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WWJG Do? What Will Justice Gorsuch Do, With “All Exposures Contribute” Testimony in Toxic Tort Cases?

Posted in Litigation Trends, Products Liability, Toxic Tort

On January 31, 2017, President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. Although time will tell, this post assumes he will make it through the Senate confirmation process, and take his place at 1 First Street, Northeast. Currently, Judge Gorsuch sits on the United States Court of Appeals for the Tenth Circuit, having been appointed to same by President George W. Bush on July 20, 2006.  While at the Tenth, Judge Gorsuch issued two interesting decisions which may prove instructive as to how he views the Court’s role as the evidentiary gatekeeper[1] of expert testimony. A discussion of those two cases, and what they foretell with regard to “all exposures contribute” testimony follows.

Graves v. Mazda Motor Corp., 2010 WL 5094286.

This case arises out of Mrs. Graves’ trip to Hattiesburg, Mississippi. Upon arriving at the Hattiesburg airport, she picked up her rental car—a Mazda 6 with an automatic transmission. At the end of her stay and while en route to the airport to depart for home, Mrs. Graves got lost and pulled over to ask for directions. When exiting the car, Mrs. Graves left the engine running but thought she had placed the car’s shifter in “park.” As it turns out, the gear shifter was in “reverse” and, when she stepped out, the car rolled backwards, knocked her to the ground, and ran her over. Mrs. Graves sought damages from Mazda for the injuries she suffered, alleging that the company’s gear shifter was defectively designed. In support of her claim, she offered expert testimony from an expert human factors engineer. The district court, however, excluded the expert’s testimony as unreliable and then, given the absence of any other probative evidence of liability, granted Mazda’s summary judgment motion. On appeal, the plaintiff sought to undo the district court’s decision.

The district court noted that the expert failed to provide any data or industry standard, or to conduct any testing to confirm his view that Mazda’s gear shift design was defective. Instead, the expert’s proffered testimony that merely described how the Mazda shifter works, and from this, his leap to the conclusion that Mazda’s design fails to allow for “smooth” shifting and so is defective and unreasonably dangerous.

Judge Gorsuch, writing for the three judge panel (Kelly, J., Ebel, J.) noted that without any reference to data suggesting how “smoothly” an ordinary consumer would expect a gear shift to move, without any confirming evidence indicating how Mazda’s design might cause shifting troubles for ordinary drivers, without any reference to how engineering standards might have counseled against Mazda’s gear shift design, and without any other evidence suggesting its reliability, the district court was right to exclude the expert’s testimony. Judge Gorsuch noted that the expert did provide a list of “safety systems analysis” techniques that, he contended, Mazda should have used in assessing its design, but even here, the expert failed to offer any evidence suggesting that Mazda actually failed to use these techniques, or if it did, that these techniques would have led Mazda to conclude that it needed to pursue a different gear shift design.

BancFirst v. Ford Motor Co., 489 Fed.Appx. 264 (2012); 2012 WL 2899053.

This case arose out of a tragic accident, in which a child darted out of an intersection and was struck by a truck. The young victim’s guardian sought to establish that the driver counter-steered (something the driver denied) in order to place responsibility for the accident with Ford and their allegedly defective brakes. The district court, however, concluded that the expert did not meet the standards for admissible expert testimony set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and because the guardian lacked any other evidence suggesting Ford’s braking system was the cause of the accident, granted summary judgment.  The guardian appealed.

Judge Gorsuch, again writing on behalf of a unanimous three judge panel (Tymkovich, J., and Baldock, J.), agreed with the district court judge who found “simply too great an analytical gap between the data and the opinion proffered.” This was especially so given the driver’s concession that when he saw the victim dart into the intersection he didn’t counter-steer to the right but instead hit the brakes and turned hard to the left, only to have the truck spin counterclockwise and causing its right rear corner to hit the child. As Judge Gorsuch noted, this was easily understandable as steering right into the skid would have required the driver to turn the wheel toward the child, making an already counter-intuitive maneuver all the more so given his desperate wish to avoid hitting her.

Attempting to bridge the gap between his opinion and the driver’s unhelpful admission, the expert pointed to police photographs showing that the wheels of the truck were turned to the right after the accident. But, as the district court noted, there was no indication when the wheels were turned to the right, before or after the accident. Moreover, the expert’s testimony that driver education courses usually teach new drivers to counter-steer out of a slide, fails to include evidence that the driver was so taught, or that drivers tend to follow this training in the heat of the moment when doing so requires them to turn, seemingly paradoxically, toward a person they are seeking to avoid. A similar problem recurs with the expert’s reference to a study which shows the driver theoretically had enough time to make the counter-steer. Judge Gorsuch found even if the study stood for such a proposition, there was still no evidence that the driver did counter-steer, or that drivers tend to do so even when it requires them to turn back in the direction of a person with whom they are about to collide. In so doing, the Court excluded the expert testimony and granted Ford’s Motion for Summary Judgment.

All Exposures Contribute Testimony

Occupational diseases such as Acute Myeloid Leukemia, Mesothelioma, Byssinosis, Silicosis and Black Lung Disease have long latency periods, and often times follow multiple sources of exposure. Typically, the only viable defendants remaining at trial are those whose products are encapsulated in materials or used in a manner unlikely to cause a sufficient dose to lead to disease. To get around this evidence, plaintiffs’ experts often opine that “every exposure,” “every exposure above background,” or “total and cumulative exposure” substantially contributes to the development of the plaintiff’s disease. Often times experts also opine that “there is no known safe level of exposure and as such all exposures must be included in attributing causation.”  How courts handle such testimony has been discussed at length in this Blog, so will not be discussed here.  See e.g., Senter, Meghan, Another Blow to “Every Exposure” in Asbestos Litigation, January 5, 2017;  Cree, Jennifer, Causation Standard at Center of PA Supreme Court Asbestos Ruling, December 6, 2016; Moore, Elizabeth, Plaintiff’s Experts Barred from Offering “Any Exposure” Theory in Asbestos Lung Cancer Case, March 10, 2015.

The Graves and BancFirst decisions authored by Judge Gorsuch, may however, give us some insight as to how a Supreme Court Justice Gorsuch would handle the issue.  For example, Judge Gorsuch will not be swayed by the exceptional credentials held by many experts espousing such testimony. As he noted in Graves, … while … we appreciate and recognize the expert’s credentials and don’t doubt the value someone in his field can bring to defective design cases, the evidence he proffered in this case rests on no more than his say so—and that isn’t good enough to require its admission. “Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence” based on only “the ipse dixit of the expert[,]” however well qualified he may be. ..” (citation omitted).  Similarly, as he noted in BancFirst, gaps between opinion and data, will inevitably result in the court’s exclusion of the testimony, … “an expert’s scientific testimony must be based on scientific knowledge, which ‘implies a grounding in the methods and procedures of science’ based on actual knowledge, not ‘subjective belief or unsupported speculation.’ (citations omitted).

Based upon the above a Supreme Court Justice Gorsuch will likely see the flawed methodology behind opinions that any exposure, no matter how slight, remote, or insignificant was a cause or substantial contributing factor to the development of disease. It appears he will be open to defendants’ arguments that such testimony is purely speculative, rests upon flawed methodology, and ultimately, cannot be said to be helpful to the trier of fact.  This will be especially so when presented with epidemiology discounting the no safe level standard, industrial hygiene evidence regarding specific products’ abilities to create exposures and the like.  If the Graves and BancFirst decisions are any indication, Justice Gorsuch takes his gatekeeper role very seriously, and will not be afraid to exclude junk science such as that referenced above.

[1] For a discussion of the court’s gatekeeper role, see Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

 

Does Increased Regulation of E-Cigarettes Threaten to Make the Vaping Industry Go Up in Smoke?

Posted in California Courts, Complex Torts, Litigation Trends, Products Liability

e-cigarette-1301664__340Recently, the Food and Drug Administration has regulated electronic cigarettes, making it illegal to sell e-cigarettes to anyone under 18. Similarly, California recently enacted legislation requiring a minimum purchase age of 21 for e-cigarettes.

Tobacco critic Stanton Glantz argued in favor of the minimum purchase age, stating that “There’s no question that e-cigarettes aren’t as dangerous as cigarettes are,” he says, “but they’re still dangerous.” Federal regulations have also prohibited e-cigarette retailers from providing free samples to customers and state regulations have required retailers to register and obtain a license.

E-cigarettes contain nicotine, flavoring, and a propylene glycol (a food additive classified as “generally recognized as safe” by the FDA). However, e-cigarettes do not contain tobacco, the main carcinogen in traditional cigarettes.

 

Is Vaping a Safe Way to Quit?

In contrast to the American approach, in the United Kingdom, “British health officials released what was billed as a ‘landmark review’ of electronic cigarettes. In it, e-cigarettes were described as “‘around 95 percent safer than smoking’” and “the study encouraged e-cigs to be labeled as an effective means of helping smokers curb and kick the deadly habit.”

A cutting-edge study funded by Cancer Research UK has demonstrated that if smokers completely quit smoking tobacco and switch to vaping, they will substantially reduce their intake of toxic chemicals and carcinogens. According to lead research Lion Shahab, a senior lecturer at University College London, the “study shows that bodily level exposure to established and important smoking-related carcinogens and toxicants is reduced by between 56 percent to 97 percent in long-term e-cigarette users who have stopped smoking completely, compared with tobacco cigarette smokers.”

According to Dr. Ed Stephens, senior research fellow at the University of St. Andrews, “This paper confirms the potential benefits of e-cigarettes and contributes to the growing body of evidence that the risk from chemicals in vapour is far lower than in cigarette smoke when an e-cigarette is used as the manufacturer intended.”

 

Make Vaping Great Again?

Although there is now scientific evidence that vaping represents a significantly safer alternative to smoking, regulators and anti-smoking advocates are continuing their efforts to regulate electronic cigarettes.

Given the lack of scientific consensus on the issue of the risks involved with e-cigarettes and the potential to save the lives of cigarette smokers, regulators should be encouraged not to enact any additional regulations that could decrease access to e-cigarettes and should consider reevaluating or repealing existing regulations. American regulators should adopt the “light touch” approach advocated by Cancer Research UK.

Meanwhile, some trade groups have expressed cautious optimism that the FDA will delay implementation of e-cigarette regulation in the Trump administration.

The issue continues to be hotly debated, leaving e-cigarette manufacturers, retailers, and their insurers to educate themselves regarding the applicable laws and regulations and put effective policies in place to guard against regulatory violations and lawsuits.

Manufacturers Benefit from Georgia Supreme Court Ruling on Take-Home Exposure

Posted in Asbestos Litigation, Litigation Trends, Products Liability

Court RulingThe Georgia Supreme Court has weighed-in on the issue of manufacturers’ liability for take-home exposure cases. In the opinion recently issued in CertainTeed Corporation v. Fletcher, the Court drew an unexpected distinction between a manufacturer’s duty to issue warnings and its responsibility to keep harmful products out of the stream of commerce. Justice Carol Hunstein, writing for the Court, concludes that while manufacturers do not generally have a duty to warn third parties of the possible hazards of asbestos dust from its products, a manufacturer does bear the burden of proving that its product, as designed, is not defective. The opinion comes as a bit of surprise, as it seems to contradict a prior opinion issued by the Court, wherein it held that an employer owes no duty to third-party, non-employees, who come into contact with its employees’ asbestos-tainted work clothing at locations away from the work place.

Plaintiff Marcelle Fletcher filed suit in Georgia after being diagnosed with malignant pleural mesothelioma. In her complaint, Fletcher alleges that years of laundering her father’s asbestos-tainted clothing caused her to come into contact with asbestos from cement water pipe manufactured by CertainTeed, which eventually caused her mesothelioma. When the trial court granted CertainTeed’s motion for summary judgment on Fletcher’s failure-to-warn and product defect claims, Fletcher appealed. The appellate court reversed and the Georgia Supreme Court thereafter granted review of CertainTeed’s appeal.

On appeal, the Supreme Court held that CertainTeed, as a manufacturer, owed no duty to warn Fletcher of the possible hazards of asbestos dust from its products. In reaching its conclusion the Court cited public policy concerns that could result from an expansion of the class of individuals protected by a manufacturer’s duty to warn, stating that any such duty placed on the manufacturer would ultimately shift to the product user. Looking at the facts in the case before it, the Court determined that while “Fletcher would not have seen any warning label placed on CertainTeed’s products … a warning could have permitted her father to take steps to mitigate any danger posed by the asbestos dust on his clothing.” The Court nevertheless determined that such a conclusion would be “problematic” in that it effectively makes the product-user responsible for protecting those with whom he or she comes into contact, whether those individuals were members of the same household or members of the same community. The Court reasoned that imposing such an indefinite and imprecise duty on CertainTeed to warn all individuals in Fletcher’s position would be unreasonable, classifying the scope and mechanism of such warnings as “endless.”

Regarding Fletcher’s design defect claim, however, the Supreme Court upheld the appellate court’s reversal of summary judgment, finding that CertainTeed had failed to prove that its product was not defectively designed. The Court’s holding seems, at first, to contradict its 2005 decision in CSK Trans. v. Williams, 278 Ga. 888, 608 SE 2d 208 (2005), wherein the Court barred take-home exposure claims against employers, holding that employers did not owe a duty to the household members of its employees. The Court in Fletcher drew a distinction between the duties owed by an employer to its employees’ household members and the duties owed by a product manufacturer to third-party, non-users of its products. The Court explained that unlike a duty to warn claim, analysis of a design defect claim centers on the conduct of the manufacturer and the reasonableness of its product’s design. Both factors are considered within the standard framework of risk-utility analysis utilized in product liability claims, including the consideration of factors such as the usefulness of the product and whether the manufacturer acted reasonably in choosing a particular product design given the seriousness of the risk posed by the product.

Moving forward, the current ruling lessens the burden on manufacturers defending take-home exposure claims in Georgia by eliminating the need for those manufacturers to prove that they issued sufficient warnings decades ago, a generally fact-sensitive determination that often hinges on witness testimony and presumably faulty memories. Manufacturers can likewise find some relief in the Court’s holding regarding design defect claims. Because the analysis of a design defect claim does not consider a plaintiff’s use of the alleged defective product but rather focuses on the manufacturer’s conduct in designing the product, manufacturers are in a position to establish and fine-tune these defenses without having to rely heavily on the specific facts of each case where it applies. Given the Court’s ruling on duty to warn claims, we expect that the State of Georgia will see an increase in design defect claims brought by take-home plaintiffs.

Recent Fifth Circuit Ruling a Relief to United States Government Equipment Suppliers

Posted in Asbestos Litigation, Complex Torts, Litigation Trends, Products Liability

battleshipIt is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to parties.  Further, the Federal Rules of Evidence tend to be more stringent, as are requirements for expert witnesses.  These, and the notion that federal courts tend to grant motions to dismiss and motions for summary judgment more frequently and award lower verdicts, means that plaintiffs would often rather file their cases in state court and conversely, defendants often prefer to litigate these cases in federal court. Consequently, when possible, defendants often will remove a case filed in state court to the applicable U.S. District Court where the state action was pending. One such method of removal is found in 28 U.S.C. § 1442(a)(1), the federal-officer removal statute. Specifically, § 1442(a)(1) allows a defendant that acted under any United States agency or officer to remove a plaintiff’s suit to federal court if any of the alleged claims or defenses relate to “any act under color of such office.” This is a frequently used tool of military contractors to get their government contractor defense heard by a federal court.

Government contractor immunity is a recognized federal defense based on public policy (See Boyle v. United Technologies Corp., 487 U.S. 500 (1988)). It is an offshoot of the governmental immunity doctrine codified in 28 U.S.C. § 2680, which insulates the federal government from suit in relation to the performance of its discretionary actions. Military contractors may be extended the benefits of §2680 in a product liability action if they can demonstrate that: (1) the government “approved reasonably precise specifications” for their product; (2) the product conformed to those specifications; and (3) the contractor warned the government about the dangers in the use of the product that were known to it but not to the government.”  Boyle, 487 U.S. at 512.

Military contractors of all stripes expressed a collective sigh of relief on January 20, 2017, when the Fifth Circuit Court of Appeals fortified the federal officer removal statute in Zeringue v. Crane Co., 2017 WL 279496 (5th Cir. 2017), a decision which overturned the Eastern District of Louisiana’s remand of an asbestos plaintiff’s suit to Orleans Parish District Court. In Zeringue, the Plaintiff filed suit in Louisiana state court alleging that he first was exposed to asbestos while serving aboard U.S. Navy ships during the 1950s. Crane, one of more than twenty defendants in the case, was a major supplier of asbestos-containing valves, among other equipment, to the Navy. Accordingly, Crane invoked the federal officer removal statute so that it could litigate the case in federal district court. It argued that removal was proper because “any product [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings that accompanied the product) would be subject to Navy specifications and requirements.” Zeringue, 2017 WL 279496 at *1. As such, Crane argued that “[f]ederal officers exercised their discretion regarding whether (1) asbestos was used in the product, and (2) whether a warning would accompany the product.” Id.

In support of its position, Crane proffered three affidavits. The first, from Crane’s Vice-President for Environment, Heath, and Safety, stated that “all equipment supplied by Crane Co. to the Navy was built in accordance with [Navy] specifications” which “governed all aspects of a piece of equipment.” Id. at *4. The second affidavit was prepared by a former admiral in command of operation and maintenance of Navy ships who explained that “[e]quipment could not have been installed aboard Navy vessels unless it was first determined by the Navy to be in conformity with all applicable Navy specifications.” Id. Finally, a former Navy physician that oversaw naval industrial hygiene testified that “the Navy’s knowledge of asbestos dangers ‘has been quite complete when compared to available knowledge over time, and at least by the early 1940s, the Navy had become a leader in the field of occupational medicine relating to, among other things, asbestos dust inhalation exposure.’” Id.

The District Court, however, sided with Zeringue in his attempt to return the case to state jurisdiction. Notably, the District judge agreed that Crane “allege[d] all the elements for…federal officer removal” and “provided evidence that permitted a ‘plausibl[e] assum[ption] that any equipment that Crane built for the Navy was indeed subject to detailed specifications.’” Id. at *1. Yet, Zeringue’s case was sent back to the state court because the federal court did not believe Crane proved that the Navy exercised discretion over the equipment Crane supplied.

Crane appealed the District Court’s ruling to the Fifth Circuit, which thoroughly rejected the lower court’s holding. The appeals court explained that a federal defense, such as government-contractor immunity, must only be colorable to permit federal jurisdiction. A colorable federal defense is one that is material, not “wholly insubstantial and frivolous,” and not made solely for the purpose of obtaining federal jurisdiction. Id. at *2. The Circuit Court noted that the affidavits submitted by Crane, although not conclusive, fell well within the scope of colorability:

[The documents] are not definitive proof that Zeringue’s asbestos exposure resulted from the Navy’s—not Crane’s—discretionary decision, nor are they definitive proof that Crane did not need to supply the Navy with information regarding the dangers of asbestos because of the Navy’s existing knowledge. But definitive proof is not necessary for removal, and the military specifications and affidavits do suffice as a non-insubstantial and non-frivolous basis upon which Crane may assert government-contractor immunity.

Id. at *4. (Emphasis added).

In sum, the Fifth Circuit has joined a number of other federal Circuit Courts in holding that a removing defendant need not win its case on removal.  Instead, the removing defendant need only demonstrate that it has a colorable federal claim or defense in order to litigate the case in federal court.

U.S. Supreme Court to Weigh In on Personal Jurisdiction as State Courts Have Gone Rogue

Posted in California Courts, Litigation Trends

Lady JusticeEver since the United States Supreme Court’s 2014 decision in Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), in which the Court held that general personal jurisdiction exists over a corporation only where the corporation is fairly regarded as “at home,” many plaintiffs and state courts have attempted to distinguish Daimler in an effort to expand the boundaries of a court’s exercise of personal jurisdiction. It should come as no surprise then that the U.S. Supreme Court, with five personal jurisdiction cases before it and its Daimler decision seemingly under attack, ultimately decided to grant review of two such cases in 2017: BNSF Railway Co. v. Tyrrell, and Bristol-Myers Squibb Co. v. The Superior Court of San Francisco County, which attack the Daimler holding from very different perspectives.

As you may recall from your first year law school basics, personal jurisdiction requires, among other things, that the “the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).  This can be established through either specific jurisdiction, where the defendant has sufficient contacts with the forum state which directly relate to the underlying controversy, or general jurisdiction, where “the [ defendant’s] affiliations with the [forum s]tate are so ‘continuous and systematic’ as to render them essentially at home in the forum [s]tate.” Daimler, 134 S. Ct. at 748-49, 760.

BNSF Railway, begs the question as to whether a state court may decline to follow the Supreme Court’s decision in Daimler, as The Montana Supreme Court directly challenged the limitations on general personal jurisdiction established by the Daimler Court. It did so by holding that the Federal Employers Liability Act (“FELA”) essentially creates an exception to the “at home” requirements of Daimler.  The plaintiffs in BNSF Railway are two employees who seek damages from the company pursuant to FELA, which provides railroad employees with a federal cause of action for personal injuries caused by their employer’s negligence. Neither plaintiff resides in Montana, nor did the injuries occur in Montana. Yet, plaintiffs brought suit in Montana. Under Daimler, BNSF should not have been considered “at home” in Montana, as it is incorporated in Delaware and has its principal place of business in Texas. Despite these facts, the Montana Supreme Court held that Montana courts could exercise general jurisdiction over BNSF.  The Montana Supreme Court reasoned that Section 56 of FELA allows a plaintiff to bring suit in any federal district court in which the defendant does business, and also confers concurrent jurisdiction over FELA suits to state courts. As such, the Court reasoned that state courts should have general jurisdiction in FELA matters over defendants in any state in which the defendant did business.  Tyrrell v. BNSF Ry. Co., 373 P.3d 1 (Mont. 2016).

As previously reported, in Bristol-Myers Squibb the California Supreme Court took a different approach to challenging the limits of the exercise of personal jurisdiction.  Instead of directly attacking Daimler’s holding concerning the limits of general personal jurisdiction, the California Supreme Court used specific personal jurisdiction as a tool to enlarge the Court’s power to exercise personal jurisdiction over a foreign corporation.  In Bristol-Myers Squibb, the California Supreme Court expressly held, consistent with Daimler, that Bristol-Myers Squibb was not subject to general personal jurisdiction in California, as its contacts with the state were not substantial enough to render it “at home” in the jurisdiction. It held, however, that specific personal jurisdiction existed over Bristol-Myers Squibb in California—even for plaintiffs who were not injured in California—based on its “purposeful availment” of the benefits and privileges of the laws of the State of California as a result of its “nationwide marketing, promotion and distribution [that] created a substantial nexus between the non-resident plaintiffs’ claims and the company’s contacts in California . . . .” Bristol-Myers Squibb Co. v. Superior Court, No. S221038, 2016 WL 4506107(Cal. Aug. 29, 2016).

Of the two decisions, Bristol-Myers Squibb may be the most troublesome for defendants, particularly product manufacturers. That is because the California Supreme Court’s “purposeful availment” test essentially guts Daimler and effectively would subject product manufacturers to personal jurisdiction in every state in which they sell their products. Accordingly, 2017 could be a game changer when it comes to personal jurisdiction, including the impact it has on a corporation’s ability to be sued, and potential forum shopping by plaintiffs. We should note, however, that in 2010 the U.S. Supreme Court expressed the need for clear jurisdictional rules in order to allow businesses predictability as to where they are subject to suits. The Hertz Corp., v. Friend, 130 S. Ct. 1181 (2010). Given the impact of both BNSF Railway and Bristol-Myers Squibb, the Court may take this opportunity to do just that in terms of both general and specific personal jurisdiction. Stay tuned…