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Legal Remedies for Suspect Medical Science in Products Cases – Part One

June 2nd, 2020

Expert witness opinions about the nature and cause of plaintiffs’ medical conditions, are the linchpin of mass tort cases involving claims of bodily injury from allegedly harmful products.  The quality of these expert witness opinions has long been the subject of debate, but the explosion of products liability cases has brought increasing scrutiny, especially in cases involving asbestos, silica, and pharmaceutical claims.[1]

Courts, Congress, and commentators have raised concerns about the scientific and medical validity of the opinions offered in support of certain product liability claims, whether certain of the individuals who offer such opinions have a proper degree of independence from the lawyers representing the plaintiffs, and whether there is any way to address these questions apart from a rejection of the individual claims in which the bogus opinions are offered.  Famously, Judge Janis Jack of the United States District Court for the Southern District of Texas addressed these issues in a lengthy decision in which she excoriated physicians, medical screeners, and plaintiffs’ lawyers who she concluded had transgressed basic ground rules of medical and legal propriety in connection with silicosis claims.[2]

The stakes generated by the availability of these medical/technical opinions are especially high in mass torts that involve medical assessments of thousands of claimants.  The pendency of asbestos claims has driven well over 100 companies into bankruptcy, and with that example, any industry facing a substantial wave of repetitive liability claims must be concerned about how to respond to what it believes are false or unfounded claims. Clients ask whether there are remedies for the promotion of false, fraudulent, or just inadequate medical science under the banner of seeking compensation in products liability cases. The answers remain less than clear.

Some Past Attempts to Remedy the Harm from Dubious Science in Products Cases

GAF’s Litigation against the Asbestos Lawsuit Industry

On January 10, 2001, G-I Holdings Inc., the successor to GAF Corporation (“GAF”), filed suit against a group of asbestos personal injury lawyers who it alleged had “orchestrated a scheme to inundate the judicial system with hundreds of thousands of asbestos cases without regard to their merit.”[3] Among the allegations were claims that the plaintiffs’ firms had “suborned perjury and fabricated evidence” and “induced expert witnesses to provide false and misleading testimony, all for the purpose of extracting unwarranted and inflated settlements, judgments and, correspondingly, attorneys’ fees, from GAF and other asbestos defendants.”  The complaint alleged that, in 1978, a group of

“approximately 125 plaintiffs’ asbestos contingency fee attorneys banded together to form and fund the Asbestos Litigation Group (“ALG”) in order to further their scheme of promoting asbestos litigation.”  GAF asserted that “acting jointly through the ALG, and through less formal asbestos-related organizations, defendants, upon information and belief, solicited tens of thousands of asbestos claimants and sued manufacturers without regard for, or in conscious disregard of, the merits of their claims against particular individual defendants such as GAF. . . . .pursuant to agreements with each network [of local counsel] member, a share of the fees . . . .is typically channeled back to the referring ALG member, and ultimately to the ALG, to be invested  in future claimant solicitations, including mailed advertisements in newsletters.  This has resulted in the filing of further claims, thereby continuing the scheme, and increasing the network, which spirals ever larger.”

GAF’s complaint specifically included claims relating to the alleged “fabricat[ion]” of “medical evidence.”  In this regard, GAF alleged, upon information and belief, that the plaintiffs’ lawyers had:[4]

  1. . . . .induced medical “experts” to testify falsely. As set forth in the “Toxic Justice” report, [the plaintiffs’ law firm] paid off what one of the firm’s paralegals described as “whore docs” i.e., doctors who for money eagerly attributed virtually any lung abnormality to asbestos exposure, regardless of what medical evidence actually showed.

And GAF complained that:

  1. . . . . these practices induced false and misleading testimony to be given by expert witnesses in support of claims brought against GAF and others, which resulted in GAF’s payment of inflated verdicts and settlements in a number of cases.

While much of GAF’s complaint did not focus specifically on the quality of the medical evidence, it is nonetheless instructive as an overall perspective on the factual framework within which these medical issues arise. GAF’s complaint understandably focused heavily on defendant’s Baron & Budd’s memorandum, entitled “Preparing for Your Deposition.”  GAF alleged that this

“memorandum, apparently created for use in preparing asbestos plaintiffs for deposition, improperly exhorts witnesses to testify in a pre-scripted manner, regardless of the truth.”

For particularity’s sake, GAF alleged, with extensive quotations from the Baron & Budd memorandum, that the memorandum told

“witnesses to identify only those products listed on the Work History Sheets prepared by Baron & Budd (lest the witness identify the product of a bankrupt entity from whom no damages or attorneys’ fees could be collected). . . .and to memorize the product names provided by Baron & Budd on the “Work History Sheets” and to testify that they actually saw those names on containers where they worked. . . .”[5]

The complaint alleges that the memorandum gave further improper instructions to plaintiffs about their testimony, including directions to omit any mention of exposures resulting “from the replacement or removal of old product that could not be identified by brand”; making false claims of “equal exposure to all products”; denying “that they ever saw any warnings or had knowledge concerning the harmful effects of asbestos.”

GAF alleged a variety of other concerted actions to file false asbestos claims.  These activities allegedly included withholding “from production in discovery death certificates for asbestos claimants that did not support the conclusion that the individual had died as a result of an asbestos-related disease”; conducting “periodic in-house training sessions to teach other attorneys and/or paralegals how to prepare all asbestos claimants to give scripted testimony in their depositions. . . . .without regard for whether or not the testimony was true”; participating in a scheme to falsify Court records to indicate that complaints were filed before the running of the statute of limitations; and submitting affidavits containing false information concerning the identity of products.

The complaint also contained a number of allegations to the effect that the defendant law firms had “used their considerable resources and power in an attempt to intimidate and deter GAF (and others) from exercising their constitutionally protected rights to petition Congress in support of legislation that would establish a fair and efficient administrative facility for resolving legitimate asbestos claims without the years of delay and wasteful fees and transaction costs that are characteristic of the current system.  Defendants have waged a full-scale, multi-front war against those seeking passage of a Congressional bill entitled the “Fairness in Asbestos Compensation Act.”

The suit pled claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),[6] and under numerous other headings of state, and federal, law.[7]  The lawsuit industry defendants brought a series of motions to dismiss on the pleadings, with successive amended complaints filed, until there was nothing left of GAF’s complaint.[8]  For example, part of the case – relating to the Baron & Budd memorandum discussed above — pleaded fraud based on information and belief.  Judge Sweet dismissed that aspect of the fraud claims on the grounds that Federal Rule of Civil Procedure 9(b) requires that allegations of fraud be pleaded with specificity and that the plaintiff must provide a statement of facts upon which the belief of the existence of fraud is founded.  Judge Sweet concluded that GAF had repeatedly failed to meet this requirement.

Federal and State Prosecutions against Physicians and Screening Companies

After Judge Jack’s exposé of fraudulent and false diagnoses in the silicosis MDL, various news media reported that the United States Attorney’s office in the Southern District of New York was investigating possible criminal charges against the physicians and lawyers who orchestrated the screenings. Historically, there has been little interest among prosecutors in the questionable activities of screening physicians, with some notable exceptions.  In 1990, the United States Attorney’s office, for the Eastern District of Philadelphia, filed a civil RICO against several Philadelphia-area physicians for their role in submitting false and fraudulent Medicare claims.[9]  As pleaded by the government, the fraudulent scheme consisted of soliciting industrial workers for “free” lung screening, at the behest of lawyer clients, for asbestos-related diseases.  The physicians conducted radiologic and pulmonary function examinations, and submitted requests to Medicare for reimbursement of inflated costs for these services and falsely stated that the services were reasonably medically necessary because of diagnoses of chronic obstructive pulmonary disease.[10]  This matter appears to have been resolved before trial, although the docket fails to reveal the exact nature of the resolution.

The false claim problem continues, although the silicosis screenings have abated, and most asbestos plaintiffs’ lawyers have shifted their efforts to the high-yield mesothelioma and lung cancer cases, for which diagnostic accuracy is not typically the dominant issue. Some within the lawsuit industry appear to continue the practice of referring clients to friendly physicians for an examination that will form the basis of a lawsuit, with the consulting physician in turn filing a request for reimbursement with the claimant’s private or public health insurer.  For most insurers, such a claim for reimbursement impliedly represents that the services were reasonably medically necessary, and sometimes the services may well be necessary.  At other times, the services are redundant and provided only for purposes of preparing the examining physician to serve as an expert witness.  In a case I tried early in my career, the testifying expert witness first saw the plaintiff two weeks before trial for no purpose other than to serve as a witness.  The plaintiff had a regular treating physician, and had been examined by another testifying witness, but the plaintiff’s lawyer wanted to have a second testifying witness for trial.  The “Saturday-night” expert witness conducted his examination, and then requested reimbursement for the examination from the plaintiff’s health insurer, and indicated the name of the plaintiff’s counsel as the “referring physician” on the insurance forms.  The trial judge remarkably would not permit cross-examination of the testifying expert witness on the fraud, and suggested that such cross-examination was prohibited by the collateral source rule!  The health insurance industry will occasionally act vigilantly to enforce a lien against a tort recovery, but there has been little evidence of civil or criminal litigation arising from the practice of billing insurers for examinations by physicians who are essentially expert witnesses and not treating physicians.

The Pennsylvania Silicosis Litigation Cock Up

In February 2002, Texas invaded Pennsylvania. No conventional weapons were fired. The Texans took up positions in mobile vans in motel parking lots across eastern Pennsylvania. Without prescriptions, physicians’ orders, or regulatory approval, the Texans directed unlawful X-ray radiation at Pennsylvania workers in the hopes of creating evidence to be used in lawsuits for silicosis. To help establish their litigation beachhead, the Texans hired local mercenaries – a New Jersey company in the business of providing mobile X-ray screenings. Dozens of silicosis lawsuits were created and filed in Philadelphia as a result of the invasion.

On January 25, 2007, the Commonwealth of Pennsylvania, through its Department of Environmental Protection (DEP), responded by fining the New Jersey company, MOST Health Services, Inc. The DEP found that MOST violated Pennsylvania law by conducting X-ray screenings without physician or regulatory approval. For having unlawfully exposed 161 persons to ionizing radiation, DEP assessed a civil penalty of $80,500.00, against MOST. The DEP did not charge the plaintiffs’ lawyers with any violation of Commonwealth regulations.

MOST’s participation in unlawful litigation screenings was not a momentary lapse in judgment. Back in 2000, defense counsel in asbestos cases compelled the testimony of MOST principal Kenneth Warner, who acknowledged then that MOST had not been in the practice of complying with screening regulations. Mr. Warner, however, claimed that the company was in the process of filing appropriate applications to comply.

Workers were invited to the February 2002 MOST screenings by their unions, but the invitation letters were written by Texas lawyers. To participate in the screenings, the workers had to sign a retainer agreement to engage the Texas-based law firm. The workers were told that “legal ethics” required that they hire the sponsoring law firm to represent them before “the attorneys can provide [them] with medical tests.”

Of course, the law in no state permits attorneys to provide medical tests, and especially not X-rays. DEP, like most other states’ regulatory agencies, has promulgated comprehensive regulations that govern virtually every aspect of the use of medical radiation. In Pennsylvania, anyone proposing a “healing arts screening” with X-rays must submit, in advance, a comprehensive, written proposal with details of the proposed screening, the description of the population to be examined, the qualifications of the radiation technician and operator, the quality control to be used, the qualifications of the supervising physician, and the identity and qualifications of the physician who will interpret the radiographs.

The MOST screenings, commissioned by the Texas lawyers, were never authorized by the DEP. No physician was present on site. None of the workers presented prescriptions or physicians’ orders before being unlawfully exposed to radiation. The identity of the physician slated to receive the chest radiographs was never disclosed to DEP.

Ultimately, the films created by MOST were sent to a West Virginia physician, well known and well compensated in dust-disease litigation. This off-site physician diagnosed virtually all of the workers with either asbestosis or silicosis, and a majority of litigants with both asbestosis and silicosis, although he never examined the workers, never interviewed them, and never reviewed their medical records.

In December 2005, the defendants in the silicosis cases that arose from the MOST screenings moved to dismiss on grounds that the claims were the direct result of unlawful activities that violated Pennsylvania public policy. The trial court denied the motion without opinion. Despite the obvious conspiracy between the plaintiffs’ lawyers and MOST to violate Pennsylvania health regulations, no disciplinary actions were brought against the plaintiffs’ lawyers in the cases.

The Pennsylvania fine against MOST seems to have been an exceptional finding. Although the predatory screening practices decried in federal Judge Janis Graham Jack’s now judicial opinion, In re Silica Products Liability Litigation, no other states to my knowledge have taken action against the conspiracies among lawyers, physicians, and mobile screening companies, to violate state health regulations. These conspiracies thrived for some time, in part because of the entrepreneurial enthusiasm of the conspirators, and the failure of courts, bar associations, adversary counsel, state and federal regulators, and medical societies to condemn the screening practices. In the context of silicosis litigation, the “red flags of fraud,” go beyond the manufacturing of diagnoses for money; they mark as dubious the entire enterprise of suing sand suppliers for failure to warn about hazards that were well known to government, industry, labor, and academia from the 1930s, forward.

[1]  The following commentary flows from a joint project that the late R. Nicholas (Nick) Gimbel and I worked on some years ago. Nick’s illness and tragic death prevented us from publishing this work, but I believe it still bears some sort of public airing. Nick Gimbel and I presented some of this commentary in a paper, “Legal Remedies to Address Suspect Medical Science in Product Liability Cases,” for Mealey’s Advanced Insurance Coverage Conference, in Philadelphia, Pennsylvania (Jan. 23, 2006).

[2]  In re Silica Products Liability Litigation, 398 F.Supp. 2d 563 (S.D.Tex. 2005) (“In re Silica”). Although Judge Jack’s deconstruction of the silicosis “epidemic” is famous among defense counsel, Her Honor’s work has been met with willful ignorance by the lawsuit industry. See, e.g., David Michaels, “Deadly Dust,” chap. 8, in The Triumph of Doubt: Dark Money and the Science of Deception (2020) (exhibiting amnesia about one of the largest litigation frauds in the 21st century, so far.)

[3]  For a more complete, scholarly exposition of this case, see Lester Brickman, “Civil RICO: An Effective Deterrent to Fraudulent Asbestos Litigation?” 40 Cardozo L. Rev. 2301, 2344-2402 (2019).

[4]  Fourth Amended Complaint dated August 19, 2002.

[5]  Fourth Amended Complaint, ¶ 61.

[6]   18 U.S.C. § 1961, et seq.

[7]  Other claims in the GAF complaint asserted tortious interference with contract and economic advantage, breach of contract, common law fraud and falsification of documents.  Claims that were dismissed include malicious interference with GAF’s right to petition Congress, violation of 15 U.S.C. § 1 (antitrust laws) and fraudulent inducement.

[8]  See G-I Holdings, Inc. v. Baron & Budd, No. 01-Civ. 0216, 2005 WL 1653623 (S.D.N.Y.); G-I Holdings, Inc. v. Baron & Budd, No. 01-Civ. 0216, 2004 WL 638141 (S.D.N.Y. Mar. 30, 2004);  G-I Holdings, Inc. v. Baron & Budd, 2004 WL 540456 (S.D.N.Y. Mar. 17, 2004); G-I Holdings, Inc. v. Baron & Budd, 2004 WL 374450 (S.D.N.Y. Feb. 27, 2004); G-I Holdings, Inc. v. Baron & Budd, 218 F.R.D. 409 (S.D.N.Y. 2003); G-I Holdings, Inc. v. Baron & Budd, 213 F.R.D. 146 (S.D.N.Y. 2003); G-I Holdings, Inc. v. Baron & Budd, 01 Civ. 0216, 2002 WL 31251702 (S.D.N.Y. Oct. 8, 2002); G-I Holdings, Inc. v. Baron & Budd, 238 F.Supp.2d 521 (S.D.N.Y. 2002); and G-I Holdings, Inc. v. Baron & Budd, 179 F.Supp.2d 233 (S.D.N.Y. 2001).

[9]  U.S. v. MRS Diagnostics, Inc., Civil Action No. 90-3517 (E.D.Pa. May 23, 1990), Complaint.

[10]  Id. at Complaint para. 1(a)-(i).

Posted in Asbestos, Scientific Misconduct, Silica | Comments Off on Legal Remedies for Suspect Medical Science in Products Cases – Part One

Everything She Just Said Was Bullshit

September 26th, 2019

At this point, most products liability lawyers have read about the New Jersey verdicts returned earlier this month against Johnson & Johnson in four mesothelioma cases.[1] The Middlesex County jury found that the defendant’s talc and its supposed asbestos impurities were a cause of all four mesothelioma cases, and awarded compensatory damages of $37.3 million, in the cases.[2]

Johnson & Johnson was prejudiced by having to try four cases questionably consolidated together, and then hobbled by having its affirmative defense evidence stricken, and finally crucified when the trial judge instructed the jury at the end of the defense lawyer’s closing argument: “everything she just said was bullshit.”

Judge Ana C. Viscomi, who presided over the trial, struck the entire summation of defense lawyer Diane Sullivan. The action effectively deprived Johnson & Johnson of a defense, as can be seen from the verdicts. Judge Viscomi’s egregious ruling was given without explaining which parts of Sullivan’s closing were objectionable, and without giving Sullivan an opportunity to argue against the sanction.

During the course of Sullivan’s closing argument, Judge Viscomi criticized Sullivan for calling the plaintiffs’ lawyers “sinister,” and suggested that her argument was defaming the legal profession in violation of the Rules of Professional Conduct.[3] Sullivan did use the word “sinister” several times, but in each instance, she referred to the plaintiffs’ arguments, allegations, and innuendo about Johnson & Johnson’s action. Judge Viscomi curiously imputed unprofessional conduct to Sullivan for referring to plaintiffs’ counsel’s “shows and props,” as a suggestion that plaintiffs’ counsel had fabricated evidence.

Striking an entire closing argument is, as far as anyone has determined, unprecedented. Of course, Judge Haller is fondly remembered for having stricken the entirety of Vinny Gambini’s opening statement, but the good judge did allow Vinny’s “thank you” to stand:

Vinny Gambini: “Yeah, everything that guy just said is bullshit… Thank you.”

D.A. Jim Trotter: “Objection. Counsel’s entire opening statement is argument.”

Judge Chamberlain Haller: “Sustained. Counselor’s entire opening statement, with the exception of ‘Thank you’ will be stricken from the record.”

My Cousin Vinny (1992).

In the real world of a New Jersey courtroom, even Ms. Sullivan’s expression of gratitude for the jury’s attention and service succumbed to Judge Viscomi’s unprecedented ruling,[4] as did almost 40 pages of argument in which Sullivan carefully debunked and challenged the opinion testimony of plaintiffs’ highly paid expert witnesses. The trial court’s ruling undermined the defense’s detailed rebuttal of plaintiffs’ evidence, as well as the defense’s comment upon the plaintiffs’ witnesses’ lack of credibility.

Judge Viscomi’s sua sponte ruling appears even more curious given what took place in the aftermath of her instructing the jury to disregard Sullivan’s argument. First, the trial court gave very disparate treatment to plaintiffs’ counsel. The lawyers for the plaintiffs gave extensive closing arguments that were replete with assertions that Johnson & Johnson and Ms. Sullivan were liars, predators, manipulators, poisoners, baby killers, and then some. Sullivan’s objections were perfunctorily overruled. Second, Judge Viscomi permitted plaintiffs’ counsel to comment extensively upon Ms. Sullivan’s closing, even though it had been stricken. Third, despite the judicial admonition about the Rules of Professional Conduct, neither the trial judge nor plaintiffs’ counsel appear to have filed a disciplinary complaint against Ms. Sullivan. Of course, if Judge Viscomi or the plaintiffs’ counsel thought that Ms. Sullivan had violated the Rules, then they would be obligated to report Ms. Sullivan for misconduct.

Bottom line: these verdicts are unsafe.

[1]  The cases were tried in a questionable consolidation in the New Jersey Superior Court, for Middlesex County, before Judge Viscomi. Barden v. Brenntag North America, No. L-1809-17; Etheridge v. Brenntag North America, No. L-932-17; McNeill-George v. Brenntag North America, No. L-7049-16; and Ronning v. Brenntag North America, No. L-6040-17.

[2]  Bill Wichert, “J&J Hit With $37.3M Verdict In NJ Talc Case,” Law360 (Sept. 11, 2019).

[3]  Amanda Bronstad, “J&J Moves for Talc Mistrial After Judge Strikes Entire Closing Argument,” N.J.L.J. (Sept. 10, 2019) (describing Judge Viscomi as having admonished Ms. Sullivan to “[s]top denigrating the lawyers”; J&J’s motion for mistrial was made before the case was submitted to the jury).

[4]  See Peder B. Hong, “Summation at the Border: Serious Misconduct in Final Argument in Civil Trials,” 19 Hamline L. Rev. 179 (1995); Ty Tasker, “Stick and Stones: Judicial Handling of Invective in Advocacy,” 42 Judges J. 17 (2003); Janelle L. Davis, “Sticks and Stones May Break My Bones, But Names Could Get Me a Mistrial: An Examination of Name-Calling in Closing Argument in Civil Cases,” 42 Gonzaga L. Rev. 133 (2011).

Posted in Asbestos, Trial Procedure | Comments Off on Everything She Just Said Was Bullshit

Sophisticated Intermediary Defense in Asbestos Cases – Use With Discretion

May 20th, 2019

“Discretion is the better part of valor.” Shakespeare, King Henry the Fourth.

A recent asbestos case illustrates the perils of improvidently asserting a sophisticated intermediary defense, when the alleged injury is mesothelioma, and the years of exposure reach back to the 1940s. In Sawyer v. Union Carbide Corp., Foster Wheeler LLC, pleaded sophisticated intermediary and superseding cause defenses “pro forma,” in a mesothelioma case that involved asbestos exposure from 1948 through the 1970s.[1] Plaintiff moved for partial summary judgment on these two defenses, but rather than withdraw the defenses, Foster Wheeler attempted to present evidentiary support in the form of the employer’s (purchaser’s) knowledge of asbestos hazards. The employer was the Bethlehem Steel Company, at the Bethlehem Steel Sparrows Point Shipyard.

Foster Wheeler certainly was able to show that Bethlehem Steel was aware of the hazards of asbestosis, going back to 1948. If the plaintiff’s alleged injury had been asbestosis, the employer’s knowledge should have sufficed. The injury alleged, however, was mesothelioma. Evidence that the Maritime Commission had warned Bethlehem Steel about the hazards of asbestosis, and to maintain a threshold limit value of 5 million particles per cubic foot, was not particularly germane or helpful in avoiding mesothelioma among employees.

Moving forward two decades, Foster Wheeler was able to show that Bethlehem Steel’s Medical Director, Dr. Paul J. Whitaker, was well aware of the connection between asbestos exposure and mesothelioma, in 1968.[2] This evidence, however, left two decades of exposure, from 1948 to 1968, in which Foster Wheeler had not shown its purchaser was aware of the risk of mesothelioma.

The trial court in Sawyer, however, did not focus on the differential between an asbestosis and a mesothelioma hazard. Instead of noting the lack of knowledge with respect to mesothelioma, the trial court insisted that the supplier must have subjective awareness of the purchaser’s actual knowledge of the relevant hazards. Even the overwhelming evidence of Bethlehem’s awareness of asbestosis hazards throughout the plaintiff’s employment was thus, questionably, deemed irrelevant.

According the trial court, the sophisticated intermediary defense focuses on what “focuses on what the product manufacturer knew and the reasonableness of its reliance on the employer prior to and during the time the workers were exposed.”[3] The Sawyer court took this focus to require a showing that the defendant had actual awareness of the intermediary’s knowledge of the dangers of asbestos exposure. According to the decision, Foster Wheeler failed to establish a basis for having such actual knowledge of Bethlehem Steel’s knowledge.

The Sawyer court’s insistence upon actual awareness is not supported by its citation to the Restatement (Second) of Torts. The relevant provision for sales of products to be used by a third party states that[4]:

“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

  • knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
  • has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
  • fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

The Restatement’s articulated standard does not call for the seller’s subjective awareness as a necessary condition. Having a reason to believe the user will realize its dangerous condition seems eminently satisfied by a generalized, reasonable belief that purchasers are sophisticated with respect to the product’s use. Foster Wheeler might have improved its evidentiary showing in opposition to plaintiff’s motion, however, by adverting to its own knowledge that there was a prevalent regulatory scheme, including the Walsh-Healy Act, which covered the safety of workers in the use of asbestos. As noted above, this knowledge would not have implicated the hazard of mesothelioma or the means to avoid it in purchasers’ workplaces.

The Sawyer decision offered virtually no support for the proposition that the seller, wishing to avail itself of the sophisticated intermediary defense, must have actual knowledge of the buyer’s awareness of the relevant hazard. Failure to warn liability for a product’s harm is predicated upon negligence law. Almost all civilized jurisdictions require plaintiff to show negligence in such cases.[5] The test for non-obviousness such that a warning might be required under the law is an objective one, which does not turn on the user’s actual knowledge of the hazard.[6]

Although standing on the sophisticated intermediary defense may have been improvident in Sawyer, there are many cases that cry out for dismissal on the strength of the defense. The facts of silica cases, for example, are radically different from early exposure asbestos cases because of the wide diffusion and general equality of knowledge of silica hazards throughout industry, labor, and government.[7]  The dangers of occupational exposure to crystalline silica were so well known that the New York Court of Appeals recognized, seventy years ago, that “[i]t is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust.”[8] This pervasiveness of knowledge about the potential hazards of industrial silica exposure has been the basis for many dispositive rulings in silica cases, even when the sellers lacked subjective awareness of the buyer’s state of mind.[9]

Product liability is defined and bounded by the scope of an essential need for warnings in the face of imbalances in knowledge between seller and buyer. When the rationale is not or cannot be satisfied, ignoring the sophisticated intermediary’s knowledge is little more than creating a “duty to pay.” In the context of industrial sales of materials and products to large, sophisticated buyers, the law recognizes that warnings are often unnecessary and even counter-productive when hazards of the materials or products are known to the buyers as well as, if not better than, to the sellers. The so-called sophisticated intermediary defense thus reflects nothing more than the rational limits of liability in situations when the chattel is widely known to be hazardous, and the seller can reasonably rely upon the intermediary to be aware of the hazard and to protect down-stream users, typically employees of the purchaser.

Because of the shift in knowledge about the causal relationship between amphibole asbestos and mesothelioma, asbestos product cases would appear unlikely applications for sophisticated intermediary defenses, at least until the knowledge of mesothelioma hazards became widely prevalent. Because of the  change in the state of the art with respect to asbestos hazards, asbestos cases involve substantial factual and legal differences from other hazardous material cases. The singular facts of some of the asbestos cases include an extreme imbalance between supplier and some purchasers in their respective knowledge of asbestos hazards. Accordingly, jurisdictions that have embraced the sophisticated intermediary defense have thus treated asbestos cases, with pre-OSHA exposures, differently from other occupational exposure cases.[10]

The OSH Act of 1970, which created OSHA, was fueled in large part by wide-spread awareness and concern about asbestos exposure and occupational cancers, such as mesothelioma. In asbestos cases involving only post-1969 asbestos exposures, courts have upheld the applicability of the sophisticated intermediary defense. Thus a federal trial court in Kentucky, applying Indiana law, granted summary judgment to a respirator manufacturer, on the basis of the sophisticated intermediary defense, in a post-OSHA asbestos lung cancer case.[11] Similarly, a Virginia state trial court, notwithstanding the application of Virginia law in the Willis and Oman federal cases upheld the sophisticated intermediary defense as a complete legal defense for asbestos sales after 1970.[12] The decisions in these asbestos cases with only post-1970 asbestos exposure emphasized the equality of knowledge of asbestos hazards, which distinguished them from earlier asbestos cases involving companies such as Johns-Manville, which had been found to suppress or hide information from purchasers and workers.[13]

[1] Sawyer v. Union Carbide Corp., Civil No. CCB-16-118, 2019 U.S. Dist. LEXIS 72215 at *33; 2019 WL 1904882 (D. Md. April 29, 2019).

[2] Sawyer at *36.

[3] Sawyer at *36 (quoting Willis v. Raymark Indus., Inc., 905 F.2d 793, 797 (4th Cir. 1990)).

[4]  § 388 Chattel Known to Be Dangerous for Intended Use, Restatement (Second) of Torts (1965).

[5] Under New York law, for instance, the duty to warn in strict liability is identical in nature and scope as the duty in negligence. Martin v. Hacker, 83 N.Y. 1, 8 n.1 (1993). New York law acknowledges that there is no meaningful distinction between negligent and strict liability failure to warn claims. See Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir. 1991) (New York law) (“Failure to warn claims purporting to sound in strict liability and those sounding in negligence are essentially the same.”). See also Rainbow v. Albert Elia Bldg. Co., 49 A.D.2d 250 (4th Dept. 1974) (distinguishing manufacturing and design defects, and permitting “reasonableness” defenses, including state-of-the-art defenses, to the latter in strict products liability), aff’d, 56 N.Y.2d 550 (1981). On the equivalence between negligence and product liability for failure to warn, New York law is aligned with the law of most states. See Restatement (Third) of Torts: Products Liability § 2, and comment I (1998); Restatement (Second) of Torts § 388 & comment n (1965); Restatement (First) of Torts § 388, comment 1 (1934).

[6] The standard for the open and obvious defense, which is many respects is a variant of the sophisticated intermediary defense, is an objective one, based on what would be obvious to the ordinary person. See Plante v. Hobart Corp., 771 F.2d 617, 620 (1st Cir. 1985) (“Where the danger involved in using a product is obvious and apparent, discernible by casual inspection, a supplier is not negligent in failing to warn of that danger.”); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 119 (3d Cir. 1992) (“[W]hether a danger is open and obvious is an objective inquiry, not dependent upon the actual knowledge of the user or his actual awareness of the danger.”); Glittenberg v. Doughboy, 491 N.W.2d 208, 213 (Mich. 1992) (“Determination of the ‘obvious’ character of a product- connected danger is objective.”).

[7] See Linda Regis, “Frame the Sandbox to Sandblasting: Regulation of Crystalline Silica,” 17 Pace Envt’l L. Rev. 207, 208 n. 8 (1999); Richard Ausness, “Learned Intermediaries and Sophisticated Users: Encouraging the Use of Intermediaries to Transmit Product Safety Information,” 46 Syracuse L. Rev. 1185, 1205-07 (1996); Kenneth Willner, “Failures to Warn and the Sophisticated User Defense,” 74 Va. L. Rev. 579 (1988); Victor Schwartz & Russell Driver, “Warnings in the Workplace: The Need for a Synthesis of Law and Communication Theory,” 52 U. Cin. L. Rev. 38 (1983).

[8] Sadowski v. Long Island RR., 292 N.Y. 448, 456 (1944) (emphasis added). A few years later, the United States Supreme Court concurred and quoted Sadowski. Urie v. Tompkins, 337 U.S. 163, 190 (1949).

[9] See, e.g., Goodbar v. Whitehead Bros., 591 F. Supp. 552 (W.D. Va. 1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985); Smith v. Walter C. Best, Inc., 927 F.2d 736 (3d Cir. 1990) (applying Ohio law in a silica foundry case); Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003) (applying Iowa law to affirm summary judgment); Haase v. Badger Mining Corp., 266 Wis. 2d 970 (Wis. Ct. App. 2003), aff’d, 274 Wis. 2d 143 (2004); Damond v. Avondale Industries, 718 So. 2d 551 (La. App. 1998) (affirming summary judgment for a silica supplier on a worker’s claims for silicosis from sandblasting, which if not done carefully, can be an extremely hazardous); Cowart v. Avondale Indus., 792 So. 2d 73 (La. Ct. App. 2001) (holding that the sophisticated user defense was dispositive in a foundry workplace, which was sophisticated about the potential hazards of its silica use); Bates v. E.D. Bullard Co., 76 So.3d 111 (La.App. 2011) (affirming summary judgment for silica suppliers); Phillips v. A.P. Green Refractories Co., 428 Pa. Super. 167, 630 A.2d 874 (1993), aff’d on other grounds, Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995) (lack of proximate cause for claimed failure to warn).

[10] Virginia law, which governed the Willis case cited by the Sawyer court is illustrative. Compare Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir. 1985) (applying Virginia law, which embraces § 388, but refusing to apply the doctrine because the employer was unaware of asbestos hazards during plaintiffs’ employment before 1964), cert. denied sub nom. Oman v. H.K. Porter, 474 U.S. 970 (1985), with Beale v. Hardy, 469 F.2d 213 (4th Cir. 1985) (holding that Section 388 was a complete defense in silicosis cases under Virginia law). Michigan, another industrialized state with well-developed case law, also illustrates the disparate treatment of asbestos cases. Compare Russo v. Abex Corp., 670 F. Supp. 206, 208 (E.D. Mich. 1987) (holding that “asbestos-containing product manufacturers have an absolute duty to warn because of the unique and patent dangers of asbestos”) with Jodway v. Kennametal, Inc., 207 Mich. App. 622, 525 N.W.2d 883 (Mich. Ct. App. 1994) (applying Section 388 in hard-metal (cobalt) lung disease case); Kudzia v. Carboloy Division, 190 Mich. App. 285, 475N.W.2d 371 (1991) (same), aff’d, 439 Mich. 923, 479 N.W.2d 679 (1992); Tasca v. GTE Products Corp., 175 Mich. App. 617, 438 N.W.2d 625 (Mich. Ct. of App. 1989) (same). See also Antcliff v. State Employees Credit Union, 414 Mich. 624, 640 (1982); Ross v. Jaybird Automation, Inc., 172 Mich. App. 603, 607 (1988); Rasmussen v. Louisville Ladder Co., Inc., 211 Mich. App. 541, 547-48 (1995); Portelli v. I.R. Construction Products Co., 218 Mich. App. 591, 599 (1996); Mills v. Curioni, 238 F. Supp. 876, 894-96 (E.D. Mich. 2002).

[11] Triplett v. Minnesota Mining & Mfg. Co., 422 F. Supp. 2d 779 (W.D. Ky. 2006).

[12] Bean v. Asbestos Corporation, Ltd., 1998 WL 972122 (Va. Cir. Ct. 1998).

[13] See also Gottschall v. General Electric Co., 2011 U.S. Dist. LEXIS 151563 (E.D. Pa. Dec. 8, 2011) (MDL 875) (California law; granting summary judgment when the Navy’s knowledge of asbestos hazards was equal to that of defendant), rev’d, No. 14-15379, 14-15380, 2016 U.S. App. LEXIS 17248 (9th Cir. 2016).

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Apportionment and Pennsylvania’s Fair Share Act

March 14th, 2019

In 2011, Pennsylvania enacted the Fair Share Act, which was remedial legislation designed to mitigate the unfairness of joint and several liability in mass, and other, tort litigation by abrogating joint and several liability in favor of apportionment of shares among multiple defendants, including settled defendants.1

Although the statute stated the general rule in terms of negligence,2 the Act was clearly intended to apply to actions for so-called strict liability:3

“(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection.”

The intended result of the legislation was for courts to enter separate and several judgments against defendants held liable in the amount apportioned to each defendant’s liability.4 The Act created exceptions for for intentional torts and for cases in which a defendant receives 60% or greater share in the apportionment.5

In Pennsylvania, as in other states, judges sometimes fall prey to the superstition that the law, procedural and substantive, does not apply to asbestos cases. Roverano v. John Crane, Inc., is an asbestos case in which the plaintiff claimed his lung cancer was caused by exposure to multiple defendants’ products. The trial judge, falling under the sway of asbestos exceptionalism, refused to apply Fair Share Act, suggesting that “the jury was not presented with evidence that would permit an apportionment to be made by it.”

The Roverano trial judge’s suggestion is remarkable, given that any plaintiff is exposed to different asbestos products in distinguishable amounts, and for distinguishable durations. Furthermore, asbestos products have distinguishable, relative levels of friability, with different levels of respirable fiber exposure for the plaintiff. In some cases, the products contain different kinds of asbestos minerals, which have distinguishable and relative levels of potency to cause the plaintiff’s specific disease. Asbestos cases, whether involving asbestosis, lung cancer, or mesothelioma claims, are more amenable to apportionment of shares among co-defendants than are “red car / blue car” cases.

Pennsylvania’s intermediate appellate court reversed the trial court’s asbestos exceptionalism, and held that upon remand, the court must:

“[a]pply a non-per capita allocation to negligent joint tortfeasors and strict liability joint tortfeasors; and permit evidence of settlements reached between plaintiffs and bankrupt entities to be included in the calculation of allocation of liability.”

Roverano v. John Crane, 2017 Pa. Super. 415, 177 A.3d 892 (2017).

The Superior Court’s decision did not sit well with the litigation industry, which likes joint and several liability, with equal shares. Joint and several liability permits plaintiffs’ counsel to extort large settlements from minor defendants who face the prospect of out-sized pro rata shares after trial, without the benefit of reductions for the shares of settled bankrupt defendants. The Roverano plaintiff appealed from the Superior Court’s straightforward application of a remedial statute.

What should be a per curiam affirmance of the Superior Court, however, could result in another act of asbestos exceptionalism by Pennsylvania Supreme Court. Media reports of the oral argument in Roverano suggest that several of the justices invoked the specter of “junk science” in apportioning shares among asbestos co-defendants.6 Disrespectfully, Justice Max Baer commented:

“Respectfully, your theory is interjecting junk science. We’ve never held that duration of contact corresponds with culpability.”7

The Pennsylvania Justices’ muddle can be easily avoided. First, the legislature clearly expressed its intention that apportionment be permitted in strict liability cases.

Second, failure-to-warn strict liability cases are, as virtually all scholars and most courts recognize, essentially negligence cases, in any event.8

Third, apportionment is a well-recognized procedure in the law of Torts, including the Pennsylvania law of torts. Apportionment of damages among various causes was recognized in the Restatement of Torts (Second) Section 433A (Apportionment of Harm to Causes), which specifies that:

(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.

Restatement (Second) of Torts § 433A(1) (1965) [hereinafter cited as Section 433A].

The comments to Section 433A suggest a liberal application for apportionment. The rules set out in Section 433A apply “whenever two or more causes have combined to bring about harm to the plaintiff, and each has been a substantial factor in producing the harm … .”

Id., comment a. The independent causes may be tortious or innocent, “and it is immaterial whether all or any of such persons are joined as defendants in the particular action.” Id. Indeed, apportionment also applies when the defendant’s conduct combines “with the operation of a force of nature, or with a pre-existing condition which the defendant has not caused, to bring about the harm to the plaintiff.” Just as the law of grits applies in everyone’s kitchen, the law of apportionment applies in Pennsylvania courts.

Apportionment of damages is an accepted legal principle in Pennsylvania law. Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987). Courts, applying Pennsylvania law, have permitted juries to apportion damages between asbestos and cigarette smoking as causal factors in plaintiffs’ lung cancers, based upon a reasonable basis for determining the contribution of each source of harm to a single harm.9

In Parker, none of the experts assigned exact mathematical percentages to the probability that asbestos rather than smoking caused the lung cancer. The Court of Appeals noted that on the record before it:

“we cannot say that no reasonable basis existed for determining the contribution of cigarette smoking to the cancer suffered by the decedent.”10

The Pennsylvania Supreme Court has itself affirmed the proposition that “liability attaches to a negligent act only to the degree that the negligent act caused the employee’s injury.”11 Thus, even in straight-up negligence cases, causal apportionment must play in a role, even when the relative causal contributions are much harder to determine than in the quasi-quantitative setting of an asbestos exposure claim.

Let’s hope that Justice Baer and his colleagues read the statute and the case law before delivering judgment. The first word in the name of the legislation is Fair.

1 42 Pa.C.S.A. § 7102.

2 42 Pa.C.S.A. § 7102(a)

3 42 Pa.C.S.A. § 7102(a)(1) (emphasis added).

4 42 Pa.C.S.A. § 7102(a)(2).

5 42 Pa.C.S.A. § 7102 (a)(3)(ii), (iii).

7 Id. (quoting Baer, J.).

8 See, e.g, Restatement (Third) of Torts: Products Liability § 2, and comment I (1998); Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir. 1991) (“Failure to warn claims purporting to sound in strict liability and those sounding in negligence are essentially the same.”).

9 Parker v. Bell Asbestos Mines, No. 86-1197, unpublished slip op. at 5 (3d Cir., Dec. 30, 1987) (per curiam) (citing Section 433A as Pennsylvania law, and Martin v. Owens-Corning Fiberglas Corp. , 515 Pa. 377, 528 A.2d 947, 949 (1987))

10 Id. at 7.

11 Dale v. Baltimore & Ohio RR., 520 Pa. 96, 106, 552 A.2d 1037, 1041 (1989). See also McAllister v. Pennsylvania RR., 324 Pa. 65, 69-70, 187 A. 415, 418 (1936) (holding that plaintiff’s impairment, and pain and suffering, can be apportioned between two tortious causes; plaintiff need not separate damages with exactitude); Shamey v. State Farm Mutual Auto. Ins. Co., 229 Pa. Super. 215, 223, 331 A.2d 498, 502 (1974) (citing, and relying upon, Section 433A; difficulties in proof do not constitute sufficient reason to hold a defendant liable for the damage inflicted by another person). Pennsylvania law is in accord with the law of other states as well, on apportionment. See Waterson v. General Motors Corp., 111 N.J. 238, 544 A.2d 357 (1988) (holding that a strict liability claim against General Motors for an unreasonably dangerous product defect was subject to apportionment for contribution from failing to wear a seat belt) (the jury’s right to apportion furthered the public policy of properly allocating the costs of accidents and injuries).

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Selikoff Timeline & Asbestos Litigation History

December 20th, 2018

This post has been updated here.

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Castleman-Selikoff – Can Their Civil Conspiracy Survive Death?

December 4th, 2018

Several, years ago, I wrote about Barry Castleman’s 1979 memorandum to Irving Selikoff, in which Castleman implored Selikoff to refuse to cooperate with lawful discovery from defense counsel in asbestos personal injury cases. The Selikoff – Castleman Conspiracy” (Mar. 13, 2011). The document, titled “Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability,” was dated November 5, 1979. Coming from The Legacy Tobacco Documents Library at the University of California, San Francisco, created by litigation industry’s tobacco subsidiary, the document is clearly authentic. Barry Castleman, however, has testified that he cannot remember the 35+ year old memorandum, which failure of recall is not probative of anything.1  He refuses to renounce his role as a co-conspirator.

Jock McCulloch and Geoffrey Tweedale have both made careers of attacking any manufacturing and mining industry with connections to asbestos, while supporting the litigation industry that thrives on asbestos. Sadly, Jock McCulloch died of mesothelioma, earlier this year, on January 18, 2018, in Australia. McCulloch attributed his disease to his exposure to crocidolite when he researched one of his books on blue asbestos in South Africa.2 Although I found his scholarship biased and exaggerated, I admired his tenacious zeal in pressing his claims. His candor about the cause of his last illness was exemplary compared with Selikoff’s failure to acknowledge the extent to which amosite and crocidolite were used in the United States.

In 2007, Jock McCulloch and Geoffrey Tweedale wrote an article in which they attacked those who dared to say anything negative about Irving Selikoff.3 Of course, in claiming that the asbestos industry was “shooting the messenger,” these authors were, well, shooting the messenger, too. In 2008, McCulloch and Tweedale wrote a much more interesting, hagiographic article about Selikoff.4 From the legal perpective, perhaps the most interesting revelation in this article was that the authors had drawn “upon unprecedented access to the Selikoff archive at Mount Sinai Hospital in New York City.”

Several years later, defense counsel in the United States attempted to visit the Selikoff archives at Mt. Sinai Hospital. After an unseemly delay, the inquisitive counsel were met with unprecedented obstruction and denial of access:

From: [ARCHIVIST]
To: [DEFENSE COUNSEL]
Subject: Request for appointment with Archivist
Date: Wed, 3 Sep 2014 16:18:53 +0000

I realize that this must seem out of the blue, but we have recently realized that the stub email address we have – msarchives – has not been forwarding email the way it was intended to do. I apologize for not responding to you previously, and for what it is worth, here is the answer to your question.

Some Selikoff material in the Mount Sinai Archives, although I believe some of his research material is still with our Dept. of Preventive Medicine. Our collection is currently closed to researchers, as per the request of Mount Sinai’s Legal Department in 2009. Here is their statement concerning these records:

It was agreed that Dr. Selikoff’s correspondence and archives that are kept within the auspices of the MSSM library under the direction of the MSSM archivist, Barbara Niss, would be kept confidential for at least an additional 25 years to protect Dr. Selikoff’s research endeavors and the privacy of all the individuals, particularly the research subjects, who he studied and with whom he communicated. It is anticipated that twenty-five years from now, these individuals will no longer be alive and their concerns about keeping these matters private will have become moot. However, if we determine that this is not the case, we will reserve the option to continue to keep these documents confidential. We are also taking this action to preserve the academic freedom of our researchers so they can pursue their research, communicate with colleagues and comment on these important environmental/scientific issues, without concerns that they will be subpoenaed as non-party witnesses in these massive tort litigations.

Again, my apologies for the very late reply. Please let me know if you have questions.

So there you have it, 35 years after Castleman implored Selikoff not to cooperate with lawyers’ proper fact discovery, the Selikoff archive is still at its obstruction and denial.

1 See “The Selikoff – Castleman Conspiracy” (Mar. 13, 2011). In 2014, Castleman testifies that he has no recollection of the memorandum. The document was also available at Scribd.

2 See Laurie Kazan-Allen, “In Memory of Jock McCulloch” (Jan. 21, 2018) (quoting an email from Jock McCulloch, dated July 21, 2017: “The injury almost certainly occurred while I was researching Asbestos Blues in South Africa, which is all of twenty years ago.”); “Remembering Jock McCulloch,” Toxic Docs Blog (Jan. 28, 2018) (quoting his partner’s tribute about the cause of his death: “His exposure to blue asbestos was probably in South Africa during the mid-1990s, when he was researching a book on the history of mining.”).

3 Jock McCulloch & Geoffrey Tweedale, “Shooting the Messenger: The Vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619 (2007).

4 Jock McCulloch and Geoffrey Tweedale, “Science is not Sufficient: Irving J. Selikoff and the Asbestos Tragedy,” 17 New Solutions 293 (2008).

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“Each and Every Exposure” Is a Substantial Factor

December 3rd, 2018

“Every time a bell rings an angel gets his wings”
… It’s a Wonderful Life (1946)

Every time a plaintiff shows the smallest imaginable exposure, there is a full recovery.
… The American tort system.

 

In 1984, Philadelphia County had a non-jury system for asbestos personal injury cases, with a right to “appeal” for a de novo trial with a jury. The non-jury trials were a wonderful training ground for a generation of trial lawyers, and for a generation or two of testifying expert witnesses. When I started to try asbestos cases as a young lawyer, the plaintiffs’ counsel had already taught their expert witnesses to include the “each and every exposure” talismanic language in their direct examination testimonies on the causation of the plaintiffs’ condition. The litigation industry had figured out that this expression would help avoid a compulsory non-suit on proximate causation.

Back in those wild, woolly frontier days, I encountered the slick Dr. Joseph Sokolowski (“Sok”), a pulmonary physician in private practice in New Jersey. Sok, like many other pulmonary physicians in the Delaware Valley area, had seen civilian workers referred by Philadelphia Naval Shipyard to be evaluated for asbestosis. When the plaintiff-friendly physicians diagnosed asbestosis, a few preferred firms would then pursue their claims under the Federal Employees Compensation Act (FECA). The United States government would notify the workers of their occupational disease, and urge them to pursue the government’s outside vendors of asbestos-containing materials, with a reminder that the government had a lien against any civil action recovery. The federal government thus made common cause with the niche law practices of workers’ compensation lawyers,1 and helped launch the tsunami of asbestos litigation.2

Sok was perfect for his role in the federal kick-back scheme. He could deliver the most implausible testimony, and weather brutal cross-examination without flinching. He had the face of a choir boy, and his service as an outside examiner for the Navy Yard employees gave his diagnoses the apparent imprimatur of the federal government. Although Sok had no real understanding of epidemiology, he could readily master the Selikoff litany of 5-10-50, for relative risks for lung cancer, from asbestos alone (supposedly), from smoking alone, and from asbestos and smoking combined, respectively. And he similarly mastered his lines that “each and every exposure” is substantial, when pressed on whether and how exposure to a minor vendor’s product was a substantial factor. Back in those days, before Johns-Manville (JM) Corporation went bankrupt, honest witnesses at the Navy Yard acknowledged that JM supplied the vast majority of asbestos products, but that testimony changed literally over the course of a trial day, when the plaintiffs’ bar learned of the JM bankruptcy.

It was into this topsy-turvy litigation world, I was thrown. I had the sense that there was no basis for the “each and every exposure” opinion, but my elders at the defense bar seemed to avoid the opinion studiously on cross-examination. I recall co-defendants’ counsels’ looks of horror and disapproval when I broached the topic in my first cross-examination. Sok had known to incorporate the “each and every exposure” opinion into his direct testimony, but he had no intelligible response to my question about what possible basis there was for the opinion. “Well, we have to blame each and every exposure because we have no way distinguish among exposures.” I could not let it lie there, and so I asked: “So your opinion about each and every exposure is based upon your ignorance?” My question was quickly met with an objection, and just as quickly with a rather loud and disapproving, “Sustained!” When Sok finished his testimony, I moved to strike his substantial factor opinion as having no foundation, but my motion was met with by judicial annoyance and apathy.

And so I learned that science and logic had nothing to do with asbestos litigation. Some determined defense counsel persevered, however, and in the face of over one hundred bankruptcies,3 a few courts started to take the evidence and arguments against the “every exposure” testimony, seriously. Last week, the New York Court of Appeals, New York’s highest court, agreed to state out loud that the plaintiffs’ “every exposure” theory had no clothes, no foundation, and no science. Juni v. A.O. Smith Water Products Co., No. 123, N.Y. Court of Appeals (Nov. 27, 2018).4

In a short, concise opinion, with a single dissent, the Court held that plaintiffs’ evidence (any exposure, no matter how trivial) in a mesothelioma death case was “insufficient as a matter of law to establish that respondent Ford Motor Co.’s conduct was a proximate cause of the decedent’s injuries.” The ruling affirmed the First Department’s affirmance of a trial court’s judgment notwithstanding the $11 million jury verdict against Ford.5 Arguing for the proposition that every exposure is substantial, over three dozen scientists, physicians, and historians, most of whom regularly support and testify for the litigation industry, filed a brief in support of the plaintiffs.6 The Atlantic Legal Foundation filed an amicus brief on behalf of several scientists,7 and I had the privilege of filing an amicus brief on behalf of the Coalition for Litigation Justice and nine other organizations in support of Ford’s positions.8

It has been 34 years since I first encountered the “every exposure is substantial” dogma in a Philaddelphia courtroom. Some times in litigation, it takes a long time to see the truth come out.

1 E.g., Shein and Brookman; Greitzer & Locks; both of Philadelphia.

2 Encouraging litigation against its suppliers, the federal government pulled off a coup of misdirection. First, it deflected public censure from the Navy and other governmental branches for its own carelessness in the use, installation, and removal of asbestos-containing insulations. Second, the government winnowed the ranks of older, better compensated workers. Third, and most diabolically, the government, which was self-insured for FECA claims, recovered most of their outlay when its former employees recovered judgments or settlements against the government’s outside asbestos product vendors. “The United States Government’s Role in the Asbestos Mess” (Jan. 31, 2012). See also Walter Olson, “Asbestos awareness pre-Selikoff,” Point of Law (Oct. 19, 2007); “The U.S. Navy and the asbestos calamity” Point of Law (Oct. 9, 2007).

4 The plaintiffs were represented by Alani Golanski of Weitz & Luxenberg LLP.

6 Abby Lippman, Annie Thebaud Mony, Arthur L. Frank, Barry Castleman, Bruce P. Lanphear,

Celeste Monforton, Colin L. Soskolne, Daniel Thau Teitelbaum, Dario Consonni, Dario Mirabelli, David Egilman, David F. Goldsmith, David Ozonoff, David Rosner, Fiorella Belpoggi, James Huff, John Heinzow, John M. Dement, John Coulter Maddox, Karl T. Kelsey, Kathleen Ruff, Kenneth D. Rosenman, L. Christine Oliver, Laura Welch, Leslie Thomas Stayner, Morris Greenberg, Nachman Brautbar, Philip J. Landrigan, Xaver Baur, Hans-Joachim Woitowitz, Bice Fubini, Richard Kradin, T.K. Joshi, Theresa S. Emory, Thomas H. Gassert,

Tony Fletcher, and Yv Bonnier Viger.

7 John Henderson Duffus, Ronald E. Gots, Arthur M. Langer, Robert Nolan, Gordon L. Nord, Alan John Rogers, and Emanuel Rubin.

8 Amici Curiae Brief of Coalition for Litigation Justice, Inc., Business Council of New York State, Lawsuit Reform Alliance of New York, New York Insurance Association, Inc., Northeast Retail Lumber Association, National Association of Manufacturers, Chamber of Commerce of the U.S.A., American Tort Reform Association, American Insurance Association, and NFIB Small Business Legal Center Supporting Defendant-Respondent Ford Motor Company.

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Cartoon Advocacy for Causal Claims

October 5th, 2018

I saw him today at the courthouse
On his table was a sawed-in-half man
He was practiced at the art of deception
Well I could tell by his blood-stained hands
Ah yeah! Yeah1

Mark Lanier’s Deceptive Cartoon Advocacy

A recent book by Kurt Andersen details the extent of American fantasy, in matters religious, political, and scientific.2 Andersen’s book is a good read and a broad-ranging dissection of the American psyche for cadswallop. The book has one gaping hole, however. It completely omits the penchant for fantasy in American courtrooms.

Ideally, the trial lawyers in a case balance each other and their distractions drop out of the judge or jury’s search for the truth. Sometimes, probably too frequently in so-called toxic tort cases, plaintiffs’ counsel’s penchant for fantasy is so great and persistent that it overwhelms the factfinder’s respect for the truth, and results in an unjust award. In a telling article in Forbes, Mr. Daniel Fisher has turned his sights upon plaintiffs’ lawyer Mark Lanier and his role in helping a jury deliver a $5 billion (give or take a few shekels).3

The $5 billion verdict came in the St. Louis, Missouri, courtroom of Judge Rex Burlison, who presided over a multi-plaintiff case in which the plaintiffs claimed that they had developed ovarian cancer from using Johnson & Johnson’s talcum powder. In previous trials, plaintiffs’ counsel and expert witnesses attempted to show that talc itself could cause ovarian cancer, with inconsistent jury results. Mr. Lanier took a different approach in claiming that the talcum powder was contaminated with asbestos, which caused his clients to develop ovarian cancer.

The asserted causal relationship between occupational or personal exposure to talc and ovarian cancer is tenuous at best, but there is at least a debatable issue about the claimed association between occupational asbestos use and ovarian cancer. The more thoughtful reviews of the issue, however, are cautious in noting that disease outcome misclassification (misdiagnosing mesotheliomas that would be expected in these occupational cohorts with ovarian cancer) make conclusions difficult. See, e.g., Alison Reid, Nick de Klerk and Arthur W. (Bill) Musk, “Does Exposure to Asbestos Cause Ovarian Cancer? A Systematic Literature Review and Meta-analysis,” 20 Cancer Epidemiol. Biomarkers & Prevention 1287 (2011).

Fisher reported that Lanier, after obtaining the $5 billion verdict, presented to a litigation industry meeting, held at a plush Napa Valley resort. In this presentation, Lanier described his St. Louis achievement by likening himself to a magician, and explained “how I sawed the man in half.” Of course, if Lanier had sawed the man in half, he would be a murderer, and the principle of charity requires us to believe that he is merely a purveyor of magical thinking, a deceiver, practiced in the art of deception.

Lanier’s boast about his magical skills is telling. The whole point of the magician’s act is to thrill an audience by the seemingly impossible suspension of the laws of nature. Deception, of course, is the key to success for a magician, or an illusionist of any persuasion. It is comforting to think that Lanier regards himself as an illusionist because his self-characterization suggests that he does not really believe in his own courtroom illusions.

Lanier’s magical thinking and acts have gotten him into trouble before. Fisher noted that Lanier had been branded as deceptive by the second highest court in the United States, the United States Court of Appeals, in Christopher v. DePuy Orthopaedics, Inc., Nos. 16-11051, et al., 2018 U.S. App. LEXIS 10476 (5th Cir. April 25, 2018). In Christopher, Lanier had appeared to engineer payments to expert witnesses in a way that he thought he could tell the jury that the witnesses had no pecuniary interest in the case. Id. at *67. The Court noted that “[l]awyers cannot engage with a favorable expert, pay him ‘for his time’, then invite him to testify as a purportedly ‘non-retained’ neutral party. That is deception, plain and simple.” Id. at *67. The Court concluded that “Lanier’s deceptions furnish[ed] independent grounds for a new trial, id. at *8, because Lanier’s “deceptions [had] obviously prevented defendants from ‘fully and fairly’ defending themselves.” Id. at *69.

Cartoon Advocacy

In his presentation to the litigation industry meeting in Napa Valley, Lanier explained that “Every judge lives by certain rules, just like in sports, but every stadium is also allowed to size themselves appropriately to the game.” See Fisher at note 3. Lanier’s magic act thrives in courtrooms where anything goes. And apparently, Lanier was telling his litigation industry audience that anything goes in the St. Louis courtroom of Judge Burlison.

In some of the ovarian cancer cases, Lanier had a problem: the women had a BrCa2 deletion mutation, which put them at a very high lifetime risk of ovarian cancer, irrespective of what exogenous exposures they may have had. Lanier was undaunted by this adverse evidence, and he spun a story that these women were at the edge of a cliff, when evil Johnson & Johnson’s baby powder came along and pushed them over the cliff:

Lanier Exhibit (from Fisher’s article in Forbes)

Whatever this cartoon lacks in artistic ability, we should give the magician his due; this is a powerful rhetorical metaphor, but it is not science. If it were, there would be a study that showed that ovarian cancers occurred more often in women with BrCa 2 mutations and talcum exposure than in women with BrCa 2 mutations without talcum exposure. The cartoon also imputes an intention to harm specific plaintiffs, which is not supported by the evidence. Lanier’s argument about the “edge of the cliff” does not change the scientific or legal standard that the alleged harm be the sine qua non of the tortious exposure. In the language of the American Law Institute’s Restatement of Torts4:

“An actor’s tortious conduct must be a factual cause of another’s physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.”

Lanier’s cartoon also mistakes risk, if risk it should be, with cause in fact. Reverting back to basic principles, Kenneth Rothman reminds us5:

“An elementary but essential principle to keep in mind is that a person may be exposed to an agent and then develop disease without there being any causal connection between the exposure and the disease. For this reason, we cannot consider the incidence proportion or the incidence rate among exposed people to measure a causal effect.”

Chain, Chain, Chain — Chain of Foolish Custody

Johnson & Johnson has moved for a new trial, complaining about Lanier’s illusionary antics, as well as cheesy lawyering. Apparently, Lanier used a block of cheese to illustrate his view of talc mining. In most courtrooms, argument is confined to closing statements of counsel, but in Judge Burlison’s courtroom, Lanier seems to have engaged in one, non-stop argument from the opening bell.

Whether there was asbestos in Johnson & Johnson’s baby powder was obviously a key issue in Lanier’s cases. According to Fisher’s article, Lanier was permitted, over defense objections, to present expert witness opinion testimony based upon old baby powder samples bought from collectors on eBay, for which chain of custody was lacking or incomplete. If this reporting is accurate, then Mr. Lanier is truly a magician, with the ability to make well-established law disappear.6

The Lanier Firm’s Website

One suggestion of how out of control Judge Burlison’s courtroom was is evidenced in Johnson & Johnson’s motion for a new trial, as reported by Fisher. Somehow, defense counsel had injected the content of Lanier’s firm’s website into the trial. According to the motion for new trial, that website had stated that talc “used in modern consumer products” was not contaminated with asbestos. In his closing argument, however, Lanier told the jury he had looked at his website, and the alleged admission was not there.

How the defense was permitted to talk about what was on Lanier’s website is a deep jurisprudential puzzle. Such a statement would be hearsay, without an authorizing exception. Perhaps the defense argued that Lanier’s website was the admission by an agent of the plaintiffs, authorized to speak for them. The attorney-client relationship does create an agent-principal relationship, but it is difficult to fathom that it extends to every statement that Mr. Lanier made outside the record of the trials before the court. If you dear reader are aware of authority to the contrary, please let me know.

Whatever tenuous basis the defense may have advanced, in this cartoon trial, to inject Mr. Lanier’s personal extrajudicial statements into evidence, Mr. Lanier went one parsec farther, according to Fisher. In his closing argument, Lanier blatantly testified that he had checked the website cited and that the suggested statement was not there.

Sounds like a cartoon and a circus trial all bound up together; something that would bring smiles to the faces of Penn Jillette, P.T. Barnum, and Donald Duck.

1 With apologies to Mick Jagger and Keith Richards, and their “You Can’t Always Get What You Want,” from which I have borrowed.

2 Kurt Andersen, Fantasyland: How America Went Haywire – A 500-Year History (2017).

4 “Factual Cause,” A.L.I. Restatement of the Law of Torts (Third): Liability for Physical & Emotional Harm § 26 (2010).

5 Kenneth J. Rothman, Epidemiology: An Introduction at 57 (2d ed. 2012).

6 Paul C. Giannelli, “Chain of Custody,” Crim. L. Bull. 446 (1996); R. Thomas Chamberlain, “Chain of Custody: Its Importance and Requirements for Clinical Laboratory Specimens,” 20 Lab. Med. 477 (1989).

Posted in Asbestos, Causation, Scientific Evidence | Comments Off on Cartoon Advocacy for Causal Claims

Tremolitic Tergiversation or Ex-PIRG-Gation?

August 11th, 2018

My first encounter with the Public Interest Research Group (PIRG) was as an undergraduate when my college mandated that part of the student activity fee went to New Jersey PIRG. The college administration gave students no choice in the matter.

Upon investigating PIRG’s activities and rhetoric, I found the organization filled with self-aggrandizement, and puffed out with a self-satisfied arrogance. Epistemically, politically, and historically, an organization that declared all its goals to be “in the public interest” was jarring and objectionable, but it was probably just my own idiosyncratic sensitivity.

Many of my fellow students and I protested the forced support for PIRG, and ultimately the college yielded to the tide of opinion. Students were give a choice to opt out of paying the portion of their fees that went to PIRG.

Almost 50 years later, I still have a healthy skepticism of most self-proclaimed “public interest” groups, including PIRG. And so, my antennae went up upon seeing a New York Times article about a PIRG back-to-school shopping guide, with warnings about hazardous materials in crayons and magic markers. See Niraj Chokshi, “Asbestos in a Crayon, Benzene in a Marker: A School Supply Study’s Toxic Results,” N.Y. Times (Aug. 8, 2018). The hazard lurking in crayons, according to PIRG, was none other than the emperor of all toxic substances: asbestos. The Times dutifully reported that PIRG had found only “trace” tremolite, but the newspaper made no attempt to quantify the amount found; nor did the paper describe the meaninfulness of inhalational exposure from trace amount of tremolite embedded in wax. Instead, the Times reported a worrisome quote: “Tremolite is responsible for many cases of asbestos-related cancer and asbestos diseases, according to the Abramson Cancer Center at the University of Pennsylvania.”

* * * * * * * * * * *

“A thing is a phallic symbol if it is longer than it is wide.” 

Melanie, Safka (1972)

“A thing is a fiber if it is three times longer than it is wide.” 

O.S.H.A., 29 C.F.R. § 1910.1001(b) (defining fiber as having a length-to- diameter ratio of at least 3 to 1).

Ergo, all fibers are phallic symbols.

* * * * * * * * * * *

The New York Times article did link to PIRG’s report, which at least allowed readers to inspect the inculpatory evidence. U.S. PIRG, Safer School Supplies: Shopping Guide: Consumer Guide for Finding Non-Toxic School Supplies (2018). Unfortunately, the PIRG report did not answer crucial questions. There was no quantification of the tremolite asbestos, and there was no discussion of the ability of the tremolite to escape the wax matrix of the crayon, to become airborne, and to be inhaled. The report did cite the methodology used to ascertain the presence of the tremolite (EPA Method: EPA/600/R-93/116). Safer Schools at 5. In Appendix A to the report, the authors showed two microphotographs of tremolite particles, but without any measurement scale. One of the two tremolite particles looks like a cleavage fragment, not a fiber. The other photomicrograph shows something that might be a fiber, but without a scale and a report of the elemental peaks, the reader cannot tell for sure. Safer Schools at 21.

The controversy over the potential health effects of tremolite cleavage fragments has a long history. Compare Robert Reger & W. Keith C. Morgan, “On talc, tremolite, and tergiversation,” 47 Brit. J. Indus. Med. 505 (1990) with Bruce W. Case, “On talc, tremolite, and tergiversation. Ter-gi-ver-sate: 2: to use subterfuges,” 48 Brit. J. Indus. Med. 357 (1991). The regulatory definition of fiber does not distinguish between biologically significant fibers and particles with an aspect ratio greater than three. John Gamble & Graham Gibbs, “An evaluation of the risks of lung cancer and mesothelioma from exposure to amphibole cleavage fragments,” 52 Regulatory Toxicol. & Pharmacol. S154 (2008) (the weight of evidence fully supports a conclusion that non-asbestiform amphiboles do not increase the risk of lung cancer or mesothelioma); Brent L. Finley, Stacey M. Benson & Gary M. Marsh, “Cosmetic talc as a risk factor for pleural mesothelioma: a weight of evidence evaluation of the epidemiology,” 29 Inhalation Toxicol. 179 (2017).

Surely the public interest includes the facts and issues left out by PIRG’s report.

 

 

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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.

Posted in Asbestos, Historian Testimony, Learned and sophisticated intermediary | Comments Off on Divine Intervention in Litigation

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