toxic tort

MN outline

On May 20, 2023, the Minnesota legislature amended Minnesota’s Survival of Claims and Wrongful Death statutes. The amendments extend a potential-defendant’s liability by: (1) allowing trustee-plaintiffs to maintain claims on behalf of a deceased party, that historically could not be brought after death; and (2) allowing trustee-plaintiffs to potentially recover for all damages allegedly suffered by the decedent, not just economic harms stemming from and related to the death of the deceased party.

On May 18, 2023, the Illinois General Assembly passed House Bill 219 (Bill) which, if signed by Governor Pritzker, would allow punitive damages in wrongful death cases. Illinois law does not currently permit punitive damages for recovery, only allowing compensatory damages. Suits against state and local government officials will still be exempt from damages if the legislation passes.

On March 16, 2023, the New York City Asbestos Litigation (NYCAL) Court denied Defendant Kaiser Gypsum’s post-trial motions following a $15M plaintiffs’ verdict in the matter of Munir Seen, New York Supreme Court, New York County, Index No. 190225/2018. Kaiser Gypsum moved for: 1) a judgment notwithstanding the verdict; 2) an order for a new trial; or, alternatively, 3) a remittitur of what Kaiser Gypsum called a clearly excessive verdict. All were denied.

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.

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.

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.

An Alameda County Judge set a hearing on a motion for protective order in a pending asbestos case in which the plaintiffs sought to prevent the defendants of unapproved genetic testing. In the case of John C. Lohmann and Suzanne L. Lohmann vs. Aaon, Inc., et al., the plaintiffs filed suit in Alameda Superior Court against several defendants alleging that Mr. Lohmann developed mesothelioma as a result of his career working in the refrigeration maintenance field from 1970 to 2021 in California. The defense experts sought to use the plaintiff’s medical data for non-litigation purposes without the plaintiffs’ permission because they believed the information will advance science and no pathologist/associated scientist would ethically agree to limitations. As part of the case, defense counsel moved for discovery of Mr. Lohmann’s original pathology material and subpoenaed the providers. The court ordered production of those materials. The plaintiffs contend that production of pathology and genetic material in litigation does not permit outside, personal research and analysis. Multiple defendants, on the other hand, argue that evidence produced in litigation enters the public domain and is not protected by discovery law.

On June 1, 2021, the United States Supreme Court declined to hear Johnson & Johnson’s (J&J) appeal to overturn a $2.12 billion dollar damages award to 22 female plaintiffs who alleged their ovarian cancer was caused by J&J’s talcum powder products. This is a significant setback for defendants in defending consolidated multi-plaintiff mass tort trials and a juries ability to award large punitive damage awards.

HB 3360, vetoed by Gov. Pritzker on March 25, would have imposed 9 percent prejudgment interest on personal injury and wrongful death claims in Illinois. This is the governor’s first bill rejection in two years and his ninth veto since taking office.

HB 3360’s pathway to Gov. Pritzker’s desk was unusual: it was passed quickly and quietly during the Illinois legislature’s January lame duck session, where lawmakers worked through the night to get the bill finalized. The governor was expected to sign the bill as soon as it passed, but, surprisingly, a wait ensued after it reached his desk, suggesting that the bill would require some work. See our prior analysis of HB 3360’s provisions.