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

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.
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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

Proposed Changes to California Asbestos Jury Instructions on Causation

By on August 17, 2020

The Advisory Committee on California Civil Jury Instructions is considering changes to many instructions, including two on causation: CACI 435 (substantial factor in asbestos cases) and CACI 430 (substantial factor generally).

CACI 430, applicable in tort actions generally, defines “substantial factor” as “more than a remote or trivial factor” in contributing to the harm, which “does not have to be the only cause of the harm.”

CACI 435 is modeled on Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, and provides that the “substantial factor” is not to be determined by causing harm, but a substantial factor contributing to plaintiff’s “risk of developing cancer.”

Two issues are addressed by the proposed changes: (1) whether CACI 435 applies to defendants other than manufacturers or suppliers of asbestos-containing products, such as property owners or those doing work at a site, and (2) whether in some asbestos cases the more traditional, cause-of-harm CACI 430 may be used. In case you still have asbestos in your building and will like to avoid healthy and legal problems, hire the san jose mold inspection to asses the damage and work to be done.

The proposed changes would answer both in ways that help plaintiffs, and expand liability risk for some defendants. First, the proposed changes to CACI 435 will add “property” and “operations” to “product” as a possible source of asbestos exposure. The proposal cites Lopez v. The Hillshire Brands Co. (2019) 41 Cal.App.5th 679, 688, which ruled that CACI 435 was proper for claims against an employer/premises owner for asbestos at the site, even though not a manufacturer or supplier but rather a user of the product. Lopez reasoned that the point of CACI 435 was to focus on the risk of developing cancer from asbestos, and that the same considerations applied whether or not the defendant was a product manufacturer. Further, Lopez ruled that CACI No. 430’s terms “remote and trivial” are misleading and may confuse jurors: “jury instructions therefore should not suggest that a long latency period … precludes an otherwise sufficient asbestos claim.” The concern seems misplaced: there is no reason to assume jurors are incapable of understanding the concept of latency.

The proposed changes build on Lopez and would not only extend CACI 435 to non-manufacturers, but would drop from the “directions for use” contrary authority, and a reference that the issue was “was not settled.” Potentially worse, they would assert that CACI 430 may never be given in an asbestos case, whether or not in conjunction with CACI 435.

Complicating the problem: even the existing CACI 435 does not faithfully reflect Rutherford, which addresses “a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested” (emphasis in original). The existing instruction refers to a substantial factor contributing to the risk of cancer, without grounding that medical opinion (as did Rutherford) in comparative dose. The difference is particularly significant for defendants with minimal or low-dose exposure in cases where there is abundant alternative exposure (e.g., one home remodel job but a lifetime career working near asbestos insulation). GRSM and other defense attorneys have attempted in vain to get this instruction to reflect its source authority.

The proposals and directions for public comment are at https://www.courts.ca.gov/documents/caci20-02.pdf. Comments are due September 2, 2020. Pending that comment period, the changes are due to become effective November 15, 2020.

Filed under Asbestos, California, Causation

California Talc Decision Bars Predecessor Liability, and Denies Punitive Damages Absent Scientific Consensus

By on July 29, 2019

When a Los Angeles jury returned an eye-popping $416 million verdict for plaintiff in a closely-watched talcum powder ovarian cancer case in 2017, the world took notice. The trial court granted post-trial motions that dramatically changed the jury’s verdict. Recently, in Echeverria v. Johnson & Johnson, the Court of Appeal gave both sides a mixed result, with rulings that will apply to many other product liability cases.

Johnson & Johnson – Former Manufacturer – No Liability

J&J manufactured the product until 1967, when it spun off to subsidiary J&J Consumer Products (“JJCI”). The jury found J&J liable, awarding both compensatory and punitive damages. The trial court granted judgment notwithstanding the verdict (“JNOV”). The Court of Appeal affirmed, applying “the general rule that a manufacturer has no duty to warn of risks posed by another manufacturers product” (citing O’Neil and Taylor, a Gordon & Rees victory). The Echeverria court distinguished the California Supreme Court decision in Novartis, which found such a predecessor manufacturer liable, because that case “concerned continuing liability for a negligent failure to warn in labeling that occurred prior to a manufactured divesting itself of the rights to the” product.

The risk of ovarian cancer from talc use during the time that J&J manufactured the product was speculative. Because of that, J&J did not owe consumers a duty to warn. Later developments, including J&J’s active participation in industry groups to defend talc, did not create a duty to warn after the fact. The court ruled that J&J is not responsible for JJCI’s later products solely because of the parent-subsidiary relationship.

This part of the decision will aid defendants in future cases where the exposures pre-date certainty of the claimed risk. Manufacturers that spun off, or sold off, product lines should be heartened by the decision. The parent company will not be liable so long as the sub is not controlled by its parent.

The Actual Manufacturer, JJCI, Gets a Split Decision – But All Better than the Jury’s Verdict

The jury also found JJCI liable – awarding both compensatory and punitive damages. The trial court granted both JNOV and a new trial. The Court of Appeal reversed the JNOV but affirmed the new trial, essentially holding that while the evidence was sufficient to support the verdict and thus defeat JNOV, there was also enough defense evidence to justify the trial court’s discretionary grant of new trial.

Plaintiff’s Evidence Enough to Support Verdict

The Court of Appeal reasoned that the evidence showed as of 2007 (when decedent died) JJCI knew, as did the scientific and medical community, that there was a statistically significant association between genital talc use and ovarian cancer. While there has yet to be a scientific consensus that genital talc causes ovarian cancer, as needed to prove causation, it was sufficient to show a risk existed. Thus, JJCI had a duty to warn consumers of the risk. Ultimately, what was known between 1967 and 2007 was significant enough that JJCI failed to act reasonably. JJCI should have issued an appropriate warning.

The trial court found significant weaknesses in plaintiff’s causation evidence, particularly relating to the differential diagnosis and relative risk evidence. The defense argued plaintiff’s expert’s reliance improper because the results failed to stratify patients into well-defined risk groups. Further, the results were not classified by the type of tissue in which decedent’s cancer originated. The Court of Appeal found that these weaknesses were not fatal to the plaintiff’s case, but merely “affected the weight of the evidence.”

The defense argued plaintiff was required to rule out other potential causes of decedent’s ovarian cancer, such as unknown etiology, arguing since plaintiff’s expert ignored other causes, the opinion was speculative. The Court of Appeal did not find the opinion speculative since the expert “did not ignore idiopathy but instead determined there was in fact a known cause of the cancer.” The Court of Appeal also pointed to the failure of the defense to advance evidence of a specific alternative cause stating, “[t]he defendant did not identify any relevant evidence about other causes it claimed the expert overlooked.” Had the defense done so, then plaintiff’s expert would have had to rule it out. It is not enough to simply discredit plaintiff’s theory. Defense counsel should always advance their own narrative.

Defense Evidence Sufficient to Justify New Trial

The trial court granted JJCI’s request for a new trial, and the Court of Appeal affirmed, because the evidence supported a defense verdict. “[T]he trial court’s ruling granting JNOV to JJCI as to liability must be reversed because the trial court weighed the evidence and made credibility determinations when rejecting and evaluating aspects of [plaintiff’s expert] testimony. In ruling on the new trial motion, however, the court was permitted to assess the credibility of witnesses, weigh the evidence, and draw inferences from the evidence different from those the jury may have drawn.”

Perhaps the key evidence was that there is no consensus among the scientific and medical community that genital talc use causes ovarian cancer. “[N]o published studies, regulatory agencies, or scientific organizations have concluded talc-based inflammation causes ovarian cancer.” The FDA has not found there is “conclusive evidence of a causal association” between talc use and ovarian cancer. Even evidence from the National Cancer Institute in 2017 “concluded the weight of the evidence did not support an association between perineal talc use and ovarian cancer.”

“The causation evidence was in significant conflict,” and a “reasonable jury” could have found for the defense. For example, “the trial court found [one plaintiff expert] ‘cherry picked’ the studies without sufficient justification and the weight of the epidemiological evidence undermined her opinion. There was evidence to support this finding.” The “trial court also found there was no evidence of inflammation present in Echeverria’s tissue, rejecting [another plaintiff expert’s] testimony and inferences that could be drawn from it.”

No Punitive Damages Before Scientific Consensus Established

Critically, the Court of Appeal held there cannot be an award for punitive damages “when the evidence demonstrated it is not universally accepted in the scientific and medical community that talc is even a significant factor for ovarian cancer.” Lack of such consensus is common in cases involving many different products with ingredients alleged to be toxic.

Based on this reasoning, unless the scientific and medical community suddenly comes to a consensus that genital talc use causes ovarian cancer or the California Supreme Court grants the inevitable petition for review and reverses, it seems highly unlikely plaintiff can win punitive damages on retrial.

Filed under Causation, Predecessor Liability, Talc

Illinois Appellate Court Reverses $4.6M Verdict: No Duty If No Knowledge of Product Risks, and Presence on Site Not Enough for Causation

By on September 11, 2018

On Sept. 5, 2018, an Illinois appellate court reversed a McLean County $4.6 million jury verdict against defendant Hobart Brothers Company on two grounds that offer hope to defendants in other cases. First, the court ruled that the defendant owed no duty to warn if defendant and the industry were unaware of a hazard in their asbestos-containing product at the time of plaintiff’s exposure, even if they were aware of the dangers of raw asbestos. Second, the court ruled that the mere presence of a defendant’s product at plaintiff’s workplace is insufficient evidence that the defendant’s product was a substantial cause of plaintiff’s mesothelioma.

BACKGROUND

Plaintiff brought suit against defendant for failure to warn of the dangerousness of its product—Hobart 6010 welding stick electrodes, which contained chrysotile asbestos in the flux. Plaintiff himself did not use the Hobart 6010 welding rods. Rather, he testified that for seven months in 1962 and 1963, stick welders using those rods worked on a grated mezzanine above his work area, and that the used stubs of the stick welders’ 6010 welding rods would fall through the grated mezzanine floor, onto the floor below where plaintiff performed spot-welding. Plaintiff also testified that each day, he had to walk by the stick welders and over the mezzanine floor which was littered with welding stubs.

LACK OF DUTY

The appellate court stated that whether the defendant had a duty, in 1962 and 1963, to warn about its welding rods depended on whether, in 1962 or 1963, knowledge existed in the industry of the dangerous propensity of the defendant’s welding rods.

Although there was evidence that, in 1962 and 1963, knowledge existed in the industry of the dangerous propensity of raw asbestos, the court made “a crucial distinction” between raw asbestos and welding rods containing encapsulated asbestos. Knowledge about raw asbestos was not evidence that knowledge existed in the industry that this product—the Hobart 6010 welding rod—was harmful. The appellate court ultimately found that the record contained no evidence of contemporaneous knowledge in the industry that welding rods with asbestos encapsulated in the flux were hazardous. The lack of knowledge resulted in a lack of duty, entitling defendant to judgment notwithstanding the verdict.

LACK OF SUBSTANTIVE CAUSATION EVIDENCE

The appellate court found that the defendant was likewise entitled to a judgment notwithstanding the verdict because the record was devoid of any evidence that defendant’s welding rods were a substantial cause of plaintiff’s mesothelioma.

The court ruled that the chestnut Illinois case of Thacker v. UNR Industries, Inc., 151 Ill. 2d 343 (1992) did not help plaintiff. Thacker involved raw asbestos, not a finished asbestos-containing product like the welding rods here. More significantly: “Proving merely that plaintiff came into frequent, close, and regular contact with welding rods manufactured by defendant would not, on the logic of Thacker, prove substantial causation any more than proving he routinely walked on floor tiles containing asbestos would prove substantial causation.” [¶77] Rather, to meet his burden of production, the plaintiff “must prove he actually inhaled respirable fibers from defendant’s welding rods—and that he inhaled enough of the fibers that one could meaningfully say the welding rods were a ‘substantial factor’ in causing his mesothelioma.” [¶78]

The appellate court ruled that the Thacker frequency, proximity and regularity criteria had not been met. For instance, although plaintiff worked on the second floor and the stick welders worked on the third floor, his work station was not directly below the grated mezzanine floor where the stick welders worked, but rather off to the side. Further, the appellate court noted that plaintiff testified that the stubs from the stick welders on the third floor fell through the grates of the mezzanine floor and onto the second floor, but that plaintiff did not testify that the stubs fell into his work area. Although plaintiff testified that his workplace was dirty, there was no evidence that the dirt indeed contained asbestos. Moreover, plaintiff never testified to seeing clouds of dust in the workplace (unlike in Thacker where various employees testified that dust from the sacks of raw asbestos was continuously visible in the air of the plant when viewed in bright light).

“For all that appears in the record, the amount of asbestos fibers released from defendant’s welding rods by rubbing them together or stepping on them was no more than the amount one would have encountered in a natural environment. Without any idea of the concentration of airborne asbestos fibers the welding rods would have produced, it would be conjectural to say the welding rods were a substantial factor in causing plaintiff’s mesothelioma.” [¶ 83]

TAKE AWAYS

Though this case involved the specific product of asbestos-containing welding rods, the potential effect on future failure-to-warn cases involving other asbestos-containing products is much broader. Importantly, the appellate court focused on the industry’s knowledge of the dangerous propensity of the manufacturer’s product itself, not on the industry’s knowledge of the dangerous propensity of asbestos generally. In so doing, the appellate court distinguished the inquiry as a product-specific issue, not as a more general asbestos issue. Going forward, each failure-to-warn case will need to be carefully considered based on its individual facts regarding the product, time frame and industry knowledge of the hazards of the product at issue at the time of exposure to determine whether a duty existed.

Furthermore, this decision may likely impact the scrutiny of causation evidence. In its application of Thacker, the appellate court discussed the need for a plaintiff to prove more than just frequent, close and regular contact with a defendant’s product; a plaintiff must also prove that he not only inhaled respirable fibers from the defendant’s product but also inhaled enough of the fibers that one could meaningfully say the defendant’s product was a substantial factor in causing a plaintiff’s disease. Additionally, the appellate court’s decision peripherally touched on alternative exposures. The extent of this decision’s impact in asbestos-related lawsuits remains to be seen. Nevertheless, it is a favorable ruling for defendants in asbestos litigation.

Read the full opinion in McKinney v. Hobart Brothers Company here.

Filed under Asbestos, Causation, duty, Illinois, Substantial Factor

“Every Exposure” Theory of Causation Rejected by Georgia Supreme Court

By on July 12, 2016

The highest court in Georgia recently excluded a standard plaintiff argument that “every exposure” to asbestos causes mesothelioma. In Scapa Dryer Fabrics, Inc. v. Knight, the court overturned a plaintiff verdict and reversed both the trial court and intermediate appellate court, holding that a medical expert’s opinion that “every exposure above background contributed to cause plaintiff’s mesothelioma” is legally unsound and “does not ‘fit’ the legal standard for causation”, which requires that an exposure be more than de minimis or trivial. The Georgia Supreme Court reversed, resulting in judgment for the defendant.

7-11The defendant, a textile manufacturer in the late 60’s and early 70’s, produced dryer felts. Some felts contained asbestos that was released into the air during manufacture, at a facility where some of the pipes were insulated with material containing asbestos. Plaintiff was an outside sheet-metal contractor who worked at defendant’s facility on multiple occasions over a four-year period. Plaintiff was sometimes present when the manufacturing process was underway, worked in ventilation ducts that had collected dust, and on one occasion cut into pipe insulation and breathed that dust.

Over defendant’s objection, the trial court allowed plaintiffs’ expert pathologist, Dr. Jerrold Abraham, to testify to the following syllogism: “background asbestos is not known to cause mesothelioma;” “the precise point at which cumulative exposure is sufficient to cause any particular person to develop mesothelioma is not scientifically knowable;” “when a person has mesothelioma, it can only be attributed to his cumulative exposure as a whole;” “each and every exposure to respirable asbestos in excess of the background contributes to the cumulative exposure;” therefore, “each exposure in excess of background is a contributing cause of the resulting mesothelioma, regardless of the extent of each exposure.” Dr. Abraham went so far as to testify that “a causal connection would be lacking only if ‘there was no asbestos exposure’ attributable to [defendant]’, that “one fiber [of asbestos] above ambient levels would be causative for someone who had  mesothelioma”, that “he did not need to determine the extent of [plaintiff’s] exposure, but only need to know that the exposure was more than ‘zero’”, and that “if someone gets the disease from a trivial exposure, it is still asbestos-related.’”

This is a common position taken by plaintiffs’ experts in toxic tort litigation. It is known by many names: “single fiber,” “any exposure,” “every exposure” or, in this case, the “cumulative exposure” theory of causation. The theory has been rejected by the supreme courts of Pennsylvania and Texas and many other courts; a recent California appellate court, in dicta, refused to reject this theory outright, but affirmed the plaintiff’s burden as requiring proof that the defendant’s product “was a substantial factor in contributing to the risk of developing asbestos-related cancer.” (See our earlier post on the California case.)

The jury in Scapa assessed 40% fault to the defendant and awarded plaintiffs $4 million.

The Supreme Court of Georgia analyzed this issue first by examining the relevant standards for admissibility of expert testimony. It noted that the question of admissibility of expert testimony is a question “committed to the sound discretion of the trial court.” However, using language much like the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1999), the court held that it is incumbent upon the trial court to “act as a ‘gatekeeper’ to ensure the relevance and reliability of expert testimony.” Dr. Abraham’s qualifications were not in dispute. Instead, the defendant challenged his “single fiber” theory as “junk science”, and also argued that the testimony was not relevant because it did not “fit” the legal standard for causation under Georgia law. The court agreed with the second point (and hence did not reach the question whether the “cumulative exposure” theory is scientifically valid), holding that because this opinion “does not ‘fit’” the legal standard for causation, and for that reason, the admission of his testimony … was not helpful to the jury and amounted to an abuse of discretion.”

To prove causation in an asbestos personal injury case under Georgia law, a plaintiff must therefore show that an exposure was a “contributing factor” in bringing about the disease. It need not be “substantial”, but it must be “meaningful” and not “de minimis.”

Though the court recognized that the plaintiffs in that case “may well have presented evidence of more than a de minimis exposure” at defendants’ facility, defendants presented evidence to the contrary. But by admitting the opinion of Dr. Abraham that “any asbestos above background … was a contributing cause of the mesothelioma” (i.e., even a de minimis exposure), the trial court allowed the jury to resolve this dispute in a manner inconsistent with Georgia law.

The court cautioned: “That is not to say that expert testimony premised upon a cumulative exposure theory could never be relevant to causation.” But the court held fast to the notion that de minimis or trivial exposures are not causative. Had Dr. Abraham also presented reliable evidence that the exposures in question were “more than de minimis,” and had he based his ultimate causation opinion on exposures that were more than de minimis, “the opinion then might ‘fit’ the pertinent causation inquiry, notwithstanding that the extent of exposure is disputed.” The court pointed out that in other cases Dr. Abraham’s “cumulative exposure” theory has been allowed when coupled with a review of the evidence of the extent of exposure and of studies showing such exposures present an increased risk of developing mesothelioma.

While a precise quantitative exposure analysis is not required, a qualitative assessment is. Thus, an opinion that a “de minimis” or “any” exposure could cause mesothelioma is inadmissible (at least in Georgia), while an opinion that each “significant” or “sustained” exposure to asbestos” is a cause would be admissible.

Filed under Asbestos, Causation, De Minimis, Georgia

Recent SCIENCE Article a Potential Game Changer for Arguing Medical Causation in Cancer Cases: Stem Cell Division and “Bad Luck”

By on January 8, 2015

This month’s Science Magazine features a paper by two Johns Hopkins scientists that provides support for a more refined theory of causation in a number of types of cancer.  The article by Drs. Christian Tomasetti and Bert Vogelstein entitled “Variation in Cancer Risk Among Tissues Can Be Explained By The Number of Stem Cell Divisions” includes the following abstract:

Some tissue types give rise to human cancers millions of times more often than other tissue types. Although this has been recognized for more than a century, it has never been explained. Here, we show that the lifetime risk of cancers of many different types is strongly correlated (0.81) with the total number of divisions of the normal self-renewing cells maintaining that tissue’s homeostasis. These results suggest that only a third of the variation in cancer risk among tissues is attributable to environmental factors or inherited predispositions. The majority is due to “bad luck,” that is, random mutations arising during DNA replication in normal, noncancerous stem cells. This is important not only for understanding the disease but also for designing strategies to limit the mortality it causes.

This finding may have broad implications in determining what may cause the cancer at issue in a particular case.  This article concludes that the incidence or lifetime risk of many cancers directly correlates to the number of stem cell divisions in the tissue involved in the cancer.  This correlation appears to be, in many cases, independent of any environmental or external factors.  Because the article provides a potential explanation for the cause of many types of cancer, this may allow experts to use rate of stem cell division as a causation argument in lieu of saying the cause is “idiopathic.”

Interestingly, among the cancers that have a higher rate of stem cell divisions are acute myelogenous leukemia and chronic lymphocytic leukemia, two types of cancer that are prevalent in matters involving allegations of exposure to trace benzene. Many cancer patients use a cbd store locator to buy their natural medicine. This fact will certainly be the source of future argument regarding general causation.  We expect there to be future scientific inquiry into the findings in this article, but the findings alone do raise important issues.  Further studies in this area may provide further support for arguing against an environmental correlation between cancer risk and exposure in cases where the cancer involved has a high rate of stem cell division.  We expect that this study and future studies will have a significant effect in matters involving allegations of toxic exposure.

Filed under acute myelogenous leukemia, Benzene, Cancer, Causation, chronic lymphocytic leukemia, stem cell

To Spoil or Not to Spoil? Why Speculation Carried the Day for the Defense Against Plaintiff’s Spoliation Claims

By on January 6, 2015
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This holiday season has been good to the asbestos defense bar.  On December 16, 2014, the Illinois Fourth District Appellate Court decided a case which emphasizes the need for a plaintiff to properly prove causation by non-speculative evidence.  In the process, the court rejected a “sham” spoliation of evidence claim, finding that defendant’s spoliation of evidence was immaterial in light of the witness testimony presented by the plaintiff.  This is the first published decision in this State pertaining to spoliation.

In Holloway v. Sprinkmann Sons Corp., 2014 IL App (4th) 131118, plaintiff Carol Holloway brought a negligence action against defendant Sprinkmann, an alleged asbestos insulation supplier, alleging that  defendant delivered and installed asbestos-containing insulation at plaintiff’s jobsite  while she worked as at the Eureka vacuum cleaner factory in Bloomington, IL.  As an alternative theory, plaintiff argued that Sprinkmann wrongfully destroyed evidence that plaintiff needed to prove her case.  Plaintiff specifically alleged that Sprinkmann destroyed records indicating the types of insulation it sold and to whom the insulation was sold.  Destroying this evidence, plaintiff argued, prevented her from demonstrating which specific asbestos-containing products were sold and delivered by Sprinkmann to her jobsites.

At trial, plaintiff called Arthur B. Kremers, Sprinkmann’s former owner.  When Kremers began working for Sprinkmann in 1969, old records dating back to the 1950s were kept in the basement of the company’s Peoria office.  These records showed the brand and manufacturer of each product defendant had sold and delivered, as well as which employees had installed each product.  Apparently, as early as 1957, Sprinkmann employees began making claims for asbestos-related disease, relying on the basement records to show which brands of insulation the employees had installed.Sometime in the 1980s, however, Kremers shipped the basement records to a recycling center because “defendant was running out of space.”  The destruction of the records, according to Kremers, was consistent with Sprinkmann’s document retention policy, under which sales contracts and invoices were to be retained for only three years.

Crying foul over the alleged “spoliation” of evidence, plaintiff called co-worker witness Ellis Carlton and read into evidence an affidavit of another deceased witness, Wesley Klein.  This evidence was uncontroverted, and – as the documents themselves would have done – established that asbestos-containing insulation supplied by defendant Sprinkmann was present at plaintiff’s jobsite and installed by it.

The jury nonetheless returned a general verdict in defendant’s favor, prompting plaintiff to file a motion for a new trial, which was denied by the trial court.  On appeal, plaintiff argued that the jury might have found for plaintiff if it had had the benefit of reviewing the destroyed records establishing that the products were present at plaintiff’s worksite.

The appellate court affirmed the trial court’s judgment.  In doing so, it focused on the fact that the uncontradicted evidence of Klein and Carlton already established that the products were present at the facility.  To the extent that the “spoliated” records would have done nothing more than supply the same information, the jury could have reasonably concluded that the destroyed records would have made no difference in plaintiff’s case.   Thus, the “spoliated” records were no consequence.  For this reason, the court found that plaintiff failed to meet her burden of proving that, but for the destruction of the records, she would have had a reasonable probability of prevailing. The court then expressly addressed the key issue in this case:  that “the real problem in plaintiff’s case was causation, which the records would not have addressed.”  Indeed, the court hammered home the fact that “all plaintiff offered in the trial was speculation that her asbestosis resulted from repair work on the pipe-covering insulation in the Eureka plan, although she never saw any repair work being done on the insulation and there was no other evidence placing her near any such repair work.”

Plaintiff attempted to substantiate her exposure using the testimony medical expert Dr. Arthur Frank in conjunction with her own testimony that she was “in all the different parts of the plant for one reason or another.”   Dr. Frank espoused the “re-entrainment” theory, testifying  that individuals who had never worked hands-on with an asbestos-containing product could still be exposed to asbestos fibers because these fibers drifted around the factory and could be carried a long way by air currents.  According to Dr. Frank, all asbestos-containing products, including steam pipe insulation, released such fibers.  In fact, simply the “passage of time” would release these fibers.  On the other hand, Frank also conceded that a person needed to cross a threshold of a certain amount of exposure before getting asbestosis; Frank could not clarify what the threshold was, though he insisted that, for someone with asbestosis, “each and every exposure to any asbestos product had to be regarded as a cause.”

The court, however, was unpersuaded by plaintiff’s interpretation of her own testimony.  Specifically, the court noted that saying that plaintiff was “in all the different parts of the plant for one reason or another” is not quite the same as saying she “worked all over the plant.”  For argument’s sake, the court assumed that Dr. Frank’s theories were correct, that when asbestos-containing insulation had to be repaired, it created asbestos dust, and that such dust stayed around for a long time and wafted through the air.  However, the court concluded that Frank’s testimony was ultimately irrelevant, as there was no evidence that the buildings in the Eureka plant shared the same air, nor was there any evidence presented suggesting that the buildings in the plant shared a common ventilation system.  Plaintiff could therefore not clearly connect the allegedlyomnipresent “asbestos dust”  to her own inhalation.  Even if she had, the court pointed out problems with the testimony of plaintiff’s “expert,” noting that Frank’s testimony provided no solid, non-speculative evidence that the amount of asbestos dust breathed in by plaintiff under such circumstances would be sufficient to cause asbestosis.

Holloway v. Sprinkmann places great importance on a plaintiff’s burden to show causation with non-speculative evidence.  For plaintiffs like Holloway, certain expert testimony may seem like a home run (eg., the “re-entrainment” theory), but, at the very heart of the matter, such evidence is nothing more than conjecture. In rejecting plaintiff’s spoliation argument, the Sprinkmann court further demonstrated that it will not permit “red herring” issues to distract the court from a lack of admissible evidence of causal links.  This decision from the Illinois appellate court provides further support for defendants seeking to attack speculative evidence, without fear that extrinsic issues that have no bearing on their ultimate liability will alter the result.

Filed under Causation, Illinois, Spoliation

Texas Supreme Court Reaffirms Standard of Proof in Mesothelioma Cases: Bostic v. Georgia-Pacific

By on July 29, 2014
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On July 11, 2014, the Texas Supreme Court released an opinion of major importance in Bostic v. Georgia-Pacific — an opinion Gordon & Rees partner William A. Ruskin recently commented on in a Law360 article.  The court’s decision reaffirmed the bedrock significance of the concept of dose in toxic tort litigation and rejected out of hand the argument that a less rigorous standard should be applied in a mesothelioma case than in an asbestosis case.  Bostic articulated that plaintiffs must prove substantial factor causation in all toxic tort litigation in general and in asbestos litigation in particular.

ETT BLOG_texasTimothy Bostic’s relatives sued Georgia-Pacific and 39 other asbestos-related product manufacturers claiming that Bostic’s fatal mesothelioma was caused by exposure to their products.  At trial in 2006, the jury allocated 25 percent of the causation to Knox Glass Co., the decedent’s former employer, and 75 percent to Georgia-Pacific. An amended judgment awarded plaintiffs over $11 million in compensatory and punitive damages. The Court of Appeals reversed the trial court’s decision holding that the plaintiffs failed to prove that the exposure to Georgia-Pacific’s asbestos was a substantial factor in bringing about Bostic’s death.
In affirming the Court of Appeals, the Texas Supreme Court held that the substantial factor causation standard applies to all asbestos cases involving multiple sources of exposure. To meet this standard, proof of “some exposure” or “any exposure” did not suffice to establish causation.  Instead, there must be defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, along with evidence that the dose was a substantial factor in causing the asbestos-related disease.

Bostic elaborates upon the Texas Supreme Court’s prior decision in Borg-Warner Corp. v. Flores, an asbestosis case. Flores addressed the issue of why the plaintiff’s causation evidence was legally insufficient in the absence of evidence of how much asbestos the plaintiff might have inhaled. Flores explained that proof of frequency, regularity, and proximity to a toxic substance alone is not sufficient to support causation, because it does not demonstrate that the defendant-specific dose was a substantial factor in causing the disease. Bostic expressly rejected the plaintiffs’ attempted distinction between a mesothelioma case and an asbestosis case. Rather, the court held the “framework for reviewing the legal sufficiency of causation evidence lends itself to both types of cases.”

Fundamentally, a plaintiff must show that the defendant supplied the product that caused the injury. Hence, the court viewed plaintiff’s “any exposure” theory as “illogical,” in part because it does not take into account a background dose of exposure.  In asbestos-related cancer cases, plaintiffs are not required to show that specific fibers from a defendant’s products were the ones that actually caused the asbestos-related cancer. Instead, it must be shown that exposure to a defendant’s product was a substantial factor in contributing to the total dose of asbestos the plaintiff inhaled, and therefore to the risk of developing asbestos-related disease.

The Supreme Court disagreed with the lower court, however, stating that the plaintiffs do not have to meet the heightened standard of “but-for” causation. Although the court recognized that “producing cause” or “but-for” is the level of causation applicable to most products liability cases, it was unwilling to apply that standard in a case with 40 defendants.

Acknowledging that causation is difficult to prove in multidefendant cases, the court referenced its prior holding in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), which offers an alternative method for establishing causation in the absence of direct proof. Havner recognized the possibility of using epidemiological studies to prove a population exposed to a toxin faces the increased risk of injury as compared to an unexposed or general population. Under Havner, the epidemiological evidence must show that the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.

In essence, the Texas Supreme Court found the causation evidence in Bostic to be legally insufficient to uphold the trial verdict. The plaintiffs did not establish any approximation of dose resulting from Bostic’s exposure to Georgia-Pacific’s products. Bostic rejected the plaintiffs’ “any exposure” standard and instead reaffirmed adherence to substantial factor causation.

Alexana Gaspari is a law clerk in Gordon & Rees’s New York office.

Image courtesy of Flickr by Ray Bodden

Filed under Asbestos, Causation, Dose-Response, Mesothelioma, Substantial Factor, Texas

Will the Exception Swallow the Rule? The Northern District of Illinois’ Take on the Bare Metal Defense

By and on May 21, 2014

The bare metal defense has become a “go-to” defense for defendants involved in national asbestos litigation.  Predominantly asserted by manufacturers of industrial equipment, the defense provides that those defendants that manufactured products composed only of metal have no duty to warn of asbestos-containing components later installed by others post-sale.  It also rejects liability for “affixed” external materials – typically thermal insulation and flange gaskets manufactured by others – placed on the metal products by someone other than the defendant.

While the defense has been the subject of numerous cases, its application has not been uniform.  However, the decisions fall into three main categories:

(1) a defense-friendly category, holding that manufacturers have no duty to warn of asbestos-containing replacement parts supplied by a third party;

(2) a plaintiff-friendly category, holding that manufacturers have a duty to warn whenever it is foreseeable that asbestos-containing material may be used with their products; and

(3)  a “middle ground,” holding that manufacturers generally have no such duty, but do have a duty to warn when the use of asbestos-containing materials (a) was specified by a defendant, (b) was essential to the proper functioning of the defendant’s products, or (c)         was for “some reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.”

Recently, the Northern District of Illinois expressly adopted the middle ground. In Quirin v. Lorillard Tobacco Co., 2014 U.S. Dist. LEXIS 18744 (N.D. Ill. Feb. 14, 2014), the court ultimately denied Crane Co.’s summary judgment motion under an exception to the middle-ground approach, namely that the plaintiff was able to proffer evidence that Crane Co. specified the asbestos-containing replacement components or that the asbestos-containing components were necessary for the metal products to function.

Quirin arose out of the plaintiff’s alleged exposure to asbestos-containing Crane Co. valves during the plaintiff’s service in the U.S. Navy.  Although the valves themselves were composed of “bare metal,” they included an internal bonnet gasket and stem packing at the time of shipment that may have contained asbestos. In addition, Crane Co. sold asbestos-containing replacement gaskets, gasket material and packing.  Crane Co. moved for summary judgment, arguing that its valves were bare metal and, accordingly, Crane Co. had no duty to warn of asbestos-containing components manufactured by others and ultimately applied by the Navy, the end user of the product.

Quirin looked to other jurisdictions for guidance, expressly citing the California Supreme Court’s ruling in O’Neil v. Crane Co., 53 Cal. 4th 335 (2012), noting that “manufacturers are not required to investigate and warn of the potential risks of any other products that might be used with a Crane Co. product.  The duty attaches only when the manufacturer incorporated the asbestos-containing material into its product, meaning that asbestos would inevitably be introduced into the stream of commerce along with the product.”  The Quirin court, however, found that the O’Neil court “qualified its conclusion” and “left room for an exception to the rule” because the plaintiffs in O’Neil did not prove the equipment at issue needed asbestos to function.

Quirin relied on evidence that Crane Co. valves were used for high heat applications, that at least some of its valves needed asbestos-containing components to function properly, and that Crane Co. provided specifications for such use.  Taken together, the court concluded that a jury could find that Crane Co. had a legal duty to warn about the hazards of asbestos exposure from working with its valves.

On one hand, the fact that the Quirin court cited the O’Neil case with approval is encouraging for equipment defendants in Illinois.  However, the adoption of the middle-ground approach by the Northern District of Illinois is troubling. Practically speaking, there is minimal difference between the middle-ground approach and the plaintiff-oriented foreseeability approach, since the plaintiffs will merely proffer expert testimony to prove the “bare metal” product at issue was used for hot applications and “needed asbestos” to function properly.  As presently interpreted by the Northern District, then, defendants need to be particularly aware of the bare metal defense’s limitations; it does not provide a complete bar for bare metal defendants, even those that never manufactured asbestos-containing products or provided asbestos-containing components with their products.

Fortunately, however, development of the bare metal defense is still in its infancy in Illinois.  Indeed, there has yet to be a definitive ruling rendered by an Illinois appellate court on the issue.  In fact, just before the ruling in Quirin, the Asbestos MDL remanded an asbestos lawsuit to the Southern District of Illinois to determine whether the state even recognized the bare metal defense.  For now, equipment defendants in federal court in Illinois are well advised to argue the policy and rationale of O’Neil and push at the state and federal level for a bright-line rule of nonliability for other parties’ products.

Filed under Asbestos, Causation, Duty to Warn, Other Parties’ Products, “Bare Metal” Defense

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