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New Trend Emerging From Pending California Take-Home Exposure Decision?

Posted in Asbestos Litigation, California Courts, Litigation Trends, Toxic Tort

ffonseca_articleCalifornia has become a hub for asbestos litigation.  Its plaintiff-friendly law and juries have attracted plaintiffs from both California and across the country.  A case currently pending in the Supreme Court of California concerning whether a duty is owed to a plaintiff who alleges “take-home” asbestos exposure could have a major impact on whether California becomes an even greater hotbed for asbestos litigation.  Should the Court impose a duty on an employer for “take home” exposures, this expansion of an employer’s duty is likely to lead to increased asbestos filings as plaintiffs seek out attractive jurisdictions based on substantive legal doctrine.

Recently, the Supreme Court of California heard oral arguments in coordinated “take-home” asbestos cases. In both cases, at issue is whether an employer owes a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing.

In Kesner v. Superior Court, 226 Cal.App.4th 251 (2014), plaintiff, the nephew of a brake manufacturer’s employee, alleged that he developed mesothelioma as a result of exposure to asbestos from his uncle’s dirty and dusty clothing during frequent visits to his uncle’s home. In finding that the brake manufacturing company employer owed plaintiff a duty of care, the court found that “[a]s a general matter, harm to others from secondary exposure to asbestos dust is not unpredictable.” Kesner 226 Cal.App.4th at 259. Further, the harm “from a lack of precautions to control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable.” Id.  As for employers, the court found that “extending the duty of care to [an employee’s household members or long term occupants of a residence] does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited number of persons.”  Id. at 261. Thus, the court not only imposed a duty on an employer for “take home” exposures, it extended a duty to any guest that frequents an employee’s home.  It is important to note, however, that despite the fact that plaintiff claimed that he was exposed to asbestos through his uncle’s clothing, plaintiff’s claim was premised on a theory of products, not premises, liability.

That distinction is important, as a month later a different appellate court ruled against extending a duty of care based on “take home” exposure in the context of a case alleging premises liability. In Haver v. BNSF Railway Co., 226 Cal.App.4th 1104 (2014), the heirs of an employee’s deceased wife claimed that she developed mesothelioma as a result of exposure to asbestos from the clothing her husband wore home while employed by the defendant company. Deciding not to follow the earlier Kesner decision, the Haver court distinguished the two cases by pointing out that Kesner was a products case while Haver involved allegations of premises liability. Importantly, though, the court noted that courts should be wary of the consequences of extending employers’ liability too far. Id. at 1110.

A decision by the California Supreme Court which extends a duty to the family and/or guests of an employee is likely to result in a huge uptick in asbestos claims filed in California, as plaintiffs look for favorable jurisdictions in which to bring their cases.  That is what has occurred in Illinois, where the Illinois Supreme Court upheld the appellate court’s reversal of an order granting an employer’s dismissal based on the lack of a duty to an employee’s spouse, and allowed plaintiff to re-plead foreseeability.  See Simpkins v. CSX Transp., Inc., 2012 Ill. 110662.  Conversely, multiple jurisdictions, such as Georgia, have shut the forum shopping door by holding that employers and premises owners owe no duty to a member of a household injured by take home exposure to asbestos. CSX Transp., Inc. v. Williams, (2005) 278 Ga. 888.  

Should the Supreme Court of California expand the scope of an employer’s duty to include “take home” exposure, venue selection flexibility and favorable new legal doctrine may very well cause a seismic shift in asbestos filing activity, leaving California at the epicenter.


About the Author

Freddy Fonseca is an associate with Manion Gaynor & Manning and an FAA licensed airframe and power plant technician. Clients have come to rely on Freddy for his eight-year career as an aircraft maintenance technician, knowledge of federal aviation regulations and airport operations, and enthusiasm for aviation, to defend toxic tort and products liability aviation cases.  Prior to attending law school, Freddy was an aircraft technician for a major airline performing engines changes, sheet metal repairs, brake changes, and avionics and systems troubleshooting.  Utilizing his aviation experience, he brings a unique practical perspective to his civil litigation law practice.

Court Rules Monsanto Roundup Cases to Stay in Delaware

Posted in Delaware Courts, Litigation Trends, Products Liability, Toxic Tort

de-courtJudge Vivian L. Medinilla of the Delaware Superior Court recently denied defendant Monsanto Company’s motion to dismiss on the basis of forum non conveniens (“FNC”) in Barrera v. Monsanto Company.  This ruling, along with a similar ruling issued by Judge Andrea L. Rocanelli one day prior in Gilchrist v. GlaxoSmithKline, LLC, reaffirms and provides new strength to Delaware’s long-standing precedent of offering great deference to a plaintiff’s choice of forum and requiring a defendant to establish “overwhelming hardship” in order to dismiss a case on FNC grounds.

In Barrera, the Court considered the claims of three Plaintiffs alleging their cancers were caused by Monsanto’s glyphosate pesticide known as Roundup.  The case’s only connection to Delaware was Monsanto’s status as a Delaware corporation (although Monsanto’s principle place of business is in Missouri).  None of the Plaintiffs lived in Delaware or alleged any exposure to Roundup in Delaware.  Rather, Plaintiffs alleged exposure to Roundup in Michigan, New York, Oregon, Texas, Virginia, and Washington.  Monsanto therefore asserted that Plaintiffs’ claims would be more properly adjudicated in the respective jurisdictions of their alleged exposures and moved to dismiss the Delaware action on FNC grounds.

In analyzing Monsanto’s motion, the Barrera Court considered the following six factors, known as the “Cryo-Maid” factors, which Delaware Courts have long relied upon in examining FNC motions:

  1. The relative ease of access to proof;
  2. The availability of compulsory process for witnesses;
  3. The possibility of viewing the premises;
  4. Whether or not Delaware law will be applied;
  5. The pendency or nonpendency of similar actions in another jurisdiction; and
  6. All other practical problems that would make the trial of the case easy, expeditious, and inexpensive. Barrera, at 12-13.

In considering all of the factors as a whole, the Court concluded an overwhelming hardship did not exist.  Although the relevant proof, witnesses, and premises (factors 1-3) mostly lie outside of Delaware, the Court found  obtaining such evidence was not a hardship on Monsanto given the technology available in today’s global age.  The Court also noted that it routinely applies other states’ laws (factor 4) and that no other action was currently pending in another jurisdiction (factor 5).  The Court found that the “other practical problems” sixth factor weighed in Monsanto’s favor, but nevertheless concluded that this single hardship was insufficient to justify dismissal, stating:

It may be true that there are more appropriate or convenient forums to litigate Plaintiffs’ claims.  Yet to prevail on this FNC motion to dismiss, Defendant is nonetheless required to demonstrate with particularity that this is “one of those rare cases where the drastic relief of dismissal is warranted” because Defendant will suffer overwhelming hardship if forced to litigate here.  Defendant has not demonstrated that this is one of those rare cases.  Barrera, at 22.

The Barrera ruling takes on added significance given that Delaware’s FNC jurisprudence had come under some question of late after a pair of decisions,  Martinez v. E.I. DuPont de Nemours & Co., Inc. in the Delaware Supreme Court and Hupan v. Alliance One International, Inc. in the Delaware Superior Court, surprisingly resulted in a dismissal of claims under FNC grounds.  However, as Judge Medinilla noted in her Barrera opinion, both of those cases are distinguishable from Barrera in that each involved injuries that occurred outside the United States and required the application of foreign countries’ laws that were not written in English.  At bottom, FNC still does not appear to be a successful defense in toxic tort cases involving alleged exposures confined to the United States.

About the Authors

William B. Larson, Jr. is an associate in the firm’s Delaware office. His civil litigation practice focuses on toxic tort and products liability litigation as well as corporate and commercial litigation in Delaware courts.  Outside Delaware, in asbestos litigation, Bill serves on two of MG&M’s national coordinating counsel teams.  He currently serves as assistant regional coordinating counsel for one company and coordinating counsel in several jurisdictions for another company.

Ryan W. Browning is an associate in the firm’s Delaware office. His civil litigation practice focuses on toxic tort and products liability litigation as well as corporate and commercial litigation in Delaware courts. Prior to joining MG&M, Ryan was an associate with one of Delaware’s leading law firms, where he represented large corporate defendants in all stages of complex commercial and corporate litigation.


Rhode Island Court Upholds Daimler to Dismiss Claims Against Foreign Corporation for Lack of Personal Jurisdiction

Posted in Asbestos Litigation, Complex Torts, Litigation Trends, Rhode Island Courts

Lady JusticeOn October 13, 2016, Presiding Justice Alice B. Gibney of the Rhode Island Superior Court ruled on Defendant Dana Companies, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction pending in the case of Harold Wayne Murray and Janice M. Murray v. 3M Company, et al., granting the defendant’s motion to dismiss upon finding that the court lacked sufficient minimum contacts to exercise personal jurisdiction – either general or specific – over the defendant. With this ruling, Rhode Island joins a growing list of jurisdictions that have applied the United States Supreme Court’s standard passed down in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

The Murray case was filed in Providence Superior Court, and involves a Tennessee resident alleging he developed mesothelioma as a result of exposure to asbestos through his work with and around numerous defendants’ products over the course of his lifetime, predominantly at locations in Tennessee and Virginia. The complaint filed in Murray named hundreds of defendants who allegedly manufactured, sold, or supplied asbestos or asbestos-containing products to which Mr. Murray was allegedly exposed, including Dana Companies, LLC (“Dana”). Dana subsequently moved to dismiss the plaintiff’s claims on the grounds that a Rhode Island court’s exercise of jurisdiction, either specific or general, would violate its due process rights pursuant to the United State Constitution as well as the Supreme Court’s ruling in Daimler AG v. Bauman and its progeny.

Specifically, Dana asserted that as the plaintiff’s claims arose from alleged conduct that occurred entirely outside of Rhode Island with consequences transpiring outside of the State, the court’s exercise of specific personal jurisdiction was clearly improper. During his deposition taken near his home in Johnson City, Tennessee, Mr. Murray confirmed that he’d never lived in, worked in, received treatment in, or visited the State of Rhode Island. Absent a nexus between the plaintiff, the forum, and the litigation to permit the court’s exercise of specific personal jurisdiction, the court’s review of Dana’s motion to dismiss turned on the question of whether there was a basis to exert general jurisdiction over the defendant.

The court’s general jurisdiction analysis began by citing the Supreme Court’s decision in Goodyear Dunlop Tires Operations, S.A. v. Brown for the proposition that a court may reasonably exercise general jurisdiction over a foreign corporation where the corporation’s affiliations with the state are so continuous and systematic as to render them essentially “at home” in the forum state. 564 U.S. 915, 919 (2011); Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. and Placement, 326 U.S. 310, 317 (1945)).Upholding Daimler’s elaboration of this “at home” standard, the court reasoned that “with very limited exceptions, a defendant can customarily be subject to general jurisdiction in the state of its incorporation and the state of its principal place of business.” Going further, the court specified that evidence of a corporation’s continuous and systematic contact with a jurisdiction was relevant only to the determination of specific jurisdiction, and was not the proper ground for a finding of general jurisdiction.

Turning to the facts at bar, the court observed that both Dana and its predecessor were incorporated in Virginia with principal places of business in Ohio, with no offices, employees, or property in Rhode Island, and not registered or authorized to do business in Rhode Island. Dana reported no product sales to Rhode Island, though Dana’s predecessor reported historical sales to two Rhode Island businesses. However, such sales by Dana’s predecessor were reported to account for less than one-tenth of one percent of the company’s total annual net sales from 1997 to 2006. The court reasoned that under Daimler, “such contacts with the State of Rhode Island are insufficient to substantiate a finding of general jurisdiction over Dana.” The court went on to conclude that as Dana was not virtually ‘at home’ in the forum state for the purposes of general jurisdiction, the court lacked both general and specific personal jurisdiction over the defendant.

Beyond its significance for the extension of Daimler, the Murray ruling is instructive as to the proper exercise of the personal jurisdiction defense so as to avoid forfeiture.  In an attempt to avoid the constitutional constraints of personal jurisdiction, the plaintiff’s opposition argued that Dana forfeited its personal jurisdiction defense by attending four days of the plaintiff’s deposition prior to filing its motion, then attending eleven days of deposition following the filing of its motion.  To inform its analysis of the question of forfeiture, the court focused on the “crucial” question of whether the party advancing the Rule 12 motion met the Rule’s underlying objective of eliminating unnecessary delay at the pleading stage. Citing Dana’s timely filing of its motion to dismiss for lack of personal jurisdiction thirty days after receipt of service of the plaintiff’s complaint, and its “limited and reasonable participation in discovery,” the court concluded that Dana did not forfeit its right to assert a motion to dismiss for lack of personal jurisdiction.

The Murray decision is merely the latest in a line of cases expounding upon the landmark Daimler decision, with much remaining to be determined about the limits of a forum’s exercise of personal jurisdiction over a foreign corporation. The full decision can be read here.

About The Authors

Carolyn Riggs is an Associate in the firm’s Products Liability & Complex Tort practice where she focuses on insurance defense and toxic tort litigation. In her career, Carolyn has represented corporate clients in all phases of civil litigation in both state and federal court. She has defended clients against a variety of claims, including negligence, breach of warranty, failure to warn, wrongful death, breach of fiduciary duty, and consumer protection violations.

Brian Gross is a Partner in the firm and has extensive experience in a broad spectrum of litigation, including complex product and food liability matters, toxic tort and environmental litigation, pharmaceutical and medical device litigation, business and commercial disputes, and corporate and shareholder litigation.

LA Supreme Court Ruling a Sweet One for Insurer

Posted in Complex Torts, Employment Litigation

American_Sugar_Refining_Arabi_1913_PostcardRecently, the Louisiana Supreme Court in Arceneaux et al. v. Amstar Corp. et. al, 2015-0588 (La. 9/7/16, 1) decided that, in long latency disease cases, an insurer’s payments of defense costs may be prorated when the insurer’s occurrence-based policy was effective only during part of the plaintiffs’ exposure years.

Plaintiffs in Arceneaux alleged hearing loss from occupational noise exposures at American Sugar Refining, Inc.’s (“American Sugar”) facility in Arabi, Louisiana. Id. at 1-2. The approximately one hundred plaintiffs’ exposures occurred between 1941 – 2006. Id. at 2. Continental Casualty Company (“Continental”) issued eight general liability policies to American Sugar, effective from March 1, 1963 – March 1, 1978. Id. Each policy contained bodily injury exclusions for injuries that American Sugar employees experienced in the course and scope of their employment. Id. Importantly, in the last policy, the exclusion was deleted by special endorsement. Id. That endorsement was effective on December 31, 1975, and provided bodily injury coverage through March 1, 1978, for a total of twenty-six months. Id.

American Sugar brought a third-party demand against Continental alleging that Continental’s duty to defend required a complete defense in accordance with the policy, even if some of the plaintiffs’ claims fell outside of the coverage period. Id. Continental asserted that defense costs should be prorated amongst the insurers, and periods of non-coverage should be borne by the insured. Id. Particularly, Continental maintained that a complete defense was improper because its policies only covered twenty-six months of the alleged sixty-year exposure period.  Id.

Prior to assessing the merits of Continental’s argument, the Court distinguished an insurer’s duty to defend from its duty to indemnify. Id. at 5. The duty to defend “arises whenever the pleadings against the insured disclose even a possibility of liability” Id. (emphasis added). In contrast, an insurer’s duty to indemnify in long latency disease cases requires liability “to be prorated among insurance carriers that were on the risk during periods of exposure to injurious conditions” Id. at 5-6 (citing Norfolk S. Corp. v. California Union Ins. Co., 2002-0369, pp. 42-43 (La. App. 1. Cir. 9/12/03), 859 So.2d 167, 197-98, writ denied, 2003-2742 (La. 12/19/03), 861 So.2d 579). While Louisiana courts determined that proration is proper in regard to an insurer’s duty to indemnify, no such precedent existed as to its duty to defend. Id. at 6-7. Thus, prior to Arceneaux, insurers and insureds had no defined method to allocate defense costs in latent disease lawsuits.

At the outset of its analysis, the Court discussed two nationwide approaches to allocating defense costs in long latency disease cases: the pro rata allocation, and joint and several allocation. Id. at 7. “Under pro rata allocation, insurance carriers of triggered policies are responsible for a share of defense costs based at least in part on the period of time they are on the risk.” Id. If an insured has periods of non-coverage after defense costs are divided, then an insurer only pays its pro rata share. Id. Conversely, joint and several allocation allows the insured to choose one insurer “that is on the risk” and hold it liable “for the entire loss up to the policy limits.” Id. Defense costs are divided amongst insurance carriers, even for periods where no coverage was in place. Id. Under this scheme, the selected insurer bears the burden of seeking contribution from other insurers. Id. Consequently, the treatment of uninsured time periods is the most significant difference between these two methods. Id. (citing Owens–Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 650 A.2d 974, 989 (1994)).

Ultimately, the Court implemented the pro rata approach to allocate defense costs because Continental’s policy language explicitly limited coverage to bodily injuries during eighty-six percent[1] of the policy period. Id. at 12 (emphasis added). Since neither party “could reasonably expect that the insurer was liable for losses that occurred outside the policy coverage period,” pro rata allocation was proper. Id. at 13 (citing Sec. Ins. Co. of Hartford v. Lumbermens Mut. Cas. Co., 826 A.2d 107, 121 (Conn. 2003)). Furthermore, “the pro rata allocation scheme is an equitable system that can be readily used in long latency disease claims in Louisiana” to clearly apportion defense costs, and promote risk spreading. Id. at 13-4. However, the Court importantly noted that “[t]he manner in which defense costs are to be allocated [in a long latency disease lawsuit] may need to be determined on a case by case basis, according to the precise language of the insurance contract at issue” Id. at 13 (emphasis added).

Despite the Court’s guidance, some questions remain unanswered. For instance, in latent injury claims, policies in place at the time of the first injurious exposure have often been discarded “under the mistaken notion that they were no longer in effect.” Mielenhausen, Thomas, Missing Policies Proof – Turning Burden Into Opportunity, ABA Section of Litigation Insurance Coverage Litigation Committee CLE Seminar, March 3-5, 2011. Several sources may be used by a defendant to prove the existence and terms of these insurance policies, including testimony from the “comptroller who purchased the insurance [and] the agent who sold the insurance,” along with insurance declaration pages, certificates of insurance, policy index cards, reinsurance records, and publications from insurance industry organizations. Id. Moreover, these sources may include the insurer’s precise policy language for bodily injury coverage in place during a particular policy period. Id. Thus, if testimony and/or documents evidence the appropriate policy language, it appears that an insurer could benefit from the Arceneaux ruling.[2]

Notably, dicta and the ultimate ruling in Arceneaux seem to conflict. While Arceneaux provides that “the pro rata allocation scheme is an equitable system that can be readily used in long latency disease claims in Louisiana,” the Court’s limited ruling was specific to the particular language of an insurance policy in a long latency disease lawsuit. Arceneaux at 13-4. Currently, it seems that Arceneaux will only be applied to cases with similar facts. However, Louisiana courts could extend the Arceneaux ruling to parol evidence of insurance policies that accurately depict policy language.

[1] As discussed supra, Continental issued eight policies to American Sugar from March 1, 1963 – March 1, 1978, totaling to fifteen years, or one hundred eighty months. Because Continental’s policies only provided coverage for bodily injury to American Sugar’s employees in the course and scope of their employment for twenty-six months, there were one hundred fifty-four months where such coverage was excluded. Thus, eighty-six percent of the entirety of policies issued to American Sugar contained exclusions for bodily injury to employees of American Sugar.

[2] Similar to other jurisdictions, Louisiana requires that only an original document may be used to prove its existence and contents contained therein. See La. CE Art. 1002. However, Louisiana allows a party to introduce parol evidence to establish the existence and contents of an insurance policy in a long latency disease lawsuit after that party has proved by a preponderance of the evidence “that the instrument is either lost or otherwise unavailable” (See Hoerner v. ANCO Insulations, Inc., 2000-2333 (La.App. 4 Cir. 1/23/02, 39), 812 So.2d 45, 73-4, writ denied, 2002-0935 (La. 6/21/02), 819 So.2d 1023, and writ denied, 2002-0965 (La. 6/21/02), 819 So.2d 1023, and writ denied, 2002-0967 (La. 6/21/02), 819 So.2d 1023, and writ denied, 2002-0972 (La. 6/21/02), 819 So.2d 1024).

Picture Worth More Than a Thousand Words to Plaintiff in Rhode Island Case

Posted in Employment Litigation


Arguably the two most significant challenges for any employer involve hiring and terminating employees. In both processes, employers are faced with substantive and administrative concerns.  On the substantive level, employers routinely ask themselves questions such as: Will the applicant be a good fit with office culture? Did the employee meet core competencies? Likewise—and perhaps more daunting—are the employer’s administrative tasks, which range from submitting completed I-9 Forms and setting up email accounts to providing COBRA notices and collecting company issued devices. To be sure, a great deal of employment litigation stems from the way in which employers tend to administrative affairs upon an employee’s separation.

In a case of first impression for Rhode Island, the state’s Superior Court recently addressed the legal ramifications associated with an employer’s continued maintenance of a website profile and photographs of a former employee. The plaintiff in Rompf v. Intern. Tennis Hall of Fame, Inc., was employed by the International Tennis Hall of Fame as its Head Tennis Professional. 2016 WL 4534211 (R.I. Super. Ct., Stone, J., 2016). In that role, Rompf oversaw the organization’s educational and instructional programs until the Hall of Fame dismissed her on November 6, 2014. Id. at *1. After Rompf’s termination, the Hall of Fame allegedly “continued to identify Rompf in her previous role and used photographs of her on its website until the middle of May 2015.” Id. Subsequently, Rompf sued her former employer. The plaintiff asserted, in part, that the Hall of Fame misappropriated her “name and likeness for its own purposes and benefit without her permission or approval” to achieve a commercial advantage while simultaneously violating her right to privacy pursuant to Rhode Island General Law § 9-1-28.1. Id.

The Hall of Fame returned Rompf’s serve by filing summary judgment. The organization argued that “Rompf had no expectation of privacy in her name and likeness because it was used in conjunction with her employment.” Id. at *2. That is, the Hall of Fame maintained that Rompf’s suit was meritless because one cannot have a privacy interest in activities that relate to one’s employment. Id. at *4. The court found, however, that the Hall of Fame failed to hit a winner in its summary judgment motion. It reasoned that Rompf would advance to the next set because: (1) Rompf’s Complaint established that she did not consent to the use of her name and image following termination; (2) there was a question of fact as to whether the Hall of Fame used her image in a false light by publishing the existence of a relationship that no longer existed; and (3) a jury would need to determine whether the Hall of Fame used Rompf’s image to “entice individuals to utilize the services she offered as the Head Tennis Professional.” Id.

Although Rompf’s legal match is far from over, the results of the court’s summary judgment ruling are profound for those supervisors and human resource professionals charged with navigating an employee’s separation. In addition to calculating final paychecks, conducting exit interviews, and cancelling benefits, employers would be wise to inspect their media footprint within a reasonable time of an employee’s departure. For example, employers who wait to update their websites until new hires are in place risk misappropriating the former employee’s image as well as offending his or her statutory right to privacy.




Causation and Bare Metal Defenses Prove Effective as Asbestos Liability Shield

Posted in Asbestos Litigation, Products Liability, Toxic Tort


A recent ruling in an asbestos-related case provides an important lesson for defendants in framing their defenses.

In Malone v. Air & Liquid Systems, (Report and Recommendation, C.A. No. 14-406-GMS-SRF (D. Del. Aug. 29, 2015)), a mesothelioma case pending in the U.S. District Court for the District of Delaware which involves allegations of asbestos exposure to several products at Ingalls Shipyard in Pascagoula, Mississippi, the court recently found summary judgment was appropriate for three defendants based on lack of evidence to support causation and the “bare metal defense.”  The court, however, rejected the defendants’ other arguments based on the “learned intermediary doctrine” and the “government contractor defense.”

U.S. Magistrate Judge Sherry R. Fallon confirmed that the well-established “frequency, regularity, and proximity” causation standard adopted by Mississippi courts in asbestos actions is a uniform standard regardless of the alleged asbestos-related disease.  The court recommended granting summary judgment for three defendants – Cummins, Inc. (“Cummins”); CBS Corporation f/k/a Westinghouse Electrical Corporation (“CBS”); and Foster Wheeler Energy Corporation (“Foster Wheeler”).[1]  In the recommendation, the court noted that “Mississippi courts have not distinguished between different asbestos-related diseases when applying the frequency, regularity, and proximity test.”  The court found the Malones’ argument that the factors should be applied “less rigidly” in mesothelioma cases unavailing, and that plaintiffs did not meet their burden to prove causation with respect to these defendants’ products.

Cummins, CBS, and Foster Wheeler each moved for summary judgment asserting as an additional ground the “bare metal defense.”  The “bare metal defense” shields from liability companies that did not manufacture or distribute asbestos-containing components which were incorporated into the manufacturer’s product after its sale.  In recommending summary judgment for each defendant, the court substantially followed its prior ruling in Dalton v. 3M Co., 2013 WL 4886658 (D.Del.), where the court found that “it is reasonably likely that the Supreme Court of Mississippi would follow the majority of jurisdictions that have refused to find defendants liable for other manufacturers’ asbestos products.”  The court rejected plaintiffs’ argument that Dalton is inapplicable where the use of an asbestos-containing product in association with the defendant’s product was foreseeable, where the defendant did not require its use.

While the court granted judgment as a matter of law to all three defendants based on defendants’ causation and “bare metal” arguments, the court rejected CBS’ argument that it was entitled to summary judgment based on the “learned intermediary doctrine” and CBS’s and Foster Wheeler’s argument that each was entitled to summary judgment based on the “government contractor defense.”  The court rejected CBS’s “learned intermediary” argument because, despite the fact that if offered evidence that the United States Navy was aware of the potential hazards associated with asbestos, it “offer[ed] no facts . . .  to support whether Westinghouse reasonably relied on the Navy to warn users like Mr. Malone . . .”  With regard to the government contractor defense, the court held that a factual issue concerning whether military specifications cited by plaintiffs were applicable to the Westinghouse turbines at issue, and thus whether the Navy required Westinghouse to create asbestos warning labels, precluded summary judgment on the government contractor defense.

Based on the court’s decision in Malone, defendants should take solace in the rejection, yet again, of a plaintiff’s argument for a less stringent causation standard in mesothelioma cases and the confirmation that yet another court adopts the majority approach to the “bare metal defense.”  The ruling also, however, illustrates that defendants should expect a tough go of it when arguing the “learned intermediary doctrine” and “government contractor defense” at the summary judgment stage in this jurisdiction.

The entire Malone decision can be found here.

[1]       The parties had fourteen days from the date of the Report and Recommendation to file written objections with the court.  Because no party filed written objections within that time frame, it is likely the court will accept the Report and Recommendation as its opinion on the matter.

Massachusetts Appeals Court Upholds Judgment in Birth Control Patch Case

Posted in Massachusetts Courts, Pharmaceutical and Medical Devices
Massachusetts Appeals Court

Massachusetts Appeals Court

On September 21, 2016, the Massachusetts Appeals Court upheld the grant of summary judgment to Johnson & Johnson (“J&J”), the manufacturer of the Ortho-Evra birth control patch at issue in the case of Niedner v. Ortho-McNeil Pharmaceutical, Inc., No. 15-P-1272, 2016 WL 5106479 (Mass. App. Ct. Sept. 21, 2016).  In so doing, the Appeals Court held that J&J had a duty to warn the decedent, but that it adequately did so.

Neidner involved the death of 17-year-old Adrianna Duffy, which resulted from blood clots allegedly caused by the Ortho-Evra birth control patch worn by Ms. Duffy.  Plaintiff claimed that she and Ms. Duffy had not been adequately warned about the increased risk of developing blood clots to those who use the patch.

In June, 2009, Ms. Duffy and her mother met with Ms. Duffy’s doctor to discuss birth control options. Ms. Duffy specifically asked her doctor about the Ortho-Evra patch, as she had previously taken an oral birth control pill but now wanted an easier birth control method. Id. at *1. Ms. Duffy’s doctor prescribed her the patch after this meeting and informed Ms. Duffy and her mother of the risks associated with using the patch, including that of blood clots. The prescription package filled by Ms. Duffy came with an insert from the manufacturer (J&J), as well as a leaflet from the pharmacy at which the prescription was filled, both setting forth the risks associated with the patch, including heart attack, stroke, and blood clots. After approximately three months of use, Ms. Duffy collapsed and died from a massive bilateral pulmonary embolus. Id. at *1.

Ms. Niedner filed suit in October, 2010, alleging, among other things, that her daughter’s death was caused by her use of the patch and that J&J was liable for breach of warranty under the theories of design defect, failure to warn, and manufacturing defect. Id. at *1.  J&J filed a motion for summary judgment, arguing that the patch’s risks, including the increased risk of blood clots, was sufficiently disclosed. Id. at *1. A Superior Court judge agreed, allowing the motion, and plaintiff appealed.

Typically, a manufacturer has a duty to warn product users of dangers associated with the reasonably foreseeable use of its product.  Manufacturers of prescription drugs and medical devices are, however, generally excepted from that rule based on the “learned intermediary” rule, which provides that the manufacturer fulfills its duty by providing physicians with an adequate warning about the risks associated with its product. In these instances, the physician acts as the “learned intermediary” between manufacturer and consumer to ensure the patient understands the potential risks and benefits. In MacDonald v. Ortho Pharmaceutical Corp., however, the Massachusetts Supreme Judicial Court created a narrow exception to this rule for the manufacturer of oral contraceptives, which it held has a duty to directly warn not only medical professionals, but also the consumer, about the risks associated with birth control medications. Id. at *2. The Neidner court held that this same exception to the “learned intermediary” rule applies to birth control patches, such as the Ortho-Evra patch, and as such, J&J had a duty to warn Ms. Duffy directly of the risks associated with the use of the patch. Id. at *2.

The Appeals Court also held, however, that J&J had satisfied that duty.  It noted that the box of patches purchased by Ms. Duffy contained a pamphlet which explained the risks associated with its use and contained instructions to consult a physician concerning information contained in the pamphlet. Both Ms. Duffy and her mother read the insert, though neither then consulted with Ms. Duffy’s doctor. Among other topics, the pamphlet thoroughly discussed in multiple locations the risk of developing blood clots while using the patch, particularly in the lungs like those Ms. Duffy developed. Id. at *3. The Appeals Court found as a matter of law that the pamphlet adequately warned of the increased risk of developing blood clots that could result in death, and described these warnings as “plain, numerous, and comprehensive.” Id. at *4.

U.S. Court of Appeals Reverses Summary Judgment in Lung Cancer Asbestos Case

Posted in Asbestos Litigation, Products Liability, Toxic Tort

Lady JusticeOn September 13, 2016, the United States Court of Appeals for the Third Circuit partially reinstated a plaintiff’s claims that his decedent developed lung cancer as a result of asbestos exposure that he allegedly experienced from work in the vicinity of switchgear components manufactured by Westinghouse Electric Corporation, a predecessor to CBS Corporation.  In re: Asbestos Prods. Liab. Litig. (Frankenberger), — F.3d —-, 2016 WL 4750507 at *1 (3d Cir. 2016).


In Frankenberger, the plaintiff originally filed suit in the United States District Court for the Northern District of Indiana and the matter was subsequently transferred to the United States District Court for the Eastern District of Pennsylvania as a result of consolidation under a multi-district litigation (MDL-875).  Id. at *2.  Plaintiff alleged, via the decedent’s co-worker and expert testimony, that the decedent was exposed to asbestos as a result of: (1) maintenance performed on Westinghouse turbines that required the removal and installation of insulation that may have contained asbestos until 1973; and (2) maintenance and cleaning of Westinghouse switchgear that incorporated asbestos-containing components until approximately 1985.  Id.  Critically, plaintiff did not present evidence that the thermal insulation on the turbines to which he alleged the decedent was exposed was the original insulation supplied by Westinghouse or that Westinghouse supplied the insulation that was used to replace the original insulation.  Id.  In contrast, plaintiff produced evidence that the Westinghouse switchgear contained asbestos and released respirable fibers when cleaned and maintained.  Id.  Westinghouse moved for summary judgment arguing that plaintiff did not satisfy his burden of demonstrating that Decedent’s lung cancer was caused by exposure to Westinghouse products.  Id.  District Judge Robreno held that summary judgment was appropriate because there was no evidence that: (a) the decedent was exposed to asbestos-containing thermal insulation for which Westinghouse was responsible; and (b) the decedent was exposed to asbestos-containing dust from the Westinghouse switchgear.  Id. at *3.  Plaintiff appealed to the Third Circuit.  Id.


On appeal, the Third Circuit partially reversed the District Court and held that plaintiff presented evidence sufficient to present a question of material fact as to the decedent’s alleged switchgear exposure, but failed to demonstrate that Westinghouse was liable for the thermal insulation or even that the thermal insulation to which Decedent was allegedly exposed actually contained asbestos.  Id. at *4-5.  In analyzing plaintiff’s evidence, the Third Circuit applied Indiana’s causation standard, which requires that


A plaintiff . . . must produce evidence sufficient to support an inference that [the decedent] inhaled asbestos dust from the defendant’s product.  This inference can be made only if it is shown that the defendant’s product, as it was used during [the decedent’s] tenure at the job site, could possibly have produced a significant amount of asbestos dust and that the asbestos dust might have been inhaled by [the decedent].


Id. at *4 (internal citations omitted) (ellipsis in original).


In analyzing the plaintiff’s claims related to the switchgear, The Third Circuit held that summary judgment was inappropriate because the plaintiff presented evidence that: (1) Westinghouse manufactured the switchgear; (2) asbestos-containing components in the switchgear deteriorated over time, thereby releasing respirable asbestos fibers; (3) the cleaning and maintenance of the switchgear caused these fibers to be released into the atmosphere; and (4) the decedent was present at the worksite when such release occurred.  Id. at 5.  Consequently, the Court held that a reasonable juror could conclude that Decedent’s lung cancer was caused by exposure to asbestos from the Westinghouse switchgear.  Id.


While the Court held that summary judgment was inappropriate on the switchgear claim, it conversely held that the plaintiff had failed to satisfy his burden of establishing exposure to thermal insulation which Westinghouse manufactured, installed, or supplied.  Id. at 4.  Furthermore, the plaintiff did not establish that the thermal insulation actually contained asbestos when the decedent was proximate to that insulation’s removal and installation.  Id.  As a result, plaintiff’s claims of exposure from the turbines could not survive summary judgment.  Id.


Frankenberger presents an interesting contrast in the Court’s treatment of a product identification defense as opposed to a defense based on causation.  With regard to the Westinghouse turbines, the Court applied the “bare metal” or “replacement parts” defense in granting partial summary judgment, holding that plaintiff produced no evidence that any insulation around which decedent may have worked was original to the turbines or was later manufactured or supplied by Westinghouse.  Thus CBS could not be held liable for any potential asbestos exposure associated with the turbine insulation.


In contrast, Westinghouse did not have such a product identification defense to plaintiff’s claims concerning its switchgears and was forced to argue causation.  Frankenberger, along with the Third Circuit’s recent decision in Haas v. 3M Co., 613 Fed. Appx. 191 (3d Cir. 2015) (reversing district court’s grant of summary judgment based on the plaintiff’s provision of evidence of exposure to asbestos-containing products manufactured by the defendant), seems to demonstrate, however, that the Third Circuit is becoming increasingly reluctant to grant summary judgment on the basis of causation—instead, it is more likely to find that a question regarding causation is a material issue of fact that should be determined by the jury.


The plaintiff was represented by Robert G. McCoy of Cascino Vaughn law offices.  CBS was represented by Christopher G. Conley of Evert Weathersby & Houff.  The Third Circuit panel consisted of Circuit Judges McKee, Ambro, and Scirica, with Judge Scirica delivering the unanimous opinion.

Massachusetts Appeals Court Overturns Jury’s Verdict in Pelvic Mesh Case

Posted in Pharmaceutical and Medical Devices, Products Liability

Gavel_editOn September 13, 2016, the Massachusetts Appeals Court decided Albright v. Boston Scientific Corporation by vacating a jury’s verdict in favor of Boston Scientific Corporation (BSC) and remanding the matter to the Superior Court for retrial. No. 15-P-633, 2016 WL 4736686 (Mass. App. Ct. Sept. 13, 2016).

By way of background, the Plaintiff, Diane Albright, sued BSC alleging that she suffered serious injuries following a March 2010 surgery in which she had a Pinnacle Pelvic Floor Repair device implanted to correct a pelvic organ prolapse. Id. at *1. That is, after Ms. Albright’s surgery she “developed painful bladder syndrome and other complications” due to the implant’s degradation. Id. at *2. BSC designed, manufactured, and marketed the device in question. Subsequently, Ms. Albright tried her case before a Middlesex County jury, which found in BSC’s favor with respect to Ms. Albright’s defective design and inadequate warning claims.

The plaintiff appealed arguing that the trial justice erred when she (1) excluded from evidence a medical application caution found within a 2004 and 2007 Material Safety Data Sheet (MSDS) concerning the polypropylene material used to form the mesh within the device and (2) prevented the jury’s consideration of two 2012 FDA letters to BSC. Id. at *1. The first letter ordered BSC to conduct a postmarket surveillance study of its Pinnacle devices. In its second letter to BSC, the FDA agreed to the postmarket surveillance study’s suspension following receipt of BSC’s representation that it planned to cease manufacturing and marketing the implant in the United States. Id. at *7.

After reviewing the trial court record, the appeals court agreed with the plaintiff’s position. It reasoned that the medical application caution “was relevant, material evidence for the limited purpose of showing that BSC, which had received the MSDS well before 2009, had notice or knowledge of the content of the caution.” Id. at *6. Thus, the medical application caution was not hearsay for the sole purpose of showing that BSC had notice or knowledge of the foreseeable risks associated with the Pinnacle implant. Id. Likewise, the appeals court concluded that the two FDA letters were admissible “for the limited purpose of cross-examining BSC’s witnesses, who had testified, without qualification, that the Pinnacle device was safe as of the time of trial.” Id. at *7. Such a limited purpose use of the FDA letters, the court found, would constitute reasonable cross-examination to show bias or to rebut BSC witness opinion testimony.




Legal Ethics 2.0: Massachusetts Makes Changes to its Rules of Professional Conduct – Outsourcing Client Work

Posted in Massachusetts Courts, Professional Liability

File Cabinet_iStock_000022952167Small(Purchased 8-4-14)Last summer the Massachusetts Supreme Judicial Court (SJC) made several significant changes to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.). Previous posts highlighted some of these changes, including to the Rules pertaining to jury contact following trial and the duty to remain current on technologies which impact the practice of law. The Rule discussed herein relates to a trend often seen in the service sector, and which has over the past years become more prevalent in the legal sector – outsourcing.


According to the American Bar Association, “globalization, technology-driven efficiencies developed and utilized by many providers of outsourced services, and the demand by clients for cost-effective services” are some of the factors that have contributed to the significant growth of outsourcing. Many firms have taken advantage of (or been directed by their clients to take advantage of) lower rates charged by companies which conduct document reviews, provide legal transcriptions, conduct research and process patents. These companies are often located outside of the United States in countries such as India and Malaysia. Several authors have noted that these efficiencies can be attractive to firms by enabling them to better compete for large matters without fear that they lack adequate resources to perform legal work and to clients by bolstering the affordability of legal services.

When lawyers outsource activities traditionally performed by them or their staff, several ethical considerations are implicated, including the protection of privileged and otherwise confidential information, and of course, quality control. See e.g., Mass. R. Prof. C. Rules 1.1 (competence); 1.2 (allocation of authority); 1.4 (communication with client); 1.6 (confidentiality); 5.4(a) (professional independence of the lawyer), and 5.5(a)(unauthorized practice of law).

To protect clients from inadequate representation the American Bar Association provides detailed guidance on the retention of lawyers and non-lawyers from outside the firm setting. See Model Comments 6 and 7 to ABA Model Rule 1.1 and Model Comments 1-4 to Model Rule 5.3. The SJC, clearly concerned about the evolution of lawyering and the growing practice of outsourcing client work followed suit, and adopted the following comments to Mass. R. Prof. C. 5.3:

3. A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include retaining an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. . . .; and

4. Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

To satisfy the Rules of Professional Conduct, Massachusetts attorneys must properly vet the recipients of outsourced work to ensure they have adequate security measures in place to guard against the release of confidential information. They must also maintain close oversight of the work being performed to ensure that it is carried out in a manner consistent with the high standards set out by the Rules.

For more information, please contact us. To read the revised rules visit: