The National Forum for Environmental & Toxic Tort Issues, Union

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Asbestos Evolution
• California Coordination & Case law
• Texas, Louisiana and Georgia: Evolving
Causation Standards & Expert Challenges
• House-hold exposure case law
developments: California, Texas,
Delaware, Tennessee
• Federal MDL 875
LAOSD Coordination
•August 31, 2011
Los Angeles, Orange,
and San Diego
asbestos pre-trial
matters are now before
Judge Elias in Los
Angeles
JUDGE EMILIE H. ELIAS
• Appointed by Gov. Gray Davis in 2000
• She was brand new to
asbestos when appointed
as the LAOSD judge in
September 2011
What has LAOSD changed?
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All Pre-trial Matters Heard by Judge Elias
Motions for Preference
Discovery matters
Summary Judgment
Motions in Limine
Sometimes Page-Line designations
Sent to a trial court in the original county
Mandatory Settlement Conference
• Cases are referred to “settlement judges”
• Clients and carriers must be present
– Someone with ultimate authority
• Some judges enforce and others do not
• Trial Judge may return the case to
settlement conference
• It may last a half day or two weeks
7 Hour Limit on Depositions
Approved: September 17, 2012
Effective: January 1, 2013
Except Asbestos Cases?
1. All Asbestos Cases are deemed
Complex (LA GO No. 1)
2. General Order 43 limits depositions to
20 hours in preference cases.
BUT….
No one knows how Judge
Elias will deal with this until
next year…
PLAINTIFFS FIRMS INCREASE
• 6 active firms in 2008  17 in 2012
SGPB
Baron & Budd
Lanier Law Firm
WKP
Weitz & Luxenberg
Keller Fishback &
Jackson
Farisse Law Firm
Deblase Brown
Napoli Bern
Cohn Swartzon
Karst & von Oiste
Simmons
John Huebeck
Carolin Shining
Brayton Purcell
Levin Simes
Kaiser & Gornick
Kazan
O’Neil v. Crane Co.
• “We hold that a product
manufacturer may not be
held liable in strict liability or
negligence for harm caused
by another manufacturer’s
product …”
The Chameleon Plaintiff
Pre-O’Neil World
Post-O’Neil World
“We ripped out and tons “Insulation? What
of insulation. It was
insulation?”
everywhere.”
“We spent hours cutting
our own gaskets and
packing.”
“The manufacturers all
sold their own gaskets
and packing kits.”
California Appellate Decisions
• Casey v. Perini Corp. (2012) 206
Cal.App.4th 1222
– Expert declaration insufficient to prove
product contained asbestos. Judge
Elias has granted MSJs based on this.
• Farag v. ArvinMeritor, Inc. (2012) 205
Cal.App.4th 372
– Defendant’s single offer to both spouses
was triggered by the cost-shifting statute
under CCCP § 998
California Appellate Decisions
• Howell v. Hamilton Meats & Provisions,
Inc. (2011) 52 Cal.4th 541
– plaintiff may recover no more than the
amounts paid for the medical services
not the amount charged.
• Campbell v. Ford (2012) 206 Cal.App.4th
15
– California leading the way???
Ain’t That Special!
Several courts have excluded expert
opinions that “every fiber” contributes
towards a plaintiff’s development of
mesothelioma.
Butler v. Union Carbide
Corporation (GA)
• Trial court decision, June 29, 2010);
affirmed June 15, 2011; cert denied
October 17, 2011
• Excluding the testimony of Dr. Maddox
and characterizing the “any exposure”
theory as “at most, scientifically-grounded
speculation: an untested and potentially
untestable hypothesis.”
Georgia-Pacific Corp. v.
Bostic, 320 S.W.3d 588 (Tex.
App. Dallas, August 26, 2010)
Excluding “each and every exposure”
testimony from Drs. Samuel Hammar,
Arnold Brody and Richard
Kronenberg.
Robertson v. Doug Ashy et al,,
East Baton Rouge, Louisiana
(March 2, 2010).
•
Striking testimony from Dr. Eugene
Mark, that “every special exposure” to
asbestos was a substantial contributing
factor to the causation of mesothelioma.
• Reversed and remanded by Louisiana
Court of Appeals on October 4, 2011.
Robertson v. Doug Ashby Building
Materials, Inc.— Trial Court Part 2
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August 21, 2012
Three day evidentiary hearing
Drs. Mark, Dyson, Moogalvkar, Graham
Dr. Mark precluded from testifying that
“each ‘special exposure’ to asbestos
constitutes a significant contributing factor”
• The term is meaningless and provides no
scientific foundation for a causation
opinion
Purposefully Small
• “Dr. Welch’s conclusion that the exposure and
risk in the case were ‘substantial’ simply was not
a scientific conclusion . . . we join with several
other courts in requiring quantitative
epidemiological evidence.” Dixon v. Ford Motor
Co.—Maryland
• “Dr. Maddox’s any-exposure opinion is in
irreconcilable conflict with itself. Simply put, one
cannot simultaneously maintain that a single
fiber among millions is substantively causative,
while also conceding that a disease is dose
responsive.” Betz v. Pneumo Abex, LLC—
Pennsylvania
Even Smaller
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Smith v. Kelly-Moore Paint Company, Case No. 2-08-198-CV, Court of Appeals, Second
District of Texas, Fort Worth (February 25, 2010).
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Ruben v. Asbestos Corporation, Ltd., et al., Los Angeles Superior Court Case No.
BC396559, Ruling On Motion In Limine By The Honorable Rita Miller (January 25, 2010).
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Daly v. Arvinmeritor, Inc., Case No. 07-19211, Circuit Court of the 17th Judicial Court,
Broward County, Florida (November 30, 2009).
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Lena K. Degrasse v. Anco Insulations Inc., et al., No. 07-12736, in the Civil Dist. Court for
the Parish of Orleans, Div. G, Section 11, Judgment on Motion In Limine (June 11, 2009).
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In Re: Asbestos Litigation, Certain Asbestos Friction Cases Involving Chrysler LLC, in the
Court of Common Pleas for the First Judicial District of Pennsylvania, Civil Trial Division,
Control #084682, Findings, Memorandum and Order on Motion to Exclude Plaintiff’s
Causation Expert Testimony that Relies Upon Novel Scientific Evidence and Request for
Evidentiary Hearing, Tereshko, A.L (September 24, 2008)
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Free v. Ametek, Cause No. 07-2-0409109 SEA, Superior Court, King County, State of
Washington, p. 5 (February 29, 2008).
Your Glasses are fine
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Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, 320-21 (Tex. App. 2007), reh’g
overruled (Oct. 13, 2007), review denied (Feb. 22, 2008).
In Re Asbestos, Cause No. 2004-3,964 (Tex. Dist. Ct. July 18, 2007), Letter
Ruling.
Gregg v. V-J. Auto Parts, Inc., 943 A.2d 216, 218, 223, 226-27 (Pa. 2007).
In re W.R. Grace & Co., 355 B.R. 462, 474, 478 (Bankr. D. Del. 2006), leave to
appeal denied, No. 07-MC-0005 RLB, 01-1139, 2007 WL 1074094 (D. Del. Mar. 26,
2007).
In re Toxic Substance Cases, No. A.D. 03-319, 2006 WL 2404008 at *7-8 (Pa. Ct.
Com. Pl. Aug. 17, 2006); Basile v. Am. Honda Motor Co., No 11484 CD 2005 (Pa.
Ct. Com. Pl. Feb. 22, 2007) (order granting Caterpillar Inc.’s motion to exclude
plaintiffs’ expert testimony); Summers v. Certainteed Corp., 886 A.2d 240, 244
(Pa. Super. Ct. 2005), appeal granted, 897 A.2d 460 (Pa. 2006).
Brooks v. Stone Architecture, P.A., 934 So. 2d 350 (Miss. Ct. App. 2006).
In Re: Asbestos Litig., Cause No. 2004-03964, Letter Ruling, Davidson J., 11th
District Court; Harris County, Texas, January 20, 2005.
Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004), aff’d sub
nom.
Satterfield v. Breeding Insulation
Co., 266 S.W.3d 347 (Tenn. 2008).
• Duty extends to car pool members,
babysitters, or domestic help.
• Duty extends to those who regularly and
repeatedly come into close contact with an
employee’s contaminated work clothes
over an extended period of time,
regardless of whether they live in the
employee’s home or are a family member.”
Alcoa, Inc. v. Behringer, 235 S.W.3d
456 (Tex. Ct. App.—Dallas 2007).
• Non-occupational exposure to asbestos
dust on workers’ clothes was neither
known nor reasonably foreseeable in the
1950’s.
• Since plaintiff’s exposure did not exceed
the 1950’s time frame, there was no duty
under the foreseeability of harm test.
Campbell v. Ford, (2012) 206
Cal.App.4th 15.
• A premises owner owes no duty to protect
workers’ family members from take-home
asbestos exposure.
• Public policy dictates that extending tort
liability to family members who are
exposed to asbestos off-site would have
the effect of “extending tort liability [of
premises owners] almost without limit.”
Florida—Not So Sunny for
Asbestos Defendants
• American Optical Corp. v. Spiewak, 73
So.3d 120 (2011).
• Florida Asbestos and Silica Compensation
Fairness Act (2005)—Deemed
Unconstitutional as Applied Retroactively
– Under the Act a plaintiff bringing a claim for
damages from exposure to asbestos must
plead and prove existing malignancy or actual
physical impairment where asbestos
exposure was a substantial contributing
factor.
Federal MDL No. 875
• New federal court cases will not be
transferred to MDL No. 875. Subject to the
following exceptions:
– Cases from the following jurisdictions:
E.D. of VA, 7th Cir., Maritime Docket,
E.D. PN, and
– Various “pipeline” cases from a variety
of districts
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