Toxics Defense

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.

SV 40 Case Revived!

The California Court of Appeals today reversed a trial court's ruling that had dismissed a case in which the plaintiffs alleged that a case of mesothelioma was caused by SV 40.  In Carol Asker, et al., v. Wyeth Pharmaceuticals, Inc., et al. (No. A112658 Calif. App., 1st Appellate District, Div. 3) the Appellate Court held that the Plaintiffs had made sufficient claims to overcome the demurrer to the Complaint upheld by the trial court.

At this point, the issue is primarily procedural - did the Plaintiffs sufficiently plead their case in the Complaint so as to satisfy the requirements set out in Bockrath v. Aldrich Chemical Co. [1999] 21 Cal.4th 71?  The Appellate Court held that the Plaintiffs had, noting, "Here, plaintiffs alleged the decedent was exposed to a polio vaccine produced by the vaccine defendants that contained the contaminant SV40. As a result of that exposure, SV40 entered the decedent's body. The SV40 present in the decedent's body was a substantial factor in causing him to develop mesothelioma, an invariably fatal cancer of the serosal membranes. The only known source of the decedent's exposure to SV40 was the polio vaccine produced by the vaccine defendants."

One factor that makes this case particularly interesting is that it is brought by the Brayton Purcell law firm, known for their cases in asbestos-related litigation.  If they can prove that SV 40 was the cause of Mr. Asker's mesothelioma, the outcome of the case may benefit the asbestos defendants as much as it does the Asker family.

Pollution as an Alternate Cause

Air pollution, specifically particulates, was found in a report released today to increase pulmonary disease.  A study of women over the age of 50 found that each time the particulate pollution rose by 10 micrograms per cubic meter of air, a woman's risk of dying from heart disease rose by 76 percent.  In the defense of cases involving particulates, knowing the pollution levels of the areas in which the claimant lived might prove a valuable tool, especially as research into these areas progresses.

Unexpected Prempro Verdict

While the Judge today denied punitive damages, drug maker Wyeth has had a $1.5 million verdict entered because of its drug Prempro, a hormone replacement therapy that Plaintiff alleged lead to her breast cancer, as reported in Business Week, and cited in other blogs.  This is one of some 4500 suits pending against the drug manufacturer.  What makes this particularly interesting is that several months ago, when the second trial involving this treatment was in trial, there seemed to be a consensus that “the science isn’t there.” 

As those of us who have represented defendants in toxic torts for years have come to learn, “the science isn’t there” may be a logical defense, but logic too often doesn’t stand up against sympathetic jurors.

Science and Asbestos

Just to get current, here's an entry I did as a guest on my partner Bruce Nye's blog, Cal Biz Lit:

http://www.calbizlit.com/cal_biz_lit/science_and_the_law/index.html

Problems may come home to roost

The issues that Christopher Andreas of Brayton Purcell has had with the Court of Common Pleas in Cuyahoga County, Ohio have been widely circulated in emails, the blogoshere,

http://blogs.wsj.com/law/2007/01/25/law-blog-lawyer-of-the-day-christopher-andreas/

and even in the print media.  It now appears that one organization, the Civil Justice Association of California,  is also asking the California State Bar to look into the charges made against Mr. Andreas and his firm.

http://www.cjac.org/publications/news/detail.cfm?HeadlineID=1207

Welcome to Toxics Defense

Hello and welcome.

I've been practicing law in the San Francisco Bay Area, with a focus on toxics defense (asbestos, lead, silica, mold) for quite a few years now.  My intent in creating this blog is to circulate and analyze items of interest related to toxics litigation in the Bay Area and beyond.

I hope you come back often.

- Barbara Adams