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Summary and Perspectives: Summerlin v. Philip Morris USA, et al.

Posted in Asbestos Litigation

 In Summerlin v. Philip Morris USA, et al., 1581-cv-5255, following a five-week trial before Judge Heidi Brieger, the jury returned a verdict in favor of the plaintiff amounting to $43,100,000. Three defendants remained through verdict; however, the jury found that only R.J. Reynolds was liable. The jury found that defendants, Hampden Automotive and Philip Morris USA, breached the implied warranty of merchantability for selling a defectively designed product, but neither were found to be a substantial contributing cause of Mr. Summerlin’s lung cancer. Plaintiff’s award was allocated as follows: $5,300,000 for pain and suffering; $3,500,000 for loss of consortium; $2,500,000 for loss of services to Joanna Summerlin (Spouse); $1,800,000 for loss of services to Christopher Summerlin (Son); and $30,000,000 in punitive damages.

Plaintiff was represented by Michael Shepard of the Shepard Law Firm, Boston, MA and Jerome Block of Levy Konigsberg, New York, NY. Philip Morris USA was represented by Bill Geraghty of Shook Hardy Bacon, Miami, FL; R.J. Reynolds was represented by Mark Belasic and Kaitlin Kline of Jones Day, Cleveland, OH; and Hampden Automotive was represented by David Governo and Vincent DePalo of Smith Duggan, Boston, MA.

Plaintiff’s claimed that Mr. Summerlin’s lung cancer and subsequent death was caused by his exposure to asbestos-containing brakes supplied by Hampden Automotive and as a result of smoking cigarettes manufactured by Philip Morris USA and R.J. Reynolds. By way of background, Mr. Summerlin was diagnosed with lung cancer on March 25, 2015 and passed away on October 16, 2015. Mr. Summerlin had a cumulative 125 pack-year smoking history, comprised of: Kool cigarettes, from approximately 1957 through 1982; Salem cigarettes, from approximately 1982 through 1984; and Marlboro Menthols, from approximately 1985 until he stopped smoking in August of 2009.

Mr. Summerlin alleged that he was exposed to Hampden Automotive’s asbestos-containing refurbished brakes while working as an automotive mechanic at New England Brakes, located in Boston, MA, from 1959 through 1964. Evidence presented at trial by the plaintiff suggested that Mr. Summerlin performed brake repairs with asbestos-containing brakes on three to four vehicles every day over a six-day work week. Specifically, Mr. Summerlin claimed that Hampden Automotive failed to warn him of the hazards of working with asbestos-containing brakes during the course of his employment as a mechanic. Moreover, Mr. Summerlin alleged that his exposure to asbestos through his work with Hampden Automotive’s brakes was a substantial contributing cause of his lung cancer and death. The jury found that Mr. Summerlin should have been warned of the potential dangers associated with working with an asbestos-containing product because Hampden Automotive, during the relevant time period, should have been generally aware of the potential hazards associated with the use of asbestos. Accordingly, the jury found that Hampden Automotive breached the implied warranty of merchantability, because its brakes were defective due to the lack of a warning concerning asbestos. However, the jury ultimately concluded that exposure to Hampden Automotive’s brakes was not a substantial contributing cause of Mr. Summerlin’s lung cancer and subsequent death, concluding that Hampden Automotive was not liable for Mr. Summerlin’s injuries.

Additionally, Mr. Summerlin alleged that both Philip Morris USA and R.J. Reynolds breached their implied warranty of merchantability through the sale of defectively designed cigarettes. Also, Mr. Summerlin claimed that R.J. Reynolds breached its warranty of merchantability by failing to adequately warn consumers of the dangers of smoking prior to July 1, 1969, the date the amended Federal Cigarette Labeling and Advertising Act mandated cigarette warnings. Moreover, Mr. Summerlin claimed that R.J. Reynolds fraudulently misrepresented health and safety information related to the hazards of their cigarettes, which could have aided him in rendering an informed decision pertaining to his choice to smoke. Mr. Summerlin did not, however, allege against Philip Morris USA either the claim of breach of implied warranty of merchantability pertaining to warnings or the claim of fraudulent misrepresentation because his personal smoking timeline and federal legislation pertaining to warnings rendered both inapplicable. Accordingly, though the jury found that both Philip Morris USA and R.J. Reynolds breached their implied warranty of merchantability through their sale of defectively designed cigarettes to Mr. Summerlin, it found that only R.J. Reynolds’ defective design was a substantial contributing cause of the plaintiff’s injuries. Furthermore, only R.J. Reynolds was found negligent in the design of its cigarettes, and the jury concluded that such negligence was also a substantial contributing factor to plaintiff’s injuries. Lastly, the jury found that R.J. Reynolds made false statements and concealed material facts about the dangers of smoking with the intent to induce Mr. Summerlin to use its product. Ultimately, the jury found that Mr. Summerlin’s reliance on R.J. Reynolds’ false statements substantially contributed to his illness and death. As such, these determinations lead the jury to find R.J. Reynolds liable.

While recently other plaintiffs have tried to verdict cases against both tobacco and asbestos product manufacturers, this case represents the first trial in Massachusetts in which a plaintiff alleged that both asbestos exposure and smoking together synergistically contributed to cause a plaintiff’s injury. The jury ultimately found, however, that only Mr. Summerlin’s cigarette smoking substantially contributed to cause his lung cancer. While it is certainly a positive development for asbestos defendants that the jury determined that Mr. Summerlin’s alleged daily asbestos exposure over a five year period was not sufficient to be considered a substantial contributing factor to the development of his lung cancer, it should be troubling to those same defendants that the jury found that Hampden’s failure to warn about the potential hazards of asbestos during the late 1950s and early 1960s, a time period long before there were any medical reports concerning disease in automotive mechanics, resulted in a breach of the implied warranty of merchantability.

New Jersey Appeals Court Rules on Admissibility of Evidence in Proving Apportionment Claim

Posted in Asbestos Litigation

 On June 29, 2018, a New Jersey state appeals court ruled that a superior court improperly allowed a jury to consider evidence, not represented at trial, in allocating damages among nine defendants in an asbestos case. The state appeals court ordered a new trial in Rowe v. Bell & Gossett Company to address the issue of re-apportioning the $1,500,000.00 jury verdict.

Throughout Ronald Rowe’s thirty-plus year career working as an automobile mechanic, and repairing and servicing boilers, Rowe claims he was exposed to asbestos from a variety of sources. On April 27, 2015, a jury found that Rowe’s exposure to hardened cement manufactured by Universal Engineering Co., Inc. (Universal), was a substantial factor causing Rowe’s mesothelioma. The jury also found Rowe’s exposure to asbestos from the products of the eight defendants that previously settled the case to be a substantial factor causing his mesothelioma. The jury allocated twenty percent of the damages to Universal and apportioned the remaining eighty percent among the eight defendants that had previously resolved the case.

Donna Rowe appealed the April 27, 2015 jury verdict on behalf of her husband who died of mesothelioma on April 8, 2015. In one of several points raised on appeal, Donna Rowe argued that Universal relied on improperly admitted evidence in proving its apportionment claim. At trial, the court allowed Universal to admit settled defendants’ answers to interrogatories. The trial court reasoned that because Universal asserted cross-claims against the settled defendants, the answers to interrogatories were admissible, even if those interrogatory answers were served in an unrelated matter, outside New Jersey. The judge also allowed Universal to read sections of depositions of corporate representatives of the settled defendants, to help substantiate Universal’s apportionment claim. The trial judge relied on Universal’s representation that the representatives of the eight settling defendants were outside the jurisdiction of the court and unavailable for trial.

The Superior Court of New Jersey, Appellate Division agreed with Donna Rowe, ruling that the trial judge erred in admitting evidence pertaining to the settled defendants, which was not exempt from the general prohibition against admission of hearsay.  When addressing the answers to interrogatories, the appeals court noted that both N.J. Court Rule 4:16-1(b) and N.J.R.E. 803(b)(1) only allow statements “against” the statement-maker. Here, the appeals court noted, the evidence pertaining to the settled defendants was offered only against the plaintiff, and not against the settled defendants.  The appeals court reasoned, that the jury’s determination as to the settled defendants would only impact the plaintiff’s recovery against Universal. The appeals court went on to label the settled defendants’ “party” status as irrelevant in determining the evidentiary issue at hand. The appeals court re-iterated its focus on against whom the answer to interrogatories were offered in determining the admissibility of such evidence.

In its analysis, the appeals court also recognized the rationale for allowing the admission of interrogatory answers and deposition testimony against a statement-maker. When in a courtroom, the statement-maker has a fair opportunity to respond to this evidence. When the trial court allowed Universal to admit evidence concerning the settled defendants, Universal “transform[ed] statements of [the] settl[ed] defendants into unrebuttable admissions to be used against a party that did not make those admissions.” See Rowe v. Bell & Gossett Co., No. A-4530-14T2, 2018 N.J. Super. Unpub. LEXIS 1560 (Super. Ct. App. Div. June 29, 2018).

Before addressing Rowe’s additional points on appeal, the court conceded that Universal may, on retrial, produce sufficient proofs to enable it to satisfy the requirements of the New Jersey Comparative Negligence Act and thus, still potentially benefit from apportionment. The New Jersey appeals court seems to imply that if Universal presents proofs against the statement makers, and adequately demonstrates the unavailability of witnesses, a jury may properly use evidence concerning the settled defendants to evaluate the apportionment of the $1,500,000.00 jury verdict.

On July 18, 2018, Hilco, Inc., the successor-in-interest to Universal, filed a notice of petition for certification with the New Jersey Supreme Court. As of August 16, 2018, the case is pending certification by the New Jersey Supreme Court.

 

Trial Publicity: Public Statements Made by an Attorney during Court Proceedings have Limits

Posted in All Practice Areas

Talk is cheap…until lawyers get involved.

“Lawyers: are persons who write a 10,000 word document and call it a brief.” – Franz Kafka

Mouthpiece: n. old-fashion slang for one’s lawyer. Burton’s Legal Thesaurus, 4E. (2007). Retrieved August 8, 2018, from https://legal-dictionary.thefreedictionary.com/mouthpiece

There are thousands of sated comedians in the world who make a living off the caricature of loquacious litigators. Indeed, it is probably a fair statement that attorneys like to talk. Attend any bar event anywhere in the country and, more likely than not, you will find a group attorneys exchanging war stories. Lawyers, especially trial attorneys, relish opportunities to reminisce about trials won, how incomprehensible it is that they lost a “slam dunk” motion, or the occasional client they never want to see again.

Most of the time, idle attorney chatter over rubber chicken bar association dinners is entirely benign. However, public statements made by an attorney during a trial or the pendency of case that may go to trial is consequential all of the time. This is because, as Chief Justice Rehnquist observed, “a lawyer’s extrajudicial statements pose a threat to the fairness of a trial due to an attorney’s special access to information.” Gentile v. State Bar of Nevada, 501 U.S. 1031, 1071 (1991). In theory, an attorney’s comments on the scope of evidence or a case’s merits could predispose a jury pool and, thus, unintentionally (or deliberately) prejudice a judicial outcome.

The fear of such prejudice is so strong because its impact is so damaging to the confidence of the administration of justice that the American Bar Association, through the ABA Rules of Professional Conduct (which serve as a model for the ethics rules of most jurisdictions), actually imposed guidelines curtailing a lawyer’s freedom of speech in certain circumstances. For example, under Model Rule 3.6, lawyers are prohibited from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rule 3.6(a). The rule goes on to describe certain statements that a lawyer may make. A lawyer may state: (1) the claim, offense or defense of the case; (2) public information; (3) that the investigation of the matter is in progress; (4) the scheduling or result of an event in litigation; (5) a request for the public’s help in obtaining information; (6) “a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;” and (7) certain comments with respect to criminal cases. See ABA Model Rule 3.6(b). A lawyer also is permitted to make statements that he believes are necessary to protect a client from the substantial undue prejudicial effect of recent publicity. See ABA Model Rule 3.6(c). Model Rule 3.6 has been adopted, with or without changes, by most jurisdictions.

Courts recognize, however, that there is a constitutional balancing act between limiting an attorney’s speech rights and ensuring unbiased adjudications. Towards that end, the United States Supreme Court has held that a jurisdiction’s restrictions on attorney speech are permissible only when they are no greater than necessary to protect “the integrity and fairness of a State’s judicial system.” Gentile, 501 U.S. at 1075. This constitutional struggle most recently was highlighted by President Trump’s former lawyer, Michael Cohen, in a case involving a non-disclosure clause of a settlement agreement between the chief executive and an alleged adult film paramour.

Specifically, the United States District Court for the Central District of California, denied Michael Cohen’s ex parte application for a restraining order in Clifford v. Donald J. Trump, et al. CV 18-02217 SJO (FFMx) (order denying defendant Michael Cohen’s Ex Parte Application for a Restraining Order). In Clifford, Defendant Michael Cohen applied for a restraining order on June 14, 2018 against the plaintiff’s attorney, Michael Avenatti. Id. Cohen sought to prevent Avenatti from making statements regarding:

(1) the character, credibility, or reputation of a party and/or their respective counsel; (2) the identity of a witness or the expected testimony of a party or witness; (3) the contents of any testimony, admission, or statement given by a defendant or that person’s refusal or failure to make a statement; (4) the identity or nature of physical evidence expected to be presented or the absence of such physical evidence; (5) the strengths or weaknesses of the case of either party; and (6) any information the lawyer knows or reasonably should know is likely to be inadmissible as evidence and would create a substantial risk of prejudice if disclosed.” Id.

 Cohen’s application cited to over 170 television appearances and 439 public tweets by Avenatti discussing the alleged facts and circumstances of the case. Id. Cohen described how Avenatti previously commented that Mr. Cohen “has a history of thuggish behavior” and “is going to be indicted within the next three months” for “bank fraud, wire fraud, campaign finance violations” or “a whole host of potential criminal conduct.” Id. Cohen also accused Avenatti of speculating about the outcome of the case.

Interestingly, a few months earlier, the Southern District of New York in a related action, admonished Avenatti’s conduct, prompting Avenatti to withdraw his application to be admitted pro hac vice in the SDNY action. Id. The New York federal court told Avenatti that:

If you participate here, you would not be able to declare your opinion as to Mr. Cohen’s guilt, which you did; you would not be able to give publicity to documents that are not public. It would change your conduct…I don’t want you to have some existence in limbo, where you are free to denigrate Mr. Cohen and I believe potentially deprive him of a fair trial by tainting a jury pool.

Id.

 Yet, Cohen’s application was denied. The Central District of California noted that the Supreme Court hesitates to restrain prior behavior and the Defendant failed to clearly demonstrate why a drastic measure was warranted. Id. The court went on to describe Cohen’s application as overly broad and the court recognized that there were less restrictive alternatives than issuing a restraining order. Id. The court concluded that while Avenatti is subject to the Rules of Professional Conduct and the local rules of the court, “[u]nless or until Defendant can demonstrate that Mr. Avenatti’s statements are substantially likely to impact his right to a fair trial in this action, [ ] a prior restraint is impermissible.” Id.

For now the Cohen-Avenatti dispute seemingly has resolved in Avenatti’s favor. Avenatti’s extrajudicial comments, however, almost certainly again will become a stormy legal issue as the Clifford case proceeds. To this point, cases that do not involve alleged bawdy hijinks prove instructive. Recently, Johnson & Johnson argued, in part, before the Missouri Court of Appeals that a $55 million dollar verdict against it in an asbestos talc case should be overturned. See Ristesund v. Johnson & Johnson, et al., 2017 WL 5885587. Johnson & Johnson contended that the evidence established that the jury pool was tainted through the statements of plaintiffs’ counsel which created “intense publicity in the city of St. Louis [and included] information about prior talc trials and information that the court had ruled inadmissible in this case….”  Id. at 119. Johnson and Johnson’s appellate brief went on to describe that the jurors had open discussions on an earlier talc verdict. Id. at 121. Although the Missouri Court of Appeals vacated the Ristesund verdict on other grounds, extrajudicial case comments from the plaintiffs’ counsel provided the defense an appellate argument—which could have been a mortal, self-inflicted wound.

Whether an attorney represents presidents, peelers, or asbestos plaintiffs, one message should be universally held: be careful what you say about your case outside of court. It is not worth having to challenge a restraining order or appeal just to have an interesting anecdote to share with your colleagues over a rubber chicken bar association dinner.

 

A Healthy Reminder of Burden Shifting

Posted in Asbestos Litigation

Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)

The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.

The trial court excluded this testimony because Decedent admitted he had no personal knowledge of it. The trial court then excluded an affidavit of the decedent’s aunt who also had no personal knowledge concerning the work of decedent’s father. Based on these factual deficiencies, Moore moved for summary judgment, arguing: (1) that it did not owe a duty of care to the family members of its employees; and (2) that the plaintiffs did not provide evidence that decedent was exposed to asbestos via his father’s work at Moore.

While the trial court found that Moore could owe a duty of care to family members of its employees, it held that the plaintiffs had not proffered admissible evidence of decedent’s father’s exposure to asbestos while working at Moore. Therefore, the plaintiffs did not produce admissible evidence to raise triable issues of fact (the evidence proffered was not only considered hearsay, but also found to be factually devoid because there was no evidence that actually indicated the father was exposed to asbestos).

The trial court indicated that Moore had made a sufficient showing based on the plaintiffs’ factually devoid discovery to shift the burden of proof to the plaintiffs regarding the alleged exposure of decedent’s father. Ultimately, the trial court found plaintiffs could not rebut this burden and summary judgment was granted. Plaintiffs appealed this grant of summary judgment.

The appellate court specifically rejected an argument that simply being present at the shipyard could have caused exposure to asbestos because there was no evidence offered by the plaintiffs as to amount of asbestos work done at Moore, of what the levels of asbestos would have been at the shipyard, or that the decedent’s father was near any work involving asbestos. The appellate court further found it was already proven that neither the decedent nor his aunt had any independent knowledge that the decedent’s father worked as a lead electrician on ships or in the shipyard. As such, Moore was not required to have deposed the decedent’s aunt, and the burden of proof had shifted back to plaintiffs after the defendant demonstrated that their discovery responses were factually devoid. As a result the appellate court upheld the trial court’s grant of summary judgment.

Foglia is an unpublished opinion, but it is an important reminder for Defendants to take advantage of the opportunity to question the admissibility of liability evidence that may be offered against them. It is also a reminder that attorneys must remain on alert for the ever important burden-shifting that can take place during discovery.

Ice Resurfacer Poisoning Demonstrates High Summary Judgment Threshold

Posted in Litigation Trends, Products Liability, Rhode Island Courts

In DeLong v. Rhode Island Sports Center, Inc., et al., a former college hockey player successfully appealed a Rhode Island Superior Court decision granting an ice rink’s motion for summary judgment in a case alleging that he was poisoned by an ice resurfacer after finding that circumstantial evidence present in the record was sufficient to raise a factual dispute. 182 A.3d 1129 (R.I. 2018).

 

The plaintiff alleged that he inhaled noxious fumes that emanated from a malfunctioning ice resurfacer while playing in an ice hockey game at an enclosed arena in February, 2011. However, the plaintiff’s first indication that he had breathed injurious air resurfacing machine air did not come until the following morning when he and a teammate visited an emergency room after coughing up blood, from which doctors deduced that the plaintiff suffered from an acute lung injury as a result of carbon monoxide and nitrogen dioxide poisoning.

 

Accordingly, the plaintiff filed suit alleging that the ice rink defendants: negligently maintained their facility by allowing noxious fumes to permeate the air; failed to exercise reasonable care; or failed to provide adequate warnings. However, following discovery, the defendants successfully persuaded the trial court to grant summary judgment. “They argued that there were no genuine issues of material fact regarding (1) the existence of a dangerous or defective condition; (2) the notice to defendants of any such condition; and (3) the causal connection between that condition and any injury that may have been sustained by plaintiff.” Id. at 1131.

 

Specifically, the defendants pointed to: the plaintiff’s deposition testimony that he neither saw nor smelled any unusual fumes while at the ice rink; the lack of scientific evidence as to the air quality in the arena on the night in question; and evidence that the ice rink attendant’s twice-daily notation of the air quality had shown zero carbon monoxide, which the Rhode Island Department of Health confirmed the following day. Moreover, the ice rink’s facilities manager and the ice resurfacing machine driver each testified that neither was aware of any complaints regarding noxious fumes. The trial court, furthermore, intimated that the plaintiff’s “sickness was from another source, independent of the defendant’s facility” because the Department of Health’s testing was “more objective” and because the only people who fell ill were from the college hockey team. Id. at 1133. Based on this, the trial court granted summary judgment ruling that a lack of evidence that a defective condition existed at the sports center on day of the hockey game and it appeared that no one from the ice rink had notice of any such defect, if there was one.

 

On appeal, however, the plaintiff noted that: (1) the Department of Health does not and did not test nitrogen dioxide levels and did not test carbon monoxide levels until a day after the alleged incident, implying that poisonous ice resurfacer emissions had subsided by the time testing occurred; (2) his teammates and coach stated that they smelled gas in the air the night of the game; (3) the coach executed an affidavit stating that he witnessed the ice resurfacer malfunction and produce visible emissions; and (4) his teammates also ended up suffering very similar symptoms as he did.

 

Moreover—and perhaps most crucially—the plaintiff revealed that the defendants purchased an electric, non-propane-fueled ice resurfacing machine just months after the incident. As such, the plaintiff sought to take advantage of Rhode Island’s minority approach to the subsequent remedial measure rule. That is, unlike the Federal Rules of Evidence and the majority of states, under Rhode Island law:

 

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is admissible.

R.I. R. Evid. 407.

 

Thus, the Supreme Court held that the trial court could and should have considered this evidence to reject the ice rink’s motion for summary judgement.

 

In its review of the plaintiff’s appeal, the court clearly indicated that even circumstantial evidence, such as the ice rink upgrading to an electric ice resurfacer, was sufficient to rise to the level of a materially factual dispute and it held that the ultimate determination of whether a dangerous-or-defective-condition existed or whether the ice rink had notice of any alleged defect was best suited for a jury’s review. Additionally, the Supreme Court repeated its caution that “issues of negligence are ordinarily not susceptible to summary adjudication, but should be resolved by trial in the ordinary manner.” Id. at 1137 (quoting Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005)).

 

DeLong is an instructive reminder that summary judgment is a powerful, but drastic tool. Even though a court may be presented with compelling, “more objective” evidence, “the purpose of summary judgment is issue finding, not issue determination.” Estate of Giuliano v. Giuliano, 949 A.2d 389, 391 (R.I. 2008). Conflating these two principles only confuses the ultimate question to be decided on summary judgment—whether, based on the evidence presented, there are remaining issues of material fact and whether the matter should proceed to trial or face dismissal on some or all issues.