Whodunit? Plaintiffs set up showdown between tobacco and asbestos defendants

By on June 17, 2015

On June 10, 2015, two well-known “asbestos” plaintiff firms, The Shepard Law Firm and Levy Konigsberg, LLP, together filed a complaint in the Superior Court of the Commonwealth of Massachusetts on behalf of plaintiffs Louis and Joanna Summerlin. Mr. Summerlin’s claimed injury is lung cancer, while Mrs. Summerlin’s claim is for loss of consortium. However, this is not a run-of-the-mill asbestos lawsuit. Rather, the plaintiffs have named more typical asbestos and big tobacco defendants Philip Morris USA and RJ Reynolds Tobacco Company in a clear effort to potentially pit asbestos against tobacco in a “whodunit” battle over what caused Mr. Summerlin’s cancer. Time will tell if this tactic will be successful.

cigaretteAsbestos cases generally fall into three categories: 1) mesothelioma claims; 2) non-malignant asbestosis claims/pleural disease; and 3) lung cancer claims. While categories (1) and (2) involve injuries commonly associated with asbestos exposure, lung cancers claims are not generally associated with asbestos, especially when the person with lung cancer smoked cigarettes for decades. That is, lung cancer claims are generally attributed to smoking and, absent very specific underlying diagnoses and smoking histories, are heavily contested by defendants in the asbestos litigation.

The normal defense in a case like this is the obvious one: the plaintiff’s lung cancer was caused by smoking cigarettes. Here, Mr. Summerlin was a two pack per day smoker of six decades (1950’s – 2009). Given the lengthy, heavy, and recent smoking history of Mr. Summerlin, the expected and obvious defense of the defendants sued for asbestos exposure would be that Mr. Summerlin’s lung cancer was caused by smoking cigarettes. While it is unclear from his complaint as to whether Mr. Summerlin alleges any markers of asbestos exposure, the assertion that Mr. Summerlin’s lung cancer was caused by smoking cigarettes would likely be accepted by any medical professional, thereby calling into question plaintiff’s claim that asbestos exposure is a contributing cause of Mr. Summerlin’s cancer. This is especially true given Mr. Summerlin’s work as an automotive mechanic, which the defense has successfully argued on many occasions that the epidemiological evidence does not support a conclusion that an individual in the trade is at any increased risk of developing an asbestos-related disease.

This is where the plaintiffs’ firms in Mr. Summerlin’s case appear to have taken a unique approach in New England in the pursuit of a lung cancer claim: they have sued both asbestos and tobacco defendants and alleged that exposure to both carcinogens acted as “concurrent” causes of Mr. Summerlin’s lung cancer. Specifically, the plaintiffs allege that “[c]igarette smoking and asbestos exposure act ‘synergistically’ and in combination to cause lung cancer in persons, such as Mr. Summerlin, who regularly smoked cigarettes and were regularly exposed to asbestos.” For years, plaintiffs in the asbestos litigation have made this claim in the face of the smoking defense. Here, they make the claim with big tobacco in the room. Regardless of the outcome, it is guaranteed that counsel on both sides will closely monitor the success – or failure – of this strategy.

Filed under asbestos causation, asbestos-related disease, Low Dose, Lung Cancer, Massachusetts, smoking

No Liability for Others’ Asbestos Products

By on January 13, 2012

The Bloomberg BNA Toxics Law Reporter reported this morning concerning an important new decision from the Supreme Court of California in O’Neil v. Crane Co., Cal., No. S177401, 1/12/12
In summary, California’s high court reaffirmed the principle that a product manufacturer may not be held strictly liable or negligent for harm caused by another maker’s product, except where the defendant has some direct responsibility for the harm.  In so holding, California refused to open the floodgates in the asbestos litigation to permit suits against manufacturers that never manufacturer or marketed asbestos-containing products.

Joining the majority of other jurisdictions that have considered the issue, California’s highest court held that California law did not impose liability on manufacturers of shipboard valves and pumps used in conjunction with asbestos-containing parts made by others.  In this case, the high court reversed the California Court of Appeal, Second Appellate District, which ruled in favor of the family of Patrick O’Neil, a naval officer allegedly exposed to asbestos from 1965 to 1967. O’Neil died of mesothelioma, a disease caused by asbestos, at 62.                                                                                  
 “[A] product manufacturer generally may not be held strictly liable for harm caused by another manufacturer’s product. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm,” Justice Carol A. Corrigan wrote for the court.

The court rejected the family’s argument that Crane Co. and Warren Pumps LLC, which made valves and pumps used on the ship, should be held strictly liable because they foresaw that their products would be used with replacement asbestos parts. The rationale for the Court’s holding is that  “[T]he foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability on the manufacturer of a nondefective product, or one whose arguably defective product does not actually cause harm.”   The Court left open the possibility for imposing liability for a non-manufacturer of asbestos in instances where it could be shown that “the defendant’s own product contributed substantially to the harm” or “the defendant participated substantially in creating a harmful combined use of the products.”  However, that was clearly not the case here.

As to the plaintiff’s negligence claims, the Court held that the defendants pump and valve companies owed no duty of care in the circumstances, based on “strong policy considerations.”
The companies’ connection to O’Neil’s injury was remote because they did not manufacture the asbestos-containing products; imposing a duty would be unlikely to prevent future harm; the Navy made its own purchasing choices and specifications; and consumers could potentially be harmed by too many product warnings, the court reasoned.

Increasingly, the plaintiff bar is seeking to impose strict product liabililty on manufacturers whose products did not cause the alleged harm.  This trend in asbestos cases is not dissimiliar from those pharmaceutical product  liability cases in which the plaintiffs seek to hold a brand name drug manufacturer liable, whose product was never taken by the injured party, for injuries allegedly caused by a generic manufacturer’s product.  These lawsuits are offensive to longstanding product liability case law and policy and should be rejected by the courts. 

Filed under Asbestos, asbestos-related disease, Bloomberg BNA Toxics Law Reporter, California Supreme Court, Crane, Negligence, Neil, strict liabilitly Tagged with