In a 2-1 opinion, the Fourth District Court of Appeal continued to apply the law which bars marrying into a cause of action, but a strong dissenting opinion and noted public policy concerns could trigger further review.

In Florida, as in various other jurisdictions, the courts follow the common law marriage before injury rule. This rule requires a party to be married to the injured person prior to the time of the injury in order to assert a claim for loss of consortium – i.e. loss of companionship and support. The rationale behind this rule is that a person should be unable to marry into a cause of action. This rule has been consistently applied in personal injury cases including toxic tort and products liability cases of the “creeping” variety, such as asbestos and tobacco.

In the recent decision issued in Janis Kelly v. Georgia-Pacific, LLC, et al., No. 4D15-4666 (Fla. 4th DCA February 22, 2017) the Court was asked to look at this issue in the context of a wrongful death claim. In Kelly, Plaintiffs originally filed a personal injury claim asserting causes of action for negligence, strict liability, and for Mrs. Kelly’s loss of consortium arising from Mr. Kelly’s alleged exposure to asbestos while working in construction from 1973 to 1974. Mr. and Mrs. Kelly were not married until 1976, two years after Mr. Kelly’s alleged asbestos exposure. Mr. Kelly died during the course of the litigation at which time Mrs. Kelly amended the complaint to allege a claim for wrongful death, which included a demand for loss of consortium damages. The Defendants moved to dismiss Mrs. Kelly’s claims for loss of consortium as Mr. and Mrs. Kelly were not married at the time of Mr. Kelly’s alleged injury. When the trial court granted the motion to dismiss, Plaintiff voluntarily dismissed the remaining claims and the appeal followed.

On appeal, the Court addressed whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the time of the injury to recover consortium damages. And, the Court revisited the question of whether the common-law marriage before injury rule should apply in “creeping” cases where the injury is a latent injury that does not reveal itself until after the parties marry.

On the first issue, the Court looked to the legislative intent of Florida’s Wrongful Death Act, to determine if the Act supersedes the common law of loss of consortium– i.e. did the statute unequivocally state that it changes the common law or is it so repugnant to the common law that the two cannot coexist. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990). In applying Thornber, the Court found that the plain language of the Act clearly intended to allow for the survivors of the decedent to recover damages, including the surviving spouse to recover “consortium-type” damages. See ACandS, Inc. v. Redd, 703 So.2d 494 (Fla. 3d DCA 1007). The Court found, however, that nothing in the Act nullifies the common law marriage before injury rule. Instead, the Court determined that the common law requirement merely limits the circumstances when damages for loss of consortium may be recovered. Ultimately, ruling that the common law marriage before injury rule can coexist with the Wrongful Death Act.

In further support of its position, the Court also looked to the legislature’s definition of the term “survivor” and the trigger for when consortium damages are recoverable under the Act. Specifically noting, the term “survivor,” is limited to a familial relationship only, and the provisions of the Act governing a survivor’s damages clearly provide that they are recoverable from the date of the injury. See §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Based on these provisions, the Court concluded that the Act clearly anticipated the surviving spouse would have been married to the decedent prior to the date of the injury.

Lastly, in making its determination to apply the marriage before injury rule in wrongful death cases as well as personal injury claims, the Court addressed the requirement that it avoid absurd or unreasonable results. Justice Levine, in writing for the Court, notably stated “it would make no sense to allow a spouse to recover consortium damages under the Wrongful Death Act simply because his or her spouse has died when that same spouse would be prohibited from recovering the same damage under a loss of consortium claim had his or her spouse survived.” It is clear that such a ruling would create an inconsistent standard and provide for a cause of action where none previously existed.

The Court then briefly addressed the second issue related to Mrs. Kelly’s argument that the marriage before injury rule should not apply in an asbestos case where the injury is latent because there is no risk, or at least a diminished risk, of a spouse marrying into a cause of action. While acknowledging the persuasive policy reasons for superseding the common law rule, especially where the injury is latent, the Court in relying on the decision in Fullerton v. Hospital Corporation of America, 660 So.2d 389 (Fla. 5th DCA 1995), declined to overrule the trial court’s order. Finding as the Court did in Fullerton, that absent a statute superseding the common-law requirement, it is required to follow the common-law rule.

Justice Taylor’s dissent focused solely on the position that the Wrongful Death Act explicitly abrogates the common-law rule. He argues that the statute was created to provide for a surviving spouse to bring a new cause of action that was not previously recognized by common law entitling them to make a claim for loss of consortium damages. And, that the legislature’s inclusion of loss of consortium damages without language limiting their recoverability based on the surviving spouse’s relationship to the decedent at the time of the injury, clearly shows intent that such damages be recoverable.

While this case provides clarity as to the application of the common-law marriage before injury rule in both personal injury and wrongful death cases, based on the dissent and noted public policy issues, this issue will most likely be addressed in the near future by the Florida Supreme Court.

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.

battleshipIt is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to parties.  Further, the Federal Rules of Evidence tend to be more stringent, as are requirements for expert witnesses.  These, and the notion that federal courts tend to grant motions to dismiss and motions for summary judgment more frequently and award lower verdicts, means that plaintiffs would often rather file their cases in state court and conversely, defendants often prefer to litigate these cases in federal court. Consequently, when possible, defendants often will remove a case filed in state court to the applicable U.S. District Court where the state action was pending. One such method of removal is found in 28 U.S.C. § 1442(a)(1), the federal-officer removal statute. Specifically, § 1442(a)(1) allows a defendant that acted under any United States agency or officer to remove a plaintiff’s suit to federal court if any of the alleged claims or defenses relate to “any act under color of such office.” This is a frequently used tool of military contractors to get their government contractor defense heard by a federal court.

Government contractor immunity is a recognized federal defense based on public policy (See Boyle v. United Technologies Corp., 487 U.S. 500 (1988)). It is an offshoot of the governmental immunity doctrine codified in 28 U.S.C. § 2680, which insulates the federal government from suit in relation to the performance of its discretionary actions. Military contractors may be extended the benefits of §2680 in a product liability action if they can demonstrate that: (1) the government “approved reasonably precise specifications” for their product; (2) the product conformed to those specifications; and (3) the contractor warned the government about the dangers in the use of the product that were known to it but not to the government.”  Boyle, 487 U.S. at 512.

Military contractors of all stripes expressed a collective sigh of relief on January 20, 2017, when the Fifth Circuit Court of Appeals fortified the federal officer removal statute in Zeringue v. Crane Co., 2017 WL 279496 (5th Cir. 2017), a decision which overturned the Eastern District of Louisiana’s remand of an asbestos plaintiff’s suit to Orleans Parish District Court. In Zeringue, the Plaintiff filed suit in Louisiana state court alleging that he first was exposed to asbestos while serving aboard U.S. Navy ships during the 1950s. Crane, one of more than twenty defendants in the case, was a major supplier of asbestos-containing valves, among other equipment, to the Navy. Accordingly, Crane invoked the federal officer removal statute so that it could litigate the case in federal district court. It argued that removal was proper because “any product [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings that accompanied the product) would be subject to Navy specifications and requirements.” Zeringue, 2017 WL 279496 at *1. As such, Crane argued that “[f]ederal officers exercised their discretion regarding whether (1) asbestos was used in the product, and (2) whether a warning would accompany the product.” Id.

In support of its position, Crane proffered three affidavits. The first, from Crane’s Vice-President for Environment, Heath, and Safety, stated that “all equipment supplied by Crane Co. to the Navy was built in accordance with [Navy] specifications” which “governed all aspects of a piece of equipment.” Id. at *4. The second affidavit was prepared by a former admiral in command of operation and maintenance of Navy ships who explained that “[e]quipment could not have been installed aboard Navy vessels unless it was first determined by the Navy to be in conformity with all applicable Navy specifications.” Id. Finally, a former Navy physician that oversaw naval industrial hygiene testified that “the Navy’s knowledge of asbestos dangers ‘has been quite complete when compared to available knowledge over time, and at least by the early 1940s, the Navy had become a leader in the field of occupational medicine relating to, among other things, asbestos dust inhalation exposure.’” Id.

The District Court, however, sided with Zeringue in his attempt to return the case to state jurisdiction. Notably, the District judge agreed that Crane “allege[d] all the elements for…federal officer removal” and “provided evidence that permitted a ‘plausibl[e] assum[ption] that any equipment that Crane built for the Navy was indeed subject to detailed specifications.’” Id. at *1. Yet, Zeringue’s case was sent back to the state court because the federal court did not believe Crane proved that the Navy exercised discretion over the equipment Crane supplied.

Crane appealed the District Court’s ruling to the Fifth Circuit, which thoroughly rejected the lower court’s holding. The appeals court explained that a federal defense, such as government-contractor immunity, must only be colorable to permit federal jurisdiction. A colorable federal defense is one that is material, not “wholly insubstantial and frivolous,” and not made solely for the purpose of obtaining federal jurisdiction. Id. at *2. The Circuit Court noted that the affidavits submitted by Crane, although not conclusive, fell well within the scope of colorability:

[The documents] are not definitive proof that Zeringue’s asbestos exposure resulted from the Navy’s—not Crane’s—discretionary decision, nor are they definitive proof that Crane did not need to supply the Navy with information regarding the dangers of asbestos because of the Navy’s existing knowledge. But definitive proof is not necessary for removal, and the military specifications and affidavits do suffice as a non-insubstantial and non-frivolous basis upon which Crane may assert government-contractor immunity.

Id. at *4. (Emphasis added).

In sum, the Fifth Circuit has joined a number of other federal Circuit Courts in holding that a removing defendant need not win its case on removal.  Instead, the removing defendant need only demonstrate that it has a colorable federal claim or defense in order to litigate the case in federal court.

Artboard 1You get served with a citation in a new products suit. The facts do not look good. The airbag system didn’t deploy. Maybe a tire exploded. Perhaps the steering assembly failed. A call is made to the plaintiff’s attorney – you want an expert to use an onboard diagnostic tool to test for what went wrong. Expecting to reach an amenable date for an inspection, you get a response that you were not quite expecting – the vehicle (or tire or steering assembly) has been salvaged and is no longer available for inspection. What happens next, and the legal theories involved, undoubtedly vary from state to state. Here we take a brief look at Louisiana law on the “case of the missing product.”

Adverse Presumption

In Williams v. General Motors Corp., 639 So. 2d 275, 276 (La. App. 4 Cir. 1994), the plaintiff was driving as 1985 Buick manufactured by GM when his steering failed and his vehicle veered into a guardrail. After the accident, the Williams’ damaged vehicle was taken to Jackie Rowan’s Automotive Repair where “[a]n employee of the repair shop discarded the rack and pinion steering assembly. Mr. Williams, therefore, could not produce those parts at the trial in support of his claim that they were defective.” Id. at 278. General Motors asserted that the failure to produce those parts in court “creates a presumption that the evidence would have been unfavorable to his cause.” Id. The court held that “[w]here a litigant fails to produce evidence available to him and gives no reasonable explanation, the presumption is that the evidence would have been unfavorable to him….the record supports Mr. Williams’ contention that the part was inadvertently discarded when it was mistaken for scrap metal by an employee of Jackie Rowan’s Automotive Repair Shop.” Id. The court held that Mr. Williams therefore provided a reasonable explanation for his failure to produce the evidence in court and no such unfavorable presumption applied. Id.

While in the Williams case the plaintiff was able to provide a ‘reasonable explanation’ for his failure to produce the allegedly defect part, such a determination is fact intensive and varies from case to case. Depending on the plaintiff’s response to the inquiry requesting an inspection of the product, there may be an opportunity to seek an adverse presumption prior to trial.

 

The Firestone Case & Summary Judgment

firestoneAlternatively, if the facts so align, a more cost effective approach may be a motion for summary judgment. In a very recent case, Gladney v. Milam, 39, 982 (La. App. 2 Cir. 9/21/15); 911 So. 2d 366, the plaintiff was driving a leased van equipped with Firestone tires when the van’s right front tire failed and the plaintiff lost control of his vehicle. Firestone filed a motion for summary judgment on the grounds that plaintiff could not prove a defective condition without producing the tire at issue, which had gone missing for reasons unknown. Id. at 368. The plaintiff had “photographs of the damaged tire, a copy of the state police accident report listing tire failure as the cause of the accident, [and] the affidavit of Sidney Youngblood, a manager of a tire store who had reviewed photographs of the tire, and correspondence concerning the location of the tire.” Id. The court ultimately held as follows:

 

At trial, the plaintiffs would have the burden of proving by a preponderance of evidence that a characteristic of the tire made it unreasonably dangerous, or that the tire was negligently maintained, thereby causing the accident. However, the plaintiffs’ experts did not know the air pressure at the time of the accident or when the pressure was last checked, and could only speculate that the tire was defective given the visible damage to the tire depicted in the photographs. Thus, although the circumstantial evidence offered by plaintiffs raised several plausible explanations for the cause of the tire’s failure, the record does not contain sufficient evidence from which a reasonable juror could conclude that more probably than not the accident was caused by either a defective condition of the tire or negligent maintenance.

Consequently, we cannot say the district court erred in granting summary judgment in favor of Firestone . . . . Id. at 372.

 

While the above brief discussion only serves a cursory analysis of the ‘Case of The Missing Product,’ it shows that when you have a products liability case with no product, there are substantively powerful and potentially cost effective procedural paths to go down that can advantageously position a manufacturer’s defenses. Proper discovery inquiries also undoubtedly go a long way toward setting the framework for these defenses and, as in any case, require attention to detail so as to garner the right information.

district court
Washington, D.C. District Court of Appeals

The District of Columbia Court of Appeals recently adopted the standards found in Federal Rule of Evidence 702 (“Rule 702”), regarding the admissibility of testimony by expert witnesses, thereby replacing the Frye (“Frye”) test.  See Motorola Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016)(“Motorola”). Washington D.C. is now the most recent jurisdiction to adopt Rule 702, a trend that has continued since Rule 702 was amended in 2000 to reflect United States Supreme Court decisions pertaining to expert witness testimony, such as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); and General Electric v. Joiner, 522 U.S. 136 (1997).

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

In Motorola Plaintiffs in thirteen cases sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation caused their brain tumors. The trial Judge Frederick H. Weisberg, held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs. He concluded that, based on the record before him, some, but not all, of Plaintiffs’ proffered expert testimony on general causation was admissible under the Frye evidentiary standard, but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standard.” Judge Weisberg then certified the following question of law to the Circuit Court: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.”

In certifying the question, Judge Weisberg noted,

[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out; conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.

The District of Columbia Court of Appeals, en banc., heard the question, Plaintiffs’ appeal, and adopted the Rule 702 standards unanimously, with Judge Easterly providing a concurring opinion.

Associate Judge Fisher, writing for the Court, stated, “the ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.” Associate Judge Fisher highlighted the language in State v. Coon, deeming the Frye test, “as both unduly restrictive and unduly permissive” because the crux of the test is general acceptance as opposed to reliability. 974 2d. 386, 394 (Alaska 1999). The standards deriving from Rule 702, however, require trial court judges to act as “gatekeepers” in the determination of whether or not expert testimony is relevant and reliable. Associate Judge Fisher cited to the Daubert decision to emphasize, “the objective of the gatekeeping requirement is to make certain that an expert…employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”  Despite this, the Court explicitly stated that differing scientific opinions can be equally reliable. In so doing, the Court established that minority opinions within expert communities will not be per se unreliable.

The Court considered revising the Frye test, as some jurisdictions have done. It rejected doing so given their belief that Rule 702/Daubert analysis better ensures evidentiary reliability based upon scientific validity. It also found substantial benefits to be gained from adopting a test that is widely used.

The Court directed future litigants and judges to review closely the Advisory Committee Notes to Rule 702, and the cases cited therein when making Rule 702/Daubert challenges. See Fed. R. Evid. 702 advisory committee’s note (2000 Amendment); Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802 (3d Cir. 1997)(regarding newly founded expert theorems); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940 (7th Cir. 1997)(demanding consistency between the expert’s professional and testimonial opinion); Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)(regarding expert’s consideration of “obvious alternative explanations”). It will apply Rule 702 to all civil and criminal cases in which the trial begins after the date of this opinion. The Court also indicated that it will consider at a later time whether the standard applies to cases that have already been tried but are not yet final on direct appeal.

The District of Columbia now joins twenty-seven states in adopting the factors of the Daubert standard and rejecting the Frye test. See Andrew Flake, Eric Harlan & James King, 50 State Survey of Applicability of Daubert, available here (last visited Oct. 28, 2016).

The full decision can be read here.

About the Author

Jonathan F. Tabasky is a partner with the firm. He has primary responsibility for the management, handling and defense of litigation brought against many different types of professionals. His clients include architects, attorneys, engineers, real estate brokers, real estate appraisers and independent insurance adjusters, among others. Since joining the firm, Jon has also been extensively involved in the defense of product liability and toxic tort claims. In this capacity, Jon represents a broad range of companies, including those that manufacture prescription drugs, protective clothing, fittings, heating devices, wire and cable, trucks, aircraft and turbines. As a result, Jon regularly works with renowned epidemiologists, pathologists, industrial hygienists, pulmonologists, radiologists, economists and others. Jon also defends product and premises liability cases brought against major retailers.

Alexander Zodikoff is a law clerk with Manion Gaynor & Manning LLP, and in his final year of law school at Suffolk University. Alexander received his B.A. from Virginia Tech.