Nicole Villalvazo Harrison is an associate in MG+M’s Los Angeles, California, office, where she is a member of the Products Liability and Complex Tort Litigation group.

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.

 

 

california-160550_960_720Last month, the California Supreme Court issued a ruling on two coordinated “take-home” asbestos exposure cases, in which it held that employers using asbestos in the workplace have a duty of care to protect an employees’ household members from exposure to asbestos through off-site contact with employees who carry asbestos fibers on their work clothing and/or persons, also referred to as “take-home” exposure plaintiffs.  The Court noted that the duty of care existed regardless of whether the plaintiff states a claim for general negligence or premises liability.  This ruling helps clarify the law in California on the duty of care owed to “take-home” exposure plaintiffs, and in doing so further establishes California as a plaintiff-friendly state in asbestos litigation.

The Court’s opinion was premised on two “take-home” asbestos cases.  In one matter, the plaintiff filed suit against various defendants alleging that they exposed him to asbestos and caused his peritoneal mesothelioma.  Among the defendants was Pneumo Abex, LLC.  The plaintiff alleged that his uncle worked and was exposed to asbestos in a Pneumo Abex plant, which he then took home on his clothes and person and to which the plaintiff was subsequently exposed to during the 1970s.  In the other matter, the plaintiffs filed a wrongful death lawsuit against various defendants, alleging that their mother passed away from mesothelioma after also having been exposed to asbestos.  Among other defendants, the plaintiffs alleged that BNSF Railway Company employed and exposed the decedent’s husband to asbestos fibers, which he then brought home to the household he shared with the decedent, thereby exposing her to asbestos as well.

The Supreme Court set out to determine whether an employer or premises owner using asbestos has a duty to protect individuals secondarily exposed to asbestos through the clothing and persons of individuals either employed by the defendant or on the defendant’s premises.  After evaluating the facts and law, the Court held that “[w]here it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission,” and that the duty applies to employers and “also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners.”  However, the Court noted that this duty  extends only to members of a worker’s household, regardless of whether they are a relative.

In reaching this holding, the California Supreme Court first noted that California Civil Code section 1714 “establishes a general duty to exercise ordinary care in one’s activities,” thereby meaning that the issue is not whether a new duty should be established, but rather whether the Court should create an exception such that employers and premises owners would not owe a duty of reasonable care towards a workers’ household members secondarily exposed to asbestos.  California law requires that courts consider the factors outlined in Rowland v. Christian, 69 Cal. 2d 108 (1968) to evaluate whether a situation warrants a duty of care.  Under Rowland, a Court must consider 1) whether the injury in question is foreseeable; 2) the degree of certainty that the plaintiff has suffered an injury; 3) the closeness between the defendant’s conduct and the injury suffered; 4) moral blame of the defendant; 5) whether a duty of care would prevent future harm; 6) the burden to the defendant; and 7) availability of insurance for the type of injury suffered.  After considering all of these factors, the Supreme Court concluded that the injury suffered by the plaintiffs, i.e. mesothelioma resulting from exposure to asbestos, was a foreseeable result in light of the OSHA standards in place at the time of the plaintiffs’ alleged exposure to asbestos, as well as other publications during that time frame documenting the risks of asbestos exposure.  Accordingly, the Court held that because an increased risk of contracting mesothelioma was a characteristic harm resulting from the use of asbestos-containing materials, and because it can be reasonably assumed that a worker exposed to asbestos during the workday returns home at the end of the day, it was reasonably foreseeable that such workers would expose their household members to the asbestos fibers they worked with and around, thereby increasing their risk of contracting mesothelioma. While the defendants argued that there was no scientific consensus regarding the risks of asbestos during the time in which the plaintiffs were allegedly exposed, the Court noted that there is no authority for the proposition that a scientific consensus is required to establish foreseeability in the context of duty analysis.

In addition to the foreseeability of the injuries sustained by the plaintiffs in this case, the Court further held that public policy considerations also supported a finding that employers and premises owners owed a duty of care to a worker’s household members.  The Court noted that the defendants financially benefited from their business activities involving the use of asbestos, and that preventing workers’ household members’ from being exposed to asbestos would not have imposed “a greater burden than preventing exposure and injury to the workers themselves.”

Despite recognizing a duty of care owed to individuals secondarily exposed to asbestos, the defense was able to successfully argue that a blanket duty could lead to tenuous claims by an unlimited number of plaintiffs, thereby overburdening defendants and the courts.  In light of this concern, the Court held that this duty of care only extends “to members of a workers’ household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time,” thereby limiting “potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.”

The Court further held that this duty extends to both employer defendants as well as defendants sued under premises liability theory.  While the defense argued that recognizing a duty of care owed to “take-home” plaintiffs when a defendant is sued under premises liability “would take the ‘premises’ out of premises liability and unsettle the tort law that applies to all property owners,” the Court disagreed, noting that California courts have repeatedly held that a landowner’s duty of care to avoid exposing others to risk of injury is not limited to injuries that occur on the premises, but rather extends to risks of injury off the landowner’s premises, if the property “is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site.”  Given that the plaintiffs’ injuries were allegedly sustained through contact with asbestos fibers originating from the defendants’ worksites, the Court felt a duty of care was appropriate.

This decision will undoubtedly have many repercussions.  While California is already a popular jurisdiction for asbestos litigation, this holding will likely encourage more asbestos lawsuits, given that this holding will help shield many plaintiffs from demurrers and summary judgment motions, thereby increasing plaintiffs’ bargaining power.  This can subsequently result in higher settlements and larger plaintiffs’ verdicts.  However, the Court’s holding did offer some limitations of which defendants should be mindful:

  • Household Foreseeability Limitation – The Court established only a duty of care for members of the same household as individuals exposed to asbestos in their workplace. The Supreme Court was unwilling to extend the duty of care to all individuals who may have been exposed to asbestos through an employer’s clothing and person, as the Court noted that while it is foreseeable for members of an individual’s household to be exposed to asbestos from a workplace, it is less foreseeable for individuals not living in the same household as the worker to be exposed to measureable amounts of asbestos.
  • Premises Defendant Exceptions – The Court noted that while this duty extends to premises liability defendants, various fact-specific defenses may still be applicable. For instance, premises defendants are not liable to third parties for injuries caused by a contractor’s negligence in performing work, based on a lack of control, unless the premises owner is aware of a hazardous condition the contractor did not know about and was unaware of.  Kinsman v. Unocal Corp., 37 Cal. 4th 659, 675 (2005).
  • Product Defendants – The Court noted that product defendants are distinguishable from employer or premises defendants based on the level of control the defendant has over the use of asbestos: “[T]ake-home asbestos cases against employers or premises owners allege that the defendants had direct knowledge as to how fibers were being released and circulated within their facilities and failed to prevent those employees from leaving workplaces owned or controlled by the defendants with asbestos on their clothing or persons. Product liability defendants, by contrast, have no control over the movement of asbestos fibers once the products containing those fibers are sold.”  Accordingly, the Court suggests that this holding does not extend to product manufacturers, as their control ends when the product is sold, thereby making any “take-home” exposure attenuated and difficult to foresee.

While the ultimate repercussions of this decision remain to be seen, defendants should be mindful that it only helps to further solidify California as a popular jurisdiction for asbestos litigation.

From television to transportation services, it seems that everywhere we look, people are seeking increased diversity. We want to see every race, gender, ethnicity, sexual orientation, religion, and socioeconomic background represented in every industry. It has been proven that diversity can be a driver of economic growth, but what about the legal profession? Do clients benefit from diversity within their law firms?

While it may appear biased coming from a female minority, I believe all signs point to yes. Law firms with diverse workforces have unique advantages difficult to attain through any other means. The following lists just some of those advantages:

Stronger Firm

  • Let’s start off with the obvious: law firms benefit from diversity in the same way any other business does. A diverse work environment is more likely to result in greater acceptance of its employees, which results in a happier work environment, which leads to lower turnover. These are all positives for clients when it comes to the bottom line because decreasing ‘the churn’ promotes efficiency; fewer attorneys and staff will work on a client’s matters over a longer period of time. Moreover, happy employees are proven to be more productive.

Diversity Produces Better Quality Work

  • I was raised in a Mexican-American household. We spoke Spanglish at home and ate Mexican food four out of five nights. As a child, I believed this to be the ‘normal’ American life. However, through my friendships with people that did not share my culture, I came to realize there were many other languages being spoken and delicious meals being enjoyed by families around the country. My perception of what an American family looks like expanded. In a way, the career of an attorney is not much different. Attorneys from different backgrounds each provide a unique perspective and approach to the law. When an attorney has the opportunity to work with a diverse group, they are able to expand their perspective on the key issues of a case and are thus in a better position to determine the best approach. The attorneys benefit, as do the clients.

Larger NetworkDiversity in Legal Services

  • Clients look to their attorneys for more than just legal advice, often times seeking referrals in other fields or jurisdictions. It is easy to see why law firms with attorneys practicing in various states and practice areas from various backgrounds can be beneficial to clients given the large network of connections the firm creates. Even within the same city, law firms with employees from assorted backgrounds are more likely to have a larger network, often through involvement in organizations or associations.

Greater Capability

  • Let’s not overlook language. A firm with a multilingual workforce has the capability to assist clients in unique circumstances. It is not uncommon for attorneys to meet with witnesses who speak other languages. Legal documents often need to be translated or drafted in another language. Moreover, in the event a client has international business, working with attorneys with citizenship in other countries can also be useful. Having these resources available at a moment’s notice puts the client in a better position to be prepared for whatever challenges may come up.

Diverse Firms are More Relatable

  • Legal representation usually does not start and end in the office. Zealous advocacy often requires communicating directly with company employees and/or the general public. Consider instances in which attorneys need to locate witnesses to speak favorably on a client’s behalf for a deposition or trial. How about when the attorney is speaking on a client’s behalf at trial before a jury? A diverse law firm is a better reflection of the general population, which in turn helps make the firm more relatable to the public as an agent of the client. Working with relatable attorneys and staff could be the difference between winning and losing a case.

Diversity is certainly not the only way to gain a competitive advantage, but it’s hard to discount that it can have profound and positive effects on both clients and lawyers. Whether a client is an individual, a small business, or a Fortune 500 company, diversity should be a key factor when considering what kind of law firm to partner with. With the global sharing economy increasingly driven by technology, diversity is more likely to provide the necessary tools a client should want and need at its fingertips.

 

Despite efforts to increase efficiency and save money, most businesses set aside substantial budgets for litigation costs. With the ever-changing landscape of litigation, discovery is usually one of the most expensive line-items. In fact, Inside Counsel points out a Gartner forecast showing, “revenue in the enterprise e-discovery software market will grow from $1.8 billion in 2014 to $3.1 billion in 2018”.

 

Although discovery costs are necessary, the way a business operates can have a significant impact on its bottom line.  The following list provides six steps companies should consider implementing to make the discovery process more efficient and save money.

 

1. Determine Which Parties Are Most Important to the Case

 

In discovery your attorney needs to determine where essential documents can be located and who has knowledge most relevant to the case.  This can result in attorneys having to interview several people within a company to determine: (a) who is the best candidate to represent the entity as the Person Most Knowledgeable; (b) where crucial information can be found; and (c) who has access to that information.  Doing some of the initial legwork yourself can save your business many hours of attorney fees and will allow your legal counsel to hit the ground running.

 

2. Be Aware of Deadlines

 

When attorneys receive discovery requests from opposing counsel, they are on the clock.  In California for example, attorneys have 30 days to respond to most forms of written discovery.  This entails analyzing the discovery requests, determining which objections should be made, drafting responses, and providing the client time to review and approve the responses.    To prevent delays, tell your attorneys at the outset of the case how much time you will need to review discovery responses.  You can also request to be notified when discovery requests are received to plan ahead and set aside time in your schedule to review the responses.

 

3. Provide Reliable Modes of 24/7 Communication

 

Poor communication results in increased costs in all industries, and litigation is no exception.  Unanswered emails, missed telephone calls, and other communication misfires can quickly rack up fees.  This is especially true when a discovery deadline is approaching and counsel needs to reach you to acquire information for discovery responses or verification forms.  Inform your counsel of the best ways to reach you.  If you do not typically respond to work emails or phone calls after a certain hour, let your attorney know.  Consider creating an email chain with all parties involved in the case copied to ensure information is communicated simultaneously rather than multiple times.

 

4. Determine Your Theme

 

Litigation can be an art, but usually benefits from an organized, structured presentation of the legal issues raised in a case.  A company theme, or Good Company Story, is often used to provide a common thread during a jury trial to help counteract opposing counsel’s efforts to vilify a company.  By creating a theme at the outset of a case, companies can often maintain a more focused discovery process, thereby minimizing discovery into unnecessary tangent issues.

 

5. Create a Comprehensive Filing System

 

Larger corporations amass abundant volumes of records over the years, often storing them away with minimal organization.  When documents are constantly rotated and reexamined for litigation, a comprehensive filing system may be most cost effective as it eliminates countless hours of searching for documents down the road.  A comprehensive document-control index will only be useful, however, if policies and procedures are developed to ensure that digital and hard-copy documents are promptly and systematically returned to their respective places after viewing. There is nothing more frustrating than spending time and resources on a comprehensive index only to find its true benefit has been compromised by disorganized handlers.

 

6. Embrace Diversity in your Legal Team

 

Some companies opt to have their entire caseload handled exclusively by partners, while others prefer when junior associates do the brunt of the work with minor supervision by partners.  However, a diverse team of attorneys with various levels of experience can holistically tackle legal issues in a shorter amount of time. Partners provide a significant amount of wisdom and experience. Mid-level or senior associates oftentimes have comparative expertise at a lower price-point, and junior associates provide a fresh perspective on mature legal issues.

 

These tips may not work for all businesses, but keeping an open mind and working with your counsel to streamline business operations, before discovery, can result in significant bottom-line savings.

 

Regardless of your business size or sector, now is the time to begin planning for discovery.

 

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