Fall 2009 Volume 8 Issue 2 Reversal of the Lipke Rule Welcome I N S I D E EDITORS Edward J. McCambridge William F. Mahoney ASSOCIATE EDITORS

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1 Fall 2009 Volume 8 Issue 2 We Make The Complex Simple Reversal of the Lipke Rule By Edward J. McCambridge In 2001, Clarence Nolan and Sally Nolan filed a complaint against twelve defendants alleging that exposure to defendants asbestos products caused Mr. Nolan to contract the cancer known as mesothelioma. Mr. Nolan died prior to trial and Mrs. Nolan was substituted as executrix. Prior to January 12, 2004, eleven defendants either settled or were dismissed, leaving Weil-McLain as the sole defendant in the case. Mr. Nolan was a pipe fitter who began his career in Over the next 38 years, he may have worked with or around Weil-McLain boilers 20 to 25 days. Mr. Nolan worked at many other locations where he was exposed to a wide variety of asbestos products including asbestos thermal insulation which was not manufactured, sold or distributed by Weil-McLain. In fact, Mr. Nolan testified at his evidence deposition that he worked at Lauhoff Grain where asbestos insulators worked above him, causing asbestos dust to rain down on him. Mr. Nolan s son Randy testified that when he worked with this father at Quaker Oats, 75% of the time they were performing pipefitting work where he and his father removed asbestos pipe covering and inhaled large amounts of the dust. They also worked around insulators who created dust while installing asbestos pipe covering. Mr. Nolan developed Cont. on page 2 Welcome This issue covers a wide range of hot topics. Our victory in the case of Nolan v. Weil signals the death of the Lipke Rule. Cameron Turner and I explain what the Supreme Court held in both the Nolan and Ready decisions. Catherine and Jim lay out the new requirements for Medicare reporting. Mercury exposure allegations regarding energy efficient light bulbs is explored by Kathleen as well. Melissa Fallah reviews new sources of asbestos exposure. John and Nathan examine what happens after an asbestos MDL remand. If you need any further information regarding these matters, feel free to contact us. Let us know what you think about these subjects. We all would be very happy to discuss this litigation. Very truly yours, Edward J. McCambridge I N S I D E Nolan and Ready: How Do The Opinions Relate? By Cameron D. Turner...5 A Bright Idea? Mercury Exposure Due to Energy Efficient Light Bulbs By Kathleen M. McDonough and Wil Comer...7 Considerations in Litigating Cases Remanded from Federal Asbestos MDL 875 By Nathan R. Horne and John A. LaBoon...9 New Mandatory Reporting Requirements for all Liability Insurance Plans and Self-Insureds By Catherine E. Goldhaber and James L. Svajgl Two Recent Lawsuits Claim CSI: Crime Scene Investigation Toy Kits Contain Asbestos By Melissa M. Fallah Not Just Insulators Anymore: The Rise of Dental-Related Asbestos Lawsuits By Melissa M. Fallah State Law Updates EDITORS Edward J. McCambridge William F. Mahoney ASSOCIATE EDITORS John A. LaBoon Steven R. Rosenblatt Austin Baltimore Chicago Detroit Jersey City New York Philadelphia 2009 Segal McCambridge Singer & Mahoney, Ltd.

2 asbestosis (a different and distinct disease from mesothelioma) in He brought suit against a number of companies alleging that his asbestosis was caused by exposure to their asbestos-containing products. Weil-McLain was not named in that suit. In the suit against it, Weil-McLain denied that Mr. Nolan s limited exposure to its boilers over a lengthy career was a proximate cause of his mesothelioma. Weil-McLain produced evidence to show that exposure to certain asbestos component parts in its boilers, if even present, could not cause the mesothelioma because the dose from the exposure and the asbestos fiber type was insufficient. At trial, Weil-McLain sought to show the jury that the proximate cause of the mesothelioma was the massive exposure Mr. Nolan had to thermal insulation and other products for the vast proportion of his working life, and that those products contained a fiber type which had a more potent potential to cause mesothelioma. Unfortunately, Weil-McLain was prevented from informing the jury of any other exposure Mr. Nolan might have had to any other asbestos product because of what had become known as the Lipke Rule. This Lipke Rule was allegedly clarified by Kochan v. Owens Corning Fiberglass 1 and Spain v. Owens Corning Fiberglass. 2 The genesis of the Lipke Rule is a fascinating story in Illinois jurisprudence. I represented a co-defendant in the Lipke case and had a ringside seat to the events prior to trial. In fact, I deposed Donald Lipke for 5 days. He was a union insulator who worked at many job sites, and was exposed to a wide variety of asbestos insulation materials. At deposition, we examined Mr. Lipke as to each of the job sites. He was asked to identify the products he was exposed to at each site. After Mr. Lipke listed the products, he was asked if he remembered any other product to which he was exposed. Generally, he did not recall other products. 48 Insulation was a company that manufactured asbestos thermal insulation, and had fallen on hard times. It chose not to be represented by counsel at Mr. Lipke s discovery deposition. Mr. Lipke had not identified 48 Insulation specifically at any site during the deposition, and also did not bring it up when he was asked if he remember any other products. 48 Insulation was the only defendant left when the trial started; all other defendants had either settled or been dismissed. 48 Insulation s defense was that there was no product identification, and that Mr. Lipke s lung cancer was caused by his heavy smoking habit. At trial, plaintiff did identify various 48 Insulation products as he had done in his interrogatory responses. The defendant objected on the basis that Mr. Lipke was changing his testimony from his deposition. Remembering that 48 Insulation chose not to be present and ask the specific question about identification of its products, the Judge overruled the objection stating that the testimony was consistent with the interrogatory responses. The defendant further opened the door by asking Mr. Lipke what his answer would have been if asked those questions at the deposition, to which he gave a direct answer regarding exposure to 48 Insulation products. The Judge did not allow the defendant to show that Mr. Lipke was exposed to other similar types of asbestos thermal insulation products over the years. The jury returned the verdict of $629,000 in compensatory damages and $175,000 in punitive damages against 48 Insulation. After the verdict, 48 Insulation filed for protection under Chapter 11 of the Bankruptcy Act. The court in Nolan noted that the focus of the 48 Insulation appeal was against the punitive damage award and the product identification testimony, alleging that the court allowed the plaintiff to change his testimony Insulation did not claim that the other defendants were the sole proximate cause of the plaintiff s injury. The appellate court upheld the court s ruling on the punitive damage issue and on the product identification issue. 4 One single paragraph of dicta from the appellate court related to the issue of other defendants products. At 106 Ill. Dec. 422, 430, the court stated: Defendant asserts the trial court wrongfully excluded evidence of plaintiff s exposure to other products. Illinois courts have long recognized that there can be more that one proximate cause of an injury. In such a situation, one guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury (Sears v. Kois Bros. Equipment, Inc., (1st Dist. 1982) 110 Ill.App.3d 884, 889; 66 Ill. Dec N.E.2d 214, appeal denied, 93 Ill.2d 548). Under Romine v. City of Watseka (2nd Dist. 1950), 341 Ill.App. 370, 377, 91 N.E.2d 76, where such guilt exists, it is no defense that some other person or thing contributed to bring about the result for which damages were claimed. Either or both parties are liable for all damages sustained. Thus the fact that the plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries. Evidence of such exposure is not relevant. The Lipke Rule was expanded in the case of Kochan v. Owens Corning Fiberglass, ibid. In 1986, Judge Charles 2

3 Chapman entered a blanket order to apply to all Madison County asbestos cases granting plaintiff s motion in limine to exclude any evidence that plaintiff had been exposed to any asbestos-containing product manufactured by any other entity not a party at the time of trial relying on the Lipke Rule At trial, the Judge in Kochan refused to modify the order of Judge Chapman and again relied on Lipke. In Kochan, Owens Corning Fiberglass denied that it was a cause-in-fact of the plaintiff s injury and asserted that evidence of other exposures to other products was necessary and should have been admitted because the jury could not make the determination of cause-in-fact unless it knew all other exposures. In affirming the lower court s ruling, the appellate court expanded the Lipke Rule, holding that evidence of exposure to other asbestos-containing products is not relevant in cases in which actual cause or cause-in-fact is disputed. Such evidence is always irrelevant because it is impossible to determine whether a specific exposure caused injury, and allowing defendants Edward J. McCambridge Shareholder Chicago to present evidence of plaintiff s exposures to other products whose manufacturers are not defendants in the trial only confuses the jury. Therefore, the purpose for which the evidence is offered is inconsequential. 5 The Fourth District further expanded the Lipke Rule in Spain v. Owens Corning Fiberglass, ibid. [Defendant Owens Corning presented a motion in limine requesting the court to allow it to present evidence of other exposures to asbestos products manufactured by Owens Corning Fiberbglass alleging that the evidence supported the theory that the third party was the sole proximate cause of the decedent s injury and death.] The court denied the motion relying on Lipke. The appellate court in Spain held that once a plaintiff satisfies the frequency, regularity and proximity tests, as set out in Thacker v. UNR Industries, Inc., 6 defendant is presumed to be a proximate cause of decedent s asbestos injury. Furthermore, Spain held that the Illinois Supreme Court s ruling in Leonardi v. Lloyola Universtiy of Chicago, 7 was inapplicable to asbestos cases. In Leonardi, testimony regarding an alternative cause was allowed. Returning to the Nolan trial, Judge D Armond stated numerous times during the trial that although he did not favor the Lipke Rule, he was bound by stare decisis to follow it. The jury rendered a verdict in favor of the plaintiff, awarding $2,368,000 in damages. This award was reduced by $1,222,500 for set-offs. In a fifty-eight page written order denying defendant s post trial motion, Judge D Armond set out his belief that Lipke, Kochan and Spain were inaccurate interpretations of the law as set down by Thacker & Leonardi. At page 41, he stated: Kochan... has created an undefendable posture for defendants in asbestos litigation which surely cannot be what was originally intended by the court in Lipke. They made it clear that proof of guilt was a prerequisite to the application of the rule of exclusion. Such an interpretation will be inconsistent with the basic tort principles upon which the ruling was based. At page 48, the Judge further stated (emphasis in original): However, the current state of the law precludes evidence of other exposures as long as there is any evidence of exposure to defendant s product. Thacker has been circumvented entirely by plaintiff s experts who testified that all exposures, of any level, to any frequency or degree are sufficient, and all exposures are substantial contributing factors in the plaintiff s illness or death. Defendants are permitted to present evidence to the contrary but cannot point to any other exposures as the sole proximate cause. This court will reluctantly follow the law as it currently exists and therefore concludes it was not error to preclude Weil-McLain from introducing evidence of the plaintiff s exposure as to other asbestos containing products. Finally at page 45 he stated: [T]he difference here is that defendants in asbestos litigation are precluded by what this court considers to be a misapplication of Lipke from submitting evidence that some other instrumentality was the sole proximate cause of the plaintiff s illness or death. What is the duty of the trial court then when faced with a situation where it does not believe the law, as it is applied, takes into consideration the state of current science surrounding asbestos and asbestos related illness or where the court believes the law was not intended to apply to the exact fact situation before it. 3

4 The appellate court affirmed the lower court relying upon Lipke, Kochan and Spain. However, Justice Steigmann s dissent set up the issues for the Illinois Supreme Court. He argued that a defendant should be able to negate causation by showing that the decedent s exposure to other asbestos-containing products or fibers was extensive, and that exposure to the defendant at trial was either negligible or insignificant when compared to the extensive exposure of other asbestos-containing products. The trier-of-fact should be permitted to decide whether the decedent s exposure constitutes the sole proximate cause of the decedent s injury. He relied upon Section 431 of the Restatement (Second) of Torts and Comments A and B thereto. He also noted that the Lipke Rule existed only in Illinois. He found it troubling that Illinois was the only state to adopt such a rule. He also noted that the trial judge, in a clear, thoughtful and scholarly memo denying defendant s post-trial motion, was quite unhappy in doing so. In a five to one opinion, the Illinois Supreme Court disposed of the Lipke Rule. Even Justice Kilbride s dissent agreed that the rule should not exist. The court first tackled the presumption of causation. If Thacker created the presumption of causation that plaintiff suggests, then the appellate court s exclusion of evidence was correct. The court held no such presumption existed: In subsequently interpreting our decision in Thacker, however, our Appellate Court has erroneously concluded that Thacker stands for the proposition that once a plaintiff meets the frequency, regularity and proximity test, he or she thereby establishes legal causation. This error is evident in the opinion of the appellate panel below, which held that [o]nce a plaintiff satisfies the Thacker test, a defendant is presumed to be a proximate cause of the decedent s asbestos injury. 365 Ill.App.3d at citing Thacker, 151 Ill.2d at This court in Thacker created no such presumption. The lower court s incorrect reading of Thacker conflicts not only with our clear language of that opinion, but also with our goal of adopting a test to fairly balance the interests of the plaintiffs and defendants in these actions. Thacker reaffirmed the axiomatic rule that a plaintiff alleging personal injury in any tort action - - including asbestos case - - must adduce sufficient proof that the defendant caused the injury. Nolan at 433. The Illinois Supreme Court agreed with the trial court that Lipke was never intended to result in a presumption of liability in asbestos cases. Such an approach removes from the jury the determination of whether the defendant s conduct is a proximate cause of the plaintiff s injury. It is contrary to Leonardi to deny a defendant the opportunity to contest proximate cause. Because Kochan improperly extended Lipke to hold that other-exposure evidence may be barred as irrelevant in cases in which cause is disputed, Kochan was overruled sub silento by Leonardi. We now make explicit what was previously implicit: We specifically overrule that portion of Kochan which holds that other-exposure evidence is irrelevant. Nolan at The Illinois Supreme Court found that Spain not only perpetuated erroneous interpretation of Lipke, but also incorrectly read the court s ruling in Thacker and Leonardi. Given that Spain conflicts with both Thacker and Leonardi, the court overruled it.... the Appellate Court s erroneous interpretation of Lipke, Thacker and Leonardi and its rulings in Kochan and Spain left Illinois standing alone in excluding evidence of other asbestos exposures, and conflicted with our well-settled rules of tort law that the plaintiff exclusively bears the burden of proof to establish the element of causation through competent evidence, and that a defendant has a right to rebut such evidence and also establish that the conduct of another causative factor is the sole proximate cause of the injury... In sum, the exclusion of evidence of decedent s other exposures to asbestos eliminated evidence of alternative causes for decedent s injuries, improperly preventing defendant from supporting its sole proximate cause defense... Nolan at 444, 448. Clearly, the Illinois Supreme Court put an end to the Lipke Rule that was being used as a weapon against defendants in asbestos litigation throughout Illinois. The opinion is well written and unambiguous. When a defendant claims that it is not the proximate cause of plaintiff s injury, it has a right to produce evidence to show what products or practices were the proximate cause of the claimed disease. The Illinois Supreme Court reversed the judgment and remanded the case for further proceedings to the trial court. The case will be retried at some future date. Endnotes Ill.App.3d 781, 610 N.E.2d 683; 182 Ill. Dec. 814 (5th Dist.1993). see Lipke Rule continued on page 20 4

5 Nolan and Ready: How Do The Opinions Relate? By Cameron D. Turner Nolan v. Weil-McLain was issued by the Illinois Supreme Court only a few months after the court issued its opinion in Ready v. United/Goedecke Services, Inc., 1 and only a few weeks after the court revised its order and remanded to the appellate court to determine if the defendant should have received a sole proximate cause jury instruction. When the original Ready opinion was issued, many prognosticators believed that the Illinois Supreme Court had shown its hand in Nolan and that the outlook was bleak for asbestos defendants. However, those who predicted that the Lipke rule would be upheld in Nolan were wrong. Notably, both the Ready and Nolan opinions were written by Justice Freeman, and the Nolan opinion does not mention Ready even once. The question that follows is how, if at all, should Ready and Nolan be read together, and how might plaintiffs attorneys attempt to use Ready to circumvent Nolan in asbestos cases? Ready was a standard wrongful death case involving a decedent who died at a construction site after being struck by a falling wooden truss. 2 United/Goedecke was the scaffolding subcontractor in charge of lifting scaffolding materials at the site. 3 Pursuant to rulings on motions in limine, United/Goedecke was not allowed to introduce evidence regarding the conduct of defendants who had settled prior to trial and was not allowed to list the settled defendants on the verdict form. 4 The jury returned a verdict against United/Mr. Goedecke for $14.23 million and allocated 35% fault to the decedent, Ready. 5 Following Section of Illinois Code of Civil Procedure, the trial court ordered that United/Goedecke was jointly and severally liable for the amount of the verdict after being entitled to setoffs for the amount of settlement paid by the settled defendants. 6 Ultimately, United/ Cameron D. Turner Shareholder Chicago Goedecke was liable for $8.137 million of the verdict. 7 On appeal to the Illinois Supreme Court, United/Goedecke argued that the trial court erred in failing to include the settled defendants on the verdict form to allow the jury to allocate a percentage of fault to these defendants. 8 United/ Goedecke argued that, had this occurred, the jury might have allocated less than 25% fault to United/Goedecke. 9 Then, pursuant to Section , United/Goedecke may have been held only severally liable for the verdict. 10 The Illinois Supreme Court s analysis in Ready focused solely on the language and intent of Section which states: Joint Liability. Except as provided in Section , in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff s past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages. The court centered on the meaning of defendants sued by the plaintiff and whether that included settled defendants within the context of Section It determined that the plain meaning of the statute was ambiguous on this point and looked to evidence of legislative intent to interpret the meaning of defendants sued by the plaintiff. 12 Ultimately, the court held that the Illinois legislature did not intend to include settled defendants within the definition of defendants sued by the plaintiff, and thus, the settled defendants should not have appeared on the verdict form in the Ready trial. 13 Pursuant to a revision to the original Illinois Supreme Court opinion, the case was 5

6 remanded to the intermediate appellate court to determine whether United/Goedecke was entitled to a sole proximate cause instruction. 14 An oversimplified resolution of Nolan and Ready would note that Nolan was an asbestos case and Ready a construction injury case. The problem with this analysis, however, is that the Nolan court was clear to state that asbestos cases are still negligence cases subject to common law principles of negligence. Using that as a starting point allowed the court to reach its ultimate conclusion that fundamental principles of negligence law entitled an asbestos defendant to put on other exposure evidence to establish a sole proximate cause defense. To the extent that the factual differences are important in Nolan and Ready, it is solely because the statute that applies joint and several liability is different in asbestos cases versus other types of negligence cases, such as construction cases. In Illinois, Section of the Code of Civil Procedure applies to asbestos cases and unequivocally holds that asbestos defendants are always jointly and severally liable regardless of percentage of fault that might be allocated to them. Thus, the issue in Ready whether under Section a defendant is entitled to include settled defendants on the verdict form is almost certainly a non-issue in asbestos cases, where the degree of fault is never determinative of whether an asbestos defendant is jointly and severally liable. In sum, to the extent that Ready impacts asbestos cases in any way, it is merely to confirm what asbestos defendants in Illinois have known for a long time that only the defendants at trial go on the verdict form and that the jury does not typically allocate relative percentages of fault. Plaintiffs attorneys will likely try to use Ready for the general proposition that defendants in negligence cases are not always entitled to admit evidence of other parties conduct, as that evidence was not allowed in the Ready trial and the Illinois Supreme Court did nothing to disturb the trial court s ruling. This argument is misleading for a number of reasons. First, the Illinois Supreme Court was never presented with the issue of admissibility of evidence of the settled defendants conduct. The issue before the court and the sole issue addressed in its opinions was whether Section entitles a defendant at trial in certain types of negligence cases to have settled defendants included in the verdict form. Second, the intermediate appellate court in Ready indeed did overturn the trial court s ruling that evidence of settled defendants conduct was inadmissible. Finally, Nolan does not stand for the proposition that defendants in negligence cases are always entitled to admit evidence of the conduct of other parties (or, as the case may be, admit other exposure evidence). Nolan holds that an asbestos defendant which asserts a sole proximate cause defense through competent evidence is entitled to admit evidence of other exposures. The procedural history of Ready affirms this holding for other negligence cases where a defendant asserts a sole proximate cause defense. The intermediate appellate court in Ready agreed that United/Goedecke was entitled to admit evidence of settled defendants conduct because, as at least suggested by the Illinois Supreme Court s recent revised order, United/Goedecke had presented sufficient evidence to advance a sole proximate cause defense. And, of course, the Nolan opinion is based directly on a prior Illinois non-asbestos case, Leonardi, that allows a defendant who puts on a sole proximate cause defense to point the finger at the claimed cause of plaintiff s injury. In sum, Ready has very little impact on asbestos cases, other than to confirm what asbestos defendants have already known that settled defendants and non-parties do not go on the verdict form. Ready should not affect Nolan s unequivocal holding that an asbestos defendant can admit evidence of other exposures to establish, through competent evidence, a sole proximate cause defense. Plaintiffs attorneys who try to use Ready to undermine Nolan should encounter a dead end. Instead, the potentially more productive route that plaintiffs attorneys might follow, is to challenge the competency of the evidence asbestos defendants offer to establish a sole proximate cause defense. Going forward, Illinois asbestos defendants must be diligent in discovery of product identification witnesses and plaintiffs and defense experts alike to solidify their sole proximate cause defense and overcome any argument that the defense does not satisfy the competent evidence threshold set forth in Nolan. Endnotes WL (2008, modified on denial of rehearing on March 23, 2009) 2 Ready at 1. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. at 2. 9 Id. 10 Id. 11 Id. at Id. at Id. at Id. at 8. 6

7 A Bright Idea? Mercury Exposure Due to Energy Efficient Light Bulbs By Kathleen McDonough and Wil Comer The Green Movement continues to significantly impact businesses and consumers in the United States and worldwide. Recognizing the opportunities for growth in this area, manufacturers have started designing more eco-friendly products to court a consumer market willing to spend more in the interest of energy conservation. High efficiency compact fluorescent lamps (CFLs) have quickly become staple items in the green product market. Not only are CFLs environmentally friendly, but they also last longer than incandescent bulbs and lower electric bills, creating multiple incentives for consumer purchase. However, CFLs do not come without risks. Each CFL bulb contains a small amount of mercury, a well-known neurotoxin that can be extremely hazardous at certain doses. CFLs contain an average of about four milligrams of mercury. 1 By comparison, older thermometers contain a significantly higher amount about 500 milligrams of mercury an amount equal to the mercury found in 125 CFLs. 2 Therefore, CFL disposal and cleanup in the event of a breakage is critical. Exposure to mercury can directly affect the central nervous and renal systems, causing developmental delays, and motor and brain problems. Some have associated mercury exposure with autism. 3 Further, the EPA estimates that nearly 11% of the mercury in broken CFLs is released into air or water when it is sent to a landfill, which if widely known, may be a disincentive to green consumer purchases of CFLs. 4 Theoretically, if all 290 million CFLs sold in 2007 were sent to a landfill, as opposed to being recycled, they would add 0.13 metric tons, or 0.1%, to U.S. mercury emissions caused by humans. 5 The threat of mercury toxicity and poisoning poses a potential liability issue for CFL manufacturers as well as commercial entities involved in their disposal, and puts them both at risk for future litigation. This article will examine the product liability issues associated with CFL manufacture and disposal. The Risks and the Law Chronic mercury poisoning is caused by long-term inhalation of dust or vapors; therefore, effective mercury collection and cleanup protocols are vital to protect against exposures. Federal regulations have been created to control the amount of mercury that makes its way into waste and landfills. 6 Many states have enacted even stricter legislation. Guidelines are necessary to inform the general public on waste disposal for products such as CFLs that are relatively new to the market. For example, the Environmental Protection Agency (EPA) regulates how hazardous wastes are managed and disposed under a program known as the Land Disposal Restrictions (LDR) program. 7 The EPA s Universal Waste Rule creates hazardous waste management standards for federally designated universal wastes, which include CFLs. These regulations apply more to businesses and communities that accumulate large quantities of waste that may create a hazard. 8 What To Do with a CFL Breakage Most consumers would not question how to dispose of a traditional incandescent light bulb. Mercury-containing lamps, however, should be recycled rather than simply being thrown away at the end of their life. The EPA encourages the use of CFLs and provides guidelines for remediating CFL spills. 9 According to the EPA website, several steps should be followed in order to properly handle a broken CFL. First, before attempting to clean after a broken bulb, it is important to air out the room. Opening a window for 15 minutes and shutting off 7

8 the central forced-air heating or cooling system assists a safe cleanup process. Next, rather than using a broom or vacuum, the glass and mercury powder should be collected with stiff paper or cardboard, and the debris should be placed in a glass jar with a metal lid or in a sealed plastic bag. If a vacuum is necessary for cleaning a carpet or Kathleen M. McDonough Shareholder Chicago Wil Comer Associate Chicago rug, the vacuum bag should be removed immediately and placed in a sealed plastic bag for disposal. Any remaining fragments can be collected with sticky tape or other adhesive. The area should also be cleaned with a damp paper towel or disposable wet wipe. Any cloth or bedding materials that come into direct contact with a broken CFL should be removed for disposal. Using a machine to wash those items could contaminate the machine or pollute sewage, and should therefore be avoided. Finally, all the cleaning materials should be placed in a sealed container for disposal and placed outside for the next scheduled trash pickup. In sum, the process is neither quick nor easy, but it will help eliminate the potential for mercury poisoning, as well as the expense of testing and cleanup that is likely to occur if the bulb is improperly handled. Universe of Potential Defendants High efficiency light bulb manufacturers have a unique liability issue because the bulbs are generally innocuous when used properly. Product liability is typically assessed where the defective condition of the product makes it unreasonably dangerous for use by the consumer. 10 A product may be considered unreasonably dangerous due to: (1) a design or manufacturing defect, or (2) a failure to warn consumers of a danger posed by the product of which the average consumer would not already be aware. 11 Manufacturers are obligated to place labels on their products that adequately warn consumers of potential hazards, while at the same time, providing the information in a concise, easy to read manner. There are two different theories for a product liability case premised on inadequate warnings. The first view is from the Restatement Second 402A, which established a precedent for strict tort liability in the majority of U.S. jurisdictions. Liability results when an injury is caused by any product sold in a defective condition that is unreasonably dangerous to the user or consumer, or to his property. 12 The defense under this theory normally arises when the manufacturer provides an adequate warning, which one may reasonably assume will be read and heeded. 13 A product bearing such a warning, which is safe for use if it is followed, is not defective or unreasonably dangerous. 14 The latter minority view adopts a rule that liability for failure to instruct or warn only exists where the product presents a risk that could have been reduced by adopting reasonable instructions or warnings. 15 Warnings may be inadequate if they do not specify the risk associated with the product, are inconsistent with how a product would be used, do not provide the reason for the warnings, or do not reach foreseeable users. 16 In the absence of adequate instructions or warnings, the product is deemed defective and the omission renders the product not reasonably safe. 17 This imposes a stricter standard of liability than the Second Restatement, but a plaintiff must also show actual physical harm proximately resulting from a defective or unreasonably dangerous condition of the defendant s product. 18 One other issue with strict liability is the consumer s role in disposing the product. Strict liability requires that a product be in the same condition at the time of the accident as it was when the product left the defendant s control. 19 Assuming no defect, the CFL does not pose a risk until the consumer breaks or improperly disposes the bulb. The subsequent act of the consumer could be considered an intervening cause of injury. If a third-party misused a product that leads to an injury, then the product s condition was not the proximate cause of the injury. 20 Conclusion CFLs are one of the few widely available product alternatives that cut down on personal energy consumption. It is important for consumers to know the dangers associated with products like CFLs, and for manufacturers to ensure product safety and adequate labeling. With proper pre- see Mercury continued on page 19 8

9 Considerations in Litigating Cases Remanded from Federal Asbestos MDL 875 By Nathan Horne and John LaBoon The federal MDL for asbestos cases, MDL 875, was established in According to its website, it currently handles the pending claims of approximately 3,500,000 individuals. Over the last eighteen years, it has been typically viewed by many as a black hole where cases were transferred in but were rarely remanded out. However, that has changed as Judge Eduardo Robreno has actively worked to remand cases where appropriate and return them to their home court. In the last six months alone there have been several hundred cases remanded, with many returning to Texas, Mississippi, and New York. In almost every instance, these are malignancy claims which are now moving toward trial. As most asbestos case are filed in state court, and because few of the cases transferred to MDL 875 over the last 18 years were remanded back for trial, there is not a long history of federal jury trials to look to for guidance on effective litigation strategies. Now, with many of these cases being remanded by Judge Robreno, defendants are having to address some interesting issues in defending the cases. Most of these questions are related to the amount of time the cases sat pending in the MDL, as they are now being remanded and will be litigated under state law in place at the time the case was originally filed. As any defense lawyer who has practiced in a state that has enacted tort reform can attest, the old rules were very different. For example, consider a hypothetical mesothelioma case removed from Jefferson County, Texas on diversity grounds in The case was transferred to MDL 875 and sat pending until Judge Robreno remanded it in September Many of the named defendants are among the 50+ companies that declared bankruptcy between 1997 and remand, so defense counsel now faces the prospect of representing one of the few solvent defendants remaining in the case. Under current Texas law, a defendant can file a motion to designate responsible third parties against the now bankrupt codefendants and/or a plaintiff s employer. If the defendant can meet the legal requirements, those parties should ultimately end up on the jury charge. Under the law in place in 1997, there was no responsible third party statute and defendants could not list non-parties or employers on the jury charge. Instead, a defendant can only seek to place responsibility on settling parties which do not include bankrupt entities. Further, the statutory threshold for joint and several liability in Texas was set at 15% in 1997 rather than the 50% threshold in place today. (For pre-1995 cases, there was no threshold for joint and several liability in toxic Nathan R. Horne Shareholder Austin John A. LaBoon Shareholder Austin tort cases.) Finally, if the case is tried and plaintiffs prevail, the prejudgment interest that has been accruing at a statutory 6% the entire time could easily double the verdict amount. Each jurisdiction has its own rule changes to consider. While Texas and Mississippi have had the greatest changes as a result of tort reform, New York has prejudgment interest set at 9%, which effectively quadruples the verdict of any case filed in Therefore, if a 1991 New York mesothelioma case were tried to a plaintiff s verdict, the amount due because of prejudgment interest would be seven times the jury award. There is also concern that some jurisdictions allow party actions brought by a defendant to circumvent any limitations periods that may have run. Thus, a defendant that may not have been named in the initial action may well find themselves being brought into a case filed years ago. see MDL 875 continued on page 19 9

10 New Mandatory Reporting Requirements for all Liability Insurance Plans and Self-Insureds By Catherine E. Goldhaber and James L. Svajgl On December 29, 2007, President Bush signed into law the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA). 1 The law creates new mandatory reporting requirements for liability insurance carriers (including Catherine E. Goldhaber Shareholder Chicago James L. Svajgl Associate Chicago self-insurance plans), no-fault insurance and workers compensations insurance plans (known under the law as Responsible Reporting Entities, or RREs). Since 2003, it has been the responsibility of injured parties or their counsel to ensure that Medicare s right of recovery to the amounts Medicare has paid for medical treatment was satisfied. 2 However, beginning January 1, 2010, this new law imposes reporting requirements on the payor for any settlement, judgment or award amount paid to a Medicare plaintiff for more than $5,000, and creates a penalty of $1,000 per day for non-compliance. 3 The reporting amount reduces from $5,000 to $2,000 in 2011 and $600 in With an estimated 44 million Americans currently enrolled in Medicare, 4 and approximately 10,000 Americans enrolling every week, counsel will need to ensure that they are versed in the requirements of MMSEA, and that the law s obligations are kept in mind through the course of discovery until final settlement negotiations. Purpose of the Law As a secondary payer, Medicare has broad statutory rights to recover the costs of any medical treatment it has made on behalf of an injured Medicare beneficiary prior to the disbursement of any award to a plaintiff, his attorney, or in satisfaction of any other liens. 5 The policy behind this was to ensure that taxpayers were not paying for medical treatment related to the fault of another entity (the primary payer). This new law was enacted to further ensure that Medicare was not picking up expenses considered to be the obligation of insurance companies, selfinsured organizations or other entities. By requiring the primary payer to report to the Centers for Medicare and Medicaid Services the identity of Medicare beneficiaries who receive settlements, judgments, awards or other payments, Medicare can more easily identify situations where a primary payer exists and assert their right to recovery for the costs of treatment paid by Medicare. It is also the responsibility of the payor to ensure that Medicare receives the payments. Thus, if your company settles a claim with a plaintiff who is a Medicare recipient, you must promptly report this settlement to Centers for Medicare and Medicaid Services (CMS) and ensure that Medicare is reimbursed within 60 days of notice or be potentially accountable for interest and double damages. 6 Who Must Report? The Act defines Responsible Reporting Entities (RREs) as any liability insurance (including self-insurance), no-fault insurance and workers compensation insurance plans. 7 The Act requires reporting to the Centers for Medicare & Medicaid Services (CMS) from entities that are making the payment to the injured claimant. This would exclude any excess, umbrella, or re-insurance entities from reporting so long as their payment is being made to reimburse and not going directly to the injured claimant. 8 What Must Be Reported? Beginning on January 1, 2010, any settlements, judgments or awards of $5,000 or more must be reported with CMS. 9 RREs will have to include the claimant s social security number, date of birth, the beneficiary s plan information, and the full amount of settlement, judgment, award or other payment. Further, in product liability mat- 10

11 ters, RREs must identify the product name and type that allegedly caused the injury. The motivation for the settlement does not impact the requirement to report even if no fault is admitted, defendants must adhere to the law. Date of Incident for Cases Involving Exposure The Act does not generally require the reporting of settlements, judgments or awards where the date of incident was prior to December 5, For cases involving exposure to asbestos, for example, this would mean that any payments made on behalf of claims for asbestos exposure prior to December 5, 1980, would not have to be reported. On the contrary, if the first date of a plaintiff s exposure was prior to December 5, 1980, but continued after that date, then Medicare would have a potential recovery claim and a report would be required. The Act s reporting requirements for cases involving asbestos exposure are also claim/defendant specific. For example, a plaintiff may pursue a claim for exposure against multiple defendants, but exposure for one of those defendants may have ended prior to December 5, Even though exposure for other defendants may have continued after that date, no reporting would be required for the claim against the pre-december 5, 1980 exposure. 11 Strategies for Compliance Because of these new reporting requirements, counsel for any of the RREs will need to ensure that the information required for compliance with the Act is obtained during the course of discovery. The onus is on the RRE to determine if the reporting requirement applies; therefore, defendants must ascertain during discovery whether the plaintiff is potentially a Medicare recipient. Medicare recipients may include persons age 65 and older, persons who have received Social Security Disability (SSDI) for not less than 24 months, and persons with end stage renal disease. 12 A person may receive SSDI for a variety of reasons so probative questions as to other medical conditions asked in interrogatories and at deposition are appropriate. These include inquiring as to the following: 13 1) Is the plaintiff working and earning more than an average of $980/month? If yes, they should not qualify for SSDI. If no, continue - 2) Is his/her condition severe such that it interferes with work related activities? If yes, then review whether his/ her condition is on the list of medical conditions that automatically qualify due to severity. Further inquire as to, 3) Can s/he do the work s/he did previously? If not, 4) Can s/he do any other type of work, taking into consideration medical condition, age, education, past work experience, and skills? If the answer is no, then the plaintiff may likely be a recipient of SSDI. There are also qualifications for widows who are disabled, people who are blind/have limited vision, for disabled children and for veterans. Counsel in jurisdictions that have form interrogatories should consider moving to amend those interrogatories to include an inquiry as to a plaintiff or decedent s status as a Medicare beneficiary, when they applied for Medicare benefits, and the dollar amounts of any medical treatment for which Medicare will have a right of recovery. Supplemental interrogatories or requests to admit should be propounded in pending cases that likely will not be ripe for settlement or resolution until after January 1, Attorneys in jurisdictions that have a master case management order should consider requesting that the court require that a plaintiff sign releases for the disclosure of any Medicare benefits along with those releases that are submitted for medical records, military records, and the like. Further, amendments should be made to standing orders to include a provision that any settlements or judgments may be held in trust while issues related to compliance with the Act are pending. Counsel should also be cognizant of the Act s requirements during a deposition. Acquiring testimony from a plaintiff that any alleged injury or exposure to a certain product would have occurred prior to December 5, 1980 will eliminate the need for any reporting. Additionally, all relevant information about a claimant should be probed during the deposition process. This would include a full name, complete social security number and date of birth, and whether or not the plaintiff intends on filing for Medicare, including SSDI, benefits throughout the duration of the case. Also, a complete medical history should be inquired into in order to differentiate Medicare payments for treatment not related to the alleged injury. During the settlement process, any executed releases will need to include an assertion that there is no lien or right to reimbursement by Medicare, and that if one is asserted it will be paid by the plaintiff. Releases should also be amended to include sworn statements by the plaintiff regarding their status as a recipient of Medicare benefits. If many cases are resolved simultaneously, plaintiff and defense counsel must be sure their records are identical as to the amount paid to each individual. Finally, consideration should be given to holding the funds in trust until Medicare confirms the total amount owed, with see Medicare continued on page 18 11

12 Two Recent Lawsuits Claim CSI: Crime Scene Investigation Toy Kits Contain Asbestos By Melissa M. Fallah On April 11, 2008, a California advocacy group filed two lawsuits in state and federal court. The causes of action stem from the alleged inclusion of asbestos in CSI: Crime Scene Investigation kits. The CSI kits are based on the popular CBS television series and marketed throughout the United States. The plaintiffs allege these kits, manufactured in China, included fingerprint dusting powders which contained tremolite asbestos. The lawsuits name the manufacturer of the toy, Planet Toys, the licensor of the toy s name, CBS Corporation, and several major retailers. 1 In late November 2007, the Asbestos Disease Awareness Organization (ADAO) published detailed results of independent testing for asbestos in a variety of common household products, including the CSI toy kits. The ADAO findings state powders contained in the CSI: Crime Scene Investigation Field Kit and the CSI: Crime Scene Investigation Forensic Lab Kit contained up to 7.24% tremolite asbestos. 2 In response to the ADAO s findings, the manufacturer performed several tests of fingerprint powder samples and posted on its website that no asbestos was detected. However, on December 21, 2007, Planet Toys issued a stop sale of all CSI toy kits until further information could be ascertained as to the discrepancy between the respective test findings. 3 According to Planet Toys, all retailers were instructed to immediately cease the sale of the kits. The federal lawsuit, Kick v. Planet Toys, et al., a class action pending in the Central District Court of California, Western Division, was brought on behalf of all persons who purchased and/or acquired the toy kits from June 2004 to the present. 4 The lawsuit, filed pursuant to the Consumer Product Safety Act, seeks for equitable, injunctive, declaratory and monetary relief. Plaintiffs allege defendants failed to issue any formal recall of the toys, failed to abide by the stop sale and continued to sell the toys. Additionally, they allege defendants failed to monitor the design and manufacturer of the toys to ensure they were safe for children. Further, plaintiffs allege Planet Toys continued to place the toys in the stream of commerce nationwide and failed to warn consumers. The state court lawsuit, Trujillo vs. CBS Corporation, et al., pending in the Superior Court of California, Los Angeles County, cites a violation of a state law known as Proposition This law mandates that no person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual. The plaintiffs allege exposure to asbestos from the toy kits was reasonably foreseeable and the defendants failed to provide clear and reasonable warnings as required under California law. In their prayer for relief, the plaintiffs seek to permanently enjoin defendants from offering the toy kits for sale or use in California without (1) providing all past and future purchasers of the toy kits with a warning as required by Proposition 65; (2) providing past purchasers the opportunity to return the toy kits for a full refund; and (3) requiring the defendants to secure regular certification for the sales of the toy kits. Additionally, they seek to assess civil penalties against defendants in the amount of $2,500 per day for each violation of Proposition 65. The ADAO s main drive behind this lawsuit is for Congress to pass the Ban Asbestos in America Act of This Act seeks to amend the Toxic Substances Control Act by requiring the National Institute of Occupational Safety & Health (NIOSH) and the Administrator of the Environmental Protection Agency (EPA) to promulgate regulations that prohibit the importing, manufacturing, processing or distributing of asbestos-containing products. In July 1989, the EPA issued a final rule banning most asbestoscontaining products. 6 However, in 1991, this regulation was overturned by the Fifth Circuit Court of Appeals in New Orleans. see CSI continued on page

13 Not Just Insulators Anymore: The Rise of Dental-Related Asbestos Lawsuits By Melissa M. Fallah Historically, the majority of asbestos lawsuits involved injuries related to exposure to products such as thermal insulation and other potentially high-dose amphibole materials. The typical plaintiff was an insulator who worked directly with these products over the course of his career. As manufacturers went bankrupt and the group of traditional plaintiffs diminished, the plaintiffs bar sought additional sources of compensation by targeting peripheral defendants more aggressively. In the last ten years, we have seen a growing interest in gaskets, packing, heavy machinery and premises defendants for asbestos-related lawsuits. In addition, due to a recent New York verdict, dental manufacturers may be the next group to be targeted. Plaintiffs firms have recently filed increasing numbers of lawsuits representing orthodontists, dentists and dental technicians. In June of 2007, the plaintiffs bar won its first case against a dental manufacturer in an asbestos lawsuit. The law firm of Weitz & Luxenberg obtained a $16.25 million dollar verdict for dental tape liability on behalf of Marvin Penn and his wife Josephine Penn.1 Marvin Penn is a seventy-one year-old male who was diagnosed with mesothelioma. He alleged exposure to various products, including those manufactured and sold by defendant Kerr Corporation ( Kerr ), a dental tape company. Mr. Penn was a mail carrier from 1963 to In the 1960s, he attended New York School of Mechanical Dentistry where he was allegedly exposed to asbestos while making dental devices using asbestos-containing dental tape. Mr. Penn alleged Kerr distributed an asbestos-containing product unsafe for its intended use, and failed to warn of the known dangerous condition. Kerr denied liability and contended plaintiff was exposed to asbestos through various unrelated sources. When attending dental technician school, Mr. Penn trained to make molds for dental devices such as crowns, bridgework and inlays. He used asbestos sheeting, otherwise known as dental gauze or tape, in what is known in dentistry as the lost wax technique. (This technique is also used in jewelry making.) After an impression is taken, a wax casting is created and placed in a flask. This flask is then placed in a high-temperature furnace or kiln where the wax investment is burned off. Gold or brass is Melissa M. Fallah Associate Chicago placed through a sprue hole which displaces the melted wax, hence the name lost wax technique. What remains is the finished product whether it is a tooth, or the beginning of a bridge or crown. In the past, dentists and technicians inserted asbestos tape as a boxing agent around the investment. The value in the asbestos sheet and tape was that it would not burn during the process of making these dental devices. Mr. Penn would have to cut these asbestos sheets into strips used to line the investment castings and clean up his work, thereby allegedly releasing asbestos fibers. The trial also addressed Mr. Penn s other exposures to asbestos. As a mail carrier, Mr. Penn worked across the street from the World Trade Center. During its construction, Mr. Penn was within one hundred feet of beams and pillars being sprayed with insulation. He recalled that location being continuously dusty during the construction period. Additionally, the trial court addressed the fact that Mr. Penn s father worked as a steamfitter at Todd Shipyard when Mr. Penn was five to nine years old. The sole defendant at trial, Kerr, was found by the jury to be 20% liable for Mr. Penn s injuries. The spray insulation manufacturer was found 40% liable. The jury also found Todd Shipyard 20% liable due to his secondary exposure from Mr. Penn s father s work. The final 20% liability was attributed to another dental supply manufacturer, Densply Corporation, which settled. see Dental continued on page 20 13

14 State Law Updates INDIANA - Jason Kennedy Elbrink v. General Electric (Indiana Ct. App. 2008) Robert Elbrink, a sheet metal worker, filed suit claiming that he contracted lung cancer as a result of working around asbestos. His case was expedited for trial and the six remaining defendants filed motions for summary judgment on the basis of the construction statute of repose, Jason L. Kennedy Shareholder Chicago duty, and medical causation. These motions were granted and Elbrink appealed. Several Indiana courts have previously addressed the construction statute of repose. J.M. Foster v. Spriggs, 789 N.E.2d 526 (Ind. Ct. App. 2003); PSI Energy, Inc. v. Roberts 829 N.E.2d 943, aff d on reh g, 834 N.E.2d 665 (Ind. 2005); Roberson v. Hicks, 694 N.E.2d 1161 (Ind. Ct. App. 1998), trans. denied. In an unpublished opinion, the Indiana Court of Appeals affirmed summary judgment for the property owners on all grounds, including that the property owners did not owe a duty to the employee of an independent contractor, like Robert Elbrink and that the Indiana Construction Statute of Repose barred Elbrink s claims. The plaintiffs did not seek leave to appeal to the Indiana Supreme Court. Proposed changes to Indiana s Statutes of Repose The asbestos trial bar in Indiana is seeking relief from the Indiana General Assembly with respect to Indiana s Product and Construction Statutes of Repose and proposed legislation to change these statutes is likely to surface in the 2010 session of the General Assembly. Currently, the Indiana Product Liability Act s Statute of Repose IND. CODE requires that an action against an manufacturer of asbestos-containing products be brought within ten (10) years of delivery of the product to the initial user or consumer, unless the action is brought between eight (8) and ten (10) years after delivery, in which case Plaintiffs are entitled to two (2) years from that time to file suit. IND. CODE Since 2005, the Indiana Construction Statute of Repose requires an action to be brought against a possessor within the earlier of ten (10) years after the date of substantial completion of the improvement or twelve (12) years after the completion and submission of plans and specifications to the owner if the action is for a deficiency in the design of the improvement. IND. CODE As a consequence, the owner of the facility is now a possessor within the meaning of this statute and is entitled to the protections of the Statute of Repose. IND. CODE (b). The proposed changes in Indiana law would eliminate these protections for product manufacturers, contractors and property owners. Additionally, the proposed legislation would allow for previously time-barred claims to be filed within a one-year window from the date of enactment. The proposed legislation was heard by the Indiana Commission on Courts in two separate hearings on the changes to the statutes but declined to vote on the revised legislation. The proponents of the new laws have vowed to bring it back before the Indiana General Assembly in IOWA-Jason Kennedy Roger Van Fossen vs. MidAmerican Energy Company et al, (Iowa Sup. Ct. 2009) In a case of first impression, the Iowa Supreme Court affirmed summary judgment in favor of two property owners (MidAmerican Energy and Interstate Power & Light), finding that the companies owed no duty to warn the family members of independent contractors. The court s decision reaffirms the principle that the primary responsibility for overseeing the safety of a contractor s employees rests with the contractor itself. Roger Van Fossen worked as an ironworker for independent contractors Ebasco Services and W.A. Klinger Co. from 1973 to Van Fossen claimed that he was exposed to various asbestos-containing products while working at the defendants facilities. Further, Van Fossen alleged that he carried that dust home on his clothing to his wife, Ann, who contracted mesothelioma as a result and died in July The trial court granted the defendants summary judgments, finding that neither premises owner owed a duty to Ann Van Fossen. Van Fossen appealed to the Iowa Supreme Court, which affirmed the judgment. The court held that the risk that the work plaintiff performed would cause him to bring asbestos fibers home with him was not inherent in his construction and maintenance work 14

15 but was instead caused by the failure of his employers to utilize routine safety measures. These measures were against ordinary and customary dangers that MidAmerican and IPL could reasonably assume would be undertaken by any careful contractor, the court reasoned. The Iowa Supreme Court further held that Van Fossen had failed to show that exposure to asbestos was a special danger inherent in his work or normal for construction and maintenance work done with the appropriate safety precautions, the court said. Though asbestos is a dangerous substance with grave health risks, the mere presence of such a grave risk of physical injury in the workplace is not, standing alone, sufficient to render work inherently dangerous under [Restatement (Second) of Torts] Section 427, the court held. The risk at the MidAmerican and IPL premises arose not from the nature of the work but from the manner in which the work was conducted. The Iowa Supreme Court, in considering whether MidAmerican and IPL had a general duty to exercise reasonable care to warn the decedent, concluded that forseeability is not a factor in determining general duty. Instead, a general duty arises when conduct creates the risk of harm, unless some countervailing principle or policy dictates otherwise and the court found that such an exception applied in this case. Thus, employers of general contractors owe no general duty to warn household members and a premises owner is liable for its contractors negligence only in instances covered by Sections 413, 416 and 427. The Iowa Supreme Court declined to extend liability, reasoning that an employer often has little or no direct control over the work of the employees of independent contractors. The contractors knowledge and expertise places them in the best position, the court concluded, to understand the nature of the work, the risks to which workers will be exposed in the course of performing the work, and the precautions best calculated to manage those risks. The court further explained that the an extension of the duty of reasonable care that the plaintiff sought in this case would represent a dramatic expansion of liability incompatible with public policy and that If liability were not limited in this fashion, inefficiencies would result as employers would be required to develop the knowledge and expertise in their contractors fields, so as to be prepared to understand even the ordinary risks involved in the work and assure that the precautions necessary to manage those risk are taken. Jason Kennedy and Adam Jagadich of Segal McCambridge represented MidAmerican Energy. LOUISIANA Victoria Ott Keith Seaman v. Seacor Marine LLC, No (5th Cir. 2009) Plaintiff alleged that his bladder cancer was caused by benzene exposure which occurred while working as a captain aboard Seacor Marine vessels for over twenty years. The trial court granted the defendant s summary judgment motion on the grounds that plaintiff s expert failed to establish either general or specific causation, and the 5th Circuit Court of Appeals affirmed. The court held that the plaintiff s expert, Dr. Perri Prellep, had no expertise in bladder cancer, did not have critical details of the plaintiff s exposure (such as duration and concentration) Victoria Ott Keith Associate Austin and that the articles upon which she relied did not specify the level of exposure necessary to increase the risk of cancer. Rando v. Anco Insulations Inc. et al., 16 So.3d 1065 (La. 2009); Rehearing Denied Sept. 4, 2009 The Louisiana Supreme Court resolved a split among Louisiana appellate courts by holding that the state s 1952 Workers Compensation Statute does not include mesothelioma as a compensable disease and thus a plaintiff may recover against an employer for mesothelioma. The plaintiff, a pipefitter and welder since in 1965, proved he was exposed to asbestos while working for two employers in the early 1970s and that such exposure was a substantial factor in causing his mesothelioma. The Louisiana Workers Compensation statute applicable to the plaintiff s claims (exposures occurring in the early 1970s) was a 1952 statute which listed specific diseases that were compensable, while a 1975 amendment removed the specific diseases in favor of a general definition of occupational disease. The 1952 statute listed asbestosis as a compensable disease, which the court held imposed a duty on employers to protect plaintiff from asbestos exposure at his job sites. However, the court noted that because mesothelioma was not a listed compensable disease, and asbestos was not identified as a diseasecausing substance, the plaintiff was not barred by the workers compensation statute from recovering damages from his employers. The trial court awarded the plaintiff 15

16 damages, the Court of Appeals First Circuit affirmed, and the Louisiana Supreme Court affirmed. MARYLAND Benjamin D. Whetzel Green, et al. v. N.B.S., Inc., et al. (Md. Ct. App., July 21, 2009) Maryland s highest court recently held that the state s cap on non-economic damages applies to statutory claims in addition to personal injury tort claims. The unanimous Benjamin D. Whetzel Associate Baltimore decision affirmed both the trial court and Maryland s intermediate appellate court. The plaintiff, a minor tenant, brought actions against landlord for alleged injuries due to lead paint exposure in the Baltimore City Circuit Court. The trial court reduced the jury s award of $2.3 million in noneconomic damages to $515,000, which was the amount of Maryland s statutory cap when the plaintiff was diagnosed with lead poisoning in On appeal, the plaintiff argued that the cap applies only to personal injury claims based on common law torts and not to her statutory claims of deceptive practices brought under Maryland s Consumer Protection Act. The Maryland Court of Special Appeals rejected this argument, concluding that the term tort as defined by Black s [Law Dictionary] encompasses all civil wrongs, not just wrongs that were recognized as a civil wrong at common law. The court further stated that it is impossible to believe that the legislature intended to narrow the statute in the way appellant suggests, and that to find otherwise would require insurers to cover noneconomic damages awards that exceeded the cap so long as the personal injury action arose out of the violation of a statute. The Maryland Court of Appeals agreed with this analysis and affirmed the reduced jury award. Maryland s statutory cap on noneconomic damages was raised to $500,000 in 1994 and increases by $15,000 on a yearly basis. The cap increased to $725,000 in October PENNSYLVANIA Douglas J. Gush Abrams, E., Aplt. v. Pneumo Abex Corporation, et al., and Shaw, M., Aplt. v. A.W. Chesterton, Inc., et al., (Pennsylvania Supreme Court, October 21, 2009) The Pennsylvania Supreme Court recently decided that a plaintiff s prior recovery of damages for increased risk and fear of developing cancer due to asbestos exposure awarded under the one disease rule did not preclude the plaintiff from recovering damages from a party he had not previously sued for cancer that developed and was diagnosed after the two disease rule was adopted in Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa. Super. 1992). The action considered by the Pennsylvania Supreme Court consolidated two cases where the plaintiff was diagnosed with a nonmalignant asbestos-related disease and sought damages for increased risk and/or fear of cancer from various defendants. The cases were settled prior to the two disease rule being adopted and as such, the plaintiff, under the one disease rule, was required to seek recovery for all future harms that may result from contracting an asbestos-related disease. When the plaintiffs were diagnosed with lung cancer in 2002, both filed lawsuits against various defendants that were not named in the original action. The court, in reversing the opinion of the superior court, held that the cause of action against the newly named defendant was separate and distinct from the original claim. Douglas J. Gush Associate Philadelphia Further, the risk of cancer claims against prior defendants did not preclude a subsequent timely action for actual cancer and there was neither a statutory nor common law right of repose as to asbestos cases. This holding opens the door for claims against new defendants who are now precluded from asserting protection under the two year statute of limitations for claims brought prior to the adoption of the two disease rule. Plaintiffs who have previously recovered for risk and/or fear of cancer claims and are later diagnosed with cancer may have a second opportunity to recover for the same damages from new defendants. 16

17 TEXAS John A. LaBoon Boyd v. Texas Utilities (Waco Ct. App. 2009) The plaintiff sued the defendant under several theories of liability including premises liability for overexposure to epoxy paint. The plaintiff s summary judgment evidence included two affidavits from Vernon Rose and Dr. Alfred Johnson. The affidavits included testimony that Plaintiff was overexposed to the paint and that he had symptoms compatible with overexposure. The court of appeals held that plaintiff failed to establish the approximate dose of exposure and affirmed the defendant s summary judgment. The City of San Antonio v. Pollock (Tex. Sup. Ct. 2009) In this case, the Texas Supreme Court reversed a $7.5 million verdict in a benzene case. The court found that the plaintiffs expert testimony linking acute lymphoblastic leukemia ( ALL ) to benzene was conclusory and was insufficient evidence. The plaintiffs had alleged that a cityoperated landfill near their home exposed their daughter in utero to benzene. At trial, the plaintiffs had presented evidence of air monitoring data for methane gas with benzene as a component from a sealed well some distance from their home. The court concluded that the methane concentrations would have unquestionably dissipated in the ambient air. The court also found that the plaintiffs epidemiological proof and the studies relied on by plaintiffs expert did not correlate with their daughter s potential exposure to benzene at low levels and thus could not establish causation. Lockett v. H.B. Zachry (Houston Ct. App. [1st Dist.] 2009) In this consolidated appeal, the court affirmed summary judgment for several benzene defendants, ruling that one of the plaintiffs failed to prove that exposure occurred on the defendants work sites. The court also found that the other plaintiffs gross negligence claim failed because the decedent was a borrowed servant of the defendant. The claims were asserted on behalf of Clifford Lockett and Evelyn Jackson, who died of acute myelogenous leukemia allegedly after exposure to benzene on the defendants work sites. The appellate court first addressed the Lockett appeal, noting that Clifford Lockett worked as a contractor at Monsanto s plant from 1988 to Lockett also worked for H.B. Zachry as a general contractor during this time and briefly at a Union Carbide plant. The defendants attacked the plaintiffs specific causation, saying that there was no evidence that Lockett was exposed on any of the work sites. Citing the standards of showing frequency and regularity of exposure as outlined in the Texas Supreme Court s Borg-Warner decision, the appellate court found that the plaintiffs claims failed. Monsanto produced the depositions of three Monsanto employees as summary judgment evidence. These employees testified that, during the entire time Lockett worked at the Luling plant, Monsanto did not make benzene at the plant, benzene was not present at any of Lockett s job locations and, in fact, was not present at the facility at all, the court said. Alternatively, the court noted that the testimony proffered on behalf of the plaintiffs was insufficient in that it only stipulated that it was possible that benzene was present at the Luling plant. We hold that the Locketts have failed to offer any evidence that shows that Mr. Lockett was ever exposed to benzene at the Monsanto site. Additionally the court held, The testimony about a possibility that Lockett was exposed to benzene is not competent summary judgment evidence sufficient to raise a fact issue for a jury. The court also determined that there was insufficient evidence that Lockett was exposed to benzene at a Union Carbide plant, finding that the evidence indicates that benzene was not present at the plant past 1982 and that Lockett worked at the plant in Jackson, a chemist, worked at Rohm and Haas laboratory, but was employed by Certified Technical Services. Rohm and Haas claimed that Jackson was a borrowed servant, and was therefore protected under the Workers Compensation Act. The court agreed with Rohm & Haas, noting that prior to her death, Jackson testified that she worked for Rohm and Haas, received all her work orders, safety equipment and training from the defendant and spoke with Rohm and Haas employees with questions or concerns. The court further concluded that the gross negligence claims asserted against Rohn and Haas failed because the plaintiffs did not prove that the defendant had an actual, subjective awareness of a risk to Jackson but nonetheless proceeded with conscious indifference to her rights, safety and welfare. Union Carbide v. Smith (Houston Ct. App. [1st Dist.] 2009) The court of appeals reversed judgment entered against a premises defendant, ruling that despite evidence that the defendant supplied and specified the use of asbestoscontaining products on its property, there was a lack of evidence that the defendant controlled the manner in which those products were used. The court also reversed a judgment entered against the plaintiff s former employer, ruling that the trial court erred in finding that the claims were not barred by the state s Workers Compensation Act. At the time of the jury verdict, Union Carbide, a premises Defendant and Hexion Specialty Chemicals, a successor-in-interest to one of Smith s employers, were the only remaining defendants. 17

18 Plaintiffs did not present any evidence that the defendant exercised contractual control over the property, so the focus of the court s analysis was whether Union Carbide had actual control of Smith s work site. Despite the plaintiffs contentions that Union Carbide had employees performing work on the grounds that created clouds of airborne asbestos, the appellate court found no evidence that Union Carbide directly employed those workers. The court further found that despite evidence of Union Carbide s supply and specification of the use of asbestos-containing products, there is no evidence that Union Carbide exercised or retained control over the manner in which Oliver s work was performed, which is what was required by the predicate jury question to impose liability upon Union Carbide. Finally, the court noted that Smith himself testified that no one from Union Carbide told him how to perform his job duties. The court similarly found the trial court had erroneously entered judgment against Hexion, concluding that the claims asserted by the Smiths against the defendant were in fact barred by the Workers Compensation Act and refused to apply the dual-persona doctrine. According to the plaintiffs, under the dual persona doctrine, a company s responsibilities under a merger are separate from its role as an employer under the workers compensation laws. The court rejected this argument and held, The dual-persona doctrine has never been adopted by a Texas court as a means for imposing liability on a subscribing employer and avoiding the exclusive remedy provision of the Act. Medicare continued from page 11 payment then made to Medicare directly from the trust. Should plaintiff s counsel argue for an increase in settlement value due to this reporting and/or potential delay, they should be reminded that plaintiffs have had a legal obligation to reimburse Medicare since 2003, 14 and that has not changed. With reporting yet to ensue, it is too early to tell what the impact of this legislation will be on nuisance settlements. What is certain is that a defendant s failure to comply with this law could turn a nuisance-value settlement into a six-figure problem. On-line Resources MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting Liability Insurance (Including Self- Insurance), No-Fault Insurance, and Workers Compensation USER GUIDE, Version 2.0, July 31, Social Security: htm Medicare Secondary Payer Recovery Contractor: Centers for Medicare & Medicaid Services: To register with CMS Endnotes 1 42 U.S.C. 1395y(b)(8). 2 pdf/02179.pdf, pg U.S.C.A. 1395y(b)(7)(B)(i). MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting; Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers Compensation User Guide, Version 2.0 July 31, 2009, pg FactSheet.pdf U.S.C.A. 1395y(b)(2) U.S.C.A. 1395y(b)(2)(B)(ii) U.S.C. 1395y(b)(8)(F). 8 MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting; Liability Insurance (Including Self- Insurance), No-Fault Insurance, and Workers Compensation User Guide, Version 2.0 July 31, 2009, pg MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting; Liability Insurance (Including Self- Insurance), No-Fault Insurance, and Workers Compensation User Guide, Version 2.0 July 31, 2009, pg MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting; Liability Insurance (Including Self- Insurance), No-Fault Insurance, and Workers Compensation User Guide, Version 2.0 July 31, 2009, pg Id U.S.C.A. 1395c (2009). 13 htm. 14 pdf/02179.pdf pg

19 Mercury continued from page eight cautions in place, the use of CFLs will continue to decrease energy consumption and enable consumers to positively affect the environment. Endnotes 1 Energy Star Information on CFLs and Mercury, (July 2008), 2 Id. 3 Agency for Toxic Substances and Disease Registry. ToxFAQs for Mercury, tfacts46.html (last updated Sept. 11, 2007). 4 Energy Star Information on CFLs and Mercury, supra note 1. 5 Id. 6 See Universal Waste Regulations, 40 C.F.R (2005). 7 EPA, Land Disposal Restrictions, osw/hazard/tsd/ldr/ (last visited Sept. 15, 2009). 8 EPA, Universal Wastes, (last visited Sept. 15, 2009). 9 U.S. Environmental Protection Agency, Spills, Disposal and Site Cleanup, spills/index.htm#flourescent (last visited Sept. 15, 2009). 10 Restatement (Third) of Torts: Prod. Liab. 2 (1998). 11 Id. at 2 (a-c). 12 Restatement (Second) of Torts 402A (1965). 13 Id. at cmt. j. 14 Id. 15 Restatement (Third) of Torts: Prod. Liab. 2(c)(1998). 16 Id. at cmt. i. 17 Id. 18 Edward M. Swartz, Hazardous Products Litigation 2:4 (2d ed. 2009). 19 Restatement (Third) of Torts: Prod. Liab. 2 cmt. p, q. 20 Id. MDL 875 continued from page nine Other issues to consider are how to once again begin defending a case that has lain dormant for ten or more years. Before even looking at what law or procedural rules may apply, counsel has to look at the state of the file. Many of the defendants that had taken a lead role in the case initially are now bankrupt, and the remaining solvent defendants almost certainly had a much lower profile ten years ago. In many instances these defendants did not take a lead defense role, join joint medical defense groups, or even order depositions. Now, fast forward to 2009, where counsel for one of the few remaining defendants has to figure out what rules govern and work with a file containing limited information. Additionally, many witnesses could have moved or are now deceased. In sum, the current crop of cases now being remanded from MDL 875 pose numerous problems related to the applicable law as well as case strategy and work-up. CSI continued from page 12 Endnotes 1 Some of the retailers sued are Hammacher Schlemmer, Amazon.com, Buy.com, Costco Wholesale, Etoys. com, Sears, the Speedy Dog, Toys R Us, QVC and Walgreens. 2 The Asbestos Disease Awareness Organization, June 4, 2008, <http://www.asbestosdiseaseawareness. org/elibrary/pressreleases/ pressrelease. pdf>. 3 Planet Toys, June 4, 2008, com/home/products/all-products.aspx?d= Public Justice, June 4, 2008, net/briefs/csi_classactioncomplaint_ pdf. 5 Public Justice, June 4, 2008, net/briefs/csi_prop65complaint_ pdf. 19

20 Lipke Rule continued from page four Ill.App.3d 356, 710 N.E.2d 528; 237 Ill. Dec. 898 (4th Dist. 1999). 3 Nolan v. Weil-McLain, 233 I11.2d 416, 331 Ill. Dec. 140 (Ill., 2009). 4 Lipke v. Celotex Corp., 153 Ill. App.3d 498, 505 N.E.2d 1213, 106 Ill. Dec Kochan, 242 Ill.App.3d at Ill.2d 343, 603 N. E. 2d 449 (Ill., 1992) Ill.2d 83, 658 N.E.2d 450 (Ill., 1995). Dental continued from page 13 As a result of this trial and the size of the verdict, there has been an increase in filings against dental manufacturers and dental suppliers nationwide. Like Kerr, manufacturers of asbestos-containing gauze and tape are becoming more prominent defendants. Other dental defendants include the manufacturers of a dental plaster mix used to make dental impressions which were, and still are, an integral part of an orthodontic procedure to make molds and investments. This material comes in a powder form and is mixed with water to make the impression. Typically, in these dental cases, the most significant asbestos exposure is not to the dental manufacturer s products. In several of these cases, the plaintiff served in the U.S. Navy where he was exposed to large quantities of amphibole asbestos aboard vessels. Plaintiffs attorneys will continue to search for the next occupation that, like dentistry, they believe involves both potential asbestos exposure as well as viable defendants. Endnote 1 See 2008 WL The articles in this newsletter are provided for informational purposes and do not constitute legal advice. Persons seeking to take action regarding the issues addressed herein should seek the advice of appropriate counsel. Segal McCambridge Singer & Mahoney, Ltd. was founded in 1986 and has grown to having offices in Chicago, Illinois; Austin, Texas; Philadelphia, Pennsylvania; New York, New York; Baltimore, Maryland; Jersey City, New Jersey and Detroit, Michigan. It represents a wide variety of clients in products liability, medical malpractice, professional liability, public official liability, construction litigation, general defense and toxic tort defense. The founding partners experience in toxic tort cases dates back to the 1970 s in pesticide and asbestos litigation. Today, the firm acts as national coordinating counsel in asbestos litigation to numerous companies including Garlock, Anchor Packing, Congoleum, Weil-McLain, Durametallic, DAP and Chicago Fire Brick. The firm also acts as national trial counsel for these and others in asbestos litigation. The philosophy of Segal McCambridge has remained the same since its inception: provide state-of-the-art legal services with an extraordinary level of responsiveness and personalized attention to each client and each case. Austin: 100 Congress Avenue, Suite 800 Austin, TX Phone: Baltimore: One North Charles Street, Suite 2500 Baltimore, MD Phone: Chicago: 233 South Wacker Drive, Suite 5500 Chicago, IL Phone: Detroit: Novi Office Center, Thirteen Mile Road, Suite 203 Novi, MI Phone: Jersey City: 15 Exchange Place Jersey City, NJ Phone: New York: 830 Third Avenue, Suite 400 New York, NY Phone: Philadelphia: United Plaza 30 S. 17th Street, Suite 1700 Philadelphia, PA Phone:

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