Toxics Defense

California Adopts Sophisticated User Defense

    In Johnson v. American Standard ( California Supreme Court Case No. S139184 (4/3/08))  the California Supreme Court found the perfect case in which to finally adopt the "sophisticated user defense", something that the U.S. District Court predicted would occur in 1982.  The "sophisticated user defense" exempts a manufacturer of a product from providing warnings about that product to sophisticated users reasonably should have known of the potential hazards. 

    American Standard was sued in this case based on both negligent and strict liability failure to warn causes of action, as well as strict liability design defect and breach of warranty.  The defendant had sold HVAC evaporators that contained a chemical commonly used in such applications, R-22.  When heated (as when welding coolant lines) R-22 breaks down into potentially toxic chemicals, including phosgene gas.  Mr. Johnson developed pulmonary fibrosis, allegedly as a result of inhaling this gas.

     This case was perfect for this purpose because the Plaintiff, Mr. Johnson, was an HVAC technician who had received the EPA's Universal certification, the highest possible certification available, after receiving training and after taking a five part test.  The Court therefore had a case in which the individual plaintiff himself, not just the employer, could be found to be  sophisticated and, moreover, the training that he had received was available for evaluation by the experts involved.

    The Supreme Court held that the sophisticated user defense in California will:
    a) use an objective, "should have known" standard, rather than requiring proof that the plaintiff themselves knew of the hazards;
    b) will negate both negligence and strict liability causes of action for failure to warn, and;
    c) be based on the knowledge that the sophisticated user should have had at the time of exposure.

    What the Court carefully left unsaid was whether knowledge of a sophisticated employer will serve to negate claims by an employee against a third party manufacturer.  The court did cite with approval the case of  Fierro v. International Harvester (1982) 127 CA3d 862.  In that case, in dicta, the Appellate Court had noted that the employer should have been aware of the hazards complained of in the case.  The Supreme Court also directly referenced the Federal District Court rulings in  In re: Related Asbestos Cases 543 F.Supp. 1142, 1151, in which the Court both noted that the defendants might claim that the Navy was a sophisticated user of asbestos products, but that the Plaintiffs might negate the defense by showing that the manufacturers should have known that the Navy would not take proper precautions.

    The Supreme Court specifically refused to address those issues in this decision, leaving trial courts and parties to guess at the next ruling to come in the development of this defense.

LA Superior Court General Order Overturned

    Los Angeles Superior Court has, for many years, had a General Order applicable in asbestos cases designed to avoid the need for defendants to bring full motions for summary judgment (and for the Court to analyze those motions and the opposition thereto) when Plaintiffs lack sufficient evidence that a given defendant's product was a cause of plaintiff's illness.  That Order, General Order 29, has been overturned in its entirety by the California Court of Appeals, Second District. 

    General Order 29 required Plaintiffs, within 8 months of filing a case, to serve and file a Case Report including, among other things, "each product identification witness" and "each product identification document" upon which the Plaintiff intended to rely at trial.  Defendant could then, between 45 and 75 days after service of the Case Report, file a Motion to Dismiss for lack of identification.  the motions were to be brief, and based solely on the Case Report information.  No Declaration or Memorandum of Points and authorities were required.  Plaintiffs had until ten days prior to the hearing on the motion to amend the Case Report, "for good cause shown", to include additional documents or witnesses.  If the Court found that the Case Report failed to provide adequate information implicating a defendant, that defendant was dismissed, without prejudice to re-serve them if additional information was later acquired.

    The Snyder heirs filed a Complaint in Los Angeles Superior Court alleging that some 79 defendants were responsible for exposing Gail Snyder to asbestos, which caused his  lung cancer and subsequent death.  The Trial Court heard motions to dismiss brought by many defendants, and granted 30 such motions.  Plaintiffs argued that General Order 29 was in conflict with California's law on motions for summary judgment, which the Trial Court held was not the case, since the defendants could be re-served, and no judgment was actually entered.

    The Snyder's filed a petition for writ of mandate with the California Court of Appeal agreed to hear.  In Snyder v. Superior Court, Case No. B197993, the Court held that General Order 29 was completely invalid because it reuqires attorneys to disclose the witnesses and documents upon which they intend to rely at trial, including summaries regarding the anticipated trial testimony of the witnesses.  The Appelate Court held this to be a violaiton of the attorney work product privilege.

    Given the basis of the Court's ruling, it will be interesting to see whether the Superior Court amends General Order 29 to simply require attorneys to delete the portions of the General Order that conflict with attorney work product privileges (specifically, on what and whom will you rely at trial, and what will the witnesses say), and leave the dismissal process in place.

$10.9 Million Asbestos Verdict

On December 7th, a jury in Los Angeles found in favor of Plaintiff Mr. Pelleys in the amount of $10.9 million, for injuries the jury found were caused, in part, by defendant John Crane company's asbestos-containing products.  Defendant John Crane was found 25% "at fault", which will result in a Judgment in the amount of 25% of the "non-economic" damages, as well as all of the economic damages not off-set by prior settlements.  The jury also found the necessary prerequisites for imposition of punitive damages.  That portion of the trial begins today. 

Plaintiff is represented by the Simon, Eddins law firm, with principal offices in Texas.

Silica Case Resolved

Plaintiff’s attorneys have been seeking to make Northern California the new seat of silica litigation since 2004.  This week, the case that was scheduled to be the first to go to trial resolved as to all defendants. 

The “mixed dust” and lung cancer case brought by the Brent Coon firm in Alameda County California was replete with discovery motions, including several motions in limine related to Plaintiffs’ expert witnesses, none of which were resolved by the Courts prior ot the resolution of the action.

An article from The Recorder, the local legal newspaper, with more details about the matter, is attached.Download 00150446.pdf

California Complex Litigation Judge Censured

The following concerns Judge Freedman, who is the Complex Litigation Judge for Alameda Superior Court, supervising all of the asbestos and silica cases:

(06-26) 12:34 PDT OAKLAND -- A state judicial agency censured an Alameda County judge today but allowed him to keep his job after finding that he repeatedly took longer to decide cases than the law allows and signed false affidavits allowing him to collect his salary.
    Superior Court Judge Robert Freedman waited more than the 90-day legal limit to rule on 21 cases from 2000 to 2004, the Commission on Judicial Performance said. In one case, submitted in March 2003, Freedman took 16 months to issue a decision, the commission said.
The presiding judges of his court met with Freedman five times during the period to tell him that cases were overdue, the commission said. At the last of those meetings, in August 2004, he was removed as supervising judge of the court branch in Hayward.
    Throughout that time, Freedman signed affidavits every two weeks declaring that he had no cases under submission for more than 90 days and continued to receive his paychecks, the commission said.
Under the state Constitution, the judge should not have been paid during that period, the commission said. He does not have to forfeit any salary now, however, because he has ruled on all the cases.
Freedman, 63, was appointed to the county Municipal Court by Gov. Pete Wilson in 1996 and to the Superior Court by Wilson in 1998. He practiced law in Oakland from 1969 to 1996, handling mostly business-related cases.
    One of his rulings as a judge in May 2006 would have allowed thousands of California high school students who failed the state's exit exam to receive diplomas if they had met all other graduation requirements. Freedman said the students were likely to prove that the state had denied them equal access to the education they needed to learn the material on the test, but the state Supreme Court lifted his injunction and the students were denied diplomas.
    Since the commission charged him with misconduct last year, Freedman has acknowledged failing to keep track of his cases and said he has improved his tracking system and avoided further delays since late 2004. He said he did not knowingly submit false salary affidavits but simply signed the documents without paying attention to their content.
    But the commission, citing the presiding judges' periodic warnings to Freedman, said today that he had shown an "utter disregard for the truth or falsity of salary affidavits he signed when he knew he had delayed matters pending."
    Freedman "has committed egregious and persistent misconduct which would warrant removal if considered alone," without regard to his overall record, the commission said.
    But the agency said it was swayed by his "otherwise exemplary performance," numerous testimonials from lawyers and fellow judges, Freedman's admission of wrongdoing and "our perception that he is unlikely to offend again."
    The vote for a "severe public censure" was 6-1, with the dissenting commissioner favoring removal from office.

Another Defense Verdict in San Francisco

After two days of jury deliberation, counsel for Advocate Mines today handed the Brayton Purcell offices a defeat in a wrongful death mesothelioma case.  The plaintiff, Mr. Shelton, who died at 87 years of age, was alleged by his counsel to have been exposed to asbestos sold by Advocate Mines that was used to manufacture Johns Manville Transite pipes, when Mr. Shelton worked at U.C. Davis as a Building Engineer.  Apparently, however, Mr. Shelton testified in deposition that he never personally handled, cut, or otherwise disturbed any asbestos cement pipe at that U.C. Davis.  Presumably there was some evidence to cause Judge Mellon to deny the motion for non-suit brought by the defense, but that "some evidence" does not appear to have impressed the jury.

Defense verdicts in San Francisco aren't impossible, just difficult.

Tobacco Verdict Redux

Plaintiffs' attorney Madeline Chaber has now tried the same case on the same set of facts for the same plaintiff against the same defendant -- and gotten much the same verdict.

On March 20, 2000, a San Francisco jury awarded Chaber, terminally ill with lung cancer, $1.72 million in compensatory and $20 million in punitive damages against two tobacco companies. In 2004, the verdict was reversed by an appellate court, and remanded for retrial.

Chaber obtained a second victory for the Whitely family against R.J. Reynolds and Philip Morris for Mrs. Whitely's lung cancer.  The verict was handed down on May 2, 2007. The jury again found that the defnedants had made false claims to Mrs. Whitely, a life time smoker, on which she relied. 

The first verdict, in March of 2000, awarded Leslie Whitely and her husband $1.7 million in compensatory damages, and $10 million each against the defendants.  That verdict was overturned because the Appeals and Supreme Courts of California found that the evidence was potentially tainted by evidence of conduct from 1988 to 1998, a period in which tobacco companies were immune from suit by smokers in California.

This second verdict awarded the heirs only $1.7 million in compensatory damages against the two cigarette manufacturers, and $250,000 in punitive damages against R.J. Reynolds only.  An 8-4 vote spared Phillip Morris from punitive damages.  Defendants plan an appeal.

Dr. Ray Harron's Texas License Not Renewed

Dr. Ray Harron first appeared on the national stage in 2005.  Texas defense attorneys had noticed that many (if not most)  of the 10,000 plaintiffs with silicosis cases pending in the M.D.L. had also filed claims alleging that they had asbestosis, a highly unusual combination.  These attorneys managed to convince U.S. District Court Judge Janis Jack to hold hearings into the credibility of the diagnoses of the cases pending before her.

In the course of the hearings, it was determined that Dr. Ray Harron had ultimately made most of the “diagnoses” of the plaintiffs in these cases from chest x-rays taken in mass screenings, although other physicians ultimately signed the reports that were submitted in discovery.  Dr. Harron admitted he had his employees produce form letters of diagnoses and stamped his name on them. He made as many as 150 of these "diagnoses" a day, strictly for litigation purposes.  He acknowledged he never looked at the letters. After this admission, he refused further testimony and asked for a lawyer. "If you're accusing me of fabricating things, I think that's a serious charge."

Others seem to have agreed.  On April 13, 2007, the Texas State Board of Medical Examiners and Dr. Harron entered into an Agreed Order pursuant to which Dr Harron agreed not to practice medicine in the period before his medical license expires, not to renew his medical license after it expires and not to petition the Board for reinstatement or re-issuance of his license. The action was based these allegations related to silica/silicosis litigation and Dr. Harron's determination and signature on x-ray findings of silicosis for numerous silicosis plaintiffs.

The moral to the story is pretty self evident, I think.  Certainly, a cautionary tale.

SF Defense Verdict in Asbestos Case

    A jury in San Francisco Superior court has granted a defense verdict for General Electric, and was unable to reach a decision as to the liability of Union Carbide Corporation in the case of Philip Rincon v. A.W. Chesterton, SFSC case # CGC06454736. 

    Mr. Rincon is 66 years of age.  He testified personally, arriving at the courthouse in an ambulance, and with an oxygen tank.  He claimed his asbestos exposure occurred while he was employed at Varian Corporation, a company that primarily makes gas and liquid chromatographs.   

    Trial commenced on February 27th.  The jury began deliberation on April 13th. 

    I was informed that during the course of trial several percipient witnesses who had testified that certain materials came from Westinghouse during their depositions, changed that testimony to say on the stand that the materials came from General Electric.  Motions for mistrial, and for non-suit, were denied. 

    Plaintiffs were represented by Dean Hanley of Paul, Hanley & Harley LLP. 

    More information will follow as it becomes available.

Punitive Damages Limited

The U.S. Supreme Court has issued a decision in Philip Morris USA v. Williams which appears to impose some limitations on punitive damage awards.  In that case, a widow successfully sued, receiving a verdict for the death of her husband due to smoking, in the amount of $821,000.  The additional award of $79.5 million was overturned by the Supreme Court on the grounds that the jury had considered injuries to others who were "not a party to the action."   

As noted by my partner, Bruce Nye, in his blog, Cal Biz Lit, this doesn't appear to do any great favors for the defense, at least in California. The Supreme Court's decision actually appears consistent with California instructions that permit the jury to consider whether the defendant "disregarded the health or safety of others."  The New York Times, however, ran an editorial in which the writer opined that the injury to others should certainly be a consideration, as noted in the Mass Tort Litigation blog.   

Overall, this case appears to be one in which the Plaintiff's counsel was permitted to argue, not just the merits of the case as to their own decedent, but also to spend considerable time pointing out all of the injuries inflicted on all of the other smokers by the apparent conduct of the cigarette companies.   While not earth shaking, it may be of use to attorneys in trial courts when  arguing about evidence intended for use against their clients.