Settlement Means No Determination of Take-Home, Punitive Damages Questions

By on October 15, 2015

A settlement reached after oral argument at the California Court of Appeal will likely leave unresolved two questions: (1) whether the consumer expectations test can impose liability on a manufacturer for “take-home” exposure, and (2) whether there should be liability, including punitive damages liability, for take-home exposure that occurred before any scientific studies indicating that take-home exposure was a potential health risk. Despite the proliferation of lawsuits alleging this fact pattern, no California appellate case has ever held that a product manufacturer owes a duty of care to household members of persons exposed to their products.

Grigg v. Owens-Illinois, Inc. involved a woman who allegedly contracted mesothelioma from being exposed to asbestos dust brought home the clothes of her husband, an Owens-Illinois insulation clothes, in the 1950s. “Take-home exposure” lawsuits are increasingly common in the world of asbestos litigation, as well as in cases alleging exposure to other allegedly harmful substances. The jury awarded Mrs. Grigg approximately $27 million, including $11 million in punitive damages against Owens-Illinois. The case presented the as yet unanswered question of the scope of a manufacturer’s duty to family members of persons who work with their products, in the context of the consumer expectations test for strict products liability.

At oral argument in September 2015, the panel appeared skeptical of the plaintiffs’ argument that there is no person who is outside the class of persons who could recover under a consumer expectations theory in a take-home exposure case. The court suggested that the plaintiffs’ argument was a rule of absolute liability because it “doesn’t matter” who the injured person is or what are the details of their relationship to the take-home vector. On the other hand, the court inquired of Owens-Illinois’ counsel why there should be a distinction between the well-established liability for injuries to bystanders to work with a manufacturer’s product and liability for injuries to persons exposed by take-home exposure.

The case also presented punitive damages issues. Owens-Illinois argued that (as all experts in the case agreed) no published medical literature indicated hazards to family members of insulation workers until years after Mrs. Grigg’s take-home exposure, and that studies which Plaintiffs argued reflected the required “actual knowledge” to support punitive damages were conducted to determine hazards to workers themselves, not to their family members. Plaintiffs countered that reports of testing conducted prior to Mrs. Grigg’s exposure indicated that asbestos dust from insulation was “hazardous” and that “every precaution” should be taken to avoid breathing that dust. The panel’s feelings about these arguments were less clear than about the ultimate liability issue, but the court did press plaintiffs’ counsel to confirm that these studies were the only evidence he believed supported the punitive damages award.

Ted Pelletier of the Kazan law firm argued for the plaintiffs, and Robert Riley of Schiff Hardin argued for Owens-Illinois.

The parties informed the court on October 6, 2015 that they settled the case. Even so, the court retains jurisdiction over the case and may issue an opinion. While that is unlikely, it will happen, if at all, within 90 days from the date of argument. If it does not, these issues will remain unresolved in California for the time being.

Filed under Asbestos, Consumer Expectations, Punitive Damages, Take-Home Exposure

Vulnerable no more: disaster preparedness now safer under Oregon law

By on July 13, 2015

As part of a larger package of earthquake preparedness measures, a new Oregon statute should be of interest to anyone who stores toxic substances. Oregon Senate Bill 775 provides:

Evidence of measures taken or vulnerability assessments conducted before a natural disaster occurs that were intended to minimize the impact of or plan for the natural disaster is not admissible to prove negligence or culpable conduct in connection with damage, harm, injury or death resulting from the natural disaster.

quakeyWhile not limited to the chemical industry, the bill is of particular interest to that industry. In an interview with Oregon public radio, the Chair of the Oregon Seismic Safety Commission explained that the bill was intended to encourage companies that store fuel or toxic chemicals to conduct vulnerability assessments with the assurance that the studies would not be later used against them in court to prove their negligence.

According to Oregon public radio, geologists estimate that there is a 37 percent chance of a large earthquake (8.0 or greater) along the Cascadia Subduction Zone within the next 50 years. So, it may be time to consider an updated vulnerability assessment – with less worry that acting to promote safety could backfire later and be used to establish tort liability.

Filed under Uncategorized Tagged with , , ,

Organic? Maybe. But is it kosher…?

By on May 21, 2015

5-21For those who prefer “organic” products, the Organic Foods Production Act of 1990 (“OFPA”) and the subsequent regulations set forth in the National Organic Program (“NOP”) govern the use of this term and provide a degree of assurance to consumers that foods and cosmetics labeled as such are indeed composed of organic ingredients. The bottom line is that these regulations require products to be certified by an accredited certifying agency and contain no more that 5% in weight of non-organic ingredients. That 5%, however, must be composed solely from ingredients included in the NOP’s National List of acceptable non-organic products, such as vitamins and minerals. What happens when these “organic” products contain ingredients that are not on the National List? We question how any rational consumer could feel aggrieved merely because a de minimis quantity of non-organic ingredients slipped into a product. Nevertheless, aggrieved consumers, or their lawyers, seeking to challenge a particular certification as misleading or deceptive may look to state law to intervene. This is exactly what occurred in Segedie v. The Hain Celestial Group, Inc., 2015 U.S. Dist. LEXIS 60739 (S.D.N.Y. 2015).

The Segedie plaintiffs claimed that some of defendant’s products, certified and labeled “organic.” were deceptive and misleading under California and New York consumer protection laws to the extent they contained ingredients which were neither organic nor approved on the National List. The defendant sought dismissal of the action under the theory that the federal statutes preempted any state law claims. Specifically, the defendant relied heavily on In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781 (8th Cir. 2010), which held that the OFPA impliedly preempted any consumer protection claims founded under state law. Plaintiff countered by citing numerous decisions, including one case involving the defendant (Brown v. Hain Celestial Grp., Inc., 2012 WL 3138013, at *9 (N.D. Cal. 2012)) that held the OFPA did not preempt state law claims. The Hon. Nelson S. Roman (S.D.N.Y.) found the defendant’s argument unpersuasive and concluded that allowing the claim to proceed would not pose a sufficiently “sharp” conflict with federal law to necessitate preemption, in part because e OFPA does not provide an avenue of recourse for aggrieved consumers.

The district court, in arriving at its conclusion, declined to follow Aurora, which was “the first and only circuit court to have addressed the preemptive scope of the OFPA in relation to state consumer protection claims.” Segedie, supra at 9-10. The court noted that, under Second Circuit precedent, obstacle preemption, or preemption based on conflicting laws, precludes state-law based claims only if those laws create an “actual conflict” with the federal law’s objectives. Here, no such conflict existed. The court drew further support from the Supreme Court case Wyeth v. Levine, 555 U.S. 555, 565 (2009). Wyeth involved a failure-to-warn claim alleging that a drug’s label was inadequately labeled, despite the fact that it had been approved by the FDA. Wyeth rejected the idea that allowing the lawsuit to proceed would present an obstacle to federal objectives, and instead found the state-law based action to be appropriate because federal law did not provide a remedy for harmed consumers.

On the other hand, if Segedie had been brought in a California state court, the result may have been more favorable for Hain Celestial.  In Quesada v. Herb Thyme Farms, Inc., 166 Cal. Rptr. 3d 346, 349 (Cal. App. 2d Dist. 2013), the California Court of Appeal held that federal law did indeed impliedly preempt state law. The lasting effects of this ruling are yet to be determined, because the California Supreme Court granted review, and accordingly Quesada may not be cited in California courts..

The trend in plaintiff-friendly decisions may be a siren’s call to the plaintiff bar. But how can manufacturers avoid state law deceptive trade practices and false advertising claims? Indeed, aside from the five-year old ruling in Aurora, which has been crushed under the weight of contrary decisions, and the recent decision in Quesada, which is now subject to review by the California Supreme Court, there may be little hope for manufacturers who are now unable to escape the threat of nuisance litigation on preemption grounds.  More than ever before, manufacturers are facing claims alleging misleading and deceptive practices.

The recent turbulence leaves manufacturers with a valuable lesson. The fact that courts now routinely decline Rule 12(b)(6) motions on preemption grounds may not in and of itself be detrimental to manufacturers; it merely allows litigation to proceed. It is crucial to bear in mind that in Segedie, the defendant was, as the court stressed, certainly not in compliance with the OFPA and NOP regulations because its products contained non-organic ingredients. Manufacturers seeking to avoid litigation should take every measure to ensure that their products are labeled in accordance with the regulations.

Filed under National Organic Program, Organic Foods Production Act, Preemption

Forty Million Reasons to Read Attachments, Not Just Court Email Notices

By on April 21, 2015

ECF NoticeThe failure of a single lawyer to read a court order on the ECF docket can result in tragedy. However, when eighteen lawyers are emailed an ECF notification from the court and no one reads the attached documents, it becomes a tragicomedy.

In a recent high-profile case in the Western District of Texas, Two-Way Media won a $40 million infringement suit against AT&T. However, things went from bad to worse for the telecom giant when its attorneys — all 18 of them across two different firms — failed to timely file an appeal. It is a rough lesson for AT&T’s counsel but a valuable refresher for all attorneys: read every document received from the court; do not simply rely on the ECF clerk’s summary appended to the email.

Prior to the entry of final judgment in the infringement case, AT&T submitted four motions for renewed judgment as a matter of law (“JMOL”) or a new trial and moved to file three of the JMOL motions under seal. The district court granted the three sealing motions but, critically, denied all four JMOL motions, starting the clock on AT&T’s time to appeal. The court’s orders denying the lone non-sealed JMOL motion and granting the plaintiff’s request for costs were correctly docketed and included in the electronic case file notices (“ECF notices”) sent to both parties. However, the ECF notices referred only to the sealing motions, not the orders denying the sealed JMOL motions. Upon receipt of the mislabeled notices, AT&T’s counsel neglected to read the underlying orders — even though assistants at both firms downloaded and filed copies to internal networks. AT&T and its counsel remained unaware of the closing appeals window, only discovering their mistake long after the deadline had passed.

AT&T’s motion to extend or reopen the appeal period pursuant to Federal Rules of Appellate Procedure 4(a)(5) and (6) was denied by the district court, a decision affirmed last month by the U.S. Court of Appeals for the Federal Circuit. The appeals court agreed with the trial court’s conclusion “that it is the responsibility of every attorney to read the substance of each order received from the court and that it is not sufficient to rely on the email notifications received from the electronic filing system.” The court cited In re Morrow, 502 F.2d 520, 522 (5th Cir. 1974) (“Notification by the clerk is merely for the convenience of the litigants.”); Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1201 (5th Cir. 1993) (“[P]arties have a duty to inquire periodically into the status of their litigation.”); and Khor Chin Lim v. Courtcall Inc., 683 F.3d 378, 381 (7th Cir. 2012) (“The judiciary is not entitled to add time just because a litigant fails to open or read his mail”). Looking past the fact that AT&T hadn’t even “bothered to check the docket, as it should have done,” the properly docketed order granting costs “was a clear indication that all matters relevant to the question of whether [Two-Way Media] was a prevailing party had been resolved” and that the appeals clock had started.

Even the dissenting opinion failed to offer much in the way of comfort for AT&T’s mistake. Most of Circuit Judge Dyk’s dissent focused on his contention that the appeal clock began upon docketing of the correct entries, which occurred a mere three days after the incomplete ECF notices were sent out. As the majority pointed out, “AT&T’s appeal was untimely by a large margin,” and a quibble over three days is inconsequential.

The shift to electronic court notices has streamlined the process of providing litigants timely access to important documents and judicial notifications. But this case is a reminder that courts’ email notifications may not be accurate. Counsel should periodically check the docket for cases, and should ensure that someone in their office reads attachments to court emails. Unless counsel makes every effort to monitor the status of an active litigation, clients will suffer the consequences.

Filed under Appeal, ECF Notices

Plaintiffs’ Experts’ “Cherry-Picking” of Scientific Studies Not Permitted

By on March 17, 2015

On February 20, 2015, New Jersey Superior Court Judge Nelson C. Johnson issued a decision in the New Jersey Accutane Multicounty Litigation that, if not reversed on appeal, will likely result in the dismissal of several thousand cases pending against Hoffmann-LaRoche. The court granted the pharmaceutical company’s motion to bar plaintiffs’ experts’ testimony regarding Accutane, and its alleged propensity to cause Irritable Bowl Disease (“IBD”), including Crohn’s Disease (“CD”). The court made its determination after conducting an exhaustive analysis of the scientific literature and the testimony of both sides’ experts. The decision is noteworthy for the court’s painstaking assessment of the body of scientific literature on medical causation. Defendant’s counsel clearly did a superb job in educating Judge Johnson on the science.

ETT BLOG_cherriesAccutane was approved by the Food and Drug Administration in 1982 to treat a severe form of acne, which can cause disfigurement on the face and back of those affected. Crohn’s Disease is a serious chronic inflammation of the gastrointestinal tract that can cause gastrointestinal bleeding, among other symptoms, and carries an increased risk of cancer. Most scientific literature has concluded that the cause of CD and IBD remains unknown.

To establish a causal connection between Accutane and IBD and CD, plaintiffs presented the court with two expert witnesses, Arthur A. Kornbluth, M.D., and David Madigan, Ph. D, both of whom are accomplished leaders in their professions, with highly impressive credentials. Dr. Kornbluth is a Clinical Professor of Medicine at the Icahn School of Medicine at Mount Sinai University. He specializes in gastroenterology and has published over one hundred peer-reviewed articles, abstracts and textbook chapters. Dr. Madigan is a Professor of Statistics at Columbia University and Executive Vice President of Arts & Sciences and Dean of Faculty. He has published over one hundred-fifty technical papers and served as an investigator for monitoring the safety of FDA-regulated medical products.

To rebut the plaintiffs’ experts, defendants relied upon the testimony of two experts, Steven N. Goodman, M.D., M.H.S. Ph. D, and Maria Oliva-Hempker, M.D, who are also exceptionally learned and accomplished professionals. Dr. Goodman practices in the field of epidemiology. He is a Professor and Associate Dean for Clinical Research at Stanford University and has received numerous awards in his area of expertise. Dr. Oliva-Hempker is a Professor of IBD and Chief of Division of Pediatric Gastroenterology & Nutrition at the Johns Hopkins University School of Medicine. She has been published in over seventy treatises and medical texts and maintains a substantial presence in educating the public on IBD. Thus, from the standpoint of professional credentials, the two sides were well-represented and seemingly evenly matched.

Of particular significance to the court in making its analysis was The Reference Manual on Scientific Evidence (3d Ed.), issued by the Federal Judicial Center. The state court looked to the Reference Manual for guidance on the reasonableness standards of the scientific community and its evaluation of the epidemiological studies. The use of federal guidance by a New Jersey state court is noteworthy.

In determining that plaintiffs’ experts’ was unreliable Judge Johnson criticized plaintiffs’ experts for “cherry-picking the evidence.”  “The examination of the ‘lines of evidence’ by Plaintiffs’ experts was highly selective, looking no further than they wanted to — cherry-picking the evidence — in order to find support for their conclusion-driven testimony in support of a hypothesis made of disparate pieces, all at the bottom of the medical evidence history.”

The court also caught Dr. Kornbluth taking a position in a published article that was the opposite of what he argued in court. During the pre-publication peer review process, Dr. Kornbluth refused to associate Isotretinoin as a cause of IBD, although in court he had no reservations arguing that Isotretinoin caused IBD. In order to define the prodromal period of CD, plaintiffs’ relied on a single study with only 76 subjects and ignored studies with much larger patient groups. The court found that, “the unsound nature of plaintiffs’ methodology in relying upon such a study becomes readily apparent when compared with the population studies, involving hundreds of thousands of subjects presented to the court. Plaintiffs’ rationalization for ignoring the other studies is assertedly their failure to account for a lengthy prodrome of CD. Yet here again, plaintiffs’ experts engage in their finely-tuned selectivity of the evidence by disregarding eight of nine prodromal studies.” The court found further that plaintiffs’ experts demonstrated the talent of “the self-validating expert, who uses scientific terminology to present unsubstantiated personal beliefs.”

In one instance, plaintiffs’ experts interpreted the results of a study they relied on contrary to the authors’ own stated conclusions. The study’s authors concluded that the risk for IBD following Isotretinoin exposure had no statistical significance, but the experts argued to the contrary. The court commented, “It is one thing to stand alone in the world of science, advancing a hypothesis that others do not accept. It is quite another thing to advance a hypothesis that can only be supported by disregarding valid scientific research.” Even more ineffective was the plaintiffs’ reliance on a second study with a particularly small patient population to define the prodromal period of CD. The court asked rhetorically, “with regard to these two studies, one wonders whether Dr. Kornbluth or Dr. Medigan would cite them as meaningful any place but a courtroom.”  The court found it unlikely that Dr. Kornbluth or Dr. Medigan, who took such pride in their professional accomplishments, would rely on these studies as defining treatises. Excoriating plaintiffs’ counsel and their experts, the court stated that, “the reliance upon these two studies is fatal and reveals the lengths to which legal counsel and their experts are willing to contort the facts and torture the logic associated with plaintiffs’ hypothesis.”

Several observations that may be of use in other cases.

Adverse Event Reports. It is noteworthy that the court did not credit plaintiffs’ reliance on Adverse Event Reports.  Plaintiffs frequently made reference to these anecdotal reports filed with the FDA. But the FDA itself notes that there is no certainty that the reported circumstance are actually attributable to the drug the patient was taking. Causal assessments are difficult to make because these reports are, according to a scholarly text cited by the court, “usually based on suspicion, and may be preliminary, ambiguous, doubtful or wrong.” Moreover, there is concern of potential abuse of these reports, especially by attorneys. “The legal profession is a bulwark of our society, yet the courts should never underestimate the resourcefulness of some attorneys.” Out of 2,214 cases of IBD resulting from Isotretinoin, attorneys reported 87.8% cases, as compared to 6% by physicians and 5.1% by consumers.

Animal Studies. The court also criticized plaintiffs’ reliance on animal studies. Again, referencing the Reference Manual, the court concluded that animal studies have two major disadvantages. The first is the obvious variation in responses among different species of animals. “The second difficulty with inferring human causation from animal studies is that the high dose customarily used in animal studies requires consideration of the dose-response relationship and whether a threshold no-effect does exist.” The problem with the dog study in this case was that even though dogs are mammals, the dogs in the experiment were euthanized after testing, so there was no evidence of whether the dogs’ intestines suffered any permanent harm. Equally important, dogs do not suffer from IBD.

The Reference Manual on Scientific Evidence (3d. Ed.) should never be overlooked by the practitioner preparing a Daubert motion. As evidenced by this case, the Reference Manual has persuasive power in both state and federal courts.

It is defense counsel’s job to teach the science to the presiding judge. Considering the case load of most judges, this is not an easy task. In this case, Hoffmann-LaRoche was fortunate to have a judge willing to make this herculean effort.

Image courtesy of Flickr by Audrey

Filed under Adverse Event Reports, Animal Studies, Daubert, Expert Witness

Is Sky The Limit In New York City Asbestos Litigation?

By on March 11, 2015

In the New York County Asbestos Litigation (“NYCAL”), the value of remittitur is steadily decreasing because courts are willing to accept higher and higher awards.  Although awards in comparable cases are not binding, appellate courts recognize that they offer precedent as to whether an award deviates from reasonable compensation.

Remittitur allows a court to set aside a jury award as excessive if it deviates materially from what would be reasonable compensation. Because personal injury awards, especially for pain and suffering, are subjective opinions which are formulated by the jury without the availability of guidance or precise mathematical quantification, reviewing courts seek guidance from comparable cases in deciding if an award deviates from fair and reasonable compensation.

In Konstantin v. 630 Third Avenue Associates, an award for pain and suffering was reduced by the trial court to $4.5 million for 33 months of pain and suffering and $3.5 million for an estimated 18 months of future pain and suffering. Similarly, in Dummit, the court sustained an award of $5.5 million for 27 months of past pain and suffering and $2.5 million for an estimated 6 months of future pain and suffering. On appeal, the Appellate Division, First Department, (July 3, 2014), upheld both the Konstantin and Dummit post-remittitur awards, in a much anticipated decision. On a similar scale, in Estate of Peraica (March 2013), after a jury awarded damages to a 63 year-old deceased mesothelioma plaintiff, the trial court reduced a $35 million jury verdict to $18 million for two years of pain and suffering.

In NYCAL (Assenzio v. A.O. Smith), Index No. 190008/12 (Sup. Ct., NY Co. February 5, 2015), the Hon. Joan Madden continued the judicial policy of remittitur inflation by pushing upward the accepted “per month” value of a pain and suffering award on remittitur. Judge Madden urged the parties to stipulate to an award that included for multiple plaintiffs $5.5 million for 20 months of past pain and suffering and $3.2 million for 6 months of future pain and suffering; $4 million for 18 months of past pain and suffering and $3.5 million for an estimated 24 months of future pain and suffering; $4.5 million for 30 to 36 months of past pain and suffering and an estimated $3 million for 18 months of future pain and suffering; and $5 million for 18 months of pain and suffering. The facts of each plaintiff’s course of treatment and disease purportedly warranted the court applying varying pain and suffering calculations.

There remains some hope for defendants to win significant remittiturs.  The Matter of New York Asbestos Litig. v. John Crane, Inc., 28 A.D.3d 255 (N.Y. App. Div. 1st Dept. 2006) involved two plaintiffs: One was awarded $7 million for past pain and suffering and $7 million for future pain and suffering, while the other (a decedent’s estate) was awarded $8 million for past pain and suffering.  Defendant appealed the decision, and the trial judge, the Hon. Paula J. Omansky, vacated the awards, suggesting the plaintiffs stipulate a reduction of their awards to $3 million for past pain and suffering and $1.5 million for future pain and suffering for the living plaintiff.  This decision underscores the view that asbestos related verdicts can result in significant remittitur, although it is not clear from a review of the case law how or why a favorable result may be achieved in any particular case.

Nevertheless, seeking a verdict reduction in some NYCAL courts may seem like a futile exercise.  The Matter of New York City Asbestos Litig. Alfred D’Ulisse v. Amchen Products, Inc., 842 N.Y.S.2d 333 (Sup. Ct. N.Y. Cty. 2007) reminds us of how large post-verdict awards can be.  Plaintiff D’Ulisse was awarded $10,000,000 for past pain and suffering and $10 million for future pain and suffering.  As if those awards were insufficient, the Hon. Louis B. York further awarded D’Ulisse’s wife $5 million for loss of her husband’s services and society.  The judge held that the $25 million award did not “shock the conscience” of the court.  Although there is no disagreement that this plaintiff suffered a gruesome degree of suffering, an award this gargantuan is certainly subject to debate and undoubtedly shocks the conscience of many.

On the other hand, in a similar battlefield just outside the purview of NYCAL, the Second Department has at least on occasion considered inflated jury verdicts unreasonable.  In Aguirre v. Long Island Railroad Co., 847 N.Y.S.2d 895 (Sup. Ct. 2nd Dept. 2007), a Brooklyn jury awarded three plaintiffs $2 million, $3 million and $4 million, respectively, for past pain and suffering, and the same amounts for future pain and suffering.  Defendant LIRR moved for a new trial on damages, or at the very least the grant of a remittitur.  Although declining the latter option, the Hon. Lawrence S. Knipel granted a new trial for damages, deeming the awards to have “materially deviate[d] from what would be reasonable compensation.”  The judge did, however, give plaintiffs the option to reduce the award on their own accord by a total of $300,000 each.  Nevertheless, this evidences the understanding, at least by some members of the bench, that asbestos awards can at times be inexplicably exaggerated.

Although there can be no question that mesothelioma plaintiffs endure horrendous pain and suffering, it is nonetheless difficult to justify how reviewing courts can assign pain and suffering valuations on remittitur that so greatly exceed the valuations assigned to similar cases only a few short years ago. It may appear to corporate defendants, particularly those with marginal liability, that NYCAL penalizes defendants that go to trial rather than give in to extortionate settlement demands.  It is more or less impossible for corporate defendants to create a reliable matrix of potential exposure based upon “per month pain and suffering” because the post-trial valuation of pain and suffering continues to go up and up, seemingly without rhyme or reason.  It is therefore all the more challenging for an in-house counsel or an insurance claims examiner to provide management an accurate forecast of liability exposure.  The recent decision to permit punitive damages in NYCAL only further complicates the exposure calculus.

Filed under Asbestos, Damages, New York, Remittitur

Challenging Causation in Toxic Tort Cases: The Dose-Response Theory – A Threshold Issue

By and on November 3, 2014
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The dose-response theory requires a toxic tort plaintiff to establish “scientific knowledge of the harmful level of exposure to a chemical plus knowledge that the plaintiff was exposed to such quantities” to meet his or her threshold burden of proof.  McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1241 (11th Cir. 2005) (citing Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).  See also Mitchell v. Gencorp, 165 F.3d 778, 781 (10th Cir. 1999) (quoting Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir. 1996)).  If a plaintiff does not present expert testimony sufficient to sustain this burden, the plaintiff’s case is vulnerable to attack via a motion in limine, motion for summary adjudication or even an appeal from an adverse verdict.  Accordingly, defense counsel should assess, as early as possible, the suitability of expert testimony offered to support the plaintiff’s case.

On a basic level, the dose-response relationship is “[a] relationship in which a change in amount, intensity, or duration of exposure to an agent is associated with a change – either an increase or decrease – in risk of disease.”  McClain, 401 F.3d at 1241-1242.  Any expert “who avoids or neglects this principle of toxic torts without justification casts suspicion on the reliability of his methodology.”  Id., 401 F.3d at 1242.  Accordingly, that expert’s methodology is susceptible to a Daubert challenge.  See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993).

For instance, in McClain, the U.S. Court of Appeals for the Eleventh Circuit reversed a jury verdict in a products liability action against Metabolife International, Inc. where it found that the trial court erroneously admitted expert testimony purporting to establish causation between the herbal weight-loss supplement at issue and the plaintiffs’ medical conditions.  McClain, 401 F.3d at 1236.  While the plaintiffs offered testimony regarding the amount of the supplement ingested, their expert could not provide any opinions about “the general dose-response levels for Metabolife’s toxicity, i.e., the dose or level of exposure at which it causes harm.”  McClain, 401 F.3d at 1241.  Even though an expert need not provide precise numbers to substantiate the dose-response relationship, “the link between an expert’s opinions and the dose-response relationship is a key element of reliability in toxic tort cases.”  Id., 401 F.3d at 1241, Fn. 6.

The court’s analysis in McClain figures prominently in a recent products liability case in the Eleventh Circuit decided on September 11, 2014.  In Chapman v. The Procter & Gamble Distributing, LLC, 766 F.3d 1296 (11th Cir. 2014), the plaintiffs brought claims against several Procter & Gamble entities alleging that an ingredient in Fixodent, a denture adhesive, caused one of the plaintiffs to suffer from myelopathy, a neurological condition or spinal-cord disorder that affects the upper and lower extremities.  The plaintiffs’ claims did not survive summary judgment at the trial court level and the Eleventh Circuit affirmed that ruling on appeal.  Id.  The Chapman court discussed the importance of the dose-response theory as follows:

Recognizing all substances potentially can be toxic, the [trial] judge noted “ ‘the relationship between dose and effect (dose-response relationship) is the hallmark of basic toxicology,’ ” and “ ‘is the single most important factor to consider in evaluating whether an alleged exposure caused a specific adverse effect.’ ” In re Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1351-52 (quoting McClain, 401 F.3d at 1242). The judge noted, however, neither the Chapmans’ general-causation experts “nor the articles on which they rely determine how much Fixodent must be used for how long to increase the risk of a copper-deficiency, or for how long a copper-deficiency must persist before an individual is at an increased risk of developing a myelopathy.” Id. at 1352.

Without critical evidence regarding reliable methodologies for establishing causation, the plaintiffs’ claims were doomed.  Chapman, 766 F.3d 1296.

The McClain analysis of the dose-response theory is influential in the Eleventh Circuit and beyond, having also been cited by U.S. District Courts in the Second, Third, Sixth, Eighth, Ninth, and D.C. Circuits and the Federal Claims Court.  See Second Circuit – Deutsch v. Novartis Pharms. Corp., 768 F. Supp. 2d 420 (E.D.N.Y. 2011), Colon v. Abbott Labs., 397 F. Supp. 2d 405; Third Circuit – Patrick v. FirstEnergy Generation Corp., 2014 U.S. Dist. LEXIS 43036 (W.D. Pa. Mar. 31, 2014); Sixth Circuit – Rose v. Matrixx Initiatives, Inc., 2008 U.S. Dist. LEXIS 110116 (W.D. Tenn. Dec. 9, 2008), Adams v. Cooper Indus., 2007 U.S. Dist. LEXIS 55131 (E.D. Ky. July 30, 2007); Eighth Circuit – Beylin v. Wyeth (In re Prempro Prods. Liab. Litig.), 738 F. Supp. 2d 887, CCH Prod. Liab. Rep. P18490 (E.D. Ark. 2010), In re Baycol Prods. Litig., 532 F. Supp. 2d 1029 (D. Minn. 2007); Ninth Circuit – Monroe v. Zimmer US Inc., 766 F. Supp. 2d 1012 (E.D. Cal. 2011), Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 78 Fed. R. Evid. Serv. (CBC) 857 (E.D. Wash. 2009), Lusch v. Matrixx Initiatives, Inc., 2007 U.S. Dist. LEXIS 72068, 74 Fed. R. Evid. Serv. (CBC) 880 (D. Or. Sept. 25, 2007), O’Hanlon v. Matrixx Initiatives, 2007 U.S. Dist. LEXIS 65655 (C.D. Cal. Jan. 3, 2007); D.C. Circuit – Arias v. DynCorp, 928 F. Supp. 2d 10 (D.D.C. 2013); Federal Claims Court – Graves v. Sec’y of HHS, 2010 U.S. Claims LEXIS 1037 (Fed. Cl. Sept. 21, 2010).  But see In re Zicam Cold Remedy Mktg., Sales Practices & Prods. Liab. Litig., 2011 U.S. Dist. LEXIS 79244 (D. Ariz. July 15, 2011) (criticizing the McClain court’s application of the “toxic dose” requirement in environmental exposure litigation in the context of a drug products liability action).

Challenging the reliability of an expert’s methodology where the dose-response relationship has been neglected can streamline the issues at trial in a toxic tort case and, in some instances, may obviate the need for trial.  Accordingly, an examination of the dose-response theory should be an early and recurring priority.

Filed under Dose, Dose-Response, Expert Witness

The Challenge of Addressing Environmental Stigma Claims

By on September 23, 2014
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The often uncertain nature of environmental stigma claims has resulted in diverse and often confusing jurisprudence. Stigma damage claims seek recovery of damages to the reputation of the realty.  Stigma damages represent the market’s perception of the decrease in property value caused by an injury to the property.

In the typical diminution of property value claim, the general rule is that a property owner may seek recovery of diminution of property value or the cost of remediation, but not both.  However, in certain circumstances, claimants contend, there is an “additional” diminution of value due to a public health concern about the subject property or contamination on adjacent property for which recovery is sought.  This is the subset of diminution of property value claims where claimants argue that damages should be awarded on account of stigma.

ETT BLOG_stigmaStigma claims raise conundrums for the courts.  On the one hand, courts desire to make a distressed plaintiff whole.  On the other hand, courts want to award only those damages that are proven with reasonable certainty.  Industry groups argue that stigma damages should not be permitted because they subject industry to the whim of any landowner able to obtain speculative testimony about the future economic impact of a temporary condition – even a condition that  a regulatory agency considers satisfactorily addressed.  These arguments take on even greater poignancy where the claimant’s property has not been physically impacted and the purported stigma is claimed to derive from mere proximity to a contaminated parcel.

On August 22, 2014, the Texas Supreme Court issued a thoughtful decision examining a number of these issues in Houston Unlimited, Inc.Metal Processing v. Mel Acres Ranch (No. 13-0084). The court performed a painstaking analysis of the opinions of the claimant’s diminution of property value expert, and rejected her methodology and conclusions across the board. As a result of finding the evidence supporting the property diminution claim insufficient, the court declined to take up the stigma issue.  Nevertheless, its discussion of stigma claim jurisprudence is noteworthy.

The Texas Supreme Court observed that American courts and commentators struggle with the issue of whether and when to allow recovery for stigma damages.  Most jurisdictions agree that plaintiffs must experience some physical injury to their property before they may recover stigma damages.  Although courts are divided on whether the injury must be shown to be permanent, defendants have expressed concern that a landowner should not be compensated when the loss is based primarily on public perceptions, which can change over time.

Equally problematic are cases in which the plaintiff’s property has not been contaminated or even threatened with contamination.  Some courts have awarded stigma damages to property owners who could demonstrate that their proximity to a landfill where hazardous wastes were dumped, for example, resulted in a loss of their home’s property value.  There is concern among commercial landowners that the possibility of property owners collecting damages in the absence of any direct physical impact to their homes could increase the number of claimants in mass tort property damage suits.

In reversing the Court of Appeals, the Texas Supreme Court observed that the struggle over whether to even allow recovery of stigma damages arises primarily from the conflicting goals of fully compensating the plaintiff for an injury while only awarding those damages that can be proven with a reasonable certainty.  The court observed that even when it is legally possible to recover stigma damages, it is often legally impossible to prove them.  This is because evidence based on conjecture, guess, or speculation is inadequate to prove stigma damages, not only as to the amount of the loss of value, but also as to the portion of the loss caused by the defendant’s conduct.

Based upon the rigor to which the high court subjected the claimant’s diminution of property value claims, Texas trial courts now are on notice that any diminution of property value, whether or not stigma is alleged, must be supported by strong evidentiary proof and reliable expert testimony.

Filed under Diminution of Property Value, Environmental Stigma, Texas Supreme Court

$2.8 Million Mesothelioma Verdict Reversed in Part Due to Dr. Barry Castleman’s Prejudicial Trial Testimony

By on August 27, 2014

On July 24, 2014, the Supreme Court of Delaware reversed and remanded a $2.8 million jury verdict in a mesothelioma case because the plaintiff’s expert, Dr. Barry Castleman, called the defendant a liar and accused it of bribery in front of the jury.

The plaintiff alleged that defendant R.T. Vanderbilt Company, Inc. sold industrial talc to the decedent’s employer, Borg Warner, and that the decedent was exposed to asbestos contained in the talc during the manufacture of ceramic bathroom fixtures.

At trial, Vanderbilt denied that the talc contained actual asbestos (as opposed to asbestiform minerals) or that it caused mesothelioma.  Vanderbilt also argued that Borg Warner breached the standard of care because it failed to operate the facility in a safe manner for its employees.  During trial, three of the plaintiff’s witnesses made inflammatory and prejudicial statements against Vanderbilt.  On appeal the court found the statements made by Dr. Castleman egregious enough to order a new trial.

At trial, Dr. Castleman testified that Vanderbilt’s employees were “liars” and Vanderbilt had spent millions of dollars bribing public officials to obtain favorable reports and undermine government regulatory action. The trial court advised the jury to “disregard the statement about buying senators and governors,” but gave no curative instruction about Vanderbilt’s alleged dishonesty.  The court did express concern, however, whether “any amount of curative instructions would erase [the statements] from the minds of the jury.”

The Supreme Court reversed the jury’s verdict finding that 1) the trial court abused its discretion when it denied Vanderbilt’s motion for a new trial based on the inflammatory and prejudicial statements made by Dr. Castleman and 2) the trial court erred when it failed to instruct the jury on the duty of care of the decedent’s employer.  The court noted that Dr. Castleman’s comments went to the heart of the defense by impermissibly challenging Vanderbilt’s character, credibility and motivations. The court also found that the admonition to the jury to disregard the bribery statement was insufficient to mitigate the prejudice resulting from the testimony.  Finally, the court expressed concern that Dr. Castleman’s statements appeared to have been intentionally made on cross-examination, without regard to the questions asked.

This decision provides persuasive grounds to limit Dr. Castleman’s testimony at future trials and depositions.  Defense counsel should consider citing this decision in motions in limine to pre-empt experts’ potential inflammatory and prejudicial testimony. Defense counsel also should vigilantly object to improper conduct at trial and not hesitate to move for a new trial based on a witness’ prejudicial testimony and/or a trial court’s inadequate curative instructions to the jury.  Finally, defense counsel need to be diligent to ensure that the record is clear about which instructions were proposed and promptly object if any of those instructions are omitted during the jury’s charge.

Filed under Barry Castleman, Plaintiff’s Expert

Wisconsin Gubernatorial Candidate Supporting Repeal of Wisconsin’s Asbestos Bankruptcy Trust Transparency Act

By on August 19, 2014
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Wisconsin gubernatorial candidate Mary Burke has announced that, if she translates last week’s primary victory into a general election victory this fall, she will repeal Act 154, Wisconsin’s new asbestos bankruptcy trust transparency law. Burke supports the proposed Assembly bill to repeal Act 154, which was signed by Wisconsin Gov. Scott Walker in March 2014.  More than 100,000 Wisconsin veterans and various lobbyists opposed the enactment of Act 154, and apparently the fight is not yet over.

Act 154, which applies to lawsuits filed on or after March 29, 2014, requires asbestos plaintiffs to disclose all potential and pending asbestos trust claims via sworn statements, and sets guidelines for the substance and effects of the required disclosure.  The plaintiff’s sworn statement must include “the name, address, and contact information for the asbestos trust, the amount claimed by the plaintiff, the date that the plaintiff filed the claim, the disposition of the claim and whether there has been a request to defer, delay, suspend, or toll the claim against the asbestos trust.”

To enhance transparency, the Act allows this information to be used in court:  “Trust claims materials and trust governance documents are admissible in evidence.  No claims of privilege apply to trust claims materials or trust governance documents.”  The Act broadly defines “trust claims materials” as all documents and information relevant or related to a pending or potential claim against an asbestos trust. These materials include claims forms and supplementary materials, proofs of claim, affidavits, depositions and trial testimony, work history, and medical and health records.  The plaintiff is obligated to supplement the information and materials provided within 30 days after filing an additional claim or receiving additional information or documents related to any asbestos trust claim.

In addition, under the Act, the defendants may identify additional asbestos bankruptcy trusts that the defendants reasonably believe the plaintiff should file claims with, even if these trusts are not identified by the plaintiff.  Upon motion of the defendants with supporting documentation, the court may order the plaintiff to file claims against defense-identified asbestos trusts.

Further, the Act provides that trust documents may be used at trial “to support a jury finding that the plaintiff may have been exposed to products for which the trust was established to provide compensation and that such exposure may be a substantial factor in causing the plaintiff’s injury that is at issue in the action.”

The Act also governs trial verdicts and the plaintiff’s ability to collect damages.  For a verdict where the defendant is negligent, the plaintiff may not collect any amount of damages until after the plaintiff assigns to the defendant all rights and claims against asbestos trusts.

Wisconsin’s Act 154 is thus a model for increased transparency between the bankruptcy and civil systems.  That it faces possible repeal threatens that transparency, without providing any fairer compensation to injured workers.

To read more about asbestos bankruptcy trusts, see prior posts on this blog:

Filed under Asbestos Bankruptcy Trust, Wisconsin

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