On September 25, 2017, the Court of Common Pleas of Pennsylvania in Philadelphia County precluded two of plaintiffs’ experts from testifying in the Brandt v. The Bon-Ton Stores, Inc., et al. asbestos-related talcum powder case, effectively ending the case. Both Sean Fitzgerald and Dr. Ronald Gordon were precluded from offering expert testimony regarding the asbestos content in the Cashmere Bouquet talcum powder at issue.

The Brandt case involved a plaintiff who claimed she developed mesothelioma as a result of exposure to asbestos from using Cashmere Bouquet talcum powder. Defendants moved, in part, to challenge the opinions of plaintiffs’ experts regarding the asbestos content of Cashmere Bouquet on grounds the experts did not employ generally accepted methodologies to support their opinions.  During the hearing on the defendants’ challenge, the plaintiffs’ experts both conceded the tests they conducted were insufficient to differentiate between asbestos fibers and cleavage fragments—particles that look similar to asbestos fibers. The plaintiffs argued their experts’ methodologies for testing the asbestos content in Cashmere Bouquet were fodder for cross examination, and the case should proceed to the jury.

After four days of testimony from the plaintiffs’ experts and the defendants’ expert, Dr. Matthew Sanchez, the court issued a nine-page memorandum opinion excluding Mr. Fitzgerald’s and Dr. Gordon’s opinions as unreliable, “inherently unscientific,” and not generally accepted pursuant to the Frye test, which Pennsylvania continues to follow.  See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The court painstakingly detailed the experts’ methodologies for determining the alleged asbestos content in Cashmere Bouquet, and concluded that while some of the methodologies employed by Mr. Fitzgerald and Dr. Gordon were generally accepted in the scientific community, each expert modified, varied, or deviated from those generally accepted methodologies, making their opinions unreliable under Frye.

Pennsylvania is one of few states that still apply the Frye “general acceptance” test for determining whether an expert’s opinion is admissible.  The overwhelming majority of states across the country follow the standard set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc. for evaluating admissibility of expert testimony.  Under Daubert, an expert’s testimony must be both relevant and reliable; however, unlike the Frye standard, which uses general acceptance as its cornerstone, Daubert does not require or consider whether the methodologies employed by the expert are generally accepted among the scientific community.

It is difficult to predict whether the methodologies employed by the plaintiff’s experts in the Brandt case would have survived a Daubert challenge.  Both experts conceded that had they followed generally accepted methodologies for testing asbestos in talcum powder, they likely would have been unable to identify asbestos in Cashmere Bouquet, and it is difficult to imagine a jurisdiction where such “inherently unscientific” testimony would be sufficient to submit to a jury.  Nevertheless, jurisdictions following Daubert will not evaluate whether such testing methods are generally accepted in the scientific community. Therefore, it remains to be seen what impact the exclusion of Mr. Fitzgerald’s and Dr. Gordon’s expert
Continue Reading Pennsylvania Frye Test Precludes Two Experts from Testifying in Cashmere Bouquet Talc Case

Jury_Box_Purchased_8-13-14_iStock_000010826297SmallSince the United States Supreme Court’s decision in Daimler AG v. Bauman in 2014, general jurisdiction over a corporate defendant has become a hot topic. See 134 S. Ct. 746 (2014). In most jurisdictions, it is no longer sufficient for a plaintiff to establish a corporate defendant was registered to do business in the jurisdiction at issue or that the corporate defendant had sales and/or derived revenue in the jurisdiction at issue. Rather, there is a heightened inquiry and heavier burden placed on a plaintiff.

The Daimler Court held that a corporate defendant is deemed “at home” for purposes of establishing general jurisdiction over it in the forum where it is incorporated and in the forum where it maintains its principal place of business. Outside of those two circumstances, a corporate defendant will be considered at home only in exceptional cases.

One such exceptional case, as noted by the Daimler Court, can be found in the Perkins v. Benguet Consol. Mining Co. case wherein a corporate defendant moved its operations to Ohio out of Japanese occupied Philippines during World War II. See 342 U.S. 437 (1952). In Perkins, the president of the corporate defendant company kept an office, maintained company files, and oversaw the company’s activities in Ohio sufficient to render the defendant essentially at home in Ohio.

Many courts have interpreted the Court’s opinion in Daimler to place a heavy burden on plaintiffs to present such an exceptional case. With such a heavy burden placed on plaintiffs, the question many defendants are asking is: what amount of discovery are plaintiffs entitled to take in order to establish general jurisdiction over a corporate defendant?

The Delaware Superior Court recently faced this very question. In April 2016, the Delaware Supreme Court issued a decision in Genuine Parts Co. v. Cepec limiting the circumstances in which a defendant is deemed to be subject to general jurisdiction in the State of Delaware pursuant to Daimler. 137 A.3d 123 (Del. 2016). Shortly thereafter, Defendant Union Carbide Corporation (“UCC”) filed motions to dismiss for lack of personal jurisdiction pursuant to Daimler and Cepec in 211 cases pending in New Castle County, Delaware. The plaintiff in one of those cases – Charles Kimble – responded by serving written discovery requests and seeking the deposition of UCC’s corporate representative. In addition, plaintiffs in six additional cases[1] (out of the 211 with pending motions to dismiss) sought the deposition of The Dow Chemical Company (“Dow”) alleging Dow, as a Delaware corporation and parent to UCC, held some information relevant to whether the Delaware Superior Court could exercise general jurisdiction over UCC.

UCC responded to written interrogatories and document requests providing its basic corporate information and publicly available documents detailing its limited contacts with Delaware and its relationship with Dow. However, UCC and Dow both filed separate motions to quash the depositions of their corporate representatives (“Motions”). In their Motions, UCC and Dow argued Plaintiffs failed to provide “some indication” of a plausible basis for their
Continue Reading Daimler Ruling’s Crucial Role in Recent Delaware Court Decision