Fiber Type Crucial In Defending Asbestos Claims

Asbestos defendants are frequently faced with medical causation testimony from the plaintiff that asserts that, because there is no “safe” level of asbestos exposure, any exposure above some ill-defined “background” level is a substantial contributing factor to the plaintiff’s asbestos-related injury. This theory has become the centerpiece of modern asbestos litigation and discourages minimal exposure cases from going to the jury. However, a strong defense can be mounted to a minimal exposure case, particularly if plaintiff alleges exposure to chrysotile asbestos fibers.

For the toxic tort defense lawyer, an understanding of the two major families of asbestos is critical. From a toxicity standpoint, amphibole asbestos fibers are more potentially toxic than fibers of the serpentine family. Amphiboles tend to: (1) be acid resistant; (2) be persistent in the body; (3) be straight fibers; and (4) contain iron. By comparison,chrysotile asbestos, a member of the serpentine family, has a much more lower toxicity profile, particularly in low exposure settings. Chrysotile: (1) breaks down in the body; (2) is acid soluble; (3) has a soft pliable curly shape; and (4) contains dissolvable magnesium. Because the body handles chrysotile fibers differently, chrysotile is much less potent than amphibole asbestos. An examination of the toxicological literature demonstrates that the mesothelioma mortality risk is much greater from amphibole exposure as compared to chrysotile exposure.

At a meeting of the IADC in February 2012, William G. Hughson, M.D., D.Phil., expressed criticism of the expert opinions commonly expressed by plaintiff experts in asbestos cases concerning chrysotile. Dr. Hughson is the Director of the University of California at San Diego Center for Occupational & Environmental Medicine. Dr. Hughson rejects the view that any exposure above background is a substantial contributing factor to disease and that dose has no bearing on causation. At the same meeting, Bob Manlowe, a lawyer with Seattle-based Williams Kastner, delivered a paper titled, “Literature Refuting Single-Fiber Theory and Zero-No-Threshold/Linear-Dose-Model.” For the asbestos practitioner, the two papers provide a valuable road map to cross-examining plaintiff experts and defending mesiothelioma cases involving chrysotile asbestos.

Conflicts Of Interest Involving Corporate Affiliates

In GSI Commerce Solutions, Inc. v. BabyCenter LLC, No. 09-2790, the Second Circuit affirmed the ruling of SDNY Judge Jed S. Rakoff, who disqualified the Blank Rome law firm from representing a company adverse to a subsidiary of Johnson & Johnson, which was a client of Blank Rome.

The Second Circuit’s ruling is noteworthy because it addressed for the first time whether a law firm infringed on its duty of loyalty by taking on a representation adverse to an existing client’s corporate affiliate. In disqualifying Blank Rome, Judge Rakoff found that the overlap between BabyCenter LLC and Johnson & Johnson in effect made them a single company for various purposes. Judge Rakoff observed that BabyCenter LLC did not have a separate in-house legal department, but instead relied exclusively upon the in-house lawyers at Johnson & Johnson for legal advice.  Drawing upon extensive discussion by other courts as well as the ABA, the Second Circuit held that a law firm cannot take on a matter adverse to an affiliate if it diminishes the parent client’s level of confidence in its lawyers.

The Court first examined the ABA’s Model Rules of Professional Conduct, which provide that a “lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as parent or subsidiary.” ABA Model Rule of Prof’l Conduct 1.7 cmt. 34 (2006). This statement embodies what is often termed the “entity theory” of representation. However, the exception to this rule is that an attorney may not accept representation adverse to a client affiliate if “circumstances are such that the affiliate should also be considered a client of the lawyer.”

For its own part, Blank Rome argued that no conflict existed because: (1) the dispute between GSI and BabyCenter involved matters unrelated to Blank Rome’s Johnson & Johnson matters; and (2) Johnson & Johnson had waived any conflict by signing Blank Rome’s engagement letter. Both of these arguments proved unpersuasive to the unanimous appeals court. In particular, the Second Circuit observed that Blank Rome’s engagement letter contained provisions that might constitute a waiver by Johnson & Johnson of some, but not all, corporate affiliate conflicts. However, these conflict waivers were specifically limited to patent litigation and, even more specifically, to matters brought by generic drug manufacturers. Therefore, the Second Circuit held, Blank Rome failed to “contract around” the corporate affiliate conflict at issue. 

In a footnote, Judge Ralph K. Winter, Jr., writing for the Court, stated that the Circuit was not addressing issues that would arise if a blanket waiver had been executed and left open how it might rule in those circumstances.