Mass Torts: State of the Art : Mass Torts Lawyer & Attorney : Vorys, Sater, Seymour & Pease Law Firm : Toxic Torts & Wrongful Death

Running sophisticated statistics software over a pile of data drawn from the opinions of an appellate court does not guarantee a sophisticated analysis of the court's decision-making. In fact, given what I've read in a couple of fairly recent law review articles, about the only thing it guarantees are unwarranted conclusions and no analysis whatsoever.

I had high hopes for the testing of hypotheses about legal reasoning. Take for example the work of Jeffrey Rachlinski. He was able to demonstrate that judges have some of the same cognitive blind spots as the rest of us; the most notable of which being hindsight bias. (See e.g. "Inside The Judicial Mind"). But this new fad of indiscriminately dredging for correlations and publishing uncritically the inferences generated thereby is very troublesome.

Let's take a suggestion from one law review article that a certain court is biased because the win/loss ratio for plaintiffs and defendants deviates significantly from what would be expected of an unbiased court. Specifically, that the defense prevailed in more than 68% of the cases tallied implying to the author that something significant was afoot since the observed distribution was more than one standard deviation beyond the expected. Upon what premise must such a conclusion rest? Either that justice is or ought to be decided by casting lots (in other words that the distribution of wins and losses should look like the results of flipping a coin a large number of times and so appear as a Gaussian distribution) or that cases appear randomly before the court. The former denies the existence of justice as we know it and the latter denies the facts - plaintiffs often press novel claims, seek to overturn or plead around statutes (like tort reform) or try to hold on to huge verdicts - all of which might reasonably be expected to influence the likelihood of success on appeal. Nevertheless, none of these assumptions or possible biases and confounders are discussed anywhere in the paper.

Another recent article demonstrates the misuse and abuse of statistics. In it the author claimed to have uncovered a power law behind certain judicial decision-making. Finding a hidden power law is considered very sexy these days. They're different than merely normal distributions; they explain an increasing number of natural phenomena (e.g. most prominently some economic  conditions in the current troubles - see: Pareto distribution); and, best of all, they allow you to torture your data with even more impressive-sounding statistical tools.

The problem however is that putting fancy tools in the hands of someone who doesn't know how to use them cannot lead to anything worthwhile. And so it was with the second paper that had me despairing. On a log-log plot a power law will reveal its distribution as a straight line. But while a straight line on a log-log plot may be necessary for the presence of a power law it's not sufficient; yet that's stated no where in the paper. But that's a minor quibble compared to the real problem with the analysis. Rather than plotting the data on a scatter graph and inferring that a power law might lie beneath, the author apparently put the data on a log-log plot, forgot it was a log-log plot and ran a linear regression on it thereby forcing a nice straight line where there was none - the result being a sort of tautology-by-statistics. 

Don't get me wrong. The discovery that certain behaviors could be explained and predicted mathematically would be a big deal. But when you see a vigorous debate in the scientific literature about whether bacterial foraging behavior (swim straight vs. tumble and then swim somewhere else) should be described by a power law curve rather than Gaussian bell curve it makes you wonder whether something as complicated as the administration of justice can ever be reduced to a simple formula. Human scale biological systems are fantastically complex and I'd expect that the approach a judge takes to her task of doing justice, the application of principles - our way of dealing with complexity and uncertainty, would be even moreso.

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Yuck! Tastes like CBPR.

CBPR? I hadn't heard of it either; not until this week anyway. It's "community-based participatory research" and the idea is to get activists and scientists together to do research into things like the cause of higher than average breast cancer rates in some high net worth communities. The activists want the scientists to prove that pesticides are causing breast cancer in their communities; and so the scientists promptly set out to falsify the activists' claims. Why wouldn't it turn out well?

The answer can be found in "A Review of Advocate/Scientist Collaboration in Federal Environmental Breast Cancer Research". It turns out that "effective" CBPR requires a different sort of "inquiry paradigm." You see "[t]he positivist paradigm remains dominant in much scientific research, emphasizing objective knowledge that is separate from the knower and can only be uncovered through a scientific method of inquiry that is neutral and bias-free." "CBPR challenges this paradigm by contextualizing scientific research within particular communities, including and legitimizing advocates' knowledge, understandings, and priorities regarding issues by which they are personally affected." (Ibid at pg 17).

So researchers, schooled in the long history of how biases, prejudices and failures to challenge closely held beliefs have thwarted science and medicine in the past, are to drop everything they hold dear? Or is it that advocates are to drop their beliefs, acquiesce to all the money they lobbied for being spent on an effort to falsify those beliefs; and, after seeing them falsified, to say "Nevermind", take the hit to their reputations and set about constructing a new narrative for their lives? The former rejects the scientific method; the latter, human nature. 

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Despite a steady drip drip drip of out-of-context memos, disconnected snippets of depositions and dire predictions that rose to a torrent last night, the FDA's panel of experts today voted 20 - 13 to keep Avandia on the market, though, most suggested, with more warnings. More significantly, despite vicious ad hominem attacks on respected academics and physicians, the panel also voted to complete the TIDE study - one of those "gold standard" studies that should in 2015 produce at last some definitive data on the questions of whether Avandia poses an unacceptable risk for diabetics and whether it produces a better outcome than a competitor.

Of all the objectives of those who lead such attacks their effort to declare science settled and to outlaw further experiments that might falsify their claims is the most frightening. On the other hand, when you consider what happened with the breast implant litigation you have to understand that by waiting for the truth those who fed The New York Times stray documents and quotes from discovery would only put their businesses at risk. Fama, malum qua non aliud velocius alium.

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Three years ago Dr. Steven Nissen published "Effect of Rosiglitazone on the Risk of Myocardial Infarction and Death from Cardiovascular Causes" in which he reported that those taking Rosiglitazone (Avandia) had about a 40% increased risk of acute myocardial infarction (heart attack). The study was a meta-analysis of published and unpublished data and drew extensively from the manufacturer's unpublished data.

The media simultaneously reported the findings and propagated the following narrative: The pharmaceutical companies collect vast quantities of data; publish only what supports their products; and are at best willfully ignorant of the risks of their products which risks are right before their eyes if only they would look. Dr. Nissen who "has a statistician’s zeal for drilling deep into clinical data, seeking signs that some widely used drugs pose undisclosed risks to patients" was made the hero of the drama. Congress got involved by beating the drums of safety and transparency and demanding that the FDA pay more attention to ensuring that pharmaceuticals are safe.

The FDA reassessed Avandia and panel members voted 21-3 to keep it on the market.

In February of this year, a Congressional investigation conferred near-martyr status on Dr. Nissen after it was revealed that he had secretly tape recorded a meeting with the representatives of the maker of Avandia. The same month, in European Heart Journal, he published the editorial "The Rise and Fall of Rosiglitazone". Meanwhile everyone was waiting for the results of a huge study of Avandia.

Last week that study, "Risk of Acute Myocardial Infarction, Stroke, Heart Failure, and Death in Elderly Medicare Patients Treated with Rosiglitazone or Pioglitazone" (interestingly, for several days JAMA made you click through an ad for a competitor's type 2 diabetes product to get to the article) was published. And what was the risk of heart attack among those elderly patients on Avandia? Essentially no different than those on the older medication - a statistically insignificant 1.06 increase - especially so given the fact that almost three quarters of all type 2 diabetics wind up dying of heart disease in any event. So, was Avandia cleared? Nope. In fact, the calls for removing it from the market have grown even louder.

The new study, while rejecting the original claim that Avandia causes heart attacks, raised the hypotheses that Avandia causes congestive heart failure and stroke and increases the rate of mortality overall. Yet even though the numbers of patients involved in the study (their records were simply culled from Medicare databases) was large (227,000) the increases were relatively small and by the time the increases appeared (after six to fifteen months of medication) only a small and rapidly decreasing fraction of the original cohort were actually still on one of the two medications.

At almost the same time Dr. Nissen published an updated meta-analysis ("Rosiglitazone Revisited: An Updated Meta-Analysis of Risk for Myocardial Infarction and Cardiovascular Mortality"  also free and also, though published in the Archives of Internal Medicine, only after an ad for the same competitor's type 2 diabetes product) that purports to show that Avandia increases the risk of heart attack but doesn't increase the risk of mortality. What? Hey, wait a second! How can ... So, siding with those advocating "safety over certainty" the New York Times quickly editorialized in favor of those demanding Avandia be removed from the market.

The LATimes went so far as to publish a piece calling for "an immediate moratorium on sales as soon as a credible study raises questions about safety." In that same piece the journalist was posed the following question by a researcher being interviewed: "Suppose a drug saves five people and kills one person. Do you keep it on the market?" His answer was "I know this: If that one person killed is my loved one - or yours - the answer is readily apparent."

Yikes. Really? If a data dredge shows any risk of a fatal outcome then the drug should be pulled from the market no matter how many people are killed in the process? We'll save for another day the question of how thinking about risk goes so badly astray. For now though consider how likely it is (yes likely - and in fact, if the number of endpoints examined are sufficiently large, how almost certain it is) that a risk will be found where none exists. Start with "Data Dredging, Bias, or Confounding: They Can All Get You Into the BMJ and the Friday Papers" and then for more on the perils of statistical deep drilling read "Your Intuitions Are Not Magic" and the links therein.

At the end of the day the issue isn't safety versus certainty. Claiming that pharmaceutical manufacturers are insisting upon certainty before warnings are issued or products are pulled is just a straw man argument. The usefulness of statistical analyses of medical outcomes has not been added to "death and taxes".The real question is which course is less uncertain - making vital judgments on the basis of large randomized controlled trials like the one due out on Avandia in 2015 or on the basis of data dredges? The answer ought to be obvious.

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The Texas Supreme Court has just decided an appeal we discussed last year in "Dyspepsia Time for Texas Trial Lawyers?" The court in Thomas O. Bennett, Jr. and James B. Bonham Corporation v. Randy Reynolds upheld punitive damages against the individual as well as against the corporate defendant holding that when a vice principal uses corporate authority over corporate employees on corporate land to commit a tort with corporate equipment it makes the corporation liable for punitive as well as actual damages. The court did, however, remand the case to the court of appeals for remittitur with instructions that it limit punitives to within, and likely somewhat below given that the wrong did not involve death or severe bodily harm, the "absolute constitutional limit [of 4:1 ]" (citing Gullo Motors).

Those doing asbestos litigation are likely to hear a lot about the court's "reprehensibility analysis" that led it to conclude that punitive damages were warranted - specifically this sentence: "We have previously held that certain cover-up efforts can show reprehensibility, as when a manufacturer of asbestos-containing products continues selling what it knows is dangerous."

The opinion concluded this quintessentially Texas case as follows: "We agree with the court of appeals that 'Texans know better than to steal cattle, an offense once redressed beneath a tree rather than inside a courtroom. That said, the 47:1 and 188:1 ratios here exceed the outermost limit permitted by due process. We thus remand to the court of appeals to reconsider exemplary damages in line with this opinion and prevailing ratio analysis.'"

Analysis of Bennett v. Reynolds

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On June 14, USEPA gave notice of a July 9, 2010 "listening session" related to its external review draft document entitled "EPA's Reanalysis of Key Issues Related to Dioxin Toxicity and Response to NAS Comments." The draft document includes new analyses on potential human effects from exposure to 2, 3, 7, 8 tetrachlorodibenzo-p-dioxin (TCDD). The draft document was also provided to EPA's Science Advisory Board for peer review.

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The LATimes is reporting that a 9-11 style fund will be established by BP and administered by Kenneth Feinberg to compensate those suffering losses as a result of the Macondo well spill.

Mass tort litigation may never be the same. Plaintiff firm business models will need to change to accommodate these "BOOM! Done" resolutions of mass claims. In the past the folks who got rich were those who commanded "magic" venues and those who could try cases. Now it looks like those who can round up the most plaintiffs stand to make the most. It makes you wonder how much Google will be getting for pay-per-click ads generated by the words "oil spill."

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“He whose stuff it is must keep it that it may not trespass.” So said Sir John Holt, Lord Chief Justice of England and Wales, in the case of Tenant v. Goldwin in 1704. (1704) 2 Lord Raymond’s Reports (Ld Raym) 1089, 1 Salkeld’s King’s Bench Report 21, 360. Chief Justice Holt was addressing the escape of “filth” from one property into another, and the cause of action for the damages caused by the “filth.” There is some dispute whether the cause of action sounded in trespass (Salkeld) or in private nuisance (Raymond). However, most scholars agree that the modern concept of strict liability traces its origins to Chief Justice Holt’s decision.

Yesterday, the Supreme Court of Ohio in effect resoundingly rejected the principal in Tenant v. Goldwin. In a 5-1 decision, the Court in Boley v. Goodyear Tire and Rubber Co. upheld and applied ORC 2307.941(A)(1), a “tort reform” provision enacted by the General Assembly in 2005. The court found that the statute bars tort claims based on “take home” exposure from a workplace where the exposure takes place away from the property owner’s premises. The statute does not address liability of products liability defendants for take home exposures. In her concurring opinion, Justice O’Connor noted that a different provision in the 2005 asbestos litigation reform bill, R.C. 2307.92(D)(2), provides a legal basis for asserting wrongful death claims against defendants other than the premises owner for take-home exposure of family members to occupational asbestos. The Supreme Court of Ohio’s announcement of the decision, written opinion, and a video of the oral argument before the Court can all be found here.

Sadly, it does not appear that the Court or the parties in Boley were concerned with the effect of the statute on Chief Justice Holt’s tort law legacy.

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In Collins v. Plant Insulation, a California appeals court has determined that under California law, a jury must determine the Navy’s fault in an asbestos wrongful death suit in order to determine the defendant’s percentage of fault. This holds even though the Navy is immune from suit and the plaintiff cannot recover from it.

Under California’s Proposition 51, the jury must determine each defendant’s responsibility in direct proportion to that defendant’s percentage of fault. The Court held that it was impossible for the jury to determine the defendants’ proportion of fault without considering the fault of the Navy, the premises where the plaintiff worked for a number of years.

This brings California law in line with that of Texas, where the jury must determine the fault of all potentially responsible parties, whether or not they are solvent or before the court. This is designed to keep those with deep pockets and small liability percentages from paying the whole of Plaintiff’s damages.

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Judge Mark Davidson, who presides over the Texas asbestos MDL denied summary judgment on the issue of whether a duty exists for take-home exposure to the spouse of a defendant’s employee. In Carrie Ramsey v. Borg Warner Morse Tec. Inc., et al, he issued a letter ruling in which he determined that DuPont owed a duty to the spouse of one of its workers who developed mesothelioma.

The plaintiff’s ex-husband had worked at a DuPont facility from 1964 to 1974. He worked as an operator and later as a supervisor who patrolled the plant, and worked in various areas during startups and shutdowns as needed. He did not work hands-on with any asbestos products but worked around those who did. Plaintiff laundered, on a daily basis, the clothes her ex-husband wore home his from DuPont. Before she placed his clothes in the washing machine she would shake the dust off his clothes, which she breathed. She was diagnosed with pleural mesothelioma in 2008.

According to Judge Davidson’s ruling, documents produced by DuPont indicated that DuPont knew of the dangers of asbestos by the early 1960s. DuPont knew of a link between small exposures to asbestos and cancer by June 2, 1966. A 1964 DuPont document authored by the director of DuPont's Haskell Laboratory for Toxicology and Industrial Medicine stated that cases of mesothelioma could be caused by "exposure to dust brought home by relatives working with asbestos.” This report also identified three types of exposures to asbestos that are recognized as leading to an increase of mesothelioma: 1) factory workers manufacturing asbestos textiles; 2) insulating materials; and 3) “exposure to dust brought home by relatives working with asbestos.”

A DuPont document dated May 21, 1968 detailed DuPont’s knowledge of asbestos dangers and that “Wives and children of asbestos workers are also being involved because of the dust laden clothes a man wears home at night.”

In his ruling, Judge Davidson stated that the evidence in this case went far beyond that in Behringer v. Alcoa in which the Dallas Court of Appeals held Alcoa owed no duty to an employee’s spouse who developed mesothelioma. Davidson stated the following:

“If this isn’t enough evidence to comply with Behringer, I really can’t imagine what is. Mr. Ramsey’s exposure continued for six years following the time interval DuPont documents show they were aware of the dangers to its employees’ families. The Behringer case held that the [sic] Alcoa had no knowledge of the dangers of household exposure in the 1950s, and that no duty existed in the absence of that knowledge. In this case, there is some evidence that the Defendant knew as early as 1964 and certainly by 1968. Exposure continued until 1974."

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The title is taken from a quote in a New York Times piece headlined: Safety Rules Can't Keep Up With Biotech Industry. The article details several accidents resulting in serious injury or death plus an alleged whistleblower's $1.4 million recovery. David Michaels, author of "Doubt is Their Product: How Industry's Assault on Science Threatens Your Health", and now Director of OSHA, is also quoted as saying "[w]orker safety cannot be sacrificed on the altar of innovation."

A new Rachel Carson and a new Erin Brockovich have already been proclaimed; now it seems there's also a new Karen Silkwood and a new Eula Bingham. The casting is complete. If this production has a run like the last one mass tort lawyers will be busy for years to come.

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In Quillen v. Safety-Kleen Systems, Inc., 2010 WL 2044508 (E.D.Ky.) the court determined that plaintiff's expert, Dr. George Rogers, could properly attribute a case of myelodysplastic syndrome (MDS) to benzene by doing a differential diagnosis. That some courts have taken to using differential diagnosis to identify the root cause of say splenomegaly rather than to distinguish histoplasmosis induced splenomegaly from Hodgkin's disease induced splenomegaly would likely set many physicians' eyes rolling.  Yet, that's apparently what the 6th Circuit said in Hardyman v. Norfolk & Western Railway Co., 243 F.3d255 (6th Cir. 2001) and thus the thinking by the Quillen court.

The point of doing a differential diagnosis, of course, is to rule out possible causes until just one is left - it's a process of elimination. But just because every other cause of splenomegaly has been ruled out in the case of a male patient that doesn't mean that it makes sense to conclude that the cause must be the remaining possibility - a metastatic ovarian cancer. To be considered for elimination in the first place the putative cause has to be one that makes sense. In Quillen though there was no effort to demonstrate that plaintiff's experience with benzene was the sort that would make benzene a reasonably plausible cause of his MDS.

Finally, please ponder the following. In response to the defendant's objection that plaintiff's expert had not ruled out ionizing radiation  the court wrote: "Defendant points to nothing in the record demonstrating that Quillen was ever exposed to a statistically significant amount of such radiation." Somewhere an epidemiologist just fell out of her chair.

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The Court of Appeals for the Federal Circuit recently drove what we hope is the last nail in the coffin of the vaccine/autism litigation. Rarely has a toxic tort had the potential to cause so much harm based on such shoddy science. The history of this tort and its shortcomings have been reported in great detail.

In short, the scientific evidence that vaccines cause autism came from a discredited article by Andrew J. Wakefield and two follow-up articles. Dr. Wakefield’s article created a public health crisis with parents, including celebrity parents Jenny McCarthy and Jim Carey, urging parents not to get their children vaccinated. As a result, formerly endemic childhood diseases which had become effectively eradicated in the developed world began to make a reemergence. Wakefield’s article was finally withdrawn from the Lancet earlier this year after 10 of the 12 co-authors disavowed it. Wakefield, himself, refuses to withdraw the article even though it was found that he committed scientific misconduct and lied in the article. The UK’s General Medical counsel’s Fitness to Practice Panel issued a judgment against him for his vaccine/autism paper. Wakefield continues to testify. Others testify based on his work.

Thankfully, the vaccine litigation was consolidated in the federal Vaccine Court pursuant to The Vaccine Act (passed in response to the health scare where the DTP vaccine was accused of causing neurological damage and in response to lawsuits, stopped being manufactured). Plaintiffs in three bellwether cases all failed on causation. The Special Masters wrote massive opinions eviscerating Wakefield and the causation theories of Plaintiffs.

Hopefully parents can now rest assured that vaccines are not a risk for autism. And, they can recognize the far greater risks to their children and society from not vaccinating.

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The EPA has just announced its final rule for greenhouse gas emissions from large fixed sources such as power plants and refineries. Starting in January of next year large facilities already required to obtain Clean Air Act permits for other emissions will have to seek a greenhouse gas permit if such admissions increase by 75,000 tons/yr or more. Six months later the requirements will expand to cover all new facilities with emissions of at least 100,000 tons/yr and older installations with modifications that result in increases of 75,000 tons/yr or more. The rule covers not only CO2 but also methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. It's anticipated that the rules will be expanded to additional sources effective July 2013.

The EPA believes that these new standards will avoid overwhelming permitting burdens that otherwise would have fallen on the government and most sources of greenhouse gas. The EPA notes that without this rule the permitting and "best available control technology" burdens would fall on operations with emissions as low as 100 tons/yr producing "an absurd result" - not to mention an immense political backlash propelled by an impossible to administer regulatory scheme. Instead, conceding in essence the slippery slope objection, expansion of the regulations to smaller emitters will proceed "one-step-at-a-time". Had the rules become effective for all emitters at once an estimated 6 million U.S. farms and businesses would have suddenly become subject to the permitting process with the time from application to permit approval lengthening to a decade or more.

The CliffsNotes version is here: Fact Sheet and here's the Final Rule

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Eight years after issuing “draft” guidance on vapor intrusion, the EPA will issue an “interim” guidance this year that is supposed to move the organization closer to issuing a final guidance in 2012. This sudden rise in importance was prompted by an evaluation that the lack of final guidance on vapor intrusion by the organization impedes efforts to assess indoor air risks. Since 2002, more than half the states and other governmental bodies have issued their own vapor intrusion standards, leading to ad hoc and inconsistent standards across the board. So why not finalize the draft? Well, the times have changed and so has the EPA’s approach. This new risk based approach no longer supports some of the assumptions inherent in the draft guidance. For instance, the EPA will use updated toxicity values, beginning with trichloroethylene (TCE) and tetrachloroethylene (PCE) toxicity values, to determine at what level an indoor risk exists, and consider more significantly atmospheric and building specific effects. But, alas, there are many more than assessment questions to be answered in the final guidance. Again, not waiting for the answers, ASTM International announced last week that it will soon release its ASTM E 2600 Guide: Vapor Encroachment Screening standard for conducting due diligence for sale of properties where potential vapor intrusion is a concern, a revision of its 2008 standard that was criticized for being overbroad. The ASTM standard will focus on identifying potential sources in the surrounding areas of the real estate property rather than broad assessment of an existing vapor intrusion problem. Years after the 2002 guidance, many thought the final guidance would be immediately forthcoming, but it was not. While more certainty is definitely desired by all parties involved on this issue, what we hope is that the “interim” guidance does not dance to the same tune as the “draft” guidance…one step forward and two steps back!

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Yesterday a Los Angeles jury awarded $8.8M in compensatory damages and $200M in punitive damages in a take-home exposure case against CertainTeed and the Los Angeles Department of Water & Power (Evans v. A.W. Chesterton, et al). Plaintiff Rhonda Evans claimed that she contracted mesothelioma as a result of exposure to asbestos fibers that had been carried home on her husband’s clothing who cut asbestos pipes manufactured by CertainTeed for the Los Angeles Department of Water & Power.

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In Stolt-Neilsen S.A. v. Animalfeeds Int’l Corp., the US Supreme Court held that an arbitration panel may not determine that a class-action arbitration is allowable in the absence of an express provision in that arbitration clause.

The case stems from the global shipping price fixing practices uncovered by the US Department of Justice in 2003. Animalfeeds International ships raw ingredients to animal feed producers around the world. The standard shipping contract in issue, called the Vegoilvoy charter part, first adopted in 1950, has an arbitration clause which is silent as to class actions. And, no class action has ever been conducted based on the particular charter party arbitration provision.

Nonetheless, Animalfeeds sought class action arbitration in New York on behalf of all global shippers affected by the alleged price fixing. An arbitration panel was set up to determine in the first instance whether class-action arbitration was proper in this case. Relying on a public policy interpretation, the arbitration panel determined that it was.

The Supreme Court determined that in the absence of an arbitration provision allowing class action status or a state substantive law in the relevant jurisdiction allowing class action arbitration in the absence of express consent, the arbitration panel’s decision to allow the class-action arbitration exceeded its powers. Parties cannot be put into class-action arbitration unless they agree to it. And, arbitrators have no power to determine cases based on public policy.

This decision fits within recent Supreme Court jurisprudence on arbitrations. Recently, the Court decided that parties who contracted for arbitration could not also contract for judicial review. See Hall Street Assoc, LLC v. Mattel, 522 US 576, 128 S.Ct. 1396 (2008). In Hall Street, the Supreme Court’s decision seemed to say, “if you want arbitration, yet get arbitration. Don’t come complaining to us about the arbitrator.” In this case, the Court seemed to temper that somewhat.

In this case, the parties agreed to arbitration between them. The shipper did not agree to have Animalfeeds as the class representative of all its customers in one mass action against it. Such a class-action arbitration would bind parties who were not part of the arbitration agreement and likely reduce many of the benefits normally accorded to arbitration over litigation (cost vs. speed, finality vs. ability to appeal, etc.).

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Yesterday, the 9th Court of Appeals in Beaumont, Texas conditionally granted mandamus relief in Thompson v. Univar; a benzene/leukemia case. In the trial court Univar had moved to compel the production of settlement agreements. Discovery of such settlement agreements are seemingly expressly called for by Texas’ Rule of Civil Procedure 192.3(g). Nevertheless, some courts routinely refuse to compel their disclosure and that’s what happened here.

Plaintiffs had objected to the disclosure of the settlement agreements stating that they were subject to confidentiality clauses. Plaintiffs did agree to disclose, in aggregate, the total amount of money agreed to be paid by the settling defendants. Without reviewing the agreements the trial court accepted plaintiff’s representation and denied Univar’s motion to compel.

The appeal drew several amicus briefs, including some from former parties which had settled with plaintiffs, that argued against disclosure of settlement agreements.

Holding a plain reading of our discovery rules demonstrates that such agreements are discoverable; that they are additionally discoverable so as to uncover any potential bias on the part of any witness (e.g. agreements to cooperate or not cooperate); and that they ought to be timely discovered, the court of appeals ordered that the agreements be disclosed by the end of the week.

Trial begins Monday in Beaumont.

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The long-awaited proposed revisions to TSCA were introduced in the U.S. House and Senate last week. As expected, these proposals, referred to as the “Safe Chemicals Act of 2010” in the Senate and as the “Toxic Chemicals Safety Act of 2010” in the House, contain numerous similarities to REACH. For example, the precautionary principle will apply, manufacturers will need to submit data on each chemical produced and its use, the EPA will be required to prioritize chemicals based on risk, the EPA will be expected to address high risk chemicals quickly. Chemical information submitted will be publically available, the scope of confidential business information will be significantly narrowed, and there is a focus on using safer alternatives to chemicals of concern.

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Mr. Pryor played an indispensable role in starting up the chemical tort litigation that began (like everything else, seemingly) in Beaumont, TX. Read all about it in "Catching a Killer" and in "The Cancer Belt". In particular it was the butadiene litigation for which he'll be remembered by toxic tort lawyers. You can find his obituary in the Beaumont Enterprise.

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The Texas Supreme Court recently concluded that merely transporting goods through Texas does not create sufficient minimum contacts to establish specific jurisdiction in this state. In the case of Zinc Nacional, S.A. v. Bouché Trucking, Inc., a Mexican company (Zinc) sold paper to a company in New Mexico. Zinc transported the product to the Texas border, transferred the trailer to another truck company (Bouché), which transported the paper through Texas to New Mexico. Zinc does not have an office, agents or employees in Texas and does not sell paper to Texas manufacturers. During one particular shipment in 1999, the Bouché driver was injured when the contents of the trailer shifted and the truck overturned. The driver filed a negligence suit against Bouché.

Bouché sought third-party indemnification and contribution through Zinc, who filed a special appearance to challenge specific and general jurisdiction. The trial court denied Zinc’s special appearance. The Court of Appeals upheld the trial court’s opinion stating that “Zinc had purposefully availed itself to Texas benefits” and “had thereby established sufficient minimum contact for purposes of specific jurisdiction.” The Supreme Court disagreed finding that Zinc doesn’t have the minimum contacts necessary to establish specific jurisdiction, concluding that third-party shipment of goods through Texas “does not, by itself, constitute purposeful availment.” The Court reversed and remanded the case to the appellate court for determination of the general jurisdiction issue.

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The Texas Supreme Court recently delivered its opinion in Del Lago v. Smith, 53 Tex. Sup. Ct. J. 514 (2010). Smith was a patron of the Grandstand Bar which is part of the Del Lago resort on Lake Conroe, Texas. He was a member of a fraternity reunion that got into a brawl with a wedding party. The brawl erupted after ninety minutes of drunken threats between the two groups. The bar employees witnessed the hostility, did not call security or the police, did not throw anyone out, but did keep pouring drinks. Smith witnessed all of it but did not leave. When the fight started, Smith joined the fray and was eventually run into a wall by another man and his skull was fractured. Once the fight started, the bartender called security, who arrived within three minutes and broke up the fight. The jury found the bar 51% liable and Smith 49% liable and awarded almost a million and a half dollars in damages.

The most significant holding of the case can be found in this paragraph:

"We hold that Del Lago had a duty to protect Smith because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation. Del Lago’s duty arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night. When a landowner “has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent" to reduce or eliminate that risk.

The ruling drew two very lengthy dissents. They point out that the rule in Texas has always been that a possessor of land discharges his duty to protect an entrant, including an invitee, from a condition that poses an unreasonable risk of harm by giving an adequate warning. Yet the court now holds that “in some circumstances, no warning can be adequate.” The court, however, did not explain when and how such situations arise so that a landowner can take measures to reduce his risk. It also did not explain why no warning could have been adequate in this case (where the danger was obvious and Smith was a willing brawler who could have avoided his injury by simply leaving the bar at any time after trouble began to brew.

In his dissent Justice Wainwright examined Palsgraf v. Long Island Railroad and Texas' views about whether we follow an ordinary prudence rule or whether we impose on all actors a duty to the whole world and he concluded that Texas had always followed the lead of the majority opinion in Palsgraf.  

The majority gave short shrift to one of the key problems with this case.  While the case was presented to the jury on a premises liability theory (defect in the physical premises itself), one of the major factors in holding the bar liable was a negligent activity (serving drinks to belligerent people, omitting to call the police to break up the fracas).  Serving drinks in a bar cannot be a premises defect. That is what bars do.  However, serving them to drunk, belligerent customers can be negligent, as in a dram shop case.  This is a key distinction because obvious dangers and warnings are often not sufficient in negligent activity cases – it is not enough to warn someone that you are spraying the floor with oil in a grocery story as the person walks by and slips (this is the seminal fact pattern in a negligent activity case).  So instead, the majority has created an exception to premises liability law when it could have simply sent the case back to the trial court to be tried and presented to the jury under the appropriate tort – the negligent activity of serving drinks to drunk, belligerent customers and not calling the police.

How will this ruling affect toxic tort claims by contractor employees? Is it no longer enough to warn of the risk and to advise as to how it might be avoided? And if a hazard, such as an unguarded loading dock, is open and obvious is the premises owner now obligated to actively prevent the contractor from falling off? And what exactly is the something "more than a warning" that a prudent premises owner must now undertake to discharge this new duty?

Premises liability law, which had after many long years finally become understandable, predictable and workable has suddenly become very uncertain.

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In Buttitta v. Borg-Warner, et al a New Jersey appellate court appears to embrace the scientifically indefensible "no safe level" risk/causation conflation in upholding a huge award to a plaintiff with a lower asbestos burden than an average American; likely all of whom are exposed to chrysotile, a ubiquitous and naturally occurring mineral.

Clearly a new front in an old war has opened. Seemingly few are prepared for this post-epidemiological world.

Also of interest is the court's approval of prior decisions based on an Illinois appellate court's discussion of the substantial factor test:

"The substantial factor test is not concerned with the quantity of the injury-producing agent or force but rather with its legal significance... Where there is competent evidence that one or a de minimis number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury". Citing Wehmeier v. UNR Industries, Inc., 572 N.E.2d 320, 337 (Ill. Ct. App. 1991).

That's pretty much the essence of the "redistributive justice" view of tort law in which the actor's conduct is not at issue but rather whether it contributed, however infinitesimally, to the plaintiff's injury. Practically speaking the litigation then will remain focused not on whether a defendant committed a wrong but rather on which defendant is most able to pay since asbestos fibers have been found on just about every surface and in countless products.

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Apparently forty really is the new thirty. In several (free) reviews of the state of current knowledge on aging you'll read that life expectancy hasn't, contrary to popular opinion, reached any preset limit and that those who reach "old age" in good health (Americans, Swiss and Japanese, anyway) not only have a lot of life left ahead of them but the accretion of extra life is accelerating. In the paper "Biodemography of Human Ageing" there's an especially eye-popping graph showing the age at which remaining life expectancy is either five or ten years for women. American women lead Swiss women and look to be pulling away, almost going straight up, at a rate similar to Japanese women.

That all this extra life will bring profound political and economic changes almost goes without saying. In personal injury litigation some of the changes wrought by significantly increased life expectancies are already here.

When I got out of law school a good liability wrongful death cancer claim by the children of an eighty-something decedent might have settled for $50,000.00.Typically there would have been little in the way of medical bills, nothing in the way of lost wages and the adult children would have been thought lucky to have had their parents around for so long. At one point I collected all the awards to grown-up and on-their-own children (40+) in toxic tort wrongful death cases for several years here in Texas and the average was $30,000/child with a median of about $25,000.

Recently I was involved in a case in which the decedent had been making $150,000/yr at age 80, incurred over $300,000 in medical bills and the family had already collected more than $1,000,000.00 settlements. And a focus group, in another matter, when asked "to what age should people reasonably expect to live" collectively picked 85 as the magic number though almost half said the number should be 100. One hundred. And do you know what? A child born today has better than even odds of living to 100 according to the actuaries.

Not only are damages going up, people are dodging things like heart attacks and strokes that used to kill them at much younger ages and so are living long enough to develop diseases with extraordinarily long latent periods. Expect to see more, and more different kinds of latent disease litigation.

Finally there's the future. First though imagine you're in a Navy shipyard in 1941 and someone tells you that the material you're using might kill you when you're in your eighties. Since your life expectancy is sixty or so you might not be too alarmed. In fact, you might be relieved since the eighty somethings you know are woefully decrepit. Now come back to 2010 and imagine someone just told you that using a common and ubiquitous material may cause you to die, prematurely, of cancer ... at 125. What would you do? What should we do?

All of the articles about aging (or ageing - blame the Brits) are free (and excellent) in this month's Nature Insight. If you're daunted by the science try the podcast instead.

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In a pair of decisions released on March 23, the Supreme Court of Ohio upheld RC 2745.01, which requires a showing of deliberate intent to make out a case of employment intentional tort for claims arising on and after April 7, 2005. This will make proof of employment intentional tort considerably more difficult in Ohio than under the prior standard, which required only a showing of knowledge of “substantial certainty” of injury. This ruling from the Supreme Court of Ohio is also notable in light of the Court’s prior decisions, striking down two prior tort reform efforts in this area. The two opinions, Stetter v. R.J. Corman Derailment Servs, LLC and Kaminsky v. Metal and Wire Prods Co., are available here.

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“There are certain things only a government can do. And one of those things is ensuring that the foods we eat are safe and do not cause us harm.”  

That's a quote from President Obama that appears on the FDA's food safety website and is undoubtedly an indication of increasing federal regulation of food in the years to come.  It's expected that by May of this year a bill to modernize the FDA will become law.  Both the House and Senate versions of the bill require the establishment of a tracing system for contaminated food back to its source within two days.  While tagging foods so that they can be traced back to their source may be onerous for industrial-scale producers, for farmers' markets, truck farmers, and the whole locally grown / sustainability movement this requirement may prove to be crippling. 

The final bill will likely incorporate some sort of requirement for studies or pilot projects to determine the most effective and least expensive method of traceback and recordkeeping.  Any obligations eventually imposed won't become effective for eighteen months to three years.  Expect to see considerable debate about these provisions in the next couple months.

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The Texas Supreme Court has just decided another arbitration issue in the case of East Texas Salt Water Disposal Company, Inc. v. Werline, 53 Tex. Sup. Ct. J. 410 (Tex. 2010). This time it has further defined the limits of trial court’s ability to review arbitration decisions.

Werline was an employee of East Texas Salt Water Disposal. He had an employment contract that directed arbitration over any employment disputes. He also had a severance provision if he was terminated without cause. Werline’s employment ceased and he sought to enforce the severance provision. The parties proceeded to a three-day arbitration hearing in front of an AAA arbitrator. The arbitrator awarded in favor of Werline. East Texas Salt Water Disposal petitioned the district court to vacate, modify or correct the award on the basis that it was so against the great weight of the evidence that the arbitrator manifested bias.

The trial court vacated the award, determined all the material facts and issues in East Texas Salt Water Disposal’s favor and directed another arbitration to confirm the facts the court had found. Werline appealed and the court of appeals reversed and rendered in favor of Werline. East Texas Salt Water Disposal appealed, arguing that the court of appeals had no jurisdiction to hear the appeal.

The Supreme Court held that the court of appeals did have jurisdiction to hear the appeal from the trial court’s obviously erroneous decision.

The Texas Supreme Court then took the opportunity to remind the parties, once again, that there is limited trial court review of arbitration awards. The review is limited to the grounds expressly enumerated by Texas Arbitration Act section 171.098(a). In this way, the Texas Supreme Court’s decision is consistent with the United States Supreme Court’s decision in Hall Street v. Mattel, 128 S.Ct. 1396 (2008) decided recently on similar issues under the Federal Arbitration Act, which the TAA is modeled after.

Justice Jefferson, leading the dissent, argued that the limited issue presented on appeal, the appealability of the trial court’s order, should have been decided differently. He held that there was not sufficient finality in the trial court’s order to make it appealable. However, this is inconsistent with the purpose of the TAA to make arbitration faster and cheaper than litigation. As the Fifth Circuit stated recently in Citigroup Global Markets, Inc. v. Bacon, arbitration should be the end, not the beginning of the litigation. If the trial court’s order were not appealable, multiple arbitrations would have occurred based on reasons not listed in the statute.

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Yesterday, the federal judge that presided over the Garner v. BP trial issued a memorandum opinion and final judgment in which he ruled that gross negligence was not proven by clear and convincing evidence by plaintiffs as a matter of law. Judge Kenneth Hoyt’s opinion set aside all exemplary damages awarded by the jury in the first trial of ten plaintiffs that claimed injuries as a result of chemical release in 2007. Judge Hoyt’s opinion stated that plaintiffs failed to satisfy the objective test for gross negligence which requires a showing of an extreme risk of harm – “one that involves both high probability and high potential severity” of an occurrence. In addition, plaintiffs failed to demonstrate the requisite specific intent that showed BP ignored an obvious or known risk and took no precautions that would minimize or arrest the harm anticipated. According to Judge Hoyt, BP had implemented safety precautions which included monitors on workers and at various locations on the plant to detect the presence of toxic chemicals.

The judgment found that BP was responsible for the chemical release and permitted plaintiffs to recover actual damages which totaled $340,659.77.

Plaintiffs’ counsel Tony Buzbee told the Houston Chronicle that the first trial was “just a skirmish in the war.” Over 130 plaintiffs have pending claims in this litigation which remain to be tried.
 

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"Tobacco smoking is responsible for one-third of the total cancer deaths among men." See "Estimation of Cancer Incidence and Mortality Attributable to Smoking in China". Secondary smoke exposure is said to be responsible for more than 11% of all cancer deaths in women.

Do you ever get the feeling that China is just going through what the U.S. went through in the 1960s, 1970s and 1980s when epidemiology and mass health panics were all the rage? If so, and if a "redistributional justice" model of tort law can be introduced in China, it may be deja vu all over again for classic mass tort litigation.

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A Madison County jury rendered a defense verdict in an asbestos trial that ended Friday. Plaintiffs Larry and Meta Williams claimed he developed mesothelioma from his work with friction products that contained asbestos. The lone defendant at trial was Ford.

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Claims that bisphenol A causes hormone disruption have been refuted again and again by large, independent studies the results of which have been published in peer reviewed papers. Yet, based on nothing more than an uninspired theory (that estrogen-like molecules ought to do what estrogen does) and a few, small, poorly controlled studies the results of which can't be reliably reproduced elsewhere, the effort to ban a product that prevents bacteria from infecting much of the food you consume continues to accelerate. How could this be?

You can find Richard M. Sharpe's answer in "Is It Time to End Concerns over the Estrogenic Effects of Bisphenol A?" published in the journal Toxicological Sciences (free access!).

Like the autism/vaccine, limb reduction/Bendectin controversies the bisphenol A panic has spread like a virus. And if those past controversies are any guide it'll be several more years before civilization's immune response, empiricism, is able to bring us collectively back to our senses. In the meantime expect opportunistic infections to take advantage of the situation.

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Yesterday the U.S. Supreme Court granted a petition for writ of certiorari in Bruesewitz v. Wyeth, Inc. and will review the Third Circuit’s holding that a plaintiffs’ design defect claims against the manufacturer of a vaccination were expressly preempted by the 1986 National Childhood Vaccination Injury Act (“NCVIA”) and that plaintiffs failed to establish a manufacturing defect or a warning defect claim under the Act.

In a footnote in the Bruesewitz opinion the Third Circuit had distinguished the Supreme Court’s opinion in Wyeth v. Levine in which the Court held that federal law did not preempt state tort claims that alleged that a drug manufacturer failed to adequately warn of the dangers associated with a drug on the basis that unlike the NCVIA, there was no express preemption provision in the Food, Drug, and Cosmetic Act (“FDCA”). Another distinguishing factor was Congress’ silence on the issue of preemption in the FDCA “coupled with its certain awareness of the prevalence of state tort litigation” which was “powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness” as the Court stated in Levine. In addition, the Third Circuit noted that Levine recognized that under federal law, a drug manufacturer could strengthen a drug’s label without preapproval from the FDA, which “stands in contrast to the FDA’s far-more extensive control and oversight of the drug’s design and alternation.”

Also the Third Circuit had disagreed with the interpretation of the Georgia Supreme Court on this issue. In American Home Products Corp. v. Ferrari (in which a petition for writ of certiorari is pending), the Georgia high court had ruled that the Vaccine Act “clearly did not preempt all design defect claims against vaccine manufacturers, but rather provides that such a manufacturer cannot be held liable for defective design, if it is determined, on a case-by-case basis, that a particular vaccine was unavoidably unsafe.” The Third Circuit noted in Bruesewitz that if the NCVIA was interpreted to permit a case-by-case analysis of whether “particular vaccine side effects are avoidable, every design defect claim is subject to evaluation by a court.”

It will be interesting to see how the Supreme Court resolves the split between the Third Circuit and the Georgia Supreme Court on this issue.

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Score one for transparency and fairness in the Mountain State.

The West Virginia Record reported in this article on March 3 that Circuit Judge Ronald Wilson has now ordered that all asbestos plaintiffs in West Virginia must henceforth disclose which bankruptcy trusts they have communicated with and against which trusts they might have a claim. The purpose of the order is to ensure that defendants in asbestos cases receive proper credit when plaintiffs are paid by trusts of bankrupt defendants.
 

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The case of Cull v. Perry Homes is long and winding and fits the old adage of being careful what you wish for; especially in litigation. Robert and Jane Cull of Mansfield, Texas bought a home from Perry Homes for $233,730. They alleged it had serious structural problems. They sued Perry Homes and two warranty companies in Texas District Court. One of the warranty companies moved to compel arbitration with the American Arbitration Association pursuant a contract clause. The Culls responded with a 79-page objection which called the AAA, among other things, “incompetent, biased, and fails to provide fair and appropriate arbitration panels.” The case proceeded in court. There was extensive discovery conducted, including 14 depositions and five motions to compel by the Culls. Four days before trial, the Culls moved to compel arbitration. The trial court agreed. The Supreme Court denied a petition for writ of mandamus blocking the move to arbitration.

The arbitrator gave the Culls an $800,000 award, including punitive damages and damages for mental anguish (things arbitration panels are supposed to protect litigants from versus jury trials).

Perry Homes appealed. The Texas Supreme Court reversed; not the arbitration award itself – for which the law is extremely deferential – but the trial court’s decision to go to arbitration.

The Supreme Court stated that the key issue was whether the party moving to compel arbitration had substantially invoked the litigation process. In this case, it clearly had. There is not much more that the Culls could have done to invoke litigation short of going through the trial itself. The plaintiff’s 79-page objection to the AAA seemed to have a large part in the Court’s decision.

On retrial, the jury awarded the Culls $51 million.

Perry Homes has incrementally gotten what it wished for (an arbitration set out in its contract, a new trial after the arbitration gave a bad result), with increasingly bad results. The Supreme Court’s 2008 opinion received lots of press for its seeming favoring of a well-connected defendant over even its historical favor of arbitration.

The case continually made for favoring arbitration is that it reduces cost and time. This frequently does not occur. Perhaps we should go back to favor arbitration only in cases where experts are needed to determine the outcome, not for run-of-the mill private litigation that has until recently been the purview of our public courts.

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We have been watching with interest recent developments in a solvents case currently pending in Summit County, OH: Widican v. Bridgestone/Firestone North American Tire, LLC, et al. A summary judgment order entered in that case may portend a serious body blow to employee "intentional tort" claims against Ohio employers for occupational illnesses with long latencies.

Beginning in 1939, worker's compensation was the exclusive remedy that Ohio workers could seek against their employers for injuries suffered in the course of their employment. That is to say, workers' compensation preempted employer tort liability. This involved the trade-off typical of most workers compensation systems: the employee received reliable compensation for workplace injuries without having to prove fault, and the employer in return received a predictable and reasonable cap on its liability for such injuries.

All that changed in 1982. That year, the Ohio Supreme Court held in Blankenship v. Cincinnati Milicon Chemicals, Inc. that there was an exception to worker's compensation preemption. If the employee could prove that the employer intended to harm him/her, he/she could recover both workers compensation and the full range of tort damages against his/her employer. Two years later, the Ohio Supreme Court in Jones v. VIP Development Company further expanded the exception, holding that "intentional tort" could be established by showing that the employer knew that injury to the employee was "substantially certain." The requisite "intent," the Court later explained in Fyffe v. Jeno's, Inc., was something more than "reckless" or "willful and wanton" conduct, but something less than specific intent to harm.

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In a perplexing opinion the Second Court of Appeals affirmed a summary judgment granted in favor of a manufacturer of asbestos-containing joint compound in a mesothelioma case. As we mentioned in our prior posting on this case, the appeal involved the review of the Texas asbestos MDL pre-trial court’s ruling that qualitative testimony of Dorman Smith’s use of a Kelly-Moore product “on a regular basis” was insufficient.

In Rosemary Smith, et al v. Kelly-Moore Paint Company, the appellate court first addressed and rejected plaintiffs’ contention that Borg-Warner only applied to asbestosis cases and did not apply to mesothelioma cases.

Second, in contrast to the pre-trial court’s ruling that plaintiffs’ qualitative evidence was insufficient, the appellate court reviewed the exposure testimony of fact witnesses, the opinions of plaintiff’s expert, and the opinion of a defense expert that opined that Dorman’s cumulative total exposure to asbestos amounted to 9 to 15 fibers/cc years over the course of his career and stated that “the Smiths at least raised a genuine issue of material fact as to the aggregate dose of Kelly-Moore asbestos-containing joint compound (and total asbestos fibers) to which Dorman was exposed.” The appellate court held that “the Smiths raised a genuine issue of material fact as to the Lohrmann factors.”

This holding is puzzling as the Texas Supreme Court made it clear in Borg-Warner that “proof of mere frequency, regularity, and proximity is necessary but not sufficient, as it provides none of the quantitative information necessary to support causation under Texas law.

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Yesterday in a unanimous opinion (Hertz Corp. v. Friend et al.) the U.S. Supreme Court held that the “nerve center” test will determine the location of a corporation’s “principal place of business” for ascertaining whether a federal court can exercise diversity jurisdiction.

The Supreme Court noted that since Congress codified that a corporation is a resident of the State in which it was incorporated and the State of its “principal place of business” appellate courts have adopted numerous approaches in determining the location of a corporation’s principal place of business. Some courts applied the “nerve center” test for corporations with “far-flung” business activities which focused on the location of the corporation’s decision-makers. Other courts focused more heavily on where a corporation’s actual business activities were located. The number of factors grew as courts combined aspects of the “nerve center” and “business activity” tests to look to a corporation’s “total activities,” sometimes to try to determine what has been described as the corporation’s “center of gravity.”

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Readers of The Wall Street Journal may recall the saga of the administrative law judge in NYC who sued a family-owned dry-cleaner for $57 million over a lost pair of pants. Dubbed “The Great American Pants Suit” by this WSJ article, the judge’s law suit was touted by some as emblematic of the flaws in our tort system. When the judge’s suit failed to produce a windfall verdict, dry cleaners everywhere presumably breathed a sigh of relief.

Recent word from EPA, however, may give much greater cause for alarm for the dry cleaning industry. Perchloroethylene, “perc,” PCE, TCE, tetrachloroethyene and tetracholorethylene are solvents used in dry cleaning. Approximately 28,000 U.S. dry cleaners use this family of chemicals, which are the only air toxic emitted from the dry cleaning process. PCE has been subject to limited EPA regulation under the Toxic Substances Control Act (TSCA), because it was in use long before TSCA was passed in 1976. However, according to this Columbus Dispatch article, EPA Administrator Lisa Jackson indicated in a speech in Columbus last week that she believes TSCA is “toothless,” and intends to press Congress for increased EPA authority to review chemicals. Among proposed changes in EPA regulation of PCE: classification as a “likely” carcinogen (rather than a “possible” carcinogen), and reduction in airborne limits. Litigation over injuries attributed to PCE and other chlorinated solvents is nothing new, of course. However, if Administrator Jackson’s proposed changes are implemented, exposure claims in general and cancer claims in particular are likely be significantly affected by the ensuing “hindsight bias” engendered by the new state of the art.

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Under current federal incentives for “green” energy sources, developers have been rushing to place wind turbines in many rural areas. Indeed, even before the Obama administration’s current emphasis on renewable energy, wind farm development has grown rather dramatically in the last decade, as shown by this time elapsed map of installed wind capacity.

In a recent ABA Journal article, the author notes that many neighbors of proposed wind farms have been challenging the placement of the giant turbines near their homes. Most such challenges have occurred before local land use authorities or state public utility boards, but some have been filed in court.

Most interesting from the mass tort perspective is this: at least some challenges to wind turbine developments have been based upon the purported human health effects of the turbines. Nearby homeowners claim that the low level sound, vibration and shadow flicker from the spinning turbines cause a host of non-specific complaints, such as sleep disruption, headaches, nausea and fatigue.

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In Hall v. Warren Pumps LLC, et al., the California Court of Appeals, Second Appellate District, Second Division, held last week that manufacturers of pumps and valves who did not manufacture, sell or distribute asbestos insulation applied to their products are not liable under California law for injuries caused by that insulation. In so holding, the Second Appellate District joins the First Appellate District (Taylor v. Elliott Turbomachinery Co., Inc.), and the Second Appellate District, Third Division (Merrill v. Leslie Control, Inc.), both of which reached the same conclusions.

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Hooray!

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Yesterday the Illinois Supreme Court issued an opinion in which they rejected statutory caps on non-economic damages in medical malpractice actions as unconstitutional under the state’s constitution. This isn’t entirely surprising as the Illinois Supreme Court had previously held in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997) that Section 2-115.1 which provided for caps on non-economic damages in all cases were unconstitutional as they violated the special legislation clause which was intended “to prevent arbitrary legislative classifications that discriminate in favor of a select group without a sound, reasonable basis.” In Best, the court also noted that although the legislature may limit certain types of damages, such as damages recoverable in statutory causes of action, the limitation on damages in section 2–1115.1 violated the separation of powers clause.

Following its holding in Best, the Illinois high court found that the caps in the medical malpractice statute was an unconstitutional legislative remittitur that violates separation of powers. According the court, under the statute the trial court is “required to override the jury’s deliberative process and reduce any non-economic damages in excess of the statutory cap, irrespective of the particular facts and circumstances, and without the plaintiff’s consent. Section 2–1706.5 thus violates the separation of powers clause because it ‘unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury’s assessment of damages is excessive within the meaning of the law.’ Best, 179 Ill. 2d at 414. Section 2–1706.5, like section 2–1115.1, effects an unconstitutional legislative remittitur.”

The Court continued that “[t]he separation of powers clause prohibits one branch of government from exercising “powers properly belonging to another.” Ill. Const. 1970, art. II, §1. Thus, the inquiry under the separation of powers clause is not whether the damages cap is rationally related to a legitimate government interest but, rather, whether the legislature, through its adoption of the damages cap, is exercising powers properly belonging to the judiciary. In other words, does the statute unduly encroach on the judiciary’s ‘sphere of authority’….”
 

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A lot, actually. Or so it seems from this excellent and highly readable essay on practical jury selection. Be sure to read all the way through the jury consultant's response.

Hat tip: Marginal Revolution 

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Eight contract workers recently filed suit against BP Products North America Inc. and Pasadena Tank Corp. in Galveston County claiming they were exposed to “extremely high levels of benzene,” at BP’s Texas City refinery on Aug. 19, 2009. The exposure allegedly occurred when a damaged pipe began "spewing" chemicals in an area where the plaintiffs were working. According to the plaintiffs, they immediately evacuated the area and sought medical treatment where they learned they had been exposed to benzene.

The plaintiffs now seek $500 million in damages for pain and suffering, and mental anguish associated with being exposed to benzene, yet they make no claims of suffering from benzene-related illness. Notably, these allegations follow a $100 million verdict (mostly punitive damages) handed down against BP less than a month ago to workers who were briefly sickened by unexplained fumes (maybe CS2) at BP's Texas City refinery.  .

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The California Supreme Court will review an asbestos case against valve and pump manufacturers that will provide the opportunity to reconcile divergent California appellate court views on the issue of whether a manufacturer had a duty to warn of the dangers associated with the subsequent application of asbestos-containing materials to its products.

In O’Neil v. Crane Co., plaintiffs asserted mesothelioma claims of a naval officer that was exposed to asbestos during his military service on ships. A panel of the California Court of Appeal, First Appellate District reversed the trial court and permitted the case to proceed against manufacturers of pumps and valves for harm caused by asbestos-containing replacement packing and insulation which were used with their products but they didn't manufacture.

The appellate court disagreed with the reasoning of the California Court of Appeal, First Appellate District, in Taylor v. Elliott Turbomachinery Co., 171 Cal. App. 4th 564 (2009). Although the facts were very similar to O’Neil, the appellate court in Taylor rejected liability for pump and valve manufacturers as they were manufacturers of non-defective component parts of a greater whole, and they didn't manufacture the asbestos-containing products that caused the harm.

To further complicate the issue, a different panel of the Second Appellate District agreed with the reasoning in Taylor and held that valve manufacturer “owed no duty to warn against dangers in products, used in association with or as replacement parts of its valves, which it did not manufacture or supply.” For detailed write-up of the Second Appellate District's opinion, see our earlier post on Merrill v. Leslie Control, Inc.

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As my mentor used to say, "most people like to help others; and they really like to help when they can do it with someone else's money." 

$100 million is a lot of help.

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As part of its REACH effort the European Chemicals Agency (ECHA) has today launched what it describes as the "pilot form" of a webpage which, it is hoped, will ultimately "allow EU citizens to make informed decisions about the use of chemicals to which they may be exposed."

Today's press release has a link to the new database. When using the database search function be sure to check the "I accept the Terms and Conditions" box or it won't work. Gotta love lawyers. Anyway, when looking for something like benzene be sure to look in the "Pre-Registered Substances" directory because it won't be found in the "Registered Substances" directory and the search engine apparently doesn't look outside of whatever directory you're in.

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In the recently decided Pennsylvania case of Hicks v. Dana Companies, LLC  the appellate court considered whether the trial court had committed error in its handling of the following question posed by the jury after two-and-a-half hours of deliberations:

"Judge Lynn, can we please have verification as to what a 'factual cause' is? To determine such, do we consider each company's product individually or all collectively?"

Rather than answer the question, which actually got right to heart of the matter, the trial court read the following instruction:

"If you find that a defendant's asbestos-containing product was defective, the defendant is liable for all harm to the plaintiff caused by such defective condition. A defective condition is [sic] the defendant's asbestos-containing product is the factual cause of the mesothelioma suffered by the plaintiff if the mesothelioma would not have occurred without exposure to the defendant's defective product. That's factual cause."

Is it any wonder that jury questions are invariably found to be confusing and often result in jurors rendering verdicts they didn't mean or want to render?

Anyway, the jury's question was a profound one. In this age of peripheral defendants, typically none of whose products alone could have produced mesothelioma, is it fair to lay at any one defendant's feet "all harm to the plaintiff" when alone its product could have produced no harm at all?

The opinion is significant in at least two other respects. First it embraces the logical fallacy of conflating risk and causation by approving of causation testimony founded only on the observation that in a dose response disease each quantum of dose increases risk. Second it appears to support the contention that a defendant's application of a warning label to its product is a tacit admission that the product causes the harm warned of.

While the court goes out of its way to distinguish this case from the Pennsylvania Supreme Court's ruling in Gregg v. V-J Auto Parts Company it is difficult to see how it has in fact done anything other than accept the one fiber theory so long as plaintiff has an expert willing to swear to it.

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The Texas Supreme Court released its opinion today in the Whirlpool v. Camacho case. Joab Camacho, a minor, burned to death in a trailer fire allegedly caused by a defectively designed Whirlpool dryer. The plaintiffs’ expert, who had never examined the dryer as it had been discarded, nevertheless opined that lint from the dryer somehow collected in a corrugated exhaust shoot, backed up through the mechanical systems of the dryer, caught fire in the tumbler, smoldered when the dryer shut off, was reignited by oxygen when the door was opened and then ignited the clothes in the dryer. Plaintiffs claimed a safer alternative design would have utilized a smooth exhaust shoot. The sole support for the opinion of plaintiffs’ expert was a review of an allegedly similar dryer and Consumer Product Safety Commission (CPSC) reports of various dryer tests. The jury accepted the assessment and awarded $14 million in damages against Whirlpool.

The Texas Supreme Court conducted a full review of the expert evidence and found Plaintiff’s expert ultimately unreliable under Robinson v. Merrill-Dow. For example, plaintiffs’ expert had not conducted any tests on the dryer in question nor on any similar dryer and could not explain why tests to see if the model in question posed such a risk wasn’t feasible. Further, his opinions were made solely for litigation. Finally, the only data he did rely upon was not sufficiently similar to that for the dryer and circumstances in Camacho’s case to make it reliable.

With this opinion the Texas Supreme Court has again confirmed that the mere ipse dixit of an expert witness is not sufficient to establish the reliability of the Robinson relevance/reliability analysis.
 

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In a recent published opinion the California Court of Appeal, Second Appellate District opined that for a wife to pursue a claim against her husband’s employer for so-called take home exposures, her complaint should specify the chemicals involved and injuries alleged. (Oddone v. The Superior Court of Los Angeles County, Cal. Ct. App., No. B213784, Nov. 24, 2009).

The plaintiff had alleged that she was secondarily exposed to chemicals from her husband and his work clothes. She also asserted claims on behalf of her husband for his personal injuries which remain pending. Her husband had worked for 33 years processing motion picture film for Technicolor Inc. She specified in her complaint her husband’s injuries (glioblastoma multiforme and skin rashes) and specific chemicals that allegedly harmed him (formaldehyde and perchloroethylene), but she made vague allegations regarding her own personal injury claims against Technicolor. She alleged that she was injured from chemical substances that her husband brought home with him either on his body or clothes but failed to identify her specific injures or chemicals that caused her harm.

The defendant moved to dismiss her secondary exposure claim on the basis that it owed no duty to its employee’s wife. The trial court agreed and this appeal ensued.

The appellate court acknowledged that “[t]here appears to be no reported California decision addressing the scope of the defendant’s duty in a case where the plaintiff claims to have been injured as a result of secondary exposure to chemicals.” However, the court continued that “[g]iven appropriately specific allegations, this may be quite possible.”

The court explained that in this case “petitioner’s allegations simply do not establish any connection, much less a close connection, between the defendant’s conduct and her alleged (and unspecified) injuries.”

According to the court, a “close connection” is required because under Rowland v. Christian, 69 Cal.2d 108 (1968), it is one of several significant factors to consider when determining whether a duty exists to an injured party in this circumstance. Although the Rowland factors are to be balanced against one another, the court stated the “close connection” factor is especially important in a secondary exposure suit.

“That connection is only shown by setting forth specifically which chemicals cause which specified injuries,” said the court. “In a secondary exposure case, the allegation that as a result of the exposure the specified chemical entered the plaintiff's body is of particular importance. Central issues in such a case are whether secondary exposure to a specified chemical is even possible and, if it is, whether the exposure will result in the ingestion of the chemical into the plaintiff's body.”

As the plaintiff failed to identify a specific chemical or to specify any one of her alleged injuries she could not “connect any specified chemical or chemicals to a specific injury or injuries” and so, in this case, her take home claim failed.

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This afternoon the EPA announced that “greenhouse gases (GHG) threaten the public health and welfare of the American people.”

According to the press release the EPA’s final findings responded to the 2007 U.S. Supreme Court decision (Commonwealth of Massachusetts et al. v. Environmental Protection Agency, decided Apr. 2, 2007) that GHGs fit within the Clean Air Act definition of air pollutants. The findings allow EPA to finalize the GHG standards proposed earlier this year for new light-duty vehicles as part of the joint rulemaking with the Department of Transportation.

The EPA’s endangerment finding covers emissions of six gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

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Law.com is reporting that Philadelphia juries have awarded a total of $103 million in punitive damages alone to two women in separate breast cancer product liability trials. The women claimed that hormone replacement therapy (HRT) was responsible for their subsequent development of breast cancer.

In light of the recent controversy over the use of Bayesian decision-making approaches to mammography and Pap testing in which probabilities of outcomes are estimated and benefits are then weighed against costs (including other bad outcomes) I thought it might be of interest to see if such an approach had been applied to HRT. Sure enough, "Bayesian Meta-analysis of Hormone Therapy and Mortality in Younger Postmenopausal Women" was just published in The American Journal of Medicine.

So what does it show? It shows that across a number of randomized controlled trials of HRT in postmenopausal women under 60 those women had a reduced overall mortality compared to those postmenopausal women under 60 who weren't on HRT.

As is often the case in these modern times science does not yield a cure but does allow one to pick one's poison as it were; not to avoid death but to influence the odds of whether you die of stroke instead of breast cancer.

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The Subcommittee on Commerce, Trade, and Consumer Protection held a hearing titled, "Prioritizing Chemicals for Safety Determination," on Tuesday, November 17, 2009, in 2322 Rayburn House Office Building. The hearing examined the options for prioritizing chemicals for safety determinations in the event that the Committee amends the Toxic Substances Control Act (TSCA).

See the Energy and Commerce's website for the testimony that was given on Tuesday, Nov. 17, including testimony by the EPA.
 

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This evening a Broward Circuit Court jury rendered a mega verdict against Philip Morris USA consisting of $56.6 million in past and future medicals plus another $244 million in punitives for good measure. The plaintiff is a 61 year old wheelchair-bound emphysema sufferer.

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In Missouri Pacific Railroad v. Patricia Limmer, et al., the Texas Supreme Court held that state law tort liability for inadequate warnings was preempted when the railroad crossing improvements were federally funded because federal regulations specify what warning devices should be used.

After her husband was killed at a railroad crossing, Patricia Limmer and her two daughters brought a wrongful death action against the railroad company that maintained the crossing. The Limmers alleged that the crossbucks (black-and-white, X-shaped signs that read “RAILROAD CROSSING”) provided inadequate warning for the railroad crossing and that the railroad was negligent in failing to remove a gravel pile and vegetation that restricted drivers’ view of approaching trains. The railroad contended that Limmers’ claims were expressly preempted by the Federal Railroad Safety Act (FRSA) of 1970. The trial court concluded that federal regulations did not apply and a trial on the merits resulted in a $5.1 million verdict in favor of the Limmers, which the court of appeals affirmed.

On a petition for review, the Texas Supreme Court determined that when railroad crossing improvements were federally funded, federal regulations specify what warning devices should be used, and the United States Supreme Court had held that section 20106 of FRSA expressly preempted state tort law actions challenging the adequacy of these devices (Norfolk Southern Ry. v. Shanklin, 526 U.S. 344 (2000)). Similarly, the Limmers’ sight-restriction claim was preempted as it was simply a restatement of their claim that the warning at the crossing was inadequate. Accordingly, the court reversed the court of appeals and rendered a take nothing judgment.
 

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The House version of the health care bill, titled “Affordable Health Care for America Act,” includes a section (pgs. 1431-33) for incentive payments to be made to each State that has a compliant alternative medical liability law. For those of you short on time, scroll down to the bolded portion of Section 2531.

SEC. 2531. MEDICAL LIABILITY ALTERNATIVES.

(a) INCENTIVE PAYMENTS FOR MEDICAL LIABILITY REFORM.—

(1) IN GENERAL.—To the extent and in the amounts made available in advance in appropriations Acts, the Secretary shall make an incentive payment, in an amount determined by the Secretary, to each State that has an alternative medical liability law in compliance with this section.

(2) DETERMINATION BY SECRETARY.—The Secretary shall determine that a State has an alternative medical liability law in compliance with this section if the Secretary is satisfied that—

(A) the State enacted the law after the date of the enactment of this Act and is implementing the law;

(B) the law is effective; and

(C) the contents of the law are in accordance with paragraph (4).

(3) CONSIDERATIONS FOR DETERMINING EFFECTIVENESS.—In determining whether an alternative medical liability law is effective under paragraph (2)(B), the Secretary shall consider whether the law—

(A) makes the medical liability system more reliable through prevention of, or prompt and fair resolution of, disputes;

(B) encourages the disclosure of health care errors; and

(C) maintains access to affordable liability insurance.

(4) CONTENTS OF ALTERNATIVE MEDICAL LIABILITY LAW.—The contents of an alternative liability law are in accordance with this paragraph if—

(A) the litigation alternatives contained in the law consist of certificate of merit, early offer, or both; and

(B) the law does not limit attorneys’ fees or impose caps on damages.

(b) USE OF INCENTIVE PAYMENTS.—Amounts received by a State as an incentive payment under this section shall be used to improve health care in that State.

(c) TECHNICAL ASSISTANCE.—The Secretary may provide technical assistance to the States applying for or receiving an incentive payment under this section.

(d) REPORTS.—Beginning not later than one year after the date of the enactment of this Act, the Secretary shall submit to the Congress an annual report on the progress States have made in enacting and implementing alternative medical liability laws in compliance with this section. Such reports shall contain sufficient documentation regarding the effectiveness of such laws to enable an objective comparative analysis of such laws.

(e) DEFINITION.—In this section—

(1) the term ‘‘Secretary’’ means the Secretary of Health and Human Services; and

(2) the term ‘‘State’’ includes the several States, District of Columbia, the Commonwealth of Puerto Rico, and each other territory or possession of the United States.

(f) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this section such sums as may be necessary, to remain available until expended.

No wonder it’s 1900+ pages long.

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The maxim “the dose makes the poison” is regularly offered by defendants in toxic tort cases as a premise for the assertion that a particular dose was too small to have been toxic. To demonstrate the concept examples of toxicity due even to essential substances like water are deployed. I’ve done it myself and the retort from plaintiff’s counsel has been invariably mocking. Here are sixteen million reasons why they should reconsider.

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The idea that there are two types of causation, one general and the other specific, is rarely enlightening but increasingly the source of confusion, mischief-making and legal bickering. Take for instance the recent per curiam and dissenting opinions in Huss v. Gayden.

In Huss the plaintiff claimed that the drug Terbutaline caused her to develop debilitating cardiomyopathy. At trial the court permitted some testimony by the defendant's expert to the effect that Terbutaline does not cause cardiomyopathy in humans but prevented him from testifying that Terbutaline did not cause Huss' cardiomyopathy. The holding on appeal was that the defendant's expert had not been allowed to fully express his views on general causation and so the case was reversed and remanded. The dissent vigorously objected, writing that the expert had indeed expressed to the jury all that needed to be said on the subject of general causation, that he was not, through education, training or experience, able to opine on the subject of specific causation and that the verdict should thereby stand.

The dissent, citing Tanner v. Westbrook, wrote that the court was required "to acknowledge the fundamental principle of the general-specific dichotomy: that a witness may be competent to testify about general causation but not specific causation." Now, before I discuss this "fundamental principle" (tomorrow) let's first think a bit about reasoning from the general to the specific.

Assume that Wilbur is a pig and the allegation is that Wilbur has been flying. My expert on pigs takes the stand and testifies "No pig can fly". This is of course a general statement about pigs; but Wilbur is a subset of pigs. My expert ought therefore be allowed to testify that Wilbur cannot fly, whether he's ever examined him or not, because what is true of pigs must necessarily be true of Wilbur. Imagine my dilemma if the dissent had its way and I was required to put on specific expert testimony to the effect that Wilbur hadn't been flying. Where exactly would I find someone with the education, training and expertise in recognizing (to paraphrase the test set out by the dissent) the prior flying habits of pigs "in a particular and unique case"?

Tanner on the other hand presents a distinctly different sort of issue. Let's go back to Wilbur. Now he's alleged to have incubated the H1N1 swine flu and given it to his owner, Zuckerman. The plaintiff's expert takes the stand and opines generally that pigs, being swine, are capable of incubating swine flu. He then concludes that Wilbur, being a pig, must have harbored the flu since he was capable of doing so and since Zuckerman now has the flu. Here the criterion of specificity is in order since not all pigs had the flu and since there were other possible non-swine vectors for Zuckerman's flu. Because plaintiff's expert never isolated antibodies to that flu strain from Wilbur's blood nor did he evince any expertise in the forensic diagnosis of H1N1 in pigs his specific causation testimony is unfounded and rightly excluded.

The real problem is that "the fundamental principle of the general-specific dichotomy" isn't fundamental because there's no real dichotomy. More on that tomorrow.

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John O'Quinn who did as much or more than anyone to change the nature of mass torts died today in an automobile accident in Houston.  I first saw Mr. O'Quinn try a lawsuit some twenty years ago when a client for whom we were preparing to defend three benzene leukemia cases sent me to watch the entire Skeen v. Monsanto trial.  O'Quinn already had a fearsome reputation and so, being a brand new lawyer and not knowing much about how lawsuits were really tried, I expected to see quite a spectacle.  Instead, I learned a lot about how to try a lawsuit.

I suppose I expected all-star wrestling but instead it was much more like a chess match.  By the time O'Quinn was done with voir dire the defendant was left with a panel ranging from bad to awful.  His command of the facts and ability to recall them in the minutest detail was amazing.  And every good cross-examination of one of his witnesses turned out, on re-direct, to have been a well-laid trap so that the witness was not only rehabilitated but the cross was made to appear disingenuous, at best.

Nevertheless, probably because I understood the defendant's case and the science behind it, I thought that the defendant would win.  So each week when I would call my Dad, who's been trying lawsuits for decades, and excitedly recount the week's events. I was always surprised when he would reply that it sounded to him as though the plaintiff was thoroughly thrashing the defendant.  He said that O'Quinn had spun a simple and emotive narrative into which all the pieces of the case easily fit whereas the defendant's story lacked a compelling theme and was overly complex. 

After closing arguments I made a wager with my Dad that the defendant would win.  My Dad predicted a verdict of $10 million dollars.  The jury awarded $100 million dollars in punitive damages alone.

A few years ago I was trying a mesothelioma case in Beaumont.  Down the hall O'Quinn was trying a Fen-phen case.  Suddenly there was a commotion in the hall and our judge sent the bailiff out to see what was happening.  She returned and handed the judge a note whereupon he asked the jurors to leave the courtroom.  After the jurors left Judge Sanderson said "they're not sure exactly how much it comes to but O'Quinn just got a verdict of more than $1 billion dollars for one wrongful death."

John O'Quinn's legendary trial skills need no further elaboration.  However, the impact on the law of his brand of mega-verdicts which posed existential threats to corporations has dramatically changed the practice and much remains to be said about it.  More thoughts on that in a future post.

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Two plaintiffs in Connecticut have sued Burger King, McDonalds and Friendly Ice Cream Corp. for failure to warn them that “well done grilled, or barbecued chicken contains chemicals known to cause cancer.” Plaintiffs, represented by the Cancer Project’s general counsel, allege that grilled chicken contains PhIP (2-Amino-1-methyl-6phenylimidazo [4,5-b]pyridine) a chemical that can increase a person’s risk of developing cancer even if consumed in very small amounts, according to a statement by the Cancer Project.

It is interesting to note that the plaintiffs seem not to have cancer. It is further interesting to note that the plaintiffs do not allege how much the risk of cancer is increased if consuming grilled chicken.

The crux of Plaintiffs’ alleged grief, as alleged in their complaint, is that if restaurants had truthfully informed consumers of the presence of a known carcinogen in their grilled chicken products, many consumers would have chosen to avoid the cancer risk by choosing healthier food options.

It seems that Plaintiffs should have to prove that they have actually been done some harm. If there is only an increased risk, that risk should be weighed against the risk of eating fried chicken, raw chicken, no chicken, a burger, or going hungry. Interestingly, the increased risk of cancer from grilled chicken may have to be juxtaposed against the risk of obesity from eating something fattier, though without PhIP.  Click here.

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Plaintiffs alleged that Dr. Stephen Guilder was exposed to chrysotile asbestos in the 1970’s and 1980’s when he remodeled an attic, worked in road construction, and repaired automobiles. He subsequently developed peritoneal mesothelioma and sued Honeywell as successor to Bendix, Borg-Warner, Honda, and other defendants that settled before trial.

Honeywell filed a motion in limine to exclude or redact a portion of a Bendix employee’s letter to an asbestos supplier which was written in the late 1960’s on the grounds of relevance, which the trial court denied. After Honeywell rested, plaintiffs sought and obtained a directed verdict on Honeywell’s claim that the verdict form should include third parties such as Honda and Honda and Borg-Warner as outlined by the Florida Supreme Court in Fabre v. Marin. The jury awarded plaintiffs over $24 million in damages which included $10.4 million for Guilder’s children for loss of parental consortium.

First, the appellate court addressed the letter written by a Bendix employee. Although the appellate court stated that the letter was relevant to proving Honeywell’s knowledge of the dangers of asbestos in its products, the appellate court agreed with Honeywell that the portion which stated, “My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause[,]” was unfairly prejudicial and the trial court erred by refusing to redact that portion.

Second, the appellate court mentioned that the Florida Supreme Court in Fabre v. Marin, stated that “the legislature intended that damages be apportioned among all participants to the accident” and that “the only means of determining a party’s percentage of fault is to compare that all of the other entities who contributed to the accident, regardless of whether they could have been joined as defendants.” Because Honeywell pleaded the fault of non-parties and presented sufficient evidence regarding two non-parties, the appellate court found that Honeywell satisfied Fabre, and was entitled to have those non-parties listed on the verdict form for apportionment of liability.

Next, the appellate court addressed the award of parental consortium damages. By statute, Florida provides for loss of parental consortium for “acts of negligence occurring on or after” the statute’s effective date of October 1, 1988. The appellate court held that the negligent act was Guilder’s last known exposure to asbestos which occurred in 1982. Because those acts were before the effective date of the parental consortium statute, the appellate court found that the loss of consortium damage award was improper.

Finally, the appellate court addressed whether Honeywell was entitled to an set-off for $2,820,000 in settlements the plaintiffs received. The appellate court held that the trial court erred by failing to set-off the settlement proceeds from the verdict before entering final judgment.

The appellate court reversed the final judgment and remanded for a new trial.  Honeywell International, Inc. v. Guilder.

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Yesterday, the Texas Silica MDL Court granted a defendant’s no evidence summary judgment motion in a case in which the plaintiff alleged that pipes specified by the defendant to be sandblasted offsite and thereafter installed on its premises were either defective products or somehow an extension of the defendant’s premises over which it retained and exercised control. Plaintiff had sandblasted the pipes but had never actually worked at defendant’s facility. He was subsequently diagnosed with silicosis and “silica related lupus”.

Plaintiff claimed that the defendant’s specifications for a particular surface finish on the pipes, which plaintiff argued could only be achieved by using high silica containing flint or other abrasive, meant that the defendant exercised enough control over the manner of plaintiff’s work that it could be held liable for his injury. The defendant argued that there was no legal duty to the plaintiff and that there was no control that would give rise to Chapter 95 liability.

The Texas MDL court rejected plaintiff’s attempt to use premise liability theories to maintain product liability or negligence claims when there was no product created, manufactured or sold by the defendant and none of the acts allegedly responsible for his injuries occurred on the defendant’s premises. Plaintiff had admitted that there was no Texas case law to support his theory.
 

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Forty years ago Clarence Borel, dying of mesothelioma, filed his landmark claim against the leading manufacturers of asbestos products.  Borel prevailed at trial and when the defendants appealed his $75,000 judgment saying he couldn't prove which defendant was responsible the 5th Circuit open the floodgates of mass toxic tort litigation by holding:  

“[I]t is impossible …to determine with absolute certainty which particular exposure to asbestos dust resulted in injury...” “[E]ach exposure may result in an additional and separate injury…. therefore … the jury could find that each defendant was the cause in fact of some injury…”

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Hurricane Katrina came and went but the landowners class action claims for damages caused by oil companies' greenhouse gases are still standing. On October 16, 2009, the Fifth Circuit Court of Appeals in Comer v. Murphy Oil held that plaintiff landowners had standing to assert causes of action for negligence, private and public nuisance, and trespass against oil companies for their release of greenhouse gases, which caused rising sea levels and increased the ferocity of Hurricane Katrina. In reversing the district court's dismissal of the property damage claims, the court ruled that plaintiffs’ Mississippi tort common law claims met the state’s liberal standing requirements, but also the federal standing requirements because their alleged injury could be traced to defendants’ greenhouse gas contributions. The U.S. Supreme Court’s decision in Massachusetts v. EPA played a critical role in the court’s analysis of the standing issue. The court also held that these claims did not present nonjusticiable political questions. While the standing issue is the beginning and not the end of how much liability, if any, the oil companies have for damages resulting from greenhouse gases in this case. This decision may signal the beginning of the expansion of liability for damages directly, or indirectly, related to a person, company or industry’s contributions of greenhouse gases.

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The oral argument in Rosemary Smith, et al v. Kelly-Moore Paint Company that took place October 15, 2009 before the Second Court of Appeals can be heard here.  The plaintiff appellant is asking the appellate court to hold that Borg-Warner v. Flores does not apply in a mesothelioma case because, they claim, there is "no safe level" for exposure to asbestos and because even minute exposures have been declared to be causative.  Accordingly they ask that in mesothelioma cases plaintiffs be excused from having to demonstrate quantatively the dose given by any particular defendants' product, premise, etc.

We’ll let you know when Second Court of Appeals reaches its decision.
 

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In Merrill v. Leslie Control, Inc., a California appellate court reversed and set aside a verdict in favor of plaintiffs and held that a defendant “owed no duty to warn against dangers in products, used in association with or as replacement parts of its valves, which it did not manufacture or supply.”

Richard Merrill filed suit for his mesothelioma that was allegedly caused by exposed to asbestos during his service in the Navy. The jury found that Leslie Controls valves were defective because it failed to warn of potential risks, the valves were defectively designed, and Leslie Controls was negligent.

Merrill had worked on Leslie Control valves that were used on ships on which he served. The valves had asbestos-containing internal gaskets which Leslie Controls did not manufacture. Leslie Controls instructed purchasers of its valves to insulate around its valves but it did not provide insulation and its field engineers were aware that asbestos insulation was applied to and removed from its valves and were even present when it was done. Leslie Controls also provided manuals for their valves and was aware that packing would be removed or added during maintenance and the manuals contained no warning of the dangers of asbestos.

The appellate court found that there was no evidence that Leslie Controls manufactured or supplied any asbestos-containing internal packing and gaskets to which Merrill was exposed, it did not manufacture or supply gaskets attached to the exterior of its valves, and it did not supply or manufacture asbestos-containing insulation used around the valves. Thus the appellate court held that Leslie Controls was not liable in strict liability “for failing to warn of hazards associated with the handling of these products.”

The Court stated that a manufacturer’s duty to warn is limited to its own products. The court also rejected liability premised on the component parts doctrine because Merrill could not provide evidence he removed the old internal packing that had been supplied by Leslie Controls in the valves.

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In a decision significant for its discussion of Texas’ Chapter 95 premises liability scheme the 1st Court of Appeals today reversed a $4+ million judgment against Union Carbide and Hexion arising out of a mesothelioma case tried to verdict in Galveston and rendered a take nothing judgment in favor of both defendants.

Essentially the court held that there was no evidence of control sufficient to support a verdict against Union Carbide. Providing asbestos-containing gaskets to the plaintiff contractor was not control – especially as any asbestos exposure arose out of the manner in which he used them rather than any intrinsic property. Specifying asbestos-containing insulation be applied by other contractors was not control, employing other contractors who stirred up dust was not control and requiring and holding mandatory safety meetings for plaintiff’s supervisors was not control.

Interestingly however, on page 9 at footnote 7, the court spends considerable time discussing a jury question the plaintiff didn’t request that would have led to a jury considering whether a premises owner exercised control over some other contractor, such as an insulator, which in turn led to the plaintiff’s exposure. There’s clearly a hint here that the court doesn’t think the control inquiry is limited to whether premises owner exercised control over the manner in which plaintiff did his work but extends to whether the premises owner controlled the manner of the work of some other contractor who in turn injured the plaintiff. But the plaintiff didn’t ask for the question so too bad.

Regarding the claims against Hexion, the plaintiff’s employer, they appear not to have been the usual Article 16 Section 26 workers’ comp avoiding effort we typically see in Texas. Instead the plaintiffs appear to have latched on to the idea that Hexion was not actually the plaintiff’s employer during that period of time during which plaintiff worked for Hexion’s predecessor so that the comp act’s bar to common law claims against employers for on the job injuries wouldn’t apply. The court basically held that public policy argued for an expansive view of worker’s comp coverage. The plaintiff made a last ditch plea to have the court adopt the “dual persona” doctrine, which would have separated Hexion into with and without coverage entities. Noting that no Texas court has ever done so as a means for imposing liability on a covered employer otherwise immune to suit the court declined the invitation.

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Private lawsuits to advance changes being sought by the executive branch? Undoubtedly the plaintiff bar is saying "Yes we can!"

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Williams Kherkher has filed their brief in Bailess v. Kaiser Gysum Company, Inc., et al. on appeal from the MDL court's granting of a summary judgment against their mesothelioma client.  According to the brief at the hearing on the motion for summary judgment the court stated that its ruling would be determined as follows:

This motion is going to be decided straight up on what Borg-Warner says and what Borg-Warner requires... If Borg-Warner requires that the dose from each defendant be enough by itself to be the substantial contributing factor, the motion must be granted.  If Borg-Warner does not require that, then the motion must be denied...

Having granted summary judgment the MDL court apparently settled on the former rather than the latter intrepretation of Borg-Warner.  In my opinion the premise doesn't reflect the true meaning of Borg-Warner.

Texas case law has refined and melded concepts of causality and culpability into a coherent and flexible scheme for determining whether or not liability ought to be imposed for the adverse consequences (negative externalities) of our actions. Essentially, a substantial contributing factor is a "but for" cause resulting from a risk imposed that was more than de minimis. The word "substantial" in "substantial contributing factor" relates, I think, to risk since any candidate cause must we know from Ford v. Ledesma be a "but for" cause and thus no more or less important than any other "but for" cause since without it, or any other such cause, the plaintiff would not have been injured.

The Bailess ruling then appears to impose a requirement that any candidate cause must be shown by plaintiff to be a sufficient cause - in other words, a cause which in and of itself, and without resort to other causes, would have brought about the plaintiff's injury. If so, this change would mark a dramatic shift in our law since in toxic tort cases, as well as in just about any other non-intentional tort case, plaintiff has always been able to recover despite the fact that her injury would not have occurred but for the actions of each of two or more tortfeasors; tortfeasors whose actions were necessary causes but not sufficient causes.  For a good discussion of the difference between sufficient cause and component "but for" causes which collectively produced the injury, see:  www.defendingscience.org/upload/Rothman-Greenland.pdf

I don't think that's where Texas case law is heading.  The question raised by Borg-Warner in a mesothelioma case is not "was defendant's asbestos a cause and if so how big a cause was it" but rather "was the exposure (i.e. the risk) from defendant's product substantial"? In other words, was the risk imposed by defendant's conduct so substantial that it can justly form the basis for liability assuming that it can never be determined which fiber or groups of fibers actually caused the plaintiff's cancer?

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In Bennett et al. v. Reynolds, No. 08-0074, Tex. 2009.  (Opinion of Court of Appeals, 242 S.W.3d 866), a wonderful only-in-Texas cattle rustling claim, the Texas Supreme Court has granted  defendant's/appellant's petition for review.  While actual damages awarded were only $5,327.11  the punitive damages came to $1,250,000.00.  Among the four issues the court will consider, mass tort lawyers will be most interested in the first two:

1. Was the evidence of malice legally insufficient to warrant punitive damages when the cattle
raiser merely sold some cattle that were not his, but did not cause or threaten “death, grievous
physical injury, or financial ruin”?

2. Is the $1.25 million punitive damages award—which is 235 times the compensatory damages
awarded—within the limits allowed by constitutional due process?

Stay tuned as this case has been set for oral argument on December 15, 2009.

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If an analysis of the most recent list of Google Adsense's highest paying search terms as compiled by CyberWyre is any indication of what the future holds, and where the money is, then I'm guessing it has something to do with mesothelioma.  The top two highest paying search terms are "mesothelioma treatment options" at $69.10/click and "mesothelioma risk" at $66.46/click.

Of the top twenty-five highest paying search terms, eighteen contain the word mesothelioma.   A number of the most expensive search phrases related to mesothelioma also contain words like "treatment", "doctor", "prognosis", "chemotherapy" and "cure".  An unscientific sampling of the results of such searches appears to generate far more links to lawyers than to physicians.  Go figure.

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