Dustin Beckley

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

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

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

Is Vaping a Safe Way to Quit?

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

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

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

Make Vaping Great Again?

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

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

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

The issue continues to be hotly debated, leaving e-cigarette manufacturers, retailers, and their insurers to educate themselves regarding the applicable laws and regulations and put effective policies in place to guard against regulatory violations and lawsuits.
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The Garlock asbestos bankruptcy has generated significant interest from attorneys representing plaintiffs and defendants as well as from companies and insurers involved in asbestos litigation.  Although the impact on litigation throughout the country has been uneven, courts seem to be more willing to take a proactive role in ensuring that transparency is provided in disclosing information related to bankruptcy trust claims.

In the meantime, the allegations of potential withholding of alternative exposure evidence seems to have contributed to Garlock’s agreement with future asbestos claimants.  The company recently announced a $358 million settlement of all asbestos injury claims and a revised reorganization plan.

The new agreement, while representing nearly double the $125 million a bankruptcy judge had estimated as Garlock’s liability is significantly lower than the $1 billion plaintiffs’ lawyers were requesting from Garlock.

Consequently, if the Garlock reorganization plan is approved, other companies may find asbestos bankruptcy more feasible than previously.

Additionally, as Daniel Fisher, writing for Forbes notes, other companies and insurers with potential asbestos liability are expected to continue to monitor the Garlock decision and seek to use files emerging from the case to help dispute claims that the companies or insureds’ products were the primary cause of plaintiffs’ illnesses in litigation or to show that plaintiffs may have made conflicting claims against other companies.

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Note: For more MG&M analysis on Garlock, please see previous post by William Larson and Brian Gross.

The ramifications of the Garlock asbestos bankruptcy are just beginning to be felt across the country.  As new developments continue to play out, it is important to note that in each of the 15 cases in which Garlock was allowed to conduct additional discovery, the bankruptcy court found evidence that alternative exposures to asbestos were withheld.  This groundbreaking case has shed light on extremely valuable areas of discovery previously not pursued in a thorough enough manner.

The case has set in motion a new trend triggering discovery requests for all sources of exposure outlined in prior bankruptcy trust claims. Today, many different entities are seeking additional information regarding any potential withholding of alternative exposure evidence.

For example, Sindhu Sundar, writing for Law 360, reports that the bankruptcy court recently granted Ford Motor Company’s request to file a motion in federal district court seeking sealed evidence relative to other potentially withheld bankruptcy claims.

Meanwhile, the plaintiffs’ bar has pushed back on Garlock, arguing in a recent motion that Garlock knew of alternative exposures while hiding the evidence.  As a result, the Plaintiffs’ committee in the bankruptcy case has asked that the proceedings relating to the Garlock bankruptcy estimation be reopened, claiming that “Garlock has committed a fraud upon the court”—a charge Garlock attorneys argue is baseless.

In Los Angeles, California, Judge Emilie Elias, who has been appointed as the Coordination Trial Judge for all asbestos lawsuits pending in Los Angeles, Orange, and San Diego Counties, has set a hearing on disclosure requirements for bankruptcy trust submissions.  The plaintiffs’ bar has vigorously opposed many of the disclosure requirements, arguing they may file claims simply as “placeholders” to avoid the statute of limitations and such claims should not be discoverable under the attorney work product privilege.

Regardless of future rulings on the case, the proceedings highlight the need to conduct thorough investigation and discovery regarding all sources of exposure.

As Heather Isringhausen Gvillo noted in Legal Newsline “the ruling should do everything from assisting defense attorneys seeking access to asbestos trust claim submissions as well as fueling both jurisdictional and national efforts to require bankruptcy trust transparency through case management orders or even federal laws.”

The lesson learned in Garlock is that companies and insurers involved in asbestos litigation, as well as their attorneys, must insist upon the release of all discoverable bankruptcy trust claims information.  This will sometimes require vigilance and persistence since some plaintiffs’ firms are reluctant or unwilling to provide complete disclosure regarding these sources of exposure.

As always, diligent attention to discovery procedures is essential.

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The Maryland Court of Appeals unanimously ruled that Georgia-Pacific Corp. was not liable for illness involving a woman who was exposed to asbestos while doing her father’s laundry in the 1960s.

The Insurance Journal reported on the recent decision:

  • The Court of Appeals ruled that Georgia-Pacific Corp. was not obligated to warn relatives of the dangers of asbestos in the 1960s.
  • The hazard was not sufficiently known until federal regulations were issued in 1972 by the U.S. Occupational Safety and Health Administration.
  • The court’s ruling overturns a $5 million verdict.
  • Jocelyn Farrar had been exposed while doing laundry in the late 1960s and fell ill decades later.

In the decision, available on the website of the Maryland high court (pdf download), the Court explained that it rejected liability because:

  • There was no duty to warn persons such as Ms. Farrar, who was a “bystander of a bystander,” a person who never used the product and never directly came into contact with it.
  • The duty extends to those whom the supplier should expect to use the product or to third persons whom the supplier should expect to be endangered by its use.
  • Even if the danger was foreseeable, prior to 1972 OSHA regulations, it would have been difficult for the company to have provided a warning that could have avoided the danger.

The Maryland decision continues the recent trend in rejecting a duty in cases involving secondary exposure.  In 2012, California followed Ohio and joined the growing list of states which reject the defendant’s duty to an employee’s family member in “take home asbestos” cases. In an article featured in the DRI‘s Newsletter and published on May 9, 2014, co-authors Carter E. Strang and Karen E. Ross also noted the jurisdictions which have rejected secondary exposure claims.  Since their publication, California and Maryland have joined approximately nine other states in rejecting a duty in secondary exposure cases.  Another California court recently came to the same conclusion as the earlier California case in an unreported decision.

However, as Strang and Ross noted in their January 16, 2014 DRI article (pdf download), it is unclear how these cases will play out at the trial level, as a verdict of over $27 million was recently entered in California in a case involving take-home asbestos exposure.

As the National Association of Manufacturers noted, the Maryland Court of Appeals found:

“that there was skimpy knowledge at the time of the danger to household members from asbestos dust brought into the home, and that the company was unable to give warnings directly to such plaintiffs and the warnings would not have had any practical effect. “

Conclusion

Courts nationwide are increasingly rejecting the claims by plaintiffs and their attorneys that seek to impose duties far removed from the allegedly wrongful act.  Defense attorneys can and should seek to impose reasonable limits on the issue of duty to those instances in which harm is reasonably foreseeable to the alleged tortfeasor.  Raising appropriate
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Companies and insurers continue to experience an increase in the number of lawsuits they face, which involve Plaintiffs who allege that their lung cancer was caused by asbestos exposure, despite the fact that many of these Plaintiffs were longtime smokers.  The trend, which has emerged over several years, has gained nationwide prominence as highlighted by New York Congresswoman Carolyn McCarthy’s asbestos lawsuit.

Congresswoman McCarthy sued more than 70 companies alleging that their asbestos-containing products caused her lung cancer, despite the fact that she spent 30 years as a nurse and was a heavy smoker for more than 40 years, writes Daniel Fisher in Forbes. As Fisher notes, lung cancer claims in Madison County, Illinois and Delaware have more than doubled since 2010.

As Joe Nocera recently wrote in the New York Times, the upsurge in lung cancer cases appears to be driven by economic incentives.

The increase in lung cancer filings is notable not only because of the number of additional filings, but also because many of the injured parties are longtime smokers.  Congresswoman McCarthy, for example, reportedly “is such an avid smoker that she’s known around Capitol Hill for taking breaks ­between votes.”

Marc C. Scarcella and Peter Kelso have recently published on the subject of the economic incentives of lung cancer cases.  Lung cancer filings in Madison County and Delaware have increased from less than 200 in 2000, to an estimated total for 2013 of more than 1,200.  The trend is especially notable given that smoking is likely a contributing factor in 90% of lung cancer cases, (pdf download).

As Daniel Fisher noted in a follow-up article, despite her admitted 30-year smoking history, Congresswoman McCarthy denied that her lung cancer was caused by smoking.

Conclusion

With ever-increasing lung cancer lawsuits involving allegedly injured parties, zealous and thorough investigation and representation are even more important.  Determining the injured’ party’s smoking history is not only essential, but should be a critical and repeated theme woven throughout the defense of the case by defense attorneys.  Companies and insurers faced with lung cancer lawsuits involving alleged asbestos exposure must be vigilant regarding questionable claims.
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