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.

Plaintiffs’ Bar Embraces Reptile Strategy And Defense Bar Responds

Reptile strategy has taken the plaintiffs’ bar by storm. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles.  The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.

The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.  Thus,  the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective  way to engage jurors is to demonstrate how the defendant’s conduct endangers the jurors and their families. 

The gurus of Reptilian trial strategy are David Ball and Don Keenan, whose book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution”  purportedly gives its adherents a significant edge over the defense in jury trials.  Several prominent lawyers on the plaintiff’s side have cited this book as the new bible of advocacy.  The Seattle Zen Legal Blog authored by plaintiff lawyer Pat Trudell extols the theory in an article titled "Beyond the Reptilian Brain" and recites the mantra of the true believers, "The Reptile Always Wins". But do they?

Even as this new doctrine is gaining popularity in the plaintiff bar, the defense bar is mounting a counter-attack.  An excellent article concerning the Reptile strategy and the defense response is titled, “Make Boots Out of That Lizard – Defense Strategies to Beat the Reptile,” authored by Minton Mayer, of Wiseman Ashworth Law Group in Tennessee (DRI, The Voice, 9/25/13). Mayer provides good tips for defusing the subliminal codes plaintiffs seek to embed in the jury’s psyche.

In the April 2013 edition of For The Defense, David C. Marshall, a lawyer with Turner Padget Graham & Laney PA in Columbia, South Carolina, provides an in-depth discussion of new trial strategy in "Lizards and Snakes in the Courtroom".  According to Marshall,  using the "reptile" successfully "requires creating safety rules and demonstrating that a defendant violated the rules, subjecting a plaintiff and the surrounding community to needless danger….  Thus, in closing, the lawyer using this strategy must show a jury how the dangers presented by a defendant extend beyond the facts of a case and affect the surrounding community so the entire case boils down to community safety versus danger."  Marshall  provides useful  litigation tips for keeping the reptile at bay during  trial.

Similarly, Kathy Cochran, a defense lawyer with Wilson Smith Cochran Dickerson in Seattle, WA, cautioned in  the dri today blog in 2010, "As defense lawyers, we need to recognize this [Reptile strategy]  for what it is. It is an attempt to resurrect Golden Rule arguments, which are usually impermissible. Jurors are not to be asked to put themselves in the place of a party and make a judgment based on that virtual reality. Ball and Keene provide advice to their readers on how to circumvent this evidentiary rule. "  

Cochran cautions, "we will now see plaintiffs emphasizing ‘safety rules’ and trying to gain admissions from defense experts that such rules are important for the safety of the community. "Never separate a rule from the danger it was designed to prevent. … The greater the danger, the more the Reptile [juror] cares." 

In an article titled, “Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles is a Bad Idea,” (American Society of Trial Consultants, May 2010), authors Stephanie West Allen, Jeffrey M. Schwartz and Diane Wyzga provide a scathing critique of reptile theory and suggest that an effective alternative is providing jurors with a persuasive narrative at trial. According to the authors, reptile strategy “disrespects” jurors and could result in juror backlash. Fear-based tactics direct attention in an uncertain and unpredictable manner; in contrast, thoughtful narrative directs attention toward action grounded in the reflective mind. According to the authors, “narrative shines the mental flashlight of attention which can refigure the brain and change behavior.”

In summary, whether you conclude that  reptile tactics have validity or not, it makes sense for defense counsel to become familiar with them. If plaintiff’s counsel is going to use the defendant’s deposition to lay the framework for the use of a reptile strategy at trial, defense counsel had better prepare his client for the questions that will undoubtedly be asked during that deposition.
 

Does Wireless Internet In Courthouse Exacerbate Lawyer Abuse?

Yesterday, we published an article titled  ‘Lawyers’ Use Of Internet To Influence Jurors’  raising the concern that the fairness of jury trials may be jeopardized if jurors can surf the Internet and read misleading or self-serving messages by trial counsel that have been deposited where straying jurors can find them. 

Even if a prospective juror (not yet selected to sit on a particular case) or a sitting juror does not read about the facts underlying a specific case, he or she can still peruse biographical information about the lawyers, their firm’s specialties, featured clients and "war stories," crusades or victories they describe.  For example, if a plaintiff  law firm’s website states that the firm is "dedicated to protecting innocent American consumers from the catastrophic injuries caused by unfeeling, profit-driven drug companies", that is probably not information that a pharmaceutical company defendant in a product liability case would want distributed among its jurors.  Judges need to be particularly diligent that juors do not have access to this kind of extraneous information.

Could the courts do more to prevent this kind of Internet abuse?   "N.M."  wrote me the following  after yesterday’s article appeared:

Definitely a timely topic – I had to go to Essex Co (NJ Superior Ct)  jury selection recently and quite a few potential jurors brought their laptops with them – in fact, wi-fi is offered for those waiting to be sent to court rooms. Very tempting in the midst of voir dire, after the facts of the case have been discussed by the judge, to check the internet during a break to see what information might be available.

Should laptops, iPhones and iPads be permitted in courthouses?  If the courts cannot control what jurors do when they go home for the evening should they at least attempt to prevent jurors from going on-line during jury selection or whenever there is a break in the action during trial?  Internet use by jurors is an enormous potential problem; there needs to be a concerted effort by our judiciary to address it!