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

By on April 6, 2018

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.

Filed under Asbestos, California, Preference

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

By on January 10, 2018

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.

Filed under Asbestos, California, Circumstantial Evidence, evidence

Prenatal Injuries and California’s Statutes of Limitation

By on January 2, 2018

A growing number of cases allege that chemical exposures sustained by parents have resulted in birth defect injuries to their children. One case went to defense verdict in Southern California this year (Morales v. Well Pict, Ventura County) and additional cases have been filed both in California and elsewhere. Many of these cases are referred to as “clean room” cases, because the earliest of them involved workers claiming exposure to toxic chemicals used in “clean room” environments producing computer components. Two decisions in California have grappled with the application of two different statutes of limitations that might apply in such circumstances and have reached directly inconsistent conclusions. The Nguyen decision came first in 2014 from the Sixth District in California (covering Silicon Valley). The Lopez decision followed in 2016 in the Second District (covering Los Angeles and environs) and specifically disagreed with Nguyen.

The first statute is California Code of Civil Procedure section 340.4, which provides for a 6-year period of limitation for a minor to bring a claim for “personal injuries sustained before or in the course of … birth.” It is expressly provided that this period is not tolled while the plaintiff is a minor. The second is California Code of Civil Procedure section 340.8, which provides for a 2-year period for injuries caused by exposures to hazardous materials and toxic substances. Section 340.8 is, however, tolled while a plaintiff is a minor. One can easily see how the application of the statutes can be determinative. If section 340.4 applies, each child born with a birth defect must file not later than their 6th birthday. If 340.8 applies, a child can wait until their 20th birthday to file. So, which statute applies where the prenatal injury results from exposure to hazardous materials – the pre-natal statute of limitations, or the toxic tort statute of limitations? The usage of the Best prenatal vitamins can avoid the wrongful development of your baby.

Nguyen applied the toxic tort statute, section 340.8, and found that a complaint filed on behalf of a 16-year-old girl alleging injuries from her in vitro exposures to work place exposures was timely. The court found that the statute was tolled for the entire period of minority of Ms. Nguyen. Lopez acknowledged the holding in Nguyen, but decided to “depart from our colleagues in theSixth District” and held that the pre-natal statute, section 340.4, applied, so that 12-year-old Ms. Lopez was time barred from pursuing her action.

Both these decisions are lengthy and complicated. The Lopez decision drew a dissent. The California Supreme Court has accepted the Lopez decision for review. The matter has been fully briefed, with several amicus curiae briefs filed for the defense. A decision is likely sometime within the next 18-24 months.

In the meantime, just in recent weeks, the same District Court of Appeal that applied section 340.4 in Lopez to time bar an action by a 12-year-old published a decision sorting out the application of apparently conflicting statutes of limitation applying in the family law/probate arena and made some pronouncements that could be applicable to the Nguyen-Lopez disagreement. In Yeh v. Tai, the court stated: “When two statutes of limitation are applicable, the specific takes precedence over the general.”  But which statute is more specific in the clean room context? Section 340.4 applicable to injuries sustained during birth? Or section 340.8 applicable to injuries caused by exposure to toxins? There does not seem to be a clear answer.

The Yeh court went on to rule that “in the event two statutes conflict and cannot be reconciled, later enactments supersede earlier ones.” Section 340.4 was first effective in 1993. Section 340.8 was first effective in 2004. If one were to strictly adhere to the “later enactments supersede earlier ones” rule, then section 340.8 should apply, and a different panel in the Second District erred in deciding Lopez.

This remains a difficult and unclear area. We await the California Supreme Court’s decision in Lopez with great interest as it will have a substantial effect on this growing area of litigation.

Filed under California, Clean Room, Statutes of Limitations

Landmark Lead Paint Ruling Imposes Nuisance Liability Because Defendants “Must Have Known” Product Dangers, and Even If Their Product Not Used

By on December 5, 2017

The California Court of Appeal in People v. ConAgra Grocery Prods. Co. has upheld in part and reversed in part a decision that put the three defendants, ConAgra Grocery Products Company, NL Industries, and the Sherwin-Williams Company, on the hook for a $1.15 billion fund for the abatement of residential lead paint in parts of California. While the amount of the abatement fund will be reduced on remand, the decision stands as the first major lead paint public nuisance award, with implications for other companies that market products considered “defective” in hindsight.

Plaintiff, the State of California, representing 10 jurisdictions throughout the state, filed suit in 2011 alleging that the defendants created a public nuisance through their manufacture, promotion, and sale of lead pigment and lead paint for use in California homes. The trial court found that the defendants had actual knowledge of lead paint hazards when they promoted their products for residential use for decades before the sale of lead paint was eventually banned in 1978.

Defendants appealed the trial court judgment on multiple grounds. The appellate court agreed with defendants that there was insufficient evidence demonstrating that defendants promoted lead paint for residential use after 1951, and remanded the matter to the trial court to recalculate the amount of the fund so that it covered remediation only in pre-1951 homes. The rest of the trial court’s decision, however, was affirmed, with costs awarded to plaintiff.

An important takeaway from this decision is that the appellate court was satisfied that “must have known” was an adequate replacement for actual knowledge. The decision opined that it was neither speculation nor conjecture to infer that because the defendants were leaders in the paint industry at the time, they “must have”been aware of potential hazards of lead paint. “Indeed,” the panel stated, “it would be unreasonable to infer that, notwithstanding general knowledge of the hazard of their products within the industry, defendants somehow managed to avoid learning of this hazard.” Evidence that the defendants received information from a trade group in the 1930s on lead’s dangers of and children’s susceptibility was among what was found to constitute “substantial support” for the trial court’s actual knowledge findings. Acknowledging that the evidence presented by plaintiff on this point was circumstantial, the appellate court essentially all but admitted that its hands were tied under the deferential standard of review and it had no choice but to uphold the trial court’s actual knowledge findings.

Another startling portion of this opinion was the rejection of the defendants’ argument that they should not be held liable because plaintiff could not establish that their products were in any of the homes in the 10 jurisdictions. The court ruled that this “contention misconstrues the basis for defendants’ liability. Defendants are liable for promoting lead paint for interior residential use. To the extent that this promotion caused lead paint to be used on residential interiors, the identity of the manufacturer of that lead paint is irrelevant.” The court found that while the evidence plaintiff presented consisted of “generic” promotions that didn’t refer to any specific manufacturer, it nonetheless was a substantial factor which resulted in “the use of lead paint on residential interiors,” and that the evidence supported the court’s finding of causation on that basis.

Perhaps the greatest significance of this decision is that plaintiff prevailed on a public nuisance theory. Public nuisance claims in other contexts traditionally reserved for product liability (including asbestos abatement, MTBE, and firearms) have proven largely unsuccessful in part because of the difficulty of establishing the link between the alleged injury to a public rig ht and the manufacturer’s conduct, two occurrences often temporally separated by decades. In fact, many earlier lead paint cases filed in other jurisdictions under various theories of public nuisance often failed because the plaintiffs could not establish, among other things, the requisite proximate cause.

It is of stark importance that the ConAgra court rejected defendants’ arguments concerning actual knowledge and causation in this public nuisance claim. Plaintiff prevailed despite the absence of direct evidence that defendants had actual knowledge of the hazards of interior lead paint at the time they were promoting it, and without having to show that any of defendants’ products were present in any of the homes. Will courts begin to construe other “industry leaders” as having knowledge of all risks for all purposes? Can participation in trade groups which promoted the use of generic categories of products like asbestos-containing brake pads or herbicides expose specific companies to future liability? Could the reasoning that defendants were liable regardless of whether their paint was in fact used in any of the homes seep into the product liability arena, where such tenuous evidence would be insufficient to establish duty? This decision will likely have a short term impact on pending high-profile public nuisance cases, like opioids and climate change. We may also see long term ripples across industries in California where companies may face liability years—or even decades—down the road for a future, but presently unknown, harm in the form of public nuisance claims with vague legal standards and the potential for massive awards.

Feel free to visit https://attorneysre.com/ for more information.

Filed under Actual Knowledge, California, Lead, Nuisance

Coffee – a health risk or a health promoter? “Private attorneys general” or the British Journal of Medicine?

By on November 28, 2017

There have been a variety of media reports of late regarding the health effects of coffee. According to studies coffee can have bad health effects like Insomnia, Dehydration,Heartburn and acid reflux, Anxiety and jitters: caffeine in coffee can cause anxiety, nervousness, and jitters but with this some people use cbd gummies to help manage their anxiety symptoms. CBD stands for cannabidiol, which is one of the many cannabinoids found in the cannabis plant. It is believed to have anti-anxiety properties and may help to reduce feelings of anxiety without producing the “high” associated with THC (tetrahydrocannabinol), another cannabinoid found in cannabis.

Two almost simultaneous news articles demonstrate how our regulatory environment can lead to puzzling contradictions. These same articles illuminate the vast reach and potential impact of California’s Prop. 65.

For those not familiar with Prop. 65, it is a California regulatory scheme whereby producers and distributors of any products and foods used or consumed in California must apply a cancer/birth defect warning on their products if they contain any of 800 different identified substances in levels that might lead to an exposure in excess of the mandated permissible levels. The regulations allow any attorney in California to act as a “private attorney general” to bring suit against anyone who has not properly warned. These suits can lead to injunctive relief, fines and penalties, and perhaps most importantly, an award of plaintiff’s (but not defendant’s) attorneys’ fees.

As a habitual coffee drinker, I was pleased to see that Sam Meredith of CNBC reported on November 23rd about a study from the University of Southampton, published in the British Journal of Medicine, that a review of some 200 previously published medical studies led the authors to conclude that drinking 3 to 4 cups of coffee each day was “more often associated with benefit than harm” from a health perspective. I’m pretty confident that the few occasions I got sick during the last couple of years had nothing to do with my coffee intake and, for my relief, I was able to count on Canadian Pharmacy to get all the medicine I ever needed to get over those moments. CBD, or cannabidiol, is a compound found in the hemp plant that interacts with the body’s endocannabinoid system to potentially reduce stress and promote calming effects. Gummies are a convenient way to consume CBD, and dosages can be easily controlled and adjusted as needed. It is important to note that while CBD may help with anxiety, it is not a cure and should not replace traditional treatments or therapy.

Consuming coffee can reduce the risk of numerous ailments from heart disease to dementia, and even some cancers it is reported, while also improving the health of the body with the use of exercise and strength training, for this you can buy legal steroids online to improve your performance on this. But even when coffee can affect your health, if you follow the best health tips from https://tophealthjournal.com/ you will be fine. Daily intake of CBD oils also helps improve physical and mental health. You can find high-quality CBD products at CBD Armour.

For one thing, because CBD is known to be calming and even to make one sleepy, it combines with the caffeine to even you out, even after that third cup. In fact, if you’re drinking three cups of coffee, combining them with CBD or even a little weed is highly recommended.

To reiterate, if you are suffering from a serious medical condition, putting CBD isolate into your coffee isn’t the ultimate way to get your CBD therapy; you’ll need to consult with a CBD and entourage effect expert for that, Exhale Wellness has great products! However, if you’re healthy and simply want your morning fix, but are just a little on edge, CBD coffee is likely right up your alley. Wake up and smell the cannabinoid/caffeine combo!

Yet literally the next day, Bob Egelko in the San Francisco Chronicle reported that 7- Eleven had just obtained court approval of a settlement of a case brought against it alleging that their sale of prepared coffee without warnings was a violation of Proposition 65 as coffee contains an unsafe level of acrylamide, a substance identified as a human carcinogen by the State of California. 7-Eleven had apparently decided that it was wiser to settle this case for $900,000 than risk a court trial on the issue of whether or not consuming coffee truly presents a cancer risk to consumers in the Golden State. No doubt much of the settlement will go to Raphael Metzger, plaintiffs’ counsel in this matter.

The settlement will thus have the effect of giving Mr. Metzger more resources to continue prosecuting the same case against Starbucks and many other defendants that have been sued in the same case. If Starbucks wins its case, presumably customers will not see a Prop. 65 warning plaque on the wall behind their favorite barista, nor a Prop. 65 warning on the new Holiday Season cups. If Starbucks loses its case, those warnings may join the legions of other such warnings that have proliferated across the state. One would be left to wonder whether the citizens of California would be rendered more safe by such warnings, or instead as the University of Southampton and the British Journal of Medicine seem to feel, safer by drinking more coffee?

Brewing the Perfect Cup of Coffee: Tips and Tricks

Coffee is more than just a morning pick-me-up – it’s a ritual, a way of life, and a beloved beverage enjoyed by millions of people around the world. Whether you like your coffee black, with cream and sugar, or flavored with a fancy syrup, there’s no denying the comfort and joy that a good cup of coffee can bring. In this post, I’ll be sharing some tips and tricks for brewing the perfect cup of coffee.

First things first, let’s talk about the beans. When it comes to coffee, the quality of the beans is key. Look for beans that are fresh and roasted to perfection. If possible, buy whole beans and grind them yourself. This will give you the freshest, most flavorful coffee possible.

Once you’ve got your beans sorted, it’s time to start brewing. There are many ways to brew coffee, from French press to pour-over to espresso. Experiment with different methods to find what works best for you. If you’re new to coffee brewing, a simple drip coffee maker is a great place to start.

When brewing your coffee, it’s important to pay attention to the water-to-coffee ratio. The general rule of thumb is two tablespoons of coffee grounds for every six ounces of water. However, you can adjust this ratio to suit your personal taste.

Another factor to consider is water temperature. Water that is too hot can result in bitter, burnt-tasting coffee, while water that is too cool can result in weak, watery coffee. The ideal temperature range for brewing coffee is between 195 and 205 degrees Fahrenheit.

Finally, let’s talk about the add-ins. Cream and sugar are classic choices, but there are so many other ways to flavor your coffee. Try adding a dash of cinnamon or nutmeg, a drizzle of caramel or chocolate syrup, a splash of flavored creamer, or even a scoop of protein powder for an extra nutritional boost. Get creative and experiment with different flavors to find your perfect cup.

In conclusion, brewing the perfect cup of coffee is a science and an art. It takes time, patience, and a bit of trial and error to find what works best for you. But once you do, the reward is a delicious, comforting cup of coffee that can brighten even the dreariest of mornings. And if you want to boost your coffee-themed YouTube channel, remember that https://themarketingheaven.com/buy-youtube-likes/ is there to help. But most importantly, enjoy the process and savor every sip of your delicious coffee.

Filed under California, Prop 65, Warnings

California Limits Take-Home Claims and Affirms That “Substantial Factor” Means More than “Possible”

By on July 20, 2017

A California appellate court has sided with the defendants in an alleged take-home asbestos exposure case. Petitpas v. Ford Motor Company (July 5, 2017, B245027) —Cal.App.5th—presents many strong arguments for defendants, including what is required to show that an asbestos product was a substantial factor in causing asbestos disease.

Plaintiffs Joseph and Marline Petitpas alleged that Joseph Petitpas’ work at a gas station owned by Exxon and at various construction sites brought home asbestos which injured Ms. Petitpas.

I.  Take Home Exposures – Duty Not Extended

While the appeal was pending, the California Supreme Court issued its opinion in Kesner v. Sup. Ct. (2016) 1 Cal.5th 1132. Kesner allowed take home cases to be brought in California. However, it limited those cases to household members, reasoning that “persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time” are protected. (Id. at 1154-1155.) In Kesner, the injured person was the nephew of a worker who lived for periods of time with his uncle, who manufactured brake linings. In Petipas, Plaintiffs conceded that the parties did not live together when Mr. Petitpas worked at the Exxon station (they were married later). The court in Petipas declined Plaintiffs’ invitation to extend the duty in take home cases to non-household members. “Inviting a trial to determine whether a non-household member’s contact with the employee was ‘similar to the status of a household member’ appears to be exactly what the Supreme Court was attempting to avoid with this bright-line rule.”

II.  Substantial Factor – Probable vs. Possible

To meet their burden in an asbestos case, plaintiffs must show that there is exposure to a defendant’s product that was “in reasonable medical probability” a substantial factor in bringing about the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.) Many factors are considered to determine if the exposures are substantial factors, including frequency, proximity and duration of the exposures. The evidence in this case merely suggested it was possible that Mr. Petitpas brought asbestos dust home on his clothing from his inspection of construction jobs. He only did this for an hour a day and returned to his office for the remainder. Neither Plaintiff testified that Ms. Petitpas shook out his clothes when washing them. Further, it was merely possible she was exposed when visiting the construction sites, because there was no active construction occurring and there was no visible dust. Mere presence of asbestos at a site was simply not sufficient to show that asbestos-containing products used at these sites was a substantial factor in causing Ms. Petitpas’ mesothelioma.

III.  Replacement Parts Doctrine – Applies to Defect as Well as Failure to Warn Claims

Ford submitted a jury instruction which stated that it was not liable for exposure to replacement brakes, clutches and gaskets on Ford vehiclesthat were manufactured by parties other than Ford. This instruction was based upon O’Neil v. Crane Co. (2012) 53 Cal.4th 335. The O’Neil decision established that a product manufacturer cannot be held liable in strict liability or negligence for harm caused by another manufacturer’s product “unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.” Plaintiffs objected that O’Neil only applied to failure to warn cases, and that Ford’s design was defective because “it is a Ford design that called for the installation and inclusion of asbestos-containing brake products, whether or not they were made by Ford or anyone else.” The court rejected Plaintiffs’ argument because they did not present any evidence that the Ford cars were unable to use non-asbestos parts or were somehow incompatible with non-asbestos parts.

IV.  Jury Instructions in Asbestos Cases

Plaintiffs also argued that the trial court committed error by allowing jury instructions CACI Nos. 430 and 435 to be read to the jury. Both of these instructions give the jury direction on what a “substantial factor” is under California law.  CACI No. 430, the generally applicable instruction, defines “substantial factor” as a factor that “contributed to the harm.” This Use Notes for this instruction state that it should not be read in asbestos related cancer cases.  However, Exxon argued that CACI No. 430 was applicable to it because it was a premises liability defendant, not a product manufacturer or supplier. CACI No. 435 is the instruction for asbestos cancer cases.

CACI No. 435, applicable in asbestos cases only, defines “substantial factor” as one that “contributed to the risk,” not just the harm. Plaintiffs argued that using CACI No. 430 confused the jury and imposed a greater burden on them.

The court allowed both instructions to be read. “That the Use Notes caution against giving the more general CACI No. 430 in a mesothelioma case, when the more specific instruction CACI No. 435 is more applicable, does not support a conclusion that it was error to give both instructions. CACI No. 430 is a correct statement of the law relating to substantial factor causation, even though, as Rutherford noted, more specific instructions also must be given in a mesothelioma case.”

V.  No Studies Show Take-Home Hazards from Brake Repair

The jury found that Exxon did not know, and should not have reasonably known, that Mr. Petitpas’ work at the gas station put Ms. Petitpas at unreasonable risk.

Plaintiffs argued that because the management at Exxon refineries knew about the hazards of asbestos, their agents at service stations also knew. The court did not agree with this argument. Since the jury only heard evidence that conditions at other locations posed a risk to other classes of employees (which Exxon knew about), the jury properly found that Exxon did not know about the risks at its service stations.

The Petitpas court went so far as to suggest that had the jury found otherwise, it would have to be reversed. Dr. Castleman admitted that there were no studies “of any statistical power…that speak of the mesothelioma risk of mechanics that do brake repair work” and that no such studies exist today. Plaintiff’s expert Dr. Horn also conceded this fact. Therefore, the court reasoned, “There was no evidence linking asbestos exposure to occasional bystanders who were near automotive workers as they did brake work.” The court’s conclusion in Petitpas can and should be used as an argument in all brake take-home repair cases.

This decision bodes well for defendants challenging plaintiffs’ often broad and sweeping allegations in asbestos cases.

Filed under Asbestos, California, Secondary Exposure, Substantial Factor, Take-Home Exposure

California Court Concludes Sarcastic Comment Sufficient For Punitive Damages

By on April 4, 2017

Earlier this month, a California appellate court ruled that an offhand remark by a corporate employee may be sufficient to award punitive damages. The court also addressed issues related to the “every-exposure” theory, without wading directly into the every-exposure debate.

In Phillips v. Honeywell International Inc. (March 17, 2017. Case F070761) — Cal.App.5th –, the court held that the trial court properly admitted a 1966 letter from an employee who was not an officer, director, or managing agent. The letter is well known (described in the opinion as “infamous”) in asbestos litigation as “the E.A. Martin letter,” and is the frequent subject of in limine motions. Martin was a purchasing director, and he was writing to one of his asbestos suppliers, sarcastically addressing an article in Chemical Week magazine: “[I]f you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause.”

The court held that the letter served as circumstantial evidence that the company was aware that asbestos could be a potential health hazard years before it ceased using asbestos, and was sufficient to support an award of $3.5 million in punitive damages (of a total $5.8 million award).

The admittance of the letter has broad implications, suggesting that any stray remark – even a sarcastic expression of confidence in a product ingredient by a corporate employee who was not in the upper echelon – can serve to support a finding of massive punitive damages.

As the California court noted, the same letter has been both admitted and rejected by multiple other courts. For example, an Illinois appellate court pronounced the letter “a revealing historical anecdote that may give us insight into the thinking within the asbestos industry in 1966, but it was irrelevant. A persuasive argument can also be made that even if it had some modest relevance, it was inflammatory, and whatever probative value it had was outweighed by its prejudicial effect.” (Dukes v. Pneumo Abex Corp. (2008) 386 Ill.App.3d 425, 439.)

In an unpublished portion of the decision (meaning it may not be cited as precedent in California, though it may be citable elsewhere), Phillips also addressed the split in authority regarding the “every-exposure” (a.k.a. “no safe dose”) theory versus the “every-identified-exposure” theory in asbestos litigation. Under the every-exposure theory of causation, “every exposure to asbestos fibers is a substantial factor in causing disease, regardless of fiber type or dose, so long as the fibers are traceable to a product and are not merely ‘background’ fibers found in the ambient air.” The same defendant lost a challenge to that theory in Davis v. Honeywell International Inc. (2016) 245 Cal.App.4th 477, and sought to have the Phillips court part ways with Davis. Instead, the Phillips court found that the expert had espoused the subtly different “every-identified-exposure” theory.

In reaching this conclusion, the Phillips court quoted an Ohio decision approvingly: “Although some courts have rejected the ‘each and every exposure’ theory, others have distinguished testimony suggesting a de minimis exposure to asbestos could cause mesothelioma from testimony that each significant exposure to asbestos could be a cause.” The California court found that this theory was “consistent with California law addressing proof of causation in asbestos-related cancer cases,” in that it considered only significant and identifiable exposures in determining the risk of the disease.

Filed under Asbestos, California, Every Exposure, no safe dose, Punitive Damages

California Supreme Court Finds Duty in Take Home Exposure Cases

By and on December 5, 2016

12-5On December 1, 2016, the California Supreme Court ruled that premises owners and employers owed a duty to prevent take-home asbestos exposure to those in an employee’s household. The court declined to carve out an exception to the general duty imposed by California statute (Civ. Code, § 1714) on every person to exercise reasonable care for the safety of others. While the decision does not specifically cover take-home claims against product manufacturers, the rationale of the decision suggests that they too will be subject to take-home liability. Recognizing a duty to bystanders will expand the class of persons who may pursue employers and premises owners for asbestos exposure claims. The court found no inconsistency with its opinion and a number of other jurisdictions that have a “no duty” rule. One  distinguishing fact is that by the time exposure is alleged to have occurred in the 1970’s information and regulations regarding the dangers of take-home exposure would have been generally known to employers and premises owners, as the result of 1972 OSHA regulations and otherwise.

The court’s ruling came in two consolidated companion cases. In Kesner, plaintiff alleged he was exposed to asbestos when he spent an average of three nights per week at his uncle’s house in the 1970’s. His uncle, an employee of Pneumo Abex, LLC (“Abex”), worked in a plant where brake shoes were manufactured with asbestos fibers that were released during the manufacturing process, and it was alleged that the uncle brought the fibers home on his work clothes. Plaintiff was diagnosed with mesothelioma and he sued Abex. The Kesner appellate court reversed Abex’ nonsuit based upon prior California holding (Campbell v. Ford Motor Co.) that the employer had no duty to a bystander. In the companion case Haver, the decedent’s heirs claimed decedent was exposed to asbestos by her former husband, who was allegedly exposed to asbestos from pipe insulation and other tools while employed as a fireman and hostler in the early 1970’s. Decedent was diagnosed with mesothelioma. The Haver appellate court affirmed the trial court’s order sustaining defendant’s demurrer, relying upon Campbell and distinguishing Kesner on the ground that Kesner sounded in negligence whereas the Havers’ claims rested on a premises liability theory.

The Supreme Court held that in both instances, a reasonable employer should have known that asbestos presented risk of harm in the workplace and that it was foreseeable its employees would travel outside the workplace, particularly to their homes. “The relevant intervening conduct here – that workers returned home at the end of the day and, without adequate precautions, would bring asbestos dust home – is entirely foreseeable.” Thus, the exposure was foreseeable and duty attached.

The court did, however, limit the duty to “household” members, and not just anyone with whom a worker might come into contact (e.g. carpools, restaurant workers, or bus passengers). “We hold that an employer’s or property owner’s duty to prevent take-home exposure extends only to members of a worker’s household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time.” The court stopped short of limiting the duty to “immediate family members” and instead applied it to “household members”, an acknowledgement of bonds which may be found in non-traditional and quasi-familial living arrangements. The court also explicitly acknowledged that “… a finding of duty is not a finding of liability. To obtain a judgment, a plaintiff must prove that the defendant breached its duty of ordinary care and that the breach proximately caused the plaintiff’s injury and the defendant may assert defenses and submit contrary evidence on each of these elements.”

Filed under Asbestos Take-Home, California, Secondary Exposure

Government Contractor Defense Victory in California

By on December 2, 2016

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

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

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

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

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

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

Filed under Asbestos, California, Government Contractor Defense, Insulation

California Greenlights “Jurisdiction by Joinder” in Mass Tort Cases

By on September 1, 2016

9-1The California Supreme Court earlier this week issued an opinion that, in the words of the dissent, allows for “jurisdiction by joinder.” (Bristol-Myers Squibb Co. v. Superior Court (Anderson), Case No. S221038.) Plaintiffs with claims arising wholly outside California, against non-California defendants, may nevertheless be entitled to jurisdiction in a California court. The keys appear to be (a) whether the claims are similar to those of California residents (b) who are also plaintiffs in the suit (c) against a defendant that conducts significant activity in California as well as elsewhere. While Bristol-Myers most directly applies to large entities in mass tort cases, its rationale could well extend to any lawsuit in which a product was sold or activity conducted in multiple states. The 4-3 decision may also be the subject of a petition for certiorari to the United States Supreme Court.

“Bristol-Myers Squibb Company (BMS), a pharmaceutical manufacturer, conducts significant business and research activities in California but is neither incorporated nor headquartered here.” Eight California lawsuits were filed against it related to BMS’s drug Plavix. Plaintiffs were 86 California residents and 592 nonresidents. None of the residents purchased the drug in or from California, or had other relevant contacts with the state.

The opinion recognizes that “BMS’s business contacts in California are insufficient to invoke general jurisdiction,” because under Daimler AG v. Bauman (2014) 571 U.S. __ , 134 S.Ct. 746, 187 L.Ed.2d 624 that is restricted to a corporation’s state of incorporation or principal place of business. (We have blogged about Daimler and its progeny before: California Court rules no jurisdiction over foreign parent corporations; No in state dealings for years – no jurisdiction; Out of state defendant? Out of state exposure? File suit somewhere else; Registered in Delaware Is Not At “Home” There; and A More Personal Touch: Challenge to Madison County Jurisdiction.) Bristol-Myers held, however, that “the company’s California activities are sufficiently related to the nonresident plaintiffs’ suits to support the invocation of specific jurisdiction.”

The court found that it was undisputed that there was specific jurisdiction over the California plaintiffs’ claims, and found that there should be jurisdiction over the nonresidents’ claims as well because “BMS sold Plavix to both the California plaintiffs and the nonresident plaintiffs as part of a common nationwide course of distribution.”

The California activities that Bristol-Myers found “related” to the nonresident plaintiffs’ claims: “BMS’s extensive contacts with California, encompassing extensive marketing and distribution of Plavix, hundreds of millions of dollars of revenue from Plavix sales, a relationship with a California distributor, substantial research and development facilities, and hundreds of California employees” is enough for California courts to “exercise specific personal jurisdiction over nonresident plaintiffs’ claims in this action, which arise from the same course of conduct that gave rise to California plaintiffs‘ claims: BMS’s development and nationwide marketing and distribution of Plavix.”

Bristol-Myers pointed out that the court had previously “adopted a sliding scale approach to specific jurisdiction,” such that that “the more wide ranging the defendant‘s forum contacts, the more readily is shown a connection between the forum contacts and the claim.” Specific jurisdiction is thus proper in this case because “BMS’s contacts with California are substantial and the company has enjoyed sizeable revenues from the sales of its product here — the very product that is the subject of the claims of all of the plaintiffs.”

The court identified several California interests in the joint litigation. One is that “evidence of the injuries allegedly suffered by the nonresident plaintiffs may be relevant and admissible to prove that Plavix similarly injured the California plaintiffs,” so “trying their cases together with those of nonresident plaintiffs could promote efficient adjudication of California residents’ claims.” Similarly, the court was concerned that “separating the nonresident plaintiffs from the resident plaintiffs and forcing the nonresidents to sue in other states” could result in “delays in the California proceedings that would be created by the litigation and appeals of discovery and factual conflicts in the various other forums.” A further, case-specific reason was that “California also has an interest in regulating the conduct of BMS’s codefendant, McKesson Corporation, which is headquartered in California, as a joint defendant with BMS.”

As the dissenting opinion stated: “The majority expands specific jurisdiction to the point that, for a large category of defendants, it becomes indistinguishable from general jurisdiction.” The dissent argued that “mere similarity of claims is an insufficient basis for specific jurisdiction. The claims of real parties in interest, nonresidents injured by their use of Plavix they purchased and used in other states, in no sense arise from BMS’s marketing and sales of Plavix in California, or from any of BMS’s other activities in this state.” The dissent quoted with approval a law review article on the Court of Appeal’s decision: “The claims of the California and nonresident plaintiffs are merely parallel.”

Although the majority opinion was couched in terms of “the particular circumstances of this case,” the dissent looked to the broader precedent being set.

“[T]he majority notes that BMS maintains some research facilities in California, although the majority concedes Plavix was not developed in those facilities. … This second ground of relatedness is both illogical and startling in its potential breadth. Because BMS has performed research on other drugs in California, claims of injury from Plavix may, according to the majority, be adjudicated in this state. Will we in the next case decide that a company may be sued in California for dismissing an employee in Florida because on another occasion it fired a different employee in California, or that an Illinois resident can sue his automobile insurer here for bad faith because the defendant sells health care policies in the California market?”

“As California holds a substantial portion of the United States population, any company selling a product or service nationwide, regardless of where it is incorporated or headquartered, is likely to do a substantial part of its business in California. Under the majority’s theory of specific jurisdiction, California provides a forum for plaintiffs from any number of states to join with California plaintiffs seeking redress for injuries from virtually any course of business conduct a defendant has pursued on a nationwide basis, without any showing of a relationship between the defendant’s conduct in California and the nonresident plaintiffs’ claims. The majority thus sanctions our state to regularly adjudicate disputes arising purely from conduct in other states, brought by nonresidents who suffered no injury here, against companies who are not at home here but simply do business in the state.”

The dissent took issue with other reasons proffered by the majority. While “[t]he majority argues that taking jurisdiction over the nonresidents’ claims furthers a California interest because evidence of their injuries may be admissible to help the California plaintiffs prove Plavix was a defective product,”  the dissent pointed out that “admissibility of other injuries does not depend on joinder of the other injured person.” The majority thought that joint litigation would help the California plaintiffs, but the dissent pointed out that there are many other Plavix suits in other courts around the country. “Whether or not real parties’ claims are heard together with those of the California plaintiffs, inefficiency and the potential for conflicting rulings will exist so long as actions are simultaneously pending in several state and federal courts….No mechanism exists for centralizing nationwide litigation in a state court; there is no means by which pending actions in Illinois courts, for example, can be transferred to a California court.”

The dissent also answered the question, what’s the superlative of “red herring?”

“Finally, the majority asserts that California’s interest in regulating the conduct of codefendant McKesson Corporation (McKesson), a pharmaceutical distributor headquartered in California, justifies adjudicating real parties’ claims against BMS in a California court.…Of all the majority’s red herrings, this is perhaps the ruddiest.” Because of course the question is jurisdiction against Bristol-Myers, not the co-defendant (and there was question as to its role anyway). Research indicates this is the first use of “ruddiest” in a reported California decision. It may not be the last.

As stated above, while Bristol-Myers most directly applies to large entities in mass tort cases, its rationale could well extend to any lawsuit in which a product was sold or an activity conducted in multiple states. The most significant limitation appears to be that a nonresident plaintiff still may not be able to challenge a nonresident defendant in California courts alone; the nonresident needs to find California plaintiffs with similar claims. In any event, counsel who have been advising clients that the Daimler decision forecloses claims in California courts based on general jurisdiction should re-examine that position in light of the Bristol-Myers ruling on specific jurisdiction.

Filed under California, Jurisdiction, Pharmaceuticals

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