We are pleased to announce that Husch Blackwell has published its inaugural “Legal Insights for Manufacturing” report, which provides a look ahead to 2023 and explores the key trends and issues that will shape the coming year for the manufacturing industry.Continue Reading Husch Blackwell Publishes Its Inaugural Legal Insights for Manufacturing Report
The American Tort Reform Foundation (ATR) released its 2022-2023 Judicial Hellhole report. In this report, the ATR ranks the eight most dangerous jurisdictions for corporate defendants and their defense attorneys. This year the hellhole ranks had a significant shake up.Continue Reading Judicial Hellhole Ranks for 2022-23 Receive a Significant Shake Up
Overview of Original Daubert Rulings
In orders issued on October 25, 2022 and November 9, 2022, U.S. District Court Judge Loretta Biggs provided some clarification to her prior expert rulings in the matter of Walls v. Ford Motor Company, et al., a mesothelioma wrongful death case pending in the Middle District of North Carolina. The plaintiff, Laura Walls, alleges that her deceased husband, Robie Walls, developed mesothelioma as a result of exposure to asbestos-containing products through his naval service and career as a truck mechanic. The plaintiff intends to call several experts to offer opinions that the defendants’ products caused the decedent’s disease. The defendants intend to introduce expert testimony that friction products made with chrysotile asbestos did not and could not have caused the alleged injury while asserting that the decedent sustained significant exposure to asbestos during his naval service. The Court took up the parties’ various Daubert challenges over two days of oral argument in June 2022 and made several significant rulings regarding expert admissibility on August 11, 2022 as discussed herein.Continue Reading Walls Closing in on Experts: Federal Court Clarifies Daubert Rulings in Asbestos Case
The President swore in a new face to the Commission for the Consumer Product Safety Commission (CPSC) on June 30, 2022. Mary T. Boyle, however, is not an entirely new face as she served in various positions within the CPSC for more than a decade. She formerly served in various leadership rules, including CPSC’s Executive Director from 2018 before being confirmed as the new Commissioner. Ms. Boyle also served as CPSC’s Senior Counselor for Policy and Planning, General Counsel, and Deputy General Counsel.Continue Reading Mary T. Boyle: New Commissioner for the Consumer Product Safety Commission
On November 4, 2022, the New York City Asbestos Litigation (NYCAL) coordinating Judge Adam Silvera issued a long-awaited decision denying defendants’ motion to sever punitive damages in asbestos claims filed in NYCAL. Defendants had urged the Court to amend NYCAL’s current Case Management Order (CMO) to indefinitely postpone plaintiffs’ ability to seek punitive damages against defendants, as was the case in the original NYCAL CMO and a procedure that had been in place for over 2 decades up until 2017.Continue Reading NYCAL Defendants Lose Requested Case Management Order Amendment Severing Punitive Damages
On January 18, 2022, the Connecticut Court of Appeals affirmed a lower court’s opinion which struck claims of negligence, premises liability and recklessness predicated on increased risk of future harm from asbestos exposure.
In Poce v. O & G Industries, Inc, 210 Conn. App. 82 (2022), plaintiffs had worked as mason laborers in a renovation project of a high school in Wethersfield, Connecticut, sued their project manager, O & G Industries, Inc (O & G), and the company that performed asbestos abatement on the jobsite, Southern Middlesex Industries, Inc. (SMI). Plaintiffs claimed that they were exposed to asbestos through the disturbance of insulation in floors, walls, and ceilings while working as mason laborers on the project. Plaintiffs alleged negligence, negligent infliction of emotional distress, premises liability, and recklessness against O & G, as well as negligence and negligent infliction of emotional destress against SMI.
None of the plaintiffs alleged that they suffered from present injury. The complaint did not allege any express physical manifestations of symptoms of any asbestos-related disease. Rather, the complaint merely alleged an increased risk of future harm. Plaintiffs claimed that their exposure to asbestos, a known carcinogen, required medical evaluations and lifetime medical monitoring, and resulted in an increased risk of contracting asbestos-related pulmonary disease and/or cancer. In addition, Plaintiffs’ claims of negligent infliction of emotional distress alleged that in exposing plaintiffs to asbestos, defendants created an unreasonable risk of causing emotional distress to the plaintiffs severe enough that it might result in illness or bodily harm.
Physical Injury Required to Establish Negligence
O & G and SMI moved to strike all counts of plaintiffs’ complaint, arguing that all of plaintiffs’ claims failed to allege actual harm. The Superior Court granted defendants’ motions to strike as to plaintiffs’ negligence, premises liability, and recklessness claims. In doing so, the Court emphasized “actual injury” as an essential element of a negligence action. The Court noted previous Connecticut opinions, such as Bowerman v. United Illuminating, a 1998 Connecticut Superior Court decision which held that asymptomatic scarring of lung tissue and the presence of asbestos fibers in the lung did not constitute “actual injury” to support a negligence cause of action, and Dougan v. Sikorsky Aircraft Corp., a 2017 Connecticut Superior Court decision which reaffirmed that Connecticut does not permit recover based on asbestos exposure alone, where plaintiffs did not allege any present clinical injury or physical symptoms of asbestos-related disease.
Plaintiffs had pointed to a 2017 Connecticut Court of Appeals decision, R.T. Vanderbilt Co. v. Hartford Accident and Indemnity Co., which had defined asbestos exposure itself as an injury. However, the Poce Court distinguished R.T. Vanderbilt, noting the question in that case was the definition of the contractual term “injury” in an insurance policy. In order to satisfy the “actual injury” element of a negligence cause of action, the Poce Court found, a plaintiff must demonstrate some evidence of actual physical harm. Because the Poce plaintiffs had failed to allege any physical manifestation of their exposure to asbestos, including presymptomatic or subclinical injuries, they failed to properly plead negligence, premises liability, or recklessness.
Physical Injury Not a Required Element of Negligent Infliction of Emotional Distress
The Superior Court denied the motion to strike as to plaintiffs’ claims for negligent infliction of emotional distress. The Court found that plaintiffs had successfully alleged the elements of that cause of action, noting that such a claim does not require the allegation or proof of a physical injury. Rather, it requires only an emotional injury that might result in bodily harm. Accordingly, the Superior Court allowed plaintiffs’ claims for negligent infliction of emotional distress against both defendants to proceed.
Superior Court’s Decisions Affirmed on Appeal
O & G and SMI filed motions for summary judgment on plaintiffs’ remaining claims for negligent infliction of emotional distress, each arguing that they owed no duty of care to the plaintiffs. The Superior Court granted summary judgment as to O & G based on a clause in O & G’s contract which specifically disclaimed any duty to discover or remove asbestos at plaintiffs’ worksite. The court denied summary judgment as to SMI.
Plaintiffs appealed the Superior Court’s decision to strike their negligence, recklessness, and premises liability claims, as well as the decision to grant summary judgment as to plaintiffs’ claims against O & G. The Court of Appeals affirmed the decisions of the Superior Court in all aspects, fully adopting the lower court’s two opinions as proper statements of the facts and applicable law as to all claims.
The Poce court’s decision reaffirms that present physical injury remains essential to sustain tort causes of action such as negligence, premises liability, and recklessness, which require proof of “actual injury.” The Appellate Court makes clear that a plaintiff may not bring an asbestos lawsuit predicated solely on an increased risk of future harm. This is consistent with other state court decisions on this issue. For example, see our blog post on a similar ruling in Illinois here: https://www.toxictortmonitor.com/2021/02/increased-risk-of-future-harm-is-not-an-injury-illinois-supreme-court-dismisses-lead-exposure-class-action-against-city-of-chicago/.
Florida’s Fourth District Court of Appeal recently held that to recover for loss of consortium under the Florida Wrongful Death Act, a surviving spouse must be married to the decedent at the time of injury—not the time of death. In so holding, the Fourth District, in Ripple v. CBS Corp., 337 So. 3d 45, 48 (Fla. Dist. Ct. App. 2022), review granted, No. SC22-597, 2022 WL 3226332 (Fla. Aug. 9, 2022), couched its opinion next to the Fifth District’s opinion in Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212, 217 (Fla. Dist. Ct. App. 2018), certifying conflict between the two decisions. As a matter of first impression, the Fourth District also held that if a spouse were barred from recovery, because they married the decedent post-injury, then the decedent’s adult children could recover for consortium-type damages.
Richard Counter was diagnosed with mesothelioma roughly sixty years after he was exposed to asbestos. Shortly after his diagnosis, he married his long-term girlfriend and subsequently filed common law negligence and strict liability claims against multiple defendants. Counter died from mesothelioma months after filing. His estate amended his personal injury lawsuit to a wrongful death action, seeking recovery for the benefit of his newly wedded widow and adult children.
In Florida, wrongful death claims are governed by the Florida Wrongful Death Act. Fla. Stat. §§ 768.16 – 768.26. The Act simply defines survivors as “the decedent’s spouse, children,” and a few others. Fla. Ann. Stat § 768.18. Damages are available to each survivor for “lost support and services from the date of the decedent’s injury to her or his death”; but damages for loss of “companionship and protection and for mental pain and suffering from the date of injury” are available only to a surviving spouse, while similar damages for the decedent’s non-minor children are available only “if there is no surviving spouse….” Fla. Ann. Stat § 768.21.
Fourth District Court of Appeal’s Decision
The Fourth District affirmed a lower court decision granting summary judgment against decedent’s surviving spouse, who was barred from recovery based on its decision in Kelly v. Georgia-Pac., LLC, 211 So. 3d 340 (Fla. Dist. Ct. App. 2017). The decedent in Kelly was diagnosed with mesothelioma four decades after he was exposed to asbestos but married only a few years after his exposure. The Kelly court framed the issue as whether the Florida Wrongful Death Act abrogated the common law, which barred recovery for loss of consortium unless the claimant was married to their spouse at the time of injury, and affirmed an order dismissing plaintiff’s loss of consortium claim.
In Ripple, The Fourth District elaborated on its position in Kelly. It found that the Act incorporated the common law marriage before injury rule because the statute did not explicitly and clearly change the common law or was not “so repugnant to the common law that the two cannot coexist.” To the Fourth District, the common law rule merely limited the circumstances for recovery and the phrase—from the date of injury—plainly indicated the legislature’s anticipation of an existing, pre-injury marriage. Death, according to the court, was not a distinction which allowed recovery under the Act that was barred by the common law.
The Ripple court rejected the Fifth District’s Domino’s opinion. In Domino’s, the decedent was injured in a car accident, immediately became a quadriplegic, filed a lawsuit, got married, and died—all within roughly one year of his injury. There, the Fifth District relied on the common meaning of survivor instead of the common law marriage before injury rule. For it, a survivor was determined at death and the language “from the date of injury” determined not who could recover, but what could be recovered—loss of consortium damages measured from the date of injury.
On a separate issue, the Fourth District held that judicial estoppel prevents a party from prevailing on a specific argument in one phase of the proceedings only to use a contradictory argument in another phase. The court rejected the notion that a spouse could be disqualified from being a surviving spouse under § 768.21(2) only to be characterized as a surviving spouse under § 768.21(3), which provided consortium-type recovery for adult children only in the absence of a surviving spouse.
The Supreme Court of Florida is poised to decide the issue. It will undoubtedly attempt to avoid policy reasoning as it decides statutory interpretation. If the Act, when providing surviving spouses consortium-type damages “from the date of injury,” does not directly conflict with the common law, then the legislation will be found to lack clearly expressed intent to override the marriage before injury rule. If the language is ambiguous, then the Florida Supreme Court will look to legislative history and other tools of statutory construction to decide whether the meaning of the statute can coexist with the common law.
Strong arguments exist on both sides of the issue. The plain and ordinary meaning of surviving spouse seems well accepted, and language providing recovery from a date simply suggests from that point forward. Furthermore, the Act’s language may simply explain that consortium-type damages begin on the date of injury and not the date of death, the only other moment mentioned in the Act. Alternatively, the Florida Wrongful Death Act may be found to account for latent injuries that went unconsidered by the common law, which largely pre-exists American toxic tort law and its associated latent injuries.
Counsel throughout the United States should take note of the Supreme Court of Florida’s upcoming decision on the common law marriage before injury rule, especially in states with similar wrongful death statutes. Beyond that, Ripple serves as a reminder for carefully crafting arguments that are consistent throughout different phases of litigation.
In a 4-3 decision, the Iowa Supreme Court issued an opinion that significantly narrowed Iowa’s new statutory asbestos defense – holding the defense only protects asbestos product defendants who did not manufacture or sell the asbestos in question. See Beverage v. Alcoa, Inc., No. 19-1852, 2022 WL 2182351 (Iowa June 17, 2022). This statutory asbestos defense was part of Iowa’s 2017 tort reform.
Where a case is filed can sometimes be as important as the facts of the case itself. The Washington Court of Appeals, recently revisited specific jurisdiction in the context of consent in Bradley v. Globus Medical, Inc.
In February 2021, Rachel Bradley filed suit in Spokane County Superior Court against Globus Medical, Inc. alleging that hardware and screws designed by Globus were defective and caused her injury after being implanted in her body during surgery. Globus filed a motion to dismiss based on lack of personal jurisdiction, arguing that Ms. Bradley failed to assert any facts supporting general or specific jurisdiction., Globus maintained that Ms. Bradley alleged no facts supporting any purposeful minimum contacts with Washington or that her injuries related to those contacts. Ms. Bradley argued in response that because Globus was authorized to do business in Washington and had a registered agent, specific jurisdiction was satisfied. The lower court granted Globus’ motion and Ms. Bradley appealed.
The Washington Court of Appeals, reviewing the case de novo, upheld the trial court’s ruling, noting that under Washington law, a defendant does not consent to jurisdiction simply by registering to do business in Washington. Rather, for the court to have personal jurisdiction: (1) purposeful ‘minimum contacts’ [must] exist between the defendant and the forum state; (2) the plaintiff’s injuries [must] ‘arise out of or relate to’ those minimum contacts; and (3) the exercise of jurisdiction [must] be reasonable, that is, that jurisdiction be consistent with notions of ‘fair play and substantial justice.’” At a minimum, Plaintiff is required to provide a prima facie demonstration of the first two requirements and Ms. Bradley did neither here. Her complaint did not allege that Globus purposefully availed itself of the privilege of conducting activities in Washington and did not allege that her claim arose out of or related to Globus’ contacts with Washington.
Ms. Bradley did not allege her surgery took place in Washington or that the hardware or screws allegedly designed by Globus “came to be used in her surgery through some deliberate reaching out into Washington.” The fact Globus is registered to do business in Washington “ does not fill that gap” nor does it mean a corporation “has activities in Washington or any presence beyond its registered agent.”
This decision is significant in affirming that personal jurisdiction in Washington does not automatically exist simply by registering to do business in the state.
The case is Bradley v. Globus Med., Inc., No. 38490-0-III, 2022 WL 2373441, at *1 (Wash. Ct. App. June 30, 2022).
The Advisory Committee on Civil Rules of Federal Judicial Conference recently approved several amendments to Fed. R. Evid. 702 intended to quash lackadaisical and flaccid Daubert gatekeeping. Continue Reading Judges, Be the Gatekeepers 702 Needs you to Be