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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.

We previously blogged on the Pennsylvania Supreme Court’s decision in Mallory v. Norfolk S. R.R. Co., Civ. A. No. 3 EAP 2021, Slip. Op. J-49-2021 (Pa. Dec. 22, 2021),  which put an end to general jurisdiction based solely on registration to do business in the Commonwealth.  Since the issuance of this landscape-shifting decision, courts in the Commonwealth have seen a flurry of ”Mallory motions” coming in all shapes and sizes. So far, plaintiff’s response has been uniform – Mallory’s holding is limited and does not apply to defendants whose dealings are entirely “interstate” and who have no “footprint” in the Commonwealth. This attempt to minimize the impact of Mallory was recently rejected by the Philadelphia Court of Common Pleas in Emery v. U.S. Steel Corp. giving a glimpse of hope to foreign defendants haled to court in Pennsylvania.

The American Tort Reform Foundation (ATR) published its 2021-2022 Judicial Hellholes Executive Summary. The report highlights the most prominent jurisdictions across the United States known for allowing innovate lawsuits, welcoming litigation tourism, and expanding civil liability.

The 2021-2022 Judicial Hellholes

The ATR’s top judicial hellholes are:

(1) California. “The Golden State” is back in the No. 1 Judicial Hellhole spot due to appellate courts holding e-commerce companies strictly liable for products sold on their sites, “baseless” Prop-65 lawsuits, “frivolous” Private Attorney General Act (PAGA) and American with Disabilities Act (ADA) claims, and the AG promoting an “expansive view” of public nuisance law.

(2) New York. “The Empire State” is right behind California for having one of the worst legal climates in the nation. The ATR notes this is due to New York’s unmatched number of “no-injury” class actions, ADA lawsuits, and immense asbestos litigation docket.

On December 22, 2021, the Supreme Court of Pennsylvania issued a decision in Mallory v. Norfolk S. R.R. Co., Civ. A. No. 3 EAP 2021, Slip. Op. J-49-2021, at 33, 44 (Pa. Dec. 22, 2021) that is sure to become the pillar of jurisdictional challenges going forward. The Court unanimously held that general jurisdiction does not exist solely on the basis of a company’s registration to do business in Pennsylvania.

On November 9, 2021, the Oklahoma Supreme Court set aside a $465 million verdict against Johnson & Johnson (J&J) in State ex rel. Hunter v. Johnson & Johnson, 2021 OK 54. In 2017, the State of Oklahoma sued three opioid manufacturers, including J&J, alleging the companies deceptively marketed opioids in the state. At trial, only J&J and the claim of public nuisance remained. At the end of a 33-day bench trial, the district court ordered J&J to pay $572 million, representing funding for one year of Oklahoma’s opioid abatement plan. Our previous report on the district court award can be found here. Due to a calculation error in the original award, the district court award was subsequently reduced to $465 million. According to the district court, J&J was liable under Oklahoma’s public nuisance statute for conducting false, misleading, and dangerous marketing campaigns about prescription opioids.

The Iowa Court of Appeals recently affirmed summary judgment for both a premises owner and an installer of asbestos products pursuant to Iowa Code 686B.7(5) (2017), which provides that a defendant in an asbestos action “shall not be liable for exposures from a product or component part made or sold by a third party.”  Beverage v. Alcoa, Inc., No. 19-1852, slip op. (Iowa Ct. App. March 17, 2021).  The Plaintiffs brought suit on behalf of Mr. Beverage, who worked as an independent contractor at an Alcoa aluminum plant around asbestos-containing insulation installed by IITI.  Alcoa and IITI, the only two defendants, filed motions for summary judgment claiming that Section 686B.7(5) provided them with immunity from Plaintiffs’ lawsuit.  The district court granted both Alcoa and IITI’s motions for summary judgment.  On appeal, Plaintiffs argued that the district court erred in granting immunity to Alcoa and IITI by incorrectly interpreting Section 686B.7(5).

Mallet, legal code and scales of justice. Law concept, studio shotsLitigators have closely followed a recent decision that has provided needed guidance and has reshaped how asbestos liabilities are apportioned in strict liability cases. On February 19, 2020, the Pennsylvania Supreme Court issued its long-awaited opinion in Roverano, et al., v. John Crane, Inc., et al., 6 EAP 2018 (Pa. Feb. 19, 2020), which held that in strict liability asbestos cases, damages are to be split per capita among remaining defendants, and that the Fair Share Act under 42 Pa.C.S. § 7102 does not require percentage apportionment of liability in strict liability cases. The decision further held that bankruptcy trusts may be included on the verdict sheet to bring more parties to the table for the purpose of apportioning liability only.

In August of 2019, following a seven-week bench trial, Judge Thad Balkman of Oklahoma’s Cleveland County District Court found biotech and healthcare company Johnson & Johnson responsible for sparking the state’s opioid epidemic through use of “disingenuous marketing schemes” used to drive the sale of its prescription painkillers. This ruling, which ordered Johnson & Johnson to pay the state of Oklahoma $572 million dollars in damages, resulted in the first ever successful lawsuit brought by the state against a defendant drug manufacturer stemming from a sole cause of action: public nuisance.

In Thomas-Fish v. Aetna Steel Prod. Corp., plaintiff Helen Thomas-Fish alleged her husband Robert Fish had died from mesothelioma caused by exposure to asbestos through his work at a shipbuilding yard in New Jersey in 1960. No. 17-CV-10648 RMB/KMW, 2019 WL 2354555, at *1 (D.N.J. June 4, 2019).  Plaintiff brought a wrongful death claim against various defendants including Sonic Industries (“Sonic”), an alleged joiner contractor that installed asbestos-containing paneling during shipbuilding. Sonic was incorporated in California in 1966, six years after the alleged exposure in this case. In addition, Sonic maintained its principal place of business in Connecticut. Accordingly, Sonic was not subject to general jurisdiction in the state of New Jersey. Instead, Plaintiff asserted that Sonic was subject to specific jurisdiction in New Jersey through an unnamed predecessor entity under a successor liability theory. Defendant Sonic filed a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).