Brown v. Union Carbide and Conoco Phillips and Litigation Update Key Rulings from Hot Jurisdictions. Forrest Ren Wilkes

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1 Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and Litigation Update Key Rulings from Hot Jurisdictions Forrest Ren Wilkes Forman Perry Watkins Krutz & Tardy LLP One Shell Square 701 Poydras Street, Suite 4350 New Orleans, LA (504) (504) [fax] Alex E. Cosculluela Adams and Reese LLP LyondellBassell Tower, Suite 4400 Houston, TX (713) Tanya M. Lawson Sedgwick LLP 2400 East Commercial Boulevard, Suite 2400 Fort Lauderdale, FL (954) (954) [fax]

2 Forrest Ren Wilkes is a partner in Forman Perry Watkins Krutz & Tardy s New Orleans office. Since 1989, he has defended numerous clients in mass tort cases, both as local counsel and as national trial counsel, in state and federal courts throughout the United States. He has tried cases to verdict in Arkansas, Louisiana, Maryland, Pennsylvania, Oregon, Texas and Washington. He has been recognized by The Best Lawyers in America in the field of Mass Tort Litigation and by New Orleans Magazine as a Top Lawyer in the fields of Mass Tort Litigation and Bet-the- Company Litigation. Alex E. Cosculluela is partner at the Houston, Texas, office of Adams and Reese LLP. For more than 20 years, he has represented clients in a variety of litigation matters, including environmental and mass toxic tort/product liability matters. His toxic tort/product liability focuses on defending manufacturing and energy industry clients. He has tried cases in California, Colorado, Florida, Louisiana, Mississippi, New York, and Texas. He is a Fellow of the Litigation Counsel of America. He is recognized by The Best Lawyers in America in Personal Injury Litigation. Tanya M. Lawson is a partner in Sedgwick s Fort Lauderdale office. She represents clients in product liability, toxic tort, as well as in general civil and commercial litigation. She manages asbestos litigation throughout the state of Florida and has represented clients in the asbestos MDL in the Eastern District of Pennsylvania. She also acts as defense coordinating counsel for the silica litigation pending in Broward County, Florida. Ms. Lawson has a wealth of experience in all facets of litigation and has achieved beneficial results for clients at the early stages of litigation.

3 Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and Litigation Update Key Rulings from Hot Jurisdictions Table of Contents I. Presentation Endnotes Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and... Lawson et al. 327

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5 Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and Litigation Update Key Rulings from Hot Jurisdictions I. Presentation Bounced Verdicts Barabin v. AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc. Bouncing-Back Verdict? Barabin v. AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc., Nos & , United States Court of Appeals for the Ninth Circuit, D.C. No. 2:07-cv RSL, United States District Court for the Western District of Washington This case is presently on appeal before the Ninth Circuit Court of Appeals. The Ninth Circuit, sitting en banc, heard oral argument on June 25, The case was originally filed in the Superior Court of King County, Washington on December 18, Henry Barabin and his wife Geraldine Barabin brought suit against over 20 defendants for Mr. Barabin s recently diagnosed mesothelioma. Following initial discovery, the remaining defendants removed the case to the United States District Court for the Western District of Washington in September In February 2008, the case was transferred to MDL-875. It remained there until December 2008, when it was remanded to the Western District of Washington. At that point, only Asten and Scapa remained as defendants. The case proceeded to trial beginning October 26, On November 18, 2009, the jury returned a verdict in favor of the Barabins. Before trial, Asten and Scapa moved in limine under Daubert to exclude several of plaintiffs experts. They moved to exclude the testimony of microscopist Dr. James Millette, who had conducted glove box testing on defendants products, on the basis that his testimony was unreliable and his testing was not representative of plaintiff s actual working environment, the Camas paper mill. Defendants also moved to exclude testimony and opinion from plaintiffs industrial hygienist, Ken Cohen, that relied on the Millette glove box test. Defendants further moved to exclude Ken Cohen because of his suspect credentials and lack of expertise regarding defendants products or plaintiff s work environment. Regarding Dr. Millette, the district court noted it was troubled by the marked differences between the conditions of Dr. Millette s tests and the actual conditions at the Camas Mill. However, it did not exclude Dr. Millette, but instead held that the jury would be told that his testing was performed under laboratory conditions which are not the same as conditions at the Camas Mill. The district court initially did exclude Ken Cohen from testifying, stating as grounds his dubious credentials and his lack of expertise regarding defendants products and plaintiff s work site. On the first day of trial, however, the district court reversed its prior ruling excluding Ken Cohen and permitted him to testify, without holding a Daubert hearing. Defendants also moved under Daubert to exclude testimony from plaintiffs medical expert, Dr. Drew Brodkin, that every exposure to asbestos was a substantial factor in causing Mr. Barabin s mesothelioma. In considering the motion, the district court noted that a number of courts around the country have excluded the any exposure theory. The district court also noted that plaintiffs opposition primarily relied on an amicus brief written by Dr. Laura Welch, Asbestos Exposure Causes Mesothelioma, But Not This Asbestos Exposure, and acknowledged that this brief was not peer reviewed and was written as an advocacy piece intended to persuade the Michigan Supreme Court. Nevertheless, the district court permitted Dr. Brodkin to testify that every occupational exposure to asbestos was causative, holding in the interest of allowing each party to try Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and... Lawson et al. 329

6 its case to the jury, the Court deems admissible expert testimony that every exposure can cause an asbestosrelated disease. One other issue that was the subject of post-trial motions was Mrs. Barabin s testimony that she did not want to be left destitute by the death of her husband. Although defendants argued that she had opened the door to being cross-examined with evidence of receipt of prior settlements, the district court disagreed and refused to permit cross-examination on this issue. Finally, it was discovered post-trial that during voir dire questioning about personal experiences with cancer, one of the jurors failed to disclose that she had an inoperable brain tumor. She revealed this information to the other jurors during jury deliberations about damages, stating that no amount of money makes it easier. Defendants request for an evidentiary hearing on this juror misconduct was denied by the district court. The motions for new trial and JMOL were also denied by the district court. Following denial of their post-trial motions, Asten and Scapa appealed to the Ninth Circuit. On appeal, Asten and Scapa argued that the district court had abused its discretion by improperly admitting plaintiffs expert evidence and refusing to conduct a Daubert hearing on plaintiffs experts. Instead of a conducting a Daubert hearing on the reliability of the plaintiffs experts testimony, it admitted the plaintiffs experts testimony in the interest of allowing each party to try its case to the jury. Defendants argued the district court s failure to hold a Daubert hearing mandated either one of two possible results. Either Ninth Circuit precedent mandated a reversal for new trial on all issues, Mukhtar v. California State University, 299 F.3d 1053 (9 th Cir. 2002), amended by 319 F.3d 1073 (9 th Cir. 2003), or United States Supreme Court precedent required a reversal and rendering of judgment in favor of Asten and Scapa. Weisgram v. Marley Co., 528 U.S. 440 (2000). In Mukhtar, a discrimination case, the Ninth Circuit recognized that a district court has a special obligation to determine the relevance and reliability of an expert s testimony that is vital to ensure accurate and unbiased decision-making by the jury. Finding that the district court had abrogated its gatekeeping role and failed to conduct the necessary Daubert analysis of plaintiff s expert on discrimination, the Mukhtar court reversed and remanded for a new trial. The Mukhtar court further held that a remand for new trial, rather than merely a remand for Daubert hearing, was necessary to protect against the undue risk of post-hoc rationalization by the district court. In Weisgram, plaintiff s expert was the subject of a Daubert challenge that was overruled by the district court. The Supreme Court held that an appellate court can make its own Daubert determination where (1) the district court is not in a superior position to conduct the Daubert analysis and (2) the plaintiff had a full and fair opportunity to present their case. Should the appellate court determine the evidence should have been excluded, it should, for reasons of judicial economy, enter dismissal with prejudice. On November 16, 2012, the Ninth Circuit Court of Appeals issued Barabin v. AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc., 700 F.3d 428 (9 th Cir. 2012). A three judge Ninth Circuit Panel (Rawlinson, J., Tashima, J. and Graber, J.) reversed a $10.2 million judgment in favor of plaintiffs and remanded for a new trial, holding that the district court had abused its discretion in refusing to conduct a Daubert hearing on plaintiffs experts. Writing for a unanimous Panel, Judge Rawlinson held that Mukhtar mandated a new trial on all issues. In a concurring opinion, Judge Graber, joined by Judge Tashima, expressed disagreement with the result dictated by Mukhtar and stated that, but for Mukhtar, they would conditionally remand to the district court to make a new Daubert determination and a new trial on all issues would ensue only if the district court determined that the plaintiffs experts were unreliable and did not meet Daubert standards. In another concurring opinion, Judge Tashima acknowledged a problem with the district court s refusal to permit cross 330 Asbestos Medicine November 2013

7 examination of Mrs. Barabin regarding her comments that she feared being left destitute and suggested this could be remedied on re-trial. Plaintiffs subsequently moved for rehearing and rehearing en banc. On March 25, 2013, the Ninth Circuit ordered rehearing en banc. Oral argument was held on June 25, 2013, during which defendants argued that the Ninth Circuit should either conduct its own Daubert analysis, determine that plaintiffs experts should have been excluded, and render judgment in favor of the defendants under Weisgram, or follow Mukhtar and remand for a new trial on all issues. Plaintiffs argued that either the district court had conducted a de facto Daubert analysis, or the Mukhtar rule should be modified to permit remand of the case for post hoc Daubert review only. However, plaintiffs conceded that if on remand the district court determined that Millette s testing failed to satisfy Daubert standards, then it should render judgment for defendants. At that point, several judges queried why they could not conduct the Daubert analysis instead of remanding to the district court. Several judges also had questions about the district court s refusal to permit cross-examination of Mrs. Barabin about her fear of being left destitute. Conclusion The district court erred in failing to conduct a Daubert analysis and admitting the unreliable testimony and testing of plaintiffs experts. The Ninth Circuit sitting en banc now has the case and will decide the extent of relief available to defendants. It may determine that Mukhtar remains the correct rule and uphold the Panel s decision to remand for a new trial on all issues. It may determine under Weisgram that one or more of plaintiffs experts do not pass Daubert muster, reverse the district court and render judgment in favor of Asten and Scapa. Or it could decide to modify Mukhtar and conditionally remand for a Daubert hearing. Under any of the above scenarios, plaintiffs experts will be subjected to a full and comprehensive Daubert analysis. Thomas Brown, Jr. v. Phillips 66 Company et al., Formerly pending before the Circuit Court of Smith County, Mississippi, Civil Action No Mississippi Drilling Mud Litigation During 2003, the former Houston, Texas, law firm FCJ, in conjunction with local counsel in select Mississippi venues, offered mass screening chest x-rays to former and retired oilfield workers. The mass screenings resulted in approximately 750 claims, almost all non-malignancies, a couple of smoking lung cancers, and a handful of other cancers. There were no mesotheliomas. By 2004, these type of non-malignancy cases were only being filed in a couple of states Mississippi and Louisiana. In 2004, FCJ filed numerous multi-claimant suits in the Mississippi circuit courts for Smith and Jones counties. Circuit Judge Robert Bob Evans (deceased) presided over the circuit court in Raleigh, Smith County, where Gene Tullos served as FCJ s local counsel. Circuit Judge Billy Joe Landrum presides over the circuit court in Laurel, Jones County, where Robert Hammond and Robert Sullivan served as FCJ s local counsel. The only parties defendant named in the overwhelming majority of these cases were ConocoPhillips Company ( COP ), Union Carbide Corporation ( UCC ), and Montello, Inc. ( Montello ). A former Phillips Petroleum Company business, Drilling Specialties Company, had distributed an asbestos drilling mud additive. Johns Manville Corporation ( JMC ) supplied the asbestos utilized in that drilling mud additive. Reorganization in bankruptcy and the establishment of the Manville Personal Injury Settlement Trust October 28, 1988, shielded JMC from further liability. UCC supplied the asbestos utilized in the drilling mud additives distributed by Montello. Following the decision of the Supreme Court of Mississippi in Harold s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss. 2004), [1] COP and UCC moved to sever FCJ s oilfield claims. Some of the newly severed Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and... Lawson et al. 331

8 oilfield claims were transferred to alternative venues. Others were dismissed and re-filed in alternative venues. The majority of the individual oilfield claims remained in Jones County, and the balance split between the circuit courts of Smith and Jasper counties, where Judge Evans presided, and Jefferson and Claiborne counties, where Circuit Judge Lamar Pickard presides. Approximately one-half dozen individual oilfield claims went to trial before the circuit courts of Smith, Jones and Jefferson Counties. With a single exception, reversed and remanded for new trial by the Supreme Court of Mississippi, COP and UCC prevailed at each of the oilfield trials. Sadly, Judge Evans, who presided over the first oilfield trial in Mississippi and awarded judgment notwithstanding the verdict to COP and UCC, died. On September 13, 2010, Governor Haley Barbour appointed Eddie Bowen circuit court judge to complete Judge Evans term. Approximately seven months later, the oilfield claim of Thomas Brown, Jr., went to trial in Raleigh, Smith County, Mississippi, before Circuit Judge Eddie Bowen. Brown I Brown alleged he worked with asbestos drilling mud additives from the time he entered the workforce in 1979 through the mid-1980s. As the result of that work, Brown alleged, he inhaled asbestos and developed asbestosis. In addition, Brown alleged his asbestosis placed him at increased risk for developing lung cancer and mesothelioma and that he suffered emotional distress as the result of his asbestosis and his fear of future cancer. COP and UCC disputed Brown suffered asbestosis or any other asbestos-related injury or disease. COP and UCC also disputed Brown was at increased risk of lung cancer as the result of his alleged work with asbestos drilling mud additives but that any actual increased risk of lung cancer resulted from Brown s 30 pack-year smoking history. COP and UCC demonstrated Brown did not suffer asbestosis or any other asbestos-related injury or disease. COP and UCC also demonstrated Brown suffered other severe and life-threatening conditions, including obstructive sleep apnea, obesity hypoventilation syndrome, chronic obstructive pulmonary disease, congestive heart failure, diabetes, hypothyroidism or metabolic disorder, and hypertension. Indeed, these conditions rendered Brown disabled from the workforce since 2006, years before his trial. During its case-in-chief, COP called each of Brown s treating physicians four specialists in cardiology, internal medicine, and pulmonary medicine and more than a half dozen of their consulting radiologists. Each testified that although Brown was sick, his condition was the result of genetics, smoking, poor diet, poor compliance, and his extraordinary Body Mass Index. Each of Brown s treaters testified Brown did not suffer asbestosis or any other asbestos-related disease or injury. COP s independent medical examiner testified similarly, as did COP s retained pulmonologist and NIOSH certified B-reader. Brown did not call any of his treating physicians to support his oilfield claim. Instead, Brown called Dr. Edwin Ned Holstein and Dr. Steven Stogner, a Hattiesburg, Mississippi, pulmonologist, both retained experts. Holstein had never seen the man. Over objection, both testified that although Brown had been unable to furnish a history of asbestos exposure, he had, in fact, worked in the oilfield, and he had, in fact, described mixing chemicals. From this foundational evidence and nothing more, Holstein and Stogner attributed to asbestos Brown s failing health, asbestosis, and his increased risk of future malignancy. See Image Asbestos Medicine November 2013

9 Image 1: Handwritten Notes, Dr. Steven Stogner, Hattiesburg Clinic Floor hand. Mix[ed] Chemicals. Don t know names. This appears product identification without actual product identification. It appeared Judge Bowen worked actively to preclude a fair trial for COP and UCC. Despite Judge Bowen s conduct, however, the evidence so overwhelming favored the defense, Brown s trial counsel graciously all but conceded the case moments before closing arguments. Closing arguments did not improve Brown s case. However, the jury viewed the case differently than the lawyers, witnesses and other observers. The jury returned a compensatory damages verdict against COP and UCC for $22 million. The jury awarded $11 in general or non-economic damages and an additional $11 million for future medical expenses on evidence of lifetime future medical expenses of $45,000. Having determined liability against the COP and UCC, Brown s counsel had to determine whether to roll the dice with a punitive damages trial. It appeared, as was later confirmed, Gene Tullos cautioned Brown s counsel against pursuing punitive damages based on Brown s limited evidence and the disparity of the compensatory damages award. The last thing Tullos wanted was to put a spotlight on his involvement in yet another Smith County verdict. Tullos advice was ignored. Brown s presentation was scant only argument, devoid of meaningful evidence of conduct sufficient to justify an award of punitive damages. The jury awarded $300 million in exemplary damages. In the parking area outside of the courtroom, one of the jurors informed in reply to questioning Oh, we knew he wasn t sick, but he s gonna need some money. Post-trial work began immediately. This work was hastened when COP discovered that without requesting from the parties a proposed form of judgment or circulating his own proposed judgment, Judge Bowen prepared, signed, and entered a final judgment on the jury s remarkable verdicts the day those verdicts issued. Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and... Lawson et al. 333

10 Post-Trial Procedural History With more than sufficient legal and factual bases, COP and UCC each moved for new trial, judgment notwithstanding the verdict, and remittitur. During the pendency of those motions, Forman Perry s Marcy Croft determined Judge Bowen s father and mother had filed several suits and asserted claims against UCC and JMC in connection with alleged asbestos liabilities. [2] Toward the end of the second of three weeks of trial, Judge Bowen commented, in a seemingly innocent manner, to the effect his own father had been tested for asbestosis. Indeed, Judge Bowen mentioned, he had just visited his father who still resided in Smith County. Croft and I inquired the father s name. Judge Bowen rebuffed the requests. Within a few days of the verdicts, Croft reported her investigation demonstrated Judge Bowen s parents received financial compensation from both UCC and JMC, the latter through the Manville Personal Injury Settlement Trust, for physical and personal injuries stemming from the father s asbestosis and claims he feared future illness stemming from his asbestosis. Judge Bowen never disclosed, on the record or otherwise, his parents filed asbestos suits and claims identical to those alleged in Brown. And, importantly, he failed to do so despite extensive argument during jury selection surrounding his overly restrictive limitation on the exclusion for cause of panelists whose family members had or claimed asbestos-related injury or disease. Judge Bowen limited those exclusions to only those panelists within a single degree of consanguinity or kinship of another who had or claimed asbestosrelated injury or disease. A son, for example, would be excused for cause if his father had filed suit claiming even pleural disease. A sister, however, would not be excused for cause despite her brother died from mesothelioma. On May 16, 2011, UCC moved for Judge Bowen s recusal based on disqualification. COP joined in the motion. Both parties moved to stay Brown, particularly Judge Bowen s consideration of the post-trial motions, pending resolution of the recusal issue, including any appeal. Judge Bowen declined to recuse himself, and he failed to respond to the motion within the prescribed 30 day deadline. Based on Judge Bowen s failure to respond, on June 22, 2011, UCC petitioned the Supreme Court of Mississippi under Rule 48(B), Mississippi Rules of Appellate Practice, to recuse Judge Bowen based on his disqualification. On July 12, 2011, the Supreme Court of Mississippi stayed Brown pending consideration of UCC s Rule 48(B) petition. On August 5, 2011, COP filed under seal a supplemental joinder in UCC s Rule 48(B) petition, alerting the Supreme Court of Mississippi to other critical developments. On October 6, 2011, the Supreme Court of Mississippi (en banc) ordered Judge Bowen to recuse himself and stayed Brown pending appointment of a replacement or special judge: Based on the particular facts of this case, including (1) Judge Bowen s reluctance to provide information about his father s claim; (2) Judge Bowen s decision to preemptively strike all jurors with family members who had asbestos claims; (3) the history of asbestos claims filed by Judge Bowen s father and mother; and (4) the settlement release signed by Judge Bowen s father with Union Carbide, we find that a reasonable person, knowing all of the circumstances, would harbor doubts about Judge Bowen s impartiality in this particular case. See Code of Judicial Conduct Canon 3(E)(1); Hill v. Mills, 26 So.3d 322, 334 (Miss. 2010). Brown En Banc Order Oct. 6, Asbestos Medicine November 2013

11 On October 17, 2011, the Supreme Court of Mississippi appointed Judge William F. Coleman to preside over Brown and consider the parties post-trial briefing, including the additional motions to vacate Judge Bowen s final judgment on the jury s verdicts. Judge Coleman vacated Judge Bowen s final judgment on the jury s verdicts and granted COP and UCC a new trial. Brown II COP resolved Brown s claim on very favorable terms. With special Judge William F. Coleman presiding, UCC tried Brown II to a defense verdict. Key Rulings/Actions from Hot Jurisdictions Take Home Exposure New Development Georgia Pacific v. Farrar, Court of Appeals, Maryland, July 8, 2013 The highest court in Maryland issued a decision that will likely impact future failure to warn claims involving take-home exposure to asbestos. The decision brings the state of the scientific knowledge on the take-home exposure issue front and center and assesses the impact of this knowledge, or lack thereof, on a defendant manufacturer s duty to warn. The decision takes the long view as to when scientific knowledge of the danger of take-home exposure reached critical mass and ties that knowledge to OSHA regulations issued in Defendants now have case law support for the position that failure to warn cases alleging take-home exposures before 1972 should be dismissed. In Farrar, plaintiff, Jocelyn Farrar, claimed she contracted mesothelioma from exposure to asbestos brought home on her grandfather s clothes in She was responsible for shaking out and laundering his clothes and sweeping the dust from the floor. Farrar alleged that her grandfather, who was a mechanic in the construction industry, was exposed to asbestos from drywall workers use of Georgia Pacific s Ready-Mix joint compound in an approximately 6-7 month period in Her grandfather did not personally use any Georgia Pacific products and was himself a bystander. The issue before the court was whether Georgia Pacific had a duty to warn the granddaughter, who was essentially a bystander of a bystander, of the danger from contact with the dust on her grandfather s clothes. The lower courts held that such a duty existed but the highest court in Maryland disagreed and reversed the verdict issued in favor of Farrar. In reaching its decision, the Maryland Court of Appeals assessed the state of the case law on take home exposures generally and looked at how courts across the country have treated take home cases in cases brought three different contexts: (1) claims against the employer; (2) cases against the premises owner; and (3) cases against the manufacturer. The cases are not consistent but the Farrar court noted that courts have generally used foreseeability as one of the main factors to assess whether a duty to warn exists. The Farrar court aptly pointed out, however, that foreseeability is inextricably linked to the facts that were known or should have been known to a defendant at the time the warning would have been given. The court conducted an extensive review of the state of the scientific knowledge when plaintiff claimed exposure and noted that there is a gap in th[e] analysis one to which courts are now paying greater attention. The court pointed out that that although it is true that the danger from bringing toxic substances generally into the home was known as early as 1930, the connection between lung disease and exposure to asbestos dust brought into the home on the clothing of workers was not generally recognized until decades later. Upon analyzing the data, the court rejected the plaintiff s contention that Georgia Pacific s duty to warn existed as early as the late 1950s or early 1960s as this conclusion failed to square with the evidence. Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and... Lawson et al. 335

12 The court found that none of the information in the following publications submitted by plaintiff showed evidence that there was scientific knowledge of the potential hazards associated with take-home exposure: Mortality from Lung Cancer in Asbestos Workers, by Richard Doll, published in Brit. J. Indust. Med., 1955, 12, 81; Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province, by J.C. Wagner, C.A. Sleggs, and Paul Marchand, published in Brit. J. Industr. Med. 1960, ; and Muriel Newhouse and Hilda Thompson, Mesothelioma of Pleura and Peritoneum Following Exposure to Asbestos in the London Area, published in Brit. J. Industr. Med. 1965, 22, 261. The court stated that the 1965 Newhouse and Thompson study was more significant than the others because it showed evidence that 9 out of 76 subjects who lived in the vicinity of an asbestos factory in London developed mesothelioma or asbestosis after being exposed to dust brought home by a family member. However, the court found it to be significant that at the July 1971 meeting organized by the International Association of Heat and Frost Insulators and Asbestos workers, Dr. Selikoff acknowledged the existence of the Newhouse and Thompson study but observed that research was being done in New York on the problem and that so far, fortunately, the data looks reassuring. The court held that given (1) the skimpy state of the knowledge at that time regarding the danger to household members from asbestos dust; (2) the inability to give warnings directly to household members like plaintiff; and (3) the inability of any warnings given at that time to have had any practical effect, there was no duty on the part of Georgia Pacific to provide a warning to plaintiff. The court was also influenced by the fact that the household member affected had no relationship with the manufacturer, was not in contact with the product, and was never on the work site where the product was used. The bottom line is that this decision is heralded as one which further narrows the context in which plaintiffs are able to successfully bring take-home exposure cases and will be a valuable addition to the arsenal of defense lawyers in asbestos cases. Punitive Damages Status 1. Activities in MDL-875: Defendants seek to continue to transfer and centralize all claims for punitive damages in MDL-875 Consistent with its policy to compensate injured plaintiffs rather than to award windfalls, the MDL court continues to sever and retain all claims for punitive damages to be resolved at a future date. See e.g. In re Asbestos Prods. Liab. Litig., 2013 U.S. Dist. LEXIS 93941, 3-4, FN 1 (J.P.M.L. June 26, 2013). However, pursuant to JPML Orders of December 2011, November 2012, and April 2013 (adopting Judge Robreno s Suggestions), transfers of asbestos actions to the MDL under Rule 7.1 are no longer permitted by the Panel, except in the case of cases transferred from the Northern District of Ohio, the Northern District of California, and certain cases from the Seventh Circuit. See. e.g., In Re: Asbestos Prods. Liab. Litig. (No. VI), 830 F. Supp. 2d1377 (J.P.M.L. 2011). The barring of transfers of asbestos matters from virtually all jurisdictions to the MDL has had the effect, unintended or not, of preserving punitive damages claims for immediate resolution in some cases not transferred to the MDL. This fact has not been lost on defendants and a group of defendants have filed a motion seeking to amend the JPML Orders so that the claims for punitive damages may be severed and continue to be transferred to the MDL for future resolution, while other claims proceed in the judicial districts where the case was filed. As of the date of this writing a decision on defendants motion filed in the MDL had not yet been issued. If the defendants motion is denied the negative implications are obvious and a strategy will need to be devised to address the issue of punitive damages. 336 Asbestos Medicine November 2013

13 Some jurisdictions have addressed the issue of punitive damages through legislation which precludes the recovery of punitive damages in the asbestos context. Based on due process concerns, however, legislation aimed at precluding the recovery of punitive damages in asbestos case will likely only have prospective effect. It may be that if defendants efforts to have punitive damages claims transferred to the MDL fail, they may need to seek to have the MDL s position on punitive damages adopted in state and federal courts across the nation. 2. Punitive Damages Activities in state court a. New York Plaintiffs continue effort to amend the 1996 CMO to remove section XVII bar to punitive damages Following in the MDL s footsteps, the New York County asbestos docket deferred all punitive damages claims indefinitely through section XVII of its 1996 CMO. However, since the elevation of Justice Freedman (architect of the 1996 CMO) to the appellate bench, and the appointment of Justice Heitler in 2008, the plaintiff bar has made several efforts to move the court to amend the CMO to eliminate the deferral of punitive damages claims. Their latest effort took the form of a motion filed on March 5, 2013 entitled Joint Plaintiffs Motion Seeking Order Vacating CMO Section XVII. An amended motion was subsequently filed on April 2, The Plaintiffs motion argues that the deferral of punitive damages claims was never meant to be permanent, that the reasons for the deferral are no longer valid or justified, and that, the deferral of punitive damages claims is both ethically and constitutionally infirm. Plaintiffs raise the issue that punitive damages claims are being allowed in other states raising potential Equal Protection issues as previously recognized by Judge Freedman after entry of the CMO. Plaintiffs listed asbestos decisions in California, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maine, Missouri, New Jersey, Ohio, Pennsylvania and Texas where punitive damages claims were allowed. As of this writing plaintiffs motion had not been noticed or heard. However, it is fair to assume that plaintiffs will continue to press this effort. New Developments Administration of Non-Malignancy/Non-Mesothelioma Cases A number of courts and legislatures have been grappling with the issue of how to administer the wealth off non-malignancy cases clogging their dockets. Below are some of the court and legislative solutions that have been proposed or adopted this year. Texas Texas new law H.B addresses the dismissal of inactive cases in the Texas asbestos and silica MDL Courts that were originally filed before September 1, 2005 and in which the plaintiffs have not provided qualifying medical information. As passed, H.B requires that, beginning September 1, 2014, the Texas asbestos MDL Court will dismiss each inactive asbestos case that was pending on August 31, 2005, unless the plaintiff in the case files qualifying medical information on or after September 1, All such actions are to be dismissed by August 31, If a dismissed plaintiff subsequently develops a qualifying medical condition, that plaintiff can re-file his or her case and the new action will be treated as if it were never dismissed. Traditional service of the new action will not be necessary and can be accomplished by Certified Mail or any other means approved by the Texas asbestos MDL Court. H.B is so new at this point that it will take time to determine how plaintiffs and their attorneys will respond. Also, many Texas asbestos plaintiffs attorneys may have wanted H.B to pass mostly to rid themselves of never-ending obligations to plaintiffs with cases of little to no value. We also do not yet know what steps the Texas asbestos MDL Court will take to effectuate H.B or what constitutional challenges to the law may ensue. Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and... Lawson et al. 337

14 Florida Both the Dade and Broward County asbestos judges requested briefing this year on the issue of administration of non-malignancy cases currently reactivated in light of the Florida Supreme Court s decision in American Optical Corp. v. Spiewak, 73 So.3d 120 (Fla. 2011). Prior to the Spiewak decision, courts in Florida were routinely dismissing non-malignancy cases that did not meet the stringent medical and other requirements necessitated by the Florida legislature s tort reform law, the Asbestos and Silica Compensation Fairness Act (the Act ), which became effective in Asbestos and silica cases that were not dismissed outright were essentially confined to a black hole of inactivity as defendants took the position that they were no longer viable and plaintiffs counsel awaited word from the Florida Supreme Court given the split in two Florida appeals districts on how the matter should be resolved. When the Florida Supreme Court revived these cases through its holding in Spiewak that the retroactive application of the Act violated due process by stripping the plaintiffs of their already vested causes of action, it was feared that the proverbial floodgates had been opened. Interestingly, instead of the anticipated flood what has resulted has been a slow trickle of the so-called pre- Act cases being noticed for trial, with none having been tried to date. Both Dade and Broward county judges have lamented that at the current rate the backlog of cases will not be tried in their lifetimes. As of this writing, briefing was complete in Dade County and was just beginning in Broward County. Despite certain defendants urging the court to put a Lone Pine type order in place in Dade County which would borrow aspects of the requirements of Administrative Order N. 12 utilized in the MDL, the Dade county judge has ruled that for now she will take an approach urged by some of the defendants and agreed to, at least in part, by plaintiffs counsel involved in the vast majority of cases. Specifically, the court ruled that plaintiffs may set the cases for trial 50 at a time in case number order with a 9 month lead time until trial. She declined to order that plaintiff s provide any type of medical report from a qualified physician (as opposed to the questionable diagnoses by previously discredited doctors submitted by plaintiffs counsel) as a pre-condition to the cases being viewed as trial ready. The judge left the door open, however, for subsequent reassessment. Baltimore City, Maryland In the master asbestos case in Baltimore City, Maryland, the law office of Peter G. Angelos filed a motion on June 19, 2010, seeking the consolidation of more than 13,000 plaintiffs represented by it for a trial which will address eight categories of issues for all plaintiffs and all issues for 15 individual plaintiffs. These are purportedly non-mesothelioma asbestos cases. Certain defendants requested that the court deny the plaintiff s motion for asbestos case consolidation and adoption of a trial plan and instead requested entry of a Lone Pine type administrative order fashioned from Administrative Order No. 12 used in the MDL. Defendants memorandum was filed in March, As of the date of this writing a decision had not yet been issued by the Baltimore City Court. 338 Asbestos Medicine November 2013

15 Endnotes 1 Mangialardi holds: (a) asbestos and other toxic tort litigation is not exempt from the joinder requirements of Rule 20, Mississippi Rules of Civil Procedure, as amended, and the principles enunciated in Janssen Pharmaceutica, Inc. v. Armond; (b) toxic tort claimants must comply Rules 8, 9, 10, and 11, Mississippi Rules of Civil Procedure, and their complaints must include basic, cause-specific information, known at the time of filing, including which [claimant] was exposed to which product manufactured by which defendant in which workplace at any particular time, without resort to discovery; (c) toxic tort claimants have the burden of proof and must justify within the complaint the joinder of multiple causes; and (d) the cause of each claimant not comporting with these requirements should be dismissed. Id. at See also Canadian National/Illinois Central R.R. Co. v. Smith, 926 So. 2d 839 (Miss. 2006) (the causes of misjoined claimants that cannot sustain venue where originally filed must be severed and their causes should be dismissed, without prejudice) and Creel v. Bridgestone/ Firestone North American Tire, LLC, 950 So. 2d 1024 (Miss. 2007) (holding retroactive the rule of Canadian National, compelling dismissal, without prejudice, of the causes of misjoined claimants that cannot individually sustain venue were originally filed the transferor forum). 2 The first asbestos suit prosecuted by Judge Bowen s parents, styled John D. Abston, et al. v. GAF Corp., et al., was filed by James R. Hartzog June 19, 1989, and is formerly pending in the Circuit Court of Jackson County, Mississippi, under Cause No (2). Judge Bowen s parents sought money damages of not less than $1,000,000 allegedly owed them for physical and personal injuries stemming from Howard J. Bowen s asbestosis, which, Judge Bowen s parents alleged, resulted from his occupational exposure to asbestos as a shipyard welder. The second asbestos suit prosecuted by Judge Bowen s parents, styled Harrell B. Barry, et al. v. Westinghouse Electric Corporation, et al., was filed by Richard F. Dickie Scruggs, P.A., August 5, 1992, and, upon information and belief, remains pending in the Circuit Court of Jackson County, Mississippi, under Cause No (1). Judge Bowen s parents sought money damages for physical and personal injuries, including pain and suffering, resulting from Howard J. Bowen s asbestosis and fear of contracting future illnesses stemming from his asbestosis. A third asbestos claim was prosecuted by Judge Bowen s father against the Manville Personal Injury Settlement Trust. Through this claim, Howard J. Bowen sought financial compensation for physical and personal injuries stemming from his asbestosis as the result of occupational exposure to the asbestos supplied by JMC. Bounced Verdicts: Brown v. Union Carbide and Conoco Phillips and... Lawson et al. 339

16

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