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

Guest Blogger M.C. Sungaila  is a partner in the appellate law firm of Horvitz & Levy in Los Angeles. Her appellate work has helped shape toxic tort law in California, including the scope of the duty to warn sophisticated users of product hazards and the guidelines for admitting expert testimony at trial.

Toxic Tort Litigation Blog’s post earlier this year about a Michigan appellate court’s affirmance of an award to residents of a home overrun with mold – without any expert testimony to prove causation – raises the question: what would happen to such a claim in a more famously liberal state like California? In this instance at least, California seems more likely to come to a more ‘conservative’ conclusion than Michigan.

Expert Testimony

California not only requires expert testimony for complex causation questions; it tests the foundation for that testimony and requires trial courts to exclude expert opinions that are unsupported. See an early article describing the development of these standards by M.C. Sungaila and David M. Axelrad published in California Lawyer. The California courts of appeal have specifically considered the admissibility of expert testimony in mold cases and ruled in favor of the defendants. Most recently, in Dee v. PCS Property Management, one of the appellate divisions in Los Angeles confirmed the trial court’s ability to exclude unfounded expert testimony in a residential mold case. Darcee Dee lived in an apartment for slightly over four months. She sued her landlord and property management company for alleged physical injuries, as well as fear of cancer, from living in an apartment that purportedly had toxic mold in it. After hearing the plaintiff’s experts testify over several days concerning their opinions and the foundation for them, the trial court granted the defendants’ motions in limine to exclude most of the experts’ testimony based on a lack of foundation. The remaining portions of Dee’s claims were tried to a jury, and the jury rejected her claims. The appellate court affirmed the judgment in Dee, concluding that the trial court did not abuse its discretion by excluding plaintiff’s experts for lack of an adequate foundation.  Each of Dee’s experts sought to testify that her exposure to mold mycotoxins caused her symptoms and her susceptibility to cancer, without any evidence that she was exposed to potentially harmful mycotoxins at her residence. The court relied on the decision in another mold case, Geffcken v. D’Andrea,  and distinguished its own prior decision in Roberti v. Andy’s Termite, the only published opinion to have rejected the trial court’s authority under the California Evidence Code to thoroughly analyze the foundation for expert testimony in order to determine its admissibility.  For another take on the Geffcken and Dee mold decisions, see an article on the Kring & Chung LLP website.

Toxic Tort Causation Standards

While California appellate courts would be certain to require expert testimony on causation, it is not as clear how they would analyze causation in a toxic tort case.  In toxic tort cases, a plaintiff must generally prove not only that a chemical or substance can cause a particular adverse health effect but also that it did cause the harm to the plaintiff.  Proof of causation therefore necessarily includes a threshold determination whether, as a matter of 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 answer is that the chemical does not possess that capacity, then the chemical cannot have been a cause of plaintiff’s harm. But if the chemical does have that capacity, then the causation inquiry (in jurisdictions like California which apply a substantial factor causation standard) becomes whether the plaintiff’s exposure to the chemical in question was as a matter of reasonable medical probability a substantial factor in causing the particular plaintiff’s harm (i.e., “specific causation”).   For a helpful analysis of causation in toxic tort cases, see the excellent discussion by David E. Bernstein, a Professor at the George Mason University School of Law, in an article  titled "Getting to Causation in Toxic Tort Cases".  This two-step general and specific causation framework is almost universally accepted by federal courts analyzing toxic tort causation (including the Ninth Circuit, see, e.g., Golden v. CH2M Hill Hanford Group, Inc. (9th Cir. 2008) 528 F.3d 681, 683).  Trial courts in California have analyzed proof of causation in toxic tort cases along general and specific causation lines as well. California appellate courts have not, however, expressly adopted the general and specific causation distinction in a published decision. This has led to some confusion, as plaintiffs have attempted to convince courts that such a “two-part”causation test is incompatible with California’s prevailing causation standards.  In Dee v. PCS Property Management, the plaintiff raised this argument on appeal, but the Court of Appeal declined to reach it because the jury had found no negligence, which made an argument about causation standards “irrelevant.” An opportunity to address the general and specific causation distinctions head-on may come later this year, however, when the Court of Appeal in Los Angeles is likely to hear argument in and decide the plaintiffs’ appeal of summary judgment in a high-profile benzene exposure case brought by former students at Beverly Hills High. The appellate docket for the case, Lee v. Venoco, is attached here. The original summary judgment decision ruled on the admissibility of expert opinion on both general causation and specific causation.

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Guest Blogger Brian Molinari is the author of the Prima Facie Law Blog, and a Labor and Employment Associate at Epstein Becker & Green. Brian asks in this post whether an employer has a duty to provde a green workplace for her employees.

With the global spotlight on reducing greenhouse gases and carbon footprints, including the Obama Administration’s unprecedented attention on encouraging environmental conservation and development of renewable energy sources, it’s clear that we’re in a “go green” era.

To cut to the question posed in this blogposts’s title, the answer is “no”.  There is no legal duty, at the moment, for a private employer to “go green”. Perhaps at some point in the future, statutory authority such as the federal Occupational Safety & Health Act and state and local counterparts will include “green workplace standards”. For example, with respect to the investment in “green jobs” the Department of Labor and National Institute for Occupational Safety and Health are already focusing on ensuring that OSHA standards are appropriately designed and enforced to protect workers performing that type of work. At present, however, there are no mandates and instead only various governmental and non-governmental incentives for a workplace to go green. 

The U.S. Environmental Protection Agency (EPA) and Pew Center on Global Climate Change estimate that commercial buildings account for nearly half of all energy consumption in the U.S., and contribute to nearly half of U.S. greenhouse gas emissions. The Energy Star Program, administered by the EPA and U.S. Department of Energy, attempts to encourage energy efficiency in buildings to meet strict energy performance standards set by EPA and reduce greenhouse gas emissions.  Federal buildings are eligible to receive a High Performance Building designation. 

In addition, commercial real estate and private companies are leading the green charge through voluntary compliance with standards set by a private, nonprofit membership organization, the U.S. Green Building Council (USGBC). The USGBC’s LEED® (Leadership in Energy and Environmental Design) Green Building Rating System™ awards points for satisfying specified green building criteria. The six major environmental categories of review include: 

• Sustainable Sites
• Water Efficiency
• Energy and Atmosphere
• Materials and Resources
• Indoor Environmental Quality and
• Innovation and Design

A building, or unit therein, can be certified as LEED Silver, Gold, or Platinum based on the total number of points earned within each LEED category. For example, our firm’s Miami and Los Angeles offices are in buildings with LEED Gold certification. It was reported two days ago that a high profile commercial property investment company will spend up to $10 million retrofitting its properties for environmental sustainability. LEED can be applied to all building types including new construction, individual unit commercial interiors, core & shell developments, existing buildings, homes, neighborhood developments, schools and retail facilities. In addition, LEED for Healthcare was released in early 2008.

In sum, the green movement has not yet resulted in mandated private employer obligations. Notwithstanding the lack of affirmative duty to do so, however, based on information provided by the USGBC and EPA there are many pragmatic benefits that employers should consider for greening their workplaces:

• Monetary:  Funding and tax incentives 
• Energy Efficiency:   Using energy more efficiently may save operating costs on utility bills over the life of the building; reduce the cost per unit on manufactured goods and services; and enhance resale and lease value of real estate
• Environmental Efficiency:   Reducing environmental impact may reduce waste materials and disposal costs, water usage, chemical use and disposal costs; encourage recycling and reuse of materials; develops local markets for locally produced materials, saving on transportation costs and develops economy-of-scale price reductions
• Human Efficiency:   Improving indoor environment, producing healthier places to work leading to increases productivity; reduction in absenteeism; boosting morale and corporate loyalty (also through creation of corporate “green teams”), and reduction in employee turnover
• Goodwill:  Green Buildings often receive high profile notoriety and increased public perception of goodwill toward employees and the community.  

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On February 24, 2010, the Second Circuit issued an important CERCLA contribution decision in Niagara Mohawk Power Corp. v. Chevron USA, Inc., 2010 WL 626064. Over the last 100 years, the site at the heart of the decision, the Water Street Site in Troy, New York has, according to the Court, “played host to various industrial activities including a coke plant, a steel manufacturing facility, a manufactured gas plant and a petroleum distribution facility,” all of which uses “led to the release or disposal of toxic substances, many subject to liability under CERCLA.” In its holding, the Second Circuit ruled that a contribution plaintiff need not establish the precise amount of hazardous material discharged or prove with certainty that a PRP defendant discharged the hazardous material to get their CERCLA claims past the summary judgment stage. Has the Second Circuit significantly raised the bar for defendants seeking summary judgment in private cost recovery cases? That is the thesis of Steven G. Jones in an article titled, “Second Circuit Makes Summary Judgment More Difficult to Obtain for Defendants in CERCLA Contribution Actions,” dated March 5, 2010. Jones contends that some CERCLA defendants, faced with a long and complex trial, may be more inclined to resolve their cases in mediation if it is less likely that a CERCLA defendant will be able to obtain dismissal through summary judgment prior to trial. In reversing the federal district court in the North District of New York, the Second Circuit relied on its prior precedent in United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d. Cir. 1993), which decision represented what the court described as a purposeful lowering of the liability to be a PRP and a relaxed CERCLA liability standard. It also cited the Tenth Circuit’s holding in Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886, 892 for the proposition that “CERCLA liability may be inferred from the totality of the circumstances as opposed to direct evidence.” Thus, in my view, Niagara Mohawk is less an expansion of existing CERCLA case law in the Second Circuit as much as it is a rebuke to the trial judge, who arguably did not apply the correct standard in the first instance.   

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BNA Toxics Law Reporter reported on December 31, 2009, that a Michigan Appeals Court affirmed a mold exposure verdict for $303,260, finding that expert testimony was not necessary under Michigan State law to prove either general causation or specific causation.  In Genna v. Jackson, Mich. Ct. App., No. 285746, the Michigan Court Of Appeals (Oakland Circuit Court) affirmed the trial court's denial of defendant's post-judgment motion for judgment notwithstanding the verdict (JNOV) and for a new trial. Based upon a review of the decision, it is not disputed ( at least by this writer) that defendant's negligent conduct resulted in substantial  flooding in the plaintiffs' home and the gross mold contamination that resulted. Plaintiff's microbial expert identified two molds in the home--penicillum and aspergillus--which he testified at trial could affect human health and pose safety issues.  Plaintiffs' children began to experience what the court described as "flu-like symptoms including: diarrhea, vomiting, congestion and nosebleeds".  Over a period of months, these symptoms worsened and the symptoms did not respond to aggressive treatment.  Plaintiffs did not call an expert to testify that these symptoms were the result of the mold contamination. Nonetheless, the appeals court held that plaintiff did not have to demonstrate that the alleged toxin is "capable" of causing injuries like those suffered by the children, let alone requiring the plaintiffs to prove that these children's symptoms were caused by mold exposure. The court reasoned as follows: "This is not a complicated case: the children were removed from the home, the mold was discovered, and the children recovered".  Thus, the court based its decision on "circumstantial evidence that would 'facilitate reasonable inferences of causation, not mere speculation'."  With due respect to the appellate panel, which was obviously impressed with the graphic description of "patches of mold of all different colors all over the walls and ceilings in her kitchen, family room and dining area", this is a really bad decision and a potentially dangerous precedent in Michigan!  It is a mistake to base toxic tort causation on a temporal relationship,i.e., the "children were removed from the home, the mold was discovered, and children recovered."  Flu-like symptoms can be caused by......well, the flu.  That the children's symptoms went away could signify that they had recovered from a prolonged bout of the  flu. Based upon this court's reasoning, the children's illness could have been caused just as easily by lead paint poisoning, contamination of their drinking water, VOC's emanating from their carpeting,  formaldehyde in the walls....or just a really bad allergic reaction to the family's cats.  Did anyone check the family furnace for carbon monoxide gas?  It is not as if the symptoms that the children suffered from were unique to mold "poisoning". Moreover, no one appears to have apprised the trial court that it is not unusual that the antibiotics the children were administered did not cure a viral infection! We also suffer from flu-like symptoms all the time. It is not unusual, particularly in the frigid month of February in Royal Oak, Michigan, when this incident occurred, for these symptoms to occur and to persist in the absence of an exposure to toxic mold. The court faults the defendant for not submitting "any scientific evidence that the mold in her condominium could not have caused plaintiffs' injuries." (emphasis theirs).  And since when does the burden in a negligence case shift to the defendant, and to prove a negative no less? 

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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.

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How can a brand-name pharmaceutical manufacturer owe a duty to patients who take only a generic version of its product? In a case of first impression in California, a state appellate court held on November 7, 2008 that Wyeth, Inc. owed a duty to plaintiff Elizabeth Conte, who developed a serious and irreversible neurological condition as a result of taking metoclopramide, the generic version of Wyeth’s Reglan, which is used to treat gastroesophageal reflux disease. In so holding, the California appellate court declined to follow the holdings of a majority of courts that have grappled with this issue.

In Elizabeth Ann Conte v. Wyeth, Inc. et al., the Court of Appeal of the State of the California in the First Appellate District in San Francisco, held that a brand-name pharmaceutical manufacturer’s common law duty to use due care when providing product warnings extends not only to consumers of its own product, but also to those patients whose doctors foreseeably rely on the name-brand manufacturer’s product information in prescribing a medication, even if the prescription is filled with the generic version of the drug. In reversing summary judgment granted to Wyeth by the trial court, the appellate court accepted Conte’s argument that Wyeth should be liable for her injuries because a brand-name manufacturer that disseminates information about its product owes a duty of care to ensure the information’s accuracy to all physicians who prescribe the drug in reasonable reliance on that information, even if the patient ends up taking the product’s generic equivalent.

The court agreed with Wyeth that Conte could not pursue a strict products liability claim against Wyeth. Indeed, Conte did not allege that Wyeth was strictly liability due to inadequate warnings. Rather, she claimed that Wyeth failed to exercise due care in disseminating its product information to physicians.  The court rejected Wyeth’s contention that Conte’s case was merely a product liability suit masquerading as a negligence case. The court held that the plaintiff could pursue claims of intentional and/or negligent misrepresentation based upon Wyeth’s labeling information about the safety of metoclopramide, the risks of its long term use, and the likelihood of serious side effects. 

Was the court correct in determining that Wyeth owed the plaintiff a duty in a negligence context where no such duty could be found to exist in a strict liability case? As a matter of public policy, should a brand-name drug manufacturer be subjected to what Wyeth argued might be “permanent and uncontrolled liability” in perpetuity. Even as a brand-name manufacturer’s sales decrease over time, its potential product liability exposure may actually increase because of higher market share won by generic competitors. Ironically, the generic manufacturer takes precious market share from the brand-name manufacturer at the same time that the court shifts the generic’s product liability exposure back to the pioneer. 

We believe that the better reasoned analysis of this issue may be found in Foster v. American Home Products Corp. (4th Cir. 1994) 29 F.3d. 165 (2003), in which the Fourth Circuit held that a manufacturer of a name-brand drug could not be held liable under a theory of negligent representation for an injury arising from the ingestion of a generic version of the drug. Taken to its logical extreme, in the brave new world envisioned by the Conte court, it may not matter that a plaintiff cannot identify the manufacturer of a product that caused an alleged injury so long as the plaintiff can plausibly claim to have relied on some other manufacturer’s operator’s manual.

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