Federal Court Grants Summary Judgment to Defendants for Plaintiffs’ Failure to Establish Substantial Factor but Denies It as to Joint Compound and Outside Contractor Defendants United States District Court for the District of Maryland, July 25, 2016

Plaintiffs Charles Arbogast and Barbara Arbogast brought this action against multiple defendants for Mr. Arbogast’s alleged development of mesothelioma as a result of his occupational exposure at Bethlehem Steel Sparrows Point Steel Mill, amongst other sites. Several defendants moved for summary judgment, including Eaton Corporation (Cutler Hammer), Foster Wheeler, MCIC, Georgia Pacific (GP), Schneider Electric (Square D), Union Carbide (UCC), and Crane Co. The court began its analysis by reciting the standard for summary judgment, which is appropriate when “the movant shows there is no…
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Argument That Plaintiff’s Counsel Misrepresented Return of Privileged Memo Unavailing; Defendant’s Own Actions Waived Privilege Supreme Court of New York, July 14, 2016

Defendant J-M Manufacturing Company, Inc. moved to vacate the Recommendation of the Special Master finding that J-M waived privilege. In so doing, the defendant argued the Special Master erroneously applied New York law instead of California law in determining that the defendant waived the attorney-client privilege attached to the redacted and unredacted versions of a 1983 memo from the defendant’s in-house counsel to its president. The plaintiff opposed the motion. In its motion to vacate, J-M argued the memo was first inadvertently produced in a…
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No Liability Coverage Allocation for Manufacturers Who Continued Making Products with Asbestos After 1987 N.J. App. Ct. July 20, 2016

  A New Jersey appellate court held that policyholders who continued to manufacture products containing asbestos after 1987 — when coverage for injuries arising from such products was no longer available — need not shoulder any portion of liability for injuries related to asbestos exposure from their products, so long as any portion of such exposure occurred prior to 1987. The Bendix Corporation, predecessor of Honeywell International, Inc., manufactured and sold brake and clutch pads that contained asbestos. Honeywell has been sued in tens of…
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What Does New York’s Decision on Duty to Warn Mean Going Forward in Asbestos Litigation?

New York’s highest court has imposed a duty on equipment manufacturers to warn about asbestos containing products manufactured by other manufacturers. This long-awaited decision now resolves the duty issue, but what does it mean going forward in asbestos litigation? On June 28, 2016, the New York Court of Appeals ruled in the Dummitt/Suttner cases that Crane Co. had a “a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as…
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Genomics: Beyond Asbestos and Into Talcum Powder Litigation and Ovarian Cancer

It appears that 2016 may be the year that genomics and other aspects of molecular science make a big splash in “mass tort” litigation. While genomic analysis has long been used in forensics, it has also made its way into toxic tort cases, such as benzene exposure cases, and asbestos and mesothelioma cases. Indeed, the first BAP1 and mesothelioma case is now on the books (see our recent post on this here). Recently, Johnson & Johnson (J&J) was ordered to pay $72 million…
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First Asbestos Genetic Susceptibility (BAP1) Trial Now in the Books

Asbestos litigation has now entered the modern era. Namely, the first case involving testimony related to BAP1 mutations has gone to trial in California: the Ortwein case. The trial involved a 50-year-old woman with pleural mesothelioma, represented by the Kazan firm. The defendant at trial was CertainTeed, a building manufacturer, and the case settled shortly before it would have gone to the jury. But does the Ortwein trial matter when it is only one case out of thousands filed every year? We believe it does…
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Big Picture Thinking About Headlines Involving “Cancer”: Is Cancer Environmentally-Induced or Due to “Bad Luck”?

When cancer causation is at the heart of a toxic tort case it is critical to remain abreast of current research in the field. A good toxic tort lawyer must consider not only the science that will help him win his case, but also maintain an awareness of the scientific research related to basic knowledge about cancer causation, cancer prevention, and cancer treatments. This knowledge will ultimately translate into better openings, direct examinations, cross examinations, and closings. Last month we addressed some trial-specific thinking,…
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Multiple Factors and Causation in Cancer Litigation: Examples from a Coal Tar Pitch Bladder Cancer Case

How many external sources have a role in cancer causation? And to what extent can scientists and lawyers parse these factors in today’s age of molecular investigation of cancers? For purposes of analysis, this post looks at a hypothetical bladder cancer case in which there are assertions regarding smoking, asbestosis, and occupational coal tar pitch exposure in the context of manufacturing of carbon graphite electrodes. Assume that the plaintiff’s industrial hygiene expert asserts that the bladder cancer was caused by polycyclic aromatic hydrocarbons (PAHs) occurring…
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New Developments in Molecular Science Relevant to Asbestos and Lung Cancer Claims

Scientific advances and molecular insights relevant to asbestos and lung cancer are exploding — especially topics related to an assessment of causation. These advances are chronicled in molecular studies related to genomics, proteomics, epigenetics, and transcriptomics. These molecular studies are transforming so-called “black-box epidemiology,” providing us with a higher degree of specificity that will ultimately allow us to more definitively link exposures to disease states. For example, European investigators and others have been publishing intriguing studies describing lung cancer tumor mutation profiles that appear to…
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Asbestos Litigation: Did We Forget These Are Warnings Cases?

In the world of asbestos, the predominant claim against defendants is that they should have warned against the dangers of asbestos. Typically, plaintiffs prove exposure to a product, absence of any warning (or an adequate warning) and damages. The jury verdict sheet simply reads something like, “Was defendant negligent in manufacturing, selling or supplying a product without an adequate warning” and “was that negligence a substantial factor in causing plaintiff’s injury.” Unlike all other products liability warnings cases, a plaintiff seems to be held to…
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