Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

The Bloomberg BNA Toxics Law Reporter reported this morning concerning an important new decision from the Supreme Court of California in O'Neil v. Crane Co., Cal., No. S177401, 1/12/12
In summary, California's high court reaffirmed the principle that a product manufacturer may not be held strictly liable or negligent for harm caused by another maker's product, except where the defendant has some direct responsibility for the harm.  In so holding, California refused to open the floodgates in the asbestos litigation to permit suits against manufacturers that never manufacturer or marketed asbestos-containing products.

Joining the majority of other jurisdictions that have considered the issue, California's highest court held that California law did not impose liability on manufacturers of shipboard valves and pumps used in conjunction with asbestos-containing parts made by others.  In this case, the high court reversed the California Court of Appeal, Second Appellate District, which ruled in favor of the family of Patrick O'Neil, a naval officer allegedly exposed to asbestos from 1965 to 1967. O'Neil died of mesothelioma, a disease caused by asbestos, at 62.                                                                                  
 “[A] product manufacturer generally may not be held strictly liable for harm caused by another manufacturer's product. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm,” Justice Carol A. Corrigan wrote for the court.

The court rejected the family's argument that Crane Co. and Warren Pumps LLC, which made valves and pumps used on the ship, should be held strictly liable because they foresaw that their products would be used with replacement asbestos parts. The rationale for the Court's holding is that  “[T]he foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability on the manufacturer of a nondefective product, or one whose arguably defective product does not actually cause harm.”   The Court left open the possibility for imposing liability for a non-manufacturer of asbestos in instances where it could be shown that “the defendant's own product contributed substantially to the harm” or “the defendant participated substantially in creating a harmful combined use of the products.”  However, that was clearly not the case here.

As to the plaintiff's negligence claims, the Court held that the defendants pump and valve companies owed no duty of care in the circumstances, based on “strong policy considerations.”
The companies' connection to O'Neil's injury was remote because they did not manufacture the asbestos-containing products; imposing a duty would be unlikely to prevent future harm; the Navy made its own purchasing choices and specifications; and consumers could potentially be harmed by too many product warnings, the court reasoned.

Increasingly, the plaintiff bar is seeking to impose strict product liabililty on manufacturers whose products did not cause the alleged harm.  This trend in asbestos cases is not dissimiliar from those pharmaceutical product  liability cases in which the plaintiffs seek to hold a brand name drug manufacturer liable, whose product was never taken by the injured party, for injuries allegedly caused by a generic manufacturer's product.  These lawsuits are offensive to longstanding product liability case law and policy and should be rejected by the courts. 

The concepts of “duty” and “foreseeability” figure prominently in any discussion of “take-home” toxic tort exposure claims. In an insightful article appearing in BNA Toxics Law Reporter, dated November 3, 2011, Christine G. Rolph,Arthur F. Foerster andHans H. Grong of Latham & Watkins discuss “take-home” exposure claims in asbestos litigation. The typical “take-home” plaintiff is a bystander such as the child who claims she was exposed to asbestos while playing in the basement where her father’s work clothes were laundered.

Latham & Watkins performs a national survey of “take-home” exposure claims. They observe that a plaintiff’s success in these claims depends heavily on whether the court applies a “relationship” or “foreseeability” analysis. The defense-favorable “relationship” analysis focuses on the nexus between the plaintiff and the defendant company. Without the ability to show a close relationship, the article points out, the “relationship” courts have been unwilling to impose a duty. The plaintiff-favorable “foreseeability” test, on the other hand, focuses on whether a risk of harm reasonably could have been predicted. The application of these two approaches creates very different results. For example, in CSX Transportation, Inc. v. Williams, 608 S.E. 2d 208 (Ga. 2005), the Supreme Court of Georgia declined to impose liability on an employer as the result of the non-employee plaintiff coming into contact with asbestos-tainted work clothing at the employee’s home. Although the Georgia court recognized that “an employer owes a duty to his employee to furnish a reasonably safe place to work,” the court found that this duty did not extend to third-parties who came into contact with the asbestos-tainted work clothing away from the workplace. Clearly, if the George Supreme Court had applied a foreseeability analysis, the result would have been very different. Courts that apply a foreseeability analysis often infer that companies should have known of the risk of harm to secondarily exposed persons because of their knowledge that asbestos exposure is dangerous generally. For example, in Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006), the court found that a risk of injury to the employee’s spouse should have been foreseeable to the defendant because it was aware of the risk of injury due to an asbestos exposure of sufficient duration and intensity. The problem with this line of cases is the failure to examine whether the bystander risk was actually reasonably foreseeable as of the date of alleged exposure.

Recently, some “foreseeability” courts have been applying a more rigorous analysis in determining whether a “bystander exposure” risk was foreseeable. In Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439 (6th Cir. 2009) (applying Kentucky law), the Sixth Circuit held that no duty was owed by the defendant because there was no evidence that a “bystander exposure” risk was foreseeable during the 1951-1963 time frame, when the alleged negligence occurred. In Martin, and other recent cases, courts examined the scientific literature to determine precisely when the defendant “should have known” about any alleged harm. The Sixth Circuit observed that although studies existed regarding exposure of workers and neighbors to asbestos emissions in factories and mines, the first studies on family members of asbestos-exposed workers were not published until 1965. Accordingly, the Sixth Circuit determined that the risk to plaintiff Martin was not foreseeable. In June 2011, an Illinois appellate court dismissed a “take-home” exposure case in Estate of Holmes v. Pneumo Abex, 2011 WL 2517420 (Ill. App. Ct. 4th Dist. June 22, 2011), where the court made clear that the plaintiff, to prevail, had to show that the defendants were “aware of concrete evidence of take-home exposure as opposed to the more prevalent literature involving direct exposure.” Thus, these cases signal a willingness by some courts to more closely examine historical knowledge and scientific information when applying the “foreseeability” test to take-home claims.
 

A Sixth Circuit case, Moeller v. Garlock Sealing Technologies, LLC, 2011 U.S.App.Lexis 19987 (6^th Cir. Sept. 28, 2011), is the most recent in a series of judicial decisions that have rejected the opinions of plaintiffs’ experts in asbestos cases who espouse the “any exposure” or “any fiber” or “single fiber” theory of causation.  Pursuant to this specious line of reasoning, asbestos disease is a cumulative dose response process. Each and every exposure to asbestos during a person’s lifetime, no matter how small or trivial – even a single fiber – substantially contributes to the disease, whether it be asbestosis, lung cancer or mesothelioma. Using this theory of causation, plaintiffs have initiated a wave of new lawsuits against defendants far removed from the production of asbestos containing products.  As defense practitioners are well aware, successfully challenging weak causation expert opinions is key to winning any toxic exposure case, whether it involves asbestos or some other substance.

In a “must read” column in the New York Law Journal, dated October 19, 2011 titled "Courts Shoot Down Asbestos Causation Theory", Michael Hoenig, whose law firm defends asbestos case litigation, describes how plaintiff experts are promoting the “any fiber” or “any exposure” theory in courtrooms across the country and how a series of notable judicial decisions have begun to reject these theories as the underlying scientific methodology is subjected to scrutiny. In a recent amicus curiae brief filed by eleven distinguished scientists in a Pennsylvania asbestos case, none of whom received funding from or testified as experts for any of the parties in the case, the scientists attacked the methodological errors of the “any exposure” expert for:  (1) failing to consider the dose level of exposure and minimum threshold of asbestos fiber levels; (2) failing to consider the physical chemical and toxicological differences between various types of asbestos; (3) failing to distinguish between general causation and specific causation (and not even establishing general causation for chrysotile asbestos); (4) for suggesting that “every exposure” and “cumulative risk” theories are generally accepted when they are not; and (5) ignoring the large body of toxicological studies demonstrating that chrysotile asbestos is not potent as a cancer-causing agent. 

The Pennsylvania Supreme Court observed in Gregg v. V-J Auto Parts Co., 943 A.2d, 216, 223 (Pa. Sup. Ct. 2007), that although it was “common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor in asbestos disease,” such opinions are not “not couched within accepted scientific methodology.”  The court called the “willingness on the part of some experts” to offer such opinions “one of the difficulties” courts face in the mass tort cases.

As the plaintiff bar continues to look further and further afield in its “endless search for a solvent bystander,” as one well-known plaintiff’s lawyer described the litigation, successful challenges under Daubert and Frye should only increase.  The author thanks Mr. Hoenig for his thoughtful treatment of this important topic.

From a risk management perspective, peripheral toxic tort defendants often decline to mount  Daubert challenges due to the cost and time involved and the uncertainty of the result, particularly when the plaintiff presents them with seemingly  reasonable settlement demands.  As a result, hundreds of peripheral defendants continue to be named in these cases and often pay their "penny in tribute" just to get out of the case.  Unfortunately, in many jurisdictions, judges responsible for large asbestos dockets are unwilling to give appropriate consideration to motions by "shade tree" defendants who might otherwise challenge plaintiffs' experts'  theories of causation.  Cynically, these judges know that the cases will most likely settle out if this type of motion is given short shrift.  There is little incentive for a peripheral defendant to risk an adverse  judgment at trial merely to earn the right to bring an appeal, no matter how strong the grounds may be.  Hopefully, cases like Moeller will have a trickle down effect and motivate the trial judges responsible for the asbestos dockets to re-think their approach. 

Guest Blogger M.C. Sungaila, one of California's most best known appellate advocates,  briefed and successfully argued the Molina appeal discussed here on behalf of Shell and Chevron. 

A Californiia appeals court rejected the lenient increased risk causation standard used to establish causation in asbestos cases in a toxic tort case not involving asbestos.  The Second Appellate District of the California Court of Appeal in Los Angeles upheld a defense verdict last month, in  Molina v. Shell OIl Company et al, determining that the trial court correctly refused to charge the Rutherford “increased risk” instruction applicable in asbestos cases because the ability of a product to cause the type of harm suffered by the plaintiff was hotly contested.

After a five-week trial and four days of deliberations in the trial court, a jury concluded that William Molina – who suffered from a variety of cancers and other ailments -- was not entitled to damages for his alleged exposure to defendants’ solvents during his 17-year career at a Firestone tire plant. The jury found that neither the solvents’ design nor any warning associated with them was a substantial factor in causing Molina’s non-Hodgkins lymphoma (NHL). Molina appealed, claiming among other things that the causation instruction used in California's asbestos litigation should have been given to the jury.

The appeals court court stopped short, however, of holding that the more liberal  Rutherford causation standard can never apply outside the asbestos context. Nevertheless, the Court of Appeal addressed a question repeatedly posed to trial courts throughout the state over the last five years: should a more lenient causation standard adopted by the California Supreme Court in the asbestos context be extended to other types of toxic tort cases like benzene? The appellate court’s answer was a qualified "no".

Causation, of course, is an essential element of a tort action. California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations. Implicit in the substantial factor causation standard in a toxic tort case is the requirement of proving both that a chemical can cause a particular adverse health effect and that it did cause that effect in the plaintiff.  In other words, proof of causation necessarily includes a threshold determination whether, in reasonable medical probability, a particular chemical is capable of causing in humans the type of harm suffered by the plaintiff (i.e., “general causation”).　 If the chemical does not possess that capacity, the chemical cannot have caused the particular plaintiff’s claimed harm.　 But if the chemical does have that capacity, then the causation inquiry shifts to whether the plaintiff’s exposure to the chemical in question was, in reasonable medical probability, a substantial factor in causing this particular plaintiff’s harm (i.e., “specific causation”).　Toxic tort causation also involves a threshold element of exposure. In order to determine whether an exposure is a possible contributing factor to a plaintiff’s injury, ‘[f]requency of exposure, regularity of exposure, and proximity of the . . . product to [the] plaintiff are certainly relevant.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416.)

Molina contended that California Civil Jury Instruction (CACI) No. 435, a relaxed “increased risk” causation instruction, should have been given because of the difficulties of proving cancer causation. The defendants successfully urged that the increased risk instruction under Rutherford should not apply where, as in Molina’s case, the ability of a chemical to cause a particular type of cancer is hotly disputed and far from well-established.

In Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 960, at the end of the first phase of trial, the jury concluded that exposure to asbestos fibers proximately caused the decedent’s lung cancer and awarded damages. After this phase, several defendants settled. In a second phase of trial, the jury was asked to apportion damages and allocate fault to the remaining defendant, Owens-Illinois. Owens-Illinois objected to the use of an instruction in the second phase of trial which stated that, once the plaintiff had established both that he was exposed to defendants’ asbestos and that his injuries were legally caused by asbestos exposure generally, the burden then shifted to the defendant to establish that its product was not a legal cause of the plaintiff’s harm.

The California Supreme Court rejected the use of the burden-shifting instruction as too “fundamental” a departure from traditional substantial factor causation. However, the Court concluded that, rather than be required to “trace the unknowable path of a given asbestos fiber,” a “plaintiff[] may prove causation in [an] asbestos-related cancer case[] by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability [fn. omitted] was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.”

Thus, in Rutherford, “it was already determined what caused the plaintiff’s illness—asbestos. The only remaining issue before the Court was the proper standard for determining who manufactured or supplied the asbestos that caused the plaintiff’s illness.” (Loewen, Causation in Toxic Tort Cases: Has the Bar Been Lowered? (Spring 2003) 17 Nat. Res. & Env’t 228, 229 (hereafter Loewen).) As one commentator observed: “This is undoubtedly the reason that the Rutherford court consistently and repeatedly limited its holding to ‘asbestos-related cancer cases’: its language linking risk to cause was expressly limited to cases where it has been determined that the cancer was ‘asbestos-related.’” (Ibid.) Accordingly, Rutherford does not apply in a case like this, where the ability of the defendants’ products to cause the plaintiff’s type of cancer is hotly disputed.

In Molina’s case, defendants’ toxicology expert testified that solvents do not cause NHL.  While one plaintiffs’ expert asserted that solvents could cause NHL, another plaintiffs’ expert testified that the evidence of a causal link between benzene and NHL was “weak” and therefore he could not state to a reasonable degree of medical probability that benzene could cause NHL.  Moreover, one of plaintiffs’ experts admitted that NHL is frequently idiopathic or of unknown origin.

The Court of Appeal agreed that the trial court correctly refused the Rutherford “increased risk” instruction applicable in asbestos cases. Rutherford involved a very different situation: in that case, a jury had already determined that the asbestos had caused the plaintiff’s lung cancer. The only remaining question was which manufacturers were responsible. The cause of Mr. Molina’s NHL, however, was not established.  In fact, the capability of defendants’ products to cause Mr. Molina’s injury was one of the most critical and hotly disputed issues in the case.

 When a scientist or physician signs on as a litigation expert, he opens himself up to scrutiny, not only about the bases for his opinion but also, to the extent permitted by law, his personal biases and professional background. In accepting a fee for service, the expert tacitly agrees to submit to intensive scrutiny. 

But what about the scientist or physician who is not involved in litigation? What privacy protections should be afforded to an expert whose scientific work becomes a linchpin for one or another party’s position in a toxic tort litigation? Increasingly, authors of scientific journal articles, FDA advisory panel members and other public health advocates have been subjected to increasingly intrusive subpoenas with the intent of undermining their scientific research or opinions. 

In a decision protective of the privacy of scientists and scholars involved in research benefiting public health and safety, New York Supreme Court Justice Sherry Klein Heitler refused to permit a company that marketed asbestos-containing products from obtaining the private papers of a former faculty member of the Mount Sinai School of Medicine (“Mt. Sinai”). Victor Reyniak and Sybille Reyniak v. Barnstead International et al. (2010 NY Slip Op. 30819)  In that case, Kentile Floors, Inc. (“Kentile”) served a subpoena duces tecum on Mt. Sinai seeking disclosure of Dr. Irving Selikoff’s private papers, including his personal correspondence and memoranda. Dr. Selikoff, who died in 1992, was a pioneering researcher in asbestos who devoted his career to enhancing public awareness of the hazards of asbestos and published over 380 scientific articles. Largely on the basis of Dr. Selikoff’s research, OSHA imposed safeguards for asbestos workers in the 1970’s. Kentile argued that Dr. Selikoff’s private papers might potentially shed light on “state of the art” issues crucial to their defense.  

In rejecting Kentile’s argument, and granting Mt. Sinai’s motion for a protective order, Judge Heitler held that the “expense Mt. Sinai would incur as a result of such a broad interpretation of the subpoena could well discourage other institutions from conducting vital health and safety research. Other scholars in the laboratory may fear that their unpublished notes, observations and ideas could be released to the public as a result of litigation. Although a scholar’s right to academic freedom is not absolute, it should factor into a court’s analysis on whether forced disclosure of documents is permissible (see, In R.J. Reynolds Tobacco Co., 136 Misc.2d supra at 287).”

Justice Heitler further held that “in  the circumstances of this case, Kentile’s request is sweeping and indiscriminate. The relative burden on Mt. Sinai to conduct such a mass production of documents covering 30 years of Dr. Selikoff’s studies outweighs any benefit Kentile might receive by conducting such a search.”

There is surprisingly scant case law  addressing the privacy concerns of scientists and physicians who find their professional work (and themselves) ensnared in litigation not of their own making.  In one case,  In re New York County Data Entry Worker Product Liability Litigation, No. 14003/92, 1994 WL 87529 (N.Y. Sup. Ct. N.Y. County Jan 31, 1994), discovery related to studies performed by a non-party scientist was denied because “special circumstances” warranting disclosure were not found to exist.. Noting that the non-party scientist  had made his studies public, the parties were directed to obtain the information from other sources. Similarly, Dr. Selikoff's 380 published scientific works are also clearly available to Kentile in the public domain. However, his unpublished notes and preliminary ideas were never intended to be exposed to the public or subject to use in litigation.

As noted in Plough Inc. v. National Academy of Sciences, 530 A.2d 1152, 1157-58 (D.C. 1987) "Although premature disclosure of ongoing research may be the most severe form of ‘chill’ on scientific research, it is not the only form. Even limited disclosure of the preliminary conclusions, hypotheses, thoughts and ideas ventured by [scientists] prior to their being tested and criticized would not only embarrass those members, it would discourage [scientists] in the future from expressing themselves freely during their deliberations, and might cause some potential volunteer to refrain from participating in [] studies altogether.

The plaintiff's bar continues to look for fresh targets in the asbestos litigation, utilizing increasingly creative theories of liability, as the original targets of plaintiffs' lawsuits have been largely forced into bankruptcy.  One of the new asbestos battlegrounds centers around the liability of parts manufacturers, such as pump and valve manufacturers, who never manufactured or sold asbestos-containing materials ("ACM").  Plaintiffs typically argue that these manufacturers may be liable for asbestos-containing products manufactured by different companies that they can reasonably anticipate will be used with their equipment.  However, in recent months, there have been a handful of appellate decisions suggesting that liability will not be extended to equipment manufacturers that neither sold nor included with their equipment ACM.  At the end of last year, the Supreme Court of Washington issued two decisions that rejected plaintiffs' claim that defendants should be held liable for failing to warn of the hazards of another manufacturer's product that is applied to or incorporated into the defendants' products.  The Supreme Court of Washington articulated a blanket rule that a duty to warn under common law negligence "is limited to those in the chain of distribution of the hazardous product."  The court also concluded that the defendants were not strictly liable for manufacturing a defective product because, not being product sellers or manufacturers, they could not translate their knowledge of the product's dangerous aspects into a cost of production against which liability insurance could be obtained.  Thus, the court held, it would be manifestly unfair to hold a defendant liable for another party's product. There is a good discussion of these cases, Simonetta v. Vlad Corp. and Braaten v. Saberhagen, in a Metropolitan Corporate Counsel article written by John E. Heintz and Justin F. Lavella at Kelly Drye & Warren LLP. A great deal was at stake on the appeal of these cases.  On February 25, 2009, The California Court of Appeal decided Taylor v. Elliot Turbomachinery Co. Inc  2009 WL 458543, and reached the same result as the Washington Court.  In rejecting plaintiffs' theory that the defendant should be liable for exposure to ACM in replacement parts sold and manufactured by other companies, the California court relied upon the California's "chain of distribution" line of cases that culminated in Cadio v. Owens-Illinois Inc. These cases recognize that "legal nightmares" would result if one company was held liable for the products of other companies.  There is a discussion of both the California and Washington decisions in a March 17, 2009 Law360 article  In an August 21, 2009 blog post by Michael J. Pietrykowski of Gordon & Rees, LLP, the DRI Blog reported that the California Supreme Court has declined to accept an appeal of Taylor v. Elliot Turbomachinery Co. Inc.  In the world of asbestos litigation, defense victories like these in Washington and California are hard fought and few and far between.