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Bill Larson is a native Delawarean with deep ties throughout the state and a well-rounded litigator and trial attorney with extensive experience in national asbestos litigation and Delaware corporate and commercial litigation.

de-courtJudge Vivian L. Medinilla of the Delaware Superior Court recently denied defendant Monsanto Company’s motion to dismiss on the basis of forum non conveniens (“FNC”) in Barrera v. Monsanto Company.  This ruling, along with a similar ruling issued by Judge Andrea L. Rocanelli one day prior in Gilchrist v. GlaxoSmithKline, LLC, reaffirms and provides new strength to Delaware’s long-standing precedent of offering great deference to a plaintiff’s choice of forum and requiring a defendant to establish “overwhelming hardship” in order to dismiss a case on FNC grounds.

In Barrera, the Court considered the claims of three Plaintiffs alleging their cancers were caused by Monsanto’s glyphosate pesticide known as Roundup.  The case’s only connection to Delaware was Monsanto’s status as a Delaware corporation (although Monsanto’s principle place of business is in Missouri).  None of the Plaintiffs lived in Delaware or alleged any exposure to Roundup in Delaware.  Rather, Plaintiffs alleged exposure to Roundup in Michigan, New York, Oregon, Texas, Virginia, and Washington.  Monsanto therefore asserted that Plaintiffs’ claims would be more properly adjudicated in the respective jurisdictions of their alleged exposures and moved to dismiss the Delaware action on FNC grounds.

In analyzing Monsanto’s motion, the Barrera Court considered the following six factors, known as the “Cryo-Maid” factors, which Delaware Courts have long relied upon in examining FNC motions:

  1. The relative ease of access to proof;
  2. The availability of compulsory process for witnesses;
  3. The possibility of viewing the premises;
  4. Whether or not Delaware law will be applied;
  5. The pendency or nonpendency of similar actions in another jurisdiction; and
  6. All other practical problems that would make the trial of the case easy, expeditious, and inexpensive. Barrera, at 12-13.

In considering all of the factors as a whole, the Court concluded an overwhelming hardship did not exist.  Although the relevant proof, witnesses, and premises (factors 1-3) mostly lie outside of Delaware, the Court found  obtaining such evidence was not a hardship on Monsanto given the technology available in today’s global age.  The Court also noted that it routinely applies other states’ laws (factor 4) and that no other action was currently pending in another jurisdiction (factor 5).  The Court found that the “other practical problems” sixth factor weighed in Monsanto’s favor, but nevertheless concluded that this single hardship was insufficient to justify dismissal, stating:

It may be true that there are more appropriate or convenient forums to litigate Plaintiffs’ claims.  Yet to prevail on this FNC motion to dismiss, Defendant is nonetheless required to demonstrate with particularity that this is “one of those rare cases where the drastic relief of dismissal is warranted” because Defendant will suffer overwhelming hardship if forced to litigate here.  Defendant has not demonstrated that this is one of those rare cases.  Barrera, at 22.

The Barrera ruling takes on added significance given that Delaware’s FNC jurisprudence had come under some question of late after a pair of decisions,  Martinez v. E.I. DuPont de Nemours & Co., Inc. in the Delaware Supreme Court and Hupan
Continue Reading Court Rules Monsanto Roundup Cases to Stay in Delaware

Overview:

In an opinion written by Justice Henry DuPont Ridgely, a unanimous panel of the Delaware Supreme Court recently threw out a $2.8 million verdict in the case of Michael Galliher v. R.T. Vanderbilt.  Defense Litigation Insider previously covered the verdict and Trial Court’s post trial opinion.  Here, R.T. Vanderbilt (“Vanderbilt”) appealed the verdict claiming the Trial Court failed to include a necessary jury instruction and certain testimony from plaintiff’s witnesses prejudiced the trial.  Plaintiff cross appealed and claimed he should receive post-verdict interest on the award, but the Supreme Court did not reach that issue.  Instead, the Court ordered a new trial based on the fact that Dr. Barry Castleman provided inadmissible testimony and the Trial Court did not provide a jury instruction on the duty of care owed by Mr. Galliher’s employer.

Dr. Castleman’s Testimony:

During cross examination, Dr. Castleman made several statements that were non-responsive to questions of defense counsel, including some information that had been specifically excluded by the Trial Court.  Dr. Castleman testified that: (1) Johns-Manville employees had called Vanderbilt “liars;” (2) Vanderbilt spent millions of dollars on studies to undermine government regulatory action with respect to its talc; and (3) it was “buying senators and lobbying the government.”  The Court determined Dr. Castleman’s unsolicited testimony during cross examination was inadmissible and its prejudicial effect required a new trial.

Jury Instructions:

The Court also overturned the verdict because the Trial Court did not include an instruction to the jury on the duty of care owed by Mr. Galliher’s employer.  Vanderbilt sought apportionment of fault to the employer and requested a duty of care instruction.  While the Trial Court indicated it would include such an instruction in the final set of jury instructions, it omitted the instruction from the set given to the jury.  The Court found that was an error and such an instruction must be added for the re-trial, which has since been scheduled for March 9, 2015.

 

Trial Tip Take Aways:

  1. All parties should carefully review the final jury instructions and be prepared to address any omissions or errors with the Court prior to or, if necessary, immediately after the instructions are given to the jury, so any errors can be corrected immediately.
  2. All parties should be sure to tell witnesses of evidentiary rulings that impact their testimony and instruct them to limit their testimony accordingly.
  3. Video testimony played by plaintiff at trial included a line of testimony that the Trial Court had ruled was inadmissible.  Although the Court did not thoroughly analyze this issue in this ruling, it created an appealable issue and all parties should be sure to review final cuts of videos before they are played to the jury to avoid potential appellate issues.
  4. Defense counsel should be armed with this opinion in future trials where Dr. Castleman will testify and be prepared to immediately address his testimony with the Court if his answers start to stray from the questions asked.  This opinion may encourage Trial Courts to


Continue Reading Delaware Supreme Court Tosses $2.8 Million Verdict in Galliher Asbestos Trial

Court Ruling

Background: Garlock Sealing Technologies, LLC (“Garlock” or “Debtors”) filed for Chapter 11 bankruptcy protection in June 2010.  Garlock had been an active asbestos defendant for its asbestos-containing precut gaskets, sheet gasket material, and packing materials.  In January, after extensive discovery and a trial held under seal, the Bankruptcy Court issued an opinion (pdf download) in which it estimated Garlock’s liability for present and future mesothelioma claims.  The Court adopted the Debtors’ estimate of $125 million despite the $1-$1.3 billion estimate of the representatives of current and future claimants (“Claimants”).

Estimation Analysis: In the past, bankruptcy courts have taken a variety of approaches to estimating liability for present and future claims, which has led to billions of dollars being set aside for claimants in asbestos bankruptcy trusts.  Here, Debtors requested that the Court follow a “legal liability” approach, in which the merits of claims are considered and an econometric analysis is conducted to determine the likelihood of recovery.  Meanwhile, Claimants requested that the Court follow a “settlement approach” based on extrapolating data from Garlock’s past settlements in the tort system.

Before making a determination, Judge George R. Hodges allowed Garlock to conduct additional discovery in 15 cases that it settled or took to trial.  Plaintiffs in these cases were represented by 5 major asbestos plaintiff firms.  In every case, Garlock found that evidence of alternative exposure was withheld.  The Court found on average pre-settlement disclosure of exposure to 2 bankrupt entities’ products, but after settlement those same plaintiffs made claims to an average of 19 bankruptcy trusts.  The Court found several occasions when lawyers misrepresented a plaintiff’s exposure history to judges and juries only to later file claims against trusts for products to which they had previously denied exposure.  Garlock has filed civil lawsuits against several plaintiff firms based on allegations of fraud.  For more details on the allegations and related litigation see the Court’s opinion and accounts from NPR, Forbes, and BusinessWeek.

While the Court recognized a comfort in relying on settlement history to estimate liability, it found in this case a “divorce” from that process was necessary and it adopted the Debtors’ approach and estimate.  The Court determined that the Claimants’ approach did not adequately account for cases in which exposure evidence was withheld and it did not take into consideration the cost of litigation as a driving factor in settlements.  The Court concluded that Garlock’s products were made of low potency chrysotile asbestos and generally Claimants had also been exposed to more potent amphibole asbestos from other manufacturers’ products.  Based on this alternative exposure and the fact that some claimants had never been exposed to asbestos from a Garlock product, the Court concluded Garlock should be responsible only for a small percentage of each claimant’s recovery and only if exposure actually occurred.

The Court adopted the analysis of Dr. Charles E. Bates of Bates White.  It found that $25 million was a reliable estimate of Garlock’s liability to its approximately 4000 current mesothelioma
Continue Reading North Carolina Bankruptcy Court Limits Garlock’s Asbestos Liabilities and Ford Wants the Court Records Unsealed

Approximately a year ago Delaware Asbestos Judge John A. Parkins, Jr. asked the asbestos bar to recommend a revised Standing Order No. 1  (pdf download) and General Scheduling Order (pdf download) (“GSO”) to govern the ten asbestos trial settings in Delaware each year.  The endeavor was led by the ADR Master, David A. White, and then Judge Joseph R. Slights, III, who is now a practicing lawyer in Wilmington.  Judge Slights previously presided over the asbestos docket.  A year of negotiations led to joint proposed orders.  After a few minor changes, the Court issued the new orders earlier this month.  Transitioning to the new orders is still a work in progress, but it appears they will take full effect starting with cases scheduled for trial in February 2015.  Here are the Top 5 Changes you should know:

  1. The new standing order streamlines deadlines, while expanding the number of days in the GSO for most cases and providing an expedited track for exigent cases.  The new GSO has only 24 deadlines compared to 60 deadlines in the old GSO.  Unnecessary deadlines were removed and others were combined to allow for the more efficient processing of cases.  Under the prior GSO, discovery and pretrial took place over a 360 day schedule.  Now non-exigent cases will have a 420 day track and exigent cases, in which Plaintiffs provide certain discovery in advance of docketing for trial, can use “a spur” to jump into the GSO 320 days from trial.
  2.  New Standing Order No. 1 updates plaintiffs’ production requirements regarding claims forms.  Within 60 days of filing a complaint, plaintiffs must produce copies of all claims forms and all related materials.  In addition to bankruptcy trust proof of claims forms, plaintiffs must also produce applications for Social Security benefits, worker’s compensation benefits, military service benefits, and disability benefits.  Plaintiffs have an obligation to supplement these records up to the time of trial.  The new order expands plaintiffs’ production requirements and makes clear their ongoing obligation to produce these documents.
  3. The new GSO requires that the parties complete summary judgment fact discovery prior to the drafting of motions for summary judgment.  Practically speaking, the major change provided in this provision is that it allows plaintiffs an opportunity prior to motions for summary judgment to depose witnesses on which defendants plan to rely for those motions.  This provision should provide a more complete factual record for motions for summary judgment.
  4. For the second time in his tenure as Asbestos Judge, Judge Parkins moved summary judgment oral arguments earlier in the process.  Shortly after assuming the docket, he moved oral arguments from 30 days prior to trial to 60 days.  The goal was to give the Court time to rule on motions taken under advisement and the parties time to resolve claims prior to trial.  The new GSO calls for oral argument 100 days prior to trial.  The new oral argument date further accomplishes the Court’s goals discussed above and allows for motions to be heard prior


Continue Reading Top 5: Changes to New Delaware Asbestos Standing Orders

industrial talc powder

Background: 

Judge John A. Parkins, Jr. recently upheld a $2.8 million verdict awarded to the estate of a deceased 62 year old man in a mesothelioma case .  The Simmons firm represented Plaintiffs in this case against R.T. Vanderbilt (“Vanderbilt”).  Plaintiffs argued that Vanderbilt’s NYTAL industrial talc (pdf download) contained asbestiform materials and caused Mr. Galliher’s mesothelioma.  Vanderbilt argued that those asbestiform fibers could not cause mesothelioma.  At trial, Vanderbilt moved for a mistrial based on inadmissible testimony presented to the jury and judgment as a matter of law.  Judge Parkins denied the motion for a mistrial and reserved ruling on the motion for judgment as a matter of law.  Vanderbilt renewed its motions after trial and recently the Court denied both motions (pdf download).

Motion for New Trial:

Vanderbilt moved for a new trial based on the following evidence presented to the jury which it claimed was improper:

  • Plaintiffs failed to remove certain excluded hearsay testimony from the video testimony of a Vanderbilt employee regarding asbestos being present in the talc.
  • Dr. Barry Castleman inappropriately suggested that Vanderbilt spent $16 million “buying senators and lobbying the government.”
  • Dr. Castleman inappropriately referenced Johns Manville calling Vanderbilt “liars” regarding the marketing of its talc.
  • Sean Fitzgerald inappropriately relied upon ratios derived from an excluded report in his testimony.

Reasoning

Judge Parkins analyzed each of Vanderbilt’s arguments and determined they did not warrant a new trial.  Considering each claim individually, he found:

  • The Vanderbilt employee’s hearsay testimony was cured through a curative instruction.  Moreover, Vanderbilt had an opportunity to review the edited tape before it was shown to the jury, but did not find the mistake prior to its presentation to the jury.  The Court noted, “Vanderbilt took a calculated risk when it sent only one counsel to try the case.”
  • Dr. Castleman gave the $16 million statement in response to questions from Vanderbilt’s attorney.  The Court struck the testimony and instructed the jury to disregard it.  Ultimately, it determined that the testimony was not significant enough to warrant a new trial.
  • Dr. Castleman testified regarding the liars comment in response to questions from Vanderbilt.  The testimony comes directly from a paragraph in Dr. Castleman’s book, about which Vanderbilt specifically asked.  Vanderbilt’s argument largely fell on deaf ears because as the Court stated, “for no obvious reason Vanderbilt’s counsel decided to venture into the minefield.”
  • The Court determined the Fitzgerald testimony was cured through curative instructions.

Take-Away

Given the high standard for a new trial, the Court is unlikely to grant one unless the errors are egregious.  The Court will make every effort to cure prejudice during trial through curative instructions as it did here.  Finally, the Court appears to suggest that given the complexity of asbestos trials, the last minute nature of many evidentiary rulings inherent in these trials, and the time constraints of this trial (counsel had limited time to present the case), defendants should consider sending two trial counsel or rely more heavily on
Continue Reading Delaware Judge Upholds $2.8 Million Verdict in Galliher Asbestos Trial