August 2014

-Persuasive precedent likely as PA judge holds employer/premises owner does not owe duty to warn. 

On August 28, 2014, the Honorable Judge Eduardo C. Robreno, in the Multi-District Litigation for asbestos in the United States District Court for the Eastern District of Pennsylvania, issued a significant opinion in which he held that an employer and/or premises owner does not owe a duty “to an employee’s spouse to warn or take measures to protect against take-home exposure to asbestos under Pennsylvania law” Gillen v. The Boeing Co., 2014 WL 4211354, *2 (E.D. Pa. Aug. 27, 2014) (Robreno, J.).

 

In Gillen, Mrs. Gillen alleged that she developed mesothelioma as a result of, among other things, take-home exposure to asbestos transmitted to her husband’s clothes while he was employed at Boeing, then transported to the family home, and inhaled by her when laundering his clothes.  Boeing moved to dismiss claims based on the take-home theory, and argued that Boeing did not owe a duty to a take-home plaintiff.

In granting Boeing’s motion, the Court recognized that there was not any controlling law, either from the Pennsylvania Superior Court or the Pennsylvania Supreme Court, which squarely addressed whether an employer/premises owner owed any duty to a third party under Pennsylvania law, and analyzed cases from multiple jurisdictions which reached divergent conclusions.  Judge Robreno determined that the Pennsylvania Supreme Court would conclude that an employer/premises owner does not owe a duty to warn a third-party of potential asbestos exposure for any exposure which did not occur on the employer’s premises.

The Gillen decision should be most persuasive in cases where Pennsylvania law is applied. It may also, however, serve as persuasive precedent in other jurisdictions, due to Judge Robreno’s extensive history as the presiding judge of the MDL asbestos docket and the detailed analysis he employed in resoundingly concluding that the employer/premises owner does not owe a duty to a third party for take-home exposure.

Manion Gaynor & Manning (MG&M) represented Boeing in this case as national coordinating counsel.  Segal McCambridge Singer & Mahoney served as Boeing’s Pennsylvania local counsel.

Please contact us if you would like to discuss the opinion and/or if you would like copies of the associated briefing.

Plaintiffs, when faced with a legal bar to traditional negligence claims, frequently try to cloak them in new theories of liability. This tactic is reminiscent of dialogue in William Shakespeare’s play Romeo and Juliet, in which Juliet argues that the names of things do not matter, only what things “are” is truly important.

Trend

An upsurge in this practice took place following the Supreme Court’s decision in Pliva Inc., v. Mensing, 131 S.Ct. 2567 (2011), which held that state-law claims based on a failure to warn of the risks of a generic medication are preempted by federal law. New theories presented by plaintiffs included: (1) that generic manufacturers should have warned healthcare providers of (Metoclopramide’s) risks through means other than the product’s package insert, such as by way of a “Dear Doctor” letter; (2) that state-law liability can be predicated on duties that arise solely from the FDCA; (3) that state-law liability can be premised on an alleged duty to ask the brand-name drug manufacturer to make a labeling change; and (4) that a generic drug manufacturer can be held liable for failing to stop selling a drug with allegedly inadequate warnings.[i]

Recent Defense Ruling

Wyeth-Ayerst Pharmaceuticals, Inc. (“Wyeth”) recently beat back such an effort in Tersigni v. Wyeth-Ayerst Pharm., Inc., 2014 U.S. Dist. LEXIS 86993 (D. Mass. June 25, 2014).  Plaintiff Michael J. Tersigni filed suit on March 11, 2011 against Defendant Wyeth alleging that his primary pulmonary hypertension was caused by his use of its diet drug “Fen-Phen.”[ii]

The Fen-Phen Craze

During the height of the 1990s the market was flooded with diet and weight loss drugs to combat America’s increasing problem with obesity. One such weight loss drug was known as “Fen-Phen,” which was a pharmaceutical cocktail that combined phentermine and fenfluramine. [iii] This combination was not approved by the Food and Drug Administration (FDA), yet was prescribed by doctors across the nation.[iv] Fen-Phen worked by increasing serotonin levels in the brain which had a twofold effect – the consumer would feel satiated, while also experiencing a loss in appetite.[v]

Despite contentious debate about the safety of this pharmaceutical combination, dexfenfluramine, a derivative of the Fen-Phen cocktail and the active ingredient in “Redux,” was approved by the FDA in 1996.[vi]  Sales of the product were very strong, with nearly 2 million individuals taking dexfenfluramine in the U.S. alone.[vii]  An article published in The New England Journal of Medicine in August 1997, however, revealed that Fen-Phen led to a host of illnesses including heart valve problems and pulmonary hypertension.[viii]

Wyeth was the distributor and manufacturer of Pondimin, a version of fenfluramine that had been on the market in the United States since the early 1970s, as well as Redux.[ix]  Wyeth withdrew both of these products from the market in September 1997 following a request by the FDA. This led to a torrent of litigation in which thousands sought financial compensation due to medical conditions allegedly caused by consuming these drugs, including the case brought by Mr. Tersigni.[x]

Plaintiff Strategy

Tersigni brought five claims against Wyeth alleging “Breach of Warranty – defective design (Count I), Breach of Warranty – failure to warn (Count II), Negligence or Products Liability (Count III), Fraudulent Misrepresentation (Count IV), and Fraudulent Concealment (Count V).”[xi]  Tersigni maintained that the action should not be limited to a “failure to warn” theory of negligence, but it should also be construed to allow a “failure to discontinue marketing” theory of liability.  Judge Sterns recognized defense counsel’s argument that such a theory was simply an attempt at a “backdoor” resuscitation of Plaintiff’s claims in violation of Massachusetts’ consistent adherence to the legal principles stated in comment k of Restatement (Second) of Torts § 402A (1965).[xii]

Takeaway

Defense counsel should be on the lookout for preempted claims cloaked in new theories of liability.  Defense Counsel in Tersigni did so, thereby limiting available theories of liability, and obtained a defense verdict on July 31, 2014.  The Court entered judgment on August 4, 2014.[xiii]

 

 


[i] PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 180 L. Ed. 2d 580 (2011).

[ii] Tersigni v. Wyeth-Ayerst Pharm., Inc., 2014 U.S. Dist. LEXIS 86993 (D. Mass. June 25, 2014).

[iv] Id.

[v] Tersigni v. Wyeth-Ayerst Pharm., Inc., CIV.A. 11-10466-RGS, 2013 WL 6531118 (D. Mass. Dec. 13, 2013).

[vii] Cohen, supra note 3.

[viii] Id.

[ix] Tersigni, 2013 WL 6531118.

[x] Tersigni, 2013 WL 6531118; Cohen, supra note 3.

[xi] Tersigni, 2013 WL 6531118.

[xii] Tersigni v. Wyeth-Ayerst Pharm., Inc., 2014 U.S. Dist. LEXIS 86993 (D. Mass. June 25, 2014); citing Vasallo v. Baxter Healthcare Corp., 428 Mass. 1, 22 (1988) and Payton v. Abbott Labs, 386 Mass. 540, 573 (1982). Comment k states, in relevant part, that,

[t]here are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs . . . . Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. . . . The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965).

 

[xiii] See Tersigni v. Wyeth-Ayerst Pharm., Inc., No. 11-10466-RGS ( D. Mass. July 31, 2014), ECF No. 255; Jury Verdict in Favor of Defendant, Tersigni v. Wyeth-Ayerst Pharm., Inc., No. 11-10466-RGS ( D. Mass. Aug. 4, 2014), ECF No. 257.

 

House Bill 4123 makes two changes to Massachusetts Superior Court procedure, both of which favor plaintiffs.  The first, addressed by Section 1 of the bill, allows plaintiffs’ attorneys to request a specific monetary amount of damages at trial.  The second, addressed by Section 2 of the bill, allows attorneys to conduct voir dire.

 

The Language of the Bill

Section 1 of the bill states that “[i]n civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.”

 

Section 2 of the bill requires the court, upon the request of any party or any party’s attorney, to permit “the party or the party’s attorney to conduct, under the direction of the court, an oral examination of the jury venire.”  This examination is not unlimited, however.  Instead, “[t]he court may impose reasonable limitations upon the questions allowed during such examination.”  The court may provide additional time to the parties at its discretion.

 

Examination by a party or a party’s counsel does not replace voir dire conducted by the court.  Instead, such examination is “[i]n addition to whatever jury voir dire of the jury venire [that] is conducted by the court.”  Also, the bill does “not limit the number of peremptory challenges a party is entitled to by statute or court rule.”

 

Massachusetts’s Jury Trial Statistics

 

In a 2005 study, the Department of Justice analyzed plaintiff success rates in the United States’ seventy-five most populous counties.  Four Massachusetts counties were included in this study: Essex, Middlesex, Suffolk, and Worcester.  The study revealed that plaintiffs prevailed approximately 53.2 percent of the time nationwide.  However, in the four Massachusetts counties, plaintiffs prevailed in only 79 of the 321 jury trials, for a success rate of approximately 24.6 percent.

 

Potential Impact of the Bill

 

The Massachusetts Academy of Trial Attorneys, an organization of Massachusetts plaintiffs’ attorneys, believes that the implementation of House Bill 4123 will make Massachusetts a more plaintiff-friendly jurisdiction.  After the governor signed the bill into law, the Academy’s president posted a letter to the group’s website calling the bill “a cultural shift in Massachusetts.”  The letter further stated that “the ability to state a dollar amount at trial is also a huge advance” for plaintiffs’ attorneys.

 

If the Academy is correct, House Bill 4123 could make Massachusetts a particularly problematic jurisdiction for toxic tort and products liability defendants.  According to the Department of Justice’s 2005 study of nationwide trial statistics, plaintiffs prevailed in jury trials less than half as frequently in Massachusetts as they do throughout the country.  If plaintiffs in Massachusetts jury trial begin winning more often because House Bill 4123 (1) gives their attorneys a better chance to influence the jury through attorney-conducted voir dire and (2) strengthens their attorneys’ presentation to the jury by authorizing them to request a specific amount of monetary damages, then Massachusetts could become an appealing jurisdiction for plaintiffs, and plaintiffs’ attorney might be emboldened to push cases to the jury that they previously would have settled.

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.

 

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