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Eddie Dennis is an associate in MG+M's Irvine, California office. His practice focuses primarily on toxic tort liability, premises liability, general liability and construction law. Eddie represents entities such as product manufacturers, premises owners, and contractors through all phases of pre-trial litigation.

Recently, a team of attorneys from MG+M successfully obtained a dismissal of all claims against their client, based on the lack of personal jurisdiction.  The case was Howell v. Asbestos Corporation, pending in Los Angeles County Superior Court before the coordinating asbestos judge, the Honorable Steven J. Kleifield.  In his decision dismissing the claims, Judge Kleifield applied the stringent personal jurisdiction standards recently set forth in Bristol-Meyers Squibb Co. v. Superior Court of California 137 S. Ct. 1773 (2017).

 

In Bristol-Meyers, the United States Supreme court examined whether a state court could exercise personal jurisdiction over the claims of non-resident plaintiffs against a non-resident corporate defendant for injuries occurring out of the forum state.  Id. at 1778  Specifically, a group of plaintiffs sued Bristol-Myers Squibb (Bristol) in a California court for injuries sustained after ingesting a drug manufactured and supplied by Bristol.  Many of the plaintiffs were not from California. Bristol was incorporated in Delaware with its principal place of business in New York; however, it did have some connections with California, as it sold its drug within the state.

 

Ultimately, the Court ruled that California courts could not exercise specific personal jurisdiction over Bristol with respect to any plaintiffs who did not reside in California, because any conduct giving rise to the non-resident plaintiffs’ claims occurred outside of California. The Court noted 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.”  Id. at 1781.  Thus, because the complaint did not allege any acts or occurrences in California that specifically resulted in injury, the Court ruled that California could not exercise personal jurisdiction over the claims against Bristol.

 

In the Howell v. Asbestos Corporation case decided last week, the plaintiffs alleged that Mr. Howell developed malignant epithelial mesothelioma as a result of exposure to various asbestos-containing products. Although the plaintiff did reside in California for a short period of time, the vast majority of the plaintiff’s alleged exposure to asbestos occurred in the state of Texas. On behalf of one of the defendants, attorneys from MG+M argued that California courts lacked personal jurisdiction over our client pursuant to the standard set forth in Bristol-Meyers. Specifically, MG+M attorneys argued the plaintiff’s claims did not relate to any contacts that the defendant had with the state of California. For example, the defendant was not incorporated in California, did not have its principal place of business in California, and had less than 1 percent of employees residing in California, meaning there was no general jurisdiction. Additionally, the plaintiff’s alleged injury from the defendant’s product occurred outside of the state of California, meaning there was no specific jurisdiction. Ultimately, Judge Kleifield applied the Bristol-Meyers standard and held that because the plaintiffs’ claims did not bear a substantial connection to the non-resident defendant’s forum contacts, the exercise of personal jurisdiction was not appropriate.

 

 

The Future of Bristol-Meyers

 

Since the decision in Bristol-Meyers, corporate defendants are raising more personal jurisdiction challenges and achieving greater success. The Bristol-Meyers standard for personal jurisdiction has fundamentally changed the rules governing where corporate defendants can be sued, limiting plaintiffs’ lawyers’ ability to select favorable forums in which to file claims (i.e. forum shopping).  To establish specific jurisdiction, plaintiffs’ lawyers now must plead specific facts that show a connection between their client’s claims and the forum in which they seek adjudication.

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.