TORTINI

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

History of Silicosis Litigation

January 31st, 2019

“Now, Silicosis, you’re a dirty robber and a thief;
Yes, silicosis, you’re a dirty robber and a thief;
Robbed me of my right to live,
and all you brought poor me is grief.
I was there diggin’ that tunnel for just six bits a day;
I was diggin’ that tunnel for just six bits a day;
Didn’t know I was diggin’ my own grave,
Silicosis was eatin’ my lungs away.”

Josh White, “Silicosis Is Killin’ Me (Silicosis Blues)” (1936)

Recently, David Rosner, labor historian, social justice warrior, and expert witness for the litigation industry, gave the Fielding H. Garrison Lecture, in which he argued for the importance of the work that he and his comrade-in-arms, Gerald Markowitz, have done as historian expert witnesses in tort cases.1 Although I am of course grateful for the shout out that Professor Rosner gives me,2 I am still obligated to call him on the short-comings of his account of silicosis litigation.3 Under the rubric of “the contentious struggle to define disease,” Rosner presents a tendentious account of silicosis litigation, which is highly misleading, for what it says, and in particular, for it omits.

For Rosner’s self-congratulatory view of his own role in silicosis litigation to make sense, we must imagine a counterfactual world that is the center piece of his historical narrative in which silicosis remains the scourge of the American worker, and manufacturing industry is engaged in a perpetual cover up.

Rosner’s fabulistic account of silicosis litigation and his role in it falls apart under even mild scrutiny. The hazards of silica exposure were known to Josh White and the entire country in 1936. Some silicosis litigation arose in the 1930s against employers, but plaintiffs were clearly hampered by tort doctrines of assumption of risk, contributory negligence, the fellow-servant rule. To my knowledge, there were no litigation claims against remote suppliers of silica before the late 1970s, when courts started to experiment with hyperstrict liability rules.

Eventually, the litigation industry, buoyed by its successes against asbestos-product manufacturers turned their attention to silica sand suppliers to foundries and other industrial users. Liability claims against remote suppliers of a natural raw material such as silica sand, however, made no sense in terms of the rationales of tort law. There was no disparity of information between customer and supplier; the customer, plaintiffs’ employer was not only the cheapest and most efficient cost and risk avoider, the employer was the only party that could control the risk. Workers and their unions were well aware of the hazards of working in uncontrolled silica-laden workplaces.

Although employer compliance with safety and health regulations for silica exposure has never been perfect, the problem of rampant acute silicosis, such as what afflicted the tunnel workers memorialized by Josh White, is a thing of the past in the United States. The control of silica exposures and the elimination of silicosis are rightly claimed to be one of the great public health achievements of the 20th century. See Centers Disease Control, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

Interestingly, after World War II, silicosis has been a much greater problem in the communist countries, such as China, the countries that made up the Soviet Union. Rosner and Markowitz, however, like the leftist intellectuals of the 1950s who could not bring themselves to criticize Stalin, seem blind to the sorry state of workplace safety in communist countries. Their blindness vitiates their historical project, which attempts to reduce occupational diseases and other workplace hazards to the excesses of corporate capitalism. A fair comparison with non-capitalist systems would reveal that silicosis results from many motives and conditions, including inattention, apathy, carelessness, concern with productivity, party goals, and labor-management rivalries. In the case of silicosis, ignorance of the hazards of silica is the least likely explanation for silicosis cases arising out of workplace exposures after the mid-1930s.

In the United States, silicosis litigation has been infused with fraud and deception, not by the defendants, but by the litigation industry that creates lawsuits. Absent from Rosner’s historical narratives is any mention of the frauds that have led to dismissals of thousands of cases, and the professional defrocking of any number of physician witnesses.  In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).

Nor does Rosner deign to discuss the ethical and legal breaches committed by the plaintiffs’ counsel in conducting radiographic screenings of workers, in the hopes of creating lawsuits. With the help of unscrupulous physicians, these screenings were unnaturally successful not only in detecting silicosis that did not exist, but in some cases, in transmuting real asbestosis into silicosis.4

Many silicosis cases in recent times were accompanied by more subtle frauds, which turned on the “failure-to-warn” rhetoric implicit in the Restatement (Second) of Torts § 402A. Consider the outbreak of silicosis litigation in western Pennsylvania, in the mid-1980s. Many of the men who claimed to have silicosis had significant silica exposure at the Bethlehem and U.S. Steel foundries in the Johnstown areas. Some of the claimants actually had simple silicosis, although discovery of these claimants’ workplace records revealed that they had been non-compliant with workplace safety rules.

The Johnstown, Cambria County, cases were not the result of unlawful medical screenings, paid for by plaintiffs’ lawyers and conducted by physicians of dubious integrity and medical acumen. Instead, the plaintiffs’ lawyers found their claimants as a result of the claimants’ having had previous workers’ compensation claims for silicosis, which resulted after the workers were diagnosed by employer medical screening programs.

Cambria County Courthouse in Ebensburg, PA (venue for an outbreak of silicosis litigation in the 1980s and early 1990s5)

The first of the foundrymen’s cases was set for trial in 1989, 30 years ago, in Cambria County, Pennsylvania. The silica cases were on the docket of the President Judge, the Hon. Joseph O’Kicki, who turned out to be less than honorable. Just before the first silica trial, Judge O’Kicki was arrested on charges of corruption, as well as lewdness (for calling in his female staff while lounging in chambers in his panties).

As a result of O’Kicki’s arrest, the only Cambria Country trial we saw in 1989 was the criminal trial of Judge O’Kicki, in Northampton County. In April 1989, a jury found O’Kicki guilty of bribery and corruption, although it acquitted him on charges of lewdness.6 Facing a sentence of over 25 years, and a second trial on additional charges, O’Kicki returned to the land of his forebears, Slovenia, where he lived out his days and contributed to the surplus population.7

Whatever schadenfreude experienced by the defendants in the Cambria County silicosis litigation was quickly dispelled by the assignment of the silica cases to the Hon. Eugene Creany, who proved to be an active partisan for the plaintiffs’ cause. Faced with a large backlog of cases created by the rapacious filings of the Pittsburgh plaintiffs’ lawfirms, and Judge O’Kicki’s furlough from judicial service, Judge Creany devised various abridgements of due process, the first of which was to consolidate cases. As a result, the first case up in 1990 was actually three individual cases “clustered” for a single jury trial: Harmotta, Phillips, and Peterson.8 To poke due process in both eyes, Judge Creany made sure that one of the “clustered” cases was a death case (Peterson).

Jury selection started in earnest on April 2, 1990, with opening statements set for April 4. In between, the defense made the first of its many motions for mistrial, when defense lawyers observed one of the plaintiffs, Mr. Phillips, having breakfast with some of the jurors in the courthouse cafeteria. Judge Creany did not seem to think that this pre-game confabulation was exceptional, and admonished the defense that folks in Cambria County are just friendly, but they are fair. Trial slogged on for four weeks, with new abridgments of due process almost every day, such as forcing defendants, with adverse interests and positions, into having one direct- and one cross-examination of each witness. The last motion for mistrial was provoked by Judge Creany’s walking into the jury room during its deliberations, to deliver doughnuts.

At the end of the day, in May 1990, the jury proved to be much fairer than the trial judge. Judge Creany instructed the jury that “silica was the defect,” and on other novel points of law. Led by its foreman, a union organizer for the United Mine Workers, the jury returned a defense verdict in the Peterson case, which involved a claim that Mr. Peterson’s heart attack death case was caused by his underlying silicosis. In the two living plaintiffs’ cases, the jury found that the men had knowingly assumed the risk of silicosis, but at the judge’s insistence, the jury proceeded to address defendants’ liability, and to assess damages, in the amount of $22,500, in the two cases.

Pennsylvania’s appellate courts took a dim view of plaintiffs’ efforts to hold remote silica suppliers responsible for silicosis arising out of employment by large, sophisticated steel manufacturers. The Superior Court, Pennsylvania’s intermediate appellate court, reversed and remanded both plaintiffs’ verdicts. In Mr. Harmotta’s case, the court held that his action was collaterally estopped by a previous workman’s compensation judge’s finding that he did not have silicosis. In Mr. Phillip’s case, the court addressed the ultimate issue, whether a remote supplier to a sophisticated intermediary can be liable for silicosis that resulted from the intermediary’s employment and use of the supplied raw material. In what was a typical factual scenario of supply of silica to foundry employers, the Superior Court held that there was no strict or negligence liability for the employees’ silicosis.9 The Pennsylvania Supreme Court declined to hear Harmotta’s appeal on collateral estoppels, but heard an appeal in Phillips’ case. The Supreme Court pulled back from the sophisticated intermediary rationale for reversal, and placed its holding instead on the obvious lack of proximate cause between the alleged failure to warn and the claimed harm, given the jury’s special finding of assumed risk.10

One of plaintiffs’ counsel’s principal arguments, aimed at the union organizer on the jury, was that even if a warning to the individual plaintiffs might not have changed their behavior, a warning to the union would have been effective. The case law involving claims against unions for failing to warn have largely exculpated unions and taken them out of the warning loop. Given this case law, plaintiffs’ argument was puzzling, but the puzzlement turned to outrage when we learned after the first trial that Judge Creany had been a union solicitor, in which role, he had regularly written to U.S. Steel in Johnstown, to notify the employer when one of the local union members had been diagnosed with silicosis.

The next natural step seemed to list Judge Creany as a percipient fact witness to the pervasive knowledge of silicosis among the workforce and especially among the union leadership. Judge Creany did not take kindly to being listed as a fact witness, or being identified in voire dire as a potential witness. Still, the big lie about failure to warn and worker and labor union ignorance had been uncovered. Judge Creany started to delegate trials to other judges in the courthouse and to bring judges in from neighboring counties. The defense went on win the next dozen or so cases, before the plaintiffs’ lawyers gave up on their misbegotten enterprise of trying to use Pennsylvania’s hyperstrict liability rules to make remote silica suppliers pay for the fault of workers and their employers.

You won’t find any mention of the Cambria County saga in Rosner or Markowitz’s glorified accounts of silicosis litigation. The widespread unlawful screenings, the “double dipping” by asbestos claimants seeking a second paycheck for fabricated silicosis, the manufactured diagnoses and product identification do not rent space in Rosner and Markowitz’s fantastical histories.


2 See, e.g., Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003); Nathan Schachtman & John Ulizio, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Schachtman, “On Deadly Dust & Histrionic Historians 041904,”; How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010)A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); Historians Noir (Nov. 18, 2014); Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017). And of course, I have experienced some schadenfreude for when one of the Pink Panthers was excluded in a case in which he was disclosed as a testifying expert witness. Quester v. B.F. Goodrich Co., Case No. 03-509539, Court of Common Pleas for Cuyahoga Cty., Ohio, Order Sur Motion to Exclude Dr. Gerald Markowitz (Sweeney, J.).

3 “Trying Times” is the sixth Rosnowitz publication to point to me as a source of criticism of the Rosner-Markowitz radical leftist history of silicosis in the United States. See David Rosner, “Trying Times: The Courts, the Historian, and the Contentious Struggle to Define Disease,” 91 Bull. History Med. 473, 491-92 & n.32 (2017); Previously, Rosner and Markowitz have attempted to call me out in four published articles and one book. See D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009); D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue  D’Histoire Moderne & Contemporaine 227, 238-39 (2009); David Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009); David Rosner & Gerald Markowitz, “The Historians of Industry” Academe (Nov. 2010); and Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013). 

4 Nathan A. Schachtman, “State Regulators Impose Sanction Unlawful Screenings 05-25-07,” Washington Legal Foundation Legal Opinion Letter, vol. 17, no. 13 (May 2007); “Silica Litigation – Screening, Scheming, and Suing,” Washington Legal Foundation Critical Legal Issues Working Paper (December 2005); Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Seminars in Roentgenology140 (1992).

5 by Publichall – own work, CC BY-SA 3.0.

6 Assoc’d Press, “Pennsylvania County Judge Guilty of Corruption,” (April 18, 1989).

7 U.P.I., “Facing Prison, Convicted Judge Skips Bail,” (Mar. 8, 1993); “Judge O’kicki Declared Fugitive; May Be In Slovenia,” The Morning Call (April 20, 1993).

8 Harmotta v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-128; Phillips v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1987-434(b)(10); Peterson v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-678.

9 Phillips v. A.P. Green Co., 428 Pa. Super. 167, 630 A.2d 874 (1993).

10 Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995).

The Webb of Unsophistication in Products Liability Law

May 29th, 2016

The Heart of the Matter

The classic early cases in products liability law were about consumers hurt by consumer products, sold by manufacturers or dealers directly to consumers. The key component of these cases was inequality of bargaining power, of knowledge about latent defects or hazards, and of control over the discovery of latent hazards or defects. American products liability law was created around consumer products.  Just think of Henningsen, Escola, and MacPherson.[1]  These were all consumer products for which the rhetoric about inequality of bargaining, knowledge, and control over design, manufacturing, and latent hazards sometimes makes sense. The paradigmatic model for products liability, however, frequently does not work for the three-way relationship of sales of products to large industrial employers. The model especially does not work when the product is a raw material used throughout a factory, or incorporated into another product.

Many courts have failed to come to grips with the inadequacy of the consumer model for products liability cases in instances of occupational harm to industrial employees.  Courts have been trying to ram this square peg into a round hole since the early asbestos litigation (which perhaps made some sense because there was inequality between Johns Manville and most vendees), but makes no sense when John Manville is itself the purchaser.

The Tangled Webb in California Law

The Webb case received some attention after the California Court of Appeals reversed a trial court’s entry of JNOV for defendant Special Electric on the so-called sophisticated intermediary defense.  SeeCalifornia Supreme Court Set To Untangle Webb” (July 7, 2013); “Big Blue & The Sophisticated User and Intermediary Defenses” (Sept. 27, 2014); G. Jeff Coons, What a Tangled Webb We Weave: Court Imposes Failure to Warn Liability On Supplier to Johns-Manville” (April 2013). Special Electric petition for review, and eventually the California Supreme Court called for full briefing and oral argument in the Webb case.

The wheels of justice grind slowly in California. Special Electric filed its opening brief on the merits, on September 10, 2013. Webb’s widow answered in December 2013, and Special Electric replied in February 2014. Several amici curiae joined the fray in April 2014. Mark A. Behrens filed a brief on behalf of the Coalition for Litigation Justice, Inc., Chamber of Commerce, NFIB Small Business Legal Center, and American Chemistry Council. The Pacific Legal Foundation also filed, as did Elementis Chemicals Inc.

After mulling over the briefs for two years, the California Supreme Court heard argument on March 1, 2016, and then in surprisingly short order, affirmed the intermediate appellate, earlier this week. The Supreme Court’s ruling upheld a Court of Appeal’s decision that reversed a judgment for defendant Special Electric, based upon a jury verdict in favor of William Webb, who was exposed to crocidolite sold by Special Electric, and which caused him to develop mesothelioma in 2011. The Supreme Court’s opinion[2] held that sophisticated intermediary doctrine was a complete legal defense, even potentially for an asbestos supplier, but declined to apply it to the benefit of Special Electric, which had misrepresented facts about crocidolite and offered no evidence that its purchaser was sophisticated about crocidolite asbestos and its unique relationship with mesothelioma. [Slip opinion cited here as Webb.] Webb v. Special Elec. Co., Inc., 2016 BL 163642, Cal., No. S209927, 5/23/16).

The majority opinion[3] fortunately was able to separate the poorly framed and supported defense by Special Electric from the basic tenets of tort law and the sophisticated intermediary defense. To the extent that anyone doubted the validity of the sophisticated intermediary defense, the Webb Court formally adopted the doctrine as the law of California, as set out in the Second and Third Restatements of Tort Law. Webb at 15-16. According to the Court, a defendant may set up sophisticated intermediary doctrine as a complete defense, to failure to warn claims for known or knowable product risks, sounding in negligence or in strict liability, when the defendant supplier:

“(1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and

(2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product.”

Webb at 16 (emphasis in original).[4]

As an affirmative defense, the defendant supplier must carry its burden of showing that it adequately warned the intermediary, or that it knew the intermediary knew or should have known of the specific hazard, and that it reasonably relied upon the purchaser to transmit warnings. Id.

On appeal, the California Supreme Court held that defendant Special Electric failed to preserve its entitlement to the sophisticated intermediary defense because “it never attempted to show that it actually or reasonably relied on Johns-Manville to warn end users. Nor did Special Electric request a jury instruction or verdict form question on the sophisticated intermediary doctrine.” Webb at 23.

Alternatively, on the assumption that Special Electric preserved the defense, the Court held that this defendant failed to establish the defense as a matter of law because:

“[a]lthough the record clearly shows Johns-Manville was aware of the risks of asbestos in general, no evidence established it knew about the particularly acute risks posed by the crocidolite asbestos Special Electric supplied. In addition, plaintiffs presented evidence that at least one Special Electric salesperson told customers crocidolite was safer than other types of asbestos fiber, when the opposite was true.”

Webb at 23.

The Webb Court reviewed the Tort Restatements’ embrace of the sophisticated intermediary defense in both the Second and Third editions.  The Webb Court noted that the Third Restatement demonstrated the continued validity and vitality of the defense, as had been expressed in the Section 388 of the Restatement Second of Torts.[5] The Court noted and followed the Third Restatement’s recitation of guiding considerations for invoking and sustaining the defense:

“There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user.”

Webb at 15 (citing Restatement 3d Torts, Products Liability, § 2, com. i, at p. 30.) Citing California precedent, the Webb Court noted that

“[t]he focus of the [sophisticated intermediary] defense . . . is whether the danger in question was so generally known within the trade or profession that a manufacturer should not have been expected to provide a warning specific to the group to which plaintiff belonged.”

Webb at 9-10 (quoting from Johnson v. American Standard, Inc. 43 Cal.4th 56, 72 (2008).  The pertinent legal test is whether a reasonable supplier would have known of the intermediary’s sophistication with respect to the relevant risk. Webb at 20.[6] Of course, the existence of a pervasive regulatory control of risk creation, detection, and mitigation in the workplace would count heavily in this objective test.  “Every person has a right to presume that every other perform his duty and obey the law.” Webb at 21 (internal citation omitted) (emphasis added).

The Restatement factors, however, did not support Special Electric’s invocation of the defense in a case involving:

(1) crocidolite asbestos, one of the most hazardous substances known,

(2) defendant’s affirmative and blatantly false misrepresentations of the relative safety of crocidolite relative to chrysotile asbestos,[7] and

(3) a complete failure of proof that the purchaser, Johns Manville, knew that crocidolite was especially hazardous with respect to the causation of mesothelioma.

Webb at 23-24. Factors one and two were givens for defense counsel, but factor three speaks to unnecessary coyness on the part of the defense.  Showing that Johns Manville was well aware of the extraordinarily great hazard of crocidolite would have been relatively easy to do from past transcripts, articles, speeches, and litigation conduct of the Johns Manville companies. Despite the extreme hazards from uncontrolled asbestos exposures, the Webb case explained that the sophisticated intermediary defense was not per se inapplicable to asbestos cases, and went so far as to disapprove an earlier California Court of Appeals decision that refused to apply the defense in the asbestos personal injury context when no warnings had been given.[8] “Sophistication obviates the need for warnings because a sophisticated purchaser already knows or should know of the relevant risks.” Webb at 17-18.

The Webb case acknowledged that defective design claims against raw material suppliers are incoherent and invalid, whether for the raw material itself, or for downstream design defect claims against for the product with the incorporated raw material. “[A] basic raw material such as sand, gravel, or kerosene cannot be defectively designed.” Webb at 11-12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).[9]

The Webb Court also evinced a healthy disrespect for the notion that tort law is only about spreading risk and compensating injured persons. The Court acknowledged that in some instances, there were competing policies of compensating persons injured by products and “encouraging conduct that can feasibly be performed.” Webb at 2. The Court also acknowledged that there were hazards to warning when none was needed or when the absence of a warning would not be a legal cause of harm:

“Because sophisticated users already know, or should know, about the product’s dangers, the manufacturer’s failure to warn is not the legal cause of any harm. A sophisticated user’s knowledge is thus the equivalent of prior notice. The defense serves public policy, because requiring warnings of obvious or generally known product dangers could invite consumer disregard and contempt for warnings in general.”

Webb at 9 (internal citations omitted) (emphasis added). Furthermore, the sophisticated intermediary defense balances the need for the worker-consumer’s safety with “the practical realities of supplying products.” Webb at 17.

The Webb decision puts California in line with the majority rule that recognizes the validity of the sophisticated intermediary defense, and embraces real-world truth that:

“[in] some cases, the buyer’s sophistication can be a substitute for actual warnings, but this limited exception only applies if the buyer was so knowledgeable about the material supplied that it knew or should have known about the particular danger.”

Webb at 17.[10] The Court noted and agreed with the Restatement Third’s observation that imposing liability upon raw material suppliers for failure to warn can be unduly and unfairly burdensome when such liability would require remote suppliers

“to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control.”

Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).

Concurrence

Chief Justice Tani Gorre Cantil-Sakauye, along with Justice Ming W. Chin, concurred in the result, but dissented from the majority’s rationale as overly broad. The concurring justices insisted that a supplier reasonably relies upon its purchaser only when the purchaser has actual awareness of the product’s risks. Webb concurrence at 4. Even this stingier approach noted that one of the purpose of warnings is

“to enable the consumer or others who might come in contact with the product to choose not to expose themselves to the risks presented.”

Webb Concurrence at 3 (citing Restatement3d Torts, Products Liability, § 2, com. i, at p. 30).  In many sophisticated intermediary contexts involving occupational exposures to fumes, vapors, and dusts, workers (consumers) cannot appreciate whether they might come in contact with the product such that they have actual risks unless the sophisticated intermediary measures its specific workplace exposures, given its actual engineering, administrative, and person protection controls.

Commentary

The Webb Court failed to address in any meaningful form how Special Electric could discharge a duty to warn Mr. Webb directly, when it sold blue asbestos to Johns-Manville, which then incorporated that fiber, along with other recycled asbestos into transite pipes. To this extent, the Webb decision carries forward the glib belief in efficacy of warnings, without any evidence or critical thought.

It is hard to imagine an industrial purchaser that was unaware of the special hazards of crocidolite by 1970, and yet Special Electric apparently failed to offer evidence on the issue whether Johns-Manville had such awareness. A court might take judicial notice of Johns-Manville sophistication, but there is not even the suggestion that Special Electric attempted to supplement the vacuous record with a request for judicial notice.

If the California Supreme Court’s recitation of the facts of the case is correct, then we are left with an unflattering inference about Special Electric’s trial strategy and execution.  Perhaps Special Electric was coyly trying to avoid a downside outcome in which it was responsible for 99.99% of the verdict because its blue asbestos was by far the most important cause of Mr. Webb’s tragic disease, a disease that would have almost certainly been avoided had never had exposure to blue asbestos. The propensity of crocidolite to cause mesothelioma is orders of magnitude greater than chrysotile, which by itself may not even be a competent cause of the harm suffered by Mr. Webb.

In the final analysis, the Webb Court correctly adopted the sophisticated intermediary principle as an essential limit to tort liability, but denied its benefit to Special Electric.  The sophisticated intermediary doctrine should not, however, be conceived of as an affirmative defense.  The scope of the rule is defined by the rationale for its existence, and the sophisticated intermediary situation lies outside the realm and rationale of protecting, by warning, consumers against latent hazards.  It is time that courts recognize that much litigation brought to its doors is really the result of labor-management issues within the workplace, and not the doings or responsibility of remote suppliers of raw materials.


[1] See, e.g, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (holding that privity of contract did not bar suit and that product manufacturers could be liable to consumers for injuries); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P. 2d 436  (1944).

[2] See Steven Sellers, “California Ruling Defines Asbestos Supplier’s Duty to Warn,” BNA Product Safety & Liability Reporter (May 24, 2016).

[3] The majority opinion was written by Associate Justice Carol A. Corrigan, and joined by Associate Justices Kathryn Mickle Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar and Leondra R. Kruger.

[4] See also Webb at 2 (“Under the sophisticated intermediary doctrine, the supplier can discharge this duty if it conveys adequate warnings to the material’s purchaser, or sells to a sufficiently sophisticated purchaser, and reasonably relies on the purchaser to convey adequate warnings to others, including those who encounter the material in a finished product. Reasonable reliance depends on many circumstances, including the degree of risk posed by the material, the likelihood the purchaser will convey warnings, and the feasibility of directly warning end users.”); Webb at 6 (“[T]he sophisticated intermediary doctrine provides that a supplier can discharge its duty to warn if it provides adequate warnings, or sells to a sufficiently sophisticated buyer, and reasonably relies on the buyer to warn end users about the harm.”). Webb at 17 (“If a purchaser is so knowledgeable about a product that it should already be aware of the product’s particular dangers, the seller is not required to give actual warnings telling the buyer what it already knows.”).

[5] See Webb at 15 (“The drafters intended this comment to be substantively the same as section 388, comment n, of the Restatement Second of Torts.”) (citing Restatement 3d Torts, Products Liability, § 2, com. i, reporter’s note 5, at p. 96; Humble Sand & Gravel Inc. v. Gomez, 146 S.W.3d 170, 190 (Tex. 2004). See also Webb at 9 (citing Restatement 2d Torts, § 388 (b), com. k, at pp. 306-307) (“Courts have interpreted section 388, subdivision (b), to mean that if the manufacturer reasonably believes the user will know or should know about a given product’s risk”).

[6] Relevant considerations may include the general dissemination of knowledge of relevant risks, the intermediary’s knowledge of those risks, and the intermediary’s reputation for care. Webb at 20.

[7] Webb at 3, 23.

[8] See Webb at 17-18 (disapproving of the holding in Stewart v. Union Carbide Corp., 190 Cal. App. 4th 23, 29-30 (2010)).

[9] See also Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134) (“Inappropriate decisions regarding the use of such materials are not attributable to the supplier of the raw materials but rather to the fabricator that puts them to improper use.”).

[10] citing approvingly Cimino v. Raymark Industries, Inc., 151 F.3d 297, 334 (5th Cir. 1998) (holding that raw asbestos supplier did not need to warn asbestos product manufacturer Fibreboard, which was “a sophisticated, expert, and knowledgeable manufacturer” of insulation products, about asbestos risks); Higgins v. E.I. DuPont de Nemours & Co., 671 F. Supp. 1055, 1061-1062  (D. Md. 1987) (exculpating supplier when purchaser was a highly sophisticated manufacturer with knowledge from independent sources, as well as its suppliers), aff’d, 863 F.2d 1162 (4th Cir. 1988).

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.

The Unreasonable Success of Asbestos Litigation

July 25th, 2015

In asbestos litigation, the plaintiffs’ bar has apparently invented a perpetual motion machine that feeds on outrage that will never run out. Still, lawyers who have not filled their wallets with legal fees from asbestos cases sometimes attempt to replicate the machine. For the most part, the imitators have failed.

What accounts for the unreasonable success of asbestos litigation? Unlike pharmaceutical litigation, exposure does not require a prescription. Although asbestos insulators and applicators experienced the most exposure, other trades and occupations worked with, or near, asbestos materials. Anecdotal testimony of exposure suffices in almost every case. Add para-occupational exposure, and the sky’s the limit for the class of potential plaintiffs. See Lester Brickman, “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014); Peggy Ableman, “The Garlock Decision Should be Required Reading for All Trial Court Judges in Asbestos Cases,” 37 Am. J. Trial Advocacy 479, 488 (2014).

Then there is the range of diseases and disorders attributable to asbestos. Excessive exposure to asbestos minerals cause non-malignant pleural plaques and thickening, as well as lung fibrosis, asbestosis. Some asbestos minerals cause mesothelioma, and despite a differential in potency among some of the minerals (between amosite and crocidolite), the general and specific causation of mesothelioma is often uncontested. Furthermore, lung cancer in the presence of asbestosis may be the result of interaction of asbestos exposure and cigarette smoking. Plaintiffs’ counsel and The Lobby have expanded the list of attributable diseases to include non-pulmonary cancers, only to find some defendants willing to pay money on these claims as well.

In addition to the ease of claiming, or manufacturing, exposure, and the willing cooperation of the occupational medical community in supporting medical causation, asbestos litigation is a lightning rod for moral outrage in the courtroom. Plaintiffs claim that “industry” knew about the hazards of asbestos, including its carcinogenicity, long before warnings appeared. Defending the knowledge claim requires nuanced explanation of shifting standards for establishing causality as epidemiology developed and was applied to putative asbestos-related cancer outcomes, as well as changing views about the latencies of asbestos-related diseases.

Every once in a while, plaintiffs’ and defense counsel[1], the media[2], the academy[3], and the insurance industry[4] ask whether “silica” is the next asbestos. Although the prospects have been, and remain, dim, plaintiffs’ counsel continue to try to build their litigation palace on sand, with predictably poor results. See Kimberley A. Strassel, “He Fought the Tort Bar — and Won,” Wall St. J. (May 4, 2009).

There are many serious disanalogies between asbestos and silica litigation. One glaring difference is the inability to summon any outrage over suppressed or nondisclosed knowledge of alleged silica cancer hazards. The silica cancer state of the art, written by those who are lionized in the asbestos litigation – Hueper, Schepers, and Hardy, along with NIOSH and the Surgeon General, all appropriately denied or doubted silica as a cause of lung cancer. See below. When the IARC shifted its views in the 1990s, under the weight of determined advocacy from some partisans in the occupational medicine community, and with the help from some rather biased reviews, industry promptly warned regardless of the lack of scientific support for the IARC’s conclusion. The manufacturing of faux consensus and certainty on silica and lung cancer is an important counter to the incessant media stories about the manufacturing of doubt on topics such as climate change.


[1] Robert D. Chesler, James Stewart, and Geoffrey T. Gibson, “Is Silica the Next Asbestos?” 176 N.J.L.J. 1 (June 28, 2004); Mark S. Raffman, “Where Will Silica Litigation Go?” 1 LJN Silica Legal News 1 (2005); Chris Michael Temple, “A Case for Why Silica Litigation Is Not the ‘Next Asbestos’,” LJN Product Liability Law & Strategy (2004).

[2] Jonathan D. Glater, “Suits on Silica Being Compared To Asbestos Cases,” N.Y. Times (Sept. 6, 2003).

[3] Michelle J. White, “Mass Tort Litigation: Asbestos,” in Jürgen Georg Backhaus, ed., Encyclopedia of Law and Economics 1 (2014); Melissa Shapiro, “Is Silica the Next Asbestos? An Analysis of the Silica Litigation and the Sudden Resurgence of Silica Lawsuit Filings,” 32 Pepperdine L. Rev. 4 (2005).

[4]Is silica the new asbestos?The Actuary (2005).


Historical Statements – – State-of-the-Art

Maxcy, ed., Rosenau Preventive Medicine and Hygiene 1051 (N.Y., 7th ed. 1951) (“Thus, there is no evidence that lung cancer is related in any way to silicosis.”)

May Mayers, “Industrial Cancer of the Lungs,” 4 Compensation Medicine 11, 12 (1952) (“Nevertheless, silicosis is not, apparently associated with, or productive of, lung cancer, whereas asbestosis very probably is.”) (Chief, Medical Unit, Division of Industrial Hygiene and Safety Standards, N.Y. Dep’t of Labor)

Geritt Schepers, “Occupational Chest Diseases,” Chap. 33, p. 455, ¶3, in A. Fleming, et al., eds., Modern Occupational Medicine (Phila. 2d ed. 1960) (“Lung cancer, of course, occurs in silicotics and is on the increase. Thus far, however, statistical studies have failed to reveal a relatively enhanced incidence of pulmonary neoplasia in silicotic subjects.”)

Spencer, Pathology of the Lung (1962) (“Silicosis and lung cancer inhaled silica, unlike asbestos, does not predispose to the development of lung cancer.”)

Wilhelm Hueper, Occupational and Environmental Cancers of the Respiratory System at 2-6 (N.Y. 1966) (“The bulk of the available epidemiologic evidence on the association of silicosis and lung cancer supports the view of a mere coincidental role of silicosis in this combination. *** From the evidence on hand, it appears that a well advanced silicosis does not seem to furnish a favorable soil for the development of cancer of the lung.”) (chief of the National Cancer Institute)

Harriet L. Hardy, “Current Concepts of Occupational Lung Disease of Interest to the Radiologist,” 2 Sem. Roentgenology 225, 231-32 (1967) (“cancer of the lung is not a risk for the silicotic. It is a serious risk following asbestos exposure and for hematite, feldspar, and uranium miners. This means that certain dusts and ionizing radiation alone or perhaps with cigarette smoke act as carcinogens.”)

Raymond Parkes, Occupational Lung Disorders 192 (London 1974) (“Bronchial carcinoma occasionally occurs in silicotic lungs but there is no evidence of a causal relationship between it and silicosis; indeed the incidence of lung cancer in miners with silicosis is significantly lower than in non-silicotic males.”)

Kaye Kilburn, Ruth Lilis, Edwin Holstein, “Silicosis,” in Maxcy-Rosenau, Public Health and Preventive Medicine, 11th ed., at 606 (N.Y. 1980) (“Lung cancer is apparently not a complication of silicosis.”)

Robert Jones, “Silicosis,” Chap. 16, in W. Rom, et al., eds., Environmental and Occupational Medicine 205 (Boston 1983) (“The weight of epidemiologic evidence is against the proposition that silicosis carries an increased risk of respiratory malignancy.”)

W. Keith C. Morgan & Anthony Seaton, eds., Occupational Lung Diseases 266 (1984) (“It is generally believed that silicosis does not predispose to lung cancer. * * * On balance, it seems unlikely that silicosis itself predisposes to lung cancer.”)

1 Anderson’s Pathology at 910b (1985) (“There is no evidence that silica increases the risk of lung cancer, nor does it enhance tobacco induced carcinogenesis.”)

U.S. Dep’t of Health and Human Services, The Health Consequences of Smoking – Cancer and Chronic Lung Disease in the Workplace: A Report of the Surgeon General at 348, Chapter 8 “Silica‑Exposed Workers” (1985) (“the evidence does not currently establish whether silica exposure increases the risk of developing lung cancer in men.”)

J. Cotes & J. Steel, Work-Related Lung Disorders 156 (Oxford 1987) (“The inhalation of silica dust does not contribute to malignancy.”)

NIOSH Silicosis and Silicate Disease Committee, “Diseases Associated With Exposure to Silica and Non-fibrous Silicate Minerals,” 112 Arch. Path. & Lab. Med. 673, 707 (1988) (“Epidemiologic studies have been conducted in an effort to assess the role of silica exposure in the pathogenesis of lung cancer. *** Thus, the results are inconclusive … .”)

Arthur Frank, “Epidemiology of Lung Cancer, in J. Roth, et al., Thoracic Oncology, Chap. 2, at p. 8 (Table 2-1), 11 (Phila. 1989) (omitting silica from list of lung carcinogens) (“The question of the relationship of coal mining to the development of lung cancer has been frequently considered. Most evidence points to cigarette smoking among coal miners as the major causative factor in the development of lung cancer, and neither a recent84 nor a British study of lung cancer among coal miners has found any relationship to occupational exposure.”)