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Supreme Judicial Court’s Decision in Barbuto vs. Advantage Sales & Marketing LLC and Another is Contrary to Federal Law, Marks Significant Departure from Rulings in Other States

Posted in California Courts, Employment Litigation, Litigation Trends, Massachusetts Courts
This article is Part Two of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. Read Part One here.

The Supreme Judicial Court’s ruling in Barbuto marks a significant departure from case law arising under the medical marijuana laws of other states, and in particular, the way in which other courts have interpreted conflicting federal law related to the possession, use, cultivation or sale of marijuana.

The Federal Controlled Substances Act (“FFCSA”) prohibits any and all use of marijuana.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances, which includes all Schedule I drugs).  All elements of marijuana are encompassed within the FCSA’s definition of marijuana.  See 21 U.S.C. § 802(16) (“The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”).  Significantly, the FCSA does not provide an exception for the use of medical marijuana or medical marijuana derivatives. Ergo, the use of medical marijuana and all associated materials, in any form whatsoever, are illegal under federal law.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances for all Schedule I drugs).

The FCSA’s blanket proscription of marijuana also carries over to federal disability law. The FCSA precludes employees (regardless of whether they are qualifying medical marijuana patients under state law) from commencing discrimination claims under federal law for adverse actions taking by employers as a result of medical marijuana use.  See 42 U.S.C. § 12210(a) (2012) (“For purposes of this chapter, the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”); see also 21 U.S.C §§ 802(16), 812(c), 844(a) (establishing illegality of marijuana in any form).  If not for this clear federal embargo on such claims, employees would most likely seek relief through the Americans with Disabilities Act (“ADA”).  See 42 U.S.C. § 12112(b)(5)(B) (2012) (creating private cause of action arising under federal law for an individual with a disability who is denied “employment opportunities and is an otherwise qualified individual”).

The ADA provides a federal claim for disabled employees who are discriminated against in their place of employment because of a disability.  See 42 U.S.C. § 12102 (2012) (defining “disability” as a “physical or mental impairment that substantially limits one or more major life activities …; a record of such an impairment” or “being regarded as having such an impairment”).  Despite these broad protections, the ADA unambiguously reads that an “individual with a disability” does not include those “currently engaging in the illegal use of drugs.”  42 U.S.C. § 12210(a).  Moreover, the ADA defines the “illegal use of drugs” as “the use of drugs, the possession or distribution of which is unlawful under the [FCSA].”  42 U.S.C. § 12210(d).  The ADA and the FCSA therefore preclude employees terminated because of their use of medical prescribed marijuana from bringing a workplace discrimination claim under the ADA.  Accordingly, those employees must resort to wrongful termination and discrimination claims under state law.  

Federal marijuana policy has also created a difficult grey area under state law for employees terminated or discriminated against due to their status as a qualifying medical marijuana patient.  Even in states that have enacted medical marijuana laws to protect the health, safety, and welfare of their citizens, many courts have interpreted federal law to deny employees any legal remedy for adverse employment actions resulting from medical marijuana use.  See e.g., James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012)  (holding that doctor-supervised marijuana use was federally prohibited use of drugs that was not covered by ADA’s supervised use exception; thus, exception did not protect medical marijuana users who claimed to face discrimination on basis of their marijuana use); Coats v. Dish Network, L.L.C., 303 P.3d 147, 152 (Colo. App. 2013) (holding that state-licensed medical marijuana use is not a “lawful activity” under the Colorado employment discrimination law as a “lawful activity” must be permitted by, and not contrary to, both state and federal law; conversely, an activity that violates federal law but complies with state law cannot be “lawful” under the ordinary meaning of that term); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518, 536 (Or. 2010) (holding that the Oregon Medical Marijuana Act was preempted by the Federal Controlled Substances Act and, therefore, the employee’s use of medical marijuana was illegal and was not entitled to accommodation); Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1230 (D.N.M. 2016), appeal dismissed (Mar. 25, 2016) (holding that Federal Controlled Substances Act preempted interpretation of New Mexico’s Compassionate Use Act (CUA), which authorized use of medical marijuana, and the New Mexico Human Rights Act as requiring employer to accommodate employee’s use of medical marijuana, where CUA provided only limited state law immunity from prosecution for individuals engaged in state law-compliant medical marijuana use, while CSA criminalized marijuana, and affirmatively requiring employer to accommodate employee’s illegal drug would force employers to permit conduct expressly prohibited by CSA); Carlson v. Charter Commc’ns, LLC, No. CV 16-86-H-SEH, 2017 WL 3473316, at *2 (D. Mont. Aug. 11, 2017) (holding that there was clear conflict preemption as between Montana’s Medical Marijuana Act and the Drug-Free Workplace Act, which the defendant employer was required to comply with as a federal government contractor, because the employer could not simultaneously permit marijuana use consistent with Montana’s medical marijuana law and at the same time ensure a drug-free workplace as defined under the DFWA); Haas III et al., Labor and Employment Law 67 Mercer L. Rev. 91, 93 (2015) (“From the few cases decided on this issue around the United States, the prevailing argument seems to be that as long as marijuana is illegal under federal law, employers will not have to accommodate for it, and it can be considered a cause for termination.”).

Most courts have been loath to allow even state law causes of action arising from adverse actions taken as a result of an employee’s use of medical marijuana.  See e.g., Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 436-37 (6th Cir. 2012) (holding that the Michigan Medical Marijuana Act does not restrict a private employer’s ability to discipline employees for medical marijuana use and, therefore, the Act could not support a wrongful termination claim); Ross v. RagingWire Telecomms., Inc., 174 P.3d 200, 208 (Cal. 2008) (holding that the California Fair Employment and Housing Act does not require an employer to accommodate an employee who used medical marijuana and that an employee who is terminated for authorized medical marijuana use cannot state a cause of action for termination in violation of public policy); Johnson v. Columbia Falls Aluminum Co. LLC, No. DA 08-0358, 2009 WL 865308, at *4 (Mont. 2009) (holding that an employee who was terminated for use of medical marijuana could not state an express or implied cause of action arising under the Montana’s Medical Marijuana Act); Roe v. TeleTech Customer Care Mgmt., 257 P.3d 586, 594-95 (Wash. 2011) (holding that the Washington State Medical Use of Marijuana Act does not proclaim sufficient public policy to support a cause of action for wrongful termination and that the Act does not regulate the conduct of a private employer or protect employees from discharge for authorized medical marijuana use).

Some courts also have held that the state medical marijuana laws in question do not regulate private employment action. See Swaw v. Safeway, Inc., 2015 WL 7431106, *1 (W.D. Wash. 2015) (“Washington law does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if medical marijuana is being used off site to treat an employee’s disabilities, and the use of marijuana for medical purposes remains unlawful under federal law.”); Stanley v. County of Bernalillo Com’rs, 2015 A.D. Cas. (BNA) 187129, 2015 WL 4997159, *5 (D.N.M. 2015) (collecting cases).

A minority of courts has held that state medical marijuana laws provide employment protection: Maine’s medical marijuana act, for example, “provides for a private right of action for qualifying patients and primary caregivers who have been discriminated against by their employers[.]” Savage v. Maine Pretrial Services, Inc., 58 A.3d 1138, 1143 (Me. 2013).  Significantly, Maine’s law does not create a private right of action for employees who apply for licenses to operate medical marijuana businesses.
Decisions in other jurisdictions that have denied a state law cause of action have sometimes relied on distinctions in those states’ laws.  For example, the Superior Court’s decision in Barbuto, which was reversed, referenced two of the above-cited cases in other jurisdictions as support for its holding that Chapter 151B of the Massachusetts Medical Marijuana Act (“MMMA”) does not require an employer to accommodate an employee’s use of medical marijuana.  See Ross v. RagingWire Telecommc‘ns, 174 P.3d 200 (Cal. 2008); Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).  However, the medical marijuana statutes reviewed in Ross and Coats are best characterized as “pure decriminalization” statutes, in contrast to the MMMA, which contains broad provisions that affirmatively protect patients. In Garcia, 154 F. Supp. 3d at 1227-28, the United States District Court for the District of New Mexico recognized the distinction between pure decriminalization statutes and those that provided express or implicit protections to employees by emphasizing that “[w]hile some states, such as Connecticut and Delaware, have included within their medical marijuana acts affirmative requirements mandating that employers accommodate medical marijuana cardholders, New Mexico’s medical marijuana act has no such affirmative language.”  However, it is important to note, as stated supra, that the Court also found that such a cause of action was also preempted by the Federal CSA.  But see Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-CV-01938(JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017) (stating that Connecticut’s Palliative Use of Marijuana Act (“PUMA”) had an express anti-discrimination provision protecting against employment based discrimination on the basis of the medicinal use of marijuana and that there was no Federal preemption).  The Noffsinger decision will be discussed in greater detail in Part 5 of this series.

Unlike Massachusetts’ own decriminalization statute, the MMMA creates a comprehensive regulatory and licensing scheme that controls the sale and possession of marijuana; the necessity of physician recommendation; protocols for testing, and the ability for patients to cultivate.  St. 2012, c. 369, § § 1, 3, 8-9, 11 & 13.  Significantly, the MMMA provides that patients “shall not be subject to arrest or prosecution, or civil penalty” for the medicinal use of marijuana, and “[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” Id. at § 4 (emphasis added).

By contrast, the operative provision of California’s medical marijuana law that was at issue in Ross reads, in connection with patients, as follows:

(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.


Cal. Health & Safety Code § 11362.5  This section of the California Code decriminalizes specific conduct for qualifying patients with a recommendation or approval to engage in such conduct by a physician. However, Section 11362.5 lacks a provision that affirmatively protects qualifying medical marijuana patients from the denial of any other rights afforded by state law based on the decriminalized conduct. Thus, while the Ross Court held that Section 11362.5 did not protect medical marijuana patients from workplace discrimination, the Barbuto Court erred in relying on Ross, because the California decriminalization statute is not analogous to the MMMA.  The MMMA expressly provides protections to qualifying medical marijuana patients from the denial of any rights or privileges based on activities permitted under the MMMA.

The Superior Court’s reliance on Coats was similarly misplaced, and for essentially the same reason—the text of the relevant Colorado Constitutional Amendment (Article 18, S 14) makes clear that the amendment provides for decriminalization and nothing more. The provisions of the Colorado Constitutional Amendment allowing for the medical use of marijuana state as follows:

(2)(a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary care-giver charged with a violation of the state’s criminal laws related to the patient’s medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:

(I) The patient was previously diagnosed by a physician as having a debilitating medical condition;

(II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and

(III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section.

(b) Effective June 1, 1999, it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.


Colo. Const. art. XVIII, S 14.


Similar to the California statute already discussed, Article 18, Section 14 of the Colorado Constitution lacks a provision protecting patients from the denial of rights or privileges based on medical marijuana use.  Article 18, Section 14 affords only an affirmative defense to specific criminal charges, and decriminalizes the medical use of marijuana for registered patients and caregivers. The medical marijuana laws in Ross and Coats are so dissimilar from the MMMA the Superior Court should not have relied on them when interpreting the MMMA.

As will be seen in future installments, while it marked a significant departure from rulings in states west of the Mississippi, Barbuto is part of a trend in which New England courts are recognizing state law employment causes of actions for patient employees claiming employer discrimination as a result of their use of medical marijuana.


Product Liability: California’s Consumer Expectation and Risk Benefit Test Applied in the Same Case

Posted in California Courts, Litigation Trends, Products Liability, Uncategorized

Defendant The Raymond Co. saw its summary judgment victory overturned by California’s 4th District Court of Appeal in a surprising turn of events in its ongoing product liability case in San Diego Superior Court. In its July 2017 decision, the 4th District held that The Raymond Co. failed to meet its burden to show that the risk-benefit test applied to dismiss the claims made by plaintiffs Sandra and Kawika Demara.


The Demaras filed their lawsuit initially when Mr. Demara allegedly sustained injuries in 2011 as a result of alleged design defects in one of Raymond’s forklifts being operated at a warehouse in Carlsbad, California. According to their complaint, the Demaras alleged that a Raymond 7400 series forklift was backing up, changing direction, and turning, when the drive wheel ran over Mr. Demara’s foot and crushed it. The Demaras alleged in their complaint that Mr. Demara did not see the forklift or its warning light. As a result, he had to have multiple surgeries on his foot and remains permanently disabled with pain. In a single cause of action for products liability, the Demaras alleged strict liability on claims for defects in the design, manufacture, and warnings, and one claim for general negligence.


The San Diego Superior Court trial judge had previously granted Raymond’s summary judgment by deciding that the Damaras failed to raise a triable issue of material fact as to the issue of causation. The trial court also rejected the argument that the consumer expectation test ought to be applied as a matter of law and that even assuming the Demaras had raised a triable issue, Raymond had sufficiently applied the necessary elements of the risk-benefit test.


Rejecting the lower court’s ruling, 4th District Presiding Justice Judith McConnell concluded that the trial court’s conclusions were incorrect because the Demaras’ causation evidence was ample enough to defeat Raymond’s summary judgment motion. McConnell ruled that “in applying the risk-benefit test, [Raymond] failed to present sufficient evidence to shift the burden to plaintiffs to show a triable issue of material fact.”


The 4th District cited to the decision in Campbell v. GM Corp., (1982) 32 Cal.3d 112 for the general rule that under the consumer expectation test and the risk-benefit test, to prove a design defect claim, the plaintiff must show that the product at issue failed to perform safely and that this failure played a substantial role in causing the harm. Raymond’s summary judgment motion hinged on the argument that the Demaras failed to show that the design of the forklift played a substantial role in causing Mr. Demara’s injury. According to Justice McConnell, however, “[Raymond] presented neither evidence nor inferences from evidence to suggest that the design was not a substantial factor in bringing Demara’s injury.”


Justice McConnell went on further to state  “because the Defendants’ statement that the occurrence of the accident was not evidence of a defect that caused Plaintiff’s injuries is not a prima facie showing that Plaintiffs cannot prove causation, the burden of establishing a triable issue of material fact never shifted to Plaintiffs, and the trial court should not have granted Defendants’ motion on the basis that Plaintiffs did not meet their burden of establishing a triable issue of material fact as to causation.”


In reaching its decision to overturn Raymond’s summary judgment victory, the 4th District Appeals Court highlighted plaintiffs’ evidence that the area on the outside of the drive wheel of the forklift is open with guard rails, gates, skirts, or bumps allowing Mr. Demara’s foot able to go underneath the forklift and be crushed by the exposed wheel. The Demaras also presented evidence that a warning light on the forklift was not, at certain angles, visible to pedestrians.


By reversing the summary judgment, the Demara’s case has been remanded back to San Diego Superior Court with instructions for an order to be entered denying Raymond’s motion for summary judgment, denying its motion for summary adjudication of the Demara’s claims for design defect and for negligence, and an order granting the Demara’s motion for summary adjudication of Raymond’s claim for defective manufacturing and for failure to warn.

Ogletree, Deakins & Nash Attorneys Get Smoked by Supreme Judicial Court of MA: Employer’s Termination of Employee For Failing Drug Test for Use of Medical Marijuana States a Claim for Workplace Discrimination

Posted in Employment Litigation, Litigation Trends, Massachusetts Courts
This article is Part One of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series


In Cristina Barbuto vs. Advantage Sales and Marketing, LLC, & another, SJC-12226 (July 17, 2017), slip opinion[1], the Supreme Judicial Court of the Commonwealth of Massachusetts was confronted with Plaintiff Cristina Barbuto’s (hereinafter, “Plaintiff” or “Ms. Barbuto”) direct appeal of the Superior Court’s Decision to grant, in part, Defendant Advantage Sales and Marketing, LLC’s (hereinafter, “ASM”) and Defendant Joanna Meredith Villaruz’s (hereinafter, “Ms. Villaruz”) (collectively, “Defendants”), Motion to Dismiss her Complaint.  The Complaint flowed from Plaintiff’s termination from her employment with ASM as a result of her testing positive for marijuana in connection with a mandatory drug test.  See id. at 4.


Ms. Barbuto was offered and accepted a job from ASM in the late summer of 2014.  See id. at 3.  After she accepted the position, an ASM representative communicated to Ms. Barbuto that she would be required to take a mandatory drug test.  See id.  Ms. Barbuto advised the ASM employee that she would test positive for marijuana.  See id.  She further explained that she suffered from Crohn’s disease and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes, which rendered her a qualifying medical marijuana patient under Massachusetts law.  See id.  Ms. Barbuto advised the ASM employee that she did not use marijuana daily and agreed that she would not consume it before work or at work. See Barbuto, supra, slip opinion at 3.


Thereafter, the ASM representative advised her that such use would not preclude her employment at ASM, alerted her that this would be confirmed with ASM and later provided her with confirmation that her lawful medical use of marijuana would not be an issue with the company.  See id. at 4


On September 5, 2014, Ms. Barbuto submitted a urine sample for the mandatory drug test. On September 11th, she participated in an ASM training program wherein she received a uniform and her job assignment, and she later completed her first day of work—without use of marijuana before or during her shift.  See id.  Later that evening, Ms. Villaruz, ASM’s Human Resources representative, informed Ms. Barbuto that she was being terminated as a result of testing positive for marijuana and also advised Plaintiff that ASM did not care if Ms. Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.”  See id.


After her termination, Plaintiff filed a verified charge of discrimination against Defendants with the Massachusetts Commission Against Discrimination (“MCAD”), which was later withdrawn prior to her filing of a Complaint in Superior Court.  See id. at 4-5.  The Complaint alleged six (6) distinct Counts: (1) handicap discrimination, in violation of G. L. c. 151B, § 4 (16); (2) interference with her right to be protected from handicap discrimination, in violation of G. L. c. 151B, § 4 (4A); (3) aiding and abetting ASM in committing handicap discrimination, in violation of G. L. c. 151B, § 4 (5); (4) invasion of privacy, in violation of G. L. c. 214, § 1B;(5) denial of the “right or privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition, in violation of the Medical Marijuana Act; and (6) violation of public policy by terminating the plaintiff for lawfully using marijuana for medicinal purposes.  See id. at 5. The second and third claims were brought against Villacruz alone; the rest were brought against both ASM and Villaruz.  See Barbuto, supra, slip opinion at 5.


In overturning the Superior Court’s Decision, the Supreme Judicial Court began by reviewing the Massachusetts’ Medical Marijuana Act (“MMMA”).   See id. at 6.  Under the MMMA, a “qualifying patient” is defined as “a person who has been diagnosed by a licensed physician as having a debilitating medical condition.” Crohn’s disease is expressly included within the definition of a “debilitating medical condition.” St. 2012, c. 369, §§ 2 (K), (C). MMMA protects a qualifying patient from “arrest or prosecution, or civil penalty, for the medical use of marijuana” provided the patient: “(a) [p]ossesses no more marijuana than is necessary for the patient’s personal, medical use, not exceeding the amount necessary for a sixty-day supply; and (b) [p]resents his or her registration card to any law enforcement official who questions the patient . . . regarding use of marijuana.” St. 2012, c. 369, § 4. The act also provides, “Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” Id.


After summarizing the protections afforded to qualifying patients under the MMMA, the Court delineated the statutory protections designed to eliminate discriminatory practices in connection with handicap discrimination.  See id. at 8.  Under G. L. c. 151B, § 4 (16), it is an “unlawful practice . . . [f]or any employer . . . to dismiss from employment or refuse to hire . . . , because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.”  The Court further opined that substantial deference was provided to the MCAD’s guidelines interpreting G. L. c. 151B, despite the Court’s acknowledgement that the guidelines do not carry the force of law.  See id.


The Supreme Judicial Court then reviewed the statutory definition of “handicap” found in G. L. c. 151B, § 1 (17, which is defined as follows: “(a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.”  Next, the Court reviewed the definition of “handicapped person,” as well as “qualified handicapped person.”  G. L. c. 151B, § 1 (19) (“any person who has a handicap”); § 1 (16 (“a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to the handicap”).  After reviewing the foregoing statutory definitions, the Court noted that Plaintiff’s Complaint contained allegations that she was a handicapped person because she suffers from Crohn’s disease and that she was a qualified handicapped person because she is capable of performing the essential functions of her job with a reasonable accommodation to her handicap; namely, ASM’s waiver of their policy barring anyone from employment who tests positive for marijuana in order that she be able to continue to use medical marijuana as prescribed by her doctor.  See id. at 9


Thus, the Supreme Judicial Court held that Ms. Barbuto had sufficiently stated a claim for handicap discrimination in violation of § 4 (16).  See Barbuto, supra, slip opinion at 9.  The Court emphasized that Ms. Barbuto’s illness, Crohn’s disease, is characterized as a “debilitating medical condition” under the MMMA and that she had alleged that her condition, along with irritable bowel syndrome, resulted in a physical impairment that substantially limited one or more major life activities; namely her ability to eat and work (the Court inferred the major life activities at issue as the complaint was not express in that regard).  See id. at 10.


Defendants attempted to argue that Ms. Barbuto’s claim must fail as the only reasonable accommodation she sought was the continued use of medical marijuana, which constitutes a federal crime.  See id.  As such, they argued that such an accommodation was facially unreasonable.  See id.  The Court dispensed with the first argument by explaining that the MMMA makes the use of medical marijuana lawful for qualifying patients—the same as any legally prescribed medication.  See id. at 11-12.  The result being that if an employee’s physician is of the opinion that medical marijuana is the most effective treatment and that alternative medication would be less effective, a waiver of an employer’s drug policy would be a facially reasonable accommodation.  See id. at 14.  In conclusion the Court highlighted that the MMMA itself declares that patients shall not be denied a right or privilege based on their use of medical marijuana and that a handicapped employee in Massachusetts has a statutory “right or privilege” to reasonable accommodation under G. L. c. 151B, § 4.  See Barbuto, supra, slip opinion at 14.  However, the Court was careful to acknowledge that the MMMA does not provide “any accommodation for on-site medical use of marijuana in any place of employment.”  See id. at 15 (internal citation omitted).


With regards to Defendants’ second argument; they contended that, even if Ms. Barbuto were a “qualified handicapped person,” she was terminated because she failed a drug test that all employees are required to pass, not because of her handicap.  See id. at 10.  The Supreme Judicial Court cut through this argument emphatically by expressly stating that the “law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap.”  Id. at 18.  To underscore the absurdity of this argument, the Court stated that by Defendants’ logic they could bar the use of insulin by employees in accordance with a company policy, which would not constitute discrimination against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of insulin.  See id.  The Court found it manifest that the termination of an employee for violating such a policy denies a handicapped person the opportunity of a reasonable accommodation—the sine qua non of handicap discrimination.  See id. at 18-19.


Despite the Supreme Judicial Court’s ruling that an employee’s use of medical marijuana under these circumstances is not facially unreasonable as an accommodation for her handicap and that the Superior Court’s dismissal of the counts alleging handicap discrimination must be reversed, the Court was careful to note that, ultimately, the employee may not be successful on the merits.  See Barbuto, supra, slip opinion at 19.  The Court clarified that Defendants, at summary judgment or trial, may satisfy their burden to demonstrate that Plaintiff’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on Defendant’s business practices.  See id.  The Court proffered an examples of undue hardship—the employer proving that medical marijuana impairs the employees job performance or by demonstrating that a significant safety risk to the public, the employee, or her fellow employees arises from the employee’s use of medical marijuana.  See id. (internal citation omitted).  The Court also described the situation wherein an employer’s ability to conduct its business was threatened as a result of an inability to satisfy contractual or statutory obligations, which originated from the employee’s use of medical marijuana.  See id. at 20.


After determining that dismissal of Counts 1, 2, and 3 (those sounding in handicap discrimination) would be reversed, the Court began it analysis of whether the MMMA created an implied private cause of action that would allow Plaintiff to seek damages for a violation of the MMMA.  See id. at 21-22.  In doing so, the Court reviewed similar medical marijuana legislation, in Rhode Island and Maine, which pre-dated the MMMA.  See id. at 22.  The Court recognized that Rhode Island and Maine’s medical marijuana acts included express language prohibiting employers from taking adverse employment action against an employee for the lawful use of medical marijuana—the MMMA does not.  See Barbuto, supra, slip opinion at 22 (internal citation omitted).  Accordingly, the Court endeavored to determine whether the MMMA created an implied private cause of action by attempting to ascertain legislative intent by analyzing the legislative history of the act.  See id. at 23.  The Court found no evidence that the voters understood that the passage of the act would create a private cause of action, but also exclaimed that the Court must also consider whether the lack of such an action would leave the statute ineffectual and, thus, hinder the voter’s intent.  See id. at 23-24.


The Supreme Judicial Court held that the existence of comparable causes of action, handicap discrimination, made it clear that there was no need to find an implied private cause of action derived from the MMMA.  See id. at 24 (internal citation omitted).  It also stressed that fact that the drafters of the MMMA specifically prohibited “on-site” medical marijuana use as an “accommodation” and that the drafters included language that barred the denial of a “right or privilege” for marijuana use, which the Court found suggested a preexisting right or privilege—not one flowing from the MMMA.  See id. at 24-25.  The Court found that the foregoing statutory clues bolstered its holding that the drafters were mindful that a cause of action for handicap discrimination would protect qualifying patients from adverse actions by employers.  See id. After determining that the MMMA did not support an implied cause of action, the Court confronted Count 6, asserting that Plaintiff’s termination was wrongful and in violation of public policy.  See Barbuto, supra, slip opinion at 25-26.  The Court summarized the theory as an exception to the general rule regarding at-will employment and one that only arose when a termination violated a clearly imprinted public policy.  See id. (internal citation omitted).   After reaffirming that the public policy exception was consistently construed narrowly by the Court, it held that it would not create such a cause of action for essentially the same reasons as it refused to find an implied right in the MMMA.  See id.  Simply stated, there was no reason to create such a right as qualifying patients were already protected by the statutory scheme in place to protect employees from handicap discrimination.  See id.



[1] Barbuto v. Advantage Sales & Mktg., LLC, No. SJC-12226, 2017 WL 3015716 (Mass. July 17, 2017)

The Cumulative Exposure Theory is no Different from the “Each and Every Exposure” Theory

Posted in Asbestos Litigation, Litigation Trends, Uncategorized

On August 31, 2017 the United States Court of Appeals for the Seventh Circuit affirmed the United States District Court for the Northern District of Illinois, Eastern Division’s decision in Charles Krik v. Exxon Mobil Corporation, et al. excluding the testimony of plaintiff’s expert Dr. Arthur Frank. Dr. Frank’s theory was based on a premise that each and every exposure to asbestos, including the first exposure, no matter how de minimis, is a substantial contribution to the cumulative total. U.S. District Judge Manish Shah concluded that Dr. Frank’s testimony was “not tied to the specific defendants, but was instead based on his medical and scientific opinion that every exposure is a substantial contributing factor to the cumulative exposure that causes cancer.” The principle behind the “each and every exposure” theory and the cumulative exposure theory is the same.


Judge Shah noted, “To find a defendant liable, plaintiff must prove causation attributable to that defendant. It would be misleading and confusing for an expert to opine- particularly using the legal terminology of ‘substantial contributing factor’- that plaintiff’s cancer was caused by defendants when the foundation for the opinion was that every exposure (without regard to dosage) contributes to cause cancer.” The law of causation requires the plaintiff to prove that the defendants’ acts or products were a “substantial contributing factor” to plaintiff’s illness. Asbestos induced lung cancer is dosage dependent. The risk of contracting lung cancer from asbestos depends on the length of time of exposure and the amount of exposure. Therefore, to determine whether any exposure constitutes a substantial contributing factor, one would have to understand the timing and amount of exposure.


The United States Court of Appeals for the Seventh Circuit affirmed the decision noting “just like each and every exposure, the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.” “The ultimate burden of proof on the element of causation remains with the plaintiff. Requiring a defendant to exclude a potential cause of the illness improperly shifts the burden to the defendants to disprove causation and nullifies the requirement of the ‘substantial factor’ test.” The Sixth and Ninth Circuits have likewise excluded cumulative and/or “each and every exposure” theories for similar reasons.


Johnson & Johnson Hit With $417 Million Verdict In Spite of Inconclusive Scientific Evidence

Posted in California Courts, Litigation Trends, Talc Litigation

A new wave of lawsuits alleging an association between ovarian cancer and the use of talcum powder for feminine hygiene purposes – a claim that many believe is based on questionable science – has hit an all-time high.  Last week, a Los Angeles jury returned a verdict against Johnson & Johnson in the amount of $417 million ($70 million in compensatory damages, $347 million in punitive damages), finding that there was a connection between Plaintiff Eva Echeverria’s ovarian cancer and Johnson & Johnson’s talcum powder product.  Plaintiff, a California resident, claimed she developed ovarian cancer as a result of her use of Johnson & Johnson’s Baby Powder over many years, and alleged that Johnson & Johnson had internal knowledge for decades of scientific studies that demonstrated that the use of talc could cause cancer.


In support of this allegation, Plaintiff’s lawyers presented to the jury a 1982 study suggesting that women who used baby powder – which is mainly comprised of talc – were at a 92% increased risk for ovarian cancer.  Plaintiff’s lawyers also claimed that the lead researcher for that study advised Johnson & Johnson about the study, and suggested that the company should place a warning label on their product, but Johnson & Johnson refused.  In its defense, Johnson & Johnson took issue with the 1982 study, and argued that talc is inherently safe, analogizing talc to red meat and alcohol – neither of which require warnings.


Much of the controversy surrounding this new litigation stems from the science lawyers representing plaintiffs are using to support their claims.  Johnson & Johnson argued during trial that the scientific studies on which Plaintiff relied upon are flawed and “made-for-litigation.”  Specifically, many studies supporting the association between ovarian cancer and talc are based on interviews conducted on women already diagnosed with ovarian cancer, asking them to remember whether they ever used talcum powder; accordingly, such studies run the risk of promoting inaccurate recollection.


Epidemiologist Jack Siemiatycki, who testified on behalf of Plaintiffs, stated that it is “more likely than not that talc can cause ovarian cancer.”  Additionally, Laura Plunkett, a pharmacologist and toxicologist hired by Plaintiffs, opined that talc is toxic, and when used on a woman’s lower extremities, can cause ovarian cancer by migrating into the ovaries and causing chronic inflammation, which worsens even from small applications over long periods of time.


Johnson & Johnson argued that Plaintiff’s experts base their assertions on unreliable studies, citing to a 2000 cohort study by researchers at Harvard University, in which they concluded that there was “no overall association” between talc and “epithelial ovarian cancer.”  In that study, out of the 78,630 women that stated they used talcum powder products, 307 of them were eventually diagnosed with ovarian cancer.  While the study did state that there was a “modest elevation in risk” for one variety of the disease – invasive serous ovarian cancer – the report concludes that the “results provide little support for any substantial association between perineal talc use and ovarian cancer risk overall.”


This is the first ovarian cancer talc trial verdict returned against Johnson & Johnson in a state court outside of Missouri, and by far the largest.  Johnson & Johnson has previously been hit with over $300 million in verdicts among several lawsuits in Missouri, however, Johnson & Johnson has also obtained summary judgments in two cases filed in New Jersey state court based on the same arguments made in Echeverria’s case – namely, that there is not sufficient scientific proof to establish the connection between talc and ovarian cancer.  In fact, in Echeverria’s case, the court granted the talc supplier’s motion for summary judgment, finding that talc is indeed “inherently safe” and that the supplier owed no duty to warn to the Plaintiff.


Johnson & Johnson maintains that its Baby Powder is safe, and has indicated that they will appeal this verdict.  Johnson & Johnson’s spokeswoman Carol Goodrich stated after the verdict was issued that they “are guided by the science, which supports the safety of Johnson’s Baby Powder.”


Many reputable research organizations maintain that there is insufficient evidence to conclude that talc causes ovarian cancer.  The International Agency for Research on Cancer (IARC) – which is part of the World Health Organization – holds the position that there is no epidemiological evidence that convincingly demonstrates that talc causes ovarian cancer.  Moreover, the National Cancer Institute’s Physician Data Query Editorial Board indicated this past April that the “weight of the evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”  The United States Food and Drug Administration has also indicated that talc products are not carcinogenic.


Despite the inconclusive evidence on this topic, it is expected that the number of claims such as Echeverria’s will infinitely rise, and may very well become the new wave of mass litigation in the United States.