IL court rejects de minimis exposure to asbestos as ‘substantial
contributing factor

Asbestos Litigation

An Illinois federal judge recently barred expert testimony espousing the “Any Exposure” theory, which is also commonly referred to as the “Each and Every Exposure” theory and the “Single Fiber” theory.

In general, the “Any Exposure” theory is a causation theory that postulates that any exposure to asbestos, regardless of dose or amount, (excluding background exposure) is a cause of the injury to the person exposed. In Krik v. Crane Co. (N.D. Ill. Dec. 22, 2014), plaintiff, Charles Krik, filed suit against several defendants alleging he developed lung cancer from exposure to their asbestos-containing products.

Plaintiff sought to offer expert testimony of Dr. Arthur Frank and Dr. Arnold Brody on the issue of medical causation and Frank Parker regarding industrial hygiene. Specifically, these experts were expected to testify that each and every exposure to asbestos caused Mr. Krik’s lung cancer. Several defendants moved to bar such testimony as inadmissible and requested that it be excluded under Federal Rules of Evidence Rule 702 and Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993). After acknowledging that the Seventh Circuit has not opined on the admissibility of the “Any Exposure” theory in an asbestos matter, the court ruled that plaintiff failed to establish that the “Any Exposure” theory is sufficiently reliable to be admitted under Rule 702 and Daubert.

In reaching its conclusion, the court noted that plaintiff conceded that his experts believed asbestos-related lung cancer is a dose-responsive disease and yet plaintiff would have his experts testify that any asbestos exposure—regardless of dosage—is sufficient to cause asbestos-related lung cancer. The court also underscored plaintiff’s failure to offer any expert testimony regarding plaintiff’s exposure dose of asbestos, and whether that dose was sufficient to cause his lung cancer.

The opinion that plaintiff’s experts cannot rule out that a single dose of asbestos causes injury, and therefore any and all exposure to asbestos is harmful, “is not an acceptable approach for a causation expert to take.”

The court rejected the notion that de minimis exposure or a single exposure is sufficient to meet Illinois’ substantial contributing factor test. Rather, the correct statement of Illinois law is that more than de minimis exposure is required to prove causation. Moreover, the court found the “Any Exposure” theory was inadmissible because plaintiff’s experts failed to base their opinions on the facts specific to this case in violation of Rule 702(d).

Click here to read the Kirk Opinion in its entirety.
Continue Reading Plaintiff’s Experts Barred from Offering “Any Exposure” Theory in Asbestos Lung Cancer Case

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

Raw HamburgerNever has the saying, “ignorance is bliss,” been more true than in the context of the ground beef filler known as “pink slime.”  Pink slime, which is known in the food industry as “lean finely textured beef,” or “LFTB,” has been a commonly used ingredient in ground beef for more than two decades.  It is made available to Americans as part of the ground beef they purchase at their local grocery stores and fast food restaurants, and it is fed to children in their school lunches.  Experts estimate that approximately 850 million pounds of LFTB are added to ground beef each year.  LFTB has been dubbed “pink slime,” based on its appearance.  But according to Rich Jochum, corporate administrator for Beef Products, Inc., which took out a full-page advertisement in The Wall Street Journal to defend its product,

“[t]he derogatory term [pink slime] has trumped all science, all facts, all history.”

In fact, LFTB is beef.  LFTB is comprised of beef scraps which are left over from the cow after the valuable cuts of beef are sold. A centrifuge is then used to remove the fat, and ammonium hydroxide gas is applied to kill bacteria.  The resultant product is then added as a filler to ground beef.  This allows meat processors to recover meat that might otherwise be wasted, and saves up to 1.5 million head of cattle from slaughter.  It also leads to leaner ground beef and lower beef prices for consumers.

Until recently, however, most Americans were completely unaware that the ground beef they consumed contained up to fifteen percent LFTB.  That is due to the fact that it is considered a raw material, and thus federal labeling requirements dictate that its inclusion need not be reflected on the label.  Both beef processors and the federal government regulators maintain that there was no reason to label the presence of LFTB in ground beef, and risk consumer confusion, because it is not a separate ingredient.  “It’s beef,” says a USDA official. “There are various parts of the animal that come together in ground beef.  This is just one part.” Moreover, The U.S. Department of Agriculture (USDA) and U.S. Food and Drug Administration (FDA) both deem LFTB safe for consumption.  They point to the fact that the product has never been linked to any outbreaks, nor have there been any safety related recalls.

That, however, did not stop the firestorm which quickly swept across this country, fueled by social media, over concerns about the use of ammonium hydroxide and the quality of the meat used in the filler.  The media attention, and the associated response of the American consumer, has led a number of supermarkets to phase out the sale of any ground beef which includes LFTB, and caused a number of school districts to indicate that they will no longer serve ground beef which contains LFTB. This, in turn, has led to an economic disaster for many meat processors, including AFA Foods Inc., which filed for
Continue Reading What is Pink Slime and Why is It in My Burger?

Co-authored by Brian Gross 

Over the top warning labelAs a defense attorney, one of the most common allegations my product liability clients face is a claim that the company “failed to warn” the end user of a potential defect in its product.  With the Christmas season upon us, and due to the fact that so many of the products we purchase for our friends and family contain a wide variety of warning labels to avoid such a lawsuit, I felt it prudent to address this rather important issue in this week’s blog installment.

A warning is a statement which is meant to make someone aware of a potential danger associated with a particular product or action.  A manufacturer must provide a warning when the product has a danger that cannot be removed.  Generally, however, a manufacturer is not required to provide a warning for dangers which are obvious and understood.  Despite that fact, due to the increase in product liability lawsuits over the past few years, manufacturers are taking care to add warnings that may seem a little outrageous – even downright laughable – to their products to avoid ending up in litigation for “failure to warn.”  Some of these over-the-top warnings include:

Label: May cause drowsiness.
Product: Nytol sleeping pills.

Label: Do not use while sleeping.
Product: Vidal Sassoon hair dryer.

Label: This product is not intended for use as a dental drill.
Product: Dremel Multipro’s rotary tools.

Label: This product moves when used.
Product: Razor scooter.

Why are manufacturers taking such steps to warn the consumer of the such obvious dangers or potential dangers associated with such obvious misuse of their products?  Much of it has to do with the plaintiff’s bar and the endless supply of consumers willing to sue.  Even “questionable” product liability cases can lead to costly legal fees and damages.  Bloomberg recently analyzed the 50 largest jury verdicts over the past few years. In 2010 alone, 15 verdicts involving “failure to warn” claims topped $25 million (up 7 from the previous year).  In fact, juries in the five largest product liability cases awarded damages of $1.1 billion, a substantial increase from previous years.  Several factors can be attributed to this increase in damages awarded by jurors, such as:

  • The public’s view of “Big Business” and its failure to protect Joe Consumer (think BP oil spill and the recent massive Toyota automobile recall).
  • High unemployment rates.
  • Instability of the stock market.
  • America’s stagnant real estate sales.
  • America’s struggling banking industry.
Arguably many factors have driven our current “crisis of confidence” in Corporate America, some rightly deserved and some perpetuated by the media. Nevertheless, a case can be made that as a result of these feelings, jurors are using the courtroom as a vehicle to right the perceived wrongs of Corporate America.  Of course there are plaintiffs’ counsel ready, willing and able to show them how, supporting the contention that levying astronomical verdicts will “punish” big business.  In doing so, juries are hurting these companies right where it counts


Continue Reading Warning: Reading This Blog Post May Stimulate Brain Cells