TORTINI

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

Divine Intervention in Litigation

January 27th, 2018

The Supreme Being, or Beings, or their Earthly Agents (Angels) rarely intervene in mundane matters such as litigation. Earlier this month, however, there may have been an unsuccessful divine intervention in the workings of a Comal County, Texas, jury, which was deliberating whether or not to convict Gloria Romero Perez of human trafficking.

After the jury reached a verdict, and rang the bell to signal its verdict, the trial judge, the Hon. Jack Robison, waltzed in and proclaimed that that God had told him that Perez was not guilty. According to jury foreperson Mark A. House, Judge Robison told them that he had prayed on the case and that God told him that he had to tell the jury. The state’s attorney was not present to object to the hearsay. House reported that the jury signaled again that it had reached a verdict, and again Judge Robison appeared to proclaim the defendant’s innocence.

Judge Robison’s pronouncements apparently anguished the jurors, some of who were “physically sick, crying and distraught” from the appearance of a putative prophet in the courthouse. Nonetheless, guilty is guilty, and the jury returned its verdict unmoved by Judge Robison. According to news reports, Judge Robison later apologized to the jury, but added something like “if God tells me to do something, I have to do it.” Zeke MacCormack, “Judge facing complaints over trying to sway jury,” San Antonio Express-News (Jan. 20, 2018); Ryan Autullo, “Texas judge interrupts jury, says God told him defendant is not guilty,” American-Statesman (Jan. 19, 2018). Foreperson House filed a complaint against Judge Robison with the judicial conduct commission, but told a local newspaper that “You’ve got to respect him for what he did. He went with his conscience.” Debra Cassens Weiss, “Judge informs jurors that God told him accused sex trafficker isn’t guilty,” A.B.A.J. online (Jan. 22, 2018).Or he was having a stroke. Somewhere, Henry Mencken is laughing and crying uncontrollably.

* * * * * * * * * * * *

For better or worse, I have not experienced divine intervention in my cases. At least, I think not. In one of my cases, the jury foreman and several jurors were in the elevator with my adversary and me, at the end of the trial. The situation was awkward, and punctuated by the foreman’s simple statement that God had directed them to their verdict. No one questioned the gentlemen. I thanked the jurors for their service, but I have never been able to verify the source of the direction or inspiration given to the jury. To this day, I prefer to believe the verdict resulted from my advocacy and marshaling of the evidence.

The case was Edward and Carmelita O’Donnell v. Celotex Corp., et al., Philadelphia County Court of Common Pleas, July Term 1982, No. 1619. My adversary was a very capable African American lawyer, Sandy L.V. Byrd, then of the Brookman, Rosenberg, Brown & Sandler firm in Philadelphia, now a sitting judge in Philadelphia County. As you will see, race was an important ingredient in this case, and perhaps the reason it was tried.

Sandy and I had pulled Judge Levan Gordon1, for the trial, which was noteworthy because Judge Gordon was one of the few trial judges who stood up to the wishes of the coordinating judge (Hon. Sandra Mazer Moss) that all cases be tried “reverse bifurcated,” that is, with medical causation and damages in a first phase, and liability in the second phase.

This unnatural way of trying asbestos personal injury cases had been first advocated by counsel for Johns Manville, which had a huge market share, a distinctive lack of liability defenses, and a susceptibility to punitive damages. In May 1989, when Sandy and defense counsel announced “ready” before Judge Gordon, Johns Manville was in bankruptcy. Reverse bifurcated had long outlasted its usefulness, and had become a way of abridging defendants’ due process rights to a trial on liability. If a jury returned a verdict with damages in phase One, plaintiffs would argue (illegitimately but often with court approval) that it was bad enough that defendants caused their illness, how much worse is it now that they are arguing to take away their compensation.

Worse yet, in trying cases backwards, with reverse bifurcation, plaintiffs quickly learned that they could, in Phase One, sneak evidence of liability, or hint that the defendants were as liable as sin, and thus suggest that the odd procedure of skipping over liability was desirable because liability was well-nigh conceded. The plaintiffs’ direct examination typically went something like:

Q. How did you feel emotionally when you received your diagnosis of asbestos-related _[fill in the blank]____?

A. I was devastated; I cried; I was depressed. I had never heard that asbestos could cause this disease..…

So clearly there was a failure to warn, at least on that colloquy, and that was all juries needed to hear on the matter, from the plaintiffs’ perspective. If the defendants lost in the first phase, and refused to settle, juries were annoyed that they were being kept from their lives by recalcitrant, liable defendants. Liability was a done deal.

At the time, most of the asbestos case trials in Philadelphia were brought by government employees at the Philadelphia Naval Shipyard. The government was an extremely knowledgeable purchaser of asbestos-containing insulation products, and was as, or more, aware of the hazards of asbestos use than any vendor. At the time, 1989, the sophisticated intermediary defense was disallowed under Pennsylvania strict liability law, and so defendants rarely got a chance to deploy it.

In a case that went “all issues,” with negligence and even potential punitive damages, however, the sophisticated intermediary defense was valid under Pennsylvania law. Judge Gordon’s practice of trying all cases, all issues, opened the door to defending the case by showing that there was no failure to warn at all, because the Navy, at its shipyards, was knowledgeable about asbestos hazards. If plaintiff’s testimony were true about lack of protections, then the Navy itself had been grossly negligent in its maintenance and supervision of the shipyard workplace.

Before trial began, on May 8, 1989, the Brookman firm had signaled that the O’Donnell case was on track to settle in a dollar range that was typical for cases involving the age, medical condition, and work history of the plaintiff, Mr. O’Donnell. The settlement posture of the case changed, abruptly however, after jury selection. When the jury was sworn, we had 12 Philadelphians, 11 of whom were African American, and one of whom was Latina. When I asked Sandy whether we were settled at the number we had discussed the previous day, he looked at me and asked why he would want to settle now, with the jury we had. He now insisted that this trial must be tried. Racism works in curious ways and directions.

So we tried the O’Donnell case, the old-fashioned way, from front to back. Both sides called “state of the art” expert witnesses, to address the history of medical knowledge about asbestos-related diseases. We called product identification lay witnesses, as well as several physicians to testify about Mr. O’Donnell’s disputed asbestosis. The lovely thing about the O’Donnell trial, however, was that I had the opportunity to present testimony from the Philadelphia Navy Yard’s industrial hygienist, Dr. Victor Kindsvatter, who had given a deposition many years before. Kindsvatter, who had a Ph.D. in industrial hygiene, was extraordinarily knowledgeable about asbestos, permissible exposure limits, asbestos hazards, and methods of asbestos control on board ships and in the shops.

The result of Judge Gordon’s all issue trial was a fuller, fairer presentation of the case. Plaintiffs could argue that the defendants were horribly negligent given what experts knew in the medical community. Defendants could present evidence that experts at the relevant time believed that asbestos-containing insulation products could be used safely, and that the U.S. Navy was especially eager to use asbestos products on board ships, and had extensive regulations and procedures for doing so. The testimony that probably tipped the balance came from a former shipyard worker, George Rabuck. Mr. Rabuck had been a client of the Brookman firm, and he was their go-to guy to testify on product identification. In the O’Donnell case, as in many others, Rabuck dutifully and cheerfully identified the products of the non-settling defendants, and less cheerfully, the products of the settled and bankrupt defendants. In O’Donnell, I was able to elicit additional testimony from Mr. Rabuck about a shakedown cruise of a new Navy ship, in which someone had failed to insulate a hot line in the boiler room. When an oil valve broke, diesel fuel sprayed the room, and ignited upon hitting the uninsulated pipe. A ship fire ensued, in which several sailors were seriously injured and one died. In my closing argument, I was able to remind the jury of the sailor who died because asbestos insulation was not used on the Navy ship.

On May 18, 1989, the jury came back with a general verdict for the defense in O’Donnell. Judge Gordon entered judgment, from which there was no appeal. Ignoring the plaintiffs’ lawyers intransigence on settlement, Judge Moss was angry at the defense lawyers, as she typically was, for tying up one of her court rooms for Judge Gordon’s rotation in her trial program. Judge Moss stopped asking Judge Gordon to help with the asbestos docket after the O’Donnell case. Without all-issue trials that included negligence claims, sophisticated intermediary defenses went pretty much unexercised in asbestos personal injury cases for the next 25 years.

My real question though, in view of Texas Judge Robison’s epiphany, is whether the defense won in O’Donnell because of the equities and the evidence, or whether an angel had put her finger on the scales of justice. It’s a mystery.


1 Ryanne Persinger, “Levan Gordon, retired judge,” Tribune Staff (Oct. 6, 2016). Judge Gordon was one of the most respected judges in Philadelphia County. He had graduated from Lincoln University in 1958, and from Howard University School of Law in 1961. Gordon was elected to Philadelphia Municipal Court in 1974, and to the Court of Common Pleas in 1979. He died on October 4, 2016.

Putting the Liability Spotlight on Employers

November 30th, 2015

In 2013, the Pennsylvania Supreme Court held that employers could be directly liable to employees for injuries that become manifest outside the time limits (300 weeks) of the Commonwealth’s workman’s compensation statute. Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). The implications for so-called long latency, toxic tort claims were obvious, and the generated some commentary. SeePennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases” (Feb. 14, 2014); “The Erosion of Employer Immunity in Tort Litigation” (Jan. 20, 2015).

The Legal Intelligencer has now reported the first “cashing in” or “cashing out” on the change in Pennsylvania law. Plaintiff’s lawyer, Benjamin Shein, took an employer to trial on claims that the employer was responsible for alleged asbestos exposure that caused John F. Busbey to develop mesothelioma. Bobbie R. Bailey of Leader & Berkon, in Los Angeles, defended. The case was tried before Philadelphia Judge Lisette Shirdan-Harris and a jury. After a three week trial, on November 10, the jury returned a verdict in favor of plaintiff, against the employer defendant, in the amount of 1.7 million dollars. Busbey v. ESAB Group, Phila. Court of Common Pleas, No. 120503046. Max Mitchell, “Employer Found Liable In Asbestos Verdict: Busbey v. ESAB Group $1.7 Million Verdict,” The Legal Intelligencer (Dec. 1, 2015).

For witnesses, Shein called frequent litigation-industry testifiers, Dr. Steven Markowitz on occupational disease, and Dr. Daniel Dupont, a local pulmonary physician. Shein also called one of the pink panther historians, Gerald Markowitz. SeeNarratives & Historians for Hire” (Dec. 15, 2010). The employer defendant called an industrial hygienist, Delno D. Malzahn.

According Ben Shein, the verdict represented the first trial win in Pennsylvania for an asbestos claim against an employer, since the Pennsylvania Supreme Court decided Tooey in 2013. From the Legal Intelligencer’s account, and the line-up of litigation industry witnesses, the plaintiff’s trial evidence on exposure and standard of care seems shaky, and the winner may not be discernible until the appellate review is concluded.

In Illinois, an intermediate appellate court held out the prospect of a legal change similar to Tooey. In 2014, the Illinois Court of Appeals held that workman compensation petitioners, whose claims fell outside the Illinois statute were not barred by the exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2014 IL App (1st) 123219. See Patrick W. Stufflebeam, “Folta v. Ferro Engineering: A Shift in Illinois Workers’ Compensation Protection for Illinois Employers in Asbestos Cases,” News & Press: IDC Quarterly (Mar. 11, 2015).

The Illinois Supreme Court allowed an appeal, as well as extensive amicus briefings from the Illinois Trial Lawyers Association, the Asbestos Disease Awareness Organization, the Illinois AFL-CIO, the Illinois Self-Insurers’ Association, the Illinois Defense Trial Counsel, a joint brief from insurers,[1] and a joint brief from various manufacturing companies.[2]

Earlier this month, the Illinois Supreme Court reversed and held that even though claims fell outside the Illinois workman’s compensation statute, those claims were still barred by the Act’s exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2015 IL 118070 (November 4, 2015).


[1] the American Insurance Association, Property Casualty Insurers Association of America, and the Travelers Indemnity Company.

[2] Caterpillar Inc., Aurora Pump Company, Innophos, Inc., Rockwell Automation, Inc., United States Steel Corporation, F.H. Leinweber Company, Inc., Driv-Lok, Inc., Ford Motor Company, and ExxonMobil Oil Corporation.

Sophisticated Intermediary Defense Prevails in New York

May 9th, 2015

Several years ago, the New York Appellate Division, 4th Department, reversed summary judgment for defendants in the cases of two workers who alleged that they had developed silicosis from silica exposure to defendants’ silica, at the Olean, New York, facility of their employer, Dexter Corporation (now Henkel Corporation). The trial court motions were based upon the “sophisticated intermediary” defense, but the Appellate Division reversed, holding that there was a genuine issue of material fact with respect to potential confusion between amorphous and crystalline silica, based upon statements in an affidavit of a plaintiffs’ expert witness, made without personal knowledge. See Pete Brush, “NY Court Revives Workers’ Silica Inhalation Suits” (March 24, 2009).

On remand, further discovery and an amplified evidentiary record led to new motions for summary judgment. In a February 26, 2015, order, the New York Supreme Court for Cattaraugus County granted the motions, noting that “the sophisticated intermediary doctrine was tailor-made” for the facts of the two cases. Rickicki v. Borden Chemical, et al., Index No. 53395, and Crowley v. C-E Minerals, Inc., et al., Index No. 61024, N.Y. Supreme Ct., Cattaraugus Cty. (Feb. 26, 2015) (Patrick H. NeMoyer, J.), Slip op. at 24. See also Casetext, “Summary Judgment Re-entered After Remand from the NY Appellate Division in Rickick v. Borden” (April 2, 2015); HarrisMartin, “N.Y. Trial Court Awards Summary Judgment to Silica Defendant, Recognizes Sophisticated Intermediary Doctrine” (March 27, 2015).

The Rickicki case turned 25 years old in February 2015.

The Erosion of Employer Immunity in Tort Litigation

January 20th, 2015

The present workman’s compensation system in the United States has serious flaws. Scheduled awards are inadequate in some states, and their inadequacy fosters specious litigation against remote third parties who are not able to control the workplace use of hazardous materials. In many states, premiums are set on an industry-wide basis, and thus careless employers are not handed incentives to improve workplace hygiene. With awards low, and without the need to rate individual employers, compensation insurers do not adequately inspect and control individual employers’ conduct. Workman’s compensation statutes provide a lien against any third-party recovery, which means that employers (and their insurers) will be rewarded for their negligence if injured employees can frame liability suits against third-parties, such as suppliers of raw materials to the employers.

For the most part, organized labor and management reached their great compromise over occupational injury litigation back from about 1911 through the early 1930s. Before the passage of the various compensation acts, employees had common law negligence actions against employers for deviations from reasonable care. In some part of the country, juries were extremely sympathetic to injured workers, and equally hostile to employers. At the same time, employers had powerful defenses in the form of contributory negligence, which barred claims by workers who were the least bit careless for their own safety. The fellow-worker rule, assumption of risk, and statutes of limitations further diminished workers’ likelihood of success in pursuing tort claims. One option that was not on the table in the negotiations was to open up liability of remote vendors to employers as a way to mitigate the hardships of the common law tort system. Remote suppliers had even more potent defenses in the form of privity of contract, intervening and superseding negligence of the employers and employees, and all the other defenses that employers enjoyed. More important, however, the interlocutors realized that employers controlled the workplace, and had the greatest opportunity to prevent industrial injuries and occupational disease. When the workman’s compensation bargain was struck, labor knew that the scheduled awards would be workers’ sole or main source of compensation.

Worker’s compensation statutes made recovery for most injuries a certainty, with schedules of damages that were deeply discounted from what might be had in a jury trial. In return for well-nigh absolute liability, employers gained certainty of outcome, reduction of administrative costs, and immunity to tort liability for all but intentional harms. The remedial compensation statutes gave employers immunity, but they did not eradicate the basic common law bases for suits against employers. But for the worker’s compensation statutes, employees would have rights of action against employers. Gaps in the compensation acts translated into gaps in immunity, and reversion to the common law of negligence.

The predicate for the “deal” began to disintegrate after World War II. For one thing, changes in tort law diminished the defenses that employers had exercised so effectively before the deal. Contributory negligence gave way to comparative negligence.  Assumption of risk defenses were curtailed, and the fellow-servant rule was severely modified or abandoned.

Just when Labor might have been feeling consumed by buyer’s remorse over its deal, strict liability principles began to replace privity doctrines. In 1965, the American Law Institute adopted § 402A which provided for “Special Liability of Seller of Product for Physical Harm to User or Consumer,” based upon concerns of unequal knowledge of defects and latent hazards of products sold to consumers. Liability followed for harm caused by a product irrespective of privity of contract or warranty, and even if “the seller has exercised all possible care in the preparation and sale of his product.” Restatement (Second), Torts § 402A (2)(a),(b) (1965).

Section 402 became the vehicle for injured workers to ditch their capped damages in worker’s compensation court, and to put their cases back in front of juries, with the prospect of unlimited awards for non-economic damages. Although instigated by the perceived imbalance of knowledge between manufacturers and buyers with respect to design and manufacturing defects, strict liability doctrine quickly became a vehicle for redressing inadequacies in the workman’s compensation systems. What was problematic, however, was that there was often no inequality of knowledge between seller and purchaser, or hidden or latent hazard in the product or material.

There are exceptions to the exclusivity of workman’s compensation remedies against employers. One exception, available in most states, is for intentional torts committed by employers. The scienter requirement for intentional torts allowed only very few cases to proceed against employers in tort. A bigger gap in immunity, however, was opened in Pennsylvania, where workers regained their common law right to sue employers for negligence and other torts, for occupational diseases that manifest more than 300 weeks after last employment. Section 301(c)(2) of the Pennsylvania’s Workman’s Compensation Act, 77 P.S. § 411(2) removes these delayed manifested occupational disease claims from the scope of Pennsylvania’s Act. The Pennsylvania Supreme Court filled in the obvious logical gap: if the Act did not apply, then the employer had no immunity against a common law cause of action, which was never abolished, and was unavailable only when there was a statutory remedy under the Act. Tooey v. AK Steel Corp., 81 A.3d 851 (2013); “Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases” (Feb. 14, 2014). See also Gidley v. W.R. Grace Co., 717 P.2d 21(Mont. 1986)).

The Tooey decision has the potential to open an important door for plaintiffs and defendants alike. With employer immunity erased, the employer’s duty of reasonable care to protect the health and safety of its employees can once again be harnessed to improve the lot of workers, without concocting Rube-Goldberg theories of liability against remote suppliers and premise owners. Juries will see the entire evidentiary case, including the actions and omissions of employers, which will tend to exculpate remote suppliers. Employers will be given incentives to train employees in workplace safety, and to document their efforts. Employers will assert comparative negligence and assumption of risk defenses, which will give the lie to the plaintiffs’ claims of inadequate warnings from the remote suppliers.  Tooey, and the prospect of employer liability, has the potential to improve the truth finding ability of juries in tort cases.

Folta v. Ferro Engineering, 2014 IL App (1st) 123219.

In June of last year, the Illinois intermediate appellate court followed the Pennsylvania Supreme Court’s lead in Tooey, and decided to allow a direct action against an employer when the employee’s claim was not within the scope of the Illinois workers’ compensation act. Folta v. Ferro Eng’g , 14 N.E.3d 717, 729 (Ill. App. Ct.), appeal allowed (Ill. S. Ct. Sept. 24, 2014). See Steven Sellers, “Workers’ Compensation System Threatened By Illinois Asbestos Decision, Companies Say,” 43 Product Safety & Liability Reporter (Jan. 8, 2015).

James Folta developed mesothelioma 41 years after leaving his employment with Ferro Engineering, a latency that put his claim outside the Illinois Workers’ Compensation Act and Workers’ Occupational Diseases Act. The panel of the intermediate appellate court held that the same latency that denied Mr. Folta coverage, also worked to deny the employer immunity from common law suit. Mr. Folta’s asbestos exposure occurred at his Ferro workplace, from 1966 to 1970, during which time raw asbestos and many finished asbestos product suppliers provided warnings about the dangers of asbestos inhalation.

The BNA reporter, Mr. Sellers, quoted Mark Behrens, of Shook, Hardy & Bacon, as stating that:

“This case is part of an emerging national attack on state workers’ compensation systems by the personal injury bar.”

Id. Perhaps true, but the systems have been under critical attack from the public health community, legal reformers, labor, and industry, for some time. No one seems very happy with the system except employers in the specific moment and circumstance of asserting their immunity in tort actions. The regime of worker compensation immunity for employers has failed to foster worker safety and health, and it has worked to shift liability unfairly to remote suppliers who are generally not in a position to redress communication lapses in the workplace.

The Illinois Supreme Court has allowed Ferro Engineering to appeal the Folta case. Not surprisingly, the American Insurance Association, the Property Casualty Insurers Association of America and the Travelers Indemnity Company have filed an amicus brief in support of Ferro. Various companies — Caterpillar, Inc., Aurora Pump Co., Innophos, Inc., Rockwell Automation, Inc., United States Steel Corp., F.H. Leinweber Co., Inc., Driv-Lok, Inc., Ford Motor Co., and ExxonMobil Oil Corp. — have also banded together to file an amicus brief in support of Ferro. Ironically, many of these companies would benefit from abandoning employer immunity in occupational disease litigation. Taking the short view, the defense amicus brief argues that the Illinois Appellate Court’s decision distorts the “delicate balancing of competing interests,” and will lead to a flood of asbestos litigation in Illinois. The defense amicus further argues that the intermediate appellate court’s decision is “the first step towards unraveling the quid pro quo embodied in the acts.”

The problem with the defense position is that there already a flood of asbestos litigation in Illinois and elsewhere, and the problem lies not in damming the flood, but ensuring its equitable resolution. Divining what a legislature intended is always a risky business, but it seems unlikely it had any clear understanding of diseases with latencies in excess of 25 years. And while the Ferro decision has the potential to unravel the defense’s understanding of employer immunity in long-latency occupational disease cases, the real issue is whether bringing the employer to the table in civil litigation over occupational diseases will result in more equitable allocation of responsibility for the harms alleged. Even a “wrong” decision by the Illinois Supreme Court will have the advantage of inciting the Illinois legislature to clarify what it meant, and perhaps to recalibrate tort law to acknowledge the primary role of employers in providing safe workplaces.