff proffered that the defendant purposefully sought out the Connecticut market, and shipped products directly to consumers there.

Defendant, on the other hand, argued that the plaintiff’s decedent’s injuries could not have arisen out of any transaction by the defendant in Connecticut because the defendant did not acquire rights to mine allegedly asbestos-containing talc until three years after plaintiff’s decedent stopped working at the American Standard plant. Defendant manufacturer also argued that it did not have the minimum contacts in the forum state to justify jurisdiction because it never had offices, employees, or sales agents in Connecticut, had no sales to any company in the forum state after the 1970s and the few sales that it did have into Connecticut were less than .01% of its sales in any given year.

The court used a two-part test to consider the defendant’s challenge to personal jurisdiction via motion to dismiss. First, the court determined that the state’s long-arm statute authorizes jurisdiction over the defendant because the “arising… out of” language does not require a plaintiff’s cause of action and defendant’s contacts with the forum state to be causally connected. The court further agreed that a plaintiff does not need to show that the defendant solicited business in the state, only that the defendant could reasonably anticipate being sued by some person who had been solicited in Connecticut.

In Rice, the plaintiff submitted a deposition transcript stating that, when the defendant was selling products to a distributor, defendant also knew who the distributor’s customer was. Sales records established that the defendant sent a sample shipment of twenty bags of talc to Connecticut in November 1972, and sales invoices showed numerous shipments to Connecticut between 1969 and 1976. Based on this evidence, the court concluded that it was reasonably foreseeable that the defendant could be sued in Connecticut.

Under part two of the test, the court determined that whether the exercise of jurisdiction over the defendant under Connecticut’s long arm statute did not violate Constitutional principles of due process. Daimler held that a state could exercise personal jurisdiction over an out-of-state defendant if the defendant had minimum contacts with the forum state such that the suit does not offend the “traditional notions of fair play and substantial justice.” Rice found that “minimum contacts” was satisfied because the defendant shipped products to Connecticut (even if it was a small percentage of sales) and was aware of the ship-to-point when sending products to distributors. Moreover, the court reasoned that while the defendant shipped products to Connecticut after plaintiff’s decedent stopped working at the American Standard plant, the defendant shipped other products to Connecticut while the plaintiff’s decedent was allegedly exposed to defendant’s asbestos-containing products working as a painter.

Rice found that jurisdiction accorded with “fair play and substantial justice,” based on five factors: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of justice of the forum state in adjudicating the case; (3) the plaintiff’s interests in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.

Rice weighed factor (1) in favor of the defendant, stating that travel costs could be a burden because the defendant is incorporated in Texas and would have to defend a suit in Connecticut. According to the court, however, factors (2) through (5) all weighed in favor of the plaintiff. Connecticut has a strong interest in adjudicating personal injury actions involving its own citizens where the claimed injury was caused in part by a defendant who purposefully distributed products in the state. Furthermore, the plaintiff is a resident of the forum state and has an interest in obtaining convenient and effective relief in the state. The court decided that adjudicating in Connecticut would also be the most efficient use of judicial resources because the plaintiff has sued multiple defendants over a single and indivisible injury (mesothelioma). Requiring the plaintiff to maintain multiple actions in different jurisdictions would not only be inefficient, but impose a greater burden on the plaintiff than the burden of subjecting the defendant to suit in Connecticut.

The Rice decision displays that shipping products to Connecticut, even only a small fraction of a company’s sales, may be enough to reasonably foresee being sued in Connecticut. This can be enough to subject a foreign company to specific jurisdiction in Connecticut, even if the dates of sales do not overlap with the timing of the alleged injury. Additionally, solely being incorporated in a distant state and incurring travel costs during trial likely will not be sufficient to establish that the traditional notions of fair play and substantial justice have been violated.

As a trial court ruling, the Rice decision is not binding precedent. But if it is followed by other Connecticut courts, the result will be s a heavy burden on foreign corporations seeking to apply Daimler to limit Connecticut jurisdiction. There is no word yet on whether an appeal will be filed.