For your delectation and delight, desultory dicta on the law of delicts.

Further Thoughts on the Carter Apportionment Case – The Pennsylvania Experience

September 20th, 2014

Carter is hard to square with commentators and precedent and the logic of the law. Juries, in their fact-finding roles, apportion in various contexts. In actions for negligence, juries consider the relative faults of the parties, and apportion responsibility in the absence of any definite quantitative basis. In considering crossclaims among defendants, juries in many states must assess each defendants relative causal contribution to the plaintiff’s overall injury and apportion liability. See, e.g., Moore v. Johns-Mansville Sales Corp., 781 F.2d 1061, 1062-65 (5th Cir. 1986) (rejecting pro-rata liability in favor of apportioned liability based upon relative causation of dose-related diseases)

Mathematical certainty is not a prerequisite to apportionment; evidence that tends to show relative proportions of damages caused by each tortfeasor, or other source, is sufficient for a jury to apportion properly. See, e.g., Scafidi v Seiler, 119 N.J. 93, 113, 574 A.2d 398 (1990) (apportionment is a traditional jury function). See also Restatement (Third) of Torts: Physical and Emotional Harm § 28, comment d (2010) (“Death as an injury may not be divisible, but damages for death are divisible.”).

As we saw in Carter, the Maryland Court of Appeals insisted upon characterizing apportionment of damages as based upon fault, when it clearly can be accomplished without reference to fault. As seen in New Jersey law and in the Restatement (Second) of Torts, apportionment on causal principles is encouraged. See Section 433A, comment a (apportionment is proper when one of the causes is the conduct of the plaintiff, regardless of whether the plaintiff’s conduct is negligent or innocent). Workman compensation cases provide many examples of fault-free, causal apportionment. See, e.g., Jenkins v. Halstead Indus., 17 Ark. App. 197, 706 S.W.2d 191 (1986) (apportionment in non-fault based workers’ compensation case). Even when apportionment is based upon fault principles, claims of synergy or mathematical inexactitude do not create a bar to reasonable divisions of damages[1].

Judges in Pennsylvania, who have heard both sides of the evidence in asbestos/smoking lung cancer cases, have upheld juries’ causal apportionments of damages. In Parker v. Bell Asbestos Mines, Ltd., plaintiff sued for her deceased husband’s death from lung cancer. Her decedent had been a heavy smoker for many years, and he had been exposed minimally to asbestos in his office job on the property of an asbestos product manufacturing plant. Plaintiffs expert witnesses (Dr. Rubin) testified that the cancer and death were the result of synergistic risk of smoking and asbestos exposure, and that they did not know how to distinguish between the risks. The defense expert witnesses (Dr. Cooper and Epstein) opined that the cancer was due solely to smoking. Judge Huyett instructed the jury that it could choose to apportion damages between asbestos and tobacco, and the jury did so. A strong panel of the Third Circuit affirmed the apportionment instruction to the jury and the jury finding. Parker v. Bell Asbestos Mines, Ltd., No. 86-1197, Slip Op. (Dec. 30, 1987) (per curiam) (Weis, Higginbotham, and Hansmann, JJ.) (affirming judgment entered on verdict that apportioned causation of lung cancer and consequent death, but remanding on a liability issue), reported only for disposition at 838 F.2d 462 (3d Cir. 1987). For about five years after Parker, the federal district courts in the Third Circuit generally followed the practice of Judge Huyett, who was affirmed by the Circuit, in giving apportionment charges[2].

The defense’s uniform success in obtaining apportionment charges in Pennsylvania law diversity cases ended with Borman v. Raymark Indus., Inc., 960 F.2d 327 (3d Cir. 1992). In Borman, neither the defendants’ (Dr. William Weiss) nor the plaintiffs’ expert witnesses (Dr. Daniel Dupont) apportioned damages in a case involving an asbestos insulator, who smoked heavily, and died of lung cancer. Borman, 960 F.2d at 331. Dr. Dupont recited the dubious 5-10-50 Mt. Sinai catechism, and gave the requisite concession that he was ignorant of any method to apportion the lung cancer outcome to asbestos and tobacco. Dr. Weiss testified that asbestos was the sole cause of Mr. Borman’s lung cancer. On this record, the trial judge, Hon. Edmund Ludwig, refused to charge the jury on apportionment. The Third Circuit affirmed on its prediction that the Pennsylvania Supreme Court would disallow apportionment because the defense expert had never been asked to apportion causation, and thus the defendants could not carry their burden of proving a reasonable basis for apportionment. Id. at 334-35.

The Borman decision raised a difficult problem, which the panel of Judges Sloviter, Scirica, and Alito, never addressed: why had the defense not carried its burden of showing a basis for apportionment when:

(1) all expert witnesses agreed that tobacco was a cause of the plaintiff’s cancer;

(2) jury heard the quantified risks of tobacco and asbestos, which showed that tobacco had been a larger risk in the plaintiff’s case; and

(3) the plaintiff’s expert witness’s admitted ignorance with respect to how the outcome might be attributed to the individual risks.

The last point would have supported a directed verdict for the defense, but given that the case was permitted to go forward, the Borman decision represents the unfair allocation of tobacco-caused (or tobacco risked) damages to defendants sued for asbestos products.[3]

Borman also poses a serious constitutional due process problem. The defendant on appeal cited to the unpublished Third Circuit opinion Court, Parker v. Bell Asbestos Mines, Ltd., No. 86-1197, slip op. at 2-7 (3d Cir. Dec. 30, 1987) (per curiam). The Circuit essentially ignored this precedent because it was unpublished and thus had no “precedential value.” 960 F.2d at 333 n.9 (3d Cir. 1992) (citing Third Circuit Internal Operating Procedure 5.6 (July 1990)). The characterization of the earlier Parker decision as having no precedential value, when it resolved the same legal issues between other parties, and provided notice to other litigants how the Third Circuit resolved the issue, was quite arbitrary.[4] The Third Circuit’s current IOP continues the distinction between precedential and non-precedential opinions. See also United States Court of Appeals for the Third Circuit Local Appellate Rule 28.3(b) (Citation Form; Certification) (Aug. 1, 2011) (“For each legal proposition supported by citations in the argument, counsel must cite to any opposing authority if such authority is binding on this court, e.g., U.S. Supreme Court decisions, published decisions of this court, or, in diversity cases, decisions of the highest state court.) (emphasis added). The upshot of the practice of marking decisions non-precedential is that judges are permitted to decide like cases differently solely because the earlier judges decided to keep their decisions “private.”

Between the Third Circuit’s Parker decision in 1987, and its Borman decision in 1992, many state court judges in Pennsylvania gave apportionment charges. Judge Della Porta’s charge in Dixon v. Celotex Corp., was typical and it resulted in the jury’s apportioning damages in a smoking lung cancer case, involving some asbestos exposure, to both tobacco and asbestos. Dixon v. Celotex Corp., Phila. Cty. Ct. C.P. No. 4576, Oct. Term 1982, Opinion Sur Post-Trial Motions at p.3 (Mar. 3, 1991) (affirming judgment entered upon jury verdict, which apportioned the causes of plaintiff’s lung cancer 65% to cigarette smoking and 35% to asbestos exposure). Judge Della Porta was especially unimpressed by the complaint that the apportionment lacked a mathematical basis with apodictic certainty:

“It is worth noting here that we engage in sophistry if it is required that some mathematical formula be presented to the jury before it can allocate percentages when there are two or more causes for one injury. Let’s not forget that this is the same jury which is asked to determine the monetary value of ‛pain and suffering’ without any guidance whatsoever on how to arrive at a fair and adequate figure.”

Id. See also Mohan v. Carey Canadian Ltd., Phila. Cty. Ct. C.P., No. 8007-3931 (Charge to Jury on April 9, 1986) (Hon. Berel Caesar) (jury instruction that pre-dated Parker: “if you find that you can reasonably split out the effects of asbestos and the injuries caused by asbestos from the injuries caused by smoking, then you should do so and assign a percentage to them.”)

In one lung cancer case, tried in 1992 in Philadelphia state court, the defense presented a defense expert witness (Dr. Theodore Rodman) that tobacco and asbestos contributed equally to plaintiff’s lung cancer. The plaintiff’s expert witness (Dr. Irwin Stoloff) hedged, but acknowledged that both asbestos and tobacco contributed, with asbestos perhaps more so. Dorothy Rothermel, Executrix of the Estate of Leland Rothermel, Deceased v. Owens-Illinois, Inc., et al., No. 8704-1464 (Philadelphia Cty. July 17, 1992) (Judge Richard B. Klein). On these facts, distinguishable from the Borman case, the trial judge gave an apportionment instruction:

The trial judge, waxing professorial, charged the jury as follows regarding the apportionment of causation:

“The next question, the first part of it is, ‛Is there a reasonable basis to apportion responsibility for Mr. Rothermel’s lung cancer between cigarette smoking and asbestos exposure’. Why did we ask that question? Because pretty much the formal statement of the law, which is put forth by a number of professors and adopted by the courts, is called the Restatement of the law. This is in torts, and says damages are to be apportioned among two or more causes when A, there are distinct harms, or B, there is a reasonable basis for determining the contribution of each cause to a single harm.

Well, there aren’t distinct harms here that we’re talking about. That would be, for example, if someone has in this kind of a context both asbestos is and emphysema from cigarette smoking. So part of your shortness of breath is caused by emphysema, and part of it is caused by asbestos if it’s symptomatic, and the doctors will tell you how much of each they think it is, but then you come to a figure. But this is one disease, lung cancer, and it’s up to you to figure out whether it’s appropriate to apportion.

* * *

The first question is do you think this is something where it’s appropriate to divide it between the two or not. If you do, then make that division[.] …[Y]ou’ve heard what the different doctors said, one says 50/50, the other says somewhat less than 50 percent due to smoking, asbestos is a little more than that, based on his reasoning.

So it’s up to you first to decide if it’s appropriate, and if it’s reasonable, there’s a reasonable way to separate the two of them out as [causative] factors and to make the allocation, and then if so, then you go to B and divide them up, just making sure that the two equal 100 percent. If you don’t think it’s appropriate to allocate between the two of them, then skip to No. 3.

* * *

. . . [W]hen you come to a damage figure, even if you have allocated between asbestos and cigarette smoking, don’t discount for that in the damage phase. We’ll do that later.”

Trial Transcript, July 2, 1990, at 117-25 (Instructions of Hon. Richard B. Klein).

The jury apportioned damages equally between asbestos and tobacco, consistent with the defense expert witness’s testimony. By post-trial motion, the defendant, Owens-Illinois, requested the trial court to mold the injury’s verdict to reflect this apportionment. The court denied this motion, 24 Phila. 332 (1992), and the Superior Court affirmed in an unpublished per curiam decision. 433 Pa. Super. 643, 638 A.2d 276 (1993). After a full briefing and oral argument in the Pennsylvania Supreme Court, that Court dismissed the appeal as having been improvidently granted. Rothermel v. Owens-Illinois Glass Co., 542 Pa. 358; 667 A.2d 2 (1995) (per curiam). In other words, the Pennsylvania justices did not want to call whether Borman had accurately predicted their decision, because they would not decide.

Pennsylvania law on apportionment, as is the case with so much of Pennsylvania products liability law, remains unclear and up in the air.

[1] See, e.g., Brisboy v. Fibreboard Corp., 429 Mich. 540, 556, 418 N.W.2d 650, 657 (1988)(upholding jury apportionment, under comparative negligence principles, of the roles of plaintiff’s cigarette smoking and the defendant’s asbestos product in causing plaintiff’s lung cancer); Hao v. Owens-Illinois, Inc., 69 Haw. 231, 738 P.2d 416 (1987) (fault-based apportionment ratio of 51% smoking to 49% asbestos affirmed); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1138-40 (5th Cir. 1985) (under Texas law, determination of apportionment is for the jury; it is capable of weighing the evidence as to each potential cause); Fulgium v. Armstrong World Indus., Inc., 645 F. Supp. 761, 763 (W.D. La. 1986) (apportionment allowed under Louisiana law); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) (commenting on the jury verdict apportioning damages: “It is the province of the jury to determine the credibility and weight to be given the evidence”)

[2] DeSilvio v. Raymark Indus., Inc., No. 86-2340, U.S.D.C., E.D. Pa., Court’s Charge and Interrogatories to the Jury, N.T. at 3.82-83 (Oct. 21, 1988) (Hon. Norma L. Shapiro) (applying New Jersey law of causal apportionment to instruct the jury that it could apportion plaintiff’s claimed fear of cancer between smoking and asbestos causes); Jordan v. Fibreboard Corp., No. 85-5655, Jury Instruction on Apportionment of lung cancer in asbestos case, June 16, 1989 (McGlynn, J.); Backman v. Celotex Corp., Civil Action No. 87-4081 (E.D. Pa. Aug. 8, 1990) (Jury Charge and Interrogatory); Henderson v. Keene Corp., Charge to the Jury and Verdict Sheet in Civ. Action No. 87-7973 (E.D. Pa. 1991) (Pollak, J.).

[3] See Richard A. Shuter, “Apportionment of Damages–Third Circuit Predicts Pennsylvania Courts Would Not Allow Jury to Apportion Liability In A Cigarette Smoking, Exposure Case–Borman v. Raymark Ind., Inc.,” 66 Temp. L. Rev. 223, 229 (1993) (“All other jurisdictions that have addressed the apportionment of damages issue in an asbestos exposure, cigarette smoking case, have permitted the jury to apportion damages.”).

[4] No citation and no precedent rules are deeply problematic, and have attracted a great deal of scholarly attention.  See Erica Weisgerber, “Unpublished Opinions: A Convenient Means to an Unconstitutional End,” 97 Georgetown L.J. 621 (2009);  Rafi Moghadam, “Judge Nullification: A Perception of Unpublished Opinions,” 62 Hastings L.J. 1397 (2011);  Norman R. Williams, “The failings of Originalism:  The Federal Courts and the Power of Precedent,” 37 U.C.. Davis L. Rev. 761 (2004);  Dione C. Greene, “The Federal Courts of Appeals, Unpublished Decisions, and the ‘No-Citation Rule,” 81 Indiana L.J. 1503 (2006);  Vincent M. Cox, “Freeing Unpublished Opinions from Exile: Going Beyond the Citation Permitted by Proposed Federal Rule of Appellate Procedure 32.1,” 44 Washburn L.J. 105 (2004);  Sarah E. Ricks, “The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of The Substantive Due Process State-Created Danger Doctrine in One Circuit,” 81 Wash. L.Rev. 217 (2006);  Michael J. Woodruff, “State Supreme Court Opinion Publication in the Context of Ideology and Electoral Incentives.” New York University Department of Politics (March 2011);   Michael B. W. Sinclair, “Anastasoff versus Hart: The Constitutionality and Wisdom of Denying Precedential Authority to Circuit Court Decisions.”  See generally The Committee for the Rule of Law (website) (collecting scholarship and news on the issue of unpublished and supposedly non-precedential opinions).

Maryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter

September 19th, 2014

In Carter v. The Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 96 A.3d 147 (2014), the Maryland Court of Appeals missed an opportunity to place causal apportionment of damages in asbestos cases on a sound legal and factual basis. Instead, the Court misinterpreted the law to be about fault instead of causation, and it failed to come to terms with the facts that supported apportionment.

Carter was a consolidation of four lung cancer cases for trial before a single jury. All plaintiffs had substantial smoking histories, with varying degrees of asbestos exposure. None of the plaintiffs had been an insulator or worked in an asbestos factory. In one of the cases, involving Roger C. Hewitt, Sr., defendant Wallace & Gale Asbestos Settlement Trust[1] proffered a report of its expert witness, Dr. Gerald R. Kerby, who opined that the Mr. Hewitt’s lung cancer and death was apportionable, 3:1, between two causes, smoking and asbestos. 96 A.3d at 151-52.

The plaintiffs’ expert witness, Dr. Steven Zimmet provides the catechistic testimony, based upon the Mt. Sinai scriptures. Zimmet testified that “he could not differentiate between the two causes because the two exposures [asbestos and tobacco] are ‛not just additive, they are synergistic which means they multiple exposures’.” Id. at 151. Of course, Zimmet’s profession of ignorance was hardly probative of whether an apportionment could be made. The distinction, however, between knowledge that something cannot be done, and ignorance as to how it might be done, was lost upon the trial judge, who was wildly dismissive of the proffered opinion from Dr. Kerby:

“No, I understand there is a statistical basis for likelihood of risk. But in a given—with a given plaintiff, I don’t know how you can apportion it. But, you know, I guess, the witness can say what he says if he is qualified to say it. But I’m not going to give an instruction on this because it is not — I don’t perceive it at this point to be the law in these types of cases.

* * *

You can apportion risk. I don’t know how, in an individual plaintiff['s] case, you can apportion damages. I don’t know. It is a mystery to me. We’ll find out. The doctor will show up and we will hear about it.”

Id. at 151.

The trial judge excluded Dr. Kerby’s apportionment opinion, based upon a filed offer of proof, and refused to charge the jury on apportionment of damages. As for the jury instruction on apportionment, the trial judge ventured that the defendant was asking to the jury to make “a very unscientific wild guess.” Id. at 151. Of course, allowing the jury to decide any causation claim upon evidence of increased risk sanctions wild guesses and unscientific speculation. Risk is not causation. See, e.g., Guinn v. AstraZeneca Pharms., 602 F.3d 1245, 1255 (11th Cir. 2010) (“An expert, however, cannot merely conclude that all risk factors for a disease are substantial contributing factors in its development. ‘The fact that exposure to [a substance] may be a risk factor for [a disease] does not make it an actual cause simply because [the disease] developed.’”) (internal citation omitted). See also Richard Doll, “Proof of Causality: Deduction from Epidemiological Observation,” 45 Perspectives in Biology & Medicine 499, 500 (2002) (“That asbestos is a cause of lung cancer in this practical sense is incontrovertible, but we can never say that asbestos was responsible for the production of the disease in a particular patient, as there are many other etiologically significant agents to which the individual may have been exposed, and we can speak only of the extent to which the risk of the disease was increased by the extent of his or her exposure.”). Given that courts have put juries into the business of making wild guesses, the trial court failed to explain why it could not make a guess based upon the same sort of increased risk evidence that would support a finding of causation against the asbestos defendant alone.

The jury returned verdicts for all four plaintiffs, and the defendant appealed. The Maryland Special Court of Appeals reversed and remanded the Hewitt case for a new trial.[2] Wallace & Gale Trust v. Carter, 65 A.3d 749, 752 (Md. App. 2013). The Maryland Court of Appeals, however, took the plaintiff’s appeal, and reinstated the verdict in favor of the Hewitt family[3].

The Court of Appeals did not fuss over the general statement of Maryland law of apportionment of damages, which has adopted the American Law Institute’s Restatement (Second) of Torts § 433A (1965), which provides:

“(1) Damages for harm are to be apportioned among two or more causes where

          (a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each  cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.”

Id. at 157-58, quoting the Restatement. The Court did not explain why it was relying upon a portion of the Restatement, which has been superseded by the Restatement Third of Torts: Apportionment of Liability § 26 (2000).

In any event, the Court of Appeals did recognize that the crucial issue was whether there was a reasonable basis for determining the contribution of each cause to a single harm. On this issue, the Carter court took its lead from antiquated dicta from a treatise, 30 years out of date. W. Page Keeton, et al., Prosser and Keeton on Torts § 52, at 345 (5th ed. 1984). See Georgetown Law Library, “Torts Law Treatises” (“This classic hornbook on torts is no longer up-to-date… .”). The Court quoted:

“The distinction is one between injuries which are reasonably capable of being separated and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it. If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effect of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule devised for that purpose. If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries; and the same of course is true for wounds negligently inflicted…. Upon the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff’s rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff’s barn.”

96 A.3d at 158, quoting Prosser and Keeton on Torts § 52, at 345-47 (5th ed. 1984) (internal citations omitted). As can be seen from the language quoted by Court, the venerable, but out-dated text never even considered an apportionment of an injury where the only information about causation was the existence of ex ante risks. Conspicuously absent from the hornbook are any examples of cases in which causation itself is predicated upon quantitative risk estimates, which in turn could readily supply the basis for apportionment.

As for the science, the Court of Appeals cited a textbook written by plaintiffs’ lawyers:

“asbestos and tobacco smoke are complex carcinogens that can affect multiple steps in the multistage process of cancer evolution, and that the combined effects will depend on the relative magnitude of each carcinogen at each stage. As reported in different studies, the interactive effect ranges from less than additive to supramultiplicative [sic] but the model for insulation workers approximates a multiplicative effect. If the multistage model of carcinogenesis holds, and asbestos and smoking act at different stages, then a multiplicative relationship follows.”

96 A.3d at 160-61, quoting from George A. Peters & Barbara J. Peters, Asbestos Pathogenesis and Litigation, 13 The Sourcebook on Asbestos Diseases: Medical, Legal, and Technical Aspects 149 (1996). Peters and Peters is a consulting and law firm in Santa Monica. Barbara J. Peters is a lawyer and a member of the Consumer Attorneys Association of Los Angeles, the Consumer Attorneys Association of California, and the Association of Trial Lawyers of America.

If the Court of Appeals had even bothered to read the plaintiffs’ lawyer tract, it would have seen that even the Peters had qualified their opinion, in their 1996 book, by suggesting that the “model for insulation workers approximates a multiplicative effect.” Id. (emphasis added). Mr. Hewitt had been a crane operator, which hardly involves the same level of exposure as an asbestos insulator, and the evidence for multiplicative synergy is sorely lacking outside a few, heavily exposed cohorts such as insulation workers. In any event, the Court of Appeals failed to explain or justify why a multiplicative model, even if it were appropriate, is decisive of the issue whether or not there was a reasonable basis for apportionment.

While we might excuse the Court of Appeals’ missteps in interpreting scientific evidence, even if filtered through funnels created by the plaintiffs’ expert witness Zimmet and the law firm of Peters & Peters, harder to forgive is the Court’s bobbling the interpretation of apportionment in New Jersey courts. The Special Court of Appeals had relied upon the New Jersey Dafler case, which affirmed a jury’s apportionment of damages in an asbestos and smoking lung cancer case. Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App. Div.1992), aff’d 132 N.J. 96, 622 A.2d 1305 (1993) (per curiam). In Dafler, the plaintiff’s expert witness made the usual protestations that the outcome, lung cancer, was indivisible, and the defense expert witness opined that smoking was the sole cause. The New Jersey appellate courts held that it would be manifestly unjust to attribute 100% of the lung cancer to smoking when no expert witness testified to such an allocation.

The Court of Appeals correctly pointed out that New Jersey cases are not binding upon it and that it would choose not to do so, which was its wont. The Court then proceeded to ignore that the Dafler holding was explicitly adopted by the New Jersey Supreme Court, and that the holding was based upon a causal, not a fault-based, apportionment. Indeed, the Court of Appeals went as far as to declare that the Dafler case was based upon fault principles because the Appellate Division there had stated that “apportionment is also consistent with the principles of the Comparative Negligence Act.” 96 A.3d at 155, quoting from Dafler, 259 N.J.Super. at 35, 611 A.2d at 145 (emphasis added). What the Maryland Court of Appeals failed to realize, however, was that the Dafler case was tried in New Jersey’s regime of hyper-strict asbestos liability, in which evidence of fault is excluded. Of necessity, the evidence and the verdict in Dafler were based exclusively upon causal determinants, not fault principles. Indeed, the Appellate Division’s “also” emphasized here in the quote from Dafler makes clear that the Appellate Division was merely noting that New Jersey juries are asked to make similar assessments of comparative contributions in fault, and that making such an assessment is not beyond the jury’s function or competence.

Two judges, in Carter, dissented in a polite, factual opinion that tore away at the majority opinion. The dissent noted that in Maryland, as in most states, workman’s compensation judges apportion causal shares to single injuries all the time. 96 A.3d at 173. And the dissent dug deeper into New Jersey law, as well as other foreign states, to expose the majority’s poor scholarship:

“Death may be indivisible as to result, but it is not per se incapable of apportionment. Many courts around the country have permitted apportionment in death cases. See e.g., Brisboy v. Fibreboard Corp., 429 Mich. 540, 418 N.W.2d 650, 655 (1988) (permitting apportionment of damages in a wrongful death action based on smoking history and asbestos exposure); Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) (same); see also Poliseno v. General Motors Corp., 328 N.J.Super. 41, 744 A.2d 679, 687 (2000) (concluding that while death is indivisible as to result, it is capable of apportionment in terms of causation). … In my view, a categorical rule that death is an indivisible injury incapable of apportionment speeds past an accepted principle of law: death can be capable of apportionment as to damages, but not as to fault. See Restatement (Third) of Torts: Physical and Emotional Harm § 28, cmt. d (2010) (“Death as an injury may not be divisible, but damages for death are divisible.”); see also Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envtl. L. 549, 568–69 (1995) (stating that although “comment i [to the Restatement (Second) of Torts § 443A] states that death is the quintessential indivisible harm … deaths attributable to toxic causes, as when a plaintiff dies from lung cancer brought about by the combined effects of smoking and asbestos exposure, each of the contributing causes can be compared and the harm apportioned on that basis.”).

Id. at 173.

The dissent saw clearly that the characterization of apportionment in New Jersey law, relied upon by the intermediate appellate court, was not a mere matter of opinion. The majority of the Court of Appeals was wrong, as a matter of fact, in claiming that apportionment of damages in New Jersey was based upon fault. Id. at 174, citing Poliseno v. General Motors Corp., 328 N.J.Super. 41 55-56, 744 A.2d 679, 687-88 (2000), for clear distinguishing between apportionment based upon causation as opposed to fault.

The dissent also called out the majority for the disturbing partisanship in adopting plaintiffs’ lawyers’ and plaintiffs’expert witness’s opinions on apportionment, without any consideration of the excluded expert witness’s contrary opinions. See Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envt’l L. 549, 555 (1995) (cited by dissenters for his conclusion that “[i]f the plaintiff’s asbestos exposure and his smoking are both shown to be causal factors in the plaintiff’s lung cancer, then the loss is necessarily capable of apportionment on the basis of the relative risks demonstrated for each kind of toxic exposure.”).

The Carter case comes about a year after the Court of Appeals reversed a careful opinion of the Special Court of Appeals, and held that plaintiffs’ expert witnesses may testify that each exposure, however small, represents a substantial contributing factor to a plaintiff’s asbestos-related disease. Dixon v. Ford Motor Co., 433 Md. 137 (2013). Science seems not to play well in asbestos cases before the high court of Maryland.

[1] Apparently, the Trust was inappropriately named a Settlement Trust, probably by plaintiffs’ counsel creditors who had apparently hoped it would simply be a cash delivery device.

[2] Colleen K. O’Brien, “Trial Court Erred by Excluding Defense Expert Testimony on Cigarette Smoking As Contributing to Plaintiff’s Lung Cancer” (May 2013); Arlow M. Linton, “Maryland: Failure to Allow Apportionment of Causes of Lung Cancer is Reversible Error” (Oct. 28, 2013).

[3] Colleen K. O’Brien, “Trial Court Properly Excluded Defense Expert Testimony on Cigarette Smoking as Contributing to Plaintiff’s Lung Cancer in Asbestos Case” (Aug. 19, 2014).

Asbestos and Asbestos Litigation Are Forever

September 16th, 2014

When I first started practicing “asbestos law,” I routinely found copies of letters from JAG lawyers to shipyard workers, in their personnel files. The letters were notifying the workers that they had been diagnosed with asbestosis, usually by a local pulmonary physician who performed contract services for surveillance for the shipyard. The letters notified the workers that they might have rights under the Federal Employees’ Compensation Act, but emphasized that the workers had remedies against the Navy’s vendors of asbestos-containing products, and that if they sued in tort, the Navy would have a lien against any recovery. In practice, the lien was so unwieldy, that most of the Philadelphia plaintiffs’ firms would forego filing the FECA claim altogether. Thus the Navy effectively limited its liability, and kept its munitions budgets intact, while dozens of its vendors went bankrupt.

In 2011, Kara Franke and Dennis Paustenbach published a review of historical documentation of the United States Navy’s knowledge of the hazards of asbestos use in its shipyards. Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011). Earlier, in the 1980s, Dr. Samuel Forman published a history of Navy knowledge through World War II. Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988). Both histories serve to add valuable context to the asbestos “state of the art” story, by showing that the United States had equal or greater knowledge of the hazards of asbestos at all relevant times, and that the government was in a vastly superior position to control asbestos exposures, outfit employees and servicemen with personal protective devices, and to communicate risk information.

The subject is well covered territory, but the article approaches its subject matter from the perspective of what was known by the United States Navy, which may well have been singlehandedly responsible for exposing the greatest number of men and women to asbestos in the United States.  Back in the 1980s, Dr. Sam Forman covered a similar theme, but only through War War II.  See also Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy 99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards).

In the early days of the asbestos litigation, defendants made several attempts to implead the government, or to sue for indemnification after settling. With some few exceptions, these efforts were largely unsuccessful. Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988).

In many states, employer knowledge was inadmissible in strict liability cases, and plaintiffs’ counsel would withdraw their negligence claims when they saw that defense counsel were prepared to implicate the government and its extensive knowledge. Unfortunately, many defense counsel failed to appreciate the potential that intermediary knowledge had for defending against punitive damage claims, which were often still in the case. And in some states, employer knowledge remained a defense in products liability trials, even when summary judgments were not given. See, e.g., In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Calif. 1982) (permitting defendants to assert that Navy was sophisticated user as an affirmative defense at trial).

In the Philadelphia County, Pennsylvania, asbestos litigation, plaintiffs’ counsel soon learned that reverse-bifurcation fit their litigation model perfectly: quick, inexpensive trials without the bother of liability defenses. When defendants occasionally found a judge that would permit all-issue trials, and they presented “state-of-the-art” or sophisticated intermediary defenses, they often surprised themselves as well as plaintiffs’ counsel and judges with their success. See, e.g., O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of federal government’s superior knowledge of hazard and control of workplace).

Finding admissible evidence of the government’s superior knowledge was not always an easy task. In the O’Donnell trial, defendants presented the testimony of Dr. Kindsvatter, an industrial hygienist with a doctoral degree, who had been the chief hygienist at the Philadelphia Naval Shipyard for most of the post-World War II period. Counsel also had copies of Bureau of Medicine & Surgery bulletins, with ribbons and seal authentication. These bulletins announced the Navy’s adoption of threshold limit values for asbestos, and its mandate that the values be complied with in all shipyards.

More recently, additional resources have become available, courtesy of the internet. The Navy published a safety magazine, Safety Review, starting in 1944. Glimpses of Safety Review can be found on Google Books, and “snippets” of selected volumes 17-22 can be viewed at the Hathi Trust Digital Library[1]. Hard copies of the entire Safety Review can be found in a few university libraries, with the help of World Catalog.

More recently, has made available selected documents from a collection of documents from the United States Navy Bureau of Medicine and Surgery. This website provides a search engine and a browse by subject option. The collection on line is incomplete, but does include some issues of United States Navy Medicine, and United States Navy Medical News Letter. Here is how the webpage describes the fuller archives:

“A historical component has existed at the US Navy’s Bureau of Medicine and Surgery since May 1907 with the establishment of the Publications Office. In addition to producing The Naval Medical Bulletin, the Publications Office was responsible for producing occasional historical monographs, and maintaining a historical archive. Today the Office of Medical History’s mission has evolved to preserve and promote the history and heritage of the Navy Medical Department while serving the needs of our customers. The collection consists of publications, public records, manuscripts, personal papers, hospital plans, Navy Hygiene Museum records, biographical files, subject files, facility files, films, videos, photographs, prints, drawings, and artifacts. The OMH currently consists of over 100 collections covering over 1,000 linear feet and is staffed by a historian and an archivist.”

So apparently, more is available at the archive than is available on line. Perhaps in the fullness of time, when there is no more asbestos litigation, the archives will be fully digitized. Of course, the ship has sailed on most civilian and military asbestos exposure cases, but the web and the paper archive will contain a great number of documents that show the government’s superior knowledge with respect to the relevant hazards of asbestos, at various times.

[1] Curiously, the Hathi Trust website states that Safety Review is protected by copyright law: “Full view is not available for this item due to copyright © restrictions. Page numbers with matches are displayed without text snippets due to these restrictions. Snippets may be available for some items if you log in.” Of course, as a governmental work and publication, Safety Review is not subject to copyright protection.

The Dog That Didn’t Bark – Adverse Inferences for Expert Witnesses

September 13th, 2014

The New Jersey Supreme Court is known for bloated writing, which in the past has gotten the Court in trouble.  Witness the fiasco of the Court’s volubly outrunning its headlights to redefine strict liability to exclude the requirement of a reasonable knowability component in product liability failure-to-warn litigation. Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 447 A.2d 539 (1982). Realizing its error, the Court attempted to correct itself a short two years later, but probably only managed to make things worse, in Feldman v. Lederle Labs., 97 N.J. 429, 479 A.2d 374 (1984). Arguably, the prestige of the New Jersey Supreme Court never recovered. See Andrew T. Berry, “Beshada v. Johns-Manville Products Corporation: Revolution-or-Aberration in Products Liability,” 52 Fordham L. Rev. 786 (1984); J. Berman, “Beshada v. Johns-Manville Products Corp.: the function of state of the art evidence in strict products liability,” 10 Am. J. Law & Med. 93 (1984).

Bitten by the Dog That Didn’t Bark

There is a danger is saying too much, and, of course, in not saying the right thing. The New Jersey high Court recently addressed adverse inferences for expert witnesses not called at trial. Washington v. Perez, ___ N.J. ___ (2014). See Bruce D. Greenberg, “Failure to Call an Expert Witness to Testify,” (Sept. 12, 2014). The case was a relative simple vehicular injury case. The defense served two expert witness reports, but did not call either expert witness at trial. In his closing argument, the plaintiff’s lawyer focused on the defense’s uncalled expert witnesses, and went so far as to suggest that defense counsel had lied to the jury. On plaintiff’s request, the court issued an adverse inference charge, instructing the jury that if it reasonably thought defendants should have called Drs. Sharetts and Hayken, then it could infer from the defendants’ not having presented these witnesses, that the missing testimony would have been adverse to defendants’ position at trial. The jury awarded plaintiff substantial damages.

The trial court refused a motion for new trial, but the Appellate Division reversed and remanded for a new trial. Washington v. Perez, 430 N.J. Super. 121, 131 (App. Div. 2013) (holding that trial court had abused its discretion in giving the adverse inference charge). See David R. Kott & Edward J. Fanning Jr., “Adverse Inference for Failing To Call a Witness: What rules apply when a person with material knowledge of a case does not testify?” 212 N.J. Law Journal 783 (June 17, 2013) (reporting on the Appellate Division’s decision). Perhaps not knowing when to stop, plaintiff obtained review in the New Jersey Supreme Court, which then endorsed the Appellate Division’s decision, and held that the giving of the adverse inference charge was error.

As the Appellate Division explained, the kerfuffle started when the plaintiff’s counsel presented a videotaped deposition of plaintiff’s expert witness, Dr. Rosen. In the course of the deposition, Dr. Rosen testified:

“Q. And in both of those reports did Dr. Ha[y]ken indicate what traumatic event or what event he associated the herniated disc that we’ve spoken of and the radiculopathy that we’ve spoken of?

A. Dr. Ha[y]ken states in his report that he feels that the cervical herniated disc and radiculopathy are related to the accident of 12/20/06.”

The defense asked that this Q&A be redacted, and plaintiff’s counsel conceded that Dr. Hayken never so stated in his report. Judge Charles Little, sitting in Burlington County, however, took a “let it all in” approach, despite defense counsel’s statement that he did not plan upon calling Dr. Hayken, and so the elicited testimony would not have been appropriate rebuttal.

The trial judge’s error only compounded. During voir dire of the jury panel, defense counsel had identified his two expert witnesses, and in his opening statement, the defense counsel has told the jury that “the evidence will show that [plaintiff] was not injured in the accident … .” Plaintiff’s counsel ran with the admittedly false testimony of Dr. Rosen, pilloried defense counsel for not calling Dr. Hayken, and argued that Dr. Hayken would have supported the plaintiff’s case.

Despite the Appellate Division’s sure-footed handling of the case, the Supreme Court granted certification, and affirmed in a slip opinion over 40 pages long. Although it took a lot of words, at least in this instance the Court got to the decision right:

“an adverse inference charge should rarely be invoked to address the absence of an expert.”

Slip op. at 3.

Defense counsel had served reports of Drs. Sharetts and Hayken, on plaintiff’s counsel, with a disclaimer that the reports were not defendants’ adoptive admissions. Id. at 6. When objecting to Dr. Rosen’s testimony, defense counsel explained that he did not intend to call his expert witnesses, because plaintiff had failed to prove her case. Id. at 10. Later, however, he claimed that Dr. Hayken was unavailable. Id. at 12.

In any event, Rosen’s dodgy testimony, and the trial court’s equally dodgy awarding of an adverse inference charge, set defense counsel up for a pasting before the jury. After the summations, the trial court let on that it was unhappy with plaintiff’s closing argument that the defense had tried to hide evidence, and that it “should probably grant a new trial,” but the trial court incongruously and circularly denied the new trial because the defense did not present any expert witnesses. Id.

A large part of the bloat in the high court’s opinion is the Court’s exploration of missing witness instructions in civil and criminal cases, for fact and expert witnesses. Id. at 13-28. Given that the Court ultimately held that expert witnesses are different, it might have spared the reader a recitation of the law for fact witnesses. Two thirds into its opinion, the Court finally gets to expert witnesses, but attempts to resolve the conflicting case law and the claims in the case sub judice within the confines of its precedent in State v. Hill, 199 N.J. 545, 974 A.2d 403 (2009). Hill articulated a standard for the propriety of an adverse inference jury instruction in the face of a party’s failure or refusal to call a fact witness.

As the Supreme Court explains, and what we all know, expert witnesses are different. Slip op. at 30. Expert witnesses must be disclosed, and they are subject to heightened discovery in the form of interrogatories and depositions. Second, expert witnesses rarely are in exclusive possession of facts essential to the other side’s case. Id. at 31, 39. Somewhat puzzlingly, the Court offered that parties are not under any obligation to call an expert witnesses, unless their opinions are needed to satisfy an element of the claim or defense. Id. at 32. The same, however, could be said of fact witnesses.

Finally, and most importantly, Court acknowledged that there are “many strategic and practical reasons that may prompt a party who has retained an expert witness to decide not to present the expert’s testimony at trial.” Id. at 33. Expert witnesses are expensive; they are sometimes duplicative; and sometimes they are unavailable. Id. at 35.

According to the Supreme Court, expert witnesses are not generally under a party’s exclusive control, and there is no privilege in a testifying expert witness’s opinion. Id at 36-37. The Court thus suggested that expert witnesses are “available” to the party seeking the adverse inference. Id. at 37.

As with adverse inferences, the most interesting aspects of the Supreme Court’s decision in Washington v. Perez is what the Court did not say. The Court omitted a necessary discussion of how expert witness testimony is presented to a jury or a court, who may, as the finder of fact, accept some, all, or none of the opinion testimony. The party without the burden of proof is free to argue that the adversary’s expert witness was incredible, or that the witness conceded the most important points for the trial, and that calling yet another expert witness in opposition would have wasted the factfinder’s time, and the client’s money.

The availability argument raises the ethical concern of legal counsel attempting ex parte agreements with adversaries’ expert witnesses. And then there is the simple solution that plaintiff’s counsel did not need to elicit imaginary or phony concessions from Dr. Rosen about Dr. Hayken’s report; counsel could have taken Dr. Hayken’s deposition before trial, or during a short recess.

Perhaps even simpler yet, the Court could have (and should have) condemned the admission of Dr. Rosen’s concededly false testimony about what Dr. Hayken’s report stated. The exclusion of this testimony would taken away much of the rationale for plaintiff’s request for the adverse inference instruction.

One way to avoid the request for adverse inference instructions is to announce, say the day before resting, that you have decided not to call an expert witness and that you have released that witness to testify for anyone calling him. This announcement should place the onus on your adversary to ask for time to ask for, or compel, the attendance of the witness. This procedure also preserves the integrity of the process by making clear that your adversary is not free to contact your expert witness until you give permission.

The opinions, statements, and asseverations expressed on Tortini are my own, or those of invited guests, and these writings do not necessarily represent the views of clients, friends, or family, even when supported by good and sufficient reason.