A breast cancer lawsuit based on trace levels of benzene in aerosol antiperspirant was dismissed with prejudice by a federal judge in Louisiana, because causation was not sufficiently pled. In particular, the plaintiffs failed to plead that (1) the plaintiff used a product that actually contained benzene and (2) benzene exposure can cause the plaintiff’s specific type of cancer. See Rooney v. Procter & Gamble Co., No. 22-11654, 2023 WL 1419870 (E.D. La. Jan. 31, 2023).Continue Reading Lawsuit Based on Benzene in Aerosol Antiperspirant Dismissed with Prejudice
Court of Appeals of Louisiana Affirms Second 8-Figure Verdict of 2023
In a move that further cements Louisiana’s place as the 7th Ranked Judicial Hell Hole of 2023, the Court of Appeals of Louisiana affirmed a second 8-figure verdict of 2023 for a mesothelioma personal injury case in Strauder v. Shell Oil Co., 2023 WL 2009251 (La. App. 4 Cir. 2/15/23). The first affirmation came in Pete v. Boland Marine, 2023 WL 110608 (La. App. 4 Cir. 1/5/23). Included within the $10.4 million total verdict in Strauder was a $2.75 million award to each of Decedent’s two adult children for wrongful death damages.Continue Reading Court of Appeals of Louisiana Affirms Second 8-Figure Verdict of 2023
Louisiana Appellate Court Affirms $10.35M Verdict Based on Take-Home Asbestos Exposure
On January 5, 2023, a Louisiana appellate court issued a divided opinion that addressed the nature of take-home asbestos claims. Pete v. Bolan Marine & Manufacturing Co., LLC, 2021-0626 (La. App. 4 Cir. 1/5/23), 2023 La. App. LEXIS 2* (La. Ct. App. Jan. 5, 2023). Despite an order limiting Plaintiff’s ability to rely on take-home exposure in proving his claims, a Louisiana appellate court affirmed a jury award of $10.35M in finding that Plaintiff’s take-home exposure was a substantial contributing factor in the development of his mesothelioma.Continue Reading Louisiana Appellate Court Affirms $10.35M Verdict Based on Take-Home Asbestos Exposure
Ohio Supreme Court Decision Potentially Alters the Application of Damages Caps in Ohio
On December 16, 2022, the Ohio Supreme Court issued a ruling in Brandt v. Pompa that may call into question the applicability of Ohio’s non-economic damages cap in future tort actions. Under tort reform enacted in Ohio in 2005, R.C. 2315.18 (B)(2) expressly limits non-economic damages to $250,000, or an amount equal to three times the economic loss for a maximum of $350,000 per plaintiff, with a $500,000 limit per occurrence. The Court had previously ruled the cap constitutional on its face. In Brandt, the Supreme Court found the non-economic damages caps unconstitutional as applied to a victim of childhood sexual assault who suffered lengthy and severe psychological trauma.Continue Reading Ohio Supreme Court Decision Potentially Alters the Application of Damages Caps in Ohio
Husch Blackwell Publishes Its Inaugural Legal Insights for Manufacturing Report
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
Judicial Hellhole Ranks for 2022-23 Receive a Significant Shake Up
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
Walls Closing in on Experts: Federal Court Clarifies Daubert Rulings in Asbestos Case
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
Mary T. Boyle: New Commissioner for the Consumer Product Safety Commission
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
NYCAL Defendants Lose Requested Case Management Order Amendment Severing Punitive Damages
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
Connecticut Court Affirms Increased Risk of Contracting Asbestos-Related Disease is Not an Injury
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/.