Toxics Defense

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.

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