GRSM Attorneys Publish Article Urging Alternative Exposure Defense

By and on August 16, 2021

In a recent article for Mealey’s Litigation Report, Dallas partner James Lowery and associate Ted Yarbrough explain why defense of asbestos and talcum powder cases requires exploring alternative exposures. The article focuses on why alternative exposure minimizes the potential liability of each defendant, and how the alternative exposure case needs to be developed at all stages of litigation – from plaintiff’s deposition (the real first day of trial) up through trial.

Mr. Lowery and Mr. Yarbrough argue it is essential that defendants show exposure to more serious types of asbestos found in the amphibole asbestos containing found in the products of the bankruptcy trusts – such as Johns Manville and Thermobestos – as well as exposure in the Navy, from smoking cigarettes, and in the average residential home. This article can be an invaluable guide in minimizing a defendant’s exposure in high risk asbestos and talcum powder cases.

Filed under Asbestos, exposure', Talc

Possibility That Product Contained Asbestos Not Enough to Create Triable Issue in California

By on December 20, 2019

Recently, in Berg v. Colgate, the Court of Appeal gave good news to manufacturers who dispute that their products contain asbestos. “It was not enough for plaintiffs to produce some evidence that [plaintiff] was exposed to a product that possibly contained asbestos.” Plaintiffs’ case against Colgate was dismissed when plaintiffs failed to provide sufficient evidence that plaintiff “was more likely than not exposed to asbestos contained in a product sold by Mennen.”

Colgate-Palmolive Company’s predecessor, the Mennen Company, manufactured a shave talc that plaintiff used from 1959 to 1962. Colgate adamantly disputes that the product contained asbestos. Further, Colgate argued plaintiff could not establish through reliable evidence that the talc plaintiff actually used contained asbestos.

Plaintiffs argued that all or virtually all of the Mennen talc that plaintiff used from 1959-1962 contained asbestos. First, plaintiffs put forth evidence that Mennen’s talc supply came from mines historically known (aka assumed) to be contaminated with asbestos. Next, they submitted a 1972 FDA test showing that Mennen talc contained 4% chrysotile asbestos and a 1976 test showing that Mennen talc manufactured in 1972 contained 2% tremolite asbestos. Last, plaintiffs’ expert tested Mennen talc samples which looked similar to the description of the cans plaintiff used. Plaintiffs’ expert alleged that the samples contained amphibole asbestos. From the combined evidence, plaintiffs’ expert opined to a reasonable degree of scientific certainty that the cans plaintiff used from 1959-1962 contained dangerous levels of asbestos.

The Court of Appeal was not convinced that a jury could conclude from plaintiffs’ evidence that it was more likely than not that the shave talc plaintiff used contained asbestos. Even assuming that some talc came from mines that contained some level of asbestos, plaintiffs “fail[ed] to a support a conclusion that all or most of the Mennen Shave Talc containers sold from 1959 to 1962 contained asbestos.” Notably, plaintiffs’ expert relied upon the FDA’s testing of cans that were manufactured at least 10 years after the time plaintiff used the product. What’s more, the testing plaintiffs’ expert personally conducted were on cans of an unknown origin date. Plaintiff’s testimony that the cans tested looked similar to the cans he used decades prior is insufficient.

Plaintiffs primarily relied on Lyons, where the court  found  “substantial evidence creating a triable issue as to whether Colgate’s Cashmere Bouquet talc contained asbestos that may be found to have been a substantial cause of plaintiff’s mesothelioma.”  The Court of Appeal disagreed, distinguishing Lyons on several grounds.  In Lyons, plaintiff used the product for over 20 years. Additionally, Colgate did not dispute that the product contained asbestos and there was no evidence of any other source of asbestos exposure. Taken together, this was enough evidence to “create more than an unsupported possibility” that the product exposed plaintiff to asbestos.

Here, unlike Lyons, plaintiffs’ expert was unable to explain rationally “or even commonsensically logical” how he determined Mennen cans sold during the applicable time contained asbestos. Unlike Lyons, plaintiffs allege additional exposure to asbestos from other products. A final, distinguishing factor was that plaintiff used Mennen shave talc for a short period of time, 1959-1962, and only between 4-6 cans during that period. “Thus, [plaintiff’s] eventual development of mesothelioma provides much weaker support for an inference that the shave talc he used contained asbestos.”

Ultimately, the Court of Appeal held that plaintiffs failed to carry their evidentiary burden. “At best, plaintiffs presented evidence that the shave talc [plaintiff] used exposed him to asbestos, but they failed to present evidence upon which a reasonable jury could conclude that any such exposure was more likely than not.” This case will provide helpful legal precedent to ensure that plaintiffs satisfy their evidentiary burden to demonstrate the product was more likely than not to contain asbestos.

If you are planning to disturb materials that might contain asbestos, hiring asbestos monitoring sydney services can help assess the airborne asbestos levels and ensure that proper safety measures are in place during any activities that could release asbestos fibers into the air.

Filed under Insufficient Talc Containing Evidence, Possible Asbestos Containing Product, Predecessor Liability, Talc, Talc Speculation, triable issue of fact

Gordon & Rees Trial Teams Win Two Defense Verdicts in One Week

By on August 7, 2019

In the span of a single week, Gordon Rees Scully Mansukhani  trial teams won  defense verdicts on behalf of clients Hennessy Industries, LLC in California and Colgate-Palmolive in Kentucky. These results demonstrate not only the skill and dedication of the firm’s  trial lawyers, but the tremendous depth of the firm’s  trial teams, enabling them to defend multiple clients in diverse jurisdictions, check in our homepage for more info.

Verdict # 1 – Hennessy Industries Wins Los Angeles Asbestos Trial

On July 29, Gordon & Rees attorneys Bob Rich and Rob Rodriguez won a complete defense verdict on behalf of Hennessy after a seven-week jury trial in Los Angeles Superior Court. Plaintiff Randolph Morton sought to hold Hennessy and Pneumo Abex liable for his stage IV lung cancer. There was no evidence of any smoking history. Mr. Morton alleged that his lung cancer was caused by his use of AMMCO’s brake grinder in the 1960s, primarily in high school auto shop class from 1962-65. During trial, Plaintiffs argued that in the 1960s most passenger vehicle brakes contained asbestos, and that the medical and scientific community was well aware of the hazards associated with grinding such brakes. They further argued that AMMCO was effectively put on notice of such hazards and at a minimum should have warned its customers of the dangers associated with asbestos. Plaintiffs, represented by Simona Farrise and Trey Jones, sought in excess of $5 million in economic and non-economic damages, plus punitive damages.

Hennessy’s trial team argued that AMMCO acted reasonably and prudently throughout the relevant time period. Hennessy also argued that Mr. Morton’s limited asbestos exposure from brakes was insufficient to increase his risk of developing lung cancer. The defense experts included Dr. Lucian Chirieac, Dr. Allan Feingold, Mary Finn, Ph.D (IH), and Dominik Alexander, Ph.D. (epidemiologist). Plaintiff’s experts included Dr. Brody, Charlie Ay, Dr. Barry Castleman, and pulmonologist Dr. Barry Horn.

The Santa Monica jury returned a defense verdict in favor of Hennessy and Pneumo Abex.

Verdict # 2 – Colgate Wins Kentucky’s First Cosmetic Talcum Powder Trial

On Friday, August 2, the Gordon & Rees trial team of Edward Slaughter, Quincy Jones, Mark Crapo, Andrea Holmgreen, and Maddie Wiarda received a complete defense verdict on behalf of client Colgate-Palmolive Company in the first cosmetic talcum powder trial in Kentucky. After a three-week trial in the Jefferson Circuit Court in Louisville, Kentucky, the jury returned a defense verdict for defendants Colgate-Palmolive Company and Johnson & Johnson after less than one hour of deliberation.

Plaintiff was represented by Joseph Satterley (Kazan, McClain, Satterley & Greenwood; Satterley & Kelley) and Paul Kelley (Satterley & Kelley—a local Kentucky firm). Plaintiff sued both Colgate-Palmolive Company and Johnson & Johnson claiming her mother’s death in 2016 was due to the inhalation of asbestos through her use of allegedly contaminated talcum powder. Plaintiff sought over $5 million in damages, not including punitive damages.

This is a significant victory, particularly considering the increase in talcum powder cases being filed against cosmetic talcum powder manufacturers and suppliers throughout the United States.

Filed under Asbestos, Talc

California Talc Decision Bars Predecessor Liability, and Denies Punitive Damages Absent Scientific Consensus

By on July 29, 2019

When a Los Angeles jury returned an eye-popping $416 million verdict for plaintiff in a closely-watched talcum powder ovarian cancer case in 2017, the world took notice. The trial court granted post-trial motions that dramatically changed the jury’s verdict. Recently, in Echeverria v. Johnson & Johnson, the Court of Appeal gave both sides a mixed result, with rulings that will apply to many other product liability cases.

Johnson & Johnson – Former Manufacturer – No Liability

J&J manufactured the product until 1967, when it spun off to subsidiary J&J Consumer Products (“JJCI”). The jury found J&J liable, awarding both compensatory and punitive damages. The trial court granted judgment notwithstanding the verdict (“JNOV”). The Court of Appeal affirmed, applying “the general rule that a manufacturer has no duty to warn of risks posed by another manufacturers product” (citing O’Neil and Taylor, a Gordon & Rees victory). The Echeverria court distinguished the California Supreme Court decision in Novartis, which found such a predecessor manufacturer liable, because that case “concerned continuing liability for a negligent failure to warn in labeling that occurred prior to a manufactured divesting itself of the rights to the” product.

The risk of ovarian cancer from talc use during the time that J&J manufactured the product was speculative. Because of that, J&J did not owe consumers a duty to warn. Later developments, including J&J’s active participation in industry groups to defend talc, did not create a duty to warn after the fact. The court ruled that J&J is not responsible for JJCI’s later products solely because of the parent-subsidiary relationship.

This part of the decision will aid defendants in future cases where the exposures pre-date certainty of the claimed risk. Manufacturers that spun off, or sold off, product lines should be heartened by the decision. The parent company will not be liable so long as the sub is not controlled by its parent.

The Actual Manufacturer, JJCI, Gets a Split Decision – But All Better than the Jury’s Verdict

The jury also found JJCI liable – awarding both compensatory and punitive damages. The trial court granted both JNOV and a new trial. The Court of Appeal reversed the JNOV but affirmed the new trial, essentially holding that while the evidence was sufficient to support the verdict and thus defeat JNOV, there was also enough defense evidence to justify the trial court’s discretionary grant of new trial.

Plaintiff’s Evidence Enough to Support Verdict

The Court of Appeal reasoned that the evidence showed as of 2007 (when decedent died) JJCI knew, as did the scientific and medical community, that there was a statistically significant association between genital talc use and ovarian cancer. While there has yet to be a scientific consensus that genital talc causes ovarian cancer, as needed to prove causation, it was sufficient to show a risk existed. Thus, JJCI had a duty to warn consumers of the risk. Ultimately, what was known between 1967 and 2007 was significant enough that JJCI failed to act reasonably. JJCI should have issued an appropriate warning.

The trial court found significant weaknesses in plaintiff’s causation evidence, particularly relating to the differential diagnosis and relative risk evidence. The defense argued plaintiff’s expert’s reliance improper because the results failed to stratify patients into well-defined risk groups. Further, the results were not classified by the type of tissue in which decedent’s cancer originated. The Court of Appeal found that these weaknesses were not fatal to the plaintiff’s case, but merely “affected the weight of the evidence.”

The defense argued plaintiff was required to rule out other potential causes of decedent’s ovarian cancer, such as unknown etiology, arguing since plaintiff’s expert ignored other causes, the opinion was speculative. The Court of Appeal did not find the opinion speculative since the expert “did not ignore idiopathy but instead determined there was in fact a known cause of the cancer.” The Court of Appeal also pointed to the failure of the defense to advance evidence of a specific alternative cause stating, “[t]he defendant did not identify any relevant evidence about other causes it claimed the expert overlooked.” Had the defense done so, then plaintiff’s expert would have had to rule it out. It is not enough to simply discredit plaintiff’s theory. Defense counsel should always advance their own narrative.

Defense Evidence Sufficient to Justify New Trial

The trial court granted JJCI’s request for a new trial, and the Court of Appeal affirmed, because the evidence supported a defense verdict. “[T]he trial court’s ruling granting JNOV to JJCI as to liability must be reversed because the trial court weighed the evidence and made credibility determinations when rejecting and evaluating aspects of [plaintiff’s expert] testimony. In ruling on the new trial motion, however, the court was permitted to assess the credibility of witnesses, weigh the evidence, and draw inferences from the evidence different from those the jury may have drawn.”

Perhaps the key evidence was that there is no consensus among the scientific and medical community that genital talc use causes ovarian cancer. “[N]o published studies, regulatory agencies, or scientific organizations have concluded talc-based inflammation causes ovarian cancer.” The FDA has not found there is “conclusive evidence of a causal association” between talc use and ovarian cancer. Even evidence from the National Cancer Institute in 2017 “concluded the weight of the evidence did not support an association between perineal talc use and ovarian cancer.”

“The causation evidence was in significant conflict,” and a “reasonable jury” could have found for the defense. For example, “the trial court found [one plaintiff expert] ‘cherry picked’ the studies without sufficient justification and the weight of the epidemiological evidence undermined her opinion. There was evidence to support this finding.” The “trial court also found there was no evidence of inflammation present in Echeverria’s tissue, rejecting [another plaintiff expert’s] testimony and inferences that could be drawn from it.”

No Punitive Damages Before Scientific Consensus Established

Critically, the Court of Appeal held there cannot be an award for punitive damages “when the evidence demonstrated it is not universally accepted in the scientific and medical community that talc is even a significant factor for ovarian cancer.” Lack of such consensus is common in cases involving many different products with ingredients alleged to be toxic.

Based on this reasoning, unless the scientific and medical community suddenly comes to a consensus that genital talc use causes ovarian cancer or the California Supreme Court grants the inevitable petition for review and reverses, it seems highly unlikely plaintiff can win punitive damages on retrial.

Filed under Causation, Predecessor Liability, Talc

Connecticut Superior Court Imposes Jurisdiction on Texas Defendant and Narrowly Interprets Daimler AG v. Bauman

By and on October 9, 2017

Since the United States Supreme Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014) defendants, especially those defending product liability claims, have increasingly pursued motions to dismiss on personal jurisdiction grounds. A Connecticut superior court recently denied such a motion and held that a Texas-based manufacturing company was subject to personal jurisdiction in Connecticut, even though the defendant’s sales into Connecticut were less than .01% of total company sales, and the defendant did not sell to plaintiff’s workplace until after he worked there. Daimler held that a specific jurisdiction is limited to where the defendant’s in-state activities are continuous and systematic, and give rise to the liabilities sued on, the Connecticut decision, suggests that at least one Connecticut superior court does not consider the Daimler as greatly limiting the reach of the state’s long-arm statute.

The Honorable Judge Barbara Bellis of the Connecticut Superior Court in the Judicial District of Fairfield at Bridgeport decided Rice v. American Talc Co., No. FBT CV-15-6053658-S (Sept. 7, 2017), applying Connecticut’s broad long-arm statute:

Every foreign corporation shall be subject to suit in this state, … on any cause of action arising as follows: … (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; …

Conn. Gen. Stat. § 33-929 (f)(3).

The plaintiff argued that the defendant Texas company was subject to the court’s jurisdiction under Conn. Gen. Stat. § 33-929 (f)(3) because plaintiff’s decedent was allegedly exposed to defendant’s asbestos-containing talc while working at an American Standard plant in Connecticut. Plaintiff further argued that the defendant had a reasonable expectation that its products would be used in the State of Connecticut. Defendant was a producer of talc, American Standard allegedly used that talc in the manufacturing process, and American Standard was one of the defendant’s customers. Additionally, plaintiff proffered that the defendant purposefully sought out the Connecticut market, and shipped products directly to consumers there.

Defendant, on the other hand, argued that the plaintiff’s decedent’s injuries could not have arisen out of any transaction by the defendant in Connecticut because the defendant did not acquire rights to mine allegedly asbestos-containing talc until three years after plaintiff’s decedent stopped working at the American Standard plant. Defendant manufacturer also argued that it did not have the minimum contacts in the forum state to justify jurisdiction because it never had offices, employees, or sales agents in Connecticut, had no sales to any company in the forum state after the 1970s and the few sales that it did have into Connecticut were less than .01% of its sales in any given year.

The court used a two-part test to consider the defendant’s challenge to personal jurisdiction via motion to dismiss. First, the court determined that the state’s long-arm statute authorizes jurisdiction over the defendant because the “arising… out of” language does not require a plaintiff’s cause of action and defendant’s contacts with the forum state to be causally connected. The court further agreed that a plaintiff does not need to show that the defendant solicited business in the state, only that the defendant could reasonably anticipate being sued by some person who had been solicited in Connecticut.

In Rice, the plaintiff submitted a deposition transcript stating that, when the defendant was selling products to a distributor, defendant also knew who the distributor’s customer was. Sales records established that the defendant sent a sample shipment of twenty bags of talc to Connecticut in November 1972, and sales invoices showed numerous shipments to Connecticut between 1969 and 1976. Based on this evidence, the court concluded that it was reasonably foreseeable that the defendant could be sued in Connecticut.

Under part two of the test, the court determined that whether the exercise of jurisdiction over the defendant under Connecticut’s long arm statute did not violate Constitutional principles of due process. Daimler held that a state could exercise personal jurisdiction over an out-of-state defendant if the defendant had minimum contacts with the forum state such that the suit does not offend the “traditional notions of fair play and substantial justice.” Rice found that “minimum contacts” was satisfied because the defendant shipped products to Connecticut (even if it was a small percentage of sales) and was aware of the ship-to-point when sending products to distributors. Moreover, the court reasoned that while the defendant shipped products to Connecticut after plaintiff’s decedent stopped working at the American Standard plant, the defendant shipped other products to Connecticut while the plaintiff’s decedent was allegedly exposed to defendant’s asbestos-containing products working as a painter.

Rice found that jurisdiction accorded with “fair play and substantial justice,” based on five factors: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of justice of the forum state in adjudicating the case; (3) the plaintiff’s interests in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.

Rice weighed factor (1) in favor of the defendant, stating that travel costs could be a burden because the defendant is incorporated in Texas and would have to defend a suit in Connecticut. According to the court, however, factors (2) through (5) all weighed in favor of the plaintiff. Connecticut has a strong interest in adjudicating personal injury actions involving its own citizens where the claimed injury was caused in part by a defendant who purposefully distributed products in the state. Furthermore, the plaintiff is a resident of the forum state and has an interest in obtaining convenient and effective relief in the state. The court decided that adjudicating in Connecticut would also be the most efficient use of judicial resources because the plaintiff has sued multiple defendants over a single and indivisible injury (mesothelioma). Requiring the plaintiff to maintain multiple actions in different jurisdictions would not only be inefficient, but impose a greater burden on the plaintiff than the burden of subjecting the defendant to suit in Connecticut.

The Rice decision displays that shipping products to Connecticut, even only a small fraction of a company’s sales, may be enough to reasonably foresee being sued in Connecticut. This can be enough to subject a foreign company to specific jurisdiction in Connecticut, even if the dates of sales do not overlap with the timing of the alleged injury. Additionally, solely being incorporated in a distant state and incurring travel costs during trial likely will not be sufficient to establish that the traditional notions of fair play and substantial justice have been violated.

As a trial court ruling, the Rice decision is not binding precedent. But if it is followed by other Connecticut courts, the result will be s a heavy burden on foreign corporations seeking to apply Daimler to limit Connecticut jurisdiction. There is no word yet on whether an appeal will be filed.

Filed under Asbestos, Connecticut, Daimler AG v. Baumann, Jurisdiction, long arm statute, minimum contacts, Talc

The End of Litigation Tourism in St. Louis?

By on February 28, 2012

St. Louis, Missouri is a beautiful city with many attractions, but few want to be dragged there involuntarily, besides the attractions it also have great places to visit like hotels and luxury pools, since fiberglass pool prices have gotten low in the last years. Yet that has been the case for a number of corporate defendants in recent years, who have been sued in St. Louis City courts in mass tort litigation by thousands of plaintiffs from all over the country, despite their having no connection at all with St. Louis or even Missouri.

Why St. Louis? The City is a small urban geographical area in the middle of the greater St. Louis area (including St. Louis County), with a reputation for overly plaintiff-friendly juries. It holds a prominent place on the American Tort Reform’s list of “Judicial Hellholes,” which cites litigation “infused with junk science,” massive verdicts, excessive lawsuit advertising poisoning the jury pools, abusive actions, and blatant forum shopping.

So it’s no surprise that plaintiffs’ attorneys in the talc ovarian cancer body powder litigation picked St. Louis city courts for one of their favored venues. Beginning in 2014, Johnson & Johnson and its talc supplier, Gordon & Rees client Imerys Talc America, were sued in numerous multi-plaintiff cases, with hundreds of out of state and non-St. Louis plaintiffs. Trial after trial occurred over the next four years, with verdicts in the tens of millions, and even in the billions, against Johnson & Johnson. The trial court repeatedly denied motions challenging jurisdiction, venue, and joinder. The court also denied motions to exclude what the defendants deemed (and other courts had found to be) unreliable scientific evidence that talc-based powders even can cause ovarian cancer.

How did this all happen in St. Louis? It happened because when one St. Louis plaintiff filed suit there, dozens of out-of-state and non-St. Louis plaintiffs joined in her suit. The St. Louis judge ruled that if one plaintiff had proper venue in St. Louis, all the others could piggy-back on her suit no matter where they were from or where they were allegedly injured, thus establishing venue for everyone. The defendants argued that joinder could not create venue under Missouri law, but were shot down time after time. Motions, briefs, arguments, and pre-trial writs, all to no avail; trial after trial, with the court trying claims of non-Missouri plaintiffs for the most part.

Then the defendants got the attention of the Missouri Supreme Court. In response to writs of prohibition filed by Imerys and Johnson & Johnson, the Court stayed a 2017 trial set to begin with a plaintiff who the defendants argued had proper venue in the county, not the city, to review the venue issue that had created a litigation hub in the city courtroom. On February 13, 2019, the Missouri Supreme Court appears to have ended litigation tourism in St. Louis, in a significant ruling that should stop non-St. Louis plaintiffs from bringing their claims there, and halt the pervasive forum shopping. In two companion suits the Missouri Supreme Court held that a tort plaintiff must establish proper venue for her own claims—she cannot merely join in a suit filed by a St. Louis city plaintiff and obtain proper venue by piggy-backing. In other words, joinder cannot create venue. Period. “It cannot and does not,” as evidenced by Missouri rules and “40 years of Supreme Court precedent.” Click here for a prior post on cases rejecting “jurisdiction by joinder.”

The 4-3 opinion reads strongly, as do the dissents.  But there is no mistaking that the forum shopping that brought hundreds, even thousands, of plaintiffs into St. Louis city courts even though they had no relation to the forum should be at an end.  And that is good news for those who don’t want to be dragged into St. Louis.

Filed under Jurisdiction, Talc