How To Sue A Lead Paint Manufacturer For Negligence

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1 TOXIC Winter 2007 Volume 6 Issue 1 We Make The Complex Simple EXTRA!! By Edward J. McCambridge The Illinois Supreme Court allowed the petition for leave to appeal in Nolan v. Weil McLain. The issue before this court relates to the Lipke Rule (see Fall 2006 edition of the Toxic Tort Newsletter). The court will decide if a defendant in an asbestos case can introduce evidence of the plaintiff s expsoure to other asbestos products to prove that exposure is the sole proximate cause of the injury or that the exposure to the defendant s product is not a substantial factor in causing the disease. We expect briefing to begin in January And trial argument that Fall. We have been contracted by numerous entities seeking to file Amicas Briefs in support of our position. Edward J. McCambridge is national coordinating counsel and national trial counsel for numerous manufacturers in asbestos litigation. His practice focuses on trial work across the country. He has lectured extensively on Toxic Tort Litigation and Trial Advocacy throughout the United States. He consults with clients relative to the establishment and presentation of defenses in mass tort litigation. He advises clients on managing litigation and their relationship with their insurers. Welcome The universe of toxic tort litigation keeps expanding. New claims for all types of expsures are on the rise. In this edition, we explore a number of new claims. We also examine significant developments across the country. As always, if you require any further information, contact us. EDITORS Edward J. McCambridge William F. Mahoney C O N T E N T S Welcome Featured Toxic Tort Articles Extra!! By Edward J. McCambridge More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Paint Litigation By Steven A. Hart, Scott J. Vold and Kate Lloyd.. 3 State Law Updates Other Toxic Tort Articles Asbestos - Selected Cancers By John A. LaBoon Texas High Court Rules Mold Not Covered By Shelly LeVick Masters Illinois Maryland Michigan New Jersey New York Pennsylvania Texas 2004 Segal McCambridge Singer & Mahoney

2 About The Editors EDWARD J. MCCAMBRIDGE has substantial trial experience in product liability, automobile, premises and sports liability litigation. He concentrates his current practice on complex tort litigation with special expertise in toxic tort and products liability actions. Mr. McCambridge was the Chairman and President of the Chicago Asbestos Defense Group and was appointed by the Circuit Court of Cook County as liaison officer and lead counsel for the defense of all asbestos litigation pending in Cook County. He is a frequent lecturer, having spoken at numerous venues including the Conference of Insurance Legislators, the Chicago Bar Association on asbestos litigation and a featured speaker at a National Business Institute Seminar on Trial Advocacy, among others. Mr. McCambridge is the 1991 and 1999 author of Trial Advocacy in Illinois, and gives lectures on the article. He has also authored a chapter on handling toxic tort cases in the Illinois Association of Defense Trial Counsel Manual. WILLIAM F. MAHONEY is a trial attorney specializing in the defense of toxic tort and environmental cases. He has served as lead counsel at trials in Illinois, Texas, Ohio, Wisconsin, Florida, Kansas, Louisiana, New York, Massachusetts and Indiana. He is national trial counsel for defendants named in thousands of asbestos-related cases, state and federal class-action proceedings, and he participated in the successful dismissal of class-actions involving cellular telephones (brain cancer) and radar guns (leukemia). He has substantial experience in electromagnetic field, chemical exposure, mold, benzene, mercury and welding rod litigation. Mr. Mahoney has also served as national coordinating counsel for several corporations in mass tort litigation. He has developed special expertise in epidemiology, medical causation, toxicology, industrial hygiene, risk assessment and biostatistics. Mr. Mahoney also has considerable experience defending general product liability, professional liability, construction and insurance coverage matters. 2

3 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Paint Litigation By Steven A. Hart, Scott J. Vold and Kate Lloyd Lead Paint: A Primer According to the US Department of Health and Human Service s Agency for Toxicity and Disease Study: [t]oday everyone is exposed to environmental lead. Exposure to lead and lead chemicals occurs from breathing air, drinking water, eating foods, and swallowing or touching dust or dirt that contains lead. 1 Potentially hazardous amounts of lead have recently been found in the following types of consumer products by the United States Consumer Product Safety Commission: organic chocolate candies, imported candy wrappers, vinyl lunchboxes, water pipes, food packaging, paint on children s toys including baby rattles, toy jewelry, enameled or ceramic pots and dishware, crystal decanters, hair dyes, ammunition, stained glass, automobile batteries, make-up, pool cue chalk, colored newsprint, candle wicks, and imported kettles. Lead has also been detected in the soil surrounding residential properties in metropolitan areas, including Chicago, Illinois. 2 Lead is so environmentally pervasive, it is often impossible to determine the predominant source of an individual s exposure, especially when the individual exhibits a lower (but still elevated) blood lead level. 3 With the phasing out of lead in gasoline (which began in the 1970s), lead in paints and in soils and dusts has become the principal source of exposure in the United States. 4 Preschool-aged children are the demographic most affected by lead poisoning. To a great degree, children normally explore their environment via hand-to-mouth activity. 5 These behaviors are likely to lead to an increased level of lead-intake as a child moves through an environment contaminated by lead. 6 To wit, children s normal hand-to-mouth activities may introduce many nonfood items into their gastrointestinal tract. 7 Lead-based paint remains the most common highdose source of lead exposure for preschool children. 8 Paint is generally comprised of two major components. The pigment is the agent that colors, coats, and/or protects the surface upon which the paint is applied. The vehicle is the medium that allows the pigment to be spread over and to adhered to a surface. The predominant lead pigment that was manufactured and integrated into paint from the turn of the Twentieth Century through the 1950 s was white lead carbonate. While lead carbonate was a favored pigment because it was durable and easy to apply; it was also believed to hold antiseptic, antibacterial, or mildewcide properties. White lead carbonate was typically comprised of three different chemical compounds: (i) 4PbCO 3 2Pb(OH) 2 PbO; (ii) 2PbCO 3 Pb(OH) 2, or (iii) PbCO 3. White lead carbonate paint dominated the house paint market for decades. Lead-based paint was used both as an interior and exterior paint. As an interior paint, it was promoted for use in every room of the house, and was primarily used to coat the walls of kitchens, nurseries, mudrooms, and bathrooms. As an exterior paint, it was used primarily on windows, baseboards, trims, porches, and doors. The overwhelming majority of residential property 1 Pamela Wigington, ed., Case Studies in Environmental Medicine: Lead Toxicity, Agency for Toxic Substances and Disease Registry, Revised 2000, at cdc.gov/hec/csem/lead/index.html. 2 Shinn, et al., Determination of Spaial Continuity of Soil Lead Levels In An Urban Residential Neighborhoods, Environ. Res., Jan. 2000; Binns, et al., Evaluation of Risk Assessment Questions Used to Target Blood Lead Screening In Illinois, Pediatrics, Jan. 1999; Binns, et al., Is There Lead In The Suburbs? Risk Assessment In Chicago Suburban Pediatric Practices, Pediatrics, Feb Centers for Disease Control, US Dept. of Health and Human Services, Preventing Lead Poisoning In Young Children, Chapter 3, 1991 at 4 See fn. 1, supra. 5 David Bellinger, Lead, Pediatrics, April 2004, at See fn. 5, supra. 7 Centers for Disease Control, US Dept. of Health and Human Services, Preventing Lead Poisoning In Young Children, 1991, at 8 United States Department of Health and Human Services, Toxicological Profile for Lead, July 1999, at 415; Centers for Disease Control, US Dept. of Health and Human Services, Preventing Lead Poisoning In Young Children, 1991, at 3

4 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. built prior to 1978 in the United States likely contains at least some layers of lead-based paints. 9 The Centers for Disease Control estimate that between 83% and 86% of all residential property built before 1978 in the United States likely contains lead-based paint. 10,11 Throughout the United States, approximately 3 million tons of lead remain in an estimated 57 million homes built before An estimated 3.8 million of these residential properties are home to young children. 13 There is no uniform standard for safe or allowable amounts of lead in existing painted surfaces. 14 States and the federal government use values ranging from mg/cm2 of wall when lead is measured using a portable x-ray fluorescence analyzer (XRF) or a standard of 0.5% lead by weight when tests are performed using laboratory analysis. 15 These regulatory limits are based mostly on practical, not health, considerations. 16 The Effects of Lead Exposure There is a dose-response relationship associated with lead exposure and poisoning. Multiple, low-level inputs of lead can result in significant aggregate exposure. 17,18 The human body cannot differentiate between lead and calcium. 19 After lead has been ingested, it typically remains in the bloodstream for a period of weeks. 20 The lead is then absorbed into the bones, where it may accumulate for a lifetime. 21 There appears to be no threshold value below which lead exposure has no apparent adverse effects on cognitive development. 22 In 1991, the Centers for Disease Control established 10 micrograms per deciliter of blood (mcg/ dl) as the childhood blood level screening action guideline. 23 This action level was intended to be used as a risk guidance and management tool at the community level. 24 Elevated blood lead levels in children are associated with a pervasive, life-long constellation of injuries, rather than a single signature injury. In its more mild forms, meaning blood lead levels as low as 10 mcg/dl, lead exposure is associated with impaired growth, impaired hearing, and a dramatic decrease in intelligence, cognitive function, and impaired neurobehavioral developments. 25 Lead s impairment of the synthesis of the active metabolite 1,25-(OH)2, vitamin D is detectable at blood lead levels of 10 to 15 mcg/dl. 26 Some studies have reported that for every 10 mcg increase in blood lead levels, a child may experience a 1.8 to 5.8 decrease in IQ test scores, based on a 100-point system. 27 In more severe forms blood lead levels at or below 80 mcg/ dl lead poisoning can cause severe metal retardation, renal failure, central nervous system disorders, colic, anemia, infertility, coma, and death. 28 Many Public Health agencies and local governmental bodies have expressed serious concerns about this apparent Public Health crisis. Theories Of Liability Lead paint litigation has historically targeted two distinct groups of defendants. One pool of defendants has been landlords of residential property containing some amount of lead pant. Tenants have long brought actions for personal injuries allegedly sustained by the landlords nondisclosure of the presence of lead in the subject property, negligent maintenance of the property, and/ or negligent abatement of the lead paint. 29 The second and most novel pool of defendants has been comprised of the manufacturers and promoters of white lead car- 9 See 10 See fn. 1, supra. 11 The Illinois Department of Public Health estimates that 75% of all homes in Illinois built prior to 1978 contain some amount of lead paint. il.us/envhealth/lead.htm. 12 Centers for Disease Control, US Dept. of Health and Human Services, Preventing Lead Poisoning In Young Children, 1991, at 13 Id. 14 Id. 15 Id. 16 Id. 17 Id CFR Part United States Environmental Protection Agency, Lead In Your Home: A Parent s Reference Guide, June 1998, at Id. 21 Id. 22 See fn. 5 at Centers for Disease Control, US Dept. of Health and Human Services, Preventing Lead Poisoning In Young Children, 1991, at 24 See fn.5 at See fn Id. 27 See Canfield, et al. NEJM 2003, 348: See fn See German, et al. v. Federal Home Loan Mortgage Corp., 1998 WL (S.D.N.Y. 1998); Hurt, et al. v. Philadelphia Housing Authority, et al., 806 F.Supp. 515 (E.D.P.A. 1992). 4

5 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. bonate paints. These actions, historically brought by parents or guardians of lead-exposed children, have advanced various theories of liability ranging from negligence and strict products liability to unjust enrichment, civil conspiracy, and public nuisances. The newest wave of this latter type of litigation are claims brought by municipalities and/or State Attorneys General on behalf of all state residents primarily seeking abatement of existing lead paint from the housing stock, momentary damages, and the establishment of medical monitoring programs. These cases have expanded the battlefield and have increased public awareness of lead litigation. The focus of this article in on the latter type of lead paint litigation. Until recently, suits have been consistently defeated because of the plaintiffs inability to prove either actual and/or proximate cause. 30 Plaintiffs simply have been unable to identify the specific manufacturers or suppliers of the lead pigment used in the paint applied to their dwellings. Within the last 24 months, however, there has been a sea change in select jurisdictions. Some courts have begun to move away from traditional common law due process principles and due process requirements in favor of developing collective liability regimes with less onerous evidentiary burdens on lead paint plaintiffs. Three rather flexible, nebulous theories of liability seem to be in vogue among the states, and this article will briefly examine the seminal cases addressing each of the three emerging theories of liability. A. MARKET SHARE LIABILITY/RISK-CONTRI- BUTION LIABILITY: Is there any remedy available to a plaintiff when that plaintiff is unable to identify the precise manufacturer of the white lead carbonate paint to which he or she was exposed due to the generic nature of the pigment used, the number of producers of these products, the lack of pertinent records, and the passage of time? Wisconsin says yes! The Wisconsin Supreme Court s decision in Thomas ex rel. Gramling v. Mallett, 285 Wis.2d 236, 701 N.W.2d 523 (2005), asserts that a plaintiff ought not be left without a remedy for personal injuries when, through no fault of the plaintiff, the passage of time and the ubiquity of the lead paint at issue has made it impossible for the plaintiff to satisfy the elements of actual and proximate causation. The Thomas decision was not without spirited debate among the justices of the Wisconsin Supreme Court, and was decided by a 4-2 majority (one abstention). The rancor among the justices produced a 61-page decision with two vigorous dissenting opinions totally 38 pages. The controversy surrounding this case also served to foreshadow the Wisconsin legislature s attempts to limit the liability issues surrounding the distribution and existence of lead paint within the state. The Thomas plaintiff, a minor, exhibited an early onset of childhood lead poisoning with blood lead levels reaching 18 mcg/dl as early as 14 months of age. Plaintiff underwent lead screenings and cognitive skills testing which identified a signature or constellation of cognitive effects typical of lead poisoning including deficits in: perceptual organization, visual motor integration, expressive language, academic and fine motor skills, and attention deficit hyperactivity disorder. Upon follow-up screening Plaintiff s blood lead level had increased to 40 mcg/dl, at one point reaching as high as 49 mcg/dl. Due to Plaintiff s elevated blood lead levels over an extended period of time, it was suggested that Plaintiff would require lifetime medical monitoring-surveillance; he was at an increased risk of developing kidney disease, neuropathy, hypertension, and cardiovascular disease. Plaintiff commenced his lawsuit against, among others, the various manufacturers of lead paint, including an industry association formed by the leading lead paint manufacturers to market and promote the use of lead in consumer products. As to the manufacturers, Plaintiff alleged that they were liable for his injuries on the based on theories of negligence, strict products liability, civil conspiracy, market share or risk-contribution theory, and enterprise liability. As with other lead paint cases, Plaintiff s case was plagued by a serious inability to proffer evidence required to prove that any invidivual paint manufacturer s product was either the cause-in-fact or the proximate cause of his injuries. Plaintiff conceded that he could not identify the specific pigment manufacturer that produced the white lead carbonate he ingested. At the trial court and intermediate appellate court levels, this fault of proof was fatal to Plaintiff s claims of negligence, strict liability, civil conspiracy, and enterprise liability. In support of this claim for recovery based on market share or risk-contribution liability, Plaintiff argued that the facts of his case were sufficiently similar to those of Wisconsin s long line of diethylstilbestrol 30 Spring Branch Independent School District v. NL Industries, 2004 WL (Tex.App. Hous. (1st Dist.) 2004); Jefferson, et al. v. Lead Industries Association, Inc., 930 F.Supp. 241 (E.D.L.A. 1996). 5

6 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. ( DES ) decisions, (in particular Collins v. Eli Lilly Company, 116 Wis.2d 166, 342 N.W.2d 37 (1984)) and thus, the risk-contribution theory of liability applied in DES cases ought to be applied in Plaintiff s case. As Thomas points out in his extensive submissions, and, for the purposes of this appeal, assuming their verity, this case and Collins share, for many of the same reasons, the inability of the plaintiff to identify those who made and sold the specific substance alleged to have caused injury. Thus, in both Collins and here the substances produced or sold by one company are, as material to the possibility of tracing the manufacturer or seller, essentially the same as that produced or sold by the others Additionally, both the diethylstilbestrol alleged to have caused the plaintiff s vaginal cancer in Collins, and the white lead carbonate alleged to have caused Thomas s neurological disorders were made and sold by many companies long before the injury, making it impossible to trace specific manufacturers or sellers to the particular injury-causing product. 31 In Wisconsin DES cases, 32 the court acknowledged that plaintiffs failures to prove that a particular drug company produced or marketed the DES that a plaintiff s mother took while pregnant posed an insurmountable obstacle to recovery. 33 Faced with a choice of either fashioning a method of recovery for the DES case which [would] deviate from traditional notions of tort law, or permitting possibly negligent defendants to escape liability to an innocent, injured plaintiff, 34 the Wisconsin Supreme Court chose the former. 35 The risk-contribution theory relaxed a plaintiff s burden of proof in establishing actual and/or proximate causation, and was founded on three primary assumptions. First, [e]ach defendant contributed to the risk of injury to the public and, consequently, the risk of injury to individual plaintiffs 36 Second, each defendant, either through their insurance policies or by passing the costs of litigation on to other consumers, was in a better position to absorb the cost of plaintiffs damages awards and thus, it is better to have drug companies or consumers share the cost of the injury than to place the burden solely on the innocent plaintiff. 37 Third, the costs of damages awards will act as an incentive for defendants to adequately test the products they place in the market for general use. 38 In spirited opposition to the risk-contribution theory, the Thomas Defendants argued that risk-contribution should only be applied in circumstances where a plaintiff would have no remedy against anyone. In contrast, the Thomas Plaintiff had a remedy for his alleged injuries against his landlords, and in fact, had already resolved at least one claim against a landlord. 39 This argument, however, found little, if any, traction with the Wisconsin court: We have serious concerns with the Pigment Manufacturers attempt to displace all of the blame for lead poisoning from its white lead carbonate pigment on landlords and what effect that will have on the adequacy of a plaintiff s remedy. 40 The Thomas Court found that Plaintiff s injuries were caused by two separate wrongs: first, by the negligence of his landlords; second, by the Pigment Manufacturers for negligently manufacturing and marketing white lead carbonate as safe. 41 While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance. 42 In applying the risk-contribution theory, Thomas Court was concerned with more than just ensuring a plaintiff had a 31 Thomas ex rel. Gramling v. Mallett 285 Wis.2d 236, , 701 N.W.2d 523, (2005). 32 Diethylstilbestrol or DES was a drug given to pregnant women to prevent miscarriage. In 1971, medical research established a possible link between fetal exposure to DES and the development of adenocarcinoma of the vagina many years after birth. DES was manufactured and distributed by a clearly definable pool of drug manufacturers, although the actual drug was fungible. Because plaintiffs were in utero at the time of exposure, they were unable to identify the manufacturer(s) of the DES to which they were exposed. Similarly, their mothers and fathers were unable to proffer any product identification evidence. 33 Collins v. Eli Lilly & Company, 116 Wis.2d 166, 177, 182, 342 N.W.2d 37 (1984). 34 Id. at Id. at Thomas, 285 Wis.2d at quoting Collins, 116 Wis.2d at 182, 191 (emphasis in original footnote omitted). 37 Id. at 290 quoting Collins, 116 Wis.2d at Id. 39 Id. at Id. at Id. at Id. 43 Id. at

7 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. remedy against someone for something. 43 Rather, its real concern was with the adequacy of a plaintiff s remedy. 44 Following Thomas, a lead paint plaintiff must plead and prove the following using the risk-contribution theory: That plaintiff ingested white lead carbonate; That the white lead carbonate caused plaintiff s injuries; That the lead paint manufacturers produced or marketed the type of white lead carbonate he ingested; and That the manufacturers conduct in producing or marketing the white lead carbonate constituted a breach of a legally recognized duty to plaintiff. While a plaintiff may name all or a number of lead paint manufacturers and promoters of white lead carbonate, under the Thomas Court s extension of the Collins decision, a plaintiff need only name a single defendant to present a viable claim. 45 Once a lead paint plaintiff makes out a prima facie case under this relaxed negligence test, the burden of proof shifts to each named defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. 46 Wisconsin s application of the risk-contribution theory or market share liability to lead paint litigation is relatively unique among the States. See Santiago v. Sherwin Williams Co., 3 F.3d 546, (1st Cir.1993) (declining to extend market-share liability because plaintiff could not establish the market; pigment manufacturers may not have been in the market during the relevant time; plaintiff could not establish that portion of damages which is represented by the pigment manufacturers); Brenner v. American Cyanamid Co., 263 A.D.2d 165, 699 N.Y.S.2d 848, (N.Y.App.Div. 1999) (declining to extend marketshare liability because plaintiffs could not establish the national market or when the paint was applied; white lead carbonate was not fungible as it was not chemically identical or uniformly mixed in paints and did not produce a signature injury; pigment manufacturers not in exclusive control of risk); Skipworth v. Lead Industries Ass n, Inc., 547 Pa. 224, 690 A.2d 169, 173 (1997) (declin- ing to extend market-share liability because plaintiff could not pinpoint when during the house s 100-yearperiod lead paint was applied and because uncontroverted evidence in record showed it was not fungible). Following the Thomas decision, various special interest lobby groups worked with pro-industry Wisconsin legislators to pass legislation essentially barring market-share liability within the state. 47 This legislation was then vetoed by Wisconsin s Democratic Governor. B. CIVIL CONSPIRACY: Can the lead paint industry be held liable for a plaintiff s alleged injuries base on the industry s concerted actions to market and promote the use of lead paint, even when the lead paint itself has not found to be unreasonably dangerous? Illinois says yes! In its two Lewis decisions, 48 the Illinois Appellate Court has held that the manufacturers and promoters of lead pigment used in lead paint may be held liable under the civil conspiracy theory for their concerted efforts to market white lead carbonate paint, notwithstanding the fact that the paint itself was not found to be unreasonably dangerous. It bears mention that here that Illinois stands alone as the only jurisdiction to have accepted the civil conspiracy theory. California, New Jersey, and Rhode Island have rejected this theory, and while the Supreme Court of Wisconsin rejected this theory in the Thomas case, the Wisconsin Appellate Court has remanded a case premised, in part, on civil conspiracy to the trial court for further proceedings. In Lewis I & II, plaintiffs, individually, and on behalf of all other similarly situated parents and guardians of minor children who have undergone or will undergo medical screening for lead poisoning, filed a six-count class action complaint against the manufactures, marketers, and distributors of white lead carbonate pigment for use in lead-based paints. The Defendants, together with Eagle-Picher Industries, Inc., a defunct corporation, allegedly accounted for the entire production of lead pigments in the United States. 49 Also named was LEAD, a corporation which was formed in 1928 to allegedly promote the use of lead pigments in paint sold in the United States on behalf of its members, which included 44 Id. at Id. at Id. at See Wisconsin Assembly Bill 778, Wisconsin Senate Bill Lewis v. American Cyanamid Co., 2006 WL (1st Dist. 2006), hereafter Lewis II ; Lewis v. Lead Industries Association, Inc., 342 Ill.App.3d 95, 793 N.E.2d 869 (1st Dist. 2003), hereafter Lewis I. 49 Lewis II at

8 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. all of the manufacturing defendants and Eagle-Picher. 50 Counts I through V of Plaintiffs second amended class action complaint alleged various state common law causes of action against each of the Defendants in their capacity as a manufacturer or promoter of white lead pigments. Count VI alleged that the defendants and Eagle-Picher, acting in concert through LEAD, conspired to: (1) market, produce, and promote the use of lead pigments in paint without regard to its dangerous properties and toxic effects; (2) suppress, discourage, and retard research, testing, regulation, and public dissemination of information concerning the dangerous properties and toxic effects of lead-based paint; and (3) conceal from and/or mislead the public about medical and scientific data indicating that lead-based paint was potentially hazardous to the health and safety of children. 51 As a result of these actions, the Plaintiffs alleged that all children six months through six years of age in Illinois are now, have been in the past, and will be indefinitely in the future, exposed to and at risk for lead poisoning and that, due to the significant health risks involved, such children must be either screened or assessed for the risk of developing lead poisoning. 52 As a remedy, the Plaintiffs sought an order compelling the Defendants to reimburse and pay the Plaintiffs and the members of the putative class for the costs of all medical screenings, assessments, and monitoring of their minor children. 53 Only Plaintiffs conspiracy count withstood the Defendants motions to dismiss. Civil conspiracy is the combination or two or more persons or entities for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means. 54 Under Illinois law, A cause of action for civil conspiracy exists only if one of the parties to the agreement commits some act in furtherance of the agreement, which is itself a tort. Thus, the gist of a conspiracy claim is not the agreement itself, but the tortious acts performed in furtherance of the agreement. It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable. 55 As the Lewis I Court elaborated: If the plaintiffs can prove that the sale and distribution of lead pigment for use in paint was tortious in nature, that the defendants and Eagle Picher were the sole suppliers and promoters of lead pigment, and that each was a party to the conspiratorial agreement, then it is of little consequence that the plaintiffs cannot establish which of the defendants actually supplied the lead pigment used in the paint to which any given child might have been exposed as each defendant would be liable regardless of which one was the active tortfeasor. 56 The Lewis II Court recognized that Plaintiffs did not identified, nor could they identify, the specific supplier of the lead pigment used in the paint to which their children were allegedly exposed, and that as such, they were unable to establish a causative link between the tortious acts or omissions of a specific Defendant and the injuries for which recovery was sought. However, by identifying the Defendants (along with Eagle-Picher) as the sole producers and promoters of lead pigment used in paint, and further alleging that each was a party to the conspiratorial agreement to manufacture, promote, and distribute white lead carbonate pigment, the Plaintiffs sufficiently alleged both an agreement and tortious conduct in furtherance of the agreement. 57 The court concluded that fact that the Plaintiffs were not be able to identify which of the Defendants was the active tortfeasor that supplied the lead pigment used in the paint to which their children were exposed was not fatal to their cause of action for civil conspiracy. 58 Civil conspiracy theory has the effect of extending liability for a tortious act beyond the active tortfeasor to individuals who have not acted but have only planned, assisted, or encouraged the act. 59 Accordingly, the court held that as the Plaintiffs theory of recovery was based on the Defendants concealment and repression of the hazards lead-based paints presented to their minor children, rather than the Defendants knowing introduction of an unreasonably dangerous product into the stream of commerce, there existed materials questions of fact 50 Id. 51 Id. 52 Id. 53 Id. 54 Lewis I at 107 citing McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 133, 720 N.E.2d 242 (1999). 55 Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 63, 645 N.E.2d 888 (1994) quoting W. Prosser, Torts 46, at 243 (4th ed.1971). (internal citations omitted) 56 Lewis I at Id. 58 Id. 59 Id., quoting McClure, 188 Ill.2d at 133, 720 N.E.2d 242 (1999). 8

9 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. sufficient to defeat the defendants summary judgment motions. 60 Defendants appealed, and in May 2006, the Illinois Supreme Court declined to hear the Lewis appeal. C. PUBLIC NUISANCE THEORY Does the mere presence of lead paint on residential property and the cost of abating it provide for a right of recovery against the manufacturers of the paint? States say yes and no! Relying upon a 1998 study demonstrating that one in five children living in the City of Milwaukee had elevated blood lead levels, Milwaukee undertook a massive widow paint abatement project in two specific areas of the city. Some estimates of the potential cost of this abatement project exceeded $100,000, Thus, the City of Milwaukee brought suit against two manufacturers and distributors of lead-based paints that allegedly marketed and sold lead pigments or lead paint within the City. 61 At its essence, the City claimed that the lead paint applied to its housing stock amounted to a public nuisance, and that the Defendants marketing and sale of lead pigments and/or lead-based paint in the City during and after the construction of the properties at issue, with actual or constructive knowledge of the hazards of lead poisoning,was a substantial factor in creating the public nuisance. 62 The City sought the following relief: (1) compensatory and equitable relief for abatement of the toxic lead hazards in Milwaukee homes, especially in the target areas; (2) restitution for amounts expended by the City to abate the toxic lead hazards in Milwaukee homes, especially in the target areas; and (3) punitive damages. 63 Under Wisconsin law, a public nuisance is a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community. 64 The City asserted that childhood lead poisoning is a community-wide public problem affecting the use of Milwaukee s housing stock and that Wisconsin law considers a multitude of factors in determining whether something rises to the level of a public nuisance including: the number of the people affected, the nature of the activity, the reasonableness of the use of the property, location of the activity, and the degree or character of the injury inflicted or right impinged upon. 65 The creation of a public nuisance, as opposed to the maintenance of a public nuisance, was a matter of first impression for the court. The City of Milwaukee Court concluded that to prevail on its claim for public nuisance, Milwaukee was required to demonstrate that: (1) harm occurred to the public; (2) defendants were a substantial factor in causing the harm; and (3) abatement of the cause of the harm was reasonable. 66 Ultimately, the Court held that the City had met its evidentiary burden in establishing harm to the public and a reasonable abatement of the harm sufficient that a public nuisance did exist so as to raise a genuine issue of material fact and overcome summary judgment. The question before the Court then became whether the Defendants marketing and sales of lead pigments and/or paint was a substantial factor in causing the City s injuries. 67 The Defendants contended in order to demonstrate that their alleged conduct was a substantial factor in creating the City s injuries, Milwaukee must prove, at a minimum, that Defendants lead paint was present on windows in the subject properties, and that Defendants conduct somehow caused the paint to become a hazard to Milwaukee s children. 68 Milwaukee, however, argued that such identification is unnecessary because the lead paint presented a community-wide health threat which is the alleged public nuisance, and the City can prove community-wide marketing and sales by Defendants within Milwaukee at times relevant to the creation of the nuisance. 69 The focus ought to be on the harm to the public, which was substantially created by the marketing and sales of lead paint to residents of Milwaukee, rather than on individuals who may have suffered specific personal injuries or specific property damages. Here, the allegation at its essence is that defendants sold and promoted a dangerous product to a community and that product caused a serious public health problem in that community. The City, rather than only the sick children, has suffered and sustained an injury. This injury, unlike injury suffered by individuals, is community- 60 Lewis II at City of Milwaukee v. NL Industries, Inc,. 278 Wis.2d 313, 691 N.W.2d 888 (Wis.App. 2004). 62 Id. at Id. 64 Id. at 320 quoting Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, 21, 254 Wis.2d 77, 646 N.W.2d 777 (internal citations omitted). 65 Id. 66 Id. at Id. at Id. at Id. at

10 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. wide and affects even those whose health is not compromised by lead-paint poisoning. The City is also the entity most reasonably able to remedy this community-wide injury to public health. 70 The public nuisance theory has gained traction in other jurisdictions. 71 In 1999, the Attorney General of the State of Rhode Island brought suit against the manufacturers and promoters of white lead carbonate paint manufacturers, and their trade association. 72 The Rhode Island suit advanced a public nuisance theory of recovery (among others) substantially similar to that at issue in City of Milwaukee alleged that the State incurred, and continues to incur, substantial costs related to discovering and abating lead, detecting lead poisoning, and providing (i) medical and/or other care for lead-poisoned residents of this state, (ii) education programs for children suffering injuries as a result of lead exposure and (iii) education programs for state residents. 73 This case was tried to a jury twice, and the State of Rhode Island obtained a favorable verdict in the second trial. 74 At present, the parties are engaged in spirited litigation related to fashioning appropriate abatement procedures. In 2000, the County of Santa Clara, California filed a class action compliant against the manufactures of white lead carbonate paint based in part on public nuisance theory. 75 Since the commencement of the action, a multitude of California municipalities and public entities have joined as plaintiffs including the Counties of Alameda, Santa Cruz, and San Francisco, the City of Oakland, and the Oakland Housing Authority. The California Appellate Court has held that public nuisance is viable theory of liability in the lead paint context, and the case is currently on appeal in the California Supreme Court. Twenty-six municipalities, including the Cities of Newark and Camden, and Essex County, brought suit in the New Jersey state court advancing a theory of recovery against the lead paint industry based in part on the public nuisance theory. 76 The Appellate Division of the New Jersey Superior Court accepted the public nuisance theory as a means of recovery against the lead paint industry and remanded the case back to the trial court for further proceeding Plaintiffs success in advancing their cases based on the public nuisance theory in Wisconsin, Rhode Island, and California would suggest that public nuisance the most viable theory of liability in lead litigation. To be sure, the public nuisance theory is attractive to plaintiffs because it alleviates a plaintiff s burden to demonstrate specific causation. However, there is evidence that the public nuisance theory is unpalatable to some jurisdictions as too profound a departure from well-settled tort law causation principles. 77 Sherwin-Williams Company v. The City Of Columbus, et al.: A Lead Defendant Strikes Back On September 29, 2006, The Sherwin-Williams Company filed a three-count action seeking injunctive and declaratory relief in the United States District Court for the Southern District of Ohio against the cities of Columbus, East Cleveland, and Toledo, Ohio, and various city officers in their official capacities. 78 Sherwin-Williams commenced the action as a preemptive measure, believing that the municipalities, while well-intentioned, have been misled by lawyers who are acting in concert pursuant to a common strategy to stir up litigation for their own gain across the state in blatant disregard for Sherwin-Williams constitutional rights. 79 Sherwin-Williams purportedly filed the action to prevent the unconstitutional chilling and violation of its First Amendment rights and constitutional due process. 80 Sherwin-Williams contends that the Cities and trial lawyers hope to harm Sherwin-Williams by filing a large number of lawsuits in many different courts throughout the State of Ohio, based on the public nuisance theory and seeking damages for planned lead paint abatement projects. 81 Sherwin-Williams asserts that the threat of multiple lawsuits based on [its] constitutionally protected commercial speech in its home State of Ohio, where it speaks most often on public issues and is 70 Id. at But see City of Chicago v. American Cyanamid Company, et al., 355 Ill.App.3d 209, 225, 823 N.E.2d 126 (1st Dist. 2005). (defendants cannot be liable under a theory of public nuisance for the manufacture, sale and promotion of products containing lead pigment because plaintiff has failed to adequately show that defendants selling and promoting lead-based paint was a cause in fact or a legal cause of plaintiff s complained-of injuries). 72 State v. Lead Ind. Assn., Inc., 2001 WL (R.I.Super. 2001). 73 Id. at DuPont Chemical Co. settled prior to trial for approximately $10,000,000.00; Atlantic Richfield was aquitted. 75 County of Santa Clara, et al. v. Atlantic Richfield, et al., 2006 WL (Cal.App. 6th Dist. 2006). 76 In Re: Lead Paint Litigation, 2005 WL (N.J. Supp.A.D. 2005). 77 See City of Chicago v. American Cyanamid Co., 355 Ill.App.3d 209, 823 N.E.2d 126 (1st Dist. 2005); Cofield v. Lead Industries Assoc., 2000 WL (D.Md. 2000). 78 Sherwin-Williams Company v. City of Columbus, et al., 2:06-cv-829-EAS-TPK (S.D.O.H.). 79 Id. at Id. 81 Id. at

11 More Interesting Than Watching The Paint Dry: Emerging Trends In Lead Litigation Cont. most active in the community impermissibly chills its speech activities. 82 A novel and aggressive approach, to be sure. Ultimately, Sherwin-Williams is seeking to enjoin the defendants from suing Sherwin-Williams, and for declarations that: (a) holding Sherwin-Williams liable for its activities and membership in lead trade associations chills its rights under the First Amendment; (b) claims premised on the public nuisance theory are arbitrary and violate the Due Process Clause, and; (c) public nuisance claims cannot be filed or prosecuted by trial lawyers who have a financial incentive to secure a recovery. 83 Several municipalities have filed suit in Ohio, including the cities of Akron, East Cleveland, Lancaster, and Toledo. Possibly bowing to the pressure of the Sherwin Williams suit, the City of Toledo later moved to voluntarily dismiss its action. Pending Federal Legislation On September 28, 2006, Senators Obama and Clinton introduced a bill that would require all nonhome-based child care facilities, including HeadStart program locations and kindergarten classrooms to be certified as lead-safe within the next five years. 84 The Lead Poisoning Reduction Act of 2006 would also establish $42.6 million grant program to aid communities in compliance with the bill s lead-safe certification requirements. Specifically excluded from the lead-safe certification requirements are owner-occupied facilities or rental housing units. Conclusion With the plaintiffs success at the trial level in Rhode Island and at the appellate level California, it seems as though momentum is building behind lead paint litigation. We expect more suits to be filed nationally. We further predict that as the number of lead paint cases increases, the activity level and vigor of industry lobby groups will increase as they seek to introduce legislation to obviate the possible adoption of market share, civil conspiracy, or public nuisance liability by the states respective judiciaries. Lead paint plaintiffs and industry lobbyists will attempt to out-flank each other in courtrooms and legislative assemblies around the country. All the while, legislators at the federal level will continue their efforts to identify, abate, and treat the putative hazards posed by lead paint in the existing housing stock. Steve Hart is a partner of Segal Mc- Cambridge Singer & Mahoney s Chicago office. Mr Hart is a trial lawyer with extensive experience in products liability, toxic tort, environmental, automotive and transportation law. He currently acts as National Coordinating and Trial Counsel for several fortune 500 companies in asbestos and environmental litigation. Additionally, Mr. Hart is a frequent lecturer on the theories of liability in lead paint litigation and will be chairing Mealey s conference on lead litigation this coming spring. Scott Vold is an associate in Segal McCambridge Singer & Mahoney s Chicago office. Scott represents both plaintiffs and defendants in his civil litigation practice focusing on toxic tort, environmental, consumer fraud, products liability, and personal injury law. He serves on the National Coordinating and Trial Counsel team for an industry-leading industrial equipment manufacturer in nation-wide asbestos litigation and has obtained a zero-dollar verdict on behalf of one of the nation s leading industrial fluid sealing device manufacturers. Kate Lloyd joined the toxic tort department of Segal, McCambridge, Singer and Mahoney in 2003 following her move to Chicago. Ms. Lloyd received her Associates of Arts, summa cum laude, from Simon s Rock College of Bard in Great Barrington, Massachusetts. In 2002, she graduated, cum laude, from Harvard University with a degree in political theory. 82 Id. at Id. at S and companion House of Representatives Bill H.R

12 State Law Updates CALIFORNIA David Walter California Court Held a Plaintiff s Inability to Identify Defendant s Asbestos-Containing Product Not an Automatic Dismissal for Defendant In an asbestos exposure case, the California First District Court of Appeals reversed a summary judgment order in favor of John Crane, Inc., ruling that plaintiff s inability to recall a company s allegedly hazardous products by name in his deposition does not by itself entitle the defendant company to summary judgment. Weber v. John Crane, Inc., (2006) 143 Cal.App.4th Plaintiff Joseph Weber filed a complaint against John Crane, Inc. alleging he was exposed to the company s asbestos-containing products from 1960 to 1964 while working as a machinist. John Crane moved for summary judgment asserting that Weber failed to establish that the company was a cause of his mesothelioma. Specifically, Weber testified in his deposition that he had not heard of the name John Crane, Inc., did not recall ever working with or around a product manufactured by that company, did not associate any product or service with that name, or recall whether he had ever been exposed to asbestos as a result of anything the company did or did not do. The Court held that the fact Weber was unable to recall whether he worked around a John Crane product over 40 years ago suggested only that plaintiff would not be able to prove his case with Weber s deposition testimony. The Court further stated that it could not be inferred that Weber would have been unable to recognize a John Crane product had he been shown one, or had he been shown its packaging or logo, nor could it be inferred that there is no witness or other evidence linking John Crane to Weber s jobsite. The Court cited Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, for the rule that a defendant must affirmatively show that the plaintiff will be unable to prove its case by any means. However, the Court added that it was not requiring defendants in every case to propound special interrogatories or engage in extensive discovery in order to meet their initial burden of persuasion. Bankruptcy Documents are Discoverable in California The California First District Court of Appeals reinforced a fellow appellate court s ruling that bankruptcy trust documents are not privileged in an asbestos case. SeaRiver Maritime Inc. v. Superior Court, 2006 WL (Cal. App. 1 Dist.). Plaintiff Richard Taylor claimed that during his 30 years of employment he was exposed to asbestos. In his complaint, Taylor named SeaRiver Maritime Inc. as a defendant, claiming that the company owned and operated vessels upon which Taylor worked. During discovery, SeaRiver requested documents relating to bankruptcy trusts. Taylor refused, arguing that the documents contained privileged settlement information. The trial court subsequently granted SeaRiver s motion to compel, but only as to documents verified by Taylor. Pursuant to a writ of mandate, the Appellate Court cited Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, in which the court determined that most documents submitted to bankruptcy trusts are discoverable. The Court held that absent evidence to the contrary, bankruptcy trust forms are more similar to a complaint than settlement negotiations, and consequently should be discoverable. Dave Walter practices in the Austin office and can be reached at (512) or dwalter@smsm.com. GEORGIA Victoria Ott DaimlerChrysler Corp. v. Ferrante, et al. (Ga. Sup. Ct., November 2006). The Georgia Supreme Court held that a 2005 statute regarding asbestos and silica claims was unconstitutional as applied to cases pending when the statute took effect. The statute, OCGA et seq., required that plaintiffs provide proof that exposure to asbestos or silica was a substantial contributing factor as opposed to a contributing factor, which was the standard prior to the 2005 change. The Court held that the change unconstitutionally affected appellees substantive rights by establishing a new element to their claim, one that did not exist when the original cause of action accrued. LOUISIANA Victoria Ott Betty McGee, et al. v. ACandS, Inc., et al. No. 05-CC (La. Sup. Ct. July 10, 2006) A wrongful death and survival action was filed by family members against the decedent s former employers and various product manufacturers, alleging that exposure to asbestos was the cause of his injuries and death. Plaintiffs asserted a claim for loss of enjoyment of life; however, defendants contended that this element of damages was included in any general damages that may be awarded. The Louisiana Supreme Court held that, while loss of enjoyment of life is considered an element of general as op- 12

13 State Law Updates Cont. posed to special damages, a plaintiff may assert this claim as an independent element of compensation to be considered by the jury. Furthermore, the Court held that loss of enjoyment of life is recoverable in the primary tort victim s survival claim but it is not recoverable as part of the primary victim s wrongful death claim or by family members since they are entitled to loss of consortium damages. Curtis, et al. v. Branton Industries Inc., et al., No ; Willis, et al. v. Combustion Engineering Inc., et al., No (La. Ct. App., 3rd Cir. November 7, 2006). These consolidated cases involved eight Plaintiffs who alleged injuries from exposure to asbestos against contractors and suppliers of asbestos-containing material. Plaintiffs filed suit in 1993, claiming that their exposure to asbestos began in 1968 while employed at a paper mill. At the time of Plaintiffs injuries, a Louisiana statute provided a 10 year preemption period to designers, supervisors and constructors of immovable property. This statute was amended in 1990 to include failure to warn claims. Plaintiffs added several defendants who claimed that they were exempt from liability as a result of the 1990 amendments and the trial court granted defendants motions for summary judgment. Plaintiffs appealed, claiming that the 1990 amendments were substantive and could not be applied retroactively. The Court agreed with Plaintiffs and held that the amendments to the statute were substantive and could only be applied prospectively. Plaintiffs claims for failure to warn could proceed against the newly added defendants. Victoria Ott practices in the Austin office and can be reached at (512) or vott@smsm.com. MARYLAND Michelle Siri Georgia Pacific Corp. v. Benjamin, 349 Md. 59, 904 A.2d 511 (2006) The Maryland Court of Appeals recently upheld the Court of Special Appeals decision in Georgia Pacific Corp. v. Benjamin, 349 Md. 59, 904 A.2d 511 (2006). At issue was the interpretation of the judicially constructed discovery rule and whether it tolls the statute of limitations for the filing of both wrongful death and survival actions relating to occupational diseases. At the trial level, both the wrongful death and survival actions were brought more than three years after the death of Robert Benjamin, who died of mesothelioma in Defendants Georgia-Pacific Corp. and Union Carbide Corp. moved for summary judgment on the grounds that the actions were barred by limitations and the trial court agreed. The Court of Special Appeals, and later the Court of Appeals, upheld the trial court regarding the decision to grant summary judgment for Mr. Benjamin s survival action, but reversed regarding the decedent s family s wrongful death action. The Court held that there existed sufficient evidence to generate a question as to when Mr. Benjamin s spouse and children were put on inquiry notice regarding the cause of his mesothelioma. Specifically, the Court found that despite routinely accompanying her husband to doctor s appointments, Mrs. Benjamin was never informed of the causal connection between asbestos exposure and her husband s mesothelioma and that she did not learn of the link until her daughter read an article regarding the subject. On the other hand, the Court upheld the decision granting summary judgment on Mr. Benjamin s survival action, holding that there were several references to asbestos exposure in his medical reports and that there was sufficient evidence to find Mr. Benjamin had express knowledge of his mesothelioma and asbestos exposure and was therefore on inquiry notice prior to his death in Michelle Siri practices in the Baltimore office and can be reached at or msiri@smsm.com. NEW JERSEY Lisa Wildstein Hirsch v. R.T. Vanderbilt Inc. On November 16, 2006 New Jersey had the nation s first verdict against a talc manufacturer in a cancer case in Hirsch v. R.T. Vanderbilt Inc. tried in Middlesex County Superior Court. The jury awarded plaintiff three million dollars in compensatory damages. The punitive phase of the trial is still ongoing. Lisa Wildstein practices in the Princeton office and can be reached at or lwildstein@smsm.com. NEW YORK Robert Kenney New York County Jury Awards $25 Million to Mesothelioma Plaintiff A New York County jury recently awarded $25 million to a former brake repairman. The plaintiff, Alfred D Ulisse, 73, a retired police officer, replaced brakes at Morak Brakes in Brooklyn New York. There, he stripped worn brake linings and installed new brakes. He did this full time from 1960 to 1964, and then part time during his 36 years as a police officer. D Ulisse suffers from mesothelioma, a cancer of the lung pleura that is considered mostly to be unique to asbestos exposure. Doctors removed his right lung in D Ulisse v. Daimler- Chrysler, (Sup. Ct. N.Y. County) (Index No /04). The jury found Daimler-Chrysler AG and two previously 13

14 State Law Updates Cont. settled defendants, Ford Motor Company and General Motors Corp., each to be 10% liable. Two defunct companies shared liability for the remaining 70% of the verdict. But, the jury found also that Daimler-Chrysler, the one remaining defendant, was reckless in its manufacture of chrysotile asbestos-containing brakes. The reckless finding is significant in New York because it affects how liability is apportioned after trial. New York s liability apportionment statute, Article 16 of the Civil Practice Law and Rules ( CPLR ), governs what percentage of a verdict defendants must pay after trial. CPLR Section 1601(1) eliminates joint and severable liability for noneconomic loss against defendants when a jury finds them to be 50% percent liable or less. The statute allows apportionment to all culpable entities according to their equitable share even if they are not parties to the case so long as the plaintiff could have exercised jurisdiction over them. Thus, the exception allows defendants to avoid the liability that a jury assesses to bankrupt companies. The D Ulisse jury separated the $25 million verdict into three findings: $10 million for past pain and suffering, $10 million for future pain and suffering, and $5 million to D Ulisse s wife for loss of services and society. Because these all are non-economic damages, Daimler-Chrysler would typically have been apportioned only its 10% share of the verdict. Article 16 s exception to joint and several liability, however, does not apply to defendants that juries find to be reckless, regardless of the percentage liability allotted to that defendant. As a result, even though the jury found Daimler-Chrysler only 10% liable, it is responsible for the entire remaining verdict, after a set-off for GM and Ford s shares. That leaves Daimler-Chrysler with 80% of the verdict: its own 10% plus the 70% for the two defunct defendants. So, Daimler-Chrysler is liable for $20 million of the $25 million verdict. Daimler-Chrysler has issued statements saying that the Germany-based company will appeal the D Ulisse verdict. In a companion case, the same jury found Daimler- Chrysler not liable to Rodolfo Corella. The plaintiff, who worked with Chrysler brakes between 1972 and 1989, also suffered from mesothelioma. This case was different than D Ulisse because Daimler-Chrysler presented expert testimony that Corella contracted his mesothelioma as a result of radiation treatment for Hodgkin s lymphoma in the 1970s. Corella v. Daimler- Chrysler, (Sup. Ct. N.Y. County) (Index No /05). New York Judge Dismisses Mold Claims After Frye Hearing A New York County judge recently dismissed a toxic mold case, finding that the opinions and methodologies of plaintiffs experts were not generally accepted by the scientific community. New York is one of the remaining states that hold to the Frye test for admissibility of expert testimony. The plaintiffs intended to produce experts at trial to testify that moist and moldy conditions in an apartment building caused plaintiffs to suffer from various respiratory, skin and other maladies. The defendants moved to exclude the plaintiffs experts and for summary judgment. Justice Shirley Kornreich held an extensive Frye hearing where the parties presented four experts and over forty scientific publications. Fraser v Townhouse Corp., 13 Misc.3d 1217(A), 2006 WL (Sup. Ct. N.Y. County October 27, 2006). The Court found that the scientific research had not established a causal relationship between indoor exposure to mold and/or dampness and the plaintiffs symptoms. While some of the literature showed an association between mold/dampness and various symptoms, those findings fell short of causation. Many of the articles discussed both the difficulty in measuring mold and the lack of standardized protocols for fungal sampling analysis. The writings also emphasized the need for more information about the effects of indoor mold and dampness exposure, stating that the authors had seen no conclusive evidence that mold and/or dampness exposure caused injury. The Court relied primarily on the Institute of Medicine of National Academies 2003 book Damp Indoor Spaces and Health (plaintiffs exhibit 23) and the American Academy of Allergy Asthma and Immunology s 2006 position paper entitled, The Medical Effects of Mold Exposure, (defendant s exhibit E). The publications conclude that sufficient evidence does not exist to establish a causal relationship exists between health outcomes and damp and/or moldy indoor environments. Finding that plaintiffs failed to show causation of the illnesses by mold and/or a damp environment is generally accepted in the relevant scientific community, the Court precluded the causation evidence and dismissed the plaintiffs personal injury claims. Kings County Jury Finds Doctor Not Liable for Lead Poisoning A Brooklyn, New York jury has found that a doctor is not liable for a child patient s lead poisoning. The plaintiff offered evidence that Patrick Simpson, a 12 year old boy, suffers lead poisoning from his exposure to lead-based paint in the Brooklyn, New York apartment where he lives. The jury awarded the plaintiff $500,000 in damages finding liable the owner and manager of the apartment building where the boy lived. The jury rejected the plaintiff s claim that the doctor was li- 14

15 State Law Updates Cont. able for failure to provide anticipatory guidance to the mother. Simpson v. Central Brooklyn Medical Group, P.C., (Sup. Ct. Kings County) (Index No /03). Robert Kenney practices in the New York office and can be reached at (212) or PENNSYLVANIA Robert Coleman Fessler v Rockbestos (Appeal from the Judgment entered October 26, 2005 In the Court of Common Pleas of Philadelphia County Civil No. 2329, September Term, 2004) On November 17, 2006, the Superior Court in this matter affirmed a lower court decision in granting a non suit in favor of Rockbestos. The matter tried in Philadelphia was reversed bifurcated with damages being tried prior to liability. In the first phase, plaintiff was awarded one million dollars ($1,000,000) for an asbestos related lung cancer. In the phase two proceeding, Plaintiff stated that while employed at Leeds & Northrop he was around both asbestos brick and wire. Plaintiff testified that he associated Rockbestos with an asbestos containing brick and a non suit was entered as Rockbestos may have manufactured an asbestos wire during the appropriate time frame but they did not manufacture an asbestos containing brick. On appeal, plaintiff s counsel argued that there client was simply mistaken. It was proffered that plaintiff was exposed to both asbestos bricks and asbestos wire. Since defendant Rockbestos made an asbestos wire and plaintiff associated the name Rockbestos with his employment a jury could reasonably infer that Rockbestos manufactured the asbestos wire he was exposed too. The Court held that although all reasonable inferences must be given to the plaintiff, Circumstantial evidence is defined as evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred.... By failing to offer proof of product identification, Appellant did not establish a cause of action for asbestos products liability, and the trial court properly prevented her from trying a cause of action based on speculation and conjecture before a jury. Robert Coleman practices in the Philadelphia office and can be reached at or rcoleman@smsm.com. TEXAS John LaBoon Exxon Mobil Corporation v. Louise Altimore (Tex. App. Houston [14th Dist.] August 1, 2006) This opinion involves a household asbestos claim for mesothelioma against an employer/premise owner. After a lengthy review on state-of-the-art evidence the Court held: The imposition of a duty on Exxon to protect appellee from exposure to asbestos dust depends on the foreseeability of the risk of injury to appellee from asbestos fibers carried on her husband s clothing. Based on the evidence introduced during the trial, Exxon did not become aware of the take-home risk of asbestos exposure until 1972 when OSHA prohibited employers from allowing workers who had been exposed to asbestos to wear their work clothes home. Exxon was put on notice in 1972 that asbestos posed a risk to persons, such as employee families, who were never on the employer s premises. It follows that in 1972 the risk to appellee of contracting a serious illness had become foreseeable, triggering, for the first time a duty to protect appellee and those persons similarly situated. However, by that time, Mr. Altimore was working in the air-conditioned tool room and was no longer working in an environment where he was being exposed to asbestos dust. Accordingly, we conclude as a matter of law, Exxon did not owe a duty to appellee and we sustain Exxon s first issue on appeal. It should be noted that this case involves a premises liability as opposed to a products liability claim, and so the standard for liability was simple negligence. In Re Graco Children s Products, Inc. (Tex. October 27, 2006) In this products liability discovery dispute opinion, the Texas Supreme Court stated, [w]e have granted mandamus in several product-liability cases when a discovery order covered products the plaintiff never used. In In Re American Optical Corp., we reversed a discovery order regarding respiratory equipment the plaintiffs never alleged they used. 988 S.W.2d 711, 713 (Tex. 1998). In Texaco, Inc. v. Sanderson, we reversed a discovery order regarding substances to which the plaintiffs never alleged exposure. 898 S.W.2d 813, 814 (Tex. 1995). After concluding that the requested discovery in this case was overbroad, the Court held that [e]vidence about different products and dissimilar accidents has long been inadmissible, as it generally proves nothing while distracting attention from the accident at hand. The Texas Asbestos MDL Judge Mark Davidson has indicated that the holding in this case will narrow the written discovery that defendants have to answer in Texas asbestos cases, and that the current MDL Case Management Order would be modified. In Re Exxon Corporation (Tex. App. Beaumont [9th Dist.] October 12, 2006) 15

16 State Law Updates Cont. Plaintiffs, two contract workers who worked intermittently for Defendant Exxon, alleged they developed cancer as a result of benzene exposure on Defendant s premises. Plaintiffs had served a series of requests for production of documents, many unlimited in time and location. Defendant objected, but produced over 25,000 pages of documents and made its 100,000 document Exxon- Baytown Industrial Hygiene File Room (IH file room) available to Plaintiffs. Plaintiffs obtained the trial court s permission to depose witnesses purely for the purpose of exploring Exxon s efforts in responding to the discovery requests, without first establishing the necessity of inquiry. Plaintiffs did not produce concrete evidence of discovery abuse in this case and failed to justify an investigation into the Defendant s discovery compliance. The Court of Appeals concluded that Plaintiffs request constituted a fishing expedition. The Court also held: This subject necessarily and almost exclusively concerns mental impressions developed in anticipation of litigation or for trial by or for a party or a party s representatives and consists of the attorney s representative s mental impressions, opinions, conclusions, or legal theories subject to protection as work product and core work product. In Re Shell Oil Co., 202 S.W.3d 286 (Tex. App. Beaumont, 2006) The Court of Appeals held that consolidation of two employees claims of occupational exposure to benzene resulting in cancer was not warranted. Although the status of discovery and Plaintiffs representation by same counsel weighed in favor of consolidation, the employees were contractors who did not share a common worksite for most of the time at issue. Other factors that weighed against consolidation included: the employees did not share similar occupations at all times during their careers, lengths of time of exposure differed, the parties disputed whether employees suffered from same disease, and the fact that one employee was in remission while other employee had died. Montalbayo v. Lincoln Electric (Galveston November 15, 2006) A Texas jury found for several defendants in the second welding rod case to go to trial in Texas. The Plaintiff was a 46 year old female who claimed to have developed Parkinsonism as a result of exposure to manganese-containing welding rods while for four years while she was employed as a welder for the U.S. Navy. John LaBoon practices in the Austin office and can be reached at (512) or jlaboon@smsm.com. 16

17 Asbestos Selected Cancers By John A. LaBoon Overview In August, 2006, the Institute of Medicine released Asbestos: Selected Cancers. The study was written by the Committee on Asbestos: Selected Health Effects Board on Population Health and Public Health Practices. This committee is comprised of thirteen multi-disciplinary experts in the fields of biostatistics, epidemiology, mineralogy, oncology, toxicology, and cancer biology. The Committee s charge was drawn from Senate Bill 852, the Fairness in Asbestos Injury Resolution (FAIR) Act which states: The Institute of Medicine s (IOM) Board on Population Health and Public Health Practices will oversee a study that will comprehensively review, evaluate, and summarize the peer-reviewed scientific and medical literature regarding the association between asbestos and colorectal, laryngeal, esophageal, pharyngeal, and stomach cancers. Based on its examination and evaluation of the extant literature and other information it may obtain in the course of the study, the committee will determine if there is a causal association between asbestos and colorectal, laryngeal, esophageal, pharyngeal, or stomach cancers. (emphasis added) (ES1) In the Executive Summary, the Committee stated that it: interpreted its charge as requiring a comprehensive and systematic review of evidence on the cancer risk posed by asbestos at the specified sites in humans and in experimental animals. The Committee also identified a need to review evidence related to the biologic plausibility of a causal association between asbestos and cancer at the designated sites. (ES2) The Committee did not address fiber type (amphibole v. serpentine) in their analysis because they believed there was insufficient evidence to carry out such an evaluation for these types of cancer. The Committee selected the Bradford-Hill criteria and other guidelines used by the U.S. Surgeon General to classify the evidence and assess causation, stating: The criteria for causal inference include consistency, strength of association, temporality, and the coherence or plausibility of the association. The Committee selected a four-level classification of the strength of evidence for causal inference, classifying the evidence as sufficient, suggestive, or inadequate to infer causality or suggestive of no causal association. For the purpose of its charge, designating an association of asbestos with cancers of the designated sites as causal, the Committee required the evidence to reach the level of sufficient. (ES3) In regard to its findings, the Committee stated that the category of suggestive but not sufficient potentially comprises a range of evidence and uncertainty that does not rise to the level of certainty needed for the designation of causality. (p. 20) TABLE ES.1 Causal association between specified cancer and asbestos Cancer Laryngeal Pharyngeal Stomach Colorectal Esophageal Evidence for presence or absence of causal relationship to asbestos Sufficient Suggestive but not sufficient Suggestive but not sufficient Suggestive but not sufficient Inadequate Evidence Considered The Committee pointed out that the medical literature (MEDLINE and EMBASE) contained about 25,000 citations for asbestos. However, many of those articles dealt with asbestosis, lung cancer, and mesothelioma. The Committee also reviewed the secondary literature, including but not limited to publications from organizations such as: ATSDR, EPA, IARC, and OSHA. The Committee s database contained 2,500 citations through August They obtained hard copies of 754 articles. Ultimately about 300 publications provided direct evidence in their evaluation. (p. 24) The Committee s report is 322 pages long and is bro- 17

18 Asbestos Selected Cancers Cont. ken into twelve chapters. While not the primary focus of this article, the Committee wrote several chapters detailing background information about asbestos-related diseases as well as their study methodology. Chapter 2, Committee s Approach to Its Charge and Methods Used in Evaluation, contains detailed discussions of the epidemiological analysis used during their review. Chapter 3, Background Information on Asbestos, is dedicated to background information concerning the mineralogical aspects of asbestos. Chapter 4, Exposure and Disposition, addresses the uses of asbestos, how people may be exposed to it, the magnitude of exposure, and how it is measured. Chapter 5, Biological Aspects of Asbestos- Related Disease, summarizes asbestos-related diseases, risk factors for lung cancer and mesothelioma, fiber dimensions and biopersistence, mechanisms of fiber carcinogenicity, and the SV40 virus and its relationship to mesothelioma. Chapter 5 also summarizes information concerning animal studies which focused on the inhalation and ingestion of asbestos fibers. The Committee noted that the toxicology data summarized below suggest that fibers do not persist at the site of deposition or in the gut long enough to induce toxicity in animal models at the cancer sites of concern in this review. Finally, Chapter 5 addresses the role of biomarkers (ex. pleural plaques) in animals and humans in the detection of asbestos-related cancers. The Committee concluded, there seems to be no evidence that definitively identifies a biomarker of asbestos exposure that predicts cancers of the larynx, pharynx, esophagus, stomach, colon, or rectum. Chapter 6, Description of Epidemiologic Studies Included in Evidentiary Dataset, summarizes the 40 main cohort population studies that contained usable information on the risk of cancer at one or more of the sites of interest for this review. The Committee was interested in the most complete, and thus usually the most recent, citation addressing cancer incidence or mortality. (p. 104) Examples of groups studied with repeated follow-ups include: the London East End Factory (Berry et al. 2000), US textile workers (Dement et al. 1994), Quebec miners (McDonald et al. 1993, Liddell et al. 1997), and North American insulation workers (Selikoff et al. 1991). It should be noted that plaintiffs experts in asbestos litigation often cite earlier studies to support their claims on causation even though later, and often more complete, studies report lower relative risk. It is equally important that the Committee reported those bestevidence relative risks (RRs) in our summary of findings, acknowledging that they may over-estimate risks somewhat because comparison rates, typically from national populations, were limited to death-certificate data. (p. 128) Chapter 6 also summarizes the 36 case-control studies that were used to determine causation for the report. Pharyngeal Cancer (Chapter 7) Pharyngeal cancers are often called head and neck cancers. Known risk factors for pharyngeal cancer include all forms of tobacco-smoking (cigarettes, cigars, and pipes), chewing tobacco, and excessive alcohol consumption. In studying the relationship between asbestos and pharyngeal cancer, the Committee reviewed 16 cohort populations and 6 case-control studies. After reviewing the cohort studies, the Committee reported the aggregated RR (relative risk) of pharyngeal cancers for any exposure to asbestos was 1.44 (95% CI ). Few studies evaluated exposure-response trends, and there was no indication of higher risk associated with more extreme exposures (RR=0.93, 95% CI ). (p. 164) For the six case-control studies, the Committee examined whether the studies adjusted for alcohol use and smoking (confounders) as well as the quality of the exposure assessment for the studied populations. None of the case-control studies had a relative risk greater than 2.0. It was also noted that animal studies (both inhalation and ingestion) were negative. The Committee concluded that the evidence is suggestive but not sufficient to infer a causal relationship between asbestos exposure and pharyngeal cancer. (p. 170) Laryngeal Cancer (Chapter 8) The larynx is often referred to as the voice box or Adam s apple. The most important risk factors for laryngeal cancer are tobacco smoking (all forms) as well as heavy alcohol consumption. The Committee noted: The combination of tobacco-smoking and heavy drinking causes a much larger increase in laryngeal cancer risk than would be expected from the sum of the relative risk (RR) estimates associated with the separate exposures. (p. 175) This relationship has been characterized as synergistic in other studies including the Surgeon General s Report on the Health Consequences of Smoking (2004). The Committee included 35 cohort populations examined in 29 published papers that studied the potential association between asbestos exposure and laryngeal cancer. The relative risk exceeded 1.0 in all cohorts with 10 or more cases of laryngeal cancer, as well as the largest study of patients with asbestosis. (p. 179) The cumulative relative risk for all cohort studies was 1.40 (95% CI ). The Committee also examined whether the association was stronger in the cohorts with heavier exposure. They reported that the aggregate RR estimate in the most highly exposed subjects was 2.57 (95% CI ) for the strongest association reported and 2.02 (95% CI ) for the weakest association reported; both are higher than the combined estimate associated with any 18

19 Asbestos Selected Cancers Cont. exposure to asbestos 1.40 (95% CI ). (p. 179) The Committee also reviewed 18 case-control studies that investigated laryngeal cancers related to asbestos. Fifteen of these studies compared any exposure to no exposure. The relative risk for these 15 studies was 1.43 (95% CI ). (p. 180) The Committee analyzed the case-control studies that attempted to control for tobacco and alcohol. After adjusting for these two confounding factors, the relative risk was 1.18 (CI ). (p. 182) The Committee noted that the five animal studies they reviewed were negative. However, they did conclude that several factors support the biological plausibility of a relationship between asbestos and laryngeal cancer. Additionally, the cumulative relative risks for the cohort (1.40) and case-control (1.43) studies led them to conclude that the evidence is sufficient to infer a causal relationship between asbestos exposure and laryngeal cancer. (p. 188) Esophageal Cancer (Chapter 9) The esophagus is the tube that carries food and liquid to the stomach. The prevalence of esophageal cancer is ranked 19th as compared to other types of cancer and is, therefore, rare in humans on a relative basis. The known risk factors are somewhat different for the two primary types of esophageal cancer. The risk factors for squamous cell cancer include all forms of tobacco (smoked and chewed) as well as excessive alcohol consumption. Adenocarcinoma risk factors include smoking, chronic esophageal reflux and obesity. The Committee examined 25 cohort studies which reviewed the potential association between asbestos and esophageal cancer. Only four of these studies showed an increased risk. The meta-analysis relative risk for the 25 cohorts was characterized as neutral (RR=0.99, 95% CI ). (p. 197) Three case-control studies were reviewed concerning esophageal cancer. Two of the studies attempted to make adjustments for potential confounding factors. The pooled relative risk for these studies was 1.47 (95% CI ). The Committee noted that six animal studies were negative. The ultimate conclusion of the Committee was that the evidence is inadequate to infer the presence or absence of a causal relationship between asbestos exposure and esophageal cancer. (p. 200) Stomach Cancer (Chapter 10) The primary risk factors for stomach cancer are diet and obesity. Stomach cancer ranks second in cancer mortality worldwide and 11th in the United States. It was also noted that the incidence of stomach cancer is almost twice as high in men as compared to women. (p. 203) The Committee reviewed 34 cohort studies representing 42 separate cohorts. The overall relative risk for the cohort studies was 1.17 (95% CI ). (p. 207) The Committee did note that the majority of the cohorts had a relative risk in excess of 1.0. The largest relative risk was reported in Dr. Selikoff s 1979 study of insulators (RR=3.52). (p. 207) However, it should be noted that Dr. Selikoff s follow-up in 1991 reported a odds ratio of (Selikoff, The Third Wave of Asbestos Disease Annals NYAS p. 8, 1991.) The Committee reviewed five case-control studies relevant to stomach cancer. The overall relative risk was 1.11 (95% CI ). (p. 209) In sub-analyzing these five studies the Committee noted: That small overall RR increase was based largely on the two studies with lowerquality exposure assessment, whose aggregate RR estimate was 1.43 (95% CI ), whereas the combined RR estimate for the three findings with better exposure assessments was 0.91 (95% CI (p ) After reviewing these epidemiological studies, six negative animal studies, and other data, the Committee concluded that evidence is suggestive but not sufficient to infer a causal relationship between asbestos exposure and stomach cancer. (p. 212) Colorectal Cancer (Chapter 11) Colon and rectal cancer, taken together, are the thirdmost common cancer in the United States. Tobaccosmoking is a known risk factor for ademomatous polyps, the main precursor to colon cancer. Other risk factors for colon cancer include obesity, heavy consumption of alcohol and/or red meat, and familial history. For colorectal cancers, the Committee reviewed three sets of studies: colon, rectal, and colorectal because some studies did not present the data separately between the two sites. The Committee noted that in the 15 cohort populations with individual results for colon and for rectum there did not appear to be any systematic difference, and their aggregate results were similar to those for the studies that had precombined their observations into a colorectal category. The case-control data was sparse and major differences could not be ascertained. Ultimately, the Committee combined the three sets of data because it would be easier to analyze and the Committee s charge specified colorectal cancer as a single endpoint. The Committee reviewed cohort studies covering 41 populations to analyze asbestos and colorectal cancer. The overall relative risk was 1.15 (95% CI ). (p. 19

20 Asbestos Selected Cancers Cont. 219) The Committee noted that the cohort studies were primarily mortality studies which may not give a complete account of occurrence of colorectal cancer. (p. 218) Eleven colorectal cancer case-control studies covering 13 different populations were evaluated. The overall relative risk was 1.16 (95% CI ). (p. 222) Importantly, the Committee noted: We next considered separately high-quality and lower-quality studies. In the colorectal casecontrol studies with higher-quality assessment of asbestos exposure, the summary estimate of association was essentially null (95% CI ); in the lower-quality studies, the summary estimate of association was significantly positive (RR=2.00, 95% CI ). That pattern suggests that lower-quality studies those with less rigorous classification of exposure and typically without adjustment for confounding were more likely to show associations between asbestos exposure and colorectal cancer. (p ) The Committee also evaluated exposure gradients to asbestos (highest and lowest) and concluded that [a]mong groups with colorectal cancer those with high exposure did not, in aggregate, have a greater risk of cancer than those with simply any exposure. (p. 223) In evaluating non-epidemiological evidence, the Committee noted that at least three studies have identified asbestos bodies and/or fibers in the colon. However, no animal studies have produced colon or colorectal cancers despite the fact that some of the studies have involved high-dose feedings of asbestos to rodents. In summarizing its conclusions on colon cancer, the Committee stated: that some aspects of the evidence were supportive of a causal association: a positive but small aggregate association with a narrow confidence band arising from the many cohort findings[,] possible biologic plausibility suggested by the presence of asbestos bodies and fibers in the colons of asbestos workers and the experimental induction of colon polyps, albeit benign, in rats. The overall lack of consistency or of the suggestion of an association among the case-control studies (even those of the highest quality) and the absence of convincing doseresponse relations in either type of study design, however, weigh against causality. (p. 226) Ultimately, the Committee concluded that the evidence is suggestive but not sufficient to infer a causal relationship between asbestos exposure and colorectal cancer. (p. 226) Conclusion Asbestos Selected Cancers provides the first comprehensive multi-disciplinary study of the potential role asbestos may play in the development of laryngeal, pharyngeal, stomach, colon, and esophageal cancers. The study is important because of the breadth of the review and the multi-disciplinary methodology that the Committee utilized in conducting its analysis. This study should provide critical information for asbestos litigators and testifying experts. Additionally, it is this author s opinion that this book will be utilized heavily in future Daubert/Frye hearings in which defendants choose to challenge plaintiff s causation evidence related to these various other cancers. It should provide extremely persuasive evidence for defendants challenging pharyngeal, stomach, colon, and esophageal cancer cases. Conversely, plaintiffs will likely use the study to bolster their laryngeal cancer cases. Defendants should carefully scrutinize the plaintiff s medical records to determine their smoking and drinking histories. Ultimately, this report should reduce the number of cases in which these types of claims are made. John LaBoon is a partner in the Austin office of Segal McCambridge Singer & Mahoney. He is a trial attorney specializing in the defense of toxic tort, products liability and personal injury cases. His toxic tort practice includes representing product manufacturers and suppliers, premises owners and contractors in defending asbestos, benzene, chemical exposure, silica and welding rod claims. During this representation, Mr. LaBoon has developed specific expertise in the state-of-the-art defense, medical causation and epidemiology. As trial counsel, he has received defense verdicts in numerous asbestos personal injury and wrongful death cases, as well as general personal injury and products liability cases across Texas. 20