Defendant The Raymond Co. saw its summary judgment victory overturned by California’s 4th District Court of Appeal in a surprising turn of events in its ongoing product liability case in San Diego Superior Court. In its July 2017 decision, the 4th District held that The Raymond Co. failed to meet its burden to show that the risk-benefit test applied to dismiss the claims made by plaintiffs Sandra and Kawika Demara.

The Demaras filed their lawsuit initially when Mr. Demara allegedly sustained injuries in 2011 as a result of alleged design defects in one of Raymond’s forklifts being operated at a warehouse in Carlsbad, California. According to their complaint, the Demaras alleged that a Raymond 7400 series forklift was backing up, changing direction, and turning, when the drive wheel ran over Mr. Demara’s foot and crushed it. The Demaras alleged in their complaint that Mr. Demara did not see the forklift or its warning light. As a result, he had to have multiple surgeries on his foot and remains permanently disabled with pain. In a single cause of action for products liability, the Demaras alleged strict liability on claims for defects in the design, manufacture, and warnings, and one claim for general negligence.

The San Diego Superior Court trial judge had previously granted Raymond’s summary judgment by deciding that the Damaras failed to raise a triable issue of material fact as to the issue of causation. The trial court also rejected the argument that the consumer expectation test ought to be applied as a matter of law and that even assuming the Demaras had raised a triable issue, Raymond had sufficiently applied the necessary elements of the risk-benefit test.

Rejecting the lower court’s ruling, 4th District Presiding Justice Judith McConnell concluded that the trial court’s conclusions were incorrect because the Demaras’ causation evidence was ample enough to defeat Raymond’s summary judgment motion. McConnell ruled that “in applying the risk-benefit test, [Raymond] failed to present sufficient evidence to shift the burden to plaintiffs to show a triable issue of material fact.”

The 4th District cited to the decision in Campbell v. GM Corp., (1982) 32 Cal.3d 112 for the general rule that under the consumer expectation test and the risk-benefit test, to prove a design defect claim, the plaintiff must show that the product at issue failed to perform safely and that this failure played a substantial role in causing the harm. Raymond’s summary judgment motion hinged on the argument that the Demaras failed to show that the design of the forklift played a substantial role in causing Mr. Demara’s injury. According to Justice McConnell, however, “[Raymond] presented neither evidence nor inferences from evidence to suggest that the design was not a substantial factor in bringing Demara’s injury.”

Justice McConnell went on further to state  “because the Defendants’ statement that the occurrence of the accident was not evidence of a defect that caused Plaintiff’s injuries is not a prima facie showing that Plaintiffs cannot prove causation,
Continue Reading Product Liability: California’s Consumer Expectation and Risk Benefit Test Applied in the Same Case

On August 31, 2017 the United States Court of Appeals for the Seventh Circuit affirmed the United States District Court for the Northern District of Illinois, Eastern Division’s decision in Charles Krik v. Exxon Mobil Corporation, et al. excluding the testimony of plaintiff’s expert Dr. Arthur Frank. Dr. Frank’s theory was based on a premise that each and every exposure to asbestos, including the first exposure, no matter how de minimis, is a substantial contribution to the cumulative total. U.S. District Judge Manish Shah concluded that Dr. Frank’s testimony was “not tied to the specific defendants, but was instead based on his medical and scientific opinion that every exposure is a substantial contributing factor to the cumulative exposure that causes cancer.” The principle behind the “each and every exposure” theory and the cumulative exposure theory is the same.

Judge Shah noted, “To find a defendant liable, plaintiff must prove causation attributable to that defendant. It would be misleading and confusing for an expert to opine- particularly using the legal terminology of ‘substantial contributing factor’- that plaintiff’s cancer was caused by defendants when the foundation for the opinion was that every exposure (without regard to dosage) contributes to cause cancer.” The law of causation requires the plaintiff to prove that the defendants’ acts or products were a “substantial contributing factor” to plaintiff’s illness. Asbestos induced lung cancer is dosage dependent. The risk of contracting lung cancer from asbestos depends on the length of time of exposure and the amount of exposure. Therefore, to determine whether any exposure constitutes a substantial contributing factor, one would have to understand the timing and amount of exposure.

The United States Court of Appeals for the Seventh Circuit affirmed the decision noting “just like each and every exposure, the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.” “The ultimate burden of proof on the element of causation remains with the plaintiff. Requiring a defendant to exclude a potential cause of the illness improperly shifts the burden to the defendants to disprove causation and nullifies the requirement of the ‘substantial factor’ test.” The Sixth and Ninth Circuits have likewise excluded cumulative and/or “each and every exposure” theories for similar reasons.

 
Continue Reading The Cumulative Exposure Theory is no Different from the “Each and Every Exposure” Theory

As previously reported, the issue of establishing personal jurisdiction when there is no causal link between defendant’s forum contacts and plaintiff’s claims was recently decided by the United States Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017). Last week, the Bristol-Myers decision was applied by Judge Kleifield, presiding judge of Department 324 at the Los Angeles Superior Court, which oversees state court asbestos litigation for Counties of Los Angeles, San Diego, and Orange.

In Bristol-Myers, the Supreme Court considered whether a state court could exercise personal jurisdiction over the claims of non-resident plaintiffs against a non-resident corporate defendant for tortious injuries that occurred out of state. Bristol-Myers, 137 S. Ct. at 1778. Bristol-Myers Squib Company (“BMS”), incorporated in Delaware and headquartered in New York, had been sued in California state court by a group of plaintiffs, most of whom were not California residents, who alleged that a BMS drug damaged their health outside of California. Id. The non-resident plaintiffs had not alleged that they: (1) obtained the drug from any California source; (2) ingested the drug in California; or (3) were injured by the drug in California Id. However, it was established that BMS had some connections with California, as it sold the drug in the state. Id. at 1778. The Supreme Court reversed the decision of the California Supreme Court, which had held that there was specific jurisdiction over BMS. Id. at 1777, 1781.

The Supreme Court ruled that specific jurisdiction necessitates “an affiliation between the forum and underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Bristol-Myers, 137 S. Ct. at 1781 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). It further held that in order for a state court to exercise specific jurisdiction, “the suit’ must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Bristol-Myers, 137 S. Ct. at 1781 (quoting Daimler AGv. Bauman, 134 S. Ct. 746, 754 (2014)).

Applying those requirements, the Supreme Court found that California courts could not exercise specific jurisdiction over BMS with respect to non-residents’ claims because the non-residents did not claim to have suffered harm in California and all of the conduct giving rise to the non-residents’ claims occurred outside of California. Id. at 1782. Ultimately, the Supreme Court ruled that there was no specific jurisdiction because there was no connection between the forum and specific claims at issue. Id. at 1782.

In Herford, at al. v. AT&T Corp., et al., No. BC646315 (L.A. Super. Ct.), Tina Herford allegedly suffered exposure to asbestos-contaminated talc in California. The talc was allegedly supplied by defendant Whittaker, Clark & Daniels, Inc. (“WCD”). WCD and its successors, Brenntag North America, Inc. (“BNA”) and Brenntag Specialties, Inc. (“BSI”) moved to quash service of the summons for lack of personal jurisdiction.

Plaintiffs conceded that there was
Continue Reading Application of Bristol-Myers in the Los Angeles Superior Court

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
Continue Reading Federal Court Sustains Summary Judgment Motion While Drawing Clear Distinction Between Pleural and Peritoneal Mesothelioma

Mineral talc, as a raw material, was determined to be “inherently safe” by Los Angeles Superior Court Judge Maren Nelson in the days leading up to the first Johnson & Johnson California ovarian cancer trial in the Johnson & Johnson Talcum Powder Cases, number JCCP4872.  According to Law360.com, on July 10 the judge dismissed Imerys Talc based on her finding that talc is “inherently safe.”  This ruling could have a profound effect on talc litigation, at least in California, as it may serve to protect Imerys and other suppliers of raw talc from further liability.

The court based its decision on the 1998 California appellate case of Artiglio v. General ElectricSee 61 Cal. App. 4th 830, 839 (1998).  The Artiglio decision is based on the Restatement Third of Torts and stands for the proposition that component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are: (1) not inherently dangerous; (2) they sell goods or material in bulk to a sophisticated buyer; (3) the material is substantially changed during the manufacturing process; and (4) the supplier has a limited role in developing and designing the end product.  See id.

A number of other states, including Massachusetts, have similar jurisprudence that recognize the “bulk supplier,” “sophisticated user,” and “component part” doctrines which may lead to similar results for raw material suppliers, such as talc suppliers, in ovarian cancer talc litigation.  See Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431, 441 (2006); Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 629 (2001).

Unlike California courts, though, Massachusetts courts have not conglomerated the sophisticated user doctrine and the bulk supplier doctrine into one rule that deals with “inherently safe” raw materials.  Massachusetts courts have, however, held that the components of the Artiglio rule (the bulk supplier doctrine and the sophisticated user doctrine) are recognized defenses in Massachusetts.  See Hoffman, 434 Mass. at 629; See Artiglio 61 Cal. App. 4th at 839.  Additionally, Massachusetts courts have recognized the component parts doctrine, which in California, is a counterpart of the Artiglio rule. See 61 Cal. App. 4th at 839.  Therefore, talc defendants certainly have a strong argument for dismissal.

Hoffman, confirms that the first component of the Artiglio rule, the bulk supplier doctrine, is available in Massachusetts.  See Hoffman 434 Mass. at 629.  In Hoffman, the pivotal question on appeal concerned the duty of a bulk supplier to warn all foreseeable users of the risks associated with a product’s use.  See id.  In that case, the court held that the bulk supplier doctrine allows a manufacture-supplier of bulk products, in certain circumstances, to discharge its duty to warn end users of a product’s hazards by reasonable reliance on an intermediary.  See id.  Among the factors that may determine reasonable reliance are: (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of
Continue Reading Bulk Supplier, Sophisticated User, and Component Parts Doctrines May Provide Effective Defense to Talc Suppliers Whose Products are “Inherently Safe”