California High Court to Decide Duty in Take Home Asbestos Exposure Cases

In recent years, there have been a growing number of lawsuits in which it is alleged that someone developed mesothelioma as a result of exposure to asbestos fibers transported into the home by a relative.  An increasing number of courts have held that a premises owner owed no duty as a matter of law to the relatives and spouses of the worker who brought home asbestos. See, e.g., Bootenhoff v. Hormel Foods Corp., CIV-11-1368-D (W.D. Okla. Aug. 1, 2014) (finding premises owner had no duty to spouse and granting motion for summary judgment).  In California, there is a split on the issue, and it is anticipated that the California Supreme Court may soon resolve the split.

Campbell – No Duty to Take Home Exposure Plaintiffs

In May of 2012, the California Court of Appeal, Second District, Division 7, held that a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business. Campbell v. Ford Motor Co., 206 Cal. App. 4th 15, 34, 141 Cal. Rptr. 3d 390, 405 (2012), as modified on denial of reh’g (June 19, 2012).

Kesner- Manufacturer has Duty to Take Home Exposure Plaintiffs

In May of 2014, the California Court of Appeal distinguished Cambpell and held that, while a premises owner has no duty to take home exposure plaintiffs, manufacturers do. Kesner v. Superior Court, 171 Cal. Rptr. 3d 811, 819 (Ct. App. 2014) review granted and opinion superseded sub nom. Kesner v. S.C. (Pneumo Abex LLC), S219534 (Cal. Aug. 20, 2014) (“in holding that a duty exists in this case, we emphasize the obvious—that the existence of the duty is not the same as a finding of negligence.”)

HaverCampell Was Correctly Decided

In June of 2014, the California Court of Appeal, Second District, Division 5, noted that “Campbell was correctly decided” and affirmed the trial court’s dismissal based on a premise owner having no duty to spouses and relatives in take home exposure cases.   Haver v. BNSF Ry. Co., 172 Cal. Rptr. 3d 771, 775 (Ct. App. 2014), review filed (July 15, 2014), review granted and opinion superseded sub nom. Haver v. BNSF R. Co., S219919, 2014 WL 4100140 (Cal. Aug. 20, 2014). In Haver, the court acknowledged the Kesner opinion, but noted that the issue before it involved only a claim of premises liability and that “Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action.”  Id.

The California Supreme Court is set to take up the issue, and we are anxious to see how the issue is resolved.

(Hat Tip: @Legal_Alerts and Sedwick).

A Psalm for Google

Admittedly, there is almost nothing I can do on the Internet without Google.  I Google everything.  Sometimes, when I’m feeling lazy, I Google-search for websites even though I know their addresses by heart.  One of my new favorite things is to watch movies at home—especially old movies—with my smartphone in hand.  That way, I can Google the backgrounds of the actors and actresses or the origin of some obscure cinematic reference with ease.  It’s like a do-it-yourself Pop-Up-Video.

In any event, I love Google.  It does a lot for me.

This past weekend, it even got me entangled in an Oklahoma class-action lawsuit.  Here’s how it happened.

For the past couple of months, my TV has been behaving oddly. When you turn it on, it makes a lot of clicking sounds and cycles through on-and-off for about 30 seconds before it actually, finally, turns on.  It’s annoying, but not to the point of ruining my day, so I haven’t done anything about it.  Last week the missus and I were planning to watch something she likes and I hate — “Dance Moms,” “Grey’s Anatomy,” I can’t remember — when the TV began the aforementioned clicking/cycling routine.

At this point, my lovely wife suggested that I Google these symptoms.  And I promptly disregarded her.

Like Google can tell me why my TV is making strange noises.  Please!  It doesn’t know everything.

Oh, ye of little faith.

As whatever godawful show my wife was watching droned on, I needed a distraction.  I navigated to Google and attempted to diagnose my TV’s illness.  It would at least pass the time.  I went to the search bar, typed in the name of the manufacturer of my TV and the word “clicking,” and hit “Search.”  Almost instantaneously, Google returned dozens of sites talking about TVs like mine suffering from the same clicking-and-cycling issues.  Apparently, there’s a defect in some capacitors that causes this problem.  More importantly, for my own selfish interests, someone else had already litigated this issue on behalf of a class of plaintiffs—to which I happened to belong—and obtained a settlement that will provide me with a free repair or replacement.  Now that’s what I’m talking about!

This is fascinating on a couple of levels.  Literally, in the span of one minute, I went from being resigned about the weirdness of my TV’s clicking and cycling to hopeful about the free repair or replacement coming my way.  The only thing that separated those two perspectives was the fact that I ran a simple Google search.  Which was free.  As opposed to the value of the benefit that I received.  If I were to have paid for my own repair, it would have been at least $50.  Or, if I had bought another TV, it would have been 20-30 times that.  Perhaps the most important observation is that, in the not-too-distant past, this would have been impossible.  I mentioned previously that the class action settlement was obtained in Oklahoma state court.  Without Google, it’s likely that I never would have learned of the litigation or the settlement.  After all, the manufacturer had no way to know that I owned one of its TV’s and that I was experiencing a problem.  And I had no way to know that the problem I was experiencing was common to a lot of other people.  Google therefore supplemented a tremendous information gap in a way that was ultimately beneficial for me, the almighty consumer, but also—strangely—for the manufacturer.  Rather than talk trash about my TV and its clicking-and-cycling issues, I can talk about how the manufacturer fixed my TV and extended its useful life for several more years.  By informing me about the class action settlement and the opportunity for repair, Google was protecting the goodwill of the TV’s manufacturer in the eyes of its customers.  And I’m likely to buy another TV from that manufacturer in the future.

There’s no question that the Internet has been a transformative innovation, certainly with regard to economic issues.  But it also holds the potential to be transformative with regard to legal interests.  In the globalized world, regardless of where products may move geographically, it is now possible for individual owners to express their frustrations about those products in a virtual public environment, to become connected with each other’s opinions and experiences by simply by surfing the Internet, and incredibly, to opt in remotely to litigation and/or settlement from the comfort of their couch as a consequence of running a simple Google search on a random Thursday night.

Baseball Bat Manufacturer Has Good Day in Court, At Last

Over the last few years, Hillerich and Bradsby, the manufacturer of Louisville Slugger baseball bats, has endured much litigation.  In 2009, a Montana jury awarded a family $850,000 after their son was killed by a ball struck by the aluminum bats.  Last month, the company settled the claims of a New Jersey teenager severely injured in a similar accident for $14.5 million.  The multi-million dollar settlement came on the heels of another $951,000 verdict from an Oklahoma federal jury.

Things weren’t looking too good for the bat manufacturer, to say the least.

In a twist of fate, however, an Oklahoma court tossed the $951,000 jury verdict just days after the massive New Jersey settlement.

The jury had awarded a 15-year old boy and his parents nearly $1 million after he was struck in the face by a line drive, causing severe facial injuries.  In reaching its decision, the jury determined that the aluminum bat was defective and unreasonably dangerous because it could hit a ball faster than its wooden counterparts – a condition for which Louisville Slugger failed to warn.  Moreover, it determined that the boy did not assume the risk of injury when electing to play baseball.

On Hillerich’s post-trial motions, the court held that there was “no basis for a reasonable jury to find that the bat had ‘dangerous characteristics.’” Certainly an aluminum bat can create increased bat speed, but does this necessarily mean it is more dangerous than its wooden counterpart?  As Forbes writer Dan Fisher, noted:

[T]he experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball.

Apparently, the plaintiff also never established that the bat - and not some other extraneous factor (i.e. a good hitter) - was to blame for the injuries.  As the judge noted, a “verdict may not be based on this kind of conjecture.”

The theory behind these Louisville Slugger suits is an interesting one.  Undoubtedly, an expert of some sort can testify as to the increased bat speed created by aluminum bats.  We imagine, however, that even a well-struck ball by a wooden bat could cause facial injuries.  The only way to prevent such injuries is to use baseball equipment manufactured exclusively by NERF.  Unfortunately, sport and injury often go hand-in-hand regardless of the equipment used.

The more intriguing question may be the tremendous discrepancy between the jury awards and the multi-million dollar New Jersey settlement.  While every case and jury is different, damages may not be the issue – the “smallest” verdict involved a child that was killed.  As Ted Frank at the  Point of Law blog notes:

The fact that Oklahoma caps noneconomic damages surely made a difference here: without the threat of jackpot justice, the defendant could defend itself without fear of disproportionate liability.

A factor, to be sure.

"Made in China" References May Have Been Prejudicial to Jury

An important reminder: When Plaintiff’s counsel attempts to inject prejudicial statements into litigation, object. A failure to do so can be perilous indeed. In Wicklund v. Pacific Cycle, L.L.C., No. 08-CV-486-GKF-FHM, 2010 WL 3368924 (N.D. Okla. August 23, 2010), Judge Frizzell of the Northern District of Oklahoma considered whether repeated references by the plaintiffs’ attorney to the Chinese origin of the alleged defective product, a bicycle, was grounds for a new trial or relief from judgment. Counsel for the defendant, Pacific Cycle, argued that the plaintiffs’ attorney “repeatedly, deliberately and impermissibly played to the perceived anti-Chinese prejudice of the jurors, thereby irrevocably tainting the verdict.”

For instance, the plaintiffs’ attorney said, “Pacific Cycle has elected to buy cheap Chinese products rather than buying products made in the U.S.” In his closing, the attorney said that “‘Made in China’ are the three words that unfortunately have become somewhat of a concern in this country. Finally, he said:
You know, businesses that have chosen to export jobs to China for cheap labor, for cheap goods, I mean from a business side it’s understandable, but when you choose to do that, if you get quality control issues you have to pay when people get harmed from those. And that’s all that this case is basically about.

The jury awarded the plaintiffs $1,100,107.06 in damages, which did not include any punitive damages but represented $1 million over and above the actual damages, ostensibly for pain and suffering.
The court ruled that it could not award a new trial or relief from judgment because defense counsel had not preserved the issue by objecting at the appropriate times. Nevertheless, we find it a helpful reminder as to what is and is not permissible to state to a jury. A new trial may be granted when, as the court noted, “remarks about a case are made which the court believes may have influenced the jury to the prejudice of either party.” The test is “whether or not improper remarks made it reasonably probable that the verdict was influenced by prejudicial statements.”
The design and manufacture of products continues to become a more international endeavor; the “Japanese” car could be made in the next state, with parts from Germany, the United States, and France. When trying a products case, listen carefully for arguments and remarks which may play to perceived prejudices by members of the jury, and object at the appropriate times to call the court’s attention to the tactic and to preserve the issue on appeal.

A Wrinkle in the Love Affair with Botox?

Usually, a $15 million dollar verdict tends to raise my eyebrows. Therefore, in light of the recent decision in Dr. Sharla Helton v. Allergan Inc., CJ-2009-2171, District Court, Oklahoma County, Oklahoma, it is a good thing that I still have the ability to do that. However, the Plaintiff in that case, Dr. Sharla Helton of Oklahoma City, did not have that ability, thanks to her wrinkle-smoothing Botox injections. Rendered on May 11, this sizable jury verdict came following a three-week trial against Allergan Inc., a Botox manufacturer, after the Plaintiff, who was 47 years old, claimed that she suffered years of pain and weakness after receiving Botox injections.

The jury found Allergan Inc. negligent because the label on the product did not include enough information about potential side effects. The Plaintiff blamed Botox for causing double vision, breathing difficulties and years of constant pain in her hands, arms and feet. She further claimed that the disabling side effects eventually led her to sell her medical practice and step down as the medical director for an Oklahoma City hospital. According to the Plaintiff, the verdict was the “first set in making sure the public is aware of the actual risks of Botox. It’s a stepping stone to protect the public from what the company is hiding.”

So, what is the company hiding you might ask about the dangers of Botox? Nevermind that the official scientific name for Botox – Botulinum Toxin Type A – actually contains the word “toxin.” It is a neurotoxic protein. Also nevermind that Botulinum toxin has been identified by the CDC (Centers for Disease Control & Prevention) as the most lethal substance known to man. Potential use of the toxin as a biological weapon has been explored since the early 1900s! Fortunately for us, the toxin just doesn’t have the stability and capacity to be disseminated by open air over a large area. And Botox is, of course, a variation of the word “Botulism,” which I would venture to guess would be more recognizable to the general public at large.

With that said, how could it possibly be foreseeable to the Plaintiff that there could be some risk to injecting Botox into the body? Don’t get me wrong. I am certainly not against Botox therapies, whether for cosmetic use or particularly for its more valuable use to the benefit of patients with muscle and nerve disorders. Maybe my lack of sympathy stems from the fact that the Plaintiff in this instance was actually a doctor (albeit not a cosmetic specialist, but an obstetrician and gynecologist) and presumably would have greater insight into the medical procedure that she selected or, at a minimum, the wherewithal and resources to avail herself of the risks. Or, maybe it was also because it was not the first, second, third or fourth injection over two years that caused the problem. It was the fifth injection that Plaintiff claims did the trick and gave her botulism.

It is interesting that this verdict in a cosmetic use case follows a successful defense win by Allergan Inc. in a case arising from the death of a 7 year-old girl, who suffered from cerebral palsey and used the injections to relax clenched limbs. This is but one example that the sympathy factor does not always win the day. In any event, we have not heard the last of litigation against Botox. At the time that the Plaintiff’s case went to trial, there were 14 plaintiffs standing in line behind her. Allergan has, of course, vowed to appeal. Whatever the ultimate outcome of this or other cases, for the meantime, I will stick to the Pearl Cream.

What In The Name Of Subrogation, Equitable Indemnification and Contribution Is Going On Here?

Often, when talking to clients, a practitioner will interchangeably use words like “subrogation,” “contribution,” or “indemnification” to console a client about a loss that they are facing with a pending lawsuit or claim. However, these words are not as synonymous as some think they are. Although each term stands for the proposition of “don’t worry, we’ll get somebody else to help pay for this,” courts will carefully scrutinize whether each claim is viable in a particular situation.

Consider the recent decision in White Elec. Servs., Inc. v. Franke Food Servs., No. 09-CV-0504-CVE-PJC, 2010 WL 1542575 (N.D. Okla. Apr. 15, 2010). The case arose from an underlying lawsuit brought by Sarah Austin against an electrical contractor, White Electrical Services, Inc. Austin alleged that she received an electrical shock when she attempted to plug in a food preparation table while working at McDonald’s. Id. at *1. White settled with Ms. Austin and then brought suit against Franke, the alleged manufacturer of the food preparation table. Id.

Franke was not a party to the underlying lawsuit filed by Ms. Austin. Id. White alleged that the table was defective and that the table caused Ms. Austin’s injuries. As such, White sought to recover all funds paid to Ms. Austin from Franke. White asserted multiple claims against Franke including products liability, contractual indemnity, subrogation, equitable indemnity and contribution. Id. at *2. White apparently waived its claims of product and contractual claims. The court found that since White had not used the term “subrogation” in its complaint, it did not assert a subrogation claim. Id. When dealing with the claim of equitable indemnity, the court’s analysis was quite sound. That is, the court found that the right to indemnity is based upon a legal relationship between the parties. White asserted that since Franke was strictly liable to Austin, it was entitled to indemnity. The court disagreed and stated that in a products situation, a distributor may bring a claim for indemnification against the manufacturer of a defective product based upon the manufacturer’s duty to the distributor. Id. In this case, White was not a seller of the allegedly defective table. White was not in the chain of distribution whatsoever. The court held that a products liability theory does not supply the required legal relationship between White and Franke. Id. As such, White’s claim for equitable indemnification failed as a matter of law.

Finally, the court analyzed White’s claim for contribution and found that contribution “represents a sharing of joint and several liability by providing for proportional reimbursement from other parties who are liable to the plaintiff.” Id. at *3. Since there was at least a possibility that both White and Franke could have been jointly and severally liable to Ms. Austin, the court allowed for White’s contribution claim to go forward. The moral of this case is that practitioners must exercise caution when using seemingly synonymous terms in any document filed with the court.