Defense Litigation Insider

Helping you navigate a clear path through complex litigation.

Massachusetts’ Supreme Judicial Court Upholds Record $63 Million Verdict in Children’s Motrin Case

Posted in Pharmaceutical and Medical Devices, Products Liability

 

Children's MotrinThe Massachusetts Supreme Judicial Court has affirmed a record $63 million jury verdict against healthcare giant Johnson & Johnson for allegedly inadequate warnings about the health risks associated with Children’s Motrin. The facts underlying this remarkable verdict are undeniably tragic, but they also demonstrate just how important clear and comprehensive warnings are for product manufacturers. Further, as explained in more detail below, this case emphasizes that it is extremely difficult in Massachusetts for manufacturers to prove that the FDA would have rejected a plaintiff’s recommended warning change, a showing that the United States Supreme Court has suggested could shield a manufacturer from a failure to warn claim. With interest, Johnson & Johnson is currently liable for over $130 million to the plaintiffs.

The Case

In November 2003, seven-year-old Samantha Reckis took Children’s Motrin after showing signs of a fever. The popular pain reliever did not improve her condition. Instead, Samantha developed toxic epidermal necrolysis (“TEN”), a life-threatening skin condition that caused her to lose 80 percent of her lung capacity, 90 percent of her skin, and her vision. Since 2003, Samantha has undergone almost 100 surgeries, which have kept her alive.

Samantha and her parents sued Johnson & Johnson, the manufacturer of Children’s Motrin, for allegedly failing to provide adequate warnings about the risks associated with the drug. Specifically, the Reckis family claimed that Children’s Motrin should have included a warning that its use could result in a life-threatening condition. In February 2013, a Plymouth County jury returned a $63 million verdict in favor of the Reckis family.

The Appeal

Johnson & Johnson appealed the verdict, primarily arguing that the United States Supreme Court’s 2009 decision Wyeth v. Johnson & JohnsonLevine preempted the plaintiffs’ claims because the Food and Drug Administration (“FDA”) would have rejected the warning that the Reckis family argued should have been on Children’s Motion. In Wyeth v. Levine, the Supreme Court found that a drug manufacturer could still be liable for failure to warn even after the FDA had approved a drug’s warning label. However, the Court also indicated that if there was “clear evidence” that the FDA would have rejected a manufacturer’s proposed warning change, then the manufacturer would not be liable for failing to include such a warning.

In 2003, when Samantha Reckis took Children’s Motrin for her fever, the warning on the drug advised users to stop using it if an allergic reaction occurred, but did not mention TEN or that its symptoms could be a sign of a life-threatening condition. Thereafter, a group of citizens petitioned the FDA to revise the warning on pain relievers with ibuprofen, such as Children’s Motrin, to reflect that use of the product could lead to potentially life-threatening conditions such as TEN. The FDA rejected this petition and specifically noted that including disease names such as TEN would not be useful to consumers because most consumers would be unfamiliar with such terms. Johnson & Johnson argued that this rejection constituted clear evidence that the FDA would have rejected a revised label for Children’s Motrin that included any mention of it potentially causing “life-threatening” diseases.

The SJC rejected this argument, explaining:

the FDA’s decision not to request that manufacturers add a warning about life-threatening diseases could well have been merely a byproduct of its rejection of these requested warnings on the basis that they mentioned [certain life-threatening diseases] by name. Whether the FDA also would consider including a mention of life-threatening diseases, by itself, to be inappropriate and off limits on the OTC label is anybody’s guess; certainly the reason specified by the FDA for rejecting use of the disease names – consumer unfamiliarity – does not apply to use of such a phrase.

The SJC also rejected Johnson & Johnson’s argument that the $63 million verdict was excessive.

The Lesson

The SJC’s upholding of the verdict, one of the highest personal injury awards in Massachusetts history, highlights that manufacturers must be proactive with their warnings and ensure that warnings provide a thorough list of any potential adverse effects. Manufacturers must also remember that they, not the FDA or any other governmental agency, bear the ultimate responsibility for labeling their products appropriately. Furthermore, at least in Massachusetts, manufacturers should be very wary of relying on any argument that there was “clear evidence” that the FDA would have rejected a recommended warning change. As Johnson & Johnson just learned, the SJC’s standard for clarity is extraordinarily high.

Blue Bell Ice Cream’s Path to Listeria Recall Follows a Rocky Road

Posted in Foodborne Illness, Products Liability

How to ‘Bell-weather’ a Recall: Position Your Company to Withstand a Recall Efficiently and Effectively

 

Headlines announcing the recall of some product or another seem to appear as regularly as the changing of the seasons, and often times, to the consumer at large, they come and go just as subtly. It is wholly unsurprising, however, that recalls involving a food item often land with the jolt and turbulence of a spring thunderstorm.

The notion that food, the very purpose of which is to nourish and sustain, could in fact be causing us substantial harm is inherently alarming, and opportunistic news outlets are well aware that food-related recalls increase viewership and website traffic.

Making headlines right now, just as warmer weather is finally reaching much of the country, are two separate wide-ranging recalls involving that American favorite, ice cream. The recalls were initiated by popular producers Blue Bell Creameries, of Texas, and Jeni’s Splendid Ice Creams, of Ohio. The culprit in each recall has been identified as the bacteria Listeria monocytogenes, a potentially lethal contaminant.Jeni's Splendid Ice Creams

Jeni’s Splendid initiated a preemptive voluntary recall of its entire product line on April 23, 2015, while temporarily closing its retail scoop shops, after a random sample collected by the Nebraska Department of Agriculture tested positive for the bacteria. Blue Bell’s path to recall followed a rockier road.

A joint CDC and FDA investigation into an outbreak of 10 reported illnesses resulting in hospitalization, including three fatalities, from January 2010 through January 2015 eventually pointed to Blue Bell ice cream as the likely source. After laboratories in multiple states isolated the Listeria bacteria in several of its products, Blue Bell issued a limited voluntary recall of what it believed were the affected lines in March, 2015. After further investigation resulted in positive test samples in additional product lines, Blue Bell finally moved issued a full recall of all of its products currently on the market on April 20, 2015.

A recall has the potential to create consumer panic towards a product, sometimes an entire brand, and it is almost always a major conundrum for the product seller. The decision to issue a recall of a product that your company has placed on the market involves balancing as many factors as there are flavors of ice cream. The potential impacts are far reaching and substantial, not just to the consumer, but to everyone involved in placing the product in the stream of commerce, from the manufacturer, to the distributor, to the retail seller. What are the risks to the consumer? How many people may potentially be affected? What is the cost of the recall to your company, not just in dollars and cents, but in brand goodwill? How will your employees be impacted? Will you be facing punitive action by a regulatory agency is nothing is done? Will you be exposed to civil or criminal litigation? If a recall is necessary, how broad should it be?

The recalls issued by Jeni’s and Blue Bell followed different paths and for different reasons, but both necessarily caused significant impact on the companies and their respective brands. Blue Bell, avoiding the nuclear option of total recall, rolled out piecemeal corrective measures while continuing wide-scale production, thereby keeping revenue streams open, but exposing itself to protracted negative media coverage and potentially harming further consumers when additional product lines turned up positive for Listeria. There is also a risk that they may ultimately face punitive damages in a civil suit if it is found that their response was too slow or insufficient.

Jeni’s swift and sweeping response likely reduce any long-term impact of the incident to a hiccup, potentially minimizing damages in any future civil law suit.

Meanwhile, Jeni’s (having had the benefit of observing Blue Bell’s struggles,) opted to shut its operations down entirely at the first positive test, even absent any evidence of contaminate-related illnesses. Though likely causing substantial interruption to their bottom line in the short term, Jeni’s swift and sweeping response likely reduce any long-term impact of the incident to a hiccup, potentially minimizing damages in any future civil law suit, and perhaps even increasing consumer confidence in the brand due to their immediate and unequivocal response.

Blue Bell Ice CreamsEvery recall scenario is unique, and when the decisions are made companies do not have the benefit of hindsight, but whether you are an ice cream company, pasta maker, or industrial tool manufacturer, it is important to learn from a situation like Blue Bell’s and Jeni’s and prepare for the future. Companies would be well-advised to have a team on standby for a recall situation, consisting of product and industry specific specialists, and legal, financial and marketing professionals. Furthermore, it is important to think of the long term effects of an outbreak, particularly on your brand name, and not just the short term financial impact of a large scale recall when making any decision.

Of course, preparing a proactive strategy to avoid facing a recall situation in the first place by maximizing internal safety and quality control measures is vital to any manufacturer or supplier. For example, one measure which we have utilized to the benefit of our clients is to conduct periodic continuing education seminars on hot button litigation issues in their specific industry. These presentations benefit both company management and the everyday employees on the product floor and are designed to help limit reoccurring pitfalls and problems which we see once matters reach litigation. With proper preparation and guidance, a company can either avoid a recall altogether, or at the very least minimize any potential negative consequences in the unfortunate event that one must be issued.

Why You Should Seek Diversity in Your Law Firm

Posted in All Practice Areas, Products Liability

From television to transportation services, it seems that everywhere we look, people are seeking increased diversity. We want to see every race, gender, ethnicity, sexual orientation, religion, and socioeconomic background represented in every industry. It has been proven that diversity can be a driver of economic growth, but what about the legal profession? Do clients benefit from diversity within their law firms?

While it may appear biased coming from a female minority, I believe all signs point to yes. Law firms with diverse workforces have unique advantages difficult to attain through any other means. The following lists just some of those advantages:

Stronger Firm

  • Let’s start off with the obvious: law firms benefit from diversity in the same way any other business does. A diverse work environment is more likely to result in greater acceptance of its employees, which results in a happier work environment, which leads to lower turnover. These are all positives for clients when it comes to the bottom line because decreasing ‘the churn’ promotes efficiency; fewer attorneys and staff will work on a client’s matters over a longer period of time. Moreover, happy employees are proven to be more productive.

Diversity Produces Better Quality Work

  • I was raised in a Mexican-American household. We spoke Spanglish at home and ate Mexican food four out of five nights. As a child, I believed this to be the ‘normal’ American life. However, through my friendships with people that did not share my culture, I came to realize there were many other languages being spoken and delicious meals being enjoyed by families around the country. My perception of what an American family looks like expanded. In a way, the career of an attorney is not much different. Attorneys from different backgrounds each provide a unique perspective and approach to the law. When an attorney has the opportunity to work with a diverse group, they are able to expand their perspective on the key issues of a case and are thus in a better position to determine the best approach. The attorneys benefit, as do the clients.

Larger NetworkDiversity in Legal Services

  • Clients look to their attorneys for more than just legal advice, often times seeking referrals in other fields or jurisdictions. It is easy to see why law firms with attorneys practicing in various states and practice areas from various backgrounds can be beneficial to clients given the large network of connections the firm creates. Even within the same city, law firms with employees from assorted backgrounds are more likely to have a larger network, often through involvement in organizations or associations.

Greater Capability

  • Let’s not overlook language. A firm with a multilingual workforce has the capability to assist clients in unique circumstances. It is not uncommon for attorneys to meet with witnesses who speak other languages. Legal documents often need to be translated or drafted in another language. Moreover, in the event a client has international business, working with attorneys with citizenship in other countries can also be useful. Having these resources available at a moment’s notice puts the client in a better position to be prepared for whatever challenges may come up.

Diverse Firms are More Relatable

  • Legal representation usually does not start and end in the office. Zealous advocacy often requires communicating directly with company employees and/or the general public. Consider instances in which attorneys need to locate witnesses to speak favorably on a client’s behalf for a deposition or trial. How about when the attorney is speaking on a client’s behalf at trial before a jury? A diverse law firm is a better reflection of the general population, which in turn helps make the firm more relatable to the public as an agent of the client. Working with relatable attorneys and staff could be the difference between winning and losing a case.

Diversity is certainly not the only way to gain a competitive advantage, but it’s hard to discount that it can have profound and positive effects on both clients and lawyers. Whether a client is an individual, a small business, or a Fortune 500 company, diversity should be a key factor when considering what kind of law firm to partner with. With the global sharing economy increasingly driven by technology, diversity is more likely to provide the necessary tools a client should want and need at its fingertips.

 

Plaintiff’s Experts Barred from Offering “Any Exposure” Theory in Asbestos Lung Cancer Case

Posted in Asbestos Litigation

IL court rejects de minimis exposure to asbestos as ‘substantial
contributing factor

Asbestos Litigation

An Illinois federal judge recently barred expert testimony espousing the “Any Exposure” theory, which is also commonly referred to as the “Each and Every Exposure” theory and the “Single Fiber” theory.

In general, the “Any Exposure” theory is a causation theory that postulates that any exposure to asbestos, regardless of dose or amount, (excluding background exposure) is a cause of the injury to the person exposed. In Krik v. Crane Co. (N.D. Ill. Dec. 22, 2014), plaintiff, Charles Krik, filed suit against several defendants alleging he developed lung cancer from exposure to their asbestos-containing products.

Plaintiff sought to offer expert testimony of Dr. Arthur Frank and Dr. Arnold Brody on the issue of medical causation and Frank Parker regarding industrial hygiene. Specifically, these experts were expected to testify that each and every exposure to asbestos caused Mr. Krik’s lung cancer. Several defendants moved to bar such testimony as inadmissible and requested that it be excluded under Federal Rules of Evidence Rule 702 and Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993). After acknowledging that the Seventh Circuit has not opined on the admissibility of the “Any Exposure” theory in an asbestos matter, the court ruled that plaintiff failed to establish that the “Any Exposure” theory is sufficiently reliable to be admitted under Rule 702 and Daubert.

In reaching its conclusion, the court noted that plaintiff conceded that his experts believed asbestos-related lung cancer is a dose-responsive disease and yet plaintiff would have his experts testify that any asbestos exposure—regardless of dosage—is sufficient to cause asbestos-related lung cancer. The court also underscored plaintiff’s failure to offer any expert testimony regarding plaintiff’s exposure dose of asbestos, and whether that dose was sufficient to cause his lung cancer.

The opinion that plaintiff’s experts cannot rule out that a single dose of asbestos causes injury, and therefore any and all exposure to asbestos is harmful, “is not an acceptable approach for a causation expert to take.”

The court rejected the notion that de minimis exposure or a single exposure is sufficient to meet Illinois’ substantial contributing factor test. Rather, the correct statement of Illinois law is that more than de minimis exposure is required to prove causation. Moreover, the court found the “Any Exposure” theory was inadmissible because plaintiff’s experts failed to base their opinions on the facts specific to this case in violation of Rule 702(d).

Click here to read the Kirk Opinion in its entirety.

Will “Unprecedented” Garlock Asbestos Bankruptcy Deal Be a Game Changer?

Posted in All Practice Areas, Asbestos Litigation, Products Liability

The Garlock asbestos bankruptcy has generated significant interest from attorneys representing plaintiffs and defendants as well as from companies and insurers involved in asbestos litigation.  Although the impact on litigation throughout the country has been uneven, courts seem to be more willing to take a proactive role in ensuring that transparency is provided in disclosing information related to bankruptcy trust claims.

In the meantime, the allegations of potential withholding of alternative exposure evidence seems to have contributed to Garlock’s agreement with future asbestos claimants.  The company recently announced a $358 million settlement of all asbestos injury claims and a revised reorganization plan.

The new agreement, while representing nearly double the $125 million a bankruptcy judge had estimated as Garlock’s liability is significantly lower than the $1 billion plaintiffs’ lawyers were requesting from Garlock.

Consequently, if the Garlock reorganization plan is approved, other companies may find asbestos bankruptcy more feasible than previously.

Additionally, as Daniel Fisher, writing for Forbes notes, other companies and insurers with potential asbestos liability are expected to continue to monitor the Garlock decision and seek to use files emerging from the case to help dispute claims that the companies or insureds’ products were the primary cause of plaintiffs’ illnesses in litigation or to show that plaintiffs may have made conflicting claims against other companies.

 # # #

 

New Era of Criminal Prosecution For Those in the Food Safety and Pharmaceutical Industry

Posted in All Practice Areas, Foodborne Illness, Pharmaceutical and Medical Devices

A deadly Listeria outbreak has swept across the United States in recent weeks, sickening at least 29 people and taking the lives of three.  This latest tragedy is reportedly linked to the sale of commercially produced, prepackaged caramelized apples. If recent media reports are accurate, the situation highlights the devastation a single breach in sanitation protocol can thrust on an otherwise remarkable wholesale and retail food distribution system in the United States. The situation also serves to remind food growers, manufacturers, distributors and retailers alike that exposure to liability for food-borne illnesses today goes well beyond civil fines and damages and is increasingly subject to criminal prosecution.

 

Listeria outbreaks are rare but dangerous. In 2011, listeria in cantaloupes killed 33 people and sickened 147 in 28 states, according to the CDC. In 2012, 22 people were infected and four died in an outbreak attributed to a brand of ricotta cheese imported from Italy. Besides the potential civil suits, one of which has already been filed in connection with the caramel apple outbreak (James Raymond Frey, Individually and on behalf of the Estate of Shirlee Jean Frey, et al. v. Safeway, Inc., et al., No. CISCV180721 (Cal. Sup. Santa Cruz Co.)), food manufacturers should be aware of the unprecedented criminal prosecutions of food-industry defendants in multiple states.

In 2010 the U.S. Food and Drug Administration (FDA) began warning the food industry, that federal criminal laws would be enforced in the fooded safety industry, including the potential liability for food industry executives for the shipment of contaminated food, even though it was outside of the executive’s knowledge or consent. In light of the strict liability laws, U.S. v. Eric Jensen and Ryan Jensen resulted in Colorado’s Jensen brothers each serving  six months of home confinement in 2014 after pleading guilty to six of the “strict liability” federal criminal misdemeanors. The only evidence necessary was that the company distributed cantaloupes with the deadly pathogen; knowledge of the contamination was irrelevant.

Similarly, in United States v. Parnell, No. 13-cr-12 (U.S. Dist. Ct., M.D. Ga., Albany Div.) the food company employees are awaiting sentencing for “strict liability” misdemeanors because their contaminated eggs became part of interstate commerce. In addition, the recent jury trial and conviction of former Peanut Corporation of America (PCA) officers and managers has captured the attention of the entire food industry.

Most recently, criminal charges have been brought against the owners and employees of a pharmaceutical company linked to the deadly 2012 meningitis outbreak. Two of the fourteen arrested were the owners of the company, each of whom were charged with second-degree murder and racketeering in connection with the 64 deaths that resulted from the outbreak. The 131 count indictment alleges that the employees were aware that they were producing medication in an unsafe and unsanitary manner, yet distributed it anyway.

Although the requisite knowledge standard of those involved with the meningitis outbreak differs from the strict liability standard for those in connection with the listeria outbreak, the message is the same: it is imperative, regardless of industry, that proactive measures with regard to quality control, safety and sanitization, be implemented to ensure adequate protection to both consumers and prevent potential liabilities of companies, particularly in this new era for food and pharmaceutical safety enforcement.

Not Satisfied with its 5th Place Finish in the American Tort Reform Foundation Judicial Hellholes® Listing, Illinois Makes A Push For Number One

Posted in All Practice Areas, Asbestos Litigation, Toxic Tort

Ben Franklin famously warned that “you may delay, but time will not, and lost time is never found again.” These words of wisdom appear to be lost on the Illinois state legislature, which recently abolished the ten-year statute of repose for personal injury claims related to asbestos exposure under 735 ILCS 5/13-214. Far from an esoteric legal issue, the amendment has become the front line in the latest battle of the national divide on the issue of tort reform. Some have warned that the Madison County Illinois asbestos docket, already one of the busiest and most plaintiff friendly in the country, will see a wave of new litigation from plaintiffs who missed the deadline to bring suit. The change to the statute however, may not be the seismic shift that some have forecast.

 

The statute in question, commonly known as the “construction statute,” previously held that “no action based upon tort…may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” The amendment adds a subsection which reads that the limitation does not apply to “an action that is based on personal injury…resulting from the discharge into the environment of asbestos.”

 

This legislative action hasn’t abolished the statute of limitations in all asbestos-related claims. It has only abolished the ten-year statute of repose for claims that fall under the limited ambit of the construction statute. In other words, defendants who are commonly named in asbestos suits won’t likely see a sizeable increase in claims unless they are also involved in the construction industry.

 

For those who previously fell under the protection of the statute, however, the change could be as dramatic as advertised. Given the long latency period for many asbestos-related diseases, contractors, engineers and architects were often immune from suit, as some persons exposed to asbestos on a given job site may not discover their condition until well after the 10 year statute of repose had expired. With the amendment, these Defendants may find themselves named in lawsuits as often as manufacturers of asbestos-containing products.  Fortunately for them, many cases filed in Madison County arise out of exposures from other states, and in those cases, the statute will not likely apply.

 

Consistent with the abolition of the statute of repose, the state also recently passed a law reducing civil juries from twelve to six members. This is a shift which generally favors Plaintiffs as smaller groups are more likely to be influenced by emotion or a strong personality in the jury room.

 

Embedded is a link to the American Tort Reform Foundation Judicial Hellholes® Listing.  We’ll be watching to see where Illinois falls on the next list.

Whole Foods Faces Tremendous Risk In Connection With The Death of an 8 Year-Old From E. Coli 0157:H7 Infection

Posted in All Practice Areas, Foodborne Illness, Massachusetts Courts

The parents of Joshua Kaye, an 8 year-old boy from Braintree, Massachusetts who died on July 7, 2014, after contracting an E. coli 0157:H7 infection that turned into hemolytic uremic syndrome, have filed suit against Whole Foods, the retail store from which they allege to have purchased the contaminated meat, and Rain Crow Ranch, a Missouri company that allegedly produced and sold the meat to Whole Foods. Joshua Kaye was one of three Massachusetts residents known to contract E. coli between June 13 and June 25, 2014, prompting an investigation by the U.S. Department of Agriculture Food Safety and Inspection Service (“FSIS”), in conjunction with the Center for Disease and Control Prevention (“CDC”) and the Massachusetts Department of Public Health. FSIS, which began its investigation on June 25, 2014, purportedly initially linked the E. coli contamination to Whole Foods stores in Newton and South Weymouth, Massachusetts, through epidemiological evidence. FSIS reports that laboratory testing performed on August 13, 2014, presumably Pulsed-field Gel Electrophoresis (“PFGE”), provided a link between the three Massachusetts cases and the Whole Foods markets. On August 15, 2014, Whole Foods initiated the voluntary recall of 368 pounds of ground beef products from its two stores.

Joshua Kaye’s father, Andrew Kaye, told New England Cable News (“NECN”) that DNA samples had linked their son to the E. coli outbreak. Furthermore, Plaintiffs’ Complaint asserts that a stool sample taken from Joshua Kaye resulted in an E. coli 0157:H7 positive culture that “identically matched the Whole Foods Market E. coli 0157:H7 outbreak strain.” Both Whole Foods and Rain Crow Ranch have denied any clear link between the Massachusetts E. coli illnesses and their respective businesses.

Plaintiffs have asserted claims against Whole Foods for: (1) Breach of Implied Warranty of Merchantability; (2) Breach of Warranty in Violation of M.G.L. ch. 93A; (3) Breach of M.G.L. ch. 93A; (4) Negligence; (5) Gross Negligence and Reckless Conduct; (6) Negligent Infliction of Emotional Distress; (7) Conscious Pain and Suffering; (8) Wrongful Death; and (9) Punitive Damages.

What Does It Mean for Whole Foods? As a non-manufacturing product seller, Whole Foods appears to have pass-through liability for the sale of contaminated beef. On that basis, we expect Whole Foods to tender the defense and indemnification of their claim to Rain Crow Ranch. Whole Foods’ success in getting their tender accepted, however, will depend upon the terms of their contract with Rain Crow Ranch for the purchase of ground beef, as well as their role, if any, in the production process in advance of sale. For instance, if Whole Foods’ handling or processing of the subject beef caused or contributed to the alleged E. coli contamination, its independent negligence would preclude a common law indemnification claim and potentially impede a claim for contractual indemnity.

Further, Whole Foods’ tender will be complicated, by Plaintiffs’ assertion of Massachusetts General Laws Chapter 93A claims (“93A”). 93A provides a cause of action for unfair or deceptive practices in the conduct of any trade or commerce. Entities found to have breached 93A can be subject to double or treble damages. Plaintiffs have asserted two separate 93A claims against Whole Foods: (1) for the sale of contaminated meat in contradiction to its marketing of the product as safe; and (2) for failing to make a reasonable offer of settlement in response to Plaintiffs’ 93A demand letter. The latter 93A claim presumably falls outside the bounds of any indemnification provision contained within a purchase agreement entered into by the defendants relative to the subject beef, because it arises from acts independent of the sale of Rain Crow Ranch’s product.

Calif. Supreme Court Takes On ‘Take-Home’ Asbestos

Posted in Asbestos Litigation, California Courts, Premises Liability

Specifically, the court granted preferential review of the issue:

 

“If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing?”

 

As background, recent California appellate rulings distinguished the liability of manufacturers and landowners in secondary-exposure cases—manufacturers have a duty to warn third-parties of exposure to asbestos carried off-site by an employee; landowners sued in premises liability actions, however, have no equivalent duty to warn identical third-parties. The distinction is outlined by two cases the California Supreme Court is reviewing: Kesner v. Superior Court (May 15, 2014, No. A136378) and Haver v. BNSF Railway Co. (June 3, 3014, No. BC435551).

 

In Kesner, the California First District, Division Three, overruled the trial court’s nonsuit for defendant-manufacturer Pneumo Abex, LLC. Plaintiff Kesner alleged he contracted mesothelioma through exposure to asbestos brought home from his uncle’s longtime employment with defendant-manufacturer Pneumo Abex, LLC. The court found Pneumo Abex, LLC as a manufacturer had a duty to warn Plaintiff of potential exposure to asbestos brought home on his uncle’s clothing.

 

By contrast, in Haver the California Second Appellate District upheld a sustained demurrer in favor of defendant BNSF. In Haver, Plaintiff brought a premises liability action against BNSF Railroad for the wrongful death of Lynn Haver. Lynn Haver suffered severe throat cancer and mesothelioma which eventually proved fatal. Her survivors sued BNSF in premise liability claiming BNSF employed Lynn’s husband who brought home asbestos fibers from BNSF’s premises.

 

In analyzing the BNSF’s duty to Plaintiff Haver, the court distinguished the earlier Kesner decision as a negligent manufacturer case. Following the reasoning in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the court held BNSF, as a landowner, had no duty to warn third-party Lynn Haver of potential exposure to asbestos off its premises. The Haver court specifically noted the reasoning in Campbell appears correct and parallels the U.S. majority view on premises liability to third-parties for off-site exposure.

 

Courts throughout the United States have struggled to define what duty, if any, employers—whether manufacturers, premises owners, contractors, suppliers, or others—owe to third parties for potential asbestos exposure away from the worksite. The California Supreme Court’s opinion will clarify this matter for the California courts—and could influence the decisions of all courts struggling with this issue.

 

Please stay tuned to www.defenselitigationinsider.com  for updates as this case progresses.

 

# # #

Delaware Supreme Court Tosses $2.8 Million Verdict in Galliher Asbestos Trial

Posted in Asbestos Litigation, Delaware Courts, Products Liability

Overview:

In an opinion written by Justice Henry DuPont Ridgely, a unanimous panel of the Delaware Supreme Court recently threw out a $2.8 million verdict in the case of Michael Galliher v. R.T. Vanderbilt.  Defense Litigation Insider previously covered the verdict and Trial Court’s post trial opinion.  Here, R.T. Vanderbilt (“Vanderbilt”) appealed the verdict claiming the Trial Court failed to include a necessary jury instruction and certain testimony from plaintiff’s witnesses prejudiced the trial.  Plaintiff cross appealed and claimed he should receive post-verdict interest on the award, but the Supreme Court did not reach that issue.  Instead, the Court ordered a new trial based on the fact that Dr. Barry Castleman provided inadmissible testimony and the Trial Court did not provide a jury instruction on the duty of care owed by Mr. Galliher’s employer.

Dr. Castleman’s Testimony:

During cross examination, Dr. Castleman made several statements that were non-responsive to questions of defense counsel, including some information that had been specifically excluded by the Trial Court.  Dr. Castleman testified that: (1) Johns-Manville employees had called Vanderbilt “liars;” (2) Vanderbilt spent millions of dollars on studies to undermine government regulatory action with respect to its talc; and (3) it was “buying senators and lobbying the government.”  The Court determined Dr. Castleman’s unsolicited testimony during cross examination was inadmissible and its prejudicial effect required a new trial.

Jury Instructions:

The Court also overturned the verdict because the Trial Court did not include an instruction to the jury on the duty of care owed by Mr. Galliher’s employer.  Vanderbilt sought apportionment of fault to the employer and requested a duty of care instruction.  While the Trial Court indicated it would include such an instruction in the final set of jury instructions, it omitted the instruction from the set given to the jury.  The Court found that was an error and such an instruction must be added for the re-trial, which has since been scheduled for March 9, 2015.

 

Trial Tip Take Aways:

  1. All parties should carefully review the final jury instructions and be prepared to address any omissions or errors with the Court prior to or, if necessary, immediately after the instructions are given to the jury, so any errors can be corrected immediately.
  2. All parties should be sure to tell witnesses of evidentiary rulings that impact their testimony and instruct them to limit their testimony accordingly.
  3. Video testimony played by plaintiff at trial included a line of testimony that the Trial Court had ruled was inadmissible.  Although the Court did not thoroughly analyze this issue in this ruling, it created an appealable issue and all parties should be sure to review final cuts of videos before they are played to the jury to avoid potential appellate issues.
  4. Defense counsel should be armed with this opinion in future trials where Dr. Castleman will testify and be prepared to immediately address his testimony with the Court if his answers start to stray from the questions asked.  This opinion may encourage Trial Courts to instruct him to limit his testimony to the questions posed.

 

* Disclosure: Bill Larson served as the Trial Judge’s law clerk during the Galliher trial, but had no involvement in the post-trial motions.