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.

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.