Recently, the Texas Court of Appeals (1) upheld a jury’s finding of gross negligence and (2) explained how a trial court should calculate exemplary damages under Texas law, in The Goodyear Tire & Rubber Company, v. Vicki Lynn Rogers, et al., No. 05-15-00001-CV, 2017 WL 3776837 (Tex. App. Sep. 13, 2017).  In this case, the decedent, Carl Rogers, passed away from mesothelioma.  From 1974 to 2004, he worked as a tire builder at a Goodyear facility in Tyler, Texas, where he allegedly was exposed to asbestos from overhead insulation and from brakes in tire building machines located in the Tyler facility.  Mr. Rogers’ wife (as the representative of his estate) and two daughters sued his employer, The Goodyear Tire & Rubber Company (“Goodyear”), for wrongful death allegedly caused by Goodyear’s gross negligence.  Typically, workers’ compensation is the exclusive remedy for plaintiffs who attribute the cause of death to the negligence of a decedent’s employer.  However, Texas’ workers’ compensation law allows a plaintiff’s surviving spouse and heirs to recover exemplary damages when the employee’s death resulted from the employer’s gross negligence.

The jury found by clear and convincing evidence that Goodyear’s gross negligence caused Mr. Rogers’ mesothelioma, and ultimately, his death.  To calculate exemplary damages, the trial court asked the jury to determine plaintiffs’ past and future pecuniary loss, past and future loss of companionship and society, and past and future mental anguish.  In addition to making those findings, the jury assessed $15 million in exemplary damages, with 90 percent of the award apportioned to the widow and 5 percent to each daughter.  After the jury’s verdict, the trial court conducted its own calculation of damages according to section 41.008(b) of the Texas Civil Practice and Remedies Code, which lowered the total award to $2,890,000.  On appeal, Goodyear unsuccessfully challenged the jury’s finding of gross negligence, but prevailed in its challenge to the trial court’s calculation of exemplary damages, reducing the total award to $1,150,000.

To prove gross negligence, “a plaintiff must demonstrate, by clear and convincing evidence that: (1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”  U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).

The Texas Court of Appeals first addressed the objective component of gross negligence, and described extreme risk as the likelihood of the plaintiff’s serious injury, rather than a remote or even high probability of minor harm.  While Goodyear conceded that mesothelioma is a serious injury, it argued the plaintiffs did not prove the likelihood of that injury.  To support this argument, Goodyear used the plaintiffs’ best evidence regarding dosage, which increased the risk of developing mesothelioma by 22 times over that of someone who was not
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lungsIn what asbestos litigation defendants hope will become a growing trend, the United States District Court for the District of Maryland recently drew a clear distinction between expert testimony as it relates to causation of both pleural mesothelioma (affecting the lining of the lung) and peritoneal mesothelioma (affecting the stomach).  In Rockman v. Union Carbide Corp, et al., 1:16-cv-01169-RBD, 2017 WL 3022969, the court recently granted defendant Union Carbide and Georgia-Pacific’s motion to preclude expert testimony as to causation and in turn, sustained defendants’ motions for summary judgment.

Rockman involves plaintiff Jeffrey Rockman, who allegedly developed peritoneal mesothelioma resulting from asbestos exposure during three minor home repair projects in 1965, 1973 and 1976; all lasting no more than several weeks in total.  It is undisputed that plaintiff did not perform those home repairs himself, but rather hired a handyman.  Mr. Rockman contends that Georgia-Pacific “Ready Mix” joint compound was used in all three repairs, that it contained Union Carbide asbestos, and that its use generated asbestos-containing dust, to which he was exposed.  Plaintiff was merely a bystander.

In support of his claims, plaintiff submitted the expert testimony of Dr. Jerrold Abraham, Dr. Arthur Frank and Dr. Arnold Brody who specifically concluded that plaintiff’s alleged exposures to Union Carbide chrysotile asbestos contained in Georgia-Pacific’s Ready Mix joint compound caused him to develop peritoneal mesothelioma.  Additionally, Dr. Brody concluded that “each and every” exposure to asbestos “cumulates” and should therefore be considered a cause of the injury, regardless of the type of mesothelioma, the exposure dosage, or the type of asbestos.  In reaching these conclusions, plaintiff’s experts relied on numerous studies of pleural mesothelioma despite reports from Dr. Abraham and Dr. Brody acknowledging that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.

In assessing the reliability of plaintiff’s expert’s testimony, the court turned to Rule 702 of the Federal Rules of Evidence as well as the long established U.S. Supreme Court interpretation of Rule 702 set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993) and recently reaffirmed in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017) allowing the courts to “act as a gatekeeper to ensure that testimony is relevant and reliable”.  Id.  In assessing the validity of the methodology employed by a proposed expert witness, a court may consider whether the expert witness’ theory or technique: (1) can be or has been tested; (2) has been subject to peer review and publication; (3) has a high known or potential rate of error; and (4) is generally accepted within a relevant scientific community.  Id.

 

Ultimately, the Court determined that plaintiff’s expert’s specific causation opinions are not the product of reliable principles and methods as required by Rule 702.  Contrary to the factors set forth in Daubert, Drs. Abraham and Frank had improperly drawn conclusions about a case involving peritoneal mesothelioma and low-level bystander exposure to chrysotile asbestos, basing their opinions entirely on prior
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The Second District Court of Appeal, Division Four in Los Angeles handed down a decision in an asbestos case that involved appellate issues pertaining to causes of action for strict products liability and premises liability, primary and secondary (“take-home”) exposure, liability for replacement component parts, and proper jury instructions to be given in asbestos cases on the issue of substantial factor.  Joseph Petitpas v. Ford Motor Company, et al. (Cal. Ct. App., July 5, 2017, No. B245037), an opinion certified for publication on July 5, 2017, presents several factual scenarios to test a number of the decisions in the past decade that continue to shape asbestos litigation in California.   Motions for summary adjudication and defense jury verdicts were affirmed for Ford Motor Company and Exxon Mobile Corporation, while the trial court’s granting of a nonsuit for defendant Rossmoor Corporation was also affirmed.

Background

Plaintiffs  Marline and Joseph Petitpas filed suit against over 30 defendants, alleging Marline’s mesothelioma was caused by exposure to asbestos from sources including, but not limited to, direct exposure from being in the presence of automotive maintenance work, secondary exposure by coming into contact  with Joseph’s clothes and person after he performed automotive maintenance work, primary exposure by visiting Joseph at construction sites while he was employed as an architectural drafter for Rossmoor, and secondary exposure through contact with Joseph’s clothes and person after he  visited construction sites in the course of his employment with Rossmoor.  Marline passed away during the appeal.

Issue One

Prior to trial, Exxon was granted summary adjudication of Plaintiffs’ strict products liability claim.  Exxon, a premises defendant, demonstrated that in the course of Joseph’s work at a service station for which Exxon assumed liabilities, Joseph used replacement clutches and gaskets that came from a local independent auto parts store.  Exxon also showed that Joseph used brakes obtained from a mobile brake service company that not only provided brakes but also performed brake work at the service station.  Exxon’s evidence was sufficient to support an inference that the service station was not primarily in the business of supplying asbestos-containing vehicle parts.  In distinguishing this case from its decision in Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249, the Court found the service station was a provider of services rather than a seller or distributor of asbestos-containing parts.  The Court also found no relationship existed between the service station and parts manufacturers in which the station could exert any influence on product safety on the manufacturers.  Exxon was not in the stream of commerce for asbestos-containing vehicle parts to the extent strict liability was warranted.

Issue Two

Exxon had also been granted summary adjudication relating to Plaintiffs’ claims of secondary exposure to asbestos.  The trial court applied Campbell v. Ford Motor Co.  (2012) 206 Cal.App.4th 15 and found that Exxon was a property owner that had no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the court of the property owner’s business.  During
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On Friday, April 28, 2017, the United States District Court for the Southern District of New York dismissed, in its entirety, John and Michele Clark’s asbestos personal injury action based on the doctrine of judicial estoppel. In short, the Court ruled that the Plaintiffs’ lawsuit could not proceed without damaging the integrity and proper functioning of the judicial system. The reason: Plaintiffs did not disclose their personal injury claims before receiving their Chapter 13 Bankruptcy discharge.

The background of Plaintiffs’ personal injury lawsuit is entwined with two other actions. First, Plaintiffs filed for a Chapter 13 bankruptcy petition in Connecticut in February 2010. A Bankruptcy Plan was confirmed approximately five months later, in July 2010. In March 2016, Plaintiffs declared that they had made all their payments as prescribed by their bankruptcy plan and requested that the bankruptcy court issue an order discharging their debts. The bankruptcy court entered such an order in August 2016.

Second, in August 2015—a year before the Chapter 13 petition was discharged—Plaintiffs filed an asbestos-related personal injury action in Illinois state court. The Illinois suit came about one month after Mr. Clark was diagnosed with mesothelioma. Plaintiffs alleged that Mr. Clark’s illness was caused by exposure to asbestos during his service in the United States Air Force as well as his employment with an aircraft manufacturer. Plaintiffs, however, did not inform the bankruptcy court of their asbestos claims, as bankruptcy law requires. Indeed, in a Chapter 13 bankruptcy, petitioners have an ongoing obligation to disclose any asset that accrues between the initiation and closing of their bankruptcy case as “[e]very conceivable interest of the debtor, future, nonpossessory, contingent, speculative, and derivative, is within the reach of [the bankruptcy estate].” Chartschlaa v. Nationwide Mut. Ins. Co., 538 F.3d 116, 122 (2d Cir. 2008). Thus, by not amending their Chapter 13 schedules, Plaintiffs, in effect, were concealing an asset that rightfully belonged in their bankruptcy trustee’s care. Accordingly, after a defendant informed Plaintiffs of its intention to file a motion to dismiss based on judicial estoppel owing to their failure to disclose the existence of their Illinois action, Plaintiffs’ voluntarily dismissed the Illinois lawsuit.

Then, in July 2016—again, while Plaintiffs’ bankruptcy case was still open—Plaintiffs filed a second asbestos personal injury suit raising the same claims as those raised in Illinois, but this time in New York state court. Shortly thereafter, the defendants in the New York action removed the case to the Southern District and Plaintiffs’ bankruptcy case closed, without Plaintiffs ever amending their Chapter 13 schedules. The New York defendants then promptly filed their motion to dismiss based on judicial estoppel.

The defendants argued that Plaintiffs’ claims had to be judicially estopped as a matter of law because Plaintiffs took inconsistent positions before the Bankruptcy Court and the Southern District. On the one hand, Plaintiffs, by not fulfilling their statutory obligation to amend their schedule of assets in the bankruptcy case, declared that they had no foreseeable assets owing to them. On the other
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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
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