Talc!For the third time this year, a St. Louis, Missouri jury found Johnson & Johnson liable in a case where plaintiff alleged that her ovarian cancer was caused by her use of talcum powder products. At trial, Deborah Giannecchini, a 62 year-old California woman, claimed that her decades-long use of Johnson & Johnson talcum powder caused her to develop ovarian cancer in 2013. After a month-long trial, the jury awarded her more than $70 million in damages, approximately $65 million of which were comprised of punitive damages.

At trial, Giannecchini’s lawyers argued that Johnson & Johnson:  (1) was aware for more than 30 years that use of talc-based products increases the risk of ovarian cancer; and (2) did not warn the public of the potential health hazards associated with the product.

In the two prior St. Louis cases which reached a verdict against Johnson & Johnson, juries found in favor of plaintiffs and awarded $72 million and $55 million, respectively, in damages. While Johnson & Johnson has seen limited success before juries, the company hopes that each of the three St. Louis verdicts will be overturned on appeal. Specifically, Johnson & Johnson’s appellate arguments will focus on the lack of scientific proof to support the recent jury awards. Indeed, Johnson & Johnson successfully used this approach in New Jersey, where a state court dismissed two talc-based actions after ruling that plaintiffs’ scientific experts were unable to provide sufficient evidence that the use of talcum powder causes ovarian cancer.

Johnson & Johnson is currently defending more than 1,500 cases nationwide.  In each of these cases, plaintiffs allege that the company failed to warn consumers of the potential health risks associated with the use of talc products.
Continue Reading Johnson & Johnson Found Liable in Latest Talc Product Trial

Lady JusticeOn October 13, 2016, Presiding Justice Alice B. Gibney of the Rhode Island Superior Court ruled on Defendant Dana Companies, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction pending in the case of Harold Wayne Murray and Janice M. Murray v. 3M Company, et al., granting the defendant’s motion to dismiss upon finding that the court lacked sufficient minimum contacts to exercise personal jurisdiction – either general or specific – over the defendant. With this ruling, Rhode Island joins a growing list of jurisdictions that have applied the United States Supreme Court’s standard passed down in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

The Murray case was filed in Providence Superior Court, and involves a Tennessee resident alleging he developed mesothelioma as a result of exposure to asbestos through his work with and around numerous defendants’ products over the course of his lifetime, predominantly at locations in Tennessee and Virginia. The complaint filed in Murray named hundreds of defendants who allegedly manufactured, sold, or supplied asbestos or asbestos-containing products to which Mr. Murray was allegedly exposed, including Dana Companies, LLC (“Dana”). Dana subsequently moved to dismiss the plaintiff’s claims on the grounds that a Rhode Island court’s exercise of jurisdiction, either specific or general, would violate its due process rights pursuant to the United State Constitution as well as the Supreme Court’s ruling in Daimler AG v. Bauman and its progeny.

Specifically, Dana asserted that as the plaintiff’s claims arose from alleged conduct that occurred entirely outside of Rhode Island with consequences transpiring outside of the State, the court’s exercise of specific personal jurisdiction was clearly improper. During his deposition taken near his home in Johnson City, Tennessee, Mr. Murray confirmed that he’d never lived in, worked in, received treatment in, or visited the State of Rhode Island. Absent a nexus between the plaintiff, the forum, and the litigation to permit the court’s exercise of specific personal jurisdiction, the court’s review of Dana’s motion to dismiss turned on the question of whether there was a basis to exert general jurisdiction over the defendant.

The court’s general jurisdiction analysis began by citing the Supreme Court’s decision in Goodyear Dunlop Tires Operations, S.A. v. Brown for the proposition that a court may reasonably exercise general jurisdiction over a foreign corporation where the corporation’s affiliations with the state are so continuous and systematic as to render them essentially “at home” in the forum state. 564 U.S. 915, 919 (2011); Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. and Placement, 326 U.S. 310, 317 (1945)).Upholding Daimler’s elaboration of this “at home” standard, the court reasoned that “with very limited exceptions, a defendant can customarily be subject to general jurisdiction in the state of its incorporation and the state of its principal place of business.” Going further, the court specified that evidence of a corporation’s continuous and systematic contact with a jurisdiction was relevant only to the determination of specific jurisdiction, and was not the


Continue Reading Rhode Island Court Upholds Daimler to Dismiss Claims Against Foreign Corporation for Lack of Personal Jurisdiction

American_Sugar_Refining_Arabi_1913_PostcardRecently, the Louisiana Supreme Court in Arceneaux et al. v. Amstar Corp. et. al, 2015-0588 (La. 9/7/16, 1) decided that, in long latency disease cases, an insurer’s payments of defense costs may be prorated when the insurer’s occurrence-based policy was effective only during part of the plaintiffs’ exposure years.

Plaintiffs in Arceneaux alleged hearing loss from occupational noise exposures at American Sugar Refining, Inc.’s (“American Sugar”) facility in Arabi, Louisiana. Id. at 1-2. The approximately one hundred plaintiffs’ exposures occurred between 1941 – 2006. Id. at 2. Continental Casualty Company (“Continental”) issued eight general liability policies to American Sugar, effective from March 1, 1963 – March 1, 1978. Id. Each policy contained bodily injury exclusions for injuries that American Sugar employees experienced in the course and scope of their employment. Id. Importantly, in the last policy, the exclusion was deleted by special endorsement. Id. That endorsement was effective on December 31, 1975, and provided bodily injury coverage through March 1, 1978, for a total of twenty-six months. Id.

American Sugar brought a third-party demand against Continental alleging that Continental’s duty to defend required a complete defense in accordance with the policy, even if some of the plaintiffs’ claims fell outside of the coverage period. Id. Continental asserted that defense costs should be prorated amongst the insurers, and periods of non-coverage should be borne by the insured. Id. Particularly, Continental maintained that a complete defense was improper because its policies only covered twenty-six months of the alleged sixty-year exposure period.  Id.

Prior to assessing the merits of Continental’s argument, the Court distinguished an insurer’s duty to defend from its duty to indemnify. Id. at 5. The duty to defend “arises whenever the pleadings against the insured disclose even a possibility of liability” Id. (emphasis added). In contrast, an insurer’s duty to indemnify in long latency disease cases requires liability “to be prorated among insurance carriers that were on the risk during periods of exposure to injurious conditions” Id. at 5-6 (citing Norfolk S. Corp. v. California Union Ins. Co., 2002-0369, pp. 42-43 (La. App. 1. Cir. 9/12/03), 859 So.2d 167, 197-98, writ denied, 2003-2742 (La. 12/19/03), 861 So.2d 579). While Louisiana courts determined that proration is proper in regard to an insurer’s duty to indemnify, no such precedent existed as to its duty to defend. Id. at 6-7. Thus, prior to Arceneaux, insurers and insureds had no defined method to allocate defense costs in latent disease lawsuits.

At the outset of its analysis, the Court discussed two nationwide approaches to allocating defense costs in long latency disease cases: the pro rata allocation, and joint and several allocation. Id. at 7. “Under pro rata allocation, insurance carriers of triggered policies are responsible for a share of defense costs based at least in part on the period of time they are on the risk.” Id. If an insured has periods of non-coverage after defense costs are divided, then an insurer only pays its pro rata share. Id. Conversely, joint and
Continue Reading LA Supreme Court Ruling a Sweet One for Insurer