Gordon & Rees Trial Teams Win Two Defense Verdicts in One Week

In the span of a single week, Gordon Rees Scully Mansukhani  trial teams won  defense verdicts on behalf of clients Hennessy Industries, LLC in California and Colgate-Palmolive in Kentucky. These results demonstrate not only the skill and dedication of the firm’s  trial lawyers, but the tremendous depth of the firm’s  trial teams, enabling them to defend multiple clients in diverse jurisdictions.

Verdict # 1 – Hennessy Industries Wins Los Angeles Asbestos Trial

On July 29, Gordon & Rees attorneys Bob Rich and Rob Rodriguez won a complete defense verdict on behalf of Hennessy after a seven-week jury trial in Los Angeles Superior Court. Plaintiff Randolph Morton sought to hold Hennessy and Pneumo Abex liable for his stage IV lung cancer. There was no evidence of any smoking history. Mr. Morton alleged that his lung cancer was caused by his use of AMMCO’s brake grinder in the 1960s, primarily in high school auto shop class from 1962-65. During trial, Plaintiffs argued that in the 1960s most passenger vehicle brakes contained asbestos, and that the medical and scientific community was well aware of the hazards associated with grinding such brakes. They further argued that AMMCO was effectively put on notice of such hazards and at a minimum should have warned its customers of the dangers associated with asbestos. Plaintiffs, represented by Simona Farrise and Trey Jones, sought in excess of $5 million in economic and non-economic damages, plus punitive damages.

Hennessy’s trial team argued that AMMCO acted reasonably and prudently throughout the relevant time period. Hennessy also argued that Mr. Morton’s limited asbestos exposure from brakes was insufficient to increase his risk of developing lung cancer. The defense experts included Dr. Lucian Chirieac, Dr. Allan Feingold, Mary Finn, Ph.D (IH), and Dominik Alexander, Ph.D. (epidemiologist). Plaintiff’s experts included Dr. Brody, Charlie Ay, Dr. Barry Castleman, and pulmonologist Dr. Barry Horn.

The Santa Monica jury returned a defense verdict in favor of Hennessy and Pneumo Abex.

Verdict # 2 – Colgate Wins Kentucky’s First Cosmetic Talcum Powder Trial

On Friday, August 2, the Gordon & Rees trial team of Edward Slaughter, Quincy Jones, Mark Crapo, Andrea Holmgreen, and Maddie Wiarda received a complete defense verdict on behalf of client Colgate-Palmolive Company in the first cosmetic talcum powder trial in Kentucky. After a three-week trial in the Jefferson Circuit Court in Louisville, Kentucky, the jury returned a defense verdict for defendants Colgate-Palmolive Company and Johnson & Johnson after less than one hour of deliberation.

Plaintiff was represented by Joseph Satterley (Kazan, McClain, Satterley & Greenwood; Satterley & Kelley) and Paul Kelley (Satterley & Kelley—a local Kentucky firm). Plaintiff sued both Colgate-Palmolive Company and Johnson & Johnson claiming her mother’s death in 2016 was due to the inhalation of asbestos through her use of allegedly contaminated talcum powder. Plaintiff sought over $5 million in damages, not including punitive damages.

This is a significant victory, particularly considering the increase in talcum powder cases being filed against cosmetic talcum powder manufacturers and suppliers throughout the United States.

Time Limits on Plaintiff Depositions on Their Way to Becoming Law in California

A bill to unduly limit deposition time is working its way through the California legislature, and likely to pass soon in some form. Senate Bill 645 would limit the deposition of mesothelioma or silicosis plaintiffs to 7 hours. The 7-hour time limit does not include plaintiff’s direct examination or re-direct examination by their counsel. To trigger the 7-hour time limit, the plaintiff must have a doctor declaration showing that the plaintiff has mesothelioma or silicosis and has six months or less to live.

SB 645 has already passed the California Senate and is an active bill in the Assembly. It was amended in the Assembly on July 5, 2019. Amendments to the time limits of SB 645 have been made as follows: A party can seek an order to extend the deposition time limit to 10 hours if there are more than 10 defendants appearing at the deposition. If there are more than 20 defendants appearing at the deposition, a party can seek an order extending the deposition time to 14 hours. This extension of time depends on the number of defendants present at the plaintiff’s deposition, not the number of defendants named in the caption.

SB 645 allows more time for plaintiffs whose health will not be endangered by the grant of additional time. The defense bar has expressed concern that, to avoid the extension of deposition time, plaintiffs will provide doctor declarations saying the plaintiff’s health is at risk, and judge will not extend the time of the deposition.

Given the current climate in Sacramento, SB 645 will likely pass after it is read, with its amendments, for the final time in the Assembly (date not yet set). After SB 645 passes the Assembly, it will go back to the Senate for approval of the amendments before being approved by the Governor. It is likely that SB 645 will become effective by January 2020.

The defense bar has considered potential Constitutional due process arguments against SB 645. It is likely that, at the deposition of a mesothelioma or silicosis plaintiff, some defendant will have no time to ask questions about alternative exposure or claims against their client because the clock ran out. It will take the “perfect test case” to challenge SB 645. Defendants at depositions will need to collaborate and get organized before depos commence, and work together to create a record of due process issues. Defendants will have to push the plaintiff to provide meaningful responses to interrogatories, and point out the lack of information given to each defendant before the deposition.

WARNING: Illinois 25-Year Statute of Repose No Longer Prohibits Claims Against Employers

No longer will employers be entitled to rely on the Illinois workers’ compensation exclusive remedy protections to prohibit civil actions filed 25 years or more after a worker’s alleged exposure. On May 17, 2019, Illinois Governor J.B. Pritzker signed into law Senate Bill 1596, which allows tort claims to be filed after the state’s occupational-disease 25-year time bar expires. Effective immediately, the Illinois Workers’ Compensation Act and Illinois Occupational Disease Act no longer prohibit workers diagnosed with latent diseases from pursuing their claims after the 25-year statute of repose.

According to a statement from his office, Gov. Pritzker signed this bill into law because the 25-year statute of repose was shorter than the medically recognized time period in which some diseases, including asbestos-related illnesses, are known to manifest.

SB 1596 was enacted in response to the Illinois Supreme Court’s 2015 ruling in Folta v. Ferro Engineering. 2015 IL 118070, 43 N.E.3d 108 (2015). In Folta, the court held that the state’s workers’ compensation and occupational disease law imposed a 25-year statute of repose on both workers’ compensation and tort law claims brought by people diagnosed with latent diseases after exposure to toxic substances such as asbestos, radiation, and beryllium in the workplace. Id. Further, the court held that these Acts were the exclusive remedy to Illinois employees who suffered from latent injuries. Id. at ¶ 12, 6-7.

Illinois law clearly states that the purpose of a repose period is to terminate the possibility of liability after a defined period of time. Id. at ¶ 33, 116. However, this new law removes the statute of repose language from the Acts and affirmatively excludes latent injuries from the exclusive remedy provisions.

While the bill contains no mention of retroactivity, the question of whether its enactment revives certain tort law claims remains unanswered. Illinois courts generally frown upon retroactive applicability and enforcement when a piece of legislation is silent on the issue. But some speculate that the absence of any retroactive language means that this law will not affect certain claims until 2044. While the impact of this legislation remains to be seen, what can be expected is litigation surrounding this issue in the near future.

Click here for a full text of the legislation.

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


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

Background

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

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

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

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

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

Roverano

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

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

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

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

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

Plaintiffs Push to Initiate Asbestos Reporting Rules

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.