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TORTINI

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

The Recrudescence of Ferebee – Part One

June 29th, 2026

The infamous Ferebee decision is certainly a contender to be a Dred Scott decision involving scientific evidence,[1] by declaring that science has no validity issues that the law is bound to respect.[2] The decision is often cited for its dictum, written with impressive rhetorical flourish, about how courts should not interfere with expert witness opinion testimony. The dictum, when written in 1984, was contrary to the law of Federal Rule of Evidence 702, and was relegated in 1993 to the trash bin of jurisprudential history by the Supreme Court’s 1993 decision in Daubert.[3]

Since 1993, scofflaw judges continued to cite Ferebee’s discredited dictum, without looking at the specific facts of the case. Indeed, even after Rule 702 was amended to clarify its meaning, courts have cited Ferebee as precedential for a let-it-all-in approach to expert witness testimony. As recently as February 2026, the Chief Judge of the Federal Circuit, of the United States Court of Appeals, cited Ferebee in derogation of Federal Rule of Evidence 702.[4] This recrudenscence of Ferebee warrants revisiting the case, what was actually decided, and whether it has any continuing jurisprudential relevance.

The Ferebee case was a personal injury case against the manufacturer of paraquat, a herbicide, for damages for severe pulmonary fibrosis. Interestingly, the case is sometimes erroneously cited as a cancer causation case, which may explain why some commentators criticize its dismissal of epidemiology and statistical significance.

Critics of Ferebee, as well as its acolytes, rarely describe the factual context of the case. The facts of a case are always germane to its holding, and Ferebee cannot be cited appropriately without a sane appreciation of its facts.

Ferebee is a government negligence case.

The plaintiff worked for the federal government when he was exposed to paraquat. Richard Ferebee began working for the Department of Agriculture’s Beltsville Agricultural Research Center (BARC), in Beltsville, Maryland. He started spraying paraquat in the summer of 1977, and used the herbicide regularly through the time he was diagnosed with pulmonary fibrosis, in November 1979.[5] Mr. Ferebee sued Chevron Chemical Company, the supplier of the paraquat, for failing to warn. The important failure to warn, however, was committed by the federal governmental, which had actual knowledge of the hazard, and which owned the BARC facility, employed Ferebee, controlled and supervised his use of paraquat, and failed to comply with Chevron’s instructions. The federal government itself further regulated the sale and use of paraquat extensively, first by the Department of Agriculture, and later by the Environmental Protection Agency. [6]

The exposure.

Ferebee filed his lawsuit in 1981; he died in 1982. His case was tried twice. In the first trial, the jury deadlocked. In the second trial, the jury returned a verdict in favor of his estate, and for his family, for $60,000. In his deposition testimony, Ferebee described how he sprayed paraquat, in the summer of 1977. The chemical was diluted for use, per Chevron’s instructions. There was no evidence that Ferebee ever had direct contact with undiluted paraquat, or that the paraquat he was exposed to was not diluted according to the proportions recommended on Chevron’s label.[7]

Crediting Ferebee’s testimony, the federal government was at best grossly negligent; at worst, the government was an intentional tortfeasor. In flagrant disregard of Chevron’s written instructions (as required by federal regulation), Ferebee frequently had the chemical on his ungloved hands.[8] Ferebee further described an occasion when he was drenched with paraquat as he walked behind a tractor that was spraying the chemical, and another incident when he used a defective sprayer that leaked paraquat “all over his pants.”[9]

On the occasions of Ferebee’s being exposed to paraquat without appropriate protective gear, the federal government deviated from its employer common law, statutory, and regulatory duties. Ferebee did not wash when he was dermally exposed to paraquat, and he went home contaminated, where he fell asleep, tired and dizzy, without showering.[10] The exposure that Ferebee described would not have occurred had his federal employer followed the instructions on the label that the government itself mandated. In 1978, the federal Occupational Health & Safety Administration published Guidelines on the need for protective clothing, respirators, immediate washing of contaminated skin. Ferebee’s federal governmental employer recklessly disregarded the guidelines it mandated that Chevron provide.

The warnings.

Paraquat could be sold in the United States only when labeled in accordance with EPA regulations, promulgated pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).[11] The statute bars EPA from allowing sale of regulated herbicides, such as paraquat, unless the chemicals, as labeled, will not cause “unreasonable adverse effects on the environment.”[12] Such effects are in turn defined as any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of [the] pesticide.[13] FIFRA further requires the EPA to require labeling that is “adequate to protect health and the environment” and that is “likely to be read and understood.”[14]

In the Ferebee case, both the district and the circuit courts failed to provide the complete warning label and the material data safety sheets that Chevron supplied to the federal government employer, as required by the federal government. There are “snippets” of the warning communications in the published opinions, which make clear that the government was largely if not entirely to blame for failing to comply with the directions required under FIFRA. For instance, the district court, in a footnote, acknowledged:

“For example, the label advised the user spraying paraquat to wear waterproof clothing and goggles, to avoid working in spray mist, and to wash splashes on the skin or eyes immediately with water.”[15]

The Court of Appeals Ferebee opinion described the label,[16] as stating a warning in large bold letters:

DANGER

CAN KILL IF SWALLOWED

HARMFUL TO THE EYES AND SKIN

The label also informed users to wash any exposed areas immediately, and to remove contaminated clothing.[17]

The Stipulation.

Essential to understanding the holding in Ferebee are the facts of the case, including the parties’ stipulation:

“that Mr. Ferebee’s only significant exposure to paraquat was on his intact skin; i.e., there was no evidence that Mr. Ferebee swallowed or inhaled paraquat, or that he spilled or sprayed it on an area of his skin upon which he had any apparent cuts or scrapes. The jury was not, of course, precluded from concluding that a person engaged in Mr. Ferebee’s line of work could have had some, or even many, minor cuts or abrasions not readily discernible to the naked eye or likely to be remembered some time later.”[18]

Why did the plaintiffs try to present their case solely as a dermal exposure cases? As we will see, this stratagem made their medical causation case a little more difficult, but it avoided defenses of serious misuse and lack of proximate cause. Ferebee had been instructed by his co-workers and supervisors that paraquat was extremely dangerous if swallowed or inhaled. The warning label was unequivocal in detailing the dangers and the need to avoid ingestion. (Without the full label, it is difficult to evaluate how well the label warned against inhalation, but the 1978 OSHA guidelines address the use of a proper respirator for situations in which paraquat may be inhaled.) On the other hand, the label had a weakness, which could be exploited, as long as the preemption defense could be held at bay: the label urged protective clothing, goggles, and immediate washing of contaminated skin, but it failed to describe the consequence of dermal exposure other than irritation. Ferebee could thus try to avoid his own culpable conduct, as well as a sophisticated intermediary defense, by claiming that his exposure was only dermal.

Why did Chevron agree to the stipulation? Ferebee surely had some inhalational exposure when he walking behind applicators and when he was drenched in paraquat. The Chevron warning label, per government-employer regulations, did not specify respirator usage for ordinary work exposures of applicators (as opposed to workers who handled undiluted paraquat, or who worked in confined spaces). The defendant probably felt sanguine about its preemption defense, and thus also about the adequacy of its warnings overall. The stipulation limited the plaintiff’s medical causation case to a route of exposure that put it into an arguable “first instance” case report. Chevron stood to gain a claim of “lack of notice,” and thus lack of actual or constructive knowledge of the risk of lung disease from dilute dermal exposure. The clinical presentation itself differed from many of the cases of known paraquat poisoning, and Chevron probably believed that it could deal with the medical causation claim better if exposure was limited to transdermal absorption on unbroken skin.

Medical causation

Chevron stridently argued that there had been no previous documented cases of pulmonary fibrosis in workers exposed to diluted paraquat on unbroken skin. The manufacturer’s argument was clever by halves. The following facts were uncontroverted as known at the time of Chevron’s sale of the product:

Paraquat causes pulmonary fibrosis in humans.
The evidence that established paraquat as a cause of pulmonary fibrosis was largely case series of acute onset of pulmonary fibrosis after ingestion.
Paraquat induces pulmonary fibrosis relatively rapidly.
Paraquat can be absorbed through the skin.
The parties agreed that any type of exposure – ingestion, inhalation, or dermal absorption – could cause lung damage.[19]
Once paraquat is ingested, inhaled, or absorbed, it can travel to the lungs.
Lung fibrosis caused by dermal absorption of paraquat had been described previously only with skin lesions before or after the injury.[20]
The lungs are the target organ for paraquat, regardless of route of administration.
There are numerous causes of pulmonary fibrosis (such as asbestosis, scleroderma, rheumatoid arthritis, etc.).
The variants of pulmonary fibrosis do not all look alike clinically or pathologically, present alike, or progress alike.
Ferebee had no known other disease or exposure that could account for his pulmonary fibrosis.
There are cases of pulmonary fibrosis with no identifiable cause, known as idiopathic pulmonary fibrosis (IPF).
IPF is relatively rare; it too has a rapid onset and progression, although arguably not as fast as the cases described after exposure to undiluted paraquat.
Ferebee’s medical history was largely unhelpful in explaining his clinical course.
Ferebee had some shortness of breath before starting to use paraquat.[21]
Ferebee used or was exposed to paraquat occasionally over three years before he was diagnosed with pulmonary fibrosis.

These stipulated facts are rarely acknowledged in the discussion of the Ferebee case. The legal implications of these facts are far reaching. General causation in a sense was not contested. Paraquat causes pulmonary fibrosis. The issue was whether diluted paraquat through dermal exposure over three years causes pulmonary fibrosis, and whether this exposure caused Ferebee’s pulmonary fibrosis. Chevron stridently asserted that the “scientific method” required controlled experimental or observational (epidemiologic) studies. The problem with Chevron’s position was that general causation had already been established, and not by analytical epidemiologic studies. General causation between paraquat exposure of any kind and pulmonary fibrosis had been established by case reports, based upon close temporal proximity between exposure and pulmonary toxicity and fibrosis. Animal toxicology and mechanistic studies confirmed the toxicity observed in clinical studies.[22]

Because idiopathic pulmonary fibrosis is rare, the appearance of this disease in a series of exposed workers soon after they were exposed to a specific toxic chemical really did not require the rigors of analytical epidemiology. The causal analysis between paraquat and lung fibrosis was more akin to the analysis that is used to attribute liver failure to herbal exposure than the epidemiologic approach to the relationship between smoking and lung cancer. At the time of Ferebee’s exposure and his litigation, there was no serious dispute that paraquat caused pulmonary fibrosis when inhaled or swallowed, or that paraquat was absorbed dermally, or that the lung was a target organ of paraquat exposure of any sort.

The expert witnesses.

Ferebee was initially treated by Dr. Muhammed Yusuf, a pulmonary specialist, who diagnosed pulmonary fibrosis. Dr. Yusef referred Ferebee to the National Institutes of Health (NIH), where he came under the care of Dr. Ronald G. Crystal of the Heart, Lung, and Blood Institute. (Dr. Crystal is now Chairman of Genetic Medicine at Weill-Cornell Medical College, where he continues to practice pulmonary medicine.)

In the litigation, Chevron called Dr. Carrington, who diagnosed Ferebee with idiopathic pulmonary fibrosis. Dr. Carrington challenged the plaintiffs’ expert witnesses’ opinions for lacking reliance upon controlled observational or experimental studies.[23] Dr. Carrington, however, acknowledged that dermal cases are too rare for observational epidemiologic analysis, but emphasized that no animal studies of sufficient size had been done to support plaintiffs’ hypothesis. Chevron also called a Dr. Fisher, who presented a toxicokinetic (TK) analysis of Ferebee’s dermal absorption. Based upon his TK analysis, Dr. Fisher concluded that the maximal amount of paraquat absorbed by Ferebee was too small, based upon known cases and animal studies, to have caused paraquat toxicity with lung fibrosis.[24]

Chevron’s challenge to plaintiffs’ expert witnesses’ causation opinion.

None of the defendant’s expert witnesses examined Ferebee. The courts thought this was relevant, but the judicial opinions never articulated what would have been observed on physical examination that was important to resolving the differential diagnosis of paraquat toxicity versus IPF. There was no dispute that Ferebee had rapidly progressing pulmonary fibrosis. The expert witnesses on both sides evaluated Ferebee’s clinical data, presentation, clinical course, and arrived at different diagnoses, either paraquat-induced lung fibrosis or IPF. The plaintiffs’ expert witnesses’ diagnosis involved a causal attribution to paraquat exposure; the defendant’s expert witness’s diagnosis of IPF ruled out any causal toxic exposure.

The Ferebee case was litigated under Maryland law because federal statutory law requires state law to control in a wrongful death action arising out of the neglect or wrongful act of another on a federal enclave.[25] The choice of law had implications both for procedural and substantive law. Chevron appears to have relied upon Maryland’s articulation of the Frye general acceptance doctrine, and the courts analyzed Chevron’s arguments as a Frye challenge.[26] Under the Erie doctrine, a federal court should have applied its own procedural law to the case at hand, including Rule 702 of the Federal Rules of Evidence.[27] The use of Maryland law to determine an evidentiary issue in federal court was error.

Chevron pressed its challenge in terms of Maryland’s version of Frye, and not under Federal Rule of Evidence 702. The oft-repeated infamous language used by both the district and the circuit courts was, therefore, not an interpretation of federal law. Rule 702 was never cited or discussed in either the trial or the appellate court’s opinion. This oddity has profound implications for how we evaluate the Ferebee decision, and how it can be cited. Before the Supreme Court decided the Daubert case, the epistemic implications of Rule 702 were largely ignored. Defendants sometimes attempted to press the Frye twilight-zone general acceptance test into a rule of decision that would reject an expert witness’s opinion testimony.[28] The Frye case was decided by a federal appellate court, but superseded by the enactment of Rule 702, in 1975. Ferebee was, of course, decided before the Supreme Court breathed life into Rule 702, but Rule 702 was nonetheless the law when the Ferebee case was litigated.

The judicial resolution of Chevron’s Frye challenge

The district court insightfully recognized that Chevron was demanding a level of evidence, which had never been required to establish paraquat’s generally accepted ability to cause pulmonary fibrosis. This recognition led to the district court’s rhetorical language:

“It is true that medical expert testimony must be grounded in proper scientific methodology, but the extremely stringent standard that defendant suggests is beyond reason. Product liability law, especially as it relates to relatively new products or those with a relatively rare yet significant danger, would be rendered next to meaningless if a plaintiff could prove he was injured by a product only after a ‘statistically significant’ number of other people were also injured. A civilized legal system does not require that much human sacrifice before it can intervene. The fact that this is the first case of this exact type – or at least the first of its exact type in which the involvement of paraquat was discovered by alert doctors – cannot be enough by itself to shield defendant from liability. Defendant’s experts were not able to fault Dr. Crystal for his basic diagnostic methodology; in fact, they used the same kinds of test results, consultations, and other tools that he did. What they disagreed with chiefly were his conclusions.”[29]

The important observation is that general causation had been established case series and reports of human exposure. There never was statistical evidence that had been evaluated for “significance,” to establish general causation for undiluted paraquat, and the trial court refused, under Maryland law, to require such evidence for general causation for diluted paraquat. In this context, we can see that the trial court’s suggestion that statistical significance was not required has little bearing upon cases in which general causation could only be established using epidemiologic evidence, with its attendant statistical inferences.

Of course, the matter only became worse when Chevron persisted in its argument and presented it to a panel of the D.C. Circuit. The litigants pulled a panel of what can be described as activist judges not known for their scientific acumen. Judge Mikva wrote the opinion for a panel that included Judge Wald, and Senior Judge Bazelon. The panel’s decision ratcheted up the district court’s rhetoric:

“Thus, a cause-effect relationship need not be clearly established by animal or epidemiological studies before a doctor can testify that, in his opinion, such a relationship exists. As long as the basic methodology employed to reach such a conclusion is sound, such as use of tissue samples, standard tests, and patient examination, product liability does not preclude recovery until a ‘statistically significant’ number of people have been injured or until science has had the time and resources to complete sophisticated laboratory studies of the chemical. In a courtroom, the test for allowing a plaintiff to recover is not scientific certainty, but legal sufficiency; if reasonable jurors could conclude from the expert testimony that paraquat more likely than not caused Ferebee’s injury, the fact that another jury might reach the opposite conclusion or that science would require more evidence before conclusively considering the causation question resolved is irrelevant. That Ferebee’s case may have been the first of its exact type, or that his doctors may have been the first alert enough to recognize such a case, does not mean that the testimony of those doctors, who are concededly well qualified in their fields, should not have been admitted.”[30]

Judge Mikva’s dichotomy between levels of certainty needed in science and in the law was false. On behalf of the plaintiff, Dr. Crystal had done much more than give a clinical diagnosis. His assessment of causality was informed by case series of exposure and lung fibrosis, along with physiological evidence of oral, inhalational, and dermal absorption and distribution to the lungs, with toxic effect soon after exposure.

The appellate court’s dismissive attitude towards statistically significant evidence is severely limited to the factual context of a causal analysis that had been made by scientists, to everyone’s satisfaction, for undiluted paraquat, without the need for epidemiologic, statistical evidence. Statistical significance was never really at issue. In this way, Ferebee resembles the untoward dictum on statistical significance from Matrixx Initiatives Inc. v. Siracusano,[31] where the Court held that causation was not at issue.

In Ferebee, causation was very much at issue, but it had been well established – and the subject of warnings – based upon clinical case reports of paraquat exposure and rapid development of lung fibrosis. Dermal absorption and systemic distribution with toxic effects in the lungs were well established, and not the stuff of epidemiologic proofs.

In both Ferebee and Matrixx Initiatives, statistical significance was never really at issue. In Ferebee, there was no statistical evidence needed or used to reach causal conclusions about paraquat’s ability to induce pulmonary fibrosis. In Matrixx Initiatives, allegations of statistical significance and causation were not necessary because the plaintiffs needed only to allege materiality of the facts suppressed by the company in order to plead a securities fraud case. The FDA could impose warnings or require a product recall on evidence that fell well short of establishing causality. Materiality thus could be established without causation, and neither causation nor statistical significance needed to be alleged.

As for Chevron’s Frye challenge, the district court rejected the implied call for a vote on the general acceptance of Dr. Crystal’s reasoning. Frye may require “vote counting” of some sort, but the process becomes irrelevant when virtually no one has registered to vote. Otherwise, both the defense and plaintiffs’ expert witnesses were indeed using the same technique of arguing by analogy to accepted cases of paraquat poisoning or IPF. Dr. Crystal opined that Ferebee’s case was “similar” to three other cases he had identified. Dr. Carrington argued that Ferebee’s case was more like IPF cases, although IPF cases themselves have some clinical heterogeneity as well. Most reported paraquat cases described onset of toxicity to death as a very rapid process. Ferebee did not present with significant symptoms for three years after his first exposure, and then he survived for another two plus years. Ferebee did not report skin lesions, which had been reported in previous cases of dermal exposure leading up to pulmonary fibrosis. On the other hand, there was no precise exposure assessment for Ferebee’s absorption of paraquat. The case presented, on the diagnostic level, with the implied causality, a difficult call, but it is easy to understand the courts’ impatience with the defendant’s insistence upon more stringent criteria and evidence than was used to establish the causal connection with undiluted paraquat. The ability of paraquat to cause pulmonary fibrosis had been well established based upon case reports, including case reports of dermal exposure to open sores, with documented systemic distribution with specific toxicity to the lung, regardless of the route of administration.

Expert witness qualifications.

Chevron never challenged Dr. Yusuf’s or Dr. Crystal’s qualifications, both of whom were highly accomplished and respected clinicians and scientists. Neither was a “hired gun.” The oft-quoted comments about expert witness qualifications were made in the context of describing the appellate court’s standard of review, and the court’s role in not assessing credibility or weighing the evidence:

“These admonitions apply with special force in the context of the present action, in which an admittedly dangerous chemical is alleged through long-term exposure to have caused disease. Judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease. On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”[32]

Remarkably, this language has been mistakenly invoked as a standard for trial courts to use in determining the admissibility of expert witness opinion testimony. It is no such thing. Some other observations are in order. Although Ferebee worked with diluted paraquat, his exposures were hardly low level. He described himself as drenched in the herbicide, without protective gear, and without his governmental supervisors ever directing him to shower and change clothing.

Preemption and Warnings Causation.

Ultimately, Chevron’s preemption defense was rejected by both the district and the circuit court. The defense’s claim of FIFRA preemption might have gone very differently today, after the Supreme Court’s decisive application of preemption to FIFRA labeling of glyphosate.[33]

Even more important in evaluating liability is the emphasis that both the district and the appellate courts gave to the important role of the employer in the case. The evidence showed that there was indeed a warning label that Ferebee had never read. The plaintiff’s case was thus in jeopardy of failing to show proximate causation between an allegedly inadequate warning and harm. The courts, however, emphasized the role that the employer, through its supervisors and responsible co-workers, play in the complex organizational situation of a modern workplace:

“Mr. Ferebee’s situation was quite different, however. He did not purchase paraquat for his personal use; rather, it was provided to him by his employer for use on the job. The evidence showed that his principal source of information about paraquat was the oral instructions of his supervisors and co-workers, not the written label. He learned from them how to mix the product and how to spray it. It was also from this source that he learned of the danger of getting the product in his mouth: one of his co-workers warned him that if he accidently swallowed paraquat, it would ‘get in his blood’ and poison him. This is a common pattern of instruction and use of occupational materials in the workplace. Learning by doing and learning by oral instruction are tried and true methods of educating manual workers in their jobs. Therefore, although it is crucial to plaintiff’s case that someone would have read the label, it was not necessary for Mr. Ferebee to have done so. And it is obvious that one or more employees at BARC did read the label, since information did reach Mr. Ferebee about the proportions for diluting the product and about the dangers about which the label did warn. It was appropriate for the jury to infer that a warning about the danger of fatal lung disease from dermal exposure would also have been communicated to Mr. Ferebee. See Restatement (Second) of Torts § 388 comment n (seller normally entitled to assume that adequate warning will be passed on by purchaser to ultimate user); cf. Chambers v. G.D. Searle & Co., 441 F.Supp. at 381 (in product liability case involving prescription drug, relevant warning is the one given to doctor, not patient).”[34]

There is significant irony in that the Ferebee case has been the subject of serious criticism from defense counsel, and yet it embraced Section 388, comment n, as well as applied the learned or sophisticated intermediary principles to a case not involving prescription drugs. The appellate court waxed enthusiastic about the principles of Section 388, and went so far as to cite the late Victor Schwartz in support:

“We live in an organizational society in which traditional common-law limitations on an actor’s duty must give way to the realities of society. *** In this case, Mr. Ferebee did not purchase the paraquat for his personal use, and there was substantial evidence that workplace communication about the dangers associated with various chemicals usually took the form of oral instructions from supervisors to workers, the latter of whom then retransmitted the information to co-workers. This, rather than individual reading of product warnings, is a typical method by which information is disseminated in the modern workplace. See Schwartz & Driver, “Warnings in the Workplace: The Need for a Synthesis of Law and Communication Theory,” 52 U. Cinn. L. Rev. 38, 66-83 (1983). The requirement that an improper warning proximately ‘cause’ the injury should be elaborated against this background. We believe Maryland would construe its tort law in this case to require only that someone in the workplace have read the label, not that Mr. Ferebee personally have read it. Because there is no dispute that one or more employees at BARC did read the label, we hold that the jury could properly have inferred that, had a warning about the danger of disease from dermal exposure been included on the label, that warning would have been communicated to Mr. Ferebee and that he would as a result have acted differently. Alternatively, the jury could have inferred that an adequate warning would have led Ferebee’s employers to undertake steps that would have protected him from paraquat poisoning-for example, provision of showers for use after spraying.”[35]

Judge Mikva’s prediction, of course, was accurate; Maryland tort law did, soon thereafter, embrace the sophisticated intermediary defense to exculpate the defendant in such remote supplier situations.[36] The principle invoked to excuse plaintiff from reading the warning label also works to exculpate the defendant when that warning label is otherwise adequate, or when the intermediary knows of the hazard in any event. Given that the employer was the federal government, including the scientists at EPA, OSHA, the National Institutes of Health, and the Public Health Service, as well as the plaintiff’s principal expert witness (Dr. Crystal), the employer had complete and superior knowledge to the seller about the known or knowable effects of diluted paraquat.[37]

[1] Nathan Schachtman, Wells v. Ortho Pharmaceutical Corporation -A Dred Scott Case in Science Jurisprudence, ResearchGate (June 2026); DOI: 10.13140/RG.2.2.30242.18880

[2] Ferebee v. Chevron Chem. Co., 552 F. Supp. 1297 (D.D.C. 1982), aff’d, 736 F.2d 529 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984).

[3] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[4] Willis Electric Co., Ltd. v. Polygroup Ltd., 166 F. 4th 1363, 1379, 1380-81 (Fed. Cir. 2026) (citing Ferebee, and declaring that the validity of assumptions underlying an expert witness’s methodology were fact questions for the jury, and not a a proper basis for excluding the challenged expert witness testimony). See also Barry v. DePuy Synthes Cos., 164 F.4th 896, 912 (Fed. Cir. 2026) (characterizing expert witness challenges to “purported flaws” in methodology as objections that “go to the weight the jury might accord to that evidence and not to its admissibility.”)

[5] Ferebee, 736 F.2d at 1531-32.

[6] Id. at 1532.

[7] 552 F. Supp. at 1295 & n. 3.

[8] Ferebee, 552 F. Supp. at 1294-95

[9] Ferebee, 736 F.2d at 1532.

[10] Id.

[11] 7 U.S.C. § 136, et seq.

[12] 7 U.S.C. § 136a(c)(5)(C).

[13] 7 U.S.C. § 136(bb).

[14] 7 U.S.C. § 136(q)(1)(E). See Ferebee 736 F.2d at 1539-40.

[15] 552. F. Supp. at 1304 n.40.

[16] Ferebee, 736 F.2d at 1536.

[17] Id.

[18] 552. F. Supp. at 1295 & n. 3.

[19] Ferebee, 552. F. Supp. at 1300 & n.28.

[20] Ferebee, 736 F.2d at 1538.

[21] Ferebee, 552. F. Supp. at 1295.

[22] See generally Leah Utyasheva, Prabath Amarasinghe & Michael Eddleston, Paraquat at 63 – the story of a controversial herbicide and its regulations: It is time to put people and public health first when regulating paraquat, 25 BMC PUB. HEALTH 3089 (2025).

[23] Ferebee, 552. F. Supp. at 1301.

[24] Id.

[25] 16 U.S.C. § 457; Ferebee, 736 F.2d at 1533.

[26] Ferebee, 552 F. Supp. at 1301; 736 F.2d at 1535.

[27] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 & n.6 (1993). See also Cavallo v. Star Enterprise, 100 F.3d 1150, 1157-58 (4th Cir. 1996); Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256 (2d Cir. 2002); Legg v. Chopra, 286 F.3d 286, 289-92 (6th Cir. 2002). See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Hanna v. Plumer, 380 U.S. 460, 470 (1965) (Erie does not displace the application of federal procedural rules in federal courts).

[28] Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).

[29] Ferebee, 552 F. Supp. at 1301.

[30] Ferebee, 736 F.2d at 1535-36 (emphasis in original).

[31] 563 U.S. 27 (2011). See Nathan Schachtman & David Venderbush, Matrixx Unbounded: High Court’s Ruling Needlessly Complicates Scientific Evidence Principles, 26(4) WASH. LEG. FDTN. LEG. BACKGROUNDER (2011).

[32] Ferebee, 736 F.2d at 1534.

[33] Monsanto v. Durnell, ___ U.S. ___, Slip op. (June 25, 2026), available at https://www.supremecourt.gov/opinions/25pdf/24-1068_n7ip.pdf

[34] Ferebee, 552 F. Supp. at 1303-04 (internal citations omitted).

[35] Ferebee, 736 F.2d at 1539 (emphasis in original; internal citation omitted).

[36] See, e.g., Kennedy v. Mobay Corp., 84 Md. App. 397 (1990) (applying sophisticated user defense to bar claims against manufacturers of toluene diisocyanate), aff’d, 325 Md. 385 (1992); Higgins v. E.I. DuPont de Nemours, Inc., 671 F. Supp. 1055 (D. Md. 1987) (Maryland law; holding that manufacturer of paint was in better position than bulk supplier to communicate warnings to customers’ employees), aff’d, 863 F.2d 1162 (4th Cir. 1988).

[37] 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 Causation, Expert Witnesses, Frye, Learned and sophisticated intermediary, Rule 702, Scientific Evidence, Sophisticated User, statistical evidence, Toxicological Evidence | 1 Comment »

Victor Schwartz – An Intellectual Leader of the American Defense Bar

August 8th, 2025

Victor Elliot Schwartz died late last month. His passing was marked with several obituaries, from his colleagues, friends, and family, which marked his many achievements.[1] At the defense bar, Victor was truly a thought leader and tort scholar, as well as an advocate for sensible reform. Victor’s work had tremendous influence, although sadly, because of a rapacious, rent-seeking lawsuit industry, not as much influence as it should have had.

His work and insights inspired my own efforts on several fronts. Just as I was coming out of my clerkship, Victor published a law review article, in the University of Cincinnati Law Review, on the often otiose warnings required for products and raw materials sold for use in the workplace of large manufacturing concerns.[2] The learning of Victor’s scholarship became essential in fashioning a defense to dozens of silicosis cases filed in western Pennsylvania, in the early 1980s. The pursuer was a law firm that hoped to exploit the usual David-Goliath narrative from its asbestos cases, coming out of the large U.S. Steel and Bethlehem Steel factories and foundries. Victor’s work emphasized the importance of the epistemic context of occupational exposures cases that arose from employment in factories owned by sophisticated users and purchasers of potentially hazardous materials. Along with my co-defense counsel, we implemented Victor’s insights in the Cambria County, Pennsylvania, silicosis litigation. When the dust settled, the pursuer and his clients went away empty handed.[3]

Victor’s insights into the law and communication theory were equally valuable in asbestos litigation. Because most cases in Philadelphia were tried through the cockamamie reverse-bifurcation procedure, the defense rarely got a chance to put on a state-of-the-art or sophisticated intermediary defense. There was one blessed judge, the Hon. Levan Gordon, who distained reverse bifurcation, and gave me the opening to present both defenses in response to plaintiffs’ counsel’s insistence upon trying negligence and punitive damage claims in an all-issue case. Although I had the weaker side of the medical dispute, my adversary turned the case into a passion play on failure to warn. The jury returned a no cause verdict for the defense, without reaching the medical claim.[4]

Some years later, I was invited by the National Industrial Sand Association to talk about the recrudescence of silicosis litigation. The sand mining companies were very concerned about the bogus radiographic screenings and liability claims. Victor was also invited, but as things turned out, I spoke first. As a young brash lawyer, I thought I should include some concrete recommendations on what the companies could do to avoid liability. I suggested that they ask for indemnifications for any third-party suits by the buyers’ employees. I acknowledged that this was a tough ask so I had a fall-back suggestion that the firms put in recitations in the sales documents that the buyer warrants and represents that it is conversant with all pertinent regulations and industrial hygiene procedures to handle silica sand safely in its business. The audience, made up of owners and executives, was clearly uncomfortable over the suggestion that they request such concessions from their buyers in a highly competitive market. The comments were hostile, but Victor jumped in, and said that he had planned to offer the same suggestions and that the sand companies should take these suggestions very seriously. Victor had the gray hair and the gravitas that I lacked, and the company executives piped down and I got on with my talk.

Victor was a natural, and as a young lawyer, he was one of my leading role models. Years later, he encouraged me to seek membership in the American Law Institute, and offered helpful guidance about the application process. More recently, when the directors of the Center for Truth in Science wanted to create a legal advisory council, Victor Schwartz was our number one recruit. He will be missed.

[1] “Shook Mourns the Passing of Beloved Public Policy Chair Victor Schwartz,” SHB (Jul. 29, 2025); PR Newswire (Jul. 29, 2025); Legacy.com (Jul. 29, 2025)

[2] Victor E. Schwartz & Russell W. Driver, “Warnings in the Workplace: The Need for a Synthesis of Law and Communication Theory,” 52 U. Cin. L. Rev. 38 (1983). See also Victor E. Schwartz, Mark A. Behrens & Andrew W. Crouse, “Getting the Sand Out of the Eyes of the Law: The Need for a Clear Rule for Sand Suppliers in Texas After Humble Sand & Gravel, Inc. v. Gomez,” 37 St. Mary’s Law J. 283 (2006).

[3] Phillips v. A.P. Green Co., 428 Pa. Super. 167, 630 A.2d 874 (1993) (citing Schwartz & Driver), aff’d on other grounds sub nom. Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995) (citing lack of proximate cause between failure to warn and harm); Smith v. Walter C. Best, Inc., 927 F.2d 736 (3rd Cir. 1990) (Ohio law); Goodbar v. Whitehead Bros., 591 F. Supp. 552 (W.D.Va. 1984) (citing Schwartz & Driver), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985). See Schachtman, “History of Silicosis Litigation,” Tortini (Jan. 31, 2019).

[4] O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of federal government’s superior knowledge of hazard and control of workplace). See Schachtman, “Asbestos and Asbestos Litigation Are Forever,” Tortini (Sep. 16, 2014); “Divine Intervention in Litigation,” Torinti (Jan. 27, 2018).

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

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 | 8 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.

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

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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