August 2017

A new wave of lawsuits alleging an association between ovarian cancer and the use of talcum powder for feminine hygiene purposes – a claim that many believe is based on questionable science – has hit an all-time high.  Last week, a Los Angeles jury returned a verdict against Johnson & Johnson in the amount of $417 million ($70 million in compensatory damages, $347 million in punitive damages), finding that there was a connection between Plaintiff Eva Echeverria’s ovarian cancer and Johnson & Johnson’s talcum powder product.  Plaintiff, a California resident, claimed she developed ovarian cancer as a result of her use of Johnson & Johnson’s Baby Powder over many years, and alleged that Johnson & Johnson had internal knowledge for decades of scientific studies that demonstrated that the use of talc could cause cancer.

 

In support of this allegation, Plaintiff’s lawyers presented to the jury a 1982 study suggesting that women who used baby powder – which is mainly comprised of talc – were at a 92% increased risk for ovarian cancer.  Plaintiff’s lawyers also claimed that the lead researcher for that study advised Johnson & Johnson about the study, and suggested that the company should place a warning label on their product, but Johnson & Johnson refused.  In its defense, Johnson & Johnson took issue with the 1982 study, and argued that talc is inherently safe, analogizing talc to red meat and alcohol – neither of which require warnings.

 

Much of the controversy surrounding this new litigation stems from the science lawyers representing plaintiffs are using to support their claims.  Johnson & Johnson argued during trial that the scientific studies on which Plaintiff relied upon are flawed and “made-for-litigation.”  Specifically, many studies supporting the association between ovarian cancer and talc are based on interviews conducted on women already diagnosed with ovarian cancer, asking them to remember whether they ever used talcum powder; accordingly, such studies run the risk of promoting inaccurate recollection.

 

Epidemiologist Jack Siemiatycki, who testified on behalf of Plaintiffs, stated that it is “more likely than not that talc can cause ovarian cancer.”  Additionally, Laura Plunkett, a pharmacologist and toxicologist hired by Plaintiffs, opined that talc is toxic, and when used on a woman’s lower extremities, can cause ovarian cancer by migrating into the ovaries and causing chronic inflammation, which worsens even from small applications over long periods of time.

 

Johnson & Johnson argued that Plaintiff’s experts base their assertions on unreliable studies, citing to a 2000 cohort study by researchers at Harvard University, in which they concluded that there was “no overall association” between talc and “epithelial ovarian cancer.”  In that study, out of the 78,630 women that stated they used talcum powder products, 307 of them were eventually diagnosed with ovarian cancer.  While the study did state that there was a “modest elevation in risk” for one variety of the disease – invasive serous ovarian cancer – the report concludes that the “results provide little support for any substantial association between perineal talc use and ovarian cancer risk overall.”

 

This is the first ovarian cancer talc trial verdict returned against Johnson & Johnson in a state court outside of Missouri, and by far the largest.  Johnson & Johnson has previously been hit with over $300 million in verdicts among several lawsuits in Missouri, however, Johnson & Johnson has also obtained summary judgments in two cases filed in New Jersey state court based on the same arguments made in Echeverria’s case – namely, that there is not sufficient scientific proof to establish the connection between talc and ovarian cancer.  In fact, in Echeverria’s case, the court granted the talc supplier’s motion for summary judgment, finding that talc is indeed “inherently safe” and that the supplier owed no duty to warn to the Plaintiff.

 

Johnson & Johnson maintains that its Baby Powder is safe, and has indicated that they will appeal this verdict.  Johnson & Johnson’s spokeswoman Carol Goodrich stated after the verdict was issued that they “are guided by the science, which supports the safety of Johnson’s Baby Powder.”

 

Many reputable research organizations maintain that there is insufficient evidence to conclude that talc causes ovarian cancer.  The International Agency for Research on Cancer (IARC) – which is part of the World Health Organization – holds the position that there is no epidemiological evidence that convincingly demonstrates that talc causes ovarian cancer.  Moreover, the National Cancer Institute’s Physician Data Query Editorial Board indicated this past April that the “weight of the evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”  The United States Food and Drug Administration has also indicated that talc products are not carcinogenic.

 

Despite the inconclusive evidence on this topic, it is expected that the number of claims such as Echeverria’s will infinitely rise, and may very well become the new wave of mass litigation in the United States.

 

 

As previously reported, the issue of establishing personal jurisdiction when there is no causal link between defendant’s forum contacts and plaintiff’s claims was recently decided by the United States Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017). Last week, the Bristol-Myers decision was applied by Judge Kleifield, presiding judge of Department 324 at the Los Angeles Superior Court, which oversees state court asbestos litigation for Counties of Los Angeles, San Diego, and Orange.

 

In Bristol-Myers, the Supreme Court considered whether a state court could exercise personal jurisdiction over the claims of non-resident plaintiffs against a non-resident corporate defendant for tortious injuries that occurred out of state. Bristol-Myers, 137 S. Ct. at 1778. Bristol-Myers Squib Company (“BMS”), incorporated in Delaware and headquartered in New York, had been sued in California state court by a group of plaintiffs, most of whom were not California residents, who alleged that a BMS drug damaged their health outside of California. Id. The non-resident plaintiffs had not alleged that they: (1) obtained the drug from any California source; (2) ingested the drug in California; or (3) were injured by the drug in California Id. However, it was established that BMS had some connections with California, as it sold the drug in the state. Id. at 1778. The Supreme Court reversed the decision of the California Supreme Court, which had held that there was specific jurisdiction over BMS. Id. at 1777, 1781.

 

The Supreme Court ruled that specific jurisdiction necessitates “an affiliation between the forum and underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Bristol-Myers, 137 S. Ct. at 1781 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). It further held that in order for a state court to exercise specific jurisdiction, “the suit’ must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Bristol-Myers, 137 S. Ct. at 1781 (quoting Daimler AGv. Bauman, 134 S. Ct. 746, 754 (2014)).

 

Applying those requirements, the Supreme Court found that California courts could not exercise specific jurisdiction over BMS with respect to non-residents’ claims because the non-residents did not claim to have suffered harm in California and all of the conduct giving rise to the non-residents’ claims occurred outside of California. Id. at 1782. Ultimately, the Supreme Court ruled that there was no specific jurisdiction because there was no connection between the forum and specific claims at issue. Id. at 1782.

 

In Herford, at al. v. AT&T Corp., et al., No. BC646315 (L.A. Super. Ct.), Tina Herford allegedly suffered exposure to asbestos-contaminated talc in California. The talc was allegedly supplied by defendant Whittaker, Clark & Daniels, Inc. (“WCD”). WCD and its successors, Brenntag North America, Inc. (“BNA”) and Brenntag Specialties, Inc. (“BSI”) moved to quash service of the summons for lack of personal jurisdiction.

 

Plaintiffs conceded that there was no general jurisdiction over WCD, BNA, or BSI, as each corporation was incorporated and had its principal place of business in a state other than California.

 

Although WCD’s former Vice President and Secretary stated in his declaration that: (1) WCD ceased its business operations in 2004; (2) it does not own any facilities or real property in California; (3) it has no offices in California; (4) it has no employees in California; and (5) it does not have a registered agent in California, Plaintiffs presented contradictory evidence. Plaintiffs offered evidence that:  (1) WCD sold cosmetic talc in California; (2) owned warehouse facilities in the state; (3) had employees in California; and (4) was registered to do business in California. Plaintiffs further presented evidence that WCD sold talc in California to American International Industries in Los Angeles, which incorporated that talc into a product called Clubman talcum powder.

 

In his ruling on the motion to quash, Judge Kleifield applied the Bristol-Myers decision even though he acknowledged that the facts in the Herford matter were different. He emphasized that while Bristol-Myers dealt with non-residents of California who did not purchase or use the drug in California, Tina Herford was a California resident who allegedly used asbestos-contaminated products while in California. Despite those factual differences, Judge Kleifield concentrated on applying Bristol-Myers’ principles.

 

Plaintiffs argued that the suit was related to WCD’s contacts with California because WCD sold talc in California. Although Judge Kleifield acknowledged that there was evidence to support WCD’s talc sales in California, he ruled that it was not enough to establish personal jurisdiction. Judge Kleifield focused on the lack of evidence that Tina Herford was exposed to Clubman talcum powder or any of the talc that WCD sold in California. Consequently, Judge Kleifield concluded that Plaintiffs presented no evidence that WCD did anything in California to give rise to this suit.

 

As to BNA and BSI, Judge Kleifield also ruled that there was no specific jurisdiction over them because the claims against BNA and BSI are derivative of the claims against WCD.

 

Time will tell how Bristol-Myers will be applied by California courts. Here, Judge Kleifield diverted from a close factual application of Bristol-Myers. Even though Tina Herford was a California resident and alleged injury while in this state, Judge Kleifield based his decision on the lack of connection between WCD’s sales of talc in California and Tina Herford’s claims. Judge Kleifield’s ruling is good news for asbestos defendants sued in California because it makes it clear that in order to prevail on the specific personal jurisdiction issue, plaintiffs must show evidence that the exposure alleged is directly related to a particular defendant’s activities in the state.

 

 

California’s Senate Bill 632 seeks to impose a seven hour limit on depositions in asbestos cases at the expense of defendants’ due process rights. Specifically, SB 632 will require that “a deposition examination of the witness by all counsel, other than the witness’ counsel of record,” be limited to seven hours of total testimony in any civil action for injury or illness that involves a plaintiff with mesothelioma if a licensed physician attests that: (1) either the deponent suffers from mesothelioma, is over 70 years of age, and his or her health or well-being would be prejudiced by a deposition beyond seven hours; or (2) without regard to the deponent’s age, the deponent’s mesothelioma raises substantial medical doubt of survival beyond six months.

 

SB 632 allows for an additional seven hours, but no more than fourteen hours of total testimony, if the court makes a factual finding supporting the extension and determines that the health of the deponent does not appear to be endangered by the granting of additional time. Notably, however, SB 632 ensures that the time constraints do not apply to questioning by plaintiff’s counsel and eliminates judicial discretion allowing a deposition to go beyond the fourteen hour limit.

 

A shortened period for cross-examinations is inherently prejudicial because all defendants maintain an interest in properly and fairly preparing their defense and no party should be required to jeopardize that right. Imposing a seven hour limit on a key witness’ deposition will ensure that defendants’ due process rights will be violated by not allowing adequate time to defend the case at a deposition. As a hotbed for asbestos litigation, plaintiffs in California typically name dozens of defendants for a wide variety of alleged exposures in a myriad of industries and locations that generally consist of work histories spanning thirty to forty years. In addition, such time constraints will pin codefendants against each other as each attempts to jockey for more time to properly cross-examine a plaintiff in an effort to build their defense. The number of parties in a typical asbestos case coupled with the varying alleged exposures stretched over decades will make it impossible for a defendant to conduct an effective cross-examination under the time constraints proposed by SB 632.

 

The plaintiff’s bar argues that time limits under this bill will protect plaintiffs suffering from mesothelioma from questions where answers could be ascertained from other sources like written interrogatories. Responses to written interrogatories, however, are typically devoid of substantive information and are littered with boilerplate objections that the interrogatories are burdensome and oppressive. Further, the time constraints should not only take into account a plaintiff’s medical condition, but should be measured against the effect the time limits have on all parties, as well as the orderly and fair administration of justice. Currently, case management orders governing asbestos cases filed throughout California limit plaintiffs’ deposition to twenty hours and allow judicial discretion to extend the time limit to fairly examine the deponent on a showing of good cause. SB 632 is dangerous in that it seeks to strip the court of its power by eradicating judicial discretion while at the same time violates defendants’ due process rights by disallowing adequate time to prepare and defend themselves at a deposition.

 

Cases involving allegations of asbestos exposures typically involve a multitude of defendants, each of whom is likely to conduct significant discovery and many of which who will need to cross-examine plaintiff on key issues if provided sufficient time to do so. Requiring dozens of defendants to conduct a proper cross-examination within a maximum of fourteen hours is unreasonable and will irreparably damage defendants’ ability to mount an adequate defense. As of the date of this article, SB 632 has been approved by the Senate and is sitting on the Assembly floor. If the bill passes, it will be on the Governor’s desk on September 15, 2017. Defense counsel should unite and lobby against SB 632 by writing letters to the Governor explaining that the bill will result in a violation of due process because it is impossible to complete a plaintiff’s deposition in an asbestos case in seven hours, and even fourteen hours would not allow an adequate defense given the number of defendants typically named in each case. Further, SB 632 contradicts California Code of Civil Procedure § 2025.290(a), which permitted judicial discretion in allowing additional time beyond any limits “if needed to fairly examine the deponent.” Be heard now before your session has expired.

 

lungsIn what asbestos litigation defendants hope will become a growing trend, the United States District Court for the District of Maryland recently drew a clear distinction between expert testimony as it relates to causation of both pleural mesothelioma (affecting the lining of the lung) and peritoneal mesothelioma (affecting the stomach).  In Rockman v. Union Carbide Corp, et al., 1:16-cv-01169-RBD, 2017 WL 3022969, the court recently granted defendant Union Carbide and Georgia-Pacific’s motion to preclude expert testimony as to causation and in turn, sustained defendants’ motions for summary judgment.

 

Rockman involves plaintiff Jeffrey Rockman, who allegedly developed peritoneal mesothelioma resulting from asbestos exposure during three minor home repair projects in 1965, 1973 and 1976; all lasting no more than several weeks in total.  It is undisputed that plaintiff did not perform those home repairs himself, but rather hired a handyman.  Mr. Rockman contends that Georgia-Pacific “Ready Mix” joint compound was used in all three repairs, that it contained Union Carbide asbestos, and that its use generated asbestos-containing dust, to which he was exposed.  Plaintiff was merely a bystander.

 

In support of his claims, plaintiff submitted the expert testimony of Dr. Jerrold Abraham, Dr. Arthur Frank and Dr. Arnold Brody who specifically concluded that plaintiff’s alleged exposures to Union Carbide chrysotile asbestos contained in Georgia-Pacific’s Ready Mix joint compound caused him to develop peritoneal mesothelioma.  Additionally, Dr. Brody concluded that “each and every” exposure to asbestos “cumulates” and should therefore be considered a cause of the injury, regardless of the type of mesothelioma, the exposure dosage, or the type of asbestos.  In reaching these conclusions, plaintiff’s experts relied on numerous studies of pleural mesothelioma despite reports from Dr. Abraham and Dr. Brody acknowledging that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.

 

In assessing the reliability of plaintiff’s expert’s testimony, the court turned to Rule 702 of the Federal Rules of Evidence as well as the long established U.S. Supreme Court interpretation of Rule 702 set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993) and recently reaffirmed in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017) allowing the courts to “act as a gatekeeper to ensure that testimony is relevant and reliable”.  Id.  In assessing the validity of the methodology employed by a proposed expert witness, a court may consider whether the expert witness’ theory or technique: (1) can be or has been tested; (2) has been subject to peer review and publication; (3) has a high known or potential rate of error; and (4) is generally accepted within a relevant scientific community.  Id.

 

Ultimately, the Court determined that plaintiff’s expert’s specific causation opinions are not the product of reliable principles and methods as required by Rule 702.  Contrary to the factors set forth in Daubert, Drs. Abraham and Frank had improperly drawn conclusions about a case involving peritoneal mesothelioma and low-level bystander exposure to chrysotile asbestos, basing their opinions entirely on prior research studying pleural mesothelioma and primarily high-level exposures to amphibole asbestos.  Both experts cited a series of studies involving high-level occupational exposures to asbestos.  In contrast, plaintiff has not alleged that he ever worked with asbestos or used an asbestos-containing product.  Rather, he was merely present while workers completed various repair tasks at his home in 1965, 1973 and 1976.

 

Plaintiff first argued that although each type of mesothelioma requires different levels of asbestos exposure, plaintiff is not required to show a quantitative estimate of a patient’s asbestos “dose”, but rather, a “significant” exposure to asbestos will suffice.  The Court, however, rejected plaintiff’s argument, as neither Dr. Abraham nor Dr. Frank were able to demonstrate plaintiff’s exposure was significant in the context set forth in Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 861-62 (E.D.N.C.) (holding that the use of the term “significant . . . implies that a certain level has been established at which the asbestos exposure attains ‘significance’”)  The court in Rockman went on to note that Drs. Abraham and Frank even acknowledge that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.  As such, because plaintiff was merely a bystander on three short-term occasions, plaintiff’s exposure could not be classified as “significant”.

Plaintiff’s second argument was that, regardless of whether plaintiff’s exposure was significant, “each and every” exposure to asbestos cumulates and should therefore be considered a cause of the injury, regardless of dose, the type of asbestos, or the type of mesothelioma.  The court further rejected this argument and held that despite this theory’s repeat appearances in asbestos litigation, courts have routinely excluded expert testimony grounded in this theory on the grounds that it lacks sufficient support in facts and data.  Comardelle v. Pa. Gen. Ins. Co.,76 F. Supp. 3d 628, 632-33 (E.D. La. 2015); see also Wills v. Amerada Hess Corp., 379 f.3d 32, 49 (2nd Cir. 2004) (affirming exclusion of theory that decedent’s cancer was caused by a single exposure to toxic chemicals, regardless of dosage, based on Daubert factors.   Thus, the court held that “[w]ithout epidemiological studies – or other reliable evidence – demonstrating a causal link between injury and exposure, expert testimony amount[s] to no more than mere speculation and conjecture.

Therefore, because plaintiff’s expert testimony as to causation was excluded, the court was left with no choice but to sustain defendant’s Motion for Summary Judgment.

 

Future Impact

 

This case has the possibility to have a major impact on Maryland asbestos and toxic tort litigation because it not only draws a clear distinction between the standard of causation for peritoneal mesothelioma and pleural mesothelioma cases, but also because it does not allow plaintiff’s experts to rely on the cumulative dose of asbestos as a basis to assign causation to a particular product.  Although this ruling comes from a local District Court, asbestos litigation defendants hope that it will begin to set a jurisdictional trend among other courts and force plaintiff’s experts to take a closer look at the necessary exposure levels between both types of mesothelioma, in order to demonstrate causation.

 

Mineral talc, as a raw material, was determined to be “inherently safe” by Los Angeles Superior Court Judge Maren Nelson in the days leading up to the first Johnson & Johnson California ovarian cancer trial in the Johnson & Johnson Talcum Powder Cases, number JCCP4872.  According to Law360.com, on July 10 the judge dismissed Imerys Talc based on her finding that talc is “inherently safe.”  This ruling could have a profound effect on talc litigation, at least in California, as it may serve to protect Imerys and other suppliers of raw talc from further liability.

The court based its decision on the 1998 California appellate case of Artiglio v. General ElectricSee 61 Cal. App. 4th 830, 839 (1998).  The Artiglio decision is based on the Restatement Third of Torts and stands for the proposition that component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are: (1) not inherently dangerous; (2) they sell goods or material in bulk to a sophisticated buyer; (3) the material is substantially changed during the manufacturing process; and (4) the supplier has a limited role in developing and designing the end product.  See id.

A number of other states, including Massachusetts, have similar jurisprudence that recognize the “bulk supplier,” “sophisticated user,” and “component part” doctrines which may lead to similar results for raw material suppliers, such as talc suppliers, in ovarian cancer talc litigation.  See Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431, 441 (2006); Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 629 (2001).

Unlike California courts, though, Massachusetts courts have not conglomerated the sophisticated user doctrine and the bulk supplier doctrine into one rule that deals with “inherently safe” raw materials.  Massachusetts courts have, however, held that the components of the Artiglio rule (the bulk supplier doctrine and the sophisticated user doctrine) are recognized defenses in Massachusetts.  See Hoffman, 434 Mass. at 629; See Artiglio 61 Cal. App. 4th at 839.  Additionally, Massachusetts courts have recognized the component parts doctrine, which in California, is a counterpart of the Artiglio rule. See 61 Cal. App. 4th at 839.  Therefore, talc defendants certainly have a strong argument for dismissal.

Hoffman, confirms that the first component of the Artiglio rule, the bulk supplier doctrine, is available in Massachusetts.  See Hoffman 434 Mass. at 629.  In Hoffman, the pivotal question on appeal concerned the duty of a bulk supplier to warn all foreseeable users of the risks associated with a product’s use.  See id.  In that case, the court held that the bulk supplier doctrine allows a manufacture-supplier of bulk products, in certain circumstances, to discharge its duty to warn end users of a product’s hazards by reasonable reliance on an intermediary.  See id.  Among the factors that may determine reasonable reliance are: (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burden imposed on the supplier by requiring that he directly warn all users.  See Hoffman, 434 Mass. at 632; See Artiglio 61 Cal. App. 4th at 839.

The sophisticated user doctrine, another component of the Artiglio rule, is a separate and conceptually discrete affirmative defense from the “bulk supplier” defense which is also available in Massachusetts.  See Carrel, 447 Mass. at 441.  The sophisticated user doctrine relieves a manufacturer of liability for failing to warn of a product’s latent characteristics or dangers when “the end user knows or reasonably should know of a product’s dangers.”  See id.  In the context of the sophisticated user defense, the “end user” is the person whose sophistication is relevant to determining the defense.  See Taylor v. Am. Chemistry Council, 576 F.3d 16, 25 (1st Cir. 2009). Where a case involves three parties (such as a supplier, an employer who purchases the product from the supplier, and an employee who foreseeably comes into contact with the product and is injured), the “end user” may be either the intermediate party or the plaintiff. See Taylor, 576 F.3d at 25; see also Carrel, 447 Mass. at 441 (examining knowledge of intermediary); Barbosa v. Hopper Feeds, Inc., 404 Mass. 610 (1989) (examining knowledge of plaintiff).  In Carrel a camper was injured when he pulled on the end of a bungee cord, causing a knot in the cord to unwind, striking him in the eye.  See Carrel, 447 Mass. at 432.  At trial on the camper’s claim for failure to warn, the jury was instructed on the sophisticated user defense, and the defendant prevailed.  See Carrel, 447 Mass. at 433.  The Supreme Judicial Court upheld the instruction on appeal, and it noted that it was the practice of the cord’s distributor (not the manufacturer) to include in its shipments a document warning against using the bungee cord in a zip-line course in the precise manner that the camp had used it.  See Carrel, 447 Mass. at 445.

Importantly, Massachusetts courts have also recognized the component part doctrine, which in California, is considered a parallel counterpart to the Artiglio rule.  See Webb v. Special Elec. Co., 63 Cal. 4th 167, 183 (2016).  When a component of an integrated product is not itself defective, the maker of the component is not liable for injury that results from a defect in the integrated product.  See Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631 (1986) (“A supplier of a component part containing no latent defect has no duty to warn the subsequent assembler or its customers of any danger that may arise after the components are assembled.”)  California has also recognized this component parts rule in O’Neil v. Crane Co. when the court stated that a product manufacturer may not be held liable in negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.  See 53 Cal. 4th 335, 266 (2012).

Although Massachusetts courts have not yet created a combined rule, as did the California court in Artiglio, talc suppliers facing cases in Massachusetts may be still able to build an effective defense through the application of the “sophisticated user,” ”bulk supplier,” and “component parts” doctrines.