Defendants DCo, LLC (formerly known as Dana Companies) and Ford Motor Company (collectively “Defendants”) recently obtained a defense verdict in an asbestos personal injury matter following a nine day trial that took place in the Western District of Washington. Plaintiffs alleged the decedent, Patrick Jack, developed mesothelioma as a result of exposure to asbestos from products manufactured or supplied by the Defendants. Plaintiff passed away at the age of 81. Specifically, Plaintiffs claim that Mr. Jack was exposed to asbestos: (1) during his childhood and teenage years through his father’s work at Union Pacific; (2) through his own work as a machinist and piping inspector during his service in the U.S. Navy from 1955 to 1962 and 1967 to 1973; and (3) through his own work as an automotive mechanic from 1955 to 2001. Plaintiffs* claimed Mr. Jack was exposed to asbestos through his father’s work clothing. Mr. Jack testified at his deposition that after finishing a day’s work, his father returned home dirty and was routinely greeted by Mr. Jack. Further, Mr. Jack testified at his deposition that he remembered being present as his grandmother shook out his father’s clothes before washing them. On occasion, Mr. Jack accompanied his father to work at Union Pacific and recalled witnessing individuals cut cement pipe and handle insulation. Through his own work, Mr. Jack alleged exposure to asbestos from work with automotive clutches and brakes manufactured by Ford, among others, and automotive gaskets manufactured by Victor (a brand associated with DCo, LLC formerly Dana Companies), among other manufacturers. In April 2017, Plaintiffs brought both common law negligence claims and statutory strict liability claims as enumerated in WASH. REV. CODE 7.72 et seq., in which they alleged defective design and failure to warn against a number of entities, in addition to the Defendants, predominantly associated with Naval vessel equipment. However, because Mr. Jack’s alleged exposure predated the 1986 Washington Tort Reform Act, which established proportionate several liability, the Defendants were subject to the pre-existing law which imposes joint and several liability.

The defendant-equipment manufacturers associated with Mr. Jack’s Naval service were no longer in the case at the time of trial. At trial, Plaintiffs relied on expert testimony of Dr. Carl Brodkin (occupational medicine); Dr. Arnold Brody (cell biology), Dr. Ronald Gordon (pathology; lung fiber burden), and Sean Fitzgerald (geology expert who tested Victor gaskets found in Mr. Jack’s garage). As stated above, because the Plaintiffs’ claims were subject to Washington’s pre-Tort Reform law, mandating joint and several liability with set-offs for prior settlements, only Dana and Ford could be included on the verdict slip. The trial began on October 1, 2018 and both Plaintiffs and Defendants were limited to 24 hours each on the record. After both sides presented their respective cases, the jury began deliberations on October 11, and returned with a verdict the next day. The jury found that neither defendant was strictly liable for allegedly manufacturing and or selling a defective product. However, the jury was not able to reach a unanimous decision as to the remaining negligence claim against each defendant. As a result, U.S. District Court Judge James Robart declared a mistrial as to both negligence claims, but reserved judgment until October 24 to allow parties an opportunity to challenge the verdict concerning strict liability. The Court has reported that once the judgment is entered, it will set a new trial date on the negligence claims.

Plaintiffs were represented by Ben Adams of Dean Omar in Los Angeles and Tom Breen of Schroeter Goldmark in Seattle.

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*Leslie Jack, individually and as the personal representative of Patrick Jack and David Jack, individually.

Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)

The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.

Continue Reading A Healthy Reminder of Burden Shifting

The Florida Asbestos and Silica Fairness and Compensation Act (the “Act”) has governed asbestos litigation in Florida nearly seamlessly for more than a decade until a series of recent challenges threw a wrench into the system by calling into question its constitutionality.

The purpose of the Act, which came into effect in June 2005, is to preserve funds of viable defendants in asbestos litigation to ensure compensation for those who develop or may develop asbestos-related cancers or an actual physical impairment caused by asbestos, and enhance the ability of the judicial system to supervise and control asbestos litigation. See § 774.202. While Defendants will argue the Act has served its purpose, Plaintiffs contend quite the contrary. In three separate motions filed in the Robert G. Clark, et. al. v. Borg Warner Corporation, et. al., Case No. 14-027985, Miami-Dade County, Florida case, Plaintiffs attempt to undo the legislative reform of asbestos litigation in Florida by challenging the constitutionality of the following provisions of the Act: (1) the pleading requirements for establishing an alleged non-malignant asbestos-related physical impairment; (2) the limitations on the liability of sellers and retailers; and (3) the abolition of punitive damages.

In the first of the three motions, Plaintiffs address the provisions of the Act, which govern the pleading requirements applicable to plaintiffs pursuing claims for non-malignant asbestos-related diseases. See Fla. Stat. §§ 774.204(1) and 774.205(2). These provisions require a plaintiff to demonstrate a “physical impairment” by requiring them to file prima facie evidence supporting his/her alleged asbestos-related injury along with their complaint. In Clark, while Plaintiffs provided medical documentation, which they maintain establishes Mr. Clark’s alleged diagnosis of asbestosis, they concede not only that the documentation provided does not meet the requirements of the Act, but also that they will never be able to meet those requirements. As such, they argue that these provisions of the Act should be declared unconstitutional on the following grounds: (1) they are procedural in nature, and therefore violate the separation of powers provision of the Florida Constitution; (2) they restrict access to the Courts; and (3) they violate Plaintiffs’ right to equal protection.

Plaintiffs’ first argument in support of this motion is based on the premise that the Act is procedural in nature, and therefore violates the separation of powers provision of the Florida Constitution, which grants the Florida Supreme Court exclusive authority to enact procedural laws. Plaintiffs look to the Florida Supreme Court’s ruling in Massey v. David, 979 So.2d 931, 936 (Fla. 2008) (citing Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000)), which states “[g]enerally, the Legislature is empowered to enact substantive law” and the Florida Supreme Court “has the authority to enact procedural law.” In Massey, the Court described the difference between procedural and substantive law as follows:

 

Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer…On the other hand, practice and procedure encompass the course, form, manner, means, methods, mode, order, process or steps by which a party enforces substantive rights…

 

Massey, 979 So.2d at 936-37. Relying on the Courts explanation in Massey, Plaintiffs argue that the Act is clearly not substantive in nature because it does not “create, define or regulate” any rights that did not already exist at common law. Instead, Plaintiffs contend that the Act is procedural because it (1) creates priorities among injured plaintiffs by giving priority to plaintiffs that can demonstrate actual physical impairment; (2) regulates the manner in which an injured plaintiff can enforce substantive rights that existed at common law; and (3) conflicts with the Florida Rules of Civil Procedure by requiring harsher pleading requirements.

Next, Plaintiffs contend that the provisions of the Act governing the pleading requirements violate Florida’s constitution by restricting access to the Courts for those plaintiffs, like Mr. Clark, who are injured but not considered as having a “physical impairment” as defined by the Act. Plaintiffs again look to the Florida Supreme Court for guidance citing the two-part test set out in Kluger v. White, 281 So.2d 1, 4 (Fla. 1973), which precludes the Legislature from restricting access to the courts “without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show (1) an overpowering public necessity for the abolishment of such right, and (2) no alternative method of meeting such public necessity can be shown.” Plaintiffs argue the Legislature failed to meet either prong.

Lastly, in support of their first motion, Plaintiffs argue that the Act violates the Equal Protection Clause of the Florida Constitution. First, Plaintiffs contend that the Act denies recovery to plaintiffs based on arbitrary criteria distinguishing those it deems have a physical impairment and those that do not. Second, Plaintiffs assert that the Act fails to meet the requirements of the Florida Supreme Court’s rational basis set out in McCall v. United States, 134 So. 3d 894, 901 (Fla. 2014). The McCall test requires a determination of (1) whether the challenged statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the legislature to believe that the challenged classification would promote that purpose. The intent of the Act was to preserve funds of viable defendants in asbestos litigation to ensure that plaintiffs who develop asbestos-related cancers can be compensated and continue to contribute to the state economy.  Plaintiffs argue that there is a lack of data to support the stated purpose of the Act and the limitation of the number of cases filed by plaintiffs who were injured, but not “impaired” as required by the Act’s pleading requirements does not bear a rational basis to that purpose.

In their second motion, Plaintiffs challenge the Act’s prohibition of strict liability claims against sellers and retailers of asbestos-containing products. They contend that this provision, Fla. Stat. §774.208, violates the Equal Protection Clause of the Florida Constitution by creating the following arbitrary distinctions: (1) discriminating among plaintiffs injured by defective products by making an unnecessary distinction between those who are injured by asbestos and those injured by all other defective products; and (2) wrongfully distinguishing between product sellers based solely on the product they sell; i.e., by distinguishing between sellers of asbestos-containing products and sellers of all other defective products. Plaintiffs again assert that this provision of the Act fails the rational basis review under Florida’s McCall test, as set forth above, given the lack of legislative findings to support the purpose of the statute. And, even if the Court were to decide that the Legislature had a legitimate governmental purpose for this provision, preventing all plaintiffs from asserting strict liability claims against sellers and retailers is not rationally related to achieving the stated goals of preserving assets to compensate future plaintiffs or protect Florida’s economy. Notably, Plaintiffs failed to aver in their motion that they are unable to assert claims for strict liability against any of the defendants named in their complaint. So whether they even have standing to bring this motion in the Clark case is yet to be determined.

In their third and arguably most significant motion, Plaintiffs seek punitive damages against one of the defendants in Clark and challenge the constitutionality of the Act’s provision that abolishes punitive damages, Fla. Stat. §774.207. In the motion, Plaintiffs first provide the bases for why punitive damages are warranted against the defendant in question. Next, Plaintiffs present their constitutional challenge of the Act’s prohibition of punitive damages arguing that it violates the Equal Protection Clause of the Florida Constitution. Plaintiffs contend this provision creates an arbitrary distinction –this time, by immunizing manufacturers of asbestos–containing products against punitive damages, even when they have engaged in grossly negligent or intentional misconduct, while manufacturers of all other products remain subject to punitive damages in Florida. Plaintiffs also contend that the Act’s bar on punitive damages fails the rational basis test under McCall, because the legislative record supposedly does not support the stated purpose of imposing a punitive damages bar against defendants in asbestos. According to Plaintiffs, regardless of whether this provision serves a legitimate governmental purpose, the Act does not preserve assets for sick plaintiffs by precluding punitive damages in a small number of Florida lawsuits.

These motions are still in a very preliminary posture and discovery relevant to the constitutional challenges is currently being conducted. Nevertheless, they will be closely watched, as the outcome could have far-reaching effects on asbestos litigation in Florida.

A tale of two verdicts (1)Frequently as litigators, we are faced with questions about which factors can make or break a trial. The facts of each case and skill of counsel are obvious elements to obtaining a favorable verdict, but outcomes can also be heavily influenced by the venue, pre-trial rulings, voir dire, jury instructions and even the sheer whim of a jury.

Within the last few weeks, two separate verdicts came down in mesothelioma lawsuits. Both cases were heard in state courts, both cases involved a deceased plaintiff, both cases were brought by the same plaintiffs’ firm that specializes in asbestos claims, and both cases had only one defendant remaining at the time of verdict. However, one jury found for the defense, while the other awarded $81.5 million to the plaintiffs. What were the specific facts of each case, and what were the factors that might explain how two similar cases turned out so differently?

New Orleans, Louisiana

Mr. Thomas Hayden died of pleural mesothelioma in March 2016. He served in the Navy aboard the USS Edson in the 1960s, during which time he often worked in the boiler rooms. He later worked as a mechanic for a several decades, working on tractors, and, during this time, he also worked building scaffolding at various industrial facilities throughout South Louisiana. He alleged generally that he had worked with asbestos-containing friction products while working on tractors, and that he was in the vicinity of asbestos-containing products, particularly asbestos insulation, while he constructed scaffolding. Importantly, the plaintiffs in Hayden stipulated that they would not seek any damages for exposure to asbestos related to Mr. Hayden’s time in the Navy. Accordingly, the suit remained in state court.

Of the 72 originally sued defendants, only ExxonMobil, Corp. remained at the time of verdict. About 15 parties were dismissed via summary judgment, one (1) party was bankrupt, and the remaining parties settled or were dismissed voluntarily. Mr. Hayden was never employed directly by Exxon, but rather he allegedly worked as a contractor building scaffolding at an Exxon facility in Baton Rouge, Louisiana. He could not identify whether he worked on the chemical or the refinery side of the Exxon facility. He could not recall if the scaffolding he built was for new construction or maintenance. Nor could he recall handling any asbestos-containing products at Exxon.  Moreover, he could not identify the brand name or manufacturer of any products installed by other crafts. He could not even recall seeing any pipe insulation at Exxon. Finally, his work at Exxon was for a total of approximately one (1) week, sometime between 1982 and 1985.

Counsel for Exxon stressed Mr. Hayden’s inability to recall basic details about his alleged work at the Exxon facility, suggesting to jurors that this lack of memory was because Mr. Hayden never actually worked at Exxon. In closing arguments, counsel for Exxon contrasted the dearth of testimony regarding Mr. Hayden’s alleged work at Exxon with his ability to recall co-workers, supervisors, and products at other worksites. Counsel suggested to the jury that the real reason Exxon was sued was because plaintiff’s counsel gave Mr. Hayden a checklist of refineries and plants to “help” him recall where he had worked.

Although Exxon was the sole remaining defendant, fault allocation according to Louisiana law for a wrongful death claim allows for all potentially liable entities to be listed on the verdict form. Therefore, defendants are able to introduce evidence as to the fault of those entities, and the jury is presented with a relatively comprehensive list of parties when it begins its deliberations. After five (5) weeks of trial, the Hayden jury received a verdict form with 30 potentially liable entities, including the US Navy. Based on the evidence and arguments, the jury returned a defense verdict in Exxon’s favor, finding that exposure to asbestos on Exxon’s premises, if any, was not a substantial contributing factor in Mr. Hayden’s illness and death.

Tacoma, Washington

Mr. Jerry Coogan died of peritoneal mesothelioma in 2015. He served six (6) years in the Army National Guard from the 1960s to early 1970s. He also worked at the Wagstaff Machine Works in Spokane, WA for a little over one (1) year, a facility where Johns-Manville marinite board was fabricated; however, there was no direct evidence that Mr. Coogan worked directly in the area where the marinite was cut. He later started and operated his own excavating business, purchasing it from his grandfather in the mid-to-late 1970s. Also, Mr. Coogan’s hobby was restoring hot rods and classic cars. He alleged that he was exposed to asbestos through his work digging up old asbestos cement pipe, cutting and laying new pipe, working with automotive friction products, including gaskets, brakes and clutches, and through work on boilers in the late 1970s at the Boise Cascade facility in Kettle Falls, Washington.

Trial began with four (4) defendants, including three (3) automotive friction product manufacturers and one (1) asbestos cement pipe supplier. Plaintiffs’ case focused, for over two (2) months, on the liability of both the pipe supplier and the friction products. First, plaintiffs focused on Mr. Coogan’s excavation work, arguing that Mr. Coogan was heavily exposed to both crocidolite and chrysotile asbestos by cutting and installing asbestos cement pipe. Second, plaintiffs focused on Mr. Coogan’s work with gaskets, brakes and clutches, urging the jury to find that Mr. Coogan’s repair work on both his heavy machinery and his hobby cars also exposed him to heavy amounts of chrysotile asbestos.

None of the defendants disputed that Mr. Coogan’s disease was asbestos related.  Each defendant argued, however, that the evidence in this case failed to demonstrate either: (1) that he actually worked with their products; or (2) that any work with their products was sufficient to cause Mr. Coogan’s mesothelioma based on varying issues specific to each defendant. Defendants in the suit also filed a motion in limine to preclude the use of “Reptile Tactics” by plaintiffs’ counsel in voir dire, opening statement, witness examination or in closing. This MIL was denied by the court, with the judge specifically noting that under Washington law “conscience of the community” was a perfectly acceptable argument. Plaintiffs’ counsel embraced “Reptile Tactics” throughout the trial, for example, telling the jury that “hundreds of thousands” of people are dying from asbestos-related diseases each year, and that small-town-folks, like the community of Kettle Falls and Mr. Coogan, were not getting the warnings they should have from any seller of asbestos-containing products. At one point in the trial, plaintiffs’ counsel went further, attacking a defense expert by implying that he did not want to protect children from water-borne toxins and telling the jury that first responders to the World Trade Center terrorist attacks are now contracting asbestosis and other asbestos-related diseases. She told jurors that asbestos is “an epidemic for our country” that affects not only the people who worked with it, but spouses and children who did their laundry, and people in  communities across the county that lived even hundreds of yards away from facilities that manufactured, sold or even used asbestos-containing materials.

Over the course of the trial, the defendants cross-examined plaintiffs’ experts and presented evidence regarding whether Mr. Coogan actually worked with any of their individual products; the scientific evidence concerning whether chrysotile could cause mesothelioma at low doses; whether chrysotile asbestos could cause peritoneal mesothelioma, at all; whether low doses of asbestos, in any form, could cause peritoneal mesothelioma; whether their respective warnings regarding potential hazards of asbestos were timely and sufficient. Three (3) out of the four (4) defendants, however, dropped out over the course of two and a half (2 ½) months, leaving GPC/NAPA as the sole defendant at the time of verdict. Moreover, and of great importance, Washington law apportions fault jointly and severally in asbestos cases, and the only name submitted to the jury on the verdict form was GPC/NAPA. No other potentially liable parties were listed for the jury to consider. After quite literally months of testimony regarding Mr. Coogan’s asbestos-related disease, the jury rendered a verdict in plaintiffs’ favor against the only defendant on the form for $81.5 million.

Take Aways

State-specific laws can be as damaging to a case as a bad set of facts. Would the jury have returned a verdict solely against GPC/NAPA had other parties been listed on the form?  Would the verdict have been the same had plaintiff’s counsel been prohibited from asking the jury to be the conscience of the community? Did the length of the trial have a significant effect on the amount of the verdict?

It is easy to play Monday-morning quarterback and point out rulings we believe the judge got wrong or why the jury may have believed one expert over another. We are continually learning, both through our own experiences, and when possible, from the experiences of others. However, one important lesson to be learned from comparing the verdicts in Hayden and Coogan is that to be effective trial attorneys, we must understand and anticipate the complicated interplay of all of these factors, and must communicate and counsel our clients on both the benefits and risks associated with trial.

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.