California Court Excludes Plaintiff Expert for Abusing Common Bradford Hill Analysis

By on May 9, 2023

A California appellate court has affirmed the exclusion of an expert witness who “(1) unreliably found causation based on [a single] study alone while disregarding other human data …; (2) analyzed animal data even though he was unqualified to do so; and (3) misapplied [several] of the nine factors of the Bradford Hill analysis.” Onglyza Product Cases involved claimed negative cardiovascular effects from a diabetes medication. The rulings are, however, broadly applicable to expert witnesses generally and to the recurring minefield that is Bradford Hill.

“A trial court does not abuse its discretion in excluding expert testimony on general causation when the expert’s opinion is based on a single study that provides no reasonable basis for the opinion offered.” Here, the studies’ authors said more study was needed to address causation.

“We do not hold that one randomized controlled trial is never sufficient to establish general causation, but on this record, the trial court did not abuse its discretion in finding that Dr. Goyal’s reliance on SAVOR alone to establish general causation was logically unsound, especially given Dr. Goyal’s own agreement that SAVOR’s finding needed to be replicated in order to determine causation.”

The trial court’s “decision was based on various methodological defects it found in Dr. Goyal’s application of six of the nine Bradford Hill factors, and that because he failed to weigh them together, it could not identify any predicate opinion on a specific factor that was not essential to his ultimate opinion. As a result, it concluded that methodological defects in any of the factors would upset the ultimate opinion on causation. This was a proper exercise of the court’s gatekeeping responsibility.”

In some instances, the court ruled that the expert was “refusing to engage with a factor of the Bradford Hill analysis on its terms” by essentially re-defining the terms to suit his opinions. Sound familiar?

For example, “consistency … is upheld when the same finding is shown in multiple studies across different populations and settings.” Yet the expert relied on only one study. He also relied on data from preclinical animal studies, though he was not qualified to interpret animal data.  

Similarly, “specificity” is met “if the exposure is associated only with a single disease or type of disease.” The expert testified that specificity was nonetheless met through the single study because “the randomized controlled trial allows you to fulfill that criterion.” “[A]nother example of Dr. Goyal refusing to engage with a factor of the Bradford Hill analysis on its terms.” 

“‘Biological plausibility’ refers to whether there is a plausible biological mechanism to explain a cause-and-effect relationship between exposure and disease. … The trial court noted that the strongest mechanism Dr. Goyal could identify was only ‘a proposed hypothesis.’” His opinion was therefore rejected because he did “not undertake an analysis of whether the data that exists supports or undermines his opinion that the proposed mechanisms are plausible.”

“‘Analogy’ considers whether there have been associations found between a related or similar substance to the one at issue and the disease or outcome.” The expert analogized to a different class of diabetes medication than the one at issue (DPP-4). “The trial court reasonably concluded that this opinion was not reliable because the only reason for Dr. Goyal to analogize saxagliptin to TZDs rather than to other DPP-4 inhibitors was that the former supported his ultimate conclusion on causation and the latter did not.”

Bonus for the defense: because general causation must be proven by expert evidence, and plaintiffs’ sole expert on general causation was excluded, summary judgment followed. The trial court denied plaintiffs’ request to re-open discovery and allow them to find another expert. The Court of Appeal affirmed that too.

Filed under Bradford Hill, Expert Witness, General Causation

PFAS Expanding the Targets for California’s Proposition 65 Liability

By on January 11, 2023

Proposition 65 Background

The California law commonly referred to as “Proposition 65” prohibits businesses from knowingly and intentionally exposing any individual in the State to a listed chemical without first giving a clear and reasonable warning.  Violations of Proposition 65 can lead to penalties of up to $2500 per violation per day, and can carry the possibility of paying a plaintiff attorneys’ fees.  Proposition 65 provides private parties the right to enforce this law on behalf of the People of the State (if the State chooses not to), which has spawned a cottage industry of enforcement plaintiff attorneys capitalizing upon this plaintiff-friendly law.

PFAS Chemicals Added to the List

Under Proposition 65, the State maintains two lists of chemicals: one for carcinogens and another for reproductive toxicants.  The List now exceeds over 900 such chemicals and the State updates the List annually with new additions. 

PFAS (per- and polyfluoroalkyl substances) are a class of thousands of chemicals, and they are found in many different consumer, commercial, and industrial products.  PFAS appear set to take center stage on the Proposition 65 landscape, both from a litigation and regulatory perspective.  In 2017, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) were identified by the State as reproductive toxins and added to the List.  On December 31, 2021, the State added perfluorononanoic acid (PFNA) to the List.  Following a one-year grace period, enforcement for PFNA can now begin on January 1, 2023.  The State is also considering several other PFAS: PFHxS and PFDA.  As research concerning the impacts of many PFAS is intensively proceeding, we would expect the State may identify further PFAS to add to the List in the near future.

Products of Concern

PFAS have many beneficial properties, which has led to its use in many different industries and for varied products.  PFAS can impart oil, water, stain and soil repellent barriers, chemical and temperature resistance, and surfactant properties to products, some of which are considered essential to health, safety, or modern life.  The following are examples of some common products:

  • Water resistant clothing and footwear
  • Upholstery and carpeting
  • Cosmetics and dental products
  • Electronics
  • Paints and other coatings
  • Firefighting foam, and equipment and protective clothing
  • Medical products
  • Paper and cardboard, including food packaging

Recent Notices

Gordon Rees Scully Mansukhani regularly monitors the Proposition 65 Notices of Violation to keep on top of any trends, so that we may promptly inform our clients who may be impacted.  Significantly, we have noticed an important trend over the last 2 months: a dramatic increase in the number of Notices targeting products with PFAS.  Recent Notices have targeted outerwear clothing and rain jackets, baby bibs, bath pillows, duffel bags, umbrellas, shower liners, crib mattress pads, tablecloths, paper straws, and numerous cosmetics.

Tips for Companies to Help Protect Against Proposition 65 Liability

To minimize the potential for Proposition 65 liability, companies should consider the following:

Working with Suppliers to obtain maximum protection: companies obtaining products from upstream suppliers should obtain the best information possible from those suppliers regarding the presence of PFAS in the product, and confirm Proposition 65 compliance in its contract.

Product Testing: Depending upon the circumstances, product testing can be considered.  Attorney involvement should also be considered if testing, as attorney-client privileges may be important.  Also, companies obtaining product from upstream suppliers should request any testing results conducted by the suppliers.

Proper Warnings: Proposition 65 provides a “safe harbor” for those products containing a compliant warning.  The law allows for both long-form and short-form warnings.  The long-form warnings require identification of at least one listed chemical, whereas the short-form warnings generically identify carcinogens and/or reproductive toxicants.  When considering warnings, in the quest to avoid Proposition 65 liability, some companies will provide a Proposition 65 warning regardless of any specific information actually requiring the warning.  We recommend extreme caution attempting to achieve Proposition 65 compliance by providing long-form warnings identifying PFAS without information confirming the presence of PFAS.  The regulatory landscape for PFAS is evolving rapidly, and some states, including California, and have banned the use of PFAS in certain products; thus, a long-form Proposition 65 warning concerning PFAS (without any specific supporting data) raises the potential for triggering liability under other laws.

GRSM regularly counsels clients seeking to comply with Proposition 65 and is available to assist any company seeking advice to maximize its liability protection.

Filed under Uncategorized Tagged with , ,

New York Appellate Courts Clarify Defense-Friendly Standards on Causation

By on August 1, 2022

Recently, New York’s highest court and the intermediary appellate court (Appellate Division: First Department) that hears all appeals arising from New York City’s Asbestos Litigation (“NYCAL”) have ruled that it is a plaintiff’s burden to present evidence of (1) what base line exposure is necessary to cause disease; and (2) that the exposure experienced from each product reached, or exceeded, that level sufficient to cause the disease. Furthermore, common assertions by plaintiff experts like “no safe dose” and “all asbestos is dangerous” were ruled not sufficient to meet this burden.

These were set out in decision of New York’s highest court, the Court of Appeals, in Nemeth, which set aside a jury verdict (and in which our firm submitted an amicus brief).

Although we have recognized that in any given case it may be “difficult, if not impossible, to quantify a plaintiff’s past exposure” to a toxin (Sean R., 26 NY3d at 812), our standard itself is not “impossible” for plaintiffs to meet (dissenting op at 25). We must, as always, strike a balance between the need to exclude “unreliable or speculative information” as to causation with our obligation to ensure that we have not set “an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court” (Parker, 7 NY3d at 447). The requirement that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness strikes the appropriate balance (see Cornell, 22 NY3d at 784). The fault here is not in our standard, but in plaintiff’s proof.

Nemeth v. Brenntag N. Am., No. 24, 2022 WL 1217464, at *1 (N.Y. Apr. 26, 2022)

In Olsen, the First Department set aside one of the most massive NYCAL jury awards to date: after remittitur, $15 million in compensatory damages and $105 million in punitive damages. The First Department held that plaintiffs failed, as a matter of law, to carry their burden to establish sufficient exposure to defendant’s talc product to cause plaintiff’s mesothelioma.

Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert’s estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J & J’s talcum powder products, plaintiffs’ medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question.

Matter of New York City Asbestos Litig.(Olsen), No. 14875, 2022 WL 2812015, at *1 (1st Dept. 2022).

Olsen was the first NYCAL verdict overturned on appeal following Nemeth. However, the First Department did not stop there. It issued three more decisions clarifying and extending Nemeth to motions for summary judgment—contrary to the plaintiffs’ argument throughout New York that Nemeth applied only to post-verdict rulings.

All three cases involved claimants diagnosed with lung cancer who alleged asbestos exposure from Amtico floor tiles. The court confronted the same argument and experts on causation in each case.

In reversing the lower court’s denial of defendant’s motions for summary judgment, the First Department held that defendant made out a prima facie case that plaintiffs were not exposed to sufficient quantities of respirable asbestos from defendant’s product to cause their disease, based on a 2007 simulation study showing that cutting, scoring and disruption of its floor tile did not produce sufficient airborne asbestos above ambient levels to cause the disease.

The court held that plaintiffs failed to raise an issue of fact by failing to provide any quantification and merely arguing “no safe” levels:

Dr. Ginsburg generally concludes that “[t]here is no safe minimum level of exposure to asbestos with respect to lung cancer” and that “manipulation of asbestos containing floor tiles can result in release of asbestos fibers into the workers’ environment that are exponentially greater than the ambient level of exposure.” He also states that the asbestos process releases “visible dust” and that such dust is “certainly in dangerous concentration.” However, Nemeth holds that such broad pronouncements and conclusions will not satisfy a plaintiff’s causation burden, which is to show the levels of asbestos that the plaintiff was exposed to and that the levels are known to cause lung cancer. Likewise, to the extent Dr. Ginsberg’s [sic] conclusions are based upon the presence of visible dust emanating from an asbestos-containing product, this theory fails to satisfy a plaintiff’s burden on causation in asbestos cases. Id.

Dyer v. Amchem Prod. Inc., No. 13739, 2022 WL 2811995, at *1 (1st Dept. 2022).

The court rejected plaintiffs’ argument that defense-funded experiments invalidates their conclusions, particularly given that “[p]laintiff offered no expert to counter ABI’s calculation of decedent’s cumulative lifetime exposure, and thus no question of fact was raised as to its validity.” Killian v. A.C. & S., Inc., (Grunert), No. 114345/02, 2022 WL 2812016, at *1 (1st Dept. 2022). Although Dr. Ginsberg pointed to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc from floor tile work, the court held that he did not provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent’s lung cancer. Pomponi v. A.O. Smith Water Prod. Co., No. 14982, 2022 WL 2811997, at *1 (1st Dept. 2022).

In each of these four cases, the First Department made clear that a plaintiff cannot establish his or her burden at trial or summary judgment (after defendant meets its initial prima facie burden), by relying on the generalized expert opinions that exposure to a toxin is “excessive” or “far more” than others and, therefore, sufficient to cause a disease. The court needs to be presented with actual quantification of the level of asbestos exposure need to cause the disease at issue and that plaintiff’s inhalation of asbestos from defendant’s product met or surpassed that level.

Filed under Asbestos, Causation, Expert Witness, New York

California Changes Law: Pain and Suffering Survives the Deceased

By on October 5, 2021

A specter of the deceased’s pain and suffering will soon haunt California defendants.

California law has long been that damages for pain and suffering “die with the plaintiff,” on the rationale that such damages are personal to the individual. Recent legislation signed into law by Governor Newsom on October 5 and effective January 1 changes this, and places California’s treatment of pain and suffering damages more in line with a majority of the nation. This bill, originally introduced by Senator Laird in February 2021, has been amended slightly: pain and suffering damages will be granted a life beyond the deceased for those cases that were granted preference before January 1, 2022, or are filed between January 1, 2022 before January 1, 2026.

One could reasonably anticipate that before this sunset date, the plaintiffs’ bar will introduce further legislation to make the change permanent.

The new law will not only increase available damages in many cases, but will correspondingly make litigation more difficult to settle, and therefore costlier even where there are meritorious defenses.

The bill was required to go through the Assembly Appropriations Committee before making its way to the governor’s desk. This route is usually reserved for bills that will have a fiscal impact on California’s budget. An Assembly report highlighted that some State entities, such as the University of California, CalTrans and Cal Fire, have faced million dollar lawsuits for personal injury, so pain and suffering’s extended life will have a fiscal impact that needed to be considered before passing the bill out of the legislature.

Through the General Fund for tax payers, and more generally through increased defense costs, this may amount to California citizens paying more as these costs are passed on to consumers.

(This is a follow up to the article Pain and suffering may become awardable in California wrongful death cases, from May 20, 2021.)

Filed under California, non-economic damages

Plaintiff Experts Can Now Change Stories between Deposition and Summary Judgment?

By on August 24, 2021

It just got tougher to pin a California plaintiff’s expert down at deposition.

Generally, a witness cannot give a declaration opposing summary judgment that is inconsistent with prior discovery responses (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1), and an expert witness cannot testify beyond the opinions offered at deposition (Jones v. Moore (2000) 80 Cal.App.4th 557, 565 [“When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial.”]).

A recent California decision throws both those principles into question. Harris v. Tomas Dee Engineering Co. ruled that an expert’s declaration advancing a new theory was not only admissible, but created a factual issue that required reversing summary judgment to the defendant.

The new theory was on a key issue in the case: whether the decedent was ever exposed to asbestos from the defendant’s activities. At deposition, industrial hygienist William Ewing testified, “If he wasn’t present when the work was done, then I don’t think there’d be any issue regarding any exposure.” When plaintiffs were confronted with a potentially fatal motion for summary judgment based on this testimony, however, the expert backtracked. He provided a declaration opining that Mr. Harris “did not need to be present at the exact time that the insulation block was being removed, swept up, and/or installed by Thomas [Dee] workers to be exposed.” Why? Because of the theory of re-entrainment. “This cycle of re-suspension is well-documented and is generally accepted in the industrial hygiene field.”

The trial court rejected the new opinion as contradictory, and granted summary judgment. The Court of Appeal reversed. It ruled that the Jones v. Moore bar applied to an expert’s trial testimony, but not to testimony on summary judgment. This is contrary to Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541-543, where the Supreme Court held that the same evidentiary standards apply on summary judgment and trial. Harris does not mention Perry.

Harris also ruled that D’Amico was more limited than many defense counsel suppose, and did not bar the changed testimony. The Court of Appeal distinguished D’Amico as involving factual assertions by a party. “In contrast, in the present case, Mr. Ewing’s declaration relates a scientific theory that he apparently did not discuss in his deposition, and his statements in the declaration do not contradict any prior testimony regarding facts he observed.” Further, he explained the difference “by referencing the re-entrainment theory, which he stated is widely accepted in the scientific community.” The court distinguished cases where no explanation was offered.

Harris provides several important takeaways for defense counsel. 

First, the case underscores the importance of asking the right questions of expert witnesses at deposition, ensuring that the opinions are clearly stated, and clearly stated to be the only opinions the expert has to offer.   

Second, noticeably absent from the discussion in Harris was the adequacy of plaintiff’s expert witness declaration under California Code of Civil Procedure section 2034.210.  Had the defense focused on the adequacy of the expert witness declaration – e.g., whether it actually advanced the re-entrainment opinion –  instead of “contradictory testimony,” the result may have been different. 

Third,  rather than focus on excluding contradictory opinions at summary judgment, the prudent defense lawyer should focus examination at deposition on foundation for an expert’s opinions, and then assert evidentiary objections to those opinions at the summary judgment phase. 

Fourth,  Harris calls into question whether any strategy to lock down an expert witness can be 100% effective, or whether a plaintiff expert can always advance a new theory if it is “out there” in the literature. There are still concrete steps that counsel can take.

Filed under Asbestos, California, Experts

GRSM Attorneys Publish Article Urging Alternative Exposure Defense

By and on August 16, 2021

In a recent article for Mealey’s Litigation Report, Dallas partner James Lowery and associate Ted Yarbrough explain why defense of asbestos and talcum powder cases requires exploring alternative exposures. The article focuses on why alternative exposure minimizes the potential liability of each defendant, and how the alternative exposure case needs to be developed at all stages of litigation – from plaintiff’s deposition (the real first day of trial) up through trial.

Mr. Lowery and Mr. Yarbrough argue it is essential that defendants show exposure to more serious types of asbestos found in the amphibole asbestos containing found in the products of the bankruptcy trusts – such as Johns Manville and Thermobestos – as well as exposure in the Navy, from smoking cigarettes, and in the average residential home. This article can be an invaluable guide in minimizing a defendant’s exposure in high risk asbestos and talcum powder cases.

Filed under Asbestos, exposure', Talc

Women’s Lunch at Perrin National Asbestos Litigation Conference

By on July 20, 2021

Beverly Bond
Stephanie Jones
Women’s Lunch at Perrin National Asbestos Litigation Conference

MONDAY, SEPTEMBER 27 · 12:15 P.M.
THE FAIRMONT SAN FRANCISCO HOTEL

Join hosts Beverly Bond and Stephanie Jones
at the Women’s Lunch as part of the
Perrin National Asbestos Litigation Conference.

We look forward to seeing you there!

GRSM Logo

Filed under Asbestos

A Return to the Hotel California: Out of State Plaintiffs Must Bring Their Causation “Baggage” With Them

By , and on July 15, 2021

Out of state plaintiffs flock to California courts to take advantage of its laws, including its more relaxed causation standard for asbestos injuries. However, a recent California appellate decision highlighted the fact a plaintiff may not evade the application of his own state’s causation standard when his asbestos exposure occurred entirely in that state – notwithstanding a California venue.1

Swanson v. The Marley-Wylain Company held the trial court erred by permitting a causation instruction based on California law, when Michigan’s causation standard properly applied. Swanson involved a Michigan-based plumber who, from 1969 to 1976, was allegedly exposed to asbestos while working on boilers manufactured by a Marley-Waylain (“MW”) subsidiary. He moved to California in 1979, was diagnosed with mesothelioma in 2014, and filed suit in California for his injury. Swanson’s exposure to MW’s product took place entirely in the state of Michigan, and given there was conflict between Michigan’s stronger “but for” standard of proximate cause test and California’s “substantial factor” test, MW asked the trial court to order Michigan’s causation standard applied. Although the trial court denied MW’s motion, the Court of Appeal issued a writ of mandate ordering Michigan’s causation law applied. The case proceeded to trial. Plaintiffs persuaded the court to issue a jury instruction setting forth California’s substantial factor test; the trial court ultimately instructed the jury the plaintiff “may meet the burden of proving exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.” The jury returned a verdict against MW.

On appeal, MW argued the jury had been improperly instructed under California law, and there was insufficient evidence under Michigan law of a causal link between plaintiff’s exposure and his disease. Although the court found the causation evidence could have been sufficient to support the jury’s verdict under Michigan law, it found that the trial court committed prejudicial error by instructing the jury on California’s “substantial factor” test and reversed the judgment and remanded the matter to the trial court for retrial.

The Swanson decision is important for multiple reasons, particularly its affirmation that the location of a plaintiff’s exposure properly frames the applicable causation standard. Even the fact that plaintiff moved to California in 1979 and was a California resident for 35 years before his diagnosis did not compel a different result. California law requires an issue by issue and defendant by defendant choice of law analysis. When, as here, such analysis mandates the application of out-of-state law, a plaintiff may not bypass that mandate with creatively fashioned jury instructions, or through a court’s prejudicial error by so instructing a jury.

The key takeaway for those defending California cases with plaintiffs whose exposure took place entirely out of state is to evaluate and seek to apply the causation standard of the locus of exposure. Even when a plaintiff is a California resident, the “issue by issue” evaluation process mandates application of the causation standard from the state where the exposure occurred.
________________________________________________________________________

1 This follows on the heels of other California cases seeking to rein in forum shopping by enterprising plaintiff’s lawyers, such as this one which sought to limit the use of “nominal” or “sham” defendants to defeat forum non conveniens motions.

Filed under Analysis, Asbestos, California, Causation, Choice of Law, Governmental Interest, Michigan

California highlights burden on defendants seeking to apportion liability to co-defendants and non-parties

By and on June 2, 2021

A California Court of Appeal has rejected a defense challenge that the defendant was assigned too high a percentage of liability (60%), because the defendant did not introduce enough evidence about other parties’ liability. The court also rejected a defense claim that the $25 million noneconomic damage award was excessive, even though it was “well beyond the normal range of awards in similar cases for similar injuries” per a survey of similar verdicts.

Phipps v. Copeland Corporation LLC was an asbestos personal injury case in which plaintiff alleged that his mesothelioma resulted from asbestos exposure during his three years in the U.S. Navy and during his subsequent career as an HVAC technician. Copeland Corporation was one of four compressor manufacturers plaintiff sued by plaintiff, along with many other defendants. Plaintiff proceeded to verdict against Copeland only.

Although plaintiff’s medical and causation experts acknowledged during trial at all of plaintiff’s asbestos exposures contributed to his overall dose, they specifically (and expectedly) amplified the exposures to the asbestos-containing gaskets contained within Copeland’s compressors in an effort to maximize Copeland’s share.

The jury found for plaintiff, and ultimately apportioned 60% liability to Copeland, of 15 parties and nonparties on the verdict form. Copeland argued that the evidence could not support “assigning twenty times more fault to Copeland than to any of the other compressor manufacturers, and more fault than all other entities combined.”

The court, however, disagreed. “[A]s the party with the burden to establish the percentage of comparative fault attributable to others [citations omitted], Copeland, to obtain a reversal, must show the evidence compelled a verdict in its favor on apportionment as a matter of law.” Copeland argued that the apportionment was “illogical” because it found Copeland more responsible than any other compressor companies. However, the court pointed out there was no evidence “to compel a finding that William replaced fewer Copeland gaskets than he did Carrier, Trane, or York gaskets.” In reaching this conclusion, the court found that there were sufficient, uncontroverted facts to establish that plaintiff would have worked with far fewer asbestos-containing components from the other equipment manufacturers than from Copeland. In the court’s view, Copeland failed to proffer sufficient evidence of the frequency, intensity and duration of plaintiff’s exposure to the products of other defendants, including the HVAC defendants, and so could not show that the jury’s 60% liability finding was improper.

“The second reason Copeland has failed to demonstrate the evidence compelled a verdict in its favor on apportionment as a matter of law is that ‘the jury was permitted to consider the relative culpability of the parties in assessing comparative fault.’” That culpability need not rise to the level of that required for punitive damages, as here the defense had won summary adjudication nixing punitive damages from the case.

Copeland also argued that the noneconomic damages award was excessive. In support, Copeland submitted to the trial court “a spreadsheet labeled “Plaintiff Verdict Amounts in Asbestos/Mesothelioma Cases.” An accompanying declaration explained that the spreadsheet was the result of “a process for obtaining comparative verdicts in cases that, similar to this one, involved allegations of asbestos exposure leading to mesothelioma,” based on “Lexis Advance® Verdict Analyzer.” Neither the trial court nor the Court of Appeal was moved by this use of technology.

“The trial court did not abuse its discretion in refusing to consider Copeland’s survey of awards in other cases because, if for no other reason, sections 657 and 658 prohibited the court from considering such material:” the statutes require motions to be made on “the minutes of the court.” Accordingly, and because the award was supported by substantial evidence, the judgment and denial of new trial was affirmed.

This case serves as a critical cautionary tale to defendants at trial of the importance of introducing evidence of the liability of others. While California’s Proposition 51 imposes several liability only for non-economic damages, the burden of proving these “alternate shares” lies exclusively with the defendant. The Phipps court made clear that, in its discretion, Copeland simply did not do enough to make a showing that the jury’s apportionment of responsibility was improper. In light of Phipps, a defendant should consider introducing evidence such as:

  • Quantitative assessments of the likely doses of asbestos from the products of others and any possible exposures from one’s own products, including dose reconstructions from experts when possible;
  • Medical causation evidence regarding the relative carcinogeneity of fiber type; and
  • Documentary, “hard” evidence of a co-defendant’s liabilities.

When there are multiple defendants at trial, the plaintiff will make some of this case. Where, as here, there is only a single defendant, this will be more onerous and time-consuming.

Filed under Apportionment, Asbestos, California, Prop 51, Substantial Factor

Pain and suffering may become awardable in California wrongful death cases.

By on May 20, 2021

California may be joining the majority of the country by making pain and suffering damages available in wrongful death cases. Under current law, pain and suffering is only available in personal injury cases. Senator Laird introduced Senate Bill 447 in February 2021, which would allow the survivor of a deceased plaintiff to recover damages for the pain and suffering of the deceased. The senator premised the need for this change on COVID delaying the courts and preventing trials, and to that end amended the original proposal so that it would apply only where the pain and suffering accrued before January 1, 2026.

Although Senator Laird had originally asserted the need for this change because COVID 19 was depriving some plaintiffs of their day in court, supporters of the bill have voiced more general concerns, such as the notion that the current law allows defendants to “get away with” paying less damages simply because the plaintiff dies before trial, and deprives the victim’s family of the additional compensation. Supporters of the bill include the Consumer Attorneys of California, the Consumer Federation of California, and various unions. Opponents include the California Defense Counsel, California Justice Association, California Medical Association, the California Chamber of Commerce, and associations of health facilities and assisted living facilities.

If this bill is passed, it will make wrongful death cases more expensive to settle. No matter whether the death had anything to do with the underlying suit.

The bill has been sent to the Assembly to weigh in on this change.

Filed under California, non-economic damages

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