October 2016

Talc!For the third time this year, a St. Louis, Missouri jury found Johnson & Johnson liable in a case where plaintiff alleged that her ovarian cancer was caused by her use of talcum powder products. At trial, Deborah Giannecchini, a 62 year-old California woman, claimed that her decades-long use of Johnson & Johnson talcum powder caused her to develop ovarian cancer in 2013. After a month-long trial, the jury awarded her more than $70 million in damages, approximately $65 million of which were comprised of punitive damages.

At trial, Giannecchini’s lawyers argued that Johnson & Johnson:  (1) was aware for more than 30 years that use of talc-based products increases the risk of ovarian cancer; and (2) did not warn the public of the potential health hazards associated with the product.

In the two prior St. Louis cases which reached a verdict against Johnson & Johnson, juries found in favor of plaintiffs and awarded $72 million and $55 million, respectively, in damages. While Johnson & Johnson has seen limited success before juries, the company hopes that each of the three St. Louis verdicts will be overturned on appeal. Specifically, Johnson & Johnson’s appellate arguments will focus on the lack of scientific proof to support the recent jury awards. Indeed, Johnson & Johnson successfully used this approach in New Jersey, where a state court dismissed two talc-based actions after ruling that plaintiffs’ scientific experts were unable to provide sufficient evidence that the use of talcum powder causes ovarian cancer.

Johnson & Johnson is currently defending more than 1,500 cases nationwide.  In each of these cases, plaintiffs allege that the company failed to warn consumers of the potential health risks associated with the use of talc products.

KastenmeierUSCT_Madison_WI_exterior_941675052106904545_1435163225376
Robert W. Kastenmeier United States Courthouse Madison, WI

A district court judge for the Western District of Wisconsin has issued a defense-verdict following a three-day bench trial, during which Plaintiff argued that his father’s work with Kaylo pipe insulation caused his death from mesothelioma. In his opinion in Gary Suoja, Individually and as Special Administrator of the Estate of Oswald Suoja v. Owens-Illinois, Inc., Magistrate Judge Stephen Crocker found that Plaintiff failed to meet his burden of showing that exposure to Kaylo was a substantial cause of Mr. Suoja’s mesothelioma. Though ultimately decided on the basis of pretrial motions that precluded the testimony offered by Plaintiff’s causation expert, Judge Crocker discussed Plaintiff’s failure to incorporate evidence of alternative exposures, stating that ignoring such evidence when arguing cumulative exposure was “disingenuous” on the part of the Plaintiff.

The current matter was filed on behalf of the Estate of Gary Suoja against numerous companies, only one of which—Owens-Illinois—remained at trial. Mr. Suoja worked as a union asbestos worker for 40 years, beginning in 1944. Throughout the course of the lawsuit, the Estate argued that Mr. Suoja’s lengthy career as an asbestos worker caused him to work with and around numerous asbestos-containing products; however, evidence of these exposures was noticeably absent from trial.

In order to establish the causation element of his negligence and strict liability claims, Plaintiff offered only the testimony of Dr. Frank. Dr. Frank’s position was that Mr. Suoja’s cumulative exposure to asbestos from working with Kaylo, manufactured by Owens-Illinois, caused his mesothelioma. When presenting his cumulative exposure theory, Dr. Frank took the position that any asbestos exposure, “no matter how slight, no matter how minimal” is a part of an individual’s cumulative exposure and thus a cause of resulting disease. Dr. Frank offered this opinion only in relation to Mr. Suoja’s limited work with Kaylo insulation; he did not offer any opinion about the amount of asbestos from Kaylo to which Mr. Suoja was exposed, nor did he compare the amount of Mr. Suoja’s Kaylo exposure to Mr. Suoja’s cumulative exposure to asbestos from the numerous other products he worked with over the course of his 40-year career.

Plaintiff took the position that Mr. Suoja’s admissions of other exposures were largely irrelevant, arguing that most were simply assertions of exposure without any information regarding the dosage level at which Mr. Suoja was exposed. Plaintiff further argued that if Owens-Illinois wanted to attack Dr. Frank’s causation opinion on the ground that he failed to account for other exposures, then it was defendant’s burden to establish that these alternative exposures were substantial in nature.

Judge Crocker addressed Plaintiff’s argument, calling it “unpersuasive” and stating that “[i]t is disingenuous for plaintiff to have obtained recovery from numerous bankruptcy trusts and asbestos manufacturers based upon sworn admissions of asbestos exposure and then to brush aside those admissions as irrelevant to causation in this lawsuit.” Plaintiff’s lawsuit against Owens-Illinois was ultimately dismissed for failure to establish both exposure and causation.

About the Author

Katherine Vogelhuber is an associate in the firm’s products liability and complex tort practice, where she concentrates on products liability defense and litigation management for a number of the firm’s national clients. Kate is admitted to practice in the Commonwealth of Massachusetts and the State of Illinois. In 2007, Kate received her Bachelor of Arts from Skidmore College in Saratoga Springs, New York. She received her J.D. from DePaul University College of Law in Chicago, Illinois in 2012.

 

ffonseca_articleCalifornia has become a hub for asbestos litigation.  Its plaintiff-friendly law and juries have attracted plaintiffs from both California and across the country.  A case currently pending in the Supreme Court of California concerning whether a duty is owed to a plaintiff who alleges “take-home” asbestos exposure could have a major impact on whether California becomes an even greater hotbed for asbestos litigation.  Should the Court impose a duty on an employer for “take home” exposures, this expansion of an employer’s duty is likely to lead to increased asbestos filings as plaintiffs seek out attractive jurisdictions based on substantive legal doctrine.

Recently, the Supreme Court of California heard oral arguments in coordinated “take-home” asbestos cases. In both cases, at issue is whether an employer owes a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing.

In Kesner v. Superior Court, 226 Cal.App.4th 251 (2014), plaintiff, the nephew of a brake manufacturer’s employee, alleged that he developed mesothelioma as a result of exposure to asbestos from his uncle’s dirty and dusty clothing during frequent visits to his uncle’s home. In finding that the brake manufacturing company employer owed plaintiff a duty of care, the court found that “[a]s a general matter, harm to others from secondary exposure to asbestos dust is not unpredictable.” Kesner 226 Cal.App.4th at 259. Further, the harm “from a lack of precautions to control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable.” Id.  As for employers, the court found that “extending the duty of care to [an employee’s household members or long term occupants of a residence] does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited number of persons.”  Id. at 261. Thus, the court not only imposed a duty on an employer for “take home” exposures, it extended a duty to any guest that frequents an employee’s home.  It is important to note, however, that despite the fact that plaintiff claimed that he was exposed to asbestos through his uncle’s clothing, plaintiff’s claim was premised on a theory of products, not premises, liability.

That distinction is important, as a month later a different appellate court ruled against extending a duty of care based on “take home” exposure in the context of a case alleging premises liability. In Haver v. BNSF Railway Co., 226 Cal.App.4th 1104 (2014), the heirs of an employee’s deceased wife claimed that she developed mesothelioma as a result of exposure to asbestos from the clothing her husband wore home while employed by the defendant company. Deciding not to follow the earlier Kesner decision, the Haver court distinguished the two cases by pointing out that Kesner was a products case while Haver involved allegations of premises liability. Importantly, though, the court noted that courts should be wary of the consequences of extending employers’ liability too far. Id. at 1110.

A decision by the California Supreme Court which extends a duty to the family and/or guests of an employee is likely to result in a huge uptick in asbestos claims filed in California, as plaintiffs look for favorable jurisdictions in which to bring their cases.  That is what has occurred in Illinois, where the Illinois Supreme Court upheld the appellate court’s reversal of an order granting an employer’s dismissal based on the lack of a duty to an employee’s spouse, and allowed plaintiff to re-plead foreseeability.  See Simpkins v. CSX Transp., Inc., 2012 Ill. 110662.  Conversely, multiple jurisdictions, such as Georgia, have shut the forum shopping door by holding that employers and premises owners owe no duty to a member of a household injured by take home exposure to asbestos. CSX Transp., Inc. v. Williams, (2005) 278 Ga. 888.  

Should the Supreme Court of California expand the scope of an employer’s duty to include “take home” exposure, venue selection flexibility and favorable new legal doctrine may very well cause a seismic shift in asbestos filing activity, leaving California at the epicenter.

 

About the Author

Freddy Fonseca is an associate with Manion Gaynor & Manning and an FAA licensed airframe and power plant technician. Clients have come to rely on Freddy for his eight-year career as an aircraft maintenance technician, knowledge of federal aviation regulations and airport operations, and enthusiasm for aviation, to defend toxic tort and products liability aviation cases.  Prior to attending law school, Freddy was an aircraft technician for a major airline performing engines changes, sheet metal repairs, brake changes, and avionics and systems troubleshooting.  Utilizing his aviation experience, he brings a unique practical perspective to his civil litigation law practice.

de-courtJudge Vivian L. Medinilla of the Delaware Superior Court recently denied defendant Monsanto Company’s motion to dismiss on the basis of forum non conveniens (“FNC”) in Barrera v. Monsanto Company.  This ruling, along with a similar ruling issued by Judge Andrea L. Rocanelli one day prior in Gilchrist v. GlaxoSmithKline, LLC, reaffirms and provides new strength to Delaware’s long-standing precedent of offering great deference to a plaintiff’s choice of forum and requiring a defendant to establish “overwhelming hardship” in order to dismiss a case on FNC grounds.

In Barrera, the Court considered the claims of three Plaintiffs alleging their cancers were caused by Monsanto’s glyphosate pesticide known as Roundup.  The case’s only connection to Delaware was Monsanto’s status as a Delaware corporation (although Monsanto’s principle place of business is in Missouri).  None of the Plaintiffs lived in Delaware or alleged any exposure to Roundup in Delaware.  Rather, Plaintiffs alleged exposure to Roundup in Michigan, New York, Oregon, Texas, Virginia, and Washington.  Monsanto therefore asserted that Plaintiffs’ claims would be more properly adjudicated in the respective jurisdictions of their alleged exposures and moved to dismiss the Delaware action on FNC grounds.

In analyzing Monsanto’s motion, the Barrera Court considered the following six factors, known as the “Cryo-Maid” factors, which Delaware Courts have long relied upon in examining FNC motions:

  1. The relative ease of access to proof;
  2. The availability of compulsory process for witnesses;
  3. The possibility of viewing the premises;
  4. Whether or not Delaware law will be applied;
  5. The pendency or nonpendency of similar actions in another jurisdiction; and
  6. All other practical problems that would make the trial of the case easy, expeditious, and inexpensive. Barrera, at 12-13.

In considering all of the factors as a whole, the Court concluded an overwhelming hardship did not exist.  Although the relevant proof, witnesses, and premises (factors 1-3) mostly lie outside of Delaware, the Court found  obtaining such evidence was not a hardship on Monsanto given the technology available in today’s global age.  The Court also noted that it routinely applies other states’ laws (factor 4) and that no other action was currently pending in another jurisdiction (factor 5).  The Court found that the “other practical problems” sixth factor weighed in Monsanto’s favor, but nevertheless concluded that this single hardship was insufficient to justify dismissal, stating:

It may be true that there are more appropriate or convenient forums to litigate Plaintiffs’ claims.  Yet to prevail on this FNC motion to dismiss, Defendant is nonetheless required to demonstrate with particularity that this is “one of those rare cases where the drastic relief of dismissal is warranted” because Defendant will suffer overwhelming hardship if forced to litigate here.  Defendant has not demonstrated that this is one of those rare cases.  Barrera, at 22.

The Barrera ruling takes on added significance given that Delaware’s FNC jurisprudence had come under some question of late after a pair of decisions,  Martinez v. E.I. DuPont de Nemours & Co., Inc. in the Delaware Supreme Court and Hupan v. Alliance One International, Inc. in the Delaware Superior Court, surprisingly resulted in a dismissal of claims under FNC grounds.  However, as Judge Medinilla noted in her Barrera opinion, both of those cases are distinguishable from Barrera in that each involved injuries that occurred outside the United States and required the application of foreign countries’ laws that were not written in English.  At bottom, FNC still does not appear to be a successful defense in toxic tort cases involving alleged exposures confined to the United States.

About the Authors

William B. Larson, Jr. is an associate in the firm’s Delaware office. His civil litigation practice focuses on toxic tort and products liability litigation as well as corporate and commercial litigation in Delaware courts.  Outside Delaware, in asbestos litigation, Bill serves on two of MG&M’s national coordinating counsel teams.  He currently serves as assistant regional coordinating counsel for one company and coordinating counsel in several jurisdictions for another company.

Ryan W. Browning is an associate in the firm’s Delaware office. His civil litigation practice focuses on toxic tort and products liability litigation as well as corporate and commercial litigation in Delaware courts. Prior to joining MG&M, Ryan was an associate with one of Delaware’s leading law firms, where he represented large corporate defendants in all stages of complex commercial and corporate litigation.

 

Lady JusticeOn October 13, 2016, Presiding Justice Alice B. Gibney of the Rhode Island Superior Court ruled on Defendant Dana Companies, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction pending in the case of Harold Wayne Murray and Janice M. Murray v. 3M Company, et al., granting the defendant’s motion to dismiss upon finding that the court lacked sufficient minimum contacts to exercise personal jurisdiction – either general or specific – over the defendant. With this ruling, Rhode Island joins a growing list of jurisdictions that have applied the United States Supreme Court’s standard passed down in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

The Murray case was filed in Providence Superior Court, and involves a Tennessee resident alleging he developed mesothelioma as a result of exposure to asbestos through his work with and around numerous defendants’ products over the course of his lifetime, predominantly at locations in Tennessee and Virginia. The complaint filed in Murray named hundreds of defendants who allegedly manufactured, sold, or supplied asbestos or asbestos-containing products to which Mr. Murray was allegedly exposed, including Dana Companies, LLC (“Dana”). Dana subsequently moved to dismiss the plaintiff’s claims on the grounds that a Rhode Island court’s exercise of jurisdiction, either specific or general, would violate its due process rights pursuant to the United State Constitution as well as the Supreme Court’s ruling in Daimler AG v. Bauman and its progeny.

Specifically, Dana asserted that as the plaintiff’s claims arose from alleged conduct that occurred entirely outside of Rhode Island with consequences transpiring outside of the State, the court’s exercise of specific personal jurisdiction was clearly improper. During his deposition taken near his home in Johnson City, Tennessee, Mr. Murray confirmed that he’d never lived in, worked in, received treatment in, or visited the State of Rhode Island. Absent a nexus between the plaintiff, the forum, and the litigation to permit the court’s exercise of specific personal jurisdiction, the court’s review of Dana’s motion to dismiss turned on the question of whether there was a basis to exert general jurisdiction over the defendant.

The court’s general jurisdiction analysis began by citing the Supreme Court’s decision in Goodyear Dunlop Tires Operations, S.A. v. Brown for the proposition that a court may reasonably exercise general jurisdiction over a foreign corporation where the corporation’s affiliations with the state are so continuous and systematic as to render them essentially “at home” in the forum state. 564 U.S. 915, 919 (2011); Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. and Placement, 326 U.S. 310, 317 (1945)).Upholding Daimler’s elaboration of this “at home” standard, the court reasoned that “with very limited exceptions, a defendant can customarily be subject to general jurisdiction in the state of its incorporation and the state of its principal place of business.” Going further, the court specified that evidence of a corporation’s continuous and systematic contact with a jurisdiction was relevant only to the determination of specific jurisdiction, and was not the proper ground for a finding of general jurisdiction.

Turning to the facts at bar, the court observed that both Dana and its predecessor were incorporated in Virginia with principal places of business in Ohio, with no offices, employees, or property in Rhode Island, and not registered or authorized to do business in Rhode Island. Dana reported no product sales to Rhode Island, though Dana’s predecessor reported historical sales to two Rhode Island businesses. However, such sales by Dana’s predecessor were reported to account for less than one-tenth of one percent of the company’s total annual net sales from 1997 to 2006. The court reasoned that under Daimler, “such contacts with the State of Rhode Island are insufficient to substantiate a finding of general jurisdiction over Dana.” The court went on to conclude that as Dana was not virtually ‘at home’ in the forum state for the purposes of general jurisdiction, the court lacked both general and specific personal jurisdiction over the defendant.

Beyond its significance for the extension of Daimler, the Murray ruling is instructive as to the proper exercise of the personal jurisdiction defense so as to avoid forfeiture.  In an attempt to avoid the constitutional constraints of personal jurisdiction, the plaintiff’s opposition argued that Dana forfeited its personal jurisdiction defense by attending four days of the plaintiff’s deposition prior to filing its motion, then attending eleven days of deposition following the filing of its motion.  To inform its analysis of the question of forfeiture, the court focused on the “crucial” question of whether the party advancing the Rule 12 motion met the Rule’s underlying objective of eliminating unnecessary delay at the pleading stage. Citing Dana’s timely filing of its motion to dismiss for lack of personal jurisdiction thirty days after receipt of service of the plaintiff’s complaint, and its “limited and reasonable participation in discovery,” the court concluded that Dana did not forfeit its right to assert a motion to dismiss for lack of personal jurisdiction.

The Murray decision is merely the latest in a line of cases expounding upon the landmark Daimler decision, with much remaining to be determined about the limits of a forum’s exercise of personal jurisdiction over a foreign corporation. The full decision can be read here.

About The Authors

Carolyn Riggs is an Associate in the firm’s Products Liability & Complex Tort practice where she focuses on insurance defense and toxic tort litigation. In her career, Carolyn has represented corporate clients in all phases of civil litigation in both state and federal court. She has defended clients against a variety of claims, including negligence, breach of warranty, failure to warn, wrongful death, breach of fiduciary duty, and consumer protection violations.

Brian Gross is a Partner in the firm and has extensive experience in a broad spectrum of litigation, including complex product and food liability matters, toxic tort and environmental litigation, pharmaceutical and medical device litigation, business and commercial disputes, and corporate and shareholder litigation.