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.

At CPSC, Ms. Boyle led various initiatives to protect U.S. consumers from hazardous and dangerous products, with an emphasis on infant sleep safety and high-powered magnets. She specifically led efforts in mandating companies to issues mandatory recalls on products that create the risk of high-powered magnet ingestion.

Confirmation:

The Senate confirmed Ms. Boyle on June 22, 2022, by a majority vote along partisan lines. Her term runs until October 2025, and this is the first time the Commission has all five seats filled since 2019.

Ms. Boyle’s confirmation process was held up for about a year in the Senate Committee on Commerce, Science, & Transportation amid Republican concerns regarding her role in CPSC’s unauthorized disclosures of company and consumer information in 2019. Additionally, Republicans were concerned about her role in pulling CPSC staff from port surveillance operations during the pandemic. This prompted President Biden to nominate Ms. Boyle twice, first in 2021, and subsequently, in a second nomination in January 2022.

CPSC’s Top Three Challenges:

Ms. Boyle believes the top three challenges facing the agency are: (1) Import and E-Commerce Regulation; (2) Strengthening Compliance and Enforcement; and (3) Improving Data Analysis and Hazard Identification.

Import and E-Commerce Regulation

Ms. Boyle asserts that the CPSC’s ability to detect and prevent entry of dangerous products into the US will continue to be a great challenge for the agency. She explains the pre-pandemic and the pandemic itself solidified consumer reliance on online shopping, which subsequently created “a large volume of low-value, potentially noncompliant or hazardous shipments of foreign-manufactured products” that “are being shipped directly to consumers.” Ms. Boyle states that this problem requires a “multi-pronged approach,” including voluntary corrective action and, if necessary, mandatory recalls through litigation.

Strengthening Compliance and Enforcement

In collaboration with efforts to stop noncompliant products from entering the US at ports and eCommerce hubs, CPSC will be challenged to execute a comprehensive compliance and enforcement program “to ensure defective products not subject to regulation are removed through recalls or other corrective actions.”

Improving Data Analysis and Hazard Identification

Ms. Boyle maintains that the voluminous amount of data that CPSC receives each year is a significant barrier to the agency’s ability to “identify hazards and hazard patterns,” and inhibits the CPSC’s central mission to protect consumer from unreasonable risks of injury. She also raises that the CPSC will continually be faces with the challenge of keeping pace with technology advances. Fortunately, during Ms. Boyle’s time as Executive Director, she developed and supervised agency efforts to identify hazards by implementing a new, user-friendly online Fast-Track reporting portal that she intends to continue to improve upon.

Background:

Prior to joining CPSC, Ms. Boyle enjoyed a long career both in the public and private sector. Ms. Boyle worked for the Office of Congressman Stephen J. Solarz (D-NY) in various capacities, including as a staff assistant for the Subcommittee on Asian and Pacific Affairs. Ms. Boyle also served as a Grants Administrator and Affordable Housing Coordinator for the City of Gaithersburg, Maryland, developing affordable housing programs. In the private sector, Ms. Boyle worked at Paul Hastings LLP, where she focused her practice in class action employment litigation. Finally, for a decade she served as the primary caregiver for her three children.

She received her Bachelor of Arts degree in English from Georgetown University, and obtained her J.D. from the University of Virginia School of Law. She currently is licensed in both Maryland and District of Columbia Bars.

Written with the assistance of Talia Wolkowitz, a summer associate in the Husch Blackwell LLP St. Louis, Missouri office.

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

We previously reported on Nemeth v. Brenntag North America, et al., 38 N.Y.3d 336 (Ct. App. NY Apr. 26, 2022), a landmark case in which the New York’s Court of Appeals reversed a $16,500,000 asbestos jury verdict because the plaintiff’s experts failed to present sufficient evidence to prove that a talc-based cosmetic powder caused the decedent’s peritoneal mesothelioma.  The result felt perhaps too good to be true. But since Nemeth’s hammer came down, four similar decisions from none other than the First Department followed within a mere six months.

Continue Reading Nemeth Is the Law – Causation in NYCAL Talc and Asbestos Cases

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.

Background

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.

Insights

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.

Background

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.

Conclusion

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.

Continue Reading Asbestos Defendants Beware: Iowa’s Tort Reform Was Apparently Weaker Than We Thought

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).

Mallory v. Norfolk S. R.R. Co., Civ. A. No. 3 EAP 2021, Slip. Op. J-49-2021 (Pa. Dec. 22, 2021) may be one of the most cited decisions in Pennsylvania state courts these days, as defendants file an array of motions seeking dismissal of their clients for lack of personal jurisdiction in cases where the only nexus between the defendant and Pennsylvania is the defendant’s registration to do business in the Commonwealth. We previously blogged on this issue here and here, and we were hopeful that the bold statement made in Mallory would clarify the previously murky law on point, but the battle regarding consent jurisdiction rages on.

Continue Reading General jurisdiction by consent continues to divide as the Supreme Court takes on Mallory.

New York’s Court of Appeals recently reversed a $16,500,000 asbestos jury verdict in a case brought by decedent Florence Nemeth and her husband, who alleged that Mrs. Nemeth’s cancer was caused by her use of Desert Flower Talcum Powder. In Nemeth v. Brenntag North America, et al., 2022 WL 1217464 (Ct. App. NY Apr. 26, 2022), the state’s highest court overturned the decision on the grounds that the plaintiff’s experts failed to present sufficient evidence to prove that the talc-based cosmetic powder caused decedent’s peritoneal mesothelioma.

Continue Reading If Only All Asbestos Cases Were Pending in New York… Nemeth v. Brenntag North America