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.

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.