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

There is a significant risk that there will be a resurgence of mold claims and mold litigation in the wake of Hurricane Sandy.  Sandy left behind thousands of homes and offices in New York and New Jersey with flood-soaked flooring and sheet rock and water-damaged carpeting and personal belongings, which are all potential sources of mold if not removed and replaced.  In addition to potential mold exposure to property owners and lessees, there is the potential occupational risk to the thousands of workers in the construction trades who are working to repair damaged homes and offices.

The most likely source of mold-related claims, however, will arise over disagreement concerning the scope of work of remediation contractors, construction companies and others involved in returning storm-ravaged communities to some semblance of normality.  The contractor who replaces ruined sheet rock walls or wooden flooring, for example, may not be thinking about the water-soaked floor joists that may be a breeding ground for mold. The contractor who rebuilds an HVAC system may not feel responsible for sources of mold that may be spreading via that system.

Although certain affected surfaces may appear to recovered after being submerged under storm water for days, those surfaces may in fact be a breeding ground for mold. As much as possible, a building contractor should clarify with the client in writing what responsibility, if any, the building contractor has for addressing mold conditions, particularly those conditions that may be adjacent to area of new construction.

On November 30, 2012, WNYC broadcast a highly informative program on the Leonard Lopate Show titled, "Mold: Please Explain", which can be downloaded from WNYC's website. The guests on the program were Monona Rossol, an expert in environmental health and industrial hygeine, and Chin Yang, a microbiologist with Prestige EnviroMicrobiology. Ms. Rossol and Mr. Chin discussed what mold is, where it comes from, how it grows, what it can do to your home and health, and how to get rid of it.  The listener Q&A following the initial presentation made clear that there are widespread misperceptions about mold and how to address it.   

Thankfully, there are many publicly available websites that provide first-rate information concerning mold hazards and how to address it.  These sources should be the first place anyone with a mold concern should look for answers.  They are also excellent sources of information for toxic tort practitioners defending mold cases, who need to identify relevant regulations and standards of practice in the industry.  These sources also provide valuable insights into how to protect human health during the restoration process.

These sources, most of which are provided on the WNYC website, include NYC's excellent site at: The NYC Department of Health and Mental Hygiene; EPA's "Mold Regulation in Schools and Commercial Buildings", EPA's "A Brief Guide to Mold, Moisture, and Your Home", "Flood Cleanup: Avoiding Indoor Air Quality Problems" and "The Inside Story: A Guide to Indoor Air Quality" "An Introduction to Indoor Air Quality", FEMA's "Dealing With Mold and MIldew in Your Floor Damaged Home" and "Eradicating Mold and Mildew" HUD's "Healthy Homes Programs Resources" and Disaster Recovery: Mold Removal Guidelines for Your Flooded Home" and lastly, the "Guidance for Clinicians on the Recognition and Management of Health Effects related to Mold Exposure and Moisture Indoors", published by the University of Connecticut Health Center, Division of Occupational and Environmental Medicine, Center for Indoor Environments and Health.

There is no dearth of strong science-based resources concerning mold and mold rememdiation on the internet. Unfortunately, these resources are often consulted only after some ill-advised action is taken with regard to a mold concern, not before. 

Guest bloggers David M. Governo and Corey M. Dennis are attorneys at Governo Law Firm in Boston, where they focus on the defense of toxic tort, product liability, environmental, and insurance coverage claims. Mr. Governo is the immediate past Chairman of the Toxic Tort and Environmental Law Section of the Federation of Defense & Corporate Counsel (FDCC).

Earlier this month, Judge Robreno of the U.S. District Court of the Eastern District of Pennsylvania, who presides over the federal Asbestos Products Liability Litigation consolidated Multidistrict Litigation docket (MDL 875), considered an issue of first impression under maritime law in Mack v. General Electric Company, MDL-875, No. 2:10-78940-ER, 2012 WL 4717918 (E.D. Pa. Oct. 3, 2012): whether a Navy ship is a “product” under strict product liability law.

The defendants were Navy ship builders—General Dynamics, Northrop Grumman Shipbuilding, and Todd Pacific Shipyards—who moved for summary judgment on the ground that a Navy ship is not a product for which strict product liability applies and that the sophisticated user defense relieved them of liability. Judge Robreno agreed that a Navy ship is not a “product” for purposes of strict product liability law, reasoning that: (1) the role of a Navy ship builder is “more like a provider of a service” than “a manufacturer or supplier of a product”; and (2) imposing liability on a Navy shipbuilder for thousands of products would be an undue burden likely to discourage shipbuilding. He concluded, therefore, that the manufacturers of the various asbestos-containing products aboard the ships, rather than the ship builders, should “bear the burden of preventing harm” to Navy seamen.

Judge Robreno also adopted the “sophisticated user” defense under maritime law, which relieves a product manufacturer of its duty to warn end users who are “sophisticated” regarding the hazards of the product by virtue of their training, education, or employment. However, he rejected the defendants’ argument that the Navy’s sophistication regarding asbestos discharged their duty to warn the plaintiff, finding that the lack of evidence of the seaman plaintiff’s sophistication was fatal to the defense.

Judge Robreno limited the applicability of the sophisticated user defense under maritime law, concluding that the defense only applies: (1) to negligent failure to warn claims; and (2) where the end user himself (e.g., Navy seaman) was a sophisticated user of the product. As a result, the defendants’ motions for summary judgment were granted as to the plaintiff’s strict liability claims, but denied as to the plaintiff’s negligent failure to warn claims.

While not binding precedent, the Mack decision represents persuasive authority that Navy ship builders may rely on to establish that they should not be held liable, at least under strict liability, for Navy ships. However, Judge Robreno’s ruling on the sophisticated user defense, the applicability of which varies greatly by jurisdiction, is less helpful for defendants. Although he adopted the sophisticated user defense under maritime law, under his interpretation, the sophisticated user defense is very limited.

 This ruling is at odds with the laws of some states, including Massachusetts. See Carrel v. Nat'l Cord & Braid Corp., 447 Mass. 431, 441 (2006) (adopting sophisticated user doctrine as a defense to claims of negligent failure to warn and failure to warn under breach of warranty, as pertaining to end users or intermediaries); Taylor v. Am. Chemistry Council, 576 F.3d 16, 25 (1st Cir. 2009) (explaining sophisticated user defense applies to end users or intermediate parties, such as employers).
 

New York’s appellate courts continue to hold toxic tort plaintiffs and their experts to rigorous standards when it comes to proof of causation. To escape an adverse summary judgment ruling, it is not enough for a plaintiff to merely allege, with the support of an expert, that she was exposed to a toxic substance, and that this exposure resulted in the illness alleged. Rather, the plaintiff must raise a triable issue of fact as to her “exposure to a specific toxin or allergen; quantify the level of exposure to some degree; and posit that such level of exposure was sufficient to produce the alleged injuries.” Such was the holding of the Appellate Division, First Department, in Cleghorne v. City of New York, (2012 NY Slip Op 06648), decided on October 4, 2012.

Cleghorne was a school teacher employed by the New York City Board of Education. She claims that after her school was relocated to the Bronx in 2000, she developed respiratory problems while cleaning her classroom at the new location. Thereafter, she was diagnosed with asthma and bronchitis. After returning to work about a month later, she had an asthma attack at the school and was hospitalized. At her General Municipal Law § 50-h examination in September 2001, Cleghorne testified that she developed a persistent cough while cleaning her classroom and a storage area in the new building and that afterward her condition deteriorated. In October 2001, she commenced an action against the Board of Education and others.

 In 2010, both sides moved for summary judgment. Each side presented their own experts’ medical affidavits. The defendants’ physician, Jack J. Adler, a pulmonologist, determined that plaintiff had developed asthma prior to moving to the new school location. Adler opined that the environmental contaminants at the school did not cause the condition. He reported that plaintiff suffered from atopic or allergic asthma and that she was allergic to several common allergens, including tree and ragweed pollen, dust mites, dogs, cats, cockroaches, mold, spores and mouse and rat antigens, none of which were exclusive to her school. Because these environmental contaminants are extremely prevalent, Dr. Adler opined that she would have similar symptoms in any urban environment.

Cleghorne stated in her affidavit (which the court noted was executed more than nine years after the relevant events) that the school premises “were replete with rodents, rodent carcases, rodent droppings, cobwebs, cockroaches, cockroach and other bug carcasses, mildew, thick-black dust, and excessive dirt, and had numerous ceiling tiles that were water damaged and broken.” In addition, mold was in the ceiling tiles by the vents, on the walls, and in the closets. Her daily routine was to clean out all of this material before starting class.

Based upon Cleghorne’s affidavit, her expert, Dr. Hugh Cassiere, opined that Cleghorne was exposed to a “high level” of daily inhalation of these allergens, which caused her to develop “airway hyperresponsiveness.” Faced with two sets of dueling summary judgment motions, the trial court determined that questions of fact required the denial of both motions.

 In its opinion, the Appellate Division, First Department, unanimously reversed, holding that the trial court should have dismissed plaintiff’s case. Relying on the Court of Appeals landmark case, Parker v. Mobil Oil Corp., the First Department held that Cleghorne had failed to raise a triable issue of fact as to the specific toxin or allergen; that she had failed to quantify the level of exposure; and that she had failed to posit (through her expert) that such level of exposure was sufficient to produce the alleged injury.

In pertinent part, the Court held,

"While Parker recognizes that the level of exposure need not always be quantified “precisely,” it is still necessary that “whatever methods an expert uses to establish causation [they be] generally accepted in the [medical] community”… such methods include “mathematical modeling or comparing plaintiff’s exposure level to those of study subjects whose exposure levels were precisely determined."

In Cleghorne, the court found that the only so-called “method” plaintiff’s expert used to establish specific causation was to “accept, at face value, the anecdotal allegations of plaintiff’s uncorroborated affidavit that she was exposes to dust, bugs, rodent droppings and carcases in unspecified quantities and began experiencing asthma, purportedly for the first time, as a result.”
Although plaintiff’s expert characterized  Cleghorne’s exposure as “high level,” the Court found that this assessment was an insufficient basis for his causation theory and that plaintiff’s use of the term “replete” in her affidavit was a “meaningless and vague quantifying adjective.”

Significantly, the court held that an expert’s calculation of the level of exposure may not be based upon assumptions not supported by the record and faulted the plaintiff’s expert for not providing any scientific measurement or employing any accepted method of extrapolating such a measurement. Moreover, plaintiff offered no other evidence concerning the “level of allergens or toxins present in the school.” Although Dr. Cassiere did cite six studies in support of his theory of causation, he failed to compare plaintiff’s exposure level to those of any of the study subjects.

What lessons does Cleghorne provide?

1. Although New York state trial courts are generally reluctant to dismiss the personal injury claim of a sympathetic plaintiff, there is strong precedent in the appellate courts that favors dismissal of toxic tort lawsuits without appropriate scientific support. Therefore, making a strong appellate record below, either on summary judgment or at trial, is essential for achieving a successful outcome;

2. Although some commentators are critical of the Frye rule in New York state court (preferring instead the federal Daubert rule), New York has developed some rigorous Frye jurisprudence. Therefore, all is not lost if you are in New York state court and seek to exclude plaintiff’s expert;

 3. A rigorous analysis of plaintiff’s expert’s opinions, expressed either in his affidavit or CPLR 3101(d) expert witness disclosure, is essential. As reflected in Cleghorne, plaintiff’s expert must be able to quantify the level of exposure albeit not “precisely.” However, plaintiff’s methodology must include “mathematical modeling” or, alternatively, a comparison of plaintiff’s exposure level to the exposure level of study subjects in the scientific studies cited by the expert in support of his theory of causation. It is not sufficient to use words like “replete” or “daily” in quantifying an exposure to a toxin or allergen; and

4. The trial court should be cautioned that, in opposing a motion for summary judgment, it is not sufficient for plaintiff’s expert to rely solely on plaintiff’s "anecdotal" remarks seeking to link cause and injury.

All too often, a defendant in a toxic tort case loses a motion for summary judgment because the court determines that imprecise witness testimony creates a triable issue of fact that warrants denial of the motion. Indeed, it is the rule in California that the task of deciphering the meaning of “ambiguous” witness testimony is a role reserved for the jury. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541, 113 Cal.Rptr. 3d 327, 235 P.3d.988

Thus, quoting from this oft-cited case, plaintiffs routinely argue that “the task of disambiguating ambiguous utterances is for trial, not for summary judgment.” Other California holdings suggest that an inconsistency in witness testimony does not require that the testimony be disregarded in its entirety; rather, it is for the trier of fact to determine what weight the testimony should be given. Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865.

On May 4, 2012, the Bloomberg BNA Toxic Law Reporter reported on the recent  decision in Davis v. Foster Wheeler Energy Corp., Cal. Ct. App., No. B226089, 4/26/12, where the California Court of Appeal for the Second Appellate District drew a sharp distinction between testimony that was “ambiguous” and testimony that was “internally contradictory.”  In affirming summary judgment, the court found that no triable issue of fact was established where the witness testimony was contradictory. Here are the pertinent facts.

Ronald Davis worked at a chemical plant in Torrance, California in the 1960’s. He later developed mesothelioma, and died in 2009. Among others, the plaintiff sued Foster Wheeler, alleging negligence, strict liability, breach of warranty, and loss of consortium. Foster Wheeler moved for summary judgment, arguing that it did not manufacture, sell, or distribute any asbestos-containing product, and that the decedent was not exposed to asbestos dust by any Foster Wheeler product. The trial court granted summary judgment and plaintiffs appealed.

The plaintiffs argued that there was a triable issue concerning whether Davis was exposed to asbestos dust when Foster Wheeler employees, such a decedent, stripped old asbestos-containing insulation from the outside of boilers during maintenance activity. Key to the plaintiffs’ appeal was the deposition of Claude Chabot, a witness who initially claimed that he observed a maintenance worker stripping insulation wearing a hat with “FW” on the brim. However, in a later deposition, Mr. Chabot testified that he had no information whether any Foster Wheeler personnel removed or installed insulation on the boilers at the plant.

Under these circumstances, the trial court decided that “no reasonable jury considering this opposing testimony would conclude that the [Foster Wheeler] workers are the workers who removed the asbestos insulation around the Foster Wheeler boiler.” The appeals court agreed that Mr. Chabot’s internally contradictory testimony did not establish the existence of a triable issue of fact.

I have not examined whether other jurisdictions draw a similar distinction between “ambiguous” and “contradictory” or “internally inconsistent” testimony, but if they do not, perhaps they should. In many toxic tort cases, defense counsel may be confronted with potentially adverse testimony from a witness who is testifying to recollections that may be decades old. (Did the witness see that FW hat at the plant or at a UCLA football game?)

One school of thought is to leave adverse testimony alone. Pursuant to this view, taking an expanded deposition of plaintiff’s witness would only make the “record” worse. The holding in Davis suggests that this view may be shortsighted. The adverse witness who provides an affidavit to plaintiff’s counsel may be doing so out of sympathy for a co-worker who has died or suffers from a serious illness. A witness’s recollection of events is often different when the witness is deposed, possibly on videotape, in a formal deposition setting. It is possible that the witness, who provided the unhelpful affidavit, may be willing to admit in deposition that his recollection of long past events may be faulty or possibly inaccurate.

Eliciting contradictory testimony from a witness may not necessarily mean that the witness is dishonest or hostile. Rather, it reflects the tendency in all of us to want to be helpful. Foster Wheeler’s counsel skillfully developed inconsistencies in the witness’s testimony and thereby obtained dismissal from the case. There is no reason why “inconsistent” or “internally contradictory” testimony from witnesses, perhaps originally adverse, should not be disregarded by trial courts in other jurisdictions besides California.
 

Guest Blogger ANDREA J. LAWRENCE is a Senior Counsel at Epstein Becker & Green in New York.  She provides legal advice and counsel to clients in the real estate industry. Andrea has extensive commercial litigation experience, and has provided legal representation to real estate companies, landlords, developers, property management companies, and commercial tenants  In this jointly written post, we discuss a recent Appellate Division, First Department toxic mold case, which was reinstated after dismissal in the trial court.

The adverse health effects of toxic mold are frequently litigated in courts throughout New York, where many apartment dwellers claim to suffer from various medical illnesses resulting from mold and dampness. Just last week, toxic mold again created a stir in the legal community when the Appellate Division, First Department, in Cornell v. 360 West 51st Street Realty, LLC (2012 NY Slip. Op. 01643), reversed a lower court decision dismissing a plaintiff’s mold personal injury claim against her landlord. Despite plaintiff offering scientific and medical evidence in support of her claims, why did the lower court award summary judgment to the landlord? It is noteworthy that plaintiff’s expert, Dr. Eckhard Johanning, has made a career testifying for plaintiffs in mold personal injury actions. This was not the first case in which his expert testimony had been rejected by a trial court due to his off-the-wall methodology.

In Cornell, the plaintiff had resided in her apartment directly above the building’s basement since 1997. After flooding in the basement in 2002 and 2003, the plaintiff observed mold in her bathroom, and began to feel ill every time that she entered this room. In October 2003, the building was sold and the new owner began to remove debris from the basement in preparation for renovations to the building. During the course of the debris removal, plaintiff experienced dizziness, chest tightness, congestion, a shortness of breath, a rash, swollen eyes and a metallic taste in her mouth. In November 2003, the plaintiff was forced to permanently vacate her apartment purportedly as a result of her medical condition. Shortly thereafter, she commenced a personal injury action.

In support of her motion seeking summary judgment (and in opposing the landlord’s motion), the plaintiff presented expert testimony establishing that mold was capable of causing the medical ailments she experienced. Her treating physician opined that her symptoms were caused by exposure to toxic molds.

Notwithstanding the causation evidence presented by plaintiff, the lower court granted defendants’ motion for summary judgment and dismissed the complaint. In doing so, the court relied on Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416 (1st Dep’t 2008), holding that “the Fraser majority has resolved the issue of the sufficiency of the current epidemiological evidence on which [plaintiff’s physician] relied was not sufficiently strong to permit a finding of general causation, and as the limited supplemental studies that are submitted in this action plainly do not remedy the insufficiency found by the Fraser majority, this court is constrained to hold that plaintiff is unable to prove general causation.”
The trial judge reasonably assumed that if Dr. Johanning's scientific evidence had failed to pass legal muster in Fraser, his testimony should not be given credence in her courtroom either.

In a 3-2 split, the Appellate Division First Department held that the lower court had erred in its dismissal of the plaintiff’s personal injury claims based upon Fraser. The court stated that, “we never disavowed the underlying theory that exposure to mold may, under certain circumstances, give rise to respiratory and other ailments.” The court noted that its holding in Fraser was limited by the facts of that particular case, and reiterated “our holding [in Fraser] does not set forth any general rule that dampness and mold can never be considered the cause of a disease.” So holding, the Appellate Division reinstated the plaintiff’s complaint against the landlord for mold-related personal injuries.

 At first blush, it may appear that the trial court dismissed plaintiff’s mold claim because it had read Fraser as a categorical rejection of all toxic mold personal injury mold cases. However, the trial judge had certainly not done this.  In his dissenting opinion, Judge Catterson faulted plaintiff’s experts in the lower court for failing to rely upon “generally accepted science.” He determined that plaintiff’s submission concerning medical causation failed to meet the test under Frye v. U.S., 293 F.1013 (D.C. 1923)(known as the Frye test), which requires that the reliability of a new test, process or theory, be “generally accepted” within the relevant scientific community. Upon close examination of the studies relied upon by plaintiff’s experts, he determined that plaintiff’s proof fell short of the mark.  We agree with Judge Catterson. 

Unfortunately, Cornell may provide a roadmap to clever toxic tort plaintiff lawyers and their experts on how to beat back a Frye challenge in New York state court.  At the end of the day, the experts are cooking up the same suspect causation opinions that were rejected in Fraser. It is just that they are adding some scientific "gloss" to those opinions to get to the jury. 

Guest Blogger Nicolas S. Allison  is an Associate in Epstein Becker & Green's Asbestos Group in New York. A graduate of Princeton University and Boston University Law School, in addition to his mass tort asbestos work, Nick also represents firm clients in a wide variety of industries, including financial institutions, health care providers and health care insurers.  He also defends environmental claims brought under the New York State Navigation Law.  In discussing the Supreme Court's recent decision in Kurns v. Railroad Friction Products Corp, Nick and I examine the reasoning of  the majority opinon, the concurring opinion and the concurring/dissenting opinion and how the justices address plaintiff's failure to warn and design defect claims in light of the preemption under the Locomotive Inspection Act . 

On February 29, 2012, the Supreme Court issued a preemption decision in Kurns v. Railroad Friction Production Corp, an asbestos product liability case. The case is noteworthy for product liability and toxic tort practitioners because of the Court's split analysis concerning the potential preemptive effect of federal legislation on failure to warn claims.

Plaintiff's decedent, George Corson, was a machinist for the Chicago, Milwaukee, St. Paul and Pacific Railroad. As a machinist, his duties included the removal and replacement of asbestos-containing brake shoes and insulation on the company’s locomotives. In 2005,  Corson was diagnosed with malignant mesothelioma, after which Corson sued several dozen manufacturers, including  part suppliers of the railroad company's locomotives. The trial court granted summary judgment to the railroad supplier defendants on preemption grounds and the Third Circuit affirmed. The issue before the Supreme Court was whether federal preemption should result in dismissal not just of the design defect claim, but to the failure to warn claim as well 

Writing for the 6-3 majority, Justice Thomas summarily rejected Plaintiff’s argument that, as a distinct cause of action, her failure to warn claim was not preempted by federal law. Thomas reasoned that “the ‘gravamen’ of petitioners’ failure to warn claims ‘is still that [Corson] suffered harmful consequences as a result of his exposure to asbestos contained in the locomotive parts.” By summarily rejecting the argument and conflating failure to warn claims with defective design claims, Thomas does little to present a concrete roadmap for evaluating the preemptive effect of federal law involving product liability causes of action.

Dissenting in part and concurring in part, Justice Sotomayor more or less adopted plaintiff’s approach, drawing a distinction between failure to warn claims and design defect claims. Sotomayor reasoned that "a product may be flawlessly designed and still subject its manufacturer or seller to liability for lack of adequate instructions or warnings."  Despite  a scholarly analysis of product liability jurisprudence,  Sotomayor did not persuasively explain how the distinction precludes the preemptive effect of the federal legislation at issue. It is noteworthy that her analysis failed to persuade six other justices on the Court.  .

In practical terms, Justice Kagan’s concurring opinion possibly articulates the strongest underpinning of the majority opinion.  Her preemption analysis examined the broad regulatory authority granted under the Locomotive Inspection Act.  Kagan reasoned that “if an agency has the power to prohibit the use of locomotive equipment, it also has the power to condition the use of that equipment on proper warnings.” Under this reasoning, Kagan determined that because the agency could have required warnings about the equipment's use, the petitioner's failure to warn claim, no less than her defective design claims, was  preempted.  Thus, under Kagan’s preemptive analysis, regulatory silence has the same preemptive effect as explicit regulation.

This case represents an unusual application of field preemption--unusual because there is no indication that Congress intended to foreclose all state action concerning railroad safety rather than just the regulation of equipment used by the railroad.  Some commentators have sought to isolate the case from other preemption jurisprudence by arguing that the outcome of the case may have been different  if the Court did not feel bound by the precedent established in a 1926 Supreme Court case, Napier v. Atlantic Coast Line. Still others have argued that the case represents an usual  departure for Justice Thomas, who generally narrowly construes the scope of  federal power over the states.

What is intruiging for product liability defense counsel is the idea, impliedly advanced by Justice Kagan, that warnings and instructions (the part of the product conveyed in print) should be treated as just another part of a product's design and not as the basis for an independent cause of action.  For the past several decades, plaintiffs have always had two bites at the apple--defectiive design and failure to warn. If the product was flawlessly designed, they could retreat to their warning claim.  If the product had terrific warnings, they could argue in the alternative that the poor design of the product could not be cured by strong warnings.  If this case is interpreted by future trial courts (in a non-preemption context) to mean that a failure to warn claim should be considered as part and parcel of a defective design claim, rather than a separate claim, manufacturers will have obtained an important precedent in Kurns.  Only time will tell.

Asbestos defendants are frequently faced with medical causation testimony from the plaintiff that asserts that, because there is no “safe” level of asbestos exposure, any exposure above some ill-defined “background” level is a substantial contributing factor to the plaintiff’s asbestos-related injury. This theory has become the centerpiece of modern asbestos litigation and discourages minimal exposure cases from going to the jury. However, a strong defense can be mounted to a minimal exposure case, particularly if plaintiff alleges exposure to chrysotile asbestos fibers.

For the toxic tort defense lawyer, an understanding of the two major families of asbestos is critical. From a toxicity standpoint, amphibole asbestos fibers are more potentially toxic than fibers of the serpentine family. Amphiboles tend to: (1) be acid resistant; (2) be persistent in the body; (3) be straight fibers; and (4) contain iron. By comparison,chrysotile asbestos, a member of the serpentine family, has a much more lower toxicity profile, particularly in low exposure settings. Chrysotile: (1) breaks down in the body; (2) is acid soluble; (3) has a soft pliable curly shape; and (4) contains dissolvable magnesium. Because the body handles chrysotile fibers differently, chrysotile is much less potent than amphibole asbestos. An examination of the toxicological literature demonstrates that the mesothelioma mortality risk is much greater from amphibole exposure as compared to chrysotile exposure.

At a meeting of the IADC in February 2012, William G. Hughson, M.D., D.Phil., expressed criticism of the expert opinions commonly expressed by plaintiff experts in asbestos cases concerning chrysotile. Dr. Hughson is the Director of the University of California at San Diego Center for Occupational & Environmental Medicine. Dr. Hughson rejects the view that any exposure above background is a substantial contributing factor to disease and that dose has no bearing on causation. At the same meeting, Bob Manlowe, a lawyer with Seattle-based Williams Kastner, delivered a paper titled, “Literature Refuting Single-Fiber Theory and Zero-No-Threshold/Linear-Dose-Model.” For the asbestos practitioner, the two papers provide a valuable road map to cross-examining plaintiff experts and defending mesiothelioma cases involving chrysotile asbestos.
 

Guest Blogger ANDREA J. LAWRENCE is a Senior Counsel at Epstein Becker & Green in New York.  She provides legal advice and counsel to clients in the real estate industry. Andrea has extensive commercial litigation experience, and has provided legal representation to real estate companies, landlords, developers, property management companies, and commercial tenants  She recently published an article about bed bug litigation in the New York Real Estate Journal.  Despite some recent highly publicized bedbug personal injury litigation involving prominent New York hotels, Andrea concludes on the basis of a recent New York appellate case, that bedbug cases may not fare well in a commercial setting. 

Many people don't necessarily associate bedbugs with other environmentally hazardous conditions such as toxic mold or oil contamination. However, the reemergence of bedbugs in this country has created unsafe and hazardous living conditions, and has spawned a recent spate of lawsuits throughout the United States. Just recently in New York, the Appellate Division, First Department, shed some light on the issue of liability in the sale of an apartment building with an alleged bedbug infestation. In 85-87 Pitt St., LLC v 85-87 Pitt St. Realty Corp., 83 A.D.2d 446, 921 N.Y.S.2d 40 (1st Dep't 2011), the appellate court upheld a lower court dismissal of a lawsuit, where a buyer sought damages from a seller after its purchase of a residential apartment building with a prior bedbug infestation. The Appellate Division affirmed the lower court's dismissal of the case, predicated upon the contract clause setting forth that the buyer had accepted the building "as is" after having had an opportunity for inspection, as well as the merger clause contained therein that extinguished any claims arising from the seller's alleged misrepresentations concerning bedbugs. Thus, at least in this jurisdiction, there is not much legal recourse for purchasers of buildings, or even apartment units, with a bedbug history, where such relief is precluded by contract.

 The lesson to be learned from this case is simple – in the course of a buyer’s due diligence in today’s market, it should search building records for reports of a bed bug (or any insect/vermin) infestation, and may want to conduct its own physical inspection with an exterminator to uncover any such infestation, past or present. Moreover, should a buyer wish to have some safeguard against this issue, it should insist on a clause within the contract of sale whereby the seller proffers a representation about the presence or absence of bedbugs so as to be enforceable. 
 

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. 

Consumer Reports, among others, reported this week that the International Agency for Research on Cancer ("IARC"), which is part of the World Health Organization ("WHO"), has classified low-level radiation from cell phones as "possibly carcinogenic to humans" based on limited evidence linking cell phone use to glioma, a type of brain cancer.  Although Consumer Reports concluded in its article that IARC's action was based on "limited evidence" and doesn't "convincingly" link typical cell phone use with cancer, an American public that often skims only headlines of articles, may be susceptible to appeals of sympathy by plaintiff lawyers representing long-time cell phone users with brain cancers.  Throughout the 1980's the utility industry battled spurious claims, premised upon junk science, that electromagnetic field radiation was responsible for "cancer clusters" of child leukemias and other dreaded diseases.  Although virtually every major EMF toxic tort claim was successfully defended by industry over a period of years, tens of millions of dollars was spent defending these lawsuits, which were brought in courts all  across the country.  As in the case of low dose radiation from cell phone use, there were  millions of millions of potential plaintiffs in the EMF cases and all of the prospective utility industry defendants had deep pockets. Following issuance of the IARC release, a spokeswoman for the Federal Communications Commission ("FCC") stated that FCC currently requires that all cell phones meet safety standards based upon the advice of federal health and safety agencies.  Moreover, according to the National Cancer Institute's Surveillance Epidemiology and End Results Program ("SEER"), the incidence of brain cancer in the United States has actually declined over recent years as cell phone use has skyrocketed.  Despite these reassuring pronouncements, well-heeled plaintiff lawyers may bring some cases as trial balloons to test industry resolve based upon other equally ambiguous pronouncements, such as the contention that cell phone use can affect "brain function".  As in the cases brought against chemical manufacturers in the 1980's,  which alleged that chemicals cause generic  "immune system dysfunction", enterprising plaintiffs may attribute any number of injuries to purported "brain function" impacts.  Hopefully, courts will continue to exercise their gatekeeper roles to maintain some semblance of scientific rigor in the courtroom to exclude inconclusive science  if these cases are brought. 

On November 6, 2009, we reported here concernining a case of first impression brought by the Ecological Rights Foundation ("ERF") in federal court in California.  In her decision, dated March 31, 2011, the Hon. Saundra Brown Armstrong, sitting in the United States District Court for the Northern District of California (Oakland Division), dismissed ERF's  environmental claims brought  against Pacific Gas & Electric (“PG&E”) and Pacific Bell Telephone (“Pacific Bell”).  The Ecological Rights Foundation alleged that the Defendants’ wooden utility and telephone poles were pressure treated with an oil-based pentachlorophenol preservative which was “oozing” to the surface and being washed off of the Poles, thereby contaminating San Francisco Bay and adjacent waterways.  As a result of the migration of this material over time from the Poles into the soils, ERF alleged that “dioxin-like” compounds were released into the environment placing surrounding homeowners, commercial fisherman and the general public at significant risk.  As a practical matter, if ERF had prevailed, PG&E and Pacific Bell may have had to replace tens of thousands of Poles throughout California. 

In dismissing the case, which was brought pursuant to the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”), the Court examined the required showings under each statute.  The CWA distinguishes between point and nonpoint sources.  A point source is defined in the statute as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  All other sources of pollution are characterized as “nonpoint sources.”  To succeed, ERF had to demonstrate that the Defendants’ discharges were point source discharges. 

In dismissing the CWA claim, the Court held that “point and nonpoint sources are not distinguished by the kind of pollution they create or by activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance.”

The key issue in the analysis of ERF’s RCRA claim was whether the chemical preservatives used on the Poles qualified as a “solid waste” within the meaning of RCRA.  The term “solid waste” is statutorily defined as “discarded material.”  Although not defined by statute, EPA regulations specify that “discarded material” includes any material that is “abandoned.”  ERF alleged that solid waste was disposed of into the environment when the chemical preservative leaked, spilled or dripped from the Poles due to rain, and when dust impregnated with the chemical is blown into the air during dry seasons.  In dismissing the RCRA claim, the Court held that the “flaw in plaintiff’s theory of disposal is that in this case, there is no allegation that Defendants engaged in any conduct that resulted in the discharge of the chemical preservative. To the contrary, Plaintiff merely alleges that the purported contamination is the result of natural forces – mainly, rain and wind… Such allegations, on their face, are insufficient to establish that Defendants engaged in the ‘disposal’ of hazardous waste under § 6972(a)(1)(B).”  The Court rejected Plaintiff’s theory that the “passive” spilling or leaking of materials from a place of containment into the environment constitutes “disposal” of solid waste.  In so holding, the Court distinguished prior cases that found that leakage fromgasoline USTs may be actionable under RCRA.  The UST holdings are only applicable to situations where the discharge of hazardous waste leaked or spilled from a container intended to hold the waste.  In contrast, the Court found that “the Poles are not containers; but rather, they were used to suspend wires for the transmission of electricity for PG&E and data for Pacific Bell.”  Thus, liability under RCRA ¶ 7002 did not attach based on the “discharge” of chemical preservatives from the Poles attributable to natural forces, such as rain and wind.

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 California 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.

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.

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.

Innis Arden Country Club is a well-run country club located on beautiful acreage in Old Greenwich, CT. that has operated for over 100 years. Close friends of mine are members--the food is good, the golfers congenial, and laughing children run barefoot across the pool deck in good weather.  Club members had been stunned to learn in 2004 that PCB contamination had been discovered on the golf course property, not far from where an industrial company, Pitney Bowes, had once conducted operations on an adjacent parcel in Stamford.  The country club's environmental consultants determined that Pitney Bowes was the source of the contamination, which Pitney Bowes denied, and that PCBs from the Pitney Bowes property had migrated by way of storm water and surface water runoff to Innis Arden.  What no one could dispute was that the country club had not placed the PCBs on the golf course--it was what CERCLA characterizes as an "innocent landowner". On June 26, 2009, the federal district court in Connecticut dismissed Innis Arden's complaint prior to trial and affirmed a prior sanctions award against the country club. Innis Arden Golf Club v. Pitney Bowes, Inc. et al. Case No. 3:06 cv 1352 (JBA), 2009 U.S. Dist. LEXIS 54135.  Something had gone terribly wrong!  But what?

Pitney Bowes retained Hunton and Williams, a law firm with a strong reputation in environmental litigation to defend the case.  In a July 2009 Client Alert, the law firm attributed Innis Arden's dismissal to its consultant having destroyed the key evidence that allegedly linked the PCB's at the country club to their client.  Without being able to perform tests on the actual soil samples the consultant had taken, Pitney Bowes would be unable to refute the consultant's claim that the PCB's on the golf course were identical to PCB's identified on the Pitney Bowes' site, it alleged.  As the Alert points out, the Court's spoliation ruling is a strong reminder of the obligations of parties and their experts to impose a litigation hold and to ensure that tangible evidence, such as as a soil sample taken to the lab for testing, is preserved.  Central to the court's ruling was that the soil sampling in question had been undertaken in preparation for litigation.  As the Magistrate Judge had earlier ruled "......counsel was actively involved in the investigation and analysis of the samples in preparation for legal action......"  Sanctions were awarded even though the Court concluded that Innis Arden had not intended to destroy evidence or to disadvantage Pitney Bowes.  In the Bow Tie Law Blog, the author opines that Innis Arden's "toxic mess" was created in part by deposition testimony that made it clear to the Court that plaintiff had taken no steps to prevent the destruction of electronic and tangible evidence as early as 2005, by which time it was clear that plaintiff recognized the importance of that evidence in its future litigation. 

By the time  the spoliation sanctions issue came before Judge Atherton on a motion for reconsideration, Innis Arden was in even deeper trouble.  The Magistrate Judge had also awarded sanctions against Innis Arden for discovery abuses--the most egregious that the Magistrate Judge had seen during over twenty years on the federal bench.  Worse, Judge Atherton concluded after hearing Daubert motions that Innis Arden's trial experts were not sufficiently reliable to be permitted to testify at trial.  On the basis of that ruling, she granted summary judgment to the defendants and dismissed the plaintiff's complaint.  At the end of the day, the Court did not have to reconsider the Magistrate Judge's spoliation ruling because the issue was now moot!  Still the "innocent landowner", Innis Arden's complaint has been dismissed and may yet have to pay the defendants' sanctions for discovery abuses.   

My hometown newspaper Greenwich Time, reported in a front page headline on March 25, 2009 "Mold found again at Ham Ave."  The Hamilton Avenue Elementary School in Greenwich was closed in 2005 largely due to the perception that mold made the school unsafe for students and faculty.  For the past three years, the youngsters attended classes in temporary modular classrooms, which ironically also suffered from mold problems, while awaiting completion of the oft-delayed reconstruction of the school, the Greenwich Time reported.   It was discovered last week at the newly re-opened school that a 2-to-3-square-foot patch of mold was discovered due to a leaky interior pipe that hadn't been properly sealed during construction. It is not surprising that the school's industrial hygienist, Hygenix, found "exceptionally low" levels of mold after sampling. What is surprising is that the decision was made to perform sampling at all considering that the source of the water infiltration was addressed and the mold removed.  Sampling is often not necessary and sampling results are frequently misinterpreted to suggest a health hazard where none exists.  In its guidance for "Mold Remediation in Schools and Contaminated Buildings", the USEPA cautions that there a number of pitfalls associated with mold sampling which at best only provides a "snapshot" of conditions as they exist at a given time.  To suggest, as the school's consultant did, however, that any "residual microbial hazards" had been eliminated is an unfortunate choice of words because it is probably the case that no hazard ever existed in the first place.  Ron Gots, a toxicologist based in Rockville, Maryland, who has written extensively about public misinformation about mold describes how medical statements by mold testers may result in unintended consequences in the event of a claim.  For example, the statement in a hygienist's report that "This mold is known to produce toxins which can cause a variety of adverse health effects including......"  is not only irrelevant, but begs the question whether:(1) the mold is producing toxins in this instance?; (2) those toxins are getting to people?; and (3)  they are getting to people in sufficient quantity to cause harm?  As Dr. Gots points out, the issue is not what molds can do; the question is what they are likely or proven to do under these particular circumstances in this setting.  To avoid further fear and confusion about mold (and unnecessary costs) at the Hamilton Avenue school,  a more scientifically objective approach should be considered by the Town. 

Lost in the learned treatises written in the wake of the Rhode Island Supreme Court's decision in State of Rhode Island v. Lead Industries Association, Inc.  (July 1, 2008),  which properly held that manufacturers of lead pigment are not liable under a nuisance theory for the harm caused by the use of lead paint, is discussion of the significant loss of market capitalization and shareholder value to Sherwin Williams and other manufacturer defendants who have been defending these nuisance claims for the past several years.  Apparently, there is no mechanism in Rhode Island for a defendant to file an interlocutory appeal to challenge a trial court's denial of a defendant's motion to dismiss a complaint as a matter of law.  Had an interlocutory appeal been available to the lead pigment manufacturers, there is no doubt that the Rhode Island Supreme Court would have ended years ago the State Attorney General's misguided crusade to have the defendants pay billions of dollars to remediate lead contamination in an estimated 240,000 houses  and apartments, 12,969 seasonal housing units, 419 child care centers and 339 elementary schools.  Notions of basic fairness suggest that a defendant facing a potential liability of this magnitude should be able to obtain appellate review of the plaintiff's right to proceed before having to incur the cost and uncertainty of a court trial.  A defendant with less resources than the lead pigment manufacturers might have been forced into a premature settlement with the State or even sought bankruptcy protection prior to waiting out the lengthy appeals process.