PA Appellate Court Declines Opportunity to Re-Evaluate State Registration Statute Under Daimler

The PA Superior Court of Pennsylvania – the Commonwealth’s intermediate appellate court – recently issued its long-awaited en banc opinion in Murray v. Am. Lafrance. A copy of the decision is attached HERE.

They key issue in Murray was whether an out-of-state company that registers to do business in Pennsylvania consents to general personal jurisdiction. The Pennsylvania corporate registration statute purports to confer consent to general jurisdiction over an out-of-state entity in exchange for the ability to conduct business within the Commonwealth. This issue has been hotly contested in recent years within Pennsylvania, with several courts finding that the registration statute is unconstitutional under U.S. Supreme Court precedent in Daimler, which provides that an out-of-state defendant is only subject to general jurisdiction where it is incorporated or maintains a principal place of business.

Despite the holding in Daimler, the Superior Court recently found in another matter that registration to conduct business in Pennsylvania establishes consent to general jurisdiction in the Commonwealth in a manner than comports with due process. Many defense-oriented commentators hoped that Murray would provide an opportunity for the Superior Court to reverse its prior rulings in accordance with Daimler.

In Murray, the trial court originally dismissed an out-of-state defendant for lack of general personal jurisdiction under Daimler, and on rehearing en banc the Superior Court upheld the order, but refused to resolve the mandatory consent to general jurisdiction issue, finding instead that Plaintiffs waived the argument by failing to raise it at the trial level. Although the Superior Court affirmed the order dismissing the out-of-state defendant for lack of personal jurisdiction, it did not address the merits of plaintiff’s argument that the defendant consented to jurisdiction by registering to conduct business in Pennsylvania.

Unfortunately for out-of-state product defendants that are registered to conduct business in Pennsylvania, the state of the law is such that consent by registration is still a sufficient basis for plaintiffs to assert general jurisdiction over out-of-state defendants in Pennsylvania, even after the Daimler decision appeared to reject this approach.

As this blog has previously reported, other states have rejected registration by an out-of-state defendant as consent to jurisdiction.

New Jersey Supreme Court Finds Liability Possible For Replacement Parts Supplied By Others If Original Product Contained Asbestos Components

Arthur Whelan was a plumber and infrequent auto mechanic. Decades before developing mesothelioma, Whelan alleges that he worked on numerous boilers that had asbestos components such as steam traps, fireboxes, steam valves and jacket liners. He also conducted a handful of brake jobs on Ford vehicles that involved asbestos parts. Whelan did not know whether the asbestos components in these products were original components, replacement components by the original manufacturer or replacement components by a different manufacturer. Nevertheless, Whelan sued the original manufacturers, alleging that they had a duty to warn product users of the dangers of the asbestos-containing product as initially manufactured and as asbestos-containing replacement parts were incorporated into the product.

A divided New Jersey Supreme Court held in Whelan v. Armstrong Inc. that manufacturers may be found liable for asbestos-containing replacement components that they did not build or distribute, because “it is fair for them to bear such responsibility when they profit from the parts extending the life of their original products.”

The opinion provides a four-part test for holding manufacturers and distributors strictly liable for the failure to warn about the dangers of their products’ asbestos-containing components:

  • First, a plaintiff must prove that asbestos-containing components were included in the original products;
  • Second, those components were integral to the product and necessary for it to function;
  • Third, routine maintenance required replacing those parts with similar asbestos-containing components; and
  • Fourth, exposure to the initial components or replacement parts was a substantial factor in causing or exacerbating the plaintiff’s disease.

In reaching this decision, the court speculated that requiring the original manufacturer to provide warnings for the anticipated replacement parts of the product would not place a burden on the manufacturer. Justice Albin noted that imposing a duty to warn about asbestos-containing replacement parts, no matter who built them, “adds hardly any further burden or cost to the product manufacturers, who already have a duty to warn of the dangers of the original asbestos-containing components.”

The court ruled that the manufacturer must provide warnings given the foreseeability that third parties would be the source of asbestos-containing replacement components. “Warnings on defendants’ products would have provided a reliable form of protection for the ultimate user,” so “[t]he lack of warnings rendered the products defective.”

The decision is consistent with the recent maritime common law failure to warn case decided by the Supreme Court. In Air & Liquid Systems Corp. v. DeVries, 873 F. 3d 232 (2019), the Supreme Court found that in the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. On the other hand, California and Washington, among other jurisdictions, generally restrict liability to those in the chain of commerce of the injury-producing product.

Will California Eliminate Several Liability for Non-Economic Damages for Some Defendants?

In California, while all defendants are liable to plaintiff for 100% of plaintiff’s economic damages, under “Proposition 51” defendants are liable for non-economic damages only in proportion to fault. The California Supreme Court heard argument this week on whether that includes a defendant liable for an intentional tort.

B.B. v. County of Los Angeles involves suits brought by the widow and surviving children of a man who died after a “prolonged and violent struggle with several deputies” including a chokehold. Several deputies were found negligent, and one found liable for intentional use of excessive force – battery. The case involved whether the intentional tort deputy should be liable for 100% of the non-economic damages or only his 20% share of responsibility.

Plaintiffs argued that the statute applies to an “action … based on principles of comparative fault,” and that while negligence is based on such principles, intentional tort liability is not. Intentional tortfeasors should not be allowed to shift the risk of noncollectibility of any portion of the non-economic damages to plaintiff. The defense argued that the purpose of Proposition 51 is to share responsibility for non-economic damages among all tortfeasors. I co-authored an amicus curiae brief for the defense.

The court posed remarkably few questions to either side, perhaps in part due to the novelty of arguing via remote video connection. That makes it harder to assess which way the court may be leaning.

The court’s decision, due within 90 days, will potentially affect many tort cases, and in particular many toxic tort cases. Plaintiffs routinely sue many defendants in the same case for committing independent acts of wrongdoing that collectively contributed to cause an injury. In product liability and asbestos exposure cases, plaintiffs typically assert claims for negligent and strict liability failure to warn, which they use as the springboard to also assert intentional tort claims for fraud and concealment based on the same evidence concerning a defendant’s failure (decades or even generations ago) to provide information about a product. If the California Supreme Court decides that intentional tort defendants are categorically exempt from the several liability protections of Proposition 51, then we can expect to see even more emphasis by the plaintiffs’ bar to advance intentional tort theories like fraud or battery.

Unique Business Logo Creates Evidentiary Path to Product Identification

A logo can be a first impression akin to the front door of a business. In Hart v. Keenan Properties, Inc., the logo “was the letter “K” drawn to resemble a straight pipe and an angled pipe, enclosed in a circle.” The California Supreme Court decision ruled that this unique business logo can create an evidentiary path for product identification in product liability cases.

The court granted review “to determine whether a company’s name and logo appearing on an invoice can constitute hearsay.” The answer: not in this case. “Under the facts presented, a witness’s observation of the name and logo was circumstantial evidence of identity, not proof of the truth of the matters asserted in the document.”

Plaintiff Frank Hart cut, beveled, and installed pipes for Christeve Corporation on the McKinleyville project from 1976-1977. After Plaintiff developed mesothelioma, he and his wife sued a number of entities who allegedly distributed asbestos-containing pipes to the project. Plaintiffs alleged that Keenan was one such supplier.

Plaintiff’s supervising foreman testified that it was his responsibility to check goods to the items listed on the invoice to ensure they matched upon delivery. He recalled that Keenan pipe was used at the project, because he remembered seeing the name “Keenan” on the invoices. When asked why Keenan sticks out in his mind, he replied, “Just the way the – their K and stuff is all – I don’t know.”

Keenan objected to the foreman’s testimony regarding the invoice arguing it was hearsay and further objecting that Plaintiffs failed to authenticate the document. The trial court overruled Keenan’s objections, primarily on the ground that the evidence was not hearsay but instead circumstantial evidence of identity. The jury awarded judgment against Keenan.

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Keenan appealed. The Court of Appeal reversed, concluding the foreman’s descriptions of the invoices at issue were hearsay. The California Supreme Court reversed the judgment of the Court of Appeal.

The court ruled that the foreman’s testimony about the invoices was being offered not for the truth of its contents, but instead to establish the link between Keenan and the foreman’s testimony that Keenan delivered pipes to the McKinleyville project. “[I]t is the combination of some characteristic that makes the document identifiable and the independent evidence connecting Keenan to the identifiable document that established the link.”

Other witnesses supported that link. Christeve’s bookkeeper testified that she recalled Keenan’s logo, “the K with a circle around it.” When asked why she remembered the logo she stated, “Because I know that we dealt with them, and [the logo] was unique, and I like it.” This evidence demonstrated that Keenan and Christeve did conduct business together during the relevant time. Keenan’s corporate representative acknowledged that Keenan sent customers invoices that bore Keenan’s name and logo. Thus, the court found that “[i]t was not unreasonable to infer [the foreman] was referring to the K logo acknowledged by Keenan’s representative.” “Taken together, the evidence was relevant to prove the disputed link between Keenan and the pipes, regardless of the content on the invoice.”

Does this mean that testimony about an invoice or other document that was itself lost long ago will always be admitted? Not necessarily. In California, though, defendants will not likely be able to exclude that testimony based on the hearsay rule.

Responding to “No Safe Dose” Revisited: That Is Not What Regulators Thought at the Time

Some time ago we posted on the topic of responding to the inevitable contention from plaintiff counsel that there is “no known safe dose of asbestos” or its frequent companion “every major health agency says there is no known safe dose.” These arguments are repeated as if they support the conclusion that since there was no known safe dose, every health agency always agreed that any dose was UNsafe. One of the thrusts of the earlier post was to point out that while the current scientific thinking might be that a safe dose has not been demonstrated, that was not the thinking of scientists and regulators in past years when exposures were actually occurring. As discussed before, throughout the 1950’s and 1960’s the State of California was stating that it had established a safe dose and it was at a level of 5 million particles per cubic foot as an 8 hour time weighted average over an entire career. We now cite to additional publications that there never was a consensus that any and all doses are unsafe.

Perhaps it should not be surprising, but the source is the United States Public Health Service. In January 1963 the USPHS announced its intent to conduct a large survey of asbestos exposures and hazards in workplaces. While the USPHS acknowledged that hazards associated with asbestos exposures had been known for years, it also noted that “many questions remain unanswered—.” In addition to seeking to answer the question “Are malignancies occupational risks of the worker in the asbestos product industry?,” the USPHS asked: “What are the safe levels of exposures to the various materials that constitute health risks in this industry?” (emphasis added.)

This same study is discussed again in a publication from the USPHS that was presented at an International Congress on Asbestosis in Caen, France in May 1964. The authors are identified as L. Cralley, H. Ayer, P. Enterline, A. Henschel and W. Lainhart (all identified as Chiefs or Assistant Chiefs at the Department of Health, Education, and Welfare at the Public Health Service, Division of Occupational Health). They outline their plans to conduct a broad study at numerous sites to collect and analyze data. “There is a great need for further definitive information on the health effects from exposure to asbestos dusts and fibers and on safe levels of exposure.” (emphasis added.)

This same thinking prevailed in the USPHS for at least several more years. In April 1967, Dr. Cralley circulated a draft of a paper reviewing what had been discussed at a USPHS sponsored meeting in Cincinnati in 1966. The draft paper comments that “Even though asbestos has been in industrial use for well over 50 yrs, much is unknown regarding its health effects and safe levels of exposure.” (emphasis added.) At this time, the prevailing standard was the Threshold Limit Values published by the American Conference of Governmental Industrial Hygienists at 5 million particles per cubic foot as an 8 hour time weighted average over a career. One of the threshold issues for which the attendees at the conference are reported to have sought an answer was “What levels of exposure to the etiologic agents associated with asbestos-related diseases can be regarded as safe.” The paper goes on to state: “This is the prime objective of the research. When information on safe levels becomes available, environmental and other controls case be devised to keep exposures within the recommended limits.”

In 1969 Dr. Cralley, Dr. W. Clark Cooper, Dr. William Lainhart and Dr. Murray Brown published a paper in the Journal of Occupational Medicine. The authors again outline the many issues yet to be understood in regards to the health risks associated with asbestos exposure. Contrary to what plaintiff counsel repeatedly try to persuade jurors, at that time knowledge about asbestos hazards was far from complete and many conclusions argued to be established today were still very unsettled then. This paper recognized that one of the issues to be resolved was “[w]hat levels of exposure to the etiologic agents associated with asbestos-related diseases can be regarded as safe.” (emphasis added.)

Plaintiff counsel want the jurors to believe that since their experts will say that no one has yet proven that there is a “safe” level of exposure to asbestos (as if that could ever be done), that means that every exposure to asbestos is known to be unsafe. And to imply that such has been the accepted thinking for decades. That is manifestly untrue. As the citations above and other evidence demonstrates, during the pertinent time in the 50’s and 60’s when many of the claimed exposures were occurring, representatives of the USPHS and other researchers and scientists felt that they did not have adequate information to answer many questions about hazards from asbestos. They felt that collecting more data would allow them to identify a safe level. They did not claim at that time, nor do competent researchers and scientist today claim, that every exposure is hazardous. The corollary is that companies using asbestos and manufacturing asbestos products were not on notice that every use of asbestos was unsafe. To the contrary, they were being told by the State of California, the USPHS and others that controlling exposures to the existing regulatory limits would be safe.

Not Fair in Pennsylvania (Update) – The Pennsylvania Supreme Court Rules That Fair Share Act Does Not Allow Fault-Based Apportionment in Strict Liability Cases

In a decision that will reshape Pennsylvania products liability cases, the Pennsylvania Supreme Court has ruled that the Fair Share Act does not require pro rata percentage apportionment of damages among codefendants in proportion to fault. Instead, in asbestos and perhaps other strict liability cases, damages are to be split per capita, equally among defendants and a limited set of other responsible parties.

The Fair Share Act

The proper method by which shares of liability are allocated to asbestos defendants (and strict liability defendants more generally) was unclear for some time in the Commonwealth of Pennsylvania. The Fair Share Act, passed in 2011, apparently clarified the issue by eliminating joint and several liability apportionment in most tort cases.

[E]ach 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.

42 Pa. C.S. §7102(a.1). This provision appears to make “pro rata” or “apportioned” allocation of fault the default mechanism for allocating liability in Pennsylvania.

The statute further 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.” This provision makes all tortfeasors severally liable to the injured party except in a few defined circumstances, such as where a defendant is found more than 60% liable.

The Fair Share Act specifically applies to “actions for strict liability,” but trial courts have inconsistently applied pro rata allocation in asbestos strict liability cases, often relying upon the language from a prior version of the Fair Share Act which apportioned fault amongst strictly liable defendants on a per capita basis, such that each defendant is equally responsible for a portion of the verdict (e.g. five defendants would each be 20% liable) without regard to degrees of fault.

Roverano Lower Court Decisions

A Philadelphia jury awarded $6.4 million to a former utility worker and his wife following an asbestos (lung cancer) trial. The trial court ruled that the Fair Share Act did not apply and apportioned the judgment equally (per capita) among the eight tortfeasors. The two remaining defendants at trial appealed, arguing that pro rata allocation was required under the Fair Share Act. The Superior Court, Pennsylvania’s intermediate appellate court, sided with the defendants and reversed.

Roverano Supreme Court Decision

On February 19, 2020, a majority of the Supreme Court of Pennsylvania held that the Fair Share Act requires trial courts to apportion liability equally (per capita) among strictly liable joint tortfeasors in asbestos litigation. [The majority opinion can be found here.] The court also ruled that the Fair Share Act allows defendants to include bankrupt entities on the verdict sheet and apportion liability against them, subject to (1) appropriate proof against the bankrupt entity and (2) provided that the bankrupt entity was joined as a defendant. Per capita allocation against a bankrupt entity is also permitted if that entity entered into a release with the plaintiff. Under the Supreme Court’s logic, the same rule should apply to settling codefendants, provided non-settling parties make the appropriate proofs against each settling entity.

Justice Wecht’s concurring opinion [found here] explained that the Fair Share Act was never intended to repeal a common law strict liability rule that compelled trial courts to apportion strict liability verdicts on a per capita basis. The use of the term “strict liability” was only “intended to eliminate joint and several liability for strict liability cases as well as for negligence actions.” Justice Wecht reasoned that “in providing that strict liability would apply to defendants severally rather than jointly, the General Assembly neither said nor clearly implied that it intended to displace per capita apportionment in strict liability cases.” Like the majority, Justice Wecht believes that it is too scientifically difficult to apportion fault in asbestos cases on a pro rata basis – that juries and trial courts cannot fairly apportion relative fault in asbestos and other toxic tort cases.

Impact on Products Liability Litigation in Pennsylvania

The Supreme Court did not explicitly state whether its holding is limited to asbestos and toxic tort cases, where scientific and exposure issues arguably make it difficult to fairly assign fault-based liability (though juries seem perfectly capable of the task in most other jurisdictions), or whether per capita allocation applies across the board to all strict liability defendants in Pennsylvania.

Three major effects of Roverano are likely: (1) to increase settlement pressure on nominal defendants facing per capita liability allocation at trial; (2) to incentivize defendants to join additional parties to spread liability amongst as many defendants as possible; (3) to change the way cases are tried, for example “pointing the finger” at more culpable parties.

Many commentators believe that the Supreme Court intended Roverano as a special rule in cases where damages and liability cannot reasonably be divided between multiple defendants. If true, the Fair Share Act would still apply to other types of strict liability cases, such as those involving industrial equipment, hard consumer goods, etc. On the other hand, if Roverano has broad applicability to all forms of strict liability cases, it will lead to a drastic change in the way that product defendants negotiate settlements. This interpretation of Roverano could lead to an explosion of third-party litigation, especially in complex products cases implicating numerous product distributors, component part manufacturers, etc.

Illinois Appeals Court Reverses $3.2 MM Asbestos Verdict: Contact With Product Capable of Releasing Fibers Not Enough To Establish Causation

In Krumwiede v. Tremco, Inc., 2020 IL App (4th) 180434, an Illinois appeals court reversed a $3.2 million award against a defendant-manufacturer in an asbestos case finding plaintiffs failed to meet the minimum threshold of evidence required to bring the question of causation before a jury. The decision ruled that plaintiffs must present more than evidence of frequent, regular, and proximate contact with a product that is capable of releasing asbestos to bring the question of causation before the jury.

Plaintiffs presented testimony of two of decedent’s co-workers that Decedent was exposed to asbestos from two Tremco products – “440 tape” and “mono caulk” –that Decedent worked with “just about every day” as a window glazier from approximately the mid-1950s until the early 1990s. Those co-workers denied, however, seeing any visible dust created from that work. Plaintiffs further presented the expert testimony of Dr. Arthur Frank. Dr. Frank opined that there was no scientific way to determine which exposure caused plaintiff’s disease and that “it is the cumulative exposure, the totality of the exposure . . . that causes the disease.” He further opined that “all of the exposures that [decedent] had from any and all products [including Tremco’s] of any and all fiber type would have contributed to his developing his mesothelioma.” This has been termed as the “cumulative exposure theory.”

Dr. Frank also testified that Tremco’s products were capable of releasing asbestos fibers because he never encountered an asbestos-containing product that would not release asbestos fibers, and that in his 40 years of experience he had “looked at” cases involving similar products and affirmed that they could release asbestos.

Notably, the panel found Dr. Frank’s testimony “remarkably similar to his testimony in McKinney.” In McKinney, 2018 IL App (4th) 170333, (brought by the same plaintiffs’ law firm and decided by the same appellate court) a welder filed suit against a welding-rod manufacturer alleging exposure to asbestos from the welding rods caused his mesothelioma. Plaintiff alleged exposure from the rubbing together of the welding-rods near his workspace. Dr. Frank testified that he never encountered a product that could not release asbestos. In McKinney, however, Dr. Frank testified that he further relied on welding-rod studies for the basis that the welding-rods were capable of releasing asbestos. Applying the asbestos causation standard as set forth by the Illinois Supreme Court in Thacker and Nolan, the McKinney court found that while the welding rods were capable of releasing asbestos, plaintiff failed to present evidence of exposure to respirable asbestos from defendant’s product to bring the question of causation before the jury.

In Krumwiede, Tremco appealed and argued, as defendant did in McKinney, that it was entitled to a judgment n.o.v., because plaintiff failed to present evidence of exposure to respirable asbestos fibers from the caulk or tape to establish that it was a substantial factor in causing decedent’s disease. As in McKinney, the court again found there was insufficient evidence to establish that plaintiff was exposed to asbestos such that it was not de minimis but was a substantial factor in causing his disease:

“In this case, even accepting that Tremco’s 440 Tape and Mono caulk were capable of releasing respirable asbestos fibers, the evidence was otherwise lacking with respect to the element of substantial factor causation. In particular, there is no evidence in the record showing when, and under what circumstances, Tremco’s products released respirable asbestos fibers, whether circumstances causing the release of respirable asbestos fibers were the type that would have been regularly encountered by decedent when using Tremco’s products, or whether the release of fibers from Tremco’s products was anything more than minimal.”

In addition to its substantial factor causation analysis, the panel reached several other issues not previously addressed in McKinney. First, while it appears that some level of actual exposure, more than de minimis, is required to meet the Thacker test, the panel agreed with Plaintiffs that they were not required to quantify the number of asbestos fibers to which decedent was exposed. The Panel also rejected Plaintiffs’ arguments that Dr. Frank’s cumulative exposure theory is contrary to Illinois law and substantial factor causation. (See our other posts on the cumulative exposure theory, here, here, and here.)

Krumwiede offers Illinois defendants a favorable application of causation law, consistent with Illinois’ current trend in asbestos cases. Practically speaking, this trend could also add the burden and cost of additional plaintiff experts who can opine as to the specific exposures from the products at issue.

Possibility That Product Contained Asbestos Not Enough to Create Triable Issue in California

Recently, in Berg v. Colgate, the Court of Appeal gave good news to manufacturers who dispute that their products contain asbestos. “It was not enough for plaintiffs to produce some evidence that [plaintiff] was exposed to a product that possibly contained asbestos.” Plaintiffs’ case against Colgate was dismissed when plaintiffs failed to provide sufficient evidence that plaintiff “was more likely than not exposed to asbestos contained in a product sold by Mennen.”

Colgate-Palmolive Company’s predecessor, the Mennen Company, manufactured a shave talc that plaintiff used from 1959 to 1962. Colgate adamantly disputes that the product contained asbestos. Further, Colgate argued plaintiff could not establish through reliable evidence that the talc plaintiff actually used contained asbestos.

Plaintiffs argued that all or virtually all of the Mennen talc that plaintiff used from 1959-1962 contained asbestos. First, plaintiffs put forth evidence that Mennen’s talc supply came from mines historically known (aka assumed) to be contaminated with asbestos. Next, they submitted a 1972 FDA test showing that Mennen talc contained 4% chrysotile asbestos and a 1976 test showing that Mennen talc manufactured in 1972 contained 2% tremolite asbestos. Last, plaintiffs’ expert tested Mennen talc samples which looked similar to the description of the cans plaintiff used. Plaintiffs’ expert alleged that the samples contained amphibole asbestos. From the combined evidence, plaintiffs’ expert opined to a reasonable degree of scientific certainty that the cans plaintiff used from 1959-1962 contained dangerous levels of asbestos.

The Court of Appeal was not convinced that a jury could conclude from plaintiffs’ evidence that it was more likely than not that the shave talc plaintiff used contained asbestos. Even assuming that some talc came from mines that contained some level of asbestos, plaintiffs “fail[ed] to a support a conclusion that all or most of the Mennen Shave Talc containers sold from 1959 to 1962 contained asbestos.” Notably, plaintiffs’ expert relied upon the FDA’s testing of cans that were manufactured at least 10 years after the time plaintiff used the product. What’s more, the testing plaintiffs’ expert personally conducted were on cans of an unknown origin date. Plaintiff’s testimony that the cans tested looked similar to the cans he used decades prior is insufficient.

Plaintiffs primarily relied on Lyons, where the court  found  “substantial evidence creating a triable issue as to whether Colgate’s Cashmere Bouquet talc contained asbestos that may be found to have been a substantial cause of plaintiff’s mesothelioma.”  The Court of Appeal disagreed, distinguishing Lyons on several grounds.  In Lyons, plaintiff used the product for over 20 years. Additionally, Colgate did not dispute that the product contained asbestos and there was no evidence of any other source of asbestos exposure. Taken together, this was enough evidence to “create more than an unsupported possibility” that the product exposed plaintiff to asbestos.

Here, unlike Lyons, plaintiffs’ expert was unable to explain rationally “or even commonsensically logical” how he determined Mennen cans sold during the applicable time contained asbestos. Unlike Lyons, plaintiffs allege additional exposure to asbestos from other products. A final, distinguishing factor was that plaintiff used Mennen shave talc for a short period of time, 1959-1962, and only between 4-6 cans during that period. “Thus, [plaintiff’s] eventual development of mesothelioma provides much weaker support for an inference that the shave talc he used contained asbestos.”

Ultimately, the Court of Appeal held that plaintiffs failed to carry their evidentiary burden. “At best, plaintiffs presented evidence that the shave talc [plaintiff] used exposed him to asbestos, but they failed to present evidence upon which a reasonable jury could conclude that any such exposure was more likely than not.” This case will provide helpful legal precedent to ensure that plaintiffs satisfy their evidentiary burden to demonstrate the product was more likely than not to contain asbestos.

Bad Bill Becomes Law: Time Limits on Mesothelioma Plaintiff Depositions Enacted in California

California Governor Gavin Newsom has signed Senate Bill 645 into law. This law imposes stringent time limits on asbestos defendants’ deposition examination of a mesothelioma or silicosis plaintiff. (See prior post here.)

SB 645’s passage comes after a summer of highly emotional testimony in the legislature by the proponents of the bill. It was ordered to a third and final reading before the California Assembly in July, after passing quickly through the California Senate in June.

The new law places a 7-hour limitation on defendants’ deposition examination of a mesothelioma plaintiff if a licensed physician provides a declaration attesting both that the plaintiff has mesothelioma, and that there is substantial medical doubt of survival beyond 6 months. Defendants may move the court for an additional 3 hours if more than 10 defendants appear at the deposition, and an additional 7 hours if more than 20 defendants appear at the deposition. However, the court may only grant even these minimal extensions of time upon a finding that the extension is in the interest of fairness, and that the health of the plaintiff is not endangered by the grant of additional time.

SB 645 is even worse than California’s prior law, which allowed for 7 hours of deposition testimony, plus an extension of up to 20 hours of total testimony in the trial court’s discretion. The law also seems to override case management orders in counties with heavy asbestos calendars, such as Alameda and Los Angeles counties, where the case management orders regularly provided up to 20 hours for defendants’ deposition testimony in asbestos cases.

Last Defendant at Trial, You Are Not Alone: Apportionment Under New Jersey Law

Last week in the Rowe v. Bell & Gossett decision, a unanimous New Jersey Supreme Court found that an asbestos defendant at trial may demonstrate settling co-defendants’ liability and their share of fault by using the co-defendants’ answers to interrogatories and corporate representative depositions from the pending or prior asbestos litigations. This evidence, along with plaintiff’s testimony on product usage and plaintiff’s own expert’s testimony on cross-examination, was sufficient to show that each settling defendant’s product was a substantial factor in causing injury and allow a jury to allocate fault. Thus, the court has provided guidance on how and not just that a remaining defendant may reduce its fault at trial. Under New Jersey’s joint tortfeasor law, as in many other jurisdictions, when two or more persons are jointly and severally liable for the same tort and injury, the jury must allocate fault between and among the tortfeasors, regardless of whether they all remain parties to the litigation.

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The Supreme Court’s decision will require plaintiffs to fully understand the relative responsibilities among defendants before risking a settlement with some but not all of them. This will undoubtedly delay or completely prevent settlement opportunities, especially for parties of products that plaintiff most regularly used during his lifetime.

From a defense perspective, this decision endorses a streamlined approach for proving cross-claims at trial. non-settling defendant must simply be careful to timely and fully disclose its intent to demonstrate such non-parties’ liability at trial. With proper notice, the non-settling defendant may use the settling defendants’ written interrogatory answers, corporate representative depositions, responses to admissions, prior trial testimony, if any, or call them as a live witness if the content of these statements were made “against the party’s interest.”

In Rowe, plaintiff argued that interrogatory responses and corporate representative depositions were impermissible hearsay that could only be used, if at all, against the declarant co-defendants, not against plaintiff. The Supreme Court rejected that argument, finding that these statements were admissible under New Jersey Rule of Evidence 803(c)(25) because they were made by the corporate defendant and were “so far contrary to the [corporation’s] pecuniary, proprietary, or social interest, or so far tended to subject [that defendant] to civil or criminal liability . . . that a reasonable person in [that defendant’s] position would not have made the statement unless the person believed it to be true.” In Rowe, “when the relevant statements were made, each declarant was a defendant in this case or in other asbestos product liability cases.” Moreover, such statements admitted corporate relationships including potential successor liability, the manufacture or sale of goods containing asbestos, or the manufacture or sale of goods without warnings related to asbestos.

The Appellate Division had ruled that these statements were not “against interest” because “the existence of asbestos-containing products and the absence of warnings are objective, well-known historical facts that the settling defendants could not avoid acknowledging in the face of incontrovertible proof.” The Supreme Court rejected this argument, noting that statements against interest need not be on novel or controversial issues, or the only proof of a given claim. Thus, these statements were properly admitted by the trial judge and considered by the jury to apportion fault.