Defense Litigation Insider

Helping you navigate a clear path through complex litigation.

Discovery Costs: How Companies Can Increase Efficiency and Save Money in the Process

Posted in All Practice Areas, Products Liability, Professional Liability, Toxic Tort

Despite efforts to increase efficiency and save money, most businesses set aside substantial budgets for litigation costs. With the ever-changing landscape of litigation, discovery is usually one of the most expensive line-items. In fact, Inside Counsel points out a Gartner forecast showing, “revenue in the enterprise e-discovery software market will grow from $1.8 billion in 2014 to $3.1 billion in 2018”.

 

Although discovery costs are necessary, the way a business operates can have a significant impact on its bottom line.  The following list provides six steps companies should consider implementing to make the discovery process more efficient and save money.

 

1. Determine Which Parties Are Most Important to the Case

 

In discovery your attorney needs to determine where essential documents can be located and who has knowledge most relevant to the case.  This can result in attorneys having to interview several people within a company to determine: (a) who is the best candidate to represent the entity as the Person Most Knowledgeable; (b) where crucial information can be found; and (c) who has access to that information.  Doing some of the initial legwork yourself can save your business many hours of attorney fees and will allow your legal counsel to hit the ground running.

 

2. Be Aware of Deadlines

 

When attorneys receive discovery requests from opposing counsel, they are on the clock.  In California for example, attorneys have 30 days to respond to most forms of written discovery.  This entails analyzing the discovery requests, determining which objections should be made, drafting responses, and providing the client time to review and approve the responses.    To prevent delays, tell your attorneys at the outset of the case how much time you will need to review discovery responses.  You can also request to be notified when discovery requests are received to plan ahead and set aside time in your schedule to review the responses.

 

3. Provide Reliable Modes of 24/7 Communication

 

Poor communication results in increased costs in all industries, and litigation is no exception.  Unanswered emails, missed telephone calls, and other communication misfires can quickly rack up fees.  This is especially true when a discovery deadline is approaching and counsel needs to reach you to acquire information for discovery responses or verification forms.  Inform your counsel of the best ways to reach you.  If you do not typically respond to work emails or phone calls after a certain hour, let your attorney know.  Consider creating an email chain with all parties involved in the case copied to ensure information is communicated simultaneously rather than multiple times.

 

4. Determine Your Theme

 

Litigation can be an art, but usually benefits from an organized, structured presentation of the legal issues raised in a case.  A company theme, or Good Company Story, is often used to provide a common thread during a jury trial to help counteract opposing counsel’s efforts to vilify a company.  By creating a theme at the outset of a case, companies can often maintain a more focused discovery process, thereby minimizing discovery into unnecessary tangent issues.

 

5. Create a Comprehensive Filing System

 

Larger corporations amass abundant volumes of records over the years, often storing them away with minimal organization.  When documents are constantly rotated and reexamined for litigation, a comprehensive filing system may be most cost effective as it eliminates countless hours of searching for documents down the road.  A comprehensive document-control index will only be useful, however, if policies and procedures are developed to ensure that digital and hard-copy documents are promptly and systematically returned to their respective places after viewing. There is nothing more frustrating than spending time and resources on a comprehensive index only to find its true benefit has been compromised by disorganized handlers.

 

6. Embrace Diversity in your Legal Team

 

Some companies opt to have their entire caseload handled exclusively by partners, while others prefer when junior associates do the brunt of the work with minor supervision by partners.  However, a diverse team of attorneys with various levels of experience can holistically tackle legal issues in a shorter amount of time. Partners provide a significant amount of wisdom and experience. Mid-level or senior associates oftentimes have comparative expertise at a lower price-point, and junior associates provide a fresh perspective on mature legal issues.

 

These tips may not work for all businesses, but keeping an open mind and working with your counsel to streamline business operations, before discovery, can result in significant bottom-line savings.

 

Regardless of your business size or sector, now is the time to begin planning for discovery.

 

###

Latest Fallout in Garlock Highlights Importance of Thorough Discovery of Bankruptcy Claims

Posted in Asbestos Litigation, Litigation Trends, Toxic Tort

Note: For more MG&M analysis on Garlock, please see previous post by William Larson and Brian Gross.

 

The ramifications of the Garlock asbestos bankruptcy are just beginning to be felt across the country.  As new developments continue to play out, it is important to note that in each of the 15 cases in which Garlock was allowed to conduct additional discovery, the bankruptcy court found evidence that alternative exposures to asbestos were withheld.  This groundbreaking case has shed light on extremely valuable areas of discovery previously not pursued in a thorough enough manner.

 

The case has set in motion a new trend triggering discovery requests for all sources of exposure outlined in prior bankruptcy trust claims. Today, many different entities are seeking additional information regarding any potential withholding of alternative exposure evidence.

 

For example, Sindhu Sundar, writing for Law 360, reports that the bankruptcy court recently granted Ford Motor Company’s request to file a motion in federal district court seeking sealed evidence relative to other potentially withheld bankruptcy claims.

 

Meanwhile, the plaintiffs’ bar has pushed back on Garlock, arguing in a recent motion that Garlock knew of alternative exposures while hiding the evidence.  As a result, the Plaintiffs’ committee in the bankruptcy case has asked that the proceedings relating to the Garlock bankruptcy estimation be reopened, claiming that “Garlock has committed a fraud upon the court”—a charge Garlock attorneys argue is baseless.

 

In Los Angeles, California, Judge Emilie Elias, who has been appointed as the Coordination Trial Judge for all asbestos lawsuits pending in Los Angeles, Orange, and San Diego Counties, has set a hearing on disclosure requirements for bankruptcy trust submissions.  The plaintiffs’ bar has vigorously opposed many of the disclosure requirements, arguing they may file claims simply as “placeholders” to avoid the statute of limitations and such claims should not be discoverable under the attorney work product privilege.

 

Regardless of future rulings on the case, the proceedings highlight the need to conduct thorough investigation and discovery regarding all sources of exposure.

 

As Heather Isringhausen Gvillo noted in Legal Newsline “the ruling should do everything from assisting defense attorneys seeking access to asbestos trust claim submissions as well as fueling both jurisdictional and national efforts to require bankruptcy trust transparency through case management orders or even federal laws.”

 

The lesson learned in Garlock is that companies and insurers involved in asbestos litigation, as well as their attorneys, must insist upon the release of all discoverable bankruptcy trust claims information.  This will sometimes require vigilance and persistence since some plaintiffs’ firms are reluctant or unwilling to provide complete disclosure regarding these sources of exposure.

 

As always, diligent attention to discovery procedures is essential.

 

# # #

Maryland Court Continues Trend, Holding There Is No Duty To Warn For Household Exposure

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

The Maryland Court of Appeals unanimously ruled that Georgia-Pacific Corp. was not liable for illness involving a woman who was exposed to asbestos while doing her father’s laundry in the 1960s.

The Insurance Journal reported on the recent decision:

  • The Court of Appeals ruled that Georgia-Pacific Corp. was not obligated to warn relatives of the dangers of asbestos in the 1960s.
  • The hazard was not sufficiently known until federal regulations were issued in 1972 by the U.S. Occupational Safety and Health Administration.
  • The court’s ruling overturns a $5 million verdict.
  • Jocelyn Farrar had been exposed while doing laundry in the late 1960s and fell ill decades later.

In the decision, available on the website of the Maryland high court (pdf download), the Court explained that it rejected liability because:

  • There was no duty to warn persons such as Ms. Farrar, who was a “bystander of a bystander,” a person who never used the product and never directly came into contact with it.
  • The duty extends to those whom the supplier should expect to use the product or to third persons whom the supplier should expect to be endangered by its use.
  • Even if the danger was foreseeable, prior to 1972 OSHA regulations, it would have been difficult for the company to have provided a warning that could have avoided the danger.

The Maryland decision continues the recent trend in rejecting a duty in cases involving secondary exposure.  In 2012, California followed Ohio and joined the growing list of states which reject the defendant’s duty to an employee’s family member in “take home asbestos” cases. In an article featured in the DRI‘s Newsletter and published on May 9, 2014, co-authors Carter E. Strang and Karen E. Ross also noted the jurisdictions which have rejected secondary exposure claims.  Since their publication, California and Maryland have joined approximately nine other states in rejecting a duty in secondary exposure cases.  Another California court recently came to the same conclusion as the earlier California case in an unreported decision.

However, as Strang and Ross noted in their January 16, 2014 DRI article (pdf download), it is unclear how these cases will play out at the trial level, as a verdict of over $27 million was recently entered in California in a case involving take-home asbestos exposure.

As the National Association of Manufacturers noted, the Maryland Court of Appeals found:

“that there was skimpy knowledge at the time of the danger to household members from asbestos dust brought into the home, and that the company was unable to give warnings directly to such plaintiffs and the warnings would not have had any practical effect. “

Conclusion

Courts nationwide are increasingly rejecting the claims by plaintiffs and their attorneys that seek to impose duties far removed from the allegedly wrongful act.  Defense attorneys can and should seek to impose reasonable limits on the issue of duty to those instances in which harm is reasonably foreseeable to the alleged tortfeasor.  Raising appropriate defenses in cases involving “take home” claims “household” exposure, or secondary exposure is essential to the defense of toxic tort claims.

North Carolina Bankruptcy Court Limits Garlock’s Asbestos Liabilities and Ford Wants the Court Records Unsealed

Posted in Asbestos Litigation, Litigation Trends, Toxic Tort

Court Ruling

Background: Garlock Sealing Technologies, LLC (“Garlock” or “Debtors”) filed for Chapter 11 bankruptcy protection in June 2010.  Garlock had been an active asbestos defendant for its asbestos-containing precut gaskets, sheet gasket material, and packing materials.  In January, after extensive discovery and a trial held under seal, the Bankruptcy Court issued an opinion (pdf download) in which it estimated Garlock’s liability for present and future mesothelioma claims.  The Court adopted the Debtors’ estimate of $125 million despite the $1-$1.3 billion estimate of the representatives of current and future claimants (“Claimants”).

Estimation Analysis: In the past, bankruptcy courts have taken a variety of approaches to estimating liability for present and future claims, which has led to billions of dollars being set aside for claimants in asbestos bankruptcy trusts.  Here, Debtors requested that the Court follow a “legal liability” approach, in which the merits of claims are considered and an econometric analysis is conducted to determine the likelihood of recovery.  Meanwhile, Claimants requested that the Court follow a “settlement approach” based on extrapolating data from Garlock’s past settlements in the tort system.

Before making a determination, Judge George R. Hodges allowed Garlock to conduct additional discovery in 15 cases that it settled or took to trial.  Plaintiffs in these cases were represented by 5 major asbestos plaintiff firms.  In every case, Garlock found that evidence of alternative exposure was withheld.  The Court found on average pre-settlement disclosure of exposure to 2 bankrupt entities’ products, but after settlement those same plaintiffs made claims to an average of 19 bankruptcy trusts.  The Court found several occasions when lawyers misrepresented a plaintiff’s exposure history to judges and juries only to later file claims against trusts for products to which they had previously denied exposure.  Garlock has filed civil lawsuits against several plaintiff firms based on allegations of fraud.  For more details on the allegations and related litigation see the Court’s opinion and accounts from NPR, Forbes, and BusinessWeek.

While the Court recognized a comfort in relying on settlement history to estimate liability, it found in this case a “divorce” from that process was necessary and it adopted the Debtors’ approach and estimate.  The Court determined that the Claimants’ approach did not adequately account for cases in which exposure evidence was withheld and it did not take into consideration the cost of litigation as a driving factor in settlements.  The Court concluded that Garlock’s products were made of low potency chrysotile asbestos and generally Claimants had also been exposed to more potent amphibole asbestos from other manufacturers’ products.  Based on this alternative exposure and the fact that some claimants had never been exposed to asbestos from a Garlock product, the Court concluded Garlock should be responsible only for a small percentage of each claimant’s recovery and only if exposure actually occurred.

The Court adopted the analysis of Dr. Charles E. Bates of Bates White.  It found that $25 million was a reliable estimate of Garlock’s liability to its approximately 4000 current mesothelioma claimants, which is an average of $6,000 per claimant.  The Court also determined $100 million was sufficient to cover future claims based on Dr. Bates’ analysis.  News accounts expect Claimants to challenge these rulings.

Implications: Other entities want to know more about the evidence under seal.  Legal Newsline, which is owned by the U.S. Chamber Institute for Legal Reform, has moved for access to records of the alleged fraud described in the Court’s decision under the First Amendment.  The organization wants the Court to unseal the transcripts of its trial, so it can gather information regarding the plaintiffs’ alleged conduct in those asbestos cases.  Ford Motor Company joined the request last week and claimed that it may have been induced into inflated settlements in some of the cases in which Garlock conducted additional discovery.  If the Court releases the records, it will surely offer a glimpse into the practices of the asbestos plaintiffs’ bar.

Delaware Court Examines Admissibility of Epidemiology Experts in Product Liability Cases

Posted in Toxic Tort

Recently, the Delaware Supreme Court decided Tumlinson v. Advanced Micro Devices, Inc., No. 672, 2012 (Del. Nov. 21, 2013). This case provides a great example of the so-called “gatekeeper” function of the court when it comes to the admission of expert testimony in civil cases. More importantly, it provides context concerning the admissibility of expert epidemiological testimony under the Daubert standard in products liability cases. In Tumlinson, the Supreme Court affirmed a decision of the trial court that excluded an epidemiologist’s expert testimony on the ground that it failed to satisfy the reliability requirements of Delaware Rule of Evidence 702 and Del. R. Evid. 702.

The Facts

The defendant, Advanced Micro Devices, Inc. (“AMD”), a Delaware corporation with offices in several major U.S. and global cities, manufactures semiconductors used in computers. In 2008, the plaintiffs, who worked in AMD’s plants, filed suit against AMD based on their theory that chemicals used in the manufacture of AMD’s semiconductors caused birth defects in their children.

To support their claims, the plaintiffs retained an expert epidemiologist who concluded that the chemicals allegedly present in the AMD plant caused their children’s birth defects. AMD filed a motion in limine, wherein it argued that the epidemiologist’s opinion was unreliable because too many analytical gaps existed in her methodology to render a sound opinion. The trial court agreed.

Daubert Factor #1: Whether the expert’s opinion can be (and has been) tested.

The trial court first found that the expert’s opinion could not be tested because it lacked sufficient specificity. In this case, each of the plaintiffs’ children suffered birth defects that were very different in nature. The court observed that the epidemiologist was unable to identify which specific chemical or combination of chemicals caused the children’s different birth defects. The court further found that the expert did not distinguish between the differing work environments between the two plaintiffs or consider, specifically, how these different environments may have impacted the level of exposure.

Daubert Factor # 2: Whether the expert’s method has been subject to peer review and publication.

The court next considered whether the expert’s methods were subject to peer review and publication. The plaintiffs’ counsel argued that the expert’s opinion was peer reviewed because it was based on three studies that the expert synthesized before formulating her own conclusion. The court ruled that an expert’s opinion, even if based on the synthesis of peer reviewed studies, must demonstrate an independent indicia of reliability. The court found that there was nothing in the record to provide this independent reliability and, furthermore, the studies cited by the expert were produced in the context of other litigation and, themselves, unreliable.

Daubert Factor #3: Whether the methodology has attracted widespread acceptance within a relevant scientific community.

Finally, the trial court found that the epidemiologist failed to demonstrate that she relied on techniques that have gained acceptance in the scientific community. In reaching this conclusion, the court first observed that there are multiple scientific approaches that epidemiologists use to establish causation. Turning to the expert’s opinion, the court then found that she did not demonstrate that her opinion was the product of any of these accepted approaches. Specifically, the expert failed to detail her method of weighing the importance and validity of the data sources she used to form her opinion.

Take-Away:

When assessing the validity of an expert report, it is important to consider the factors highlighted above: does the report sufficiently state the scientific method used? Is the opinion based on reliable, peer reviewed sources? Does the expert consider objective data? Has the expert set forth each analytical step toward reaching his or her conclusion or has the expert ignored any consideration that might alter the opinion? As this lower court’s opinion and its affirmance by the Delaware Supreme Court demonstrate, the answers to these questions may determine the fate of your clients in complex product liability litigation.

Congresswoman’s Asbestos Lawsuit Emblematic of an Increasing Trend of Allegedly Asbestos-Related Lung Cancer Cases

Posted in Asbestos Litigation, Delaware Courts, Litigation Trends

Companies and insurers continue to experience an increase in the number of lawsuits they face, which involve Plaintiffs who allege that their lung cancer was caused by asbestos exposure, despite the fact that many of these Plaintiffs were longtime smokers.  The trend, which has emerged over several years, has gained nationwide prominence as highlighted by New York Congresswoman Carolyn McCarthy’s asbestos lawsuit.

Congresswoman McCarthy sued more than 70 companies alleging that their asbestos-containing products caused her lung cancer, despite the fact that she spent 30 years as a nurse and was a heavy smoker for more than 40 years, writes Daniel Fisher in Forbes. As Fisher notes, lung cancer claims in Madison County, Illinois and Delaware have more than doubled since 2010.

As Joe Nocera recently wrote in the New York Times, the upsurge in lung cancer cases appears to be driven by economic incentives.

The increase in lung cancer filings is notable not only because of the number of additional filings, but also because many of the injured parties are longtime smokers.  Congresswoman McCarthy, for example, reportedly “is such an avid smoker that she’s known around Capitol Hill for taking breaks ­between votes.

Marc C. Scarcella and Peter Kelso have recently published on the subject of the economic incentives of lung cancer cases.  Lung cancer filings in Madison County and Delaware have increased from less than 200 in 2000, to an estimated total for 2013 of more than 1,200.  The trend is especially notable given that smoking is likely a contributing factor in 90% of lung cancer cases, (pdf download).

As Daniel Fisher noted in a follow-up article, despite her admitted 30-year smoking history, Congresswoman McCarthy denied that her lung cancer was caused by smoking.

Conclusion

With ever-increasing lung cancer lawsuits involving allegedly injured parties, zealous and thorough investigation and representation are even more important.  Determining the injured’ party’s smoking history is not only essential, but should be a critical and repeated theme woven throughout the defense of the case by defense attorneys.  Companies and insurers faced with lung cancer lawsuits involving alleged asbestos exposure must be vigilant regarding questionable claims.

Top 5: Changes to New Delaware Asbestos Standing Orders

Posted in Asbestos Litigation, Delaware Courts, Litigation Trends

Approximately a year ago Delaware Asbestos Judge John A. Parkins, Jr. asked the asbestos bar to recommend a revised Standing Order No. 1  (pdf download) and General Scheduling Order (pdf download) (“GSO”) to govern the ten asbestos trial settings in Delaware each year.  The endeavor was led by the ADR Master, David A. White, and then Judge Joseph R. Slights, III, who is now a practicing lawyer in Wilmington.  Judge Slights previously presided over the asbestos docket.  A year of negotiations led to joint proposed orders.  After a few minor changes, the Court issued the new orders earlier this month.  Transitioning to the new orders is still a work in progress, but it appears they will take full effect starting with cases scheduled for trial in February 2015.  Here are the Top 5 Changes you should know:

  1. The new standing order streamlines deadlines, while expanding the number of days in the GSO for most cases and providing an expedited track for exigent cases.  The new GSO has only 24 deadlines compared to 60 deadlines in the old GSO.  Unnecessary deadlines were removed and others were combined to allow for the more efficient processing of cases.  Under the prior GSO, discovery and pretrial took place over a 360 day schedule.  Now non-exigent cases will have a 420 day track and exigent cases, in which Plaintiffs provide certain discovery in advance of docketing for trial, can use “a spur” to jump into the GSO 320 days from trial.
  2.  New Standing Order No. 1 updates plaintiffs’ production requirements regarding claims forms.  Within 60 days of filing a complaint, plaintiffs must produce copies of all claims forms and all related materials.  In addition to bankruptcy trust proof of claims forms, plaintiffs must also produce applications for Social Security benefits, worker’s compensation benefits, military service benefits, and disability benefits.  Plaintiffs have an obligation to supplement these records up to the time of trial.  The new order expands plaintiffs’ production requirements and makes clear their ongoing obligation to produce these documents.
  3. The new GSO requires that the parties complete summary judgment fact discovery prior to the drafting of motions for summary judgment.  Practically speaking, the major change provided in this provision is that it allows plaintiffs an opportunity prior to motions for summary judgment to depose witnesses on which defendants plan to rely for those motions.  This provision should provide a more complete factual record for motions for summary judgment.
  4. For the second time in his tenure as Asbestos Judge, Judge Parkins moved summary judgment oral arguments earlier in the process.  Shortly after assuming the docket, he moved oral arguments from 30 days prior to trial to 60 days.  The goal was to give the Court time to rule on motions taken under advisement and the parties time to resolve claims prior to trial.  The new GSO calls for oral argument 100 days prior to trial.  The new oral argument date further accomplishes the Court’s goals discussed above and allows for motions to be heard prior to expert discovery, thus reducing transactional costs for all parties.
  5. The new GSO requires the parties be more prepared for trial at the pretrial conference which takes place 5 days before trial.  This provision is one of the few changes the Court made to the bar’s proposed order.  By the pretrial conference, the parties must now have completed all video depositions and provide proposed jury instructions and proposed verdict sheets.  The Court also now requires that all depositions read to the jury or played by video must be “reasonable” in length.  The Court further provided templates for the Court’s approved format for the Joint Pretrial Memorandum (pdf download) and Jury Screening Questionnaire (pdf download).

Asbestos Cases and Every Exposure Causation: Proper Expert Witness Preparation Is Essential In Any Jurisdiction

Posted in Asbestos Litigation, Litigation Trends

Judge's GavelCompanies around the country grapple with different standards of causation in different jurisdictions.  If recent trends continue, some jurisdictions may take a harder look at the “every exposure” theory of causation advanced by plaintiffs’ attorneys in asbestos litigation.

Pennsylvania has recently reaffirmed the “well established” concepts involving the requirements for substantial factor causation:

  • The each and every exposure theory may not be relied upon;
  • The plaintiff bears the burden of proof as to frequency, regularity, and proximity of alleged exposures
  • In cases involving dose-responsive diseases, expert witnesses must consider dose as a factor in their opinions;
  • De minimus exposure is not enough to establish substantial factor causation;
  • An individual analysis of the particular injured parties’ exposure history is required
  • Summary judgment is proper in light of de minimis exposures.

The recent Pennsylvania decision confirmed the Pennsylvania high court’s decision from 2012, in which the Court explained that

“Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive”.

As Bryan Redding noted on the LexisNexis Legal Newsroom Litigation Blog, the Pennsylvania Court found that the single fiber theory offers a broad-scale opinion on causation to anyone who inhaled a single asbestos fiber above background levels, and in doing do, the plaintiff’s pathologist “did not use the language of a methodology or standard applied in the field of pathology.  Maddox’s testimony makes it clear that his opinion was grounded in risk assessment” which is not typically within the field of expertise of pathologists.  As such, defense attorneys should be attuned to the qualifications of the experts who may offer every exposure-based testimony.

The rejection of the every exposure theory appears to be a growing trend.  As Arlow M. Linton noted, courts in Rhode Island and Utah have also rejected the every exposure approach to causation in the past year.

Texas has required an analysis of the frequency, regularity, and proximity with defendant-specific evidence relating to the dose to which the plaintiff was exposed for several years now. Borg Warner decision pdf download. Not all jurisdictions have required such a rigorous causation analysis.  For example, Illinois courts are also required to consider the frequency, proximity, and regularity, but the Illinois courts allow plaintiff’s experts to offer opinions that every exposure is a substantial factor. Noland decision pdf download.

Similarly, the Supreme Court of California has set forth a rule requiring that trial courts take frequency, regularity and proximity into account, but lower courts in California have often applied this standard in manner in essentially the same manner as in Illinois.  Rutherford decision pdf download. Hernandez decision pdf download.

Take Away

Courts seem to be increasingly skeptical about the every exposure theory.  However, even in jurisdictions where existing case law does not require a diligent analysis of causation based on the duration, frequency and proximity of the alleged exposures, the same basic principles can still assist in the defense of the case.  Thorough expert discovery in particular is crucial for the defense of these cases.  Determining whether the plaintiff’s expert witnesses have any education or training on which they base their opinions and exploring the internal consistency of their opinions and their methodology is of the utmost importance.  Even in jurisdictions that allow experts to offer generalized conclusions that a single exposure is a substantial factor, courts should still require those experts to have a proper basis for that opinion.

Companies and insurers involved in asbestos litigation should be willing to undertake serious expert witness discovery, both offensively and defensively.  A comprehensive evaluation of the medical and scientific bases of the plaintiff’s case is more important now in light of these trends.

Delaware Judge Upholds $2.8 Million Verdict in Galliher Asbestos Trial

Posted in Asbestos Litigation, Delaware Courts

industrial talc powder

Background: 

Judge John A. Parkins, Jr. recently upheld a $2.8 million verdict awarded to the estate of a deceased 62 year old man in a mesothelioma case .  The Simmons firm represented Plaintiffs in this case against R.T. Vanderbilt (“Vanderbilt”).  Plaintiffs argued that Vanderbilt’s NYTAL industrial talc (pdf download) contained asbestiform materials and caused Mr. Galliher’s mesothelioma.  Vanderbilt argued that those asbestiform fibers could not cause mesothelioma.  At trial, Vanderbilt moved for a mistrial based on inadmissible testimony presented to the jury and judgment as a matter of law.  Judge Parkins denied the motion for a mistrial and reserved ruling on the motion for judgment as a matter of law.  Vanderbilt renewed its motions after trial and recently the Court denied both motions (pdf download).

Motion for New Trial:

Vanderbilt moved for a new trial based on the following evidence presented to the jury which it claimed was improper:

  • Plaintiffs failed to remove certain excluded hearsay testimony from the video testimony of a Vanderbilt employee regarding asbestos being present in the talc.
  • Dr. Barry Castleman inappropriately suggested that Vanderbilt spent $16 million “buying senators and lobbying the government.”
  • Dr. Castleman inappropriately referenced Johns Manville calling Vanderbilt “liars” regarding the marketing of its talc.
  • Sean Fitzgerald inappropriately relied upon ratios derived from an excluded report in his testimony.

Reasoning

Judge Parkins analyzed each of Vanderbilt’s arguments and determined they did not warrant a new trial.  Considering each claim individually, he found:

  • The Vanderbilt employee’s hearsay testimony was cured through a curative instruction.  Moreover, Vanderbilt had an opportunity to review the edited tape before it was shown to the jury, but did not find the mistake prior to its presentation to the jury.  The Court noted, “Vanderbilt took a calculated risk when it sent only one counsel to try the case.”
  • Dr. Castleman gave the $16 million statement in response to questions from Vanderbilt’s attorney.  The Court struck the testimony and instructed the jury to disregard it.  Ultimately, it determined that the testimony was not significant enough to warrant a new trial.
  • Dr. Castleman testified regarding the liars comment in response to questions from Vanderbilt.  The testimony comes directly from a paragraph in Dr. Castleman’s book, about which Vanderbilt specifically asked.  Vanderbilt’s argument largely fell on deaf ears because as the Court stated, “for no obvious reason Vanderbilt’s counsel decided to venture into the minefield.”
  • The Court determined the Fitzgerald testimony was cured through curative instructions.

Take-Away

Given the high standard for a new trial, the Court is unlikely to grant one unless the errors are egregious.  The Court will make every effort to cure prejudice during trial through curative instructions as it did here.  Finally, the Court appears to suggest that given the complexity of asbestos trials, the last minute nature of many evidentiary rulings inherent in these trials, and the time constraints of this trial (counsel had limited time to present the case), defendants should consider sending two trial counsel or rely more heavily on local counsel to assist with daily trial preparation.

Motion for Judgment as a Matter of Law:

Vanderbilt offered the following reasons the Court should grant judgment as a matter of law in its favor:

  • Plaintiffs failed to offer sufficient testimony that Mr. Galliher worked with or around the talc on a frequent and regular basis.
  • Plaintiffs failed to offer sufficient evidence that asbestiform fibers caused Mr. Galliher’s mesothelioma.
  • Plaintiffs failed to offer evidence that Vanderbilt was on notice of the dangers of asbestiform fibers giving rise to a duty to warn.
  • Plaintiffs failed to offer evidence that Vanderbilt’s warning was inadequate.

 Reasoning

Judge Parkins determined that the jury relied on reasonable record evidence to support its findings.  Plaintiffs offered several experts in support of their argument that asbestiform fibers in the talc caused Mr. Galliher’s mesothelioma and the jury relied on that testimony.  They also offered evidence that Mr. Galliher worked with the talc and that it contained a warning that said non-asbestiform.  Accordingly, the verdict was grounded in the evidence and Judge Parkins would not overturn the jury’s decision.

Take-Away

The Delaware standard for judgment as a matter of law after the jury returns a verdict is highly deferential to the jury.  Here, the pivotal issue was whether fibers in the talc could cause mesothelioma.  The best way to challenge scientific testimony in Delaware is through a Daubert challenge.  If a party’s witnesses and cross-examination of the other party’s witnesses is insufficient to convince a jury the science is inadequate, the Court is unlikely to overturn their finding.  Moreover, convincing a jury that a product cannot cause mesothelioma is a difficult proposition, when you cannot point the finger at another party as was the case here.

* Disclosure: Bill Larson served as Judge Parkins’ law clerk during the Galliher trial, but had no involvement in this decision. 

Social Media: #Discovery

Posted in Litigation Trends

Everybody Into The Digital PoolThere is little doubt that Facebook, LinkedIn, and Twitter have enhanced our ability to communicate with one another and express our ideas and feelings. These social networks—and countless others—make it easy to share photographs of our children at birthday parties, organize social events, or boast about our latest culinary creations. Often, we use social networking platforms to communicate our state of mind in real time (i.e., status updates). We expect that only our closest friends and family will be interested when posting a picture from last night’s party on Facebook or Instagram. It is a rare and litigious person, indeed, who understands that his or her status updates could be discoverable in a lawsuit.

In Romano v. Steelcase Inc., the Supreme Court of Suffolk County, New York granted a defendant’s motion to compel access to the plaintiffs’ social networking accounts. In doing so, the court reasoned that those “who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action … including a plaintiff’s claim for loss of enjoyment of life.” The plaintiffs posted images of themselves smiling outside their home to a publicly accessible Facebook page despite legal claims that they were restricted to bed by their injuries. The court found that, under such circumstances, “there is a reasonable likelihood that the private portions of [plaintiffs’ Facebook pages] contain further evidence” regarding their enjoyment of life.

Claims for personal injury, including products liability and complex tort actions, almost always demand relief for emotional pain and suffering. That being so, what defense litigation attorney would not cherish Instagram photos of the personal injury plaintiff dancing at a party? Employment disputes may also contain elements of emotional distress, suggesting discoverability of social network data. Certainly, a Tweet could be central to a defamation case. With so much of our lives online, it is hard to imagine many circumstances where social media evidence is not responsive to a narrowly tailored and reasonable discovery request.

The discovery rulings, much like the social networking sites, continue to develop. In July, the Southern District of Indiana decided that “tagged” photographs are discoverable (“Tagging” is a process by which a third party can take and post a photograph and digitally associate the photograph with the responding party, thereby making such photographs available on the responding party’s Facebook page).  The Employer Handbook: Facebook “tagging” adds a new wrinkle to social media discovery. Consequently, even the actions of third parties over which the responding party bears little control may be subject to a well-drafted and targeted discovery request.

Take Away

Of course, discovery of social networking data must have limits. Less than a year after the New York Supreme Court decided Romano, the court ruled that a demand to access a party’s social media account cannot amount to a “fishing expedition.” Caraballo v. City of New York. Generally, a discovery request is almost always successful when narrowly tailored and likely to result in admissible evidence. The information is, most often, rightfully discoverable provided that there is a factual predicate for the request. These discovery principles cannot change even though the types of information to which they are applied frequently do. For discovery request examples, see Sample Discovery Requests: Facebook and Social Media.