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

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

By on February 12, 2020

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

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

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

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

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

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

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

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

Filed under Asbestos, Cumulative Exposure, exposure', Illinois, Substantial Factor

Ninth Circuit Takes Out Take-Home Asbestos Case, Requires Evidence of Substantial Exposure

By on September 10, 2019

Asbestos defendants—especially those in take-home exposure cases—should note the Ninth Circuit’s recent opinion in Stephens v. Union Pacific Railroad Company. There, the court affirmed that plaintiffs cannot prove substantial-factor causation without establishing “substantial exposure to the relevant asbestos for a substantial period of time.” While the decision’s reach might be limited—it is, after all, a federal-court interpretation of Idaho law—it provides a sound roadmap for raising evidentiary challenges in substantial-factor asbestos cases.

Stephens involved alleged take-home exposure from an Idaho Union Pacific roundhouse. William Stephens’s father had worked at the facility when Stephens was a child, and Stephens testified that his father’s work clothes had been dusty when returning home. He also testified that he had visited his father at work on a few occasions and had seen men removing and replacing insulation on steam engines. Union Pacific admitted that it probably used asbestos-containing insulation on steam engines at that time, but disputed that steam engines had ever been serviced at Stephens’s father’s workplace. The court recognized that whether Stephens had take-home exposure was “close question” on this evidence, but bypassed that issue.

Instead, the court focused on whether Stephens had sufficient evidence to establish that take-home exposure to Union Pacific asbestos was a substantial factor in causing his mesothelioma. The court wrote that the “liberal” substantial-factor standard “is not without limit.” Instead, the Clia Kits noted that substantial-factor causation require asbestos plaintiffs to demonstrate “substantial exposure to the relevant asbestos for a substantial period of time.” “Minimal exposure,” the court wrote, is “insufficient” to establish that a defendant’s asbestos was a substantial factor in an injury.

The Ninth Circuit ruled that Stephens’s evidence did not meet that standard. The court reasoned that Stephens had no evidence that his father frequently worked around asbestos, and therefore no evidence that the dust on his father’s clothes contained asbestos. The court observed that Stephens offered no evidence about his father’s duties at the Union Pacific facility, and none that his father worked with or around asbestos. Without evidence that his father worked around asbestos, Stephens could not establish that his father regularly brought asbestos dust home on his clothes. While Stephens’s experts testified that he would have had significant exposure from his father’s clothes, and that that level of exposure would have been a substantial factor in his mesothelioma, the court rejected both opinions because there was insufficient evidence that Stephens’s father had actually worked around asbestos.

The new findings are the first to link SV40 with a common human disease,
however tentatively. To avoid alarming every thirtysomething and fortysomething
person in the industrialised world, the researchers behind the study stress
three things. ‘We do not know where the virus came from, we don’t know if
it’s SV40 or a related one, or even whether it is responsible for the tumour,’
says Michele Carbone of the National Institutes of Health in Bethesda, Maryland,
who led the study.

Read more: https://www.newscientist.com/article/mg14219260-300-mystery-virus-linked-to-asbestos-cancer/#ixzz6HrQoFPaW

Scientists have discovered the ‘footprints’ of the
virus in tumour tissue from people with mesothelioma, an industrial disease
that has reached epidemic proportions among construction workers. The researchers
suggest that asbestos and the infectious agent may work together or independently
to turn cells cancerous.

Read more: https://www.newscientist.com/article/mg14219260-300-mystery-virus-linked-to-asbestos-cancer/#ixzz6HrQiactS

While Stephens may directly control only Idaho-law cases in the Ninth Circuit, it nevertheless provides a sound roadmap for defendants in any jurisdiction in cases with questionable or sporadic evidence of exposure.

Filed under Asbestos, Idaho, Ninth Circuit, Substantial Factor

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

Ohio Supreme Court Rejects Plaintiff’s “Cumulative-Exposure” Causation Theory

By on February 16, 2018

Asbestos defendants notched a victory when the Supreme Court of Ohio rejected the “cumulative exposure” asbestos causation theory. This theory, also known by several other names (including the “each and every fiber theory”), postulates that each exposure or asbestos fiber above background asbestos exposure is a substantial factor in causing disease. This case brings Ohio in line with several federal and state courts in rejecting this plaintiffs’ theory.

In Schwartz v. Honeywell International, Inc., decedent’s father was exposed to asbestos both in the course of his employment as an electrician and while installing Bendix brakes on family cars five to ten times, learning how from the Auto News Center site online. Plaintiff alleges that it was decedent’s contact with her father’s asbestos-laden clothing that caused decedent’s mesothelioma and subsequent death.

At trial, plaintiffs’ pathology expert, Dr. Carlos Bedrossian, testified 1) that there is no known threshold at which mesothelioma “will not occur” and 2) decedent’s take home exposure both from her father’s occupational exposure and his work with brakes contributed to her “total cumulative dose.” It was her cumulative exposure, the expert opined, that caused her mesothelioma. Honeywell International Inc. (the successor-in-interest to Bendix) moved for a directed verdict twice “arguing that Schwartz had failed to demonstrate that [decedent’s] exposure to asbestos from Bendix brakes was a substantial factor in causing her disease,” but both motions were denied. Instead, the jury found defendant Honeywell 5% liable for decedent’s injuries and awarded plaintiff just over $1 million.

On appeal, defendant argued that plaintiff did not present sufficient evidence that decedent’s exposure to Bendix brakes was a substantial factor in causing her mesothelioma. The appeals court disagreed, found the expert’s testimony to be “based on reliable scientific evidence,” and affirmed the trial court’s denial of defendant’s motions.

Thus, defendant appealed to the Supreme Court of Ohio on a single discrete issue: “whether the ‘substantial factor’ requirement may be met through a ‘cumulative exposure theory.’” Schwartz ruled that it may not. The decision was based on an Ohio statute incorporating requirements found in many other jurisdictions: that in an asbestos case with multiple defendants, plaintiff must prove that the conduct of a particular defendant was a substantial factor in causing the injury, and the trier of fact must consider the “manner . . . proximity . . . [and] frequency and length” of plaintiff’s exposure to that particular defendant’s asbestos-containing product. (R.C. 2307.96.)

The court explained that the cumulative exposure theory “examines defendants in the aggregate” and does not consider each individual defendant’s contribution to the overall exposure. “It is impossible to reconcile a statutory scheme that requires an individualized finding of substantial causation for each defendant with a theory that says every defendant that contributed to the overall exposure is a substantial cause.” Moreover, the cumulative exposure theory does not consider dose or reflect consideration of the manner, proximity, length, or duration of exposure, which the statute delineates must be considered by the trier of fact in this instance. The court noted that plaintiff’s theory is flawed because Dr. Bedrossian arbitrarily elected only to include exposures above background in deeming which exposures were causative in this case. “In a theory that starts with the premise that the total cumulative dose causes the disease, there is no rational reason to exclude even minimal exposures, because they also contribute to the cumulative dose.”

Next, the court determined that exposure to asbestos from Bendix brakes was not a substantial factor in causing decedent’s mesothelioma because plaintiff did not meet his burden of proof. Notably, decedent’s father worked on Bendix brakes only 5 to 10 times while decedent lived at home, compared with occupational exposure over 33 years. The court concluded that “[t]hese regular exposures that [decedent] received as a result of her father’s years of working as an electrician with products containing asbestos contrasts strongly with the limited and irregular exposures that [decedent] might have had a result of her father’s occasional brake jobs.” Further, plaintiff did not provide sufficient evidence regarding the manner, proximity, frequency, and length of decedent’s exposure.

The Schwartz decision is a victory for defendants by rejecting the cumulative exposure theory as insufficient. This brings Ohio in line with several other jurisdictions, including the Sixth Circuit, the Ninth Circuit, Georgia, Texas, and Pennsylvania. Notably, California state courts have allowed similar “every exposure” theories to go before the jury (see here and here). As plaintiffs suffer setbacks while attempting to advance this theory, they will transform this into other theories that defendants must be ready to tackle.

Filed under Asbestos, Cumulative Exposure, Every Fiber, Ohio, Substantial Factor

California Limits Take-Home Claims and Affirms That “Substantial Factor” Means More than “Possible”

By on July 20, 2017

A California appellate court has sided with the defendants in an alleged take-home asbestos exposure case. Petitpas v. Ford Motor Company (July 5, 2017, B245027) —Cal.App.5th—presents many strong arguments for defendants, including what is required to show that an asbestos product was a substantial factor in causing asbestos disease.

Plaintiffs Joseph and Marline Petitpas alleged that Joseph Petitpas’ work at a gas station owned by Exxon and at various construction sites brought home asbestos which injured Ms. Petitpas.

I.  Take Home Exposures – Duty Not Extended

While the appeal was pending, the California Supreme Court issued its opinion in Kesner v. Sup. Ct. (2016) 1 Cal.5th 1132. Kesner allowed take home cases to be brought in California. However, it limited those cases to household members, reasoning that “persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time” are protected. (Id. at 1154-1155.) In Kesner, the injured person was the nephew of a worker who lived for periods of time with his uncle, who manufactured brake linings. In Petipas, Plaintiffs conceded that the parties did not live together when Mr. Petitpas worked at the Exxon station (they were married later). The court in Petipas declined Plaintiffs’ invitation to extend the duty in take home cases to non-household members. “Inviting a trial to determine whether a non-household member’s contact with the employee was ‘similar to the status of a household member’ appears to be exactly what the Supreme Court was attempting to avoid with this bright-line rule.”

II.  Substantial Factor – Probable vs. Possible

To meet their burden in an asbestos case, plaintiffs must show that there is exposure to a defendant’s product that was “in reasonable medical probability” a substantial factor in bringing about the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.) Many factors are considered to determine if the exposures are substantial factors, including frequency, proximity and duration of the exposures. The evidence in this case merely suggested it was possible that Mr. Petitpas brought asbestos dust home on his clothing from his inspection of construction jobs. He only did this for an hour a day and returned to his office for the remainder. Neither Plaintiff testified that Ms. Petitpas shook out his clothes when washing them. Further, it was merely possible she was exposed when visiting the construction sites, because there was no active construction occurring and there was no visible dust. Mere presence of asbestos at a site was simply not sufficient to show that asbestos-containing products used at these sites was a substantial factor in causing Ms. Petitpas’ mesothelioma.

III.  Replacement Parts Doctrine – Applies to Defect as Well as Failure to Warn Claims

Ford submitted a jury instruction which stated that it was not liable for exposure to replacement brakes, clutches and gaskets on Ford vehiclesthat were manufactured by parties other than Ford. This instruction was based upon O’Neil v. Crane Co. (2012) 53 Cal.4th 335. The O’Neil decision established that a product manufacturer cannot be held liable in strict liability or negligence for harm caused by another manufacturer’s product “unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.” Plaintiffs objected that O’Neil only applied to failure to warn cases, and that Ford’s design was defective because “it is a Ford design that called for the installation and inclusion of asbestos-containing brake products, whether or not they were made by Ford or anyone else.” The court rejected Plaintiffs’ argument because they did not present any evidence that the Ford cars were unable to use non-asbestos parts or were somehow incompatible with non-asbestos parts.

IV.  Jury Instructions in Asbestos Cases

Plaintiffs also argued that the trial court committed error by allowing jury instructions CACI Nos. 430 and 435 to be read to the jury. Both of these instructions give the jury direction on what a “substantial factor” is under California law.  CACI No. 430, the generally applicable instruction, defines “substantial factor” as a factor that “contributed to the harm.” This Use Notes for this instruction state that it should not be read in asbestos related cancer cases.  However, Exxon argued that CACI No. 430 was applicable to it because it was a premises liability defendant, not a product manufacturer or supplier. CACI No. 435 is the instruction for asbestos cancer cases.

CACI No. 435, applicable in asbestos cases only, defines “substantial factor” as one that “contributed to the risk,” not just the harm. Plaintiffs argued that using CACI No. 430 confused the jury and imposed a greater burden on them.

The court allowed both instructions to be read. “That the Use Notes caution against giving the more general CACI No. 430 in a mesothelioma case, when the more specific instruction CACI No. 435 is more applicable, does not support a conclusion that it was error to give both instructions. CACI No. 430 is a correct statement of the law relating to substantial factor causation, even though, as Rutherford noted, more specific instructions also must be given in a mesothelioma case.”

V.  No Studies Show Take-Home Hazards from Brake Repair

The jury found that Exxon did not know, and should not have reasonably known, that Mr. Petitpas’ work at the gas station put Ms. Petitpas at unreasonable risk.

Plaintiffs argued that because the management at Exxon refineries knew about the hazards of asbestos, their agents at service stations also knew. The court did not agree with this argument. Since the jury only heard evidence that conditions at other locations posed a risk to other classes of employees (which Exxon knew about), the jury properly found that Exxon did not know about the risks at its service stations.

The Petitpas court went so far as to suggest that had the jury found otherwise, it would have to be reversed. Dr. Castleman admitted that there were no studies “of any statistical power…that speak of the mesothelioma risk of mechanics that do brake repair work” and that no such studies exist today. Plaintiff’s expert Dr. Horn also conceded this fact. Therefore, the court reasoned, “There was no evidence linking asbestos exposure to occasional bystanders who were near automotive workers as they did brake work.” The court’s conclusion in Petitpas can and should be used as an argument in all brake take-home repair cases.

This decision bodes well for defendants challenging plaintiffs’ often broad and sweeping allegations in asbestos cases.

Filed under Asbestos, California, Secondary Exposure, Substantial Factor, Take-Home Exposure

California Adopts “Sophisticated Intermediary” Defense

By on May 25, 2016

Earlier this week, the California Supreme Court formally adopted the “sophisticated intermediary” defense for product suppliers. The court significantly restricted applicability of the defense, however, and ruled that there was insufficient evidence in this case that Johns-Manville qualified as such an intermediary.

5-24Webb v. Special Electric Co., Inc. articulated the defense as follows: “a [product] supplier may discharge its duty to warn end users about known or knowable risks in the use of its product if it: (1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product.”

Perhaps the most significant hurdle to use of the defense in the future is the requirement that “a product supplier must show not only that it warned or sold to a knowledgeable intermediary, but also that it actually and reasonably relied on the intermediary to convey warnings to end users.”

The challenge posed by that requirement was exemplified here, where the Supreme Court ruled that Special Electric, a 2-person broker of raw crocidolite asbestos, had a duty to warn asbestos behemoth Johns-Manville and the downstream users of Johns-Manville products that incorporated Special Electric-brokered raw material. In part, this reflected a welcome understanding about the divergent toxicities of the different minerals classified together as asbestos. “Although the record clearly shows Johns-Manville was aware of the risks of asbestos in general, no evidence established it knew about the particularly acute risks posed by the crocidolite asbestos Special Electric supplied.”

Webb identified four other reasons why the evidence did not justify the trial court’s decision to grant a defense JNOV in the face of a jury verdict finding negligence.

  1. “The evidence is disputed about whether Special Electric consistently provided warnings to Johns-Manville during the relevant time frame.” Note that it is not just “warnings,” but “consistent warnings.”
  2. “[P]laintiffs presented evidence that at least one Special Electric salesperson told customers crocidolite was safer than other types of asbestos fiber, when the opposite was true. If the jury credited this evidence, it may have found it unreasonable for Special Electric to believe Johns-Manville was so sophisticated that a warning about the particular dangers of crocidolite asbestos was not called for.”
  3. Further, “the record does not establish as a matter of law that Special Electric actually and reasonably relied on Johns-Manville to warn end users like William Webb about the dangers of asbestos. We recognize that direct proof of actual reliance may be difficult to obtain when, as in the case of latent disease, the material was supplied to an intermediary long ago. However, actual reliance is an inference the factfinder should be able to draw from circumstantial evidence about the parties’ dealings.”
  4. “[T]he jury could have reasonably determined that any reliance on Johns-Manville would have been unjustified. Plaintiffs presented testimony from a former Johns-Manville employee criticizing the company’s handling of asbestos warnings and asserting it had failed to warn its own workers about the hazards of asbestos before the mid-1970s.”

While this evidence may be slim, it was enough to support the jury’s finding of negligence and thus to overrule the trial court’s grant of JNOV to the defense. The evidence in the case may also have been sufficient to support a jury finding that Special Electric was entitled to rely on the sophisticated intermediary defense, but the issue was presented only to the court and not to the jury.

Webb overruled an earlier Court of Appeal decision that had rejected the sophisticated intermediary defense on the rationale that “that doctrine, where it applies at all, applies only if a manufacturer provided adequate warnings to the intermediary.” Webb ruled that “[t]his assertion cannot be reconciled with our analysis in Johnson [v. American Standard, the key California “sophisticated user” decision].… Insofar as it expresses a different view, Stewart v. Union Carbide Corp. … is disapproved.” So in at least some cases a defendant that provides no warnings can rely on the sophisticated intermediary defense.

A footnote that is off the main point is nevertheless a troubling sign for product liability defendants, because it appears to allow very speculative evidence about whether a plaintiff ever encountered a defendant’s product. “Plaintiffs introduced evidence that Webb was exposed to dust from Johns-Manville products containing trace amounts of crocidolite at roughly the same time Special Electric was supplying crocidolite asbestos to Johns-Manville. While evidence of the link could be stronger, it is nonetheless sufficient for the jury to have found that Special Electric’s asbestos was a substantial factor in causing Webb’s mesothelioma.” “[E]vidence of the link could be stronger” is an understatement. This footnote portends both an easier path for plaintiffs to “prove” exposure, and a court not willing to put much “substantial” in “substantial factor.”

Filed under Asbestos, California, Crocidolite, Sophisticated Intermediary, Substantial Factor

Ninth Circuit Rejects Plaintiffs’ “Every Exposure Counts” Theory

By on April 4, 2016

4-4A Ninth Circuit panel including former Chief Judge Kozinski last week rejected the “every exposure” theory advanced by many plaintiff expert witnesses, who thereby try to impose liability on defendants responsible for only vanishingly small amounts of asbestos.

McIndoe v. Huntington Ingalls Inc. framed the question in terms of the substantial factor test. “Absent direct evidence of causation, a party may satisfy the substantial-factor test by demonstrating that the injured person had substantial exposure to the relevant asbestos for a substantial period of time.” The Ninth Circuit found this evidence lacking, thereby justifying summary judgment to defendants.

At most the heirs have provided evidence that McIndoe was “frequently” present during the removal of insulation aboard the Worden and was present 20–30 times during such removal aboard the Coral Sea. But, as the district court found, even if McIndoe was around asbestos dust several times, his heirs presented no evidence regarding the amount of exposure to dust from originally installed asbestos, or critically, the duration of such exposure during any of these incidents.

Plaintiffs “argue[d] that evidence of prolonged exposure is not needed, because they presented the opinion of Dr. Allen Raybin—a medical expert who asserted that every exposure to asbestos above a threshold level is necessarily a substantial factor in the contraction of asbestos-related diseases.”

Both the Ninth Circuit and the district court rejected this argument on the ground that the “every exposure” theory of asbestos causation” amounts “to reject[ing] the substantial-factor test as a whole.” Plaintiffs’ expert “did not make distinctions between the overall dose of asbestos McIndoe breathed aboard the ships and that portion of such exposure which could be attributed to the shipbuilders’ materials,” and his “testimony aims more to establish a legal conclusion—what general level of asbestos exposure is required to show disease causation—than to establish the facts of McIndoe’s own injuries.” Thus, the defendant shipbuilders were entitled to summary judgment.

McIndoe was decided under federal maritime law, and so may not be directly applicable in state law cases. It joins a long list of cases that have rejected the every exposure theory, but interestingly comes mere weeks after a California appeals court allowed every exposure testimony. McIndoe’s emphasis on the amount and duration of exposure is consistent with most decisions on point, and may offer an additional reason for California defendants to seek to remove cases to federal court.

In another holding, McIndoe found that naval warships do not constitute “products,” so that only negligence and not strict liability was available to plaintiffs. Arguably the holding on required evidence of substantial factor causation would be the same under both theories.

Filed under Any Exposure, Asbestos, California, Every Exposure, Maritime, single fiber theory, Substantial Factor

California appellate court bucks national trend, allows plaintiff experts to opine that “every asbestos exposure is a substantial factor”

By on March 4, 2016

Courts from around the country have rejected efforts by plaintiff experts to testify that every asbestos exposure is a substantial factor in causing disease. On March 3, 2016, California’s second appellate district went the other way, and held in Davis v. Honeywell International, Inc. that the controversial “every exposure counts” theory is admissible under governing expert witness law.   Thus, although trial courts are supposed to play a “gatekeeper” role in keeping out unreliable expert evidence (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747), Davis breaks the gate wide open in allowing a jury, not the trial court in its “gatekeeper” role, to decide whether to accept the theory.

Davis was aGATEPICTURE wrongful death case.  Sam Davis  worked as an auto mechanic and home remodeler from approximately 1963 to 1979.  He performed “one or two” brake jobs per day, and always used Bendix brake linings (for which defendant Honeywell was responsible). These linings contained 50 percent chrysotile asbestos by weight.  He was also allegedly exposed to asbestos as a result of his home remodel work.

Prior to trial, Honeywell filed a motion in limine to preclude plaintiff from presenting expert opinion testimony that every exposure to asbestos above background contributed to decedent’s disease. The motion was denied, and plaintiff’s pathologist (James A. Strauchen, M.D.) and pulmonologist (William Rom, M.D.) were permitted to testify and advance the theory. Ultimately, the jury found for plaintiffs, and Honeywell appealed.

Honeywell’s primary basis for appeal was that the “every exposure counts” testimony of Dr. Strauchen should have been excluded. Honeywell advanced four arguments:  (1) the testimony was speculative and illogical; (2) the regulatory standards Strauchen relied upon cannot establish causation; (3) no appropriate scientific literature supports the theory; and (4) the theory is contrary to California causation law espoused in Rutherford v. Owens Illinois (1997) 16 Cal.4th 953, which held that not every exposure to asbestos is a “substantial factor” in causing disease.

Davis rejected each of Honeywell’s arguments. “Having reviewed much of the commentary and scientific literature cited in support of and against the ‘every exposure’ theory, we conclude that the theory is the subject of legitimate scientific debate.   Because in ruling on the admissibility of expert testimony the trial court ‘does not resolve scientific controversies (Sargon), it is for the jury to resolve the conflict between the every exposure theory and any competing expert opinions.”  The court focused largely on the mere existence of evidence that supported the “every exposure counts” theory, and declined to weigh the evidence or any competing inferences.   “While Honeywell is generally correct that in many (or even most) instances epidemiological studies provide the best evidence of causation, its implied argument that it is improper for an expert to rely upon any other tools to determine causation, such as case reports, is not universally accepted.”  As to Honeywell’s argument that “every exposure” contravenes Rutherford, Davis  interpreted Rutherford as not requiring a “dose level estimation,” instead issuing a sweeping statement interpreting Rutherford as supporting the conclusion that even a very small “dose” could increase the risk of asbestos-related cancer.  Davis distinguished the many cases from other jurisdictions rejecting this argument, including Betz v. Pneumo Abex, LLC (2012) 615 Pa. 504, Bostic v. Georgia-Pacific Corp. (Tex. 2014) 439 S.W.3d 332 and Moeller v. Garlock Sealing Technologies, LLC (6th Cir. 2011) 660 F.3d 950. “[W]e simply disagree” that the “every exposure” theory could not be “reconciled with the fact that mesothelioma and other asbestos-related diseases are dose-dependent.”

The Davis court did state, however, that “[w]e caution that our discussion of the materials Dr. Strauchen relied upon should not be seen as approval of either side in that scientific dispute.  Rather, we rely upon the rule of Sargon that although trial courts ‘have a substantial ‘gatekeeping’ responsibility,’ in evaluating proposed expert opinion . . . the gate tended is not a partisan checkpoint . . . If the opinion is based on materials on which the expert may reasonably rely in forming the opinion, and flows in a reasoned chain of logic from those materials rather than from speculation or conjecture, the opinion may pass, even though the trial court or other experts disagree with its conclusion or the methods and materials used to reach it.”  (emphasis added)

Further, although much of the discussion relates to the “any exposure” theory, Davis pointed out that the case did not hinge on that theory.  “In this case, Dr. Strauchen was presented with a hypothetical based on the facts surrounding Davis’ exposure to dust from his work on Bendix brake linings, and testified as to estimates of the amount of asbestos fibers contained in visible dust. Therefore, his conclusion that Davis’ exposure to Bendix brake linings was a substantial factor in contributing to the risk of mesothelioma was not based simply on “any exposure” to asbestos, but instead related to an estimate of actual exposure.”

The decision is not yet final. It is still subject to a petition for rehearing, which could result in a change in the opinion, and to either or both a request for depublication and a petition for review to the California Supreme Court, either of which if granted would make this decision uncitable in California courts, though not necessarily elsewhere.

Filed under Asbestos, asbestos exposures, Daubert, every exposure counts, evidence, Expert Opinions, Expert Reports, expert testimony, Expert Witness, Frye, gatekeeper, Low Dose, Sargon, scientific literature, single fiber theory, Substantial Factor, Theories of Liability, Uncategorized

Washington Court Clarifies When Product Sellers’ General Immunity from Product Liability Applies

By and on January 7, 2015

The Washington Court of Appeals recently published a product liability opinion that clarifies how a court should decide whether a product-seller defendant is subject to Washington’s common law or the Washington Product Liability Act (WPLA).  Which law applies is significant for product sellers because they are subject to strict liability under Washington’s common law, but are generally immune from liability under the WPLA absent limited exceptions.  In Fagg v. Bartells Asbestos Settlement Trust (Dec. 8, 2014), the court held that in cases involving a plaintiff’s exposure to injury-causing products both before and after the WPLA’s effective date of July 26, 1981, a defendant-specific exposure analysis is proper to determine which law applies to a particular defendant.  The court concluded that unless substantially all of the plaintiff’s exposure to a particular defendant’s product occurred before July 26, 1981, the WPLA, and its general immunization for product-seller defendants, applies.

In Fagg, the plaintiff alleged injurious-exposure to various asbestos-containing products manufactured and sold by separate defendants from the 1950s to the 1990s.  The plaintiff also claimed he was exposed to asbestos while enlisted in the Navy in the 1960s, and from living and vacationing near the Libby, Montana superfund site from the early 1980s to 2007.  The Court of Appeals considered how to determine whether WPLA applies to a plaintiff alleging prolonged exposure to injury-causing products – should a court aggregate a plaintiff’s exposure to all injury-causing products regardless of source, or should the court evaluate a plaintiff’s exposure on a defendant-specific basis.  Prior to the Fagg opinion, Washington law was undecided on this issue.

The Fagg court held that a defendant-specific exposure analysis is the proper measure to determine if the WPLA applies to a plaintiff’s claim.  To determine if the WPLA applies to a plaintiff’s claims against a particular defendant, a court must look at the plaintiff’s allegations of injurious-exposure to only that defendant’s product.

Underlying the Fagg court’s holding was the Washington Supreme Court decisions in Simonetta v. Viad Corp., Braaten v. Saberhagen Holdings, and Macias v. Saberhagen Holdings, Inc., which concluded that injuries from products outside a defendant’s “chain of distribution” are not actionable.  Accordingly, the Fagg court held that in determining what law applies to a plaintiff’s claim against a particular defendant – common law or the WPLA – a court must examine the plaintiff’s alleged injurious-exposure to only that defendant’s product.

In reaching its holding, the Fagg court affirmed the calculus used to decide if the WPLA applies to claims against a particular defendant:  “the WPLA applies unless ‘substantially all’ of the exposure occurred before” the WPLA’s effective date, July 26, 1981.  Thus, to bring a common law claim, an asbestos-plaintiff must show that substantially all of his injury-causing exposure to that defendant’s product occurred before 1981.

The Fagg court’s holding is significant for product sellers because of the different liability standards under the common law and the WPLA for product sellers.  If the Fagg court had concluded that an aggregate-exposure analysis should be used to determine whether the WPLA applied, this could impose the common law (and thus strict liability) on a product seller if substantially all of a plaintiff’s aggregate asbestos exposure occurred before 1981, even though the plaintiff’s exposure to the particular seller’s product occurred only after 1981.  This would thwart the Legislature’s intent when it enacted the WPLA to insulate product sellers from liability.  Instead, the Fagg court’s holding ensures that a product seller is held to the proper liability standard – common law or WPLA – based upon when a plaintiff was allegedly exposed to the specific seller’s product.

The Fagg court also discussed the meaning of “substantially all.”  The court noted with approval cases and Washington law that define substantially all as “‘nearly all,’” all except “‘a negligible minority’ or when a ‘practically negligible’ amount remains,” and “‘essentially all.’”  The Fagg court also cited positively cases which have quantified “substantially all” to mean “85 percent or more.”  Although the court declined to adopt a definition of “substantially all,” practitioners, and particularly product-seller defendants, should be able to use the Fagg court’s language and cited cases to better argue that the protections afforded by the WPLA apply to a given case.

Filed under product seller, Substantial Factor, Washington State

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