Asbestos Exposure, Summary Judgment and Replacement Parts

Just this past Monday, in Massachusetts, that state’s appellate court released an asbestos causation opinion. In most states, to prove causation in an asbestos case, the plaintiff must establish (1) that the defendant’s product contained asbestos (product identification), (2) that the victim was exposed to the asbestos in the defendant’s product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). Whether or not the plaintiff had established these three elements was the issue in Morin v. AutoZone Northeast, Inc., — N.E.2d —, 2011 WL 834160 (Mass. Ct. App. March 14, 2011).

From 1952 to 1991, Geraldina Medeiros and her husband Anthony Medeiros ran Bedford Fruit Company. Fifteen years later, Ms. Madeiros died of malignant mesothelioma. Her daughter, as the administratrix of her estate, sued approximately forty (yes, that’s 40) defendants, mostly brake manufacturers which the plaintiff asserted had exposed the decedent to asbestos fibers in the course and scope of her work around the delivery truck and trailer. Although some defendants settled with the estate, many defendants moved for summary judgment on the issue of causation. After the motions were granted, the plaintiff appealed the ruling as to three defendants: AutoZone Northeast, Inc., Great Dane Trailers, Inc., and Orleans Auto Supply, Inc.

As the Court of Appeals pointed out, the main issue before it was that of causation:

Several characteristics of the generation of disease and death by asbestos inhalation have moved courts to adapt the standard of proof of causation. Those characteristics are the prolonged latency of the induced disease, the multiple points of exposure of the victim, and the indistinguishability of contributory exposures. Because the resulting injury may not emerge for years or decades after exposure, the law does not require the plaintiff or his or her witnesses to establish the precise brand names of the asbestos-bearing products, the particular occasions of exposure, or the specific allocation of causation among multiple defendants’ products. Evidence will be sufficient to reach the fact finder if it permits the reasonable inference of the presence at a work site of both the plaintiff and the defendant’s asbestos-containing product for an appreciable period of exposure.

So, the crux of any asbestos suit is this: the level of exposure to asbestos in a particular product, and the duration of the exposure. The Court of Appeals affirmed summary judgment for Great Dane Trailers, but reversed as to Orleans and AutoZone.

The case itself is pretty straightforward in terms of its analysis, but it highlights one of the hot topics in asbestos litigation right now. (Yes, apparently there are still “hot” topics in asbestos law, after more than thirty years!) The decedent’s exposure to asbestos brake pads and linings from these three defendants occurred during brake jobs where the asbestos-containing parts were replaced. What liability does an original manufacturer have for replacement parts? If we assume that the manufacturer knew that the brake parts on the truck and the trailer used to transport fruit would have to be changed, and would likely be replaced with parts containing asbestos, what liability does that manufacturer have? Watch this issue to be raised again and again in your state.

What Role Would Toxicogenomics Play in Causation

I’m sure research on the human genome will reveal some spectacular results, such as explaining why once a person reaches age 60, he feels compelled to buy bright, white tennis shoes, and to continue upping the brightness and whiteness as he ages, to the point where he will eventually wear shoes equipped with xenon headlamps. (As an aside, I wonder how the pioneers satisfied this primal urge.) Today, we give a hat tip and comment on this post by Christopher J. Robinette at the TortsProf blog discussing a word we had never heard before: toxicogenomics. Robinette cites this article from LegalNewsline discussing the advances in science and what “the study of the relationship among the cell’s genome, chemicals in the environment, and disease” could mean in the future of toxic tort. We don’t live in 1958 anymore, and we know that cigarette smoking and exposure to asbestos can cause lung disease. The question then, is, when we map an individual’s genome, how specific can we get with causation in relation to genetics and exposure to certain toxicants.

The LegalNewsline article focuses on the potential for toxicogenomics in causation, pointing to better evidence in linking exposure to disease. When science links exposure to disease, this should lead to an explosion in litigation. By the same token, science can lead to better evidence in defense of a toxicant-exposure case.

While all this remains to be seen, the impacts will not be felt merely in causation. Litigation outcomes inform future courses of action for people not parties to the action (or so we learned in torts class). Indeed, is it that hard to imagine that certain employers could require genome testing of their employees? After all, one central theme of products liability is imagining all the inane things that a potential plaintiff could do and defending design in a court. Isn’t a failure to warn claim really a “you should have protected me from myself” claim. Certainly you can see a plaintiff testifying in a case of occupational exposure that his employer should have protected him from his genetic predispositions. Employer-mandated pre-employment genetic testing would be a reasonable means of defense in a lawsuit, but there certainly would be some resistance to this cellular “love pat.”

I would hazard a guess that within ten years, we will see the first wave of pre-employment genome screening. Removal of asbestos from products and warnings on cigarette packs demand this. I’m just glad that, as a lawyer, I personally don’t have to worry about occupational exposure to anything but stress, but maybe the bar will start genome testing for pre-disposition toward substance abuse. Until then, products like Four Loko should be banned from the market. Right?

Contact Lens Solution MDL Matter Partially Resolved for Lack of Expert Testimony

In a recent Multidistrict Litigation products liability matter pending in South Carolina, Chief Judge David C. Norton of the U.S. District Court for the District of South Carolina found in favor of manufacturer, Bausch & Lomb Inc., on a motion for summary judgment as a result of Plaintiffs’ failure to provide sufficient expert testimony. In re Bausch & Lomb Inc. Contacts Lens Solution Prods. Liab. Litig., C/A No. 2:06-MN-77777, MDL No. 1785, 2010 WL 597184 (D.S.C. Feb. 17, 2010).

On April 13, 2006, ReNu with MoistureLoc contact lens solution, manufactured by Bausch & Lomb in its Greenville, South Carolina facility, was voluntarily withdrawn from the market in the United States when an increased number of consumers who used MoistureLoc began to develop Fusarium keratitis. On May 11, 2006, Bausch & Lomb met with the Federal Drug Administration and announced that they decided to remove the product from the market worldwide.

Subsequent to this recall, a number of individual personal injury cases emerged around the country asserting they were injured as a result of the use of MoistureLoc. These actions were consolidated into this Mulitdistrict Litigation proceeding and each Plaintiff had to submit a fact sheet and medical documentation demonstrating use of MoistureLoc and the type of eye infection that resulted. As of the date of Bausch & Lomb’s motion for summary judgment, “348 Plaintiffs had not submitted any documentation showing that they experienced a Fusarium keratisis infection.” Judge Norton’s order concerns these “non-Fusarium Plaintiffs.”

In May 2009, Baush & Lomb moved to exclude the testimony of Plaintiffs’ expert, Dr. Elisabeth Cohen, with respect to non-Fusarium infections. As reported by the Drug and Device Law blog on August 27, 2009, Judge Norton, along with Judge Shirley Werner Kornreich of the Supreme Court of the State of New York, granted Baush & Lomb’s motion to exclude “Dr. Cohen’s general causation opinions relating to non-Fasarium infections.”

Following this ruling, Baush & Lomb moved for summary judgment on all claims and causes of action asserted by non-Fusarium Plaintiffs. Notwithstanding five individual cases that remain under advisement for various reasons, the U.S. District Court for the District of South Carolina granted Baush & Lomb’s motion for failure to prove causation. The Court explained that “[t]o establish medical causation in a product liability case, a plaintiff must show both general causation and specific causation[,]” meaning that Plaintiffs must show that the “substance [at issue] is capable of causing a particular injury” and that the “substance caused a particular individual’s injury.” Proof of general causation was a precursor to proving specific causation. The Court determined that this was the applicable rule is all jurisdictions, including Puerto Rico where some Plaintiffs resided.

The Court concluded that since Plaintiffs’ general causation expert, Dr. Cohen, was excluded, Plaintiffs could not prove general causation, and thus, could not prove the essential causation element of any products liability action. Further, the Court disagreed with Plaintiffs’ assertion that they could prove causation through Physicians’ differential diagnoses. This is a “technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Judge Norton stated that Plaintiffs could not rely on this technique to “end-run” the general causation requirement.

All defense practitioners should be aware, for future use, of Judge Norton’s holdings requiring both general and specific causation and not allowing the use of the differential diagnoses technique to prove general causation.

Since Judge Norton’s ruling on February 17, 2010, two individual non-Fusarium Plaintiffs have filed motions to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Baush & Lomb has filed a response to one Plaintiff’s motion, and Baush & Lomb has filed a motion for summary judgement as to all other non-Fusarium Plaintiffs that were inadvertently not included in the February 2010 order. Therefore, be on the lookout for further rulings on the non-Fusarium Plaintiffs in addition to resolution of those claims by Fusarium

Plaintiffs, which Drug and Device Law blog reported in August may be resolving out of court.