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California’s Proposed Bill Seeks to Place Time Restraints on Depositions and Threatens Defendants’ Due Process Rights

Posted in Asbestos Litigation

California’s Senate Bill 632 seeks to impose a seven hour limit on depositions in asbestos cases at the expense of defendants’ due process rights. Specifically, SB 632 will require that “a deposition examination of the witness by all counsel, other than the witness’ counsel of record,” be limited to seven hours of total testimony in any civil action for injury or illness that involves a plaintiff with mesothelioma if a licensed physician attests that: (1) either the deponent suffers from mesothelioma, is over 70 years of age, and his or her health or well-being would be prejudiced by a deposition beyond seven hours; or (2) without regard to the deponent’s age, the deponent’s mesothelioma raises substantial medical doubt of survival beyond six months.

 

SB 632 allows for an additional seven hours, but no more than fourteen hours of total testimony, if the court makes a factual finding supporting the extension and determines that the health of the deponent does not appear to be endangered by the granting of additional time. Notably, however, SB 632 ensures that the time constraints do not apply to questioning by plaintiff’s counsel and eliminates judicial discretion allowing a deposition to go beyond the fourteen hour limit.

 

A shortened period for cross-examinations is inherently prejudicial because all defendants maintain an interest in properly and fairly preparing their defense and no party should be required to jeopardize that right. Imposing a seven hour limit on a key witness’ deposition will ensure that defendants’ due process rights will be violated by not allowing adequate time to defend the case at a deposition. As a hotbed for asbestos litigation, plaintiffs in California typically name dozens of defendants for a wide variety of alleged exposures in a myriad of industries and locations that generally consist of work histories spanning thirty to forty years. In addition, such time constraints will pin codefendants against each other as each attempts to jockey for more time to properly cross-examine a plaintiff in an effort to build their defense. The number of parties in a typical asbestos case coupled with the varying alleged exposures stretched over decades will make it impossible for a defendant to conduct an effective cross-examination under the time constraints proposed by SB 632.

 

The plaintiff’s bar argues that time limits under this bill will protect plaintiffs suffering from mesothelioma from questions where answers could be ascertained from other sources like written interrogatories. Responses to written interrogatories, however, are typically devoid of substantive information and are littered with boilerplate objections that the interrogatories are burdensome and oppressive. Further, the time constraints should not only take into account a plaintiff’s medical condition, but should be measured against the effect the time limits have on all parties, as well as the orderly and fair administration of justice. Currently, case management orders governing asbestos cases filed throughout California limit plaintiffs’ deposition to twenty hours and allow judicial discretion to extend the time limit to fairly examine the deponent on a showing of good cause. SB 632 is dangerous in that it seeks to strip the court of its power by eradicating judicial discretion while at the same time violates defendants’ due process rights by disallowing adequate time to prepare and defend themselves at a deposition.

 

Cases involving allegations of asbestos exposures typically involve a multitude of defendants, each of whom is likely to conduct significant discovery and many of which who will need to cross-examine plaintiff on key issues if provided sufficient time to do so. Requiring dozens of defendants to conduct a proper cross-examination within a maximum of fourteen hours is unreasonable and will irreparably damage defendants’ ability to mount an adequate defense. As of the date of this article, SB 632 has been approved by the Senate and is sitting on the Assembly floor. If the bill passes, it will be on the Governor’s desk on September 15, 2017. Defense counsel should unite and lobby against SB 632 by writing letters to the Governor explaining that the bill will result in a violation of due process because it is impossible to complete a plaintiff’s deposition in an asbestos case in seven hours, and even fourteen hours would not allow an adequate defense given the number of defendants typically named in each case. Further, SB 632 contradicts California Code of Civil Procedure § 2025.290(a), which permitted judicial discretion in allowing additional time beyond any limits “if needed to fairly examine the deponent.” Be heard now before your session has expired.

 

Federal Court Sustains Summary Judgment Motion While Drawing Clear Distinction Between Pleural and Peritoneal Mesothelioma

Posted in Asbestos Litigation, Maryland Courts, Toxic Tort, Uncategorized

lungsIn what asbestos litigation defendants hope will become a growing trend, the United States District Court for the District of Maryland recently drew a clear distinction between expert testimony as it relates to causation of both pleural mesothelioma (affecting the lining of the lung) and peritoneal mesothelioma (affecting the stomach).  In Rockman v. Union Carbide Corp, et al., 1:16-cv-01169-RBD, 2017 WL 3022969, the court recently granted defendant Union Carbide and Georgia-Pacific’s motion to preclude expert testimony as to causation and in turn, sustained defendants’ motions for summary judgment.

 

Rockman involves plaintiff Jeffrey Rockman, who allegedly developed peritoneal mesothelioma resulting from asbestos exposure during three minor home repair projects in 1965, 1973 and 1976; all lasting no more than several weeks in total.  It is undisputed that plaintiff did not perform those home repairs himself, but rather hired a handyman.  Mr. Rockman contends that Georgia-Pacific “Ready Mix” joint compound was used in all three repairs, that it contained Union Carbide asbestos, and that its use generated asbestos-containing dust, to which he was exposed.  Plaintiff was merely a bystander.

 

In support of his claims, plaintiff submitted the expert testimony of Dr. Jerrold Abraham, Dr. Arthur Frank and Dr. Arnold Brody who specifically concluded that plaintiff’s alleged exposures to Union Carbide chrysotile asbestos contained in Georgia-Pacific’s Ready Mix joint compound caused him to develop peritoneal mesothelioma.  Additionally, Dr. Brody concluded that “each and every” exposure to asbestos “cumulates” and should therefore be considered a cause of the injury, regardless of the type of mesothelioma, the exposure dosage, or the type of asbestos.  In reaching these conclusions, plaintiff’s experts relied on numerous studies of pleural mesothelioma despite reports from Dr. Abraham and Dr. Brody acknowledging that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.

 

In assessing the reliability of plaintiff’s expert’s testimony, the court turned to Rule 702 of the Federal Rules of Evidence as well as the long established U.S. Supreme Court interpretation of Rule 702 set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993) and recently reaffirmed in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017) allowing the courts to “act as a gatekeeper to ensure that testimony is relevant and reliable”.  Id.  In assessing the validity of the methodology employed by a proposed expert witness, a court may consider whether the expert witness’ theory or technique: (1) can be or has been tested; (2) has been subject to peer review and publication; (3) has a high known or potential rate of error; and (4) is generally accepted within a relevant scientific community.  Id.

 

Ultimately, the Court determined that plaintiff’s expert’s specific causation opinions are not the product of reliable principles and methods as required by Rule 702.  Contrary to the factors set forth in Daubert, Drs. Abraham and Frank had improperly drawn conclusions about a case involving peritoneal mesothelioma and low-level bystander exposure to chrysotile asbestos, basing their opinions entirely on prior research studying pleural mesothelioma and primarily high-level exposures to amphibole asbestos.  Both experts cited a series of studies involving high-level occupational exposures to asbestos.  In contrast, plaintiff has not alleged that he ever worked with asbestos or used an asbestos-containing product.  Rather, he was merely present while workers completed various repair tasks at his home in 1965, 1973 and 1976.

 

Plaintiff first argued that although each type of mesothelioma requires different levels of asbestos exposure, plaintiff is not required to show a quantitative estimate of a patient’s asbestos “dose”, but rather, a “significant” exposure to asbestos will suffice.  The Court, however, rejected plaintiff’s argument, as neither Dr. Abraham nor Dr. Frank were able to demonstrate plaintiff’s exposure was significant in the context set forth in Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 861-62 (E.D.N.C.) (holding that the use of the term “significant . . . implies that a certain level has been established at which the asbestos exposure attains ‘significance’”)  The court in Rockman went on to note that Drs. Abraham and Frank even acknowledge that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.  As such, because plaintiff was merely a bystander on three short-term occasions, plaintiff’s exposure could not be classified as “significant”.

Plaintiff’s second argument was that, regardless of whether plaintiff’s exposure was significant, “each and every” exposure to asbestos cumulates and should therefore be considered a cause of the injury, regardless of dose, the type of asbestos, or the type of mesothelioma.  The court further rejected this argument and held that despite this theory’s repeat appearances in asbestos litigation, courts have routinely excluded expert testimony grounded in this theory on the grounds that it lacks sufficient support in facts and data.  Comardelle v. Pa. Gen. Ins. Co.,76 F. Supp. 3d 628, 632-33 (E.D. La. 2015); see also Wills v. Amerada Hess Corp., 379 f.3d 32, 49 (2nd Cir. 2004) (affirming exclusion of theory that decedent’s cancer was caused by a single exposure to toxic chemicals, regardless of dosage, based on Daubert factors.   Thus, the court held that “[w]ithout epidemiological studies – or other reliable evidence – demonstrating a causal link between injury and exposure, expert testimony amount[s] to no more than mere speculation and conjecture.

Therefore, because plaintiff’s expert testimony as to causation was excluded, the court was left with no choice but to sustain defendant’s Motion for Summary Judgment.

 

Future Impact

 

This case has the possibility to have a major impact on Maryland asbestos and toxic tort litigation because it not only draws a clear distinction between the standard of causation for peritoneal mesothelioma and pleural mesothelioma cases, but also because it does not allow plaintiff’s experts to rely on the cumulative dose of asbestos as a basis to assign causation to a particular product.  Although this ruling comes from a local District Court, asbestos litigation defendants hope that it will begin to set a jurisdictional trend among other courts and force plaintiff’s experts to take a closer look at the necessary exposure levels between both types of mesothelioma, in order to demonstrate causation.

 

Bulk Supplier, Sophisticated User, and Component Parts Doctrines May Provide Effective Defense to Talc Suppliers Whose Products are “Inherently Safe”

Posted in Asbestos Litigation, California Courts, Litigation Trends, Massachusetts Courts, Talc Litigation, Uncategorized

Mineral talc, as a raw material, was determined to be “inherently safe” by Los Angeles Superior Court Judge Maren Nelson in the days leading up to the first Johnson & Johnson California ovarian cancer trial in the Johnson & Johnson Talcum Powder Cases, number JCCP4872.  According to Law360.com, on July 10 the judge dismissed Imerys Talc based on her finding that talc is “inherently safe.”  This ruling could have a profound effect on talc litigation, at least in California, as it may serve to protect Imerys and other suppliers of raw talc from further liability.

The court based its decision on the 1998 California appellate case of Artiglio v. General ElectricSee 61 Cal. App. 4th 830, 839 (1998).  The Artiglio decision is based on the Restatement Third of Torts and stands for the proposition that component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are: (1) not inherently dangerous; (2) they sell goods or material in bulk to a sophisticated buyer; (3) the material is substantially changed during the manufacturing process; and (4) the supplier has a limited role in developing and designing the end product.  See id.

A number of other states, including Massachusetts, have similar jurisprudence that recognize the “bulk supplier,” “sophisticated user,” and “component part” doctrines which may lead to similar results for raw material suppliers, such as talc suppliers, in ovarian cancer talc litigation.  See Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431, 441 (2006); Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 629 (2001).

Unlike California courts, though, Massachusetts courts have not conglomerated the sophisticated user doctrine and the bulk supplier doctrine into one rule that deals with “inherently safe” raw materials.  Massachusetts courts have, however, held that the components of the Artiglio rule (the bulk supplier doctrine and the sophisticated user doctrine) are recognized defenses in Massachusetts.  See Hoffman, 434 Mass. at 629; See Artiglio 61 Cal. App. 4th at 839.  Additionally, Massachusetts courts have recognized the component parts doctrine, which in California, is a counterpart of the Artiglio rule. See 61 Cal. App. 4th at 839.  Therefore, talc defendants certainly have a strong argument for dismissal.

Hoffman, confirms that the first component of the Artiglio rule, the bulk supplier doctrine, is available in Massachusetts.  See Hoffman 434 Mass. at 629.  In Hoffman, the pivotal question on appeal concerned the duty of a bulk supplier to warn all foreseeable users of the risks associated with a product’s use.  See id.  In that case, the court held that the bulk supplier doctrine allows a manufacture-supplier of bulk products, in certain circumstances, to discharge its duty to warn end users of a product’s hazards by reasonable reliance on an intermediary.  See id.  Among the factors that may determine reasonable reliance are: (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burden imposed on the supplier by requiring that he directly warn all users.  See Hoffman, 434 Mass. at 632; See Artiglio 61 Cal. App. 4th at 839.

The sophisticated user doctrine, another component of the Artiglio rule, is a separate and conceptually discrete affirmative defense from the “bulk supplier” defense which is also available in Massachusetts.  See Carrel, 447 Mass. at 441.  The sophisticated user doctrine relieves a manufacturer of liability for failing to warn of a product’s latent characteristics or dangers when “the end user knows or reasonably should know of a product’s dangers.”  See id.  In the context of the sophisticated user defense, the “end user” is the person whose sophistication is relevant to determining the defense.  See Taylor v. Am. Chemistry Council, 576 F.3d 16, 25 (1st Cir. 2009). Where a case involves three parties (such as a supplier, an employer who purchases the product from the supplier, and an employee who foreseeably comes into contact with the product and is injured), the “end user” may be either the intermediate party or the plaintiff. See Taylor, 576 F.3d at 25; see also Carrel, 447 Mass. at 441 (examining knowledge of intermediary); Barbosa v. Hopper Feeds, Inc., 404 Mass. 610 (1989) (examining knowledge of plaintiff).  In Carrel a camper was injured when he pulled on the end of a bungee cord, causing a knot in the cord to unwind, striking him in the eye.  See Carrel, 447 Mass. at 432.  At trial on the camper’s claim for failure to warn, the jury was instructed on the sophisticated user defense, and the defendant prevailed.  See Carrel, 447 Mass. at 433.  The Supreme Judicial Court upheld the instruction on appeal, and it noted that it was the practice of the cord’s distributor (not the manufacturer) to include in its shipments a document warning against using the bungee cord in a zip-line course in the precise manner that the camp had used it.  See Carrel, 447 Mass. at 445.

Importantly, Massachusetts courts have also recognized the component part doctrine, which in California, is considered a parallel counterpart to the Artiglio rule.  See Webb v. Special Elec. Co., 63 Cal. 4th 167, 183 (2016).  When a component of an integrated product is not itself defective, the maker of the component is not liable for injury that results from a defect in the integrated product.  See Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631 (1986) (“A supplier of a component part containing no latent defect has no duty to warn the subsequent assembler or its customers of any danger that may arise after the components are assembled.”)  California has also recognized this component parts rule in O’Neil v. Crane Co. when the court stated that a product manufacturer may not be held liable in negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.  See 53 Cal. 4th 335, 266 (2012).

Although Massachusetts courts have not yet created a combined rule, as did the California court in Artiglio, talc suppliers facing cases in Massachusetts may be still able to build an effective defense through the application of the “sophisticated user,” ”bulk supplier,” and “component parts” doctrines.

 

When Can An Attorney Instruct Their Witness Not To Answer During A Deposition, And What Should You Do In Response In Order To Obtain An Answer?

Posted in All Practice Areas

Have you ever taken a deposition where nearly every single one of your questions is met with a barrage of seemingly meritless objections?  How about one where your opponent decides to take a more laissez faire approach and repeatedly instructs their witness not to answer?

 

If you answered yes, rest assured you are not alone.  Personally, there is nothing that interrupts the “flow” of my deposition more than when I am on the receiving end of these scenarios.  The former scenario is at least somewhat manageable to the extent that it may result in having to reword or repeat a few questions.  The latter scenario, however, is much more disruptive as it effectively stops the deposition in its tracts.

 

So what should you do when opposing counsel instructs their witness not to answer?

 

First, you should ask yourself whether your question is in proper form.  You generally do not want to ask the deponent “contention” questions, i.e., those seeking all facts, witnesses, and document that support a legal contention.  Such questions are proper in interrogatories, but not in depositions.

 

In Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, the deponent was instructed not to answer various “contention” questions. In response, the deposing party brought a motion to compel, which the court denied.  The court held that such questions were unfair in the context of a deposition because “they call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot.” (Id. at 1262.) It further noted that such questions should be posed in the form of interrogatories so that the party, with the aid of its counsel, can “apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions.” (Id.)

 

In light of the above, if an opponent instructs their client not to answer, look at your question first and see if it passes muster under Rifkind.  If your question is something along the lines of “Why do you believe you are entitled to damages” or “tell me everything that happened that day,” then you might want to rephrase the question.

 

Assuming your question is proper, you should next evaluate whether opposing counsel asserted a valid objection.  Under California law, you can only instruct your witness not to answer when the information sought is privileged (e.g., “attorney-client” (Evid. Code § 950-962),”work-product” (CCP §§2018.010-2018.080)).

 

In Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, the defense attorney instructed his witness not to answer on the grounds that the information sought was not relevant.  The plaintiff brought a motion to compel.  The court granted the motion, and ordered defense counsel as follows: “you are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged.  The proper procedure is to adjourn the deposition and move for protective order.  You don’t assume the role of judge and instruct a witness not to answer a question at a deposition.  That is a big no-no.”  (Id. at 1011.)

 

In other words, an attorney cannot instruct their witness not to answer in the absence of privilege.  When facing a privilege objection, you obviously should not just take the attorney at their word and ask exactly why the information is privileged.  If it is pretty evident that the information is protected, then you should move on.  If you have your doubts, you could potentially have sufficient grounds for bringing a motion to compel.

 

Lastly, assuming the law is on your side, you will need to meet and confer with opposing counsel, preferably on the record, to see if you can resolve the matter informally.  During this process, point out how your question is valid under Rifkind and how their instruction not to answer in the absence of privilege violates Stewart.  If this fails, then ask the court reporter to mark the transcript and inform opposing counsel that you intend to bring a motion to compel with sanctions.  Sometimes, the threat of sanctions alone will force your opponent to concede.  If opposing counsel “sticks to their guns” then you should have sufficient legal grounds, and a clear a record in support of a motion to compel.  Either way, you are likely to get the answer to your question.

 

In summation, when dealing with an attorney who instructs their witness not to answer where no privilege exists, you should follow these three easy steps:

 

  1. Determine whether your question is proper in under Rifkind. If you asked the witness to provide you with a comprehensive list, or to “state all facts that support their contention,” then you should probably rephrase your question in a more concise manner.
  2. Assuming your question is appropriate, you should meet and confer on the record and tell opposing counsel that they cannot instruct their witness not to answer where no privilege exists pursuant to Stewart.
  3. If your attempts at informal resolution fail, then ask the court reporter to mark the transcript, and inform opposing counsel that you intend to bring a motion to compel with sanctions.

 

 

Fourth Circuit Joins Unanimous Federal Circuits – No Requirement That Government Prohibit Contractor From Warning About Asbestos For Government Contractor Defense To Apply

Posted in Asbestos Litigation, Litigation Trends, Products Liability

Recently, in Sawyer v. Foster Wheeler LLC, the Fourth Circuit held that a government contractor is entitled to federal jurisdiction, even in product liability failure-to-warn actions, based on the contractor’s assertion that it has a colorable federal defense of government contractor immunity. 860 F.3d 249 (4th Cir. 2017). The big takeaway from this case, however, is that the Fourth Circuit has now joined the Second, Third, Fifth, Seventh, and Ninth Circuits in holding that a government contractor need not demonstrate that it attempted to provide a warning, but was prohibited from doing so by the government. Id.; see Cuomo v. Crane Co., 771 F.3d 113 (2nd Cir. 2014); Papp v. Fore-Kast Sales Co., Inc., 842 F.3d 805 (3d Cir. 2016); Zeringue v. Crane Company, 846 F.3d 785 (5th Cir. 2017); Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012); Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014). Instead, for the government contractor defense to apply, the contractor is only required to establish that the government dictated or approved the warnings the contractor actually provided.

 

Sawyer involved the claims of a decedent’s family against Foster Wheeler LLC in Maryland state court, in which they alleged that the decedent’s death was caused by exposure to asbestos while he assembled Foster Wheeler boilers for use aboard Navy vessels in the boiler shop of the Sparrows Point Shipyard, and that the defendants failed to warn him of the dangers associated with asbestos exposure. Sawyer, 860 F.3d at 249. Foster Wheeler removed the case to federal district court based on federal officer jurisdiction conferred as a result of its government contractor defense. Following plaintiffs’ motion, the district court remanded the case and Foster Wheeler appealed. Id.

 

In support of federal officer jurisdiction, Foster Wheeler asserted that it manufactured boilers for the Navy under the Navy’s strict specifications and that “in the manufacture and sale of boilers and auxiliary equipment for the Navy, including all aspects of warnings associated with that equipment, [it] was acting under an officer or agency of the United States.” Id. In support, Foster Wheeler supplied the affidavits of a former employee and a retired Navy captain, in which they attested: (1) Foster Wheeler designed boilers to match highly detailed ship and military specifications provided by the Navy, that “deviations from these specifications were not acceptable,” and the Navy exercised “intense direction and control over all written documentation to be delivered with its naval boilers;” and (2) “the Navy was well aware of the health hazards associated with the use of asbestos from the early 1920s,” and that the Navy’s information “with respect to the specification and use of asbestos, and the health hazards associated with its use aboard Navy vessels, far exceeded any information that possibly could have been provided by a boiler manufacturer.” Id.

 

The Plaintiffs argued: (1) that the government contractor defense does not apply to failure-to-warn actions; and (2) the boilers were not constructed on U.S. naval ships, were manufactured under the direction of Foster Wheeler personnel, and only later transported and installed upon U.S. naval ships.  Id.  In addition, Plaintiffs argued that there is no evidence that the government prohibited Foster Wheeler from warning those individuals constructing the boilers concerning the hazards associated with asbestos exposure. Id.

 

The Fourth Circuit reversed and remanded, finding that Foster Wheeler satisfied all three criteria to establish federal jurisdiction, namely that: (1) it acted under a federal officer; (2) it has a colorable government contractor defense; and (3) the charged conduct was carried out for or in relation to official authority. Id. With regard to the government contractor defense, the Fourth Circuit held that the defense applies to failure-to-warn claims where the defendant can demonstrate that: (1) the government exercised discretion and approved certain warnings; (2) the defendant provided the required warnings; and (3) the defendant warned the government about hazards that were known to it but not to the government.  But, the Court went one step further and held that “the government need not prohibit the contractor from providing additional warnings; the defense applies so long as the government dictated or approved the warnings the contractor actually provided.” Id.

 

In its application of that standard, the Fourth Circuit found that Foster Wheeler demonstrated that the Navy “exercised intense direction and control over all written documentation to be delivered with its naval boilers,” including those manufactured by Foster Wheeler. Id. The Court cited one of Foster Wheeler’s affidavits which stated that “Foster Wheeler would not be permitted, under the specifications, associated regulations and procedures, and especially under actual practice as it evolved in the field, to affix any type of warning or caution statement to a piece of equipment intended for installation onto a Navy vessel beyond those required by the Navy.” Id. It also found that Foster Wheeler actually gave the warnings that were required by the Navy and that the Navy would penalize any deviation. Id. Finally, the Court found that Foster Wheeler credibly demonstrated that the Navy’s knowledge of asbestos-related hazards exceeded Foster Wheeler’s during the relevant time period. Id.  Based on those findings, the Court held that Foster Wheeler had demonstrated that it was entitled to litigate this case in a federal forum. Id.