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The History of Litigations – Silica Litigation

July 23rd, 2021

“Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.”

George Santayana, The Life of Reason or the Phases of Human Progress 172 (1905; Marianne S. Wokeck & Martin A. Coleman, eds., 2011).

One of the remarkable and deplorable features of litigation in the United States is that it consumes such an incredible toll of time, energy, money, intellectual effort, creativity, while receiving so little attention in terms of careful curation of its history. Does anyone in the judiciary, the legislature, in the public, in industry, in labor, or at the bar, learn anything from the entirety of a complex litigation? Insurers certainly note their payouts, and adjust their premiums, but have their litigation strategies, and counsel selection and control, improved outcomes? I suspect that there is a great deal of learning to be had, at every level, and from every institutional perspective. It seems that this potential learning is often left untapped.

There are some notable efforts at the history of individual litigation. In 1987, Peter Schuck wrote an incisive history of the Agent Orange litigation.[1] About a decade later, two other law professors, Michael Green and Joseph Sanders, each wrote a history of the Bendectin litigation.[2] Whatever the reader thinks of these histories of litigations, they are all respectable efforts to understand the full course of a so-called “mass tort” litigation, from beginning to end. Law schools do a fine job of teaching the making of widgets, from initial pleadings, to judgments, to appeals, to enforcement of judgments. The academy does less well in teaching the high-level strategies employed in litigations, and the criteria for evaluating the success or failure of those strategies.

There are many important litigations that have not been memorialized in histories. The asbestos litigation existed as isolated as sporadic worker compensation claims before World War II, and after the war, well into the 1970s. The first civil action may have been filed by attorney William L. Brach filed on behalf of Frederick LeGrande, against Johns-Manville, for asbestos-related disease, on July 17, 1957, in LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.). Civil litigation for individual personal injuries took another decade to get started, and has since become institutionalized as a perpetual, limitless, and often unprincipled legal phenomenon in the United States. There have also been environmental and class action asbestos cases, with the infamous case against the Reserve Mining Company in Minnesota having received book length treatment, in 1980.[3] Miles Lord, the trial judge in the Reserve Mining case, was unceremoniously rebuked for unprofessional judicial malfeasance by the Court of Appeals for the Eighth Circuit.[4] More recently, Judge Lord’s law clerk has attempted to resurrect her mentor’s destroyed reputation in a hagiographic biography.[5] These books recount, fairly or not, important episodes in the asbestos litigation, but no one to date has attempted to write a history of the entire broad sweep of asbestos litigation.

The situation is similar in silicosis litigation, where the need for a history of the multiple failed attempts to impose liability on remote silica sand suppliers cries out for unified treatment. There is, to be sure, a highly biased account that runs through one text, Deadly Dust, written by two radical historians who helped fuel the litigation attempts in the 1990s, and in the 21^st century.[6] The perspective of Deadly Dust, however, either ignores or misunderstands the litigation strategies and outcomes for the actual participants in silicosis litigation.

Recently, a chapter in the new edition of a treatise on products liability law has offered up a brief history of silica litigation.[7] The chapter correctly notes that “[s]ilica litigation in the United States has largely dried up following the 2005 dismissal of the multidistrict In re Silica Products Liability Litigation.”[8] In a chapter section, “§ 8:5.2 History of Litigation,” the authors purport to discuss the history of silica litigation, but they begin with one episode, the filing of thousands of cases in Mississippi and Texas, which were removed to federal court and consolidated in a Multi-District Litigation before the Hon. Janis Graham Jack, in Corpus Christi, Texas. Judge Jack famously declared “red flags of fraud” on the litigation battleground, with active participation from many high-volume testifying expert witnesses, such as Drs. Ray Harron and B.S. Levy.

The chapter lightly touches upon a few subsequent, post-MDL silica cases in Mississippi,[9] but importantly the chapter misses the sweep of silica litigation, before the MDL debacle. A more sustained, disinterested history of silica litigation would be a worthwhile undertaking for a few reasons.

Silica litigation is a strong example of misplaced liability in the industrial setting of selling a natural commodity to purchasers who are employers with strong state and federal regulatory obligations to provide safe workplaces.[10]
The litigation over silica health effects severely tests the notion that litigation is needed as an adjunct to regulation. Silicosis mortality has declined steadily in the late 20^th and early 21^st century, despite the failure of silica claims.[11]
In the late 20^th and early 21^st centuries, silica litigation was fueled in part by a tendentious ruling by the International Agency for Research on Cancer (IARC), which declared that crystalline silica is a “known” human carcinogen. The working group was deeply divided, and the classification was subsequently shown to have ignored important studies.[12] Although subsequent IARC working groups handed down even more suspect monographs, revisiting the conditions that gave rise to the IARC silica monograph would be yield valuable insights into the capture and corruption of the IARC process by biased advocates.
Defendants often come under serious criticism and pressure to settle litigation, as though the filing of complaints, with allegations of harms, demands social justice and ample remedies. In silica litigation, many defendants did not succumb to such pressure, and their efforts revealed corruption in the manufacturing of claims, through fraudulent diagnoses, product identification, and misdirected blame.

An adequate history of silica litigation would need to explore:

The era before worker’s compensation (1890-1930, including Gauley Bridge), when civil litigation was the only recourse, and when plaintiffs were met with defenses of contributory negligence, fellow-servant rule, assumption of risk, and statutes of limitations.
The era of worker’s compensation (1930-1968 or so), when employers had close to absolute liability for the medical damages and lost wages of their employees.
The era of strict liability (1969 – 1997), ushered in by the doctrine of stricts products liability in the Restatement (Second) of Torts, and fueled by the enticement of mushrooming jury verdicts, and perceived inadequacies of worker compensation awards. Contributory negligence gave way to comparative negligence, and plaintiffs colluded in claims of ignorance of silica hazards. Silica litigation was episodic, with “outbreaks” in Alabama, western Pennsylvania, and New Jersey.
The IARC Resurgence (1998 – 2010), which “sexed up” silica litigation, and led to mass filings, and the Battle of Corpus Christi, in Judge Jack’s courtroom. Additional outbreaks occurred in Mississippi, New Jersey, Pennsylvania, and California.

There is probably much I have missed, but the sketch above is a beginning.

[1] Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts (1987).

[2] Michael D. Green, Bendectin: The Challenges of Mass Toxic Substances Litigation (1996); Joseph Sanders, Bendectin on Trial: A Study of Mass Tort Litigation (1998).

[3] Robert V. Bartlett, The Reserve Mining Controversy (1980).

[4] Reserve Mining Co v. Hon. Miles Lord, 529 F.2d 181 (8th Cir. 1976).

[5] Roberta Walburn, Miles Lord: The Maverick Judge Who Brought Corporate America to Justice (2017).

[6] David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the Politics of Occupational Disease in the Twentieth Century America (1991).

[7] George Gigounas, Arthur Hoffmann, David Jaroslaw, Amy Pressman, Nancy Shane Rappaport, Wendy Michael, Christopher Gismondi, Stephen H. Barrett, Micah Chavin, Adam A. DeSipio, Ryan McNamara, Sean Newland, Becky Rock, Greg Sperla & Michael Lisanti, “Recent Developments in Asbestos, Talc, Silica, Tobacco, and E-Cigarette/Vaping Litigation in the U.S. and Canada,” Chap. 8, in Stephanie A. Scharf, George D. Sax & Sarah R. Marmor, eds., Product Liability Litigation: Current Law, Strategies and Best Practices (2^nd ed. 2021).

[8] Id. at § 8:5.1 Overview (referring to In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (Jack, J.)).

[9] Mississippi Valley Silica Co. v. Eastman, 92 So. 3d 666 (Miss. 2012); Dependable Abrasives, Inc. v. Pierce, 156 So. 3d 891 (Miss. 2015).

[10] See NAS, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020); “The Misplaced Focus of Enterprise Liability on the Wrong Enterprise” (Mar. 27, 2021).

[11] See, e.g., Ki Moon Bang, Jacek M. Mazurek, John M. Wood, Gretchen E. White, Scott A. Hendricks, Ainsley Weston, “Silicosis Mortality Trends and New Exposures to Respirable Crystalline Silica — United States, 2001–2010,” 64 Morbidity and Mortality Weekly Report 117 (Feb. 13, 2015).

[12] Patrick A. Hessel, John Gamble, J. Bernard L. Gee, Graham Gibbs, Francis H.Y. Green, Morgan, Keith C. Morgan, and Brooke T. Mossman, “Silica, Silicosis, and Lung Cancer: A Response to a Recent Working Group Report,” 42 J. Occup. & Envt’l Med. 704 (2000).

Posted in Asbestos, Learned and sophisticated intermediary, Silica | No Comments »

The Misplaced Focus of Enterprise Liability on the Wrong Enterprise

March 27th, 2021

Well, soon the pandemic of Trump Flu will come to a close. In the future, children too young or born after the pandemic will ask, “where were you during the pandemic, and what did you do?”

For lawyers, trials adjourned and courtrooms went dark, although discovery and motion practice continued. With some free time, I thought it a good time to write about the mess that American tort law has made of employer responsibility in product liability law. And the time seemed right because the Supreme Court had only recently provided a fascinating case study in how out of touch some courts can be with the realities of workplace injuries. The recent decision in DeVries v. Air & Liquid Systems Corp., 139 S.Ct. 986 (2019), was a perfect canvas on which to sketch out tort law’s failure to come to grips with the three-way relationship among industrial product seller, sophisticated industrial or military purchasers and employers, and injured plaintiffs.[1]

Many commentators might have viewed the justices who squared off in DeVries, Kavanaugh for the majority, Gorsuch for the dissent, as cut from the same judicial cloth, but their two opinions diverged in interesting ways. The entire court, however, shared a frail and faulty understanding of the role of third-party employers and product purchasers in providing a safe workplace. Not surprisingly, both the majority and dissenting opinions failed to do justice to the depth of Navy knowledge of the hazards of asbestos, Navy control over the workplace, and the futility of warning of asbestos exposure to the Navy, which had superior knowledge of both general asbestos hazards, the specific conditions it created, and the methods needed to protect its workers and sailors.

The failings of scholarship and analysis in DeVries have a bigger context.[2] The role of third parties – sophisticated intermediaries – received careful consideration in the First and Second Restatements of Torts, in Section 388 and its comments.[3] The Third Restatement continued to endorse this important defense, based upon the practical and sensible limits of liability, but placed the relevant discussion in a hard-to-find comment to a very broad, general section:

“5. The Restatement, Second, of Torts § 388, Comment n, utilizes the same factors set forth in Comment i in deciding whether a warning should be given directly to third persons. It has been relied on by numerous courts. 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) (applying Virginia law)… .”[4]

At least these celebrated sophisticated intermediary defense cases were cited by the Third Restatement, in a comment. Many current tort textbooks fail to mention the defense at all.[5] Tort theorists stress the importance of the boundaries between consumers and industrial enterprises, but ignore the frequent setting in which the purchaser is itself an industrial enterprise, and has independent legal and regulatory duties to provide safe workplaces with the products at issue.[6] Highly sensitive to the need to protect ordinary consumers from the predations of large manufacturing companies, many tort theorists are insensate to the need to protect manufacturers-sellers from the predations of large employing purchasing corporations upon the purchasers’ employees.[7]

Many scholars have written about the United States government’s historical knowledge of asbestos dangers,[8] but without any sense of outrage or concern, such as you might find in the purple prose of Paul Brodeur.[9] Although Brodeur did ever so slightly touch upon lawsuits against the United States government for conditions in Naval shipyards and elsewhere, he quoted with seeming approval the comments by Captain George M. Lawton, given in a 1979 interview. When asked whether the Navy was responsible for workplace conditions at the Navy’s Electric Boat shipyard, Lawton flippantly shrugged off the suggestion with the observation:

“If I order an automobile and the way they make automobiles is to throw people into a furnace, I am not responsible for that.”[10]

Brodeur, who was quick to judge the asbestos product manufacturers, fails to note that it was Captain Lawton’s Navy that was throwing people in furnace at its Navy yards around the country. Similarly, asbestos plaintiffs’ expert witness, Barry Castleman, who had written a trial manual for plaintiffs’ lawyers based upon distorted assessment of individual companies’ historical involvement with asbestos, spends no time investigating the huge record of United States governmental knowledge of asbestos use.[11] Castleman, schooled by the lawsuit industry lawyers, understood that documenting the knowledge of the intermediary, product purchaser, and workplace owner, detracts from the David-and-Goliath narrative his retaining counsel needed to prevail in litigation. Writers such as Brodeur and Castleman are fond of citing historical writings of governmental health agencies for claims of health hazards. Captain Lawton’s Navy was, of course, possessed and was bound by the knowledge of those very same public health agencies.[12]

In the mid-1970’s, amidst economic turmoil, and declining military budgets, the United States Navy found itself with a big problem. Payments to civilians under the FECA (Federal Employees’ Compensation Act), a statute that gives civilian employees of shipyards the equivalent of workers’ compensation benefits, came right out of the Navy’s budget for shipbuilding. The Navy had no insurance for FECA payments, and suddenly it found itself facing a large uptick in the number of claims made by civilians for asbestos-related injuries. About the same time, many states adopted some version of strict product liability, some stricter than others. None was likely stricter than Pennsylvania’s version, which made referring to employer responsibility virtually impossible. Ultimately, the plaintiffs’ bar found that strict liability recoveries and settlements were too certain to encumber themselves and their clients with government liens, and they stopped filing their FECA cases altogether.

When I first started practicing “asbestos law,” I routinely found copies of letters from JAG lawyers to shipyard workers, in their personnel files. The letters notified the workers that they had been diagnosed with asbestosis, usually by a local pulmonary physician who performed contract services for surveillance for the shipyard. (These diagnosing physicians went on to make fortunes by serving as expert witnesses in subsequent civil litigation.) The letters notified the workers that they might have rights under FECA, but emphasized that the workers had remedies against the Navy’s vendors of asbestos-containing products, and that if they sued in tort, the Navy would have a lien against any recovery. In practice, the lien was so unwieldy, that most of the Philadelphia plaintiffs’ firms would forego filing the FECA claim altogether. Thus the Navy effectively limited its liability, and kept its munitions budgets intact, while dozens of its vendors went bankrupt. The cruel irony of the FECA (or workers’ compensation) statutes is that the employer pays regardless of fault, that the employer can’t be sued in civil actions, and that the employer can recover ~80% of its payments from settlements or judgment proceeds from a civil defendant.

The government’s role in fueling the explosion of asbestos civil actions has not received very much, if any, real scrutiny. What a story is hidden away in those old files! Not only did the Navy know of the asbestos hazards, hide them from its civilian workers, but when those workers got sick, the Navy turned on its outside suppliers by encouraging its workers to sue the suppliers, while hiding behind the exclusive remedy provision of the FECA.

The story of the Navy’s misdeeds, misrepresentations, and misinformation has been told, in bits and pieces, here and there. What was needed back in the 1980s was someone who could write a thorough documentary history of the Navy’s predations upon its employees and its sailors. There is a trove of materials from before World War II, but increasing dramatically with the wartime efforts of Dr. Philip Drinker to obtain safe asbestos workplaces for both workers both at contract and naval shipyards.

In the postwar period, Navy culpability became even clearer. In 1957, for instance, more than a decade after Drinker’s investigations and reports of asbestos safety hazards, the Navy held a Conference of Pipe and Copper Shop Master Mechanics, at the Boston Naval Shipyard, on May 8 -10. Representatives from every naval shipyard, as well as the Bureau of Ships, and Commander Simpson, were present. A master pipefitter, O.W. Meeker, visiting from Shop 56, Long Beach Naval Shipyard, presented on “Pipe Insulation Processes and Procedures.” Notwithstanding confusion between asbestosis and silicosis, and between asbestos and silica, Mr. Meeker’s remarks speak volumes about the government’s role in the “asbestos mess”:

“The asbestos which we use is a mineral as much as is the rock in which it is found. Furthermore, its principal ingredient is silicon, which is responsible for the disease which we know as silicosis [sic].

Asbestos, silicosis, is caused by prolonged breathing of silica dust [sic]. Asbestos, when handled dry, produces vast amounts of silica dust. In new applications the material can be dampened to reduce the amount of dust liberated. However, the specified type of amosite for use on cold water piping is water repellent. Also material which must be removed from an existing installation is dry and powdery, being an excellent dustproducer.

The most apparent symptom of asbestosis is lethargy or a lack of vitality. What we suspect to be lead in the posterior might well be asbestos in the lungs. During 1956, 11 deaths from asbestosis were reported on the Pacific Coast alone. One insulator died of asbestosis at the age of 29.

Asbestosis is extremely difficult to detect – particularly at the early stages. I know that two of my insulators are afflicted with this condition. How many more will become afflicted is something which I hesitate to predict. Again, the solution is obvious. Remove the cause by substituting other products such as Armaflex or StaFoam for asbestos whenever possible. However, this will take some doing.

In the meantime, the answer is wearing of respirators by all who handle asbestos products. To many the very idea of wearing respirator is repugnant. However, a respirator on the face is preferable to asbestos in the lungs.

Therefore, gentlemen, ours definitely is the important and difficult task of providing and installing effective insulating materials aboard Naval Vessels. Moreover, this task must be accomplished without sacrificing our workmen in the process.”

Tort law and history itself have been distorted by the law’s focus on manufacturing defendants as deep pockets simply because the purchasing enterprises have had immunity from civil liability.

———————————————————————————-

[1] Schachtman, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020).

[2] “Asbestos and Asbestos Litigation Are Forever” (Sept. 16, 2014).

[3] Restatement (First) of Torts § 388, comment 1 (1934); Restatement (Second) of Torts § 388, comment n (1965).

[4] Restatement (Third) of Torts: Products Liability § 2 Categories of Product Defect (1998), Comment i. Inadequate instructions or warnings.

[5] See, e.g., John C. P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010); Anita Bernstein, Questions & Answers: Torts (3d ed. 2014); Saul Levmore & Catherine M. Sharkey, Foundations of Tort Law (2d ed. 2011); Mark A. Geistfeld, Principles of Products Liability (2006). But see John L. Diamond, Lawrence C. Levine, and Anita Bernstein, Understanding Torts 392 (6th ed. 2018) (citing Taylor v. American Chem. Council, 576 F.3d 16, 25 (1st Cir. 2009) (applying Massachusetts law, and affirming summary judgment for defendant PVC trade association on failure-to-warn claim, on ground that the plaintiff’s employer was a sophisticated use and well aware of the danger).

[6] See, e.g., Gregory C. Keating, “Products Liability As Enterprise Liability,” 10 J. Tort Law 41, 60 (2017).

[7] Thomas H. Koenig & Michael L. Rustad, In Defense of Tort Law 2 (2001); Stephen R. Perry, “The Moral Foundations of Tort Law,” 77 Iowa L. Rev. 449 (1992).

[8] George M. Lawton & Paul J. Snyder, “Occupational Health Programs in United States Naval Shipyards,” 11 Envt’l Res. 162 (1976); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy 99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards); Jacqueline Karnell Corn & Jennifer Stan, “Historical Perspective on Asbestos: Policies and Protective Measures in World War II Shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988); Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992); Kenneth W. Fisher, “Asbestos: Examining the Shipyard’s Responsibility: An examination of relevant U.S. archives from the 1930s through the 1980s” (2001); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Danielle M. Dell, Bruce K. Bohnker, John G. Muller, Alan F. Philippi, Francesca K. Litow, W. Garry Rudolph, Jose E. Hernandez, David A. Hiland, “Navy Asbestos Medical Surveillance Program 1990–1999: Demographic Features and Trends in Abnormal Radiographic Findings,” 8 Military Med. 717 (2006); John L. Henshaw, Shannon H. Gaffney, Amy K. Madl & Dennis J. Paustenbach, “The Employer’s Responsibility to Maintain a Safe and Healthful Work Environment: An Historical Review of Societal Expectations and Industrial Practices,” 19 Employee Responsibilities & Rights J. 173 (2007); Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011).

[9] Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985).

[10] Id. at 251 (quoting Lawton’s interview published in Connecticut Magazine, in 1979).

[11] Barry I. Castleman, Asbestos: Medical and Legal Aspects (1984).

[12] See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, … [and] the Navy’s Bureau of Medicine and Surgery is the knowledge of the military.”).

Posted in Historian Testimony, Learned and sophisticated intermediary, Sophisticated User, State of the Art | No Comments »

Tort Law’s Sleight of Hand – Part 6

August 11th, 2020

The dissenting justices, in an opinion by Justice Gorsuch, would have affirmed the trial court’s application of the bright-line bare metal defense, in DeVries. Citing black-letter law as restated by the American Law Institute, the dissent opined that the common law precedent and policy favored a rule that “the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the ‘products and systems into which [it later may be] integrated’.”[1]

The dissent criticized the court’s retrospective imposition of a liability rule and its ignoring common law precedent, as well as the unpredictability and cost of the court’s new rule, and the breadth and the difficulty of cabining the three-part test. As part of its criticism of the majority opinion, the dissent argued that the stated rule will lead to incoherent and incongruous results, and presented a parade of horribles that might arise within the scope of the new rule:

“The traditional common law rule [which would recognize the bare metal defense] better accords, too, with consumer expectations. A home chef who buys a butcher’s knife may expect to read warnings about the dangers of knives but not about the dangers of undercooked meat. Likewise, a purchaser of gasoline may expect to see warnings at the pump about its flammability but not about the dangers of recklessly driving a car.”[2]

How telling that all the envisioned bad legal consequences involve one-on-one consumer cases, without the presence of a sophisticated employer as intermediary, operating under a complex regulatory scheme to provide a comprehensive safety program to the end user!

The dissent continues its vision of bad consequences by contemplating the substantial costs placed upon product manufacturers whose products are meant to be used with other companies’ products:

“Consider what might follow if the Court’s standard were widely adopted in tort law. Would a company that sells smartphone cases have to warn about the risk of exposure to cell phone radiation? Would a car maker have to warn about the risks of improperly stored antifreeze? Would a manufacturer of flashlights have to warn about the risks associated with leaking batteries? Would a seller of hot dog buns have to warn about the health risks of consuming processed meat?”[3]

Again, the dissent is fixated on consumer products, used by ordinary consumers, outside of a heavily regulated workplace, and without the need for a highly technical industrial hygiene safety regimen.

When the dissent considered the issue of who was in the best position to warn, Justice Gorsuch simply argued, without evidence, that the parts supplier, not the bare metal manufacturer was in the “best position” to warn:

“The manufacturer of a product is in the best position to understand and warn users about its risks; in the language of law and economics, those who make products are generally the least-cost avoiders of their risks. By placing the duty to warn on a product’s manufacturer, we force it to internalize the full cost of any injuries caused by inadequate warnings—and in that way ensure it is fully incentivized to provide adequate warnings. By contrast, we dilute the incentive of a manufacturer to warn about the dangers of its products when we require other people to share the duty to warn and its corresponding costs.”[4]

Of course, in McAffee’s case, the asbestos insulation manufacturers had been warning for over a decade before he started his service in the Navy. As documented by the plaintiffs’ own expert witness, Barry Castleman:

“In 1964, Johns-Manville (“J-M”) was among the first companies to provide warnings with its asbestos-containing products, namely its asbestos insulation. During and after this time frame, J-M sold asbestos insulation to the United States military. In any extensive review of J-M documents, which have included visits to the J-M archives in Denver, Colorado, I have never seen any evidence that J-M removed or altered the warning labels that appeared on its asbestos insulation for sales to the United States military.”[5]

As for the argument without evidence about which party, bare metal manufacturer or asbestos-insulation manufacturer, can “best” warn, all the justices ignored the party that can truly best warn, the government. Placing liability on any supplier dilutes the incentive for the Navy to carry out its statutory duties. As Justice Gorsuch acknowledged:

“Tort law is supposed to be about aligning liability with responsibility, not mandating a social insurance policy in which everyone must pay for everyone else’s mistakes.”[6]

It really is time for remote suppliers to stop having to pay for injuries caused by their purchasers, especially when the purchasers are knowledgeable and have duties to protect their employees from the injuries claims.

As disconnected as the justices in DeVries were from the realities of military service-related and industrial injuries, there is some good news to come out of the high court. First, despite the suggestions of why there might be a duty, the Court did not hold that there was a duty; it provided three considerations for the trial court’s determining whether a duty exists, on remand.

Second, the Court located the relevant considerations for the existence and scope of a putative duty in Section 388. Although all the justices missed the relevance of this section to the three-way industrial situation, the case law under Section 388 is voluminous, and speaks directly to the situation of a “chattel to be supplied for the use of another.” In fairness to the Court, and to the parties, the case did not go up on appeal on the basis of a “sophisticated intermediary” defense. Summary judgment had been granted below on the simple notion that a seller should not be responsible for warning of another company’s product. The manufacturer appellants did extensively discuss Navy knowledge or changing “state of the art,” in their briefs. At best, the appellants’ discussions were tangential. The shape of the initial summary judgment motion may have been shaped by an earlier decision of the asbestos MDL court, which rejected the sophisticated intermediary defense under maritime law.[7] The Supreme Court’s embrace of Section 388, and its incorporation of 388’s standards, into the three articulated conditions for the existence of a duty (and particularly into the third condition, “the manufacturer has no reason to believe that the product’s users will realize that danger.”).

Third, there is a renewed summary judgment motion now pending before the MDL court. In addition to now explicitly raising a government contractor defense,[8] the defendants have carefully marshaled the evidence of Navy knowledge to show that the third condition of DeVries must necessarily fail: the manufacturer had ample reason to believe that the product’s users will realize the relevant danger.[9]

[1] DeVries, 139 S.Ct. at 997 (Gorsuch, J., dissenting) (quoting from Restatement (Third) of Torts: Products Liability § 5, Comment b, p. 132 (1997)).

[2] DeVries, 139 S.Ct. at 998 (Gorsuch, J., dissenting).

[3] DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[4] DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting) (citing Steven Shavell, Economic Analysis of Accident Law 17 (1987); Guido Calabresi, The Costs of Accidents 135 & n. 1 (1970); Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324 (1964)).

[5] Declaration of Barry L. Castleman (July 18, 2008), in Joint Appendix, vol. 2, at 462, in Air and Liquid Systems Corp. v. DeVries, No. 17-1104 (filed July 9, 2018), available at <http://www.supremecourt.gov/DocketPDF/17/17-1104/52622/20180709143550603_17-1104%20JA%20Vol.%20II.pdf>

[6] DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[7] Mack v. General Electric Co., 896 F. Supp. 2d 333 (E.D. Pa. 2012).

[8] Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

[9] See Memorandum of Law in support of Defendant General Electric Company’s Renewed Motion for Summary Judgment, in DeVries v. General Elec. Co., no. 5:13-cv-00474-ER, docket entry no. 396 (E.D. Pa. filed April, 1, 2020).

Posted in Asbestos, Learned and sophisticated intermediary, Sophisticated User, State of the Art | Comments Off on Tort Law’s Sleight of Hand – Part 6

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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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.

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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. See “Pennsylvania 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. See “Narratives & 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.

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Sophisticated Intermediary Defense Prevails in New York

May 9th, 2015

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

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

The Rickicki case turned 25 years old in February 2015.

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The Erosion of Employer Immunity in Tort Litigation

January 20th, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases

February 14th, 2014

Worker’s compensation legislation was part of great compromise in the rough-and-tumble battles between labor and management in the first few decades of the last century. In virtually every state, employers had a common law duty to provide a reasonably safe workplace. In tort litigation, however, employers enjoyed several powerful affirmative defenses: contributory negligence, the fellow-servant rule, and assumption of risk. Workers enjoyed increasingly sympathetic juries and generous damage awards. Worker’s compensation statutes made recovery for most injuries a certainty, with schedules of damages that were deeply discounted from what might be had in a jury trial. In return for well-nigh absolute liability, employers gained certainty of outcome, reduction of administrative costs, and immunity to tort liability for all but intentional harms.

After World War II, tort law began to change dramatically. Contributory negligence gave way to comparative negligence. Assumption of risk defenses were curtailed, and the fellow-servant rule was severely modified or abandoned. Labor was feeling buyers’ remorse over the workman’s compensation deal.

In 1965, the American Law Institute adopted § 402A which provided for “Special Liability of Seller of Product for Physical Harm to User or Consumer,” based upon concerns of unequal knowledge of defects and latent hazards of products sold to consumers. Liability followed for harm caused by a product irrespective of privity of contract or warranty, and even if “the seller has exercised all possible care in the preparation and sale of his product.” Restatement (Second), Torts § 402A (2)(a),(b) (1965).

Section 402A was inspired by tort cases in New Jersey and California, involving consumer products, but the Restatement was quickly, and unthinkingly, applied to sales made to large manufacturing employer-purchasers in which there was no real inequality of knowledge between seller and purchaser, or hidden or latent hazard in the product or material. (Think about how knowledgeable the United States Navy was about the hazards of asbestos insulation products it bought for ship building.) Section 402 became the vehicle for injured workers to ditch their capped damages in worker’s compensation court, and to put their cases back in front of juries, with the prospect of unlimited awards for non-economic damages.

In the workers’ compensation era, very few injured workers succeeded in making out intentional torts that would overcome their employers’ immunity to suit. Late last year, however, Pennsylvania workers regained their common law right to sue employers for negligence and other torts, for occupational diseases that manifest more than 300 weeks after last employment. Section 301(c)(2) of the Pennsylvania’s Workman’s Compensation Act, 77 P.S. § 411(2) removes these delayed manifested occupational disease claims from the scope of the Act. Since the Act’s inception, most courts have held that late manifestation (over 300 weeks) deprived the claimant of a recovery under the Act, but did not remove the employer’s immunity from suit. In an opinion issued in November 2013, Justice Todd, writing for herself and four other justices, held that the statute’s exclusion of late-manifesting occupational diseases (after 300 weeks) does not leave claimants without a remedy; the statute simply removes the latent disease cases from the purview of the Act, and returns them to the vicissitudes of common law litigation. Tooey v. AK Steel Corp., 81 A.3d 851 (2013).

The Tooey decision has profound implications for how occupational disease litigation claims will be litigated. For decades, Pennsylvania juries were treated to a faux spectacle that suggested that plaintiffs, with claimed occupational diseases, were the “victims,” of remote suppliers’ failure to warn, when in reality their diseases were largely or totally the result of employer and employee negligence. Not only will plaintiffs sue their employers, but third-party vendors will seek contribution or indemnification from negligent employers. Employers will assert comparative negligence and assumption of risk defenses, which will give the lie to the plaintiffs’ claims of inadequate warnings from the remote suppliers. Just possibly, Tooey will let the truth come out.

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Rockefeller and McCarthy — The Rush from Responsibility

December 4th, 2013

William Rockefeller was the engineer who operated the Metro-North Railroad train at 83 mph around the Spuyten Dyvel curve, in the Bronx. The general speed limit is 70 mph, and the speed limit going into the curve is 30 mph. The train derailed, killing four passengers and injuring many more, some very seriously. Rockefeller told investigators that he had become “dazed,” whatever that means in the absence of some “dazing” event. Matt Flegenheimer & William K. Rashbaum, “Train Engineer Was Dazed Before Crash, Lawyer Says” (Dec. 3, 2013 ). George Orwell would have appreciated the slippery and soul-less use of the passive voice. Who did the dazing?

Jeffrey P. Chartier, Rockefeller’s lawyer, described his client as suffering from “highway hypnosis.” Chartier, testifying for his client, claimed that Rockefeller had lost concentration only momentarily, and that he was “extremely remorseful.” Metro-North trains are pretty substantial trains, not the sort that can accelerate momentarily from 30 to 82 mph.

Rockefeller is a member of the Association of Commuter Rail Employees, and so, of course, his union representative, Anthony Bottalico, had to weigh in on the issue. Bottalico casually mentioned that Rockefeller had described himself as having nodded off before the derailment. When pressed, Bottaclico realized his error in acknowledging responsibility, and he quickly changed up:

“People use the word ‘zoned out,’ ‘nod,’ ‘fell asleep,’ … I’m not a sleep expert.”

Bottalico’s indiscretion, in speaking to the media about a pending investigation (and trying to spin the facts to exculpate the union engineer) led the safety board to remove the union as a party to the investigation.

The search for responsibility is part of our human condition. Legal categories often drive the search. In occupational exposure cases, employers have tort immunity by virtue of workman’s compensation immunity. The Depression-era bargain between labor and management on workplace injuries pushes our legal system, and the litigation industry, to place responsibility on remote vendors of products and raw materials to the workplace, despite their lack of control over the dissemination of information on the job. In most so-called sophisticated intermediary cases, the accident or injury would not have occurred at all had the employer and the employees done their respective jobs with respect to providing a safe workplace.

In the Spuyten Duyvil crash, Rockefeller’s lawyer and rail safety pundits suggest that automatic systems might have prevented the derailment. The hard fact remains, however, that Rockefeller was the most important link in the causal chain. He was the “least expensive” means to avoid the disaster because it was his job and his responsibility to do so. Had Rockefeller simply done his job, four people killed in the crash would be alive today. And many more would not be crippled and in pain.

In today’s New York Times, Joe Nocera muses about how Long Island Congresswoman Carolyn McCarthy, was diagnosed with lung cancer. McCarthy, who is 69 years old, was a life-long cigarette smoker, yet in her court filings she refers to her lung cancer as her asbestos disease. Joe Nocera, “The Asbestos Scam” N.Y. Times (Dec. 3, 2013). We live in a free country (well, sort of free) and people should be free to deceive themselves and indulge their superstitions. But surely we can draw the line at deceiving others with such nonsense. McCarthy was never an asbestos insulator or an asbestos-exposed tradesperson. McCarthy’s lawyer, supposedly told The New York Post that “it has been conclusively proven that cigarette smoking and asbestos exposure act synergistically to cause lung cancer.”

Nocera points out that in fact it has not. Even Selikoff himself, who did so much to perpetuate a theory of multiplicative, synergistic reactivity, wrote that his insulator cohort synergistic risk estimates could not be extrapolated to other exposures (such as the evanescent household exposures alleged by Congresswoman McCarthy):

“These particular figures apply to the particular groups of asbestos workers in this study. The net synergistic effect would not have been the same if their smoking habits had been different; and it probably would have been different if their lapsed time from first exposure to asbestos dust had been different or if the amount of asbestos dust they had inhaled had been different.”

Selikoff, et al., “Asbestos Exposure, Cigarette Smoking and Death Rates,” 330 Ann. N.Y. Acad. Sci. at 487 (1979). Despite Selikoff’s atypical care, his colleagues who carried the Mt. Sinai banner into courtrooms all around this country, glibly ignored his qualification. See also “Irving Selikoff and the Right to Peaceful Dissembling.” Of course, when Selikoff’s heirs updated his insulator study, they did not find evidence of interaction even for insulators who lacked sufficiently heavy exposure to cause asbestosis. Steve Markowitz, Stephen Levin, Albert Miller, and Alfredo Morabia, “Asbestos, Asbestosis, Smoking and Lung Cancer: New Findings from the North American Insulator Cohort,” Am. J. Respir. & Critical Care Med. (2013). See “The Mt. Sinai Catechism” (June 7, 2013). I doubt that these qualifications will find their way into the reporting of The New York Post.

Ultimately, Irving Selikoff and his heirs helped create a litigation industry that has placed responsibility for asbestos disease on vendors, not employers, and completely out of proportion to any realistic appraisal of traditional tort law. Rockefeller and McCarthy, and Selikoff (and the litigation industry he helped to start) all illustrate the misallocation of responsibility for avoidable human suffering. Denialism is where you find it.

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