Toxics Defense

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.