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

“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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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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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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According to this rather expensive article published in The Lancet, despite a ban in 40 countries and dramatically reduced consumption levels in other industrialized countries like the U.S., 2.2 million metric tonnes of chrysotile is still being mined and used annually with much of it going into projects in China and India. For good or ill a laboratory for studying the effects of white asbestos exposure in humans has been established.

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Distinguishing a mesothelioma from a lung adenocarcinoma is critical in asbestos malignancies. Over time, diagnoses made on the basis of morphology and the presence of asbestos bodies gave way to immunohistochemistry. Immunohistochemical staining panels keep changing and debates often rage over whether say a positive calretinen, etc. and negative CEA, etc. is enough or whether they merely show for example an adenoma of mesothelial origin. Now there's a new paper out discussing the use of epigenetic (your genes aren't so deterministic after all) profiles. Its title is "Differentiation of lung adenocarcinoma, pleural mesothelioma, and nonmalignant pulmonary tissues using DNA methylation profiles" and you can buy a copy of it there.

Of course all these new methodologies raise the obvious question of "What happens when you try to draw causal inferences about a case diagnosed today from epidemiological research conducted at a time long before these diagnostic techniques existed?" Will these then be, at least with regard to the litigation, distinctions without a difference?

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