State Supreme Court Reinstates Defense Jury Verdict in Silica Litigation

The Mississippi Supreme Court confirmed last week that the jury could have properly determined that plaintiff's evidence failed to prove in a silica case that he was exposed to harmful quantities of a particular supply company's sand product.  See Dependable Abrasives v. Pierce,  No. 2013-IA-01162-SCT (Miss., 1/29/15).  "Product id", as it is often called, is really part of cause-in-fact, and part of plaintiff's causation burden in a toxic tort case.

Plaintiff sued a number of defendants, alleging their sand products were responsible for his diagnosis of silicosis. According to Pierce's trial testimony, his job involved a work week of five to seven days, depending on weather, and workdays of eight to ten hours, operating a sandblasting machine.  It would shoot out sand at a high rate of speed through a nozzle, which was wielded by the machine's user, in order to clean surfaces for painting. Pierce testified that the sand proceeds from the nozzle at a rate of 500 miles per hour and that, when sand hits metal, it ricochets back in the direction of the machine's user. Plaintiff's expert testified that the warning on defendants' sand products were grossly inadequate, because it failed to inform the user of the product of the latent, danger of respirable silica.

At trial, the parties disagreed about whether the plaintiff was actually exposed to this defendant's sand. Pierce claimed he remembered the bag and could identify the logo.  He recalled there was a warning on the bag, but when asked the color of the sand he used from Dependable, he was certain it was white sand.  Dependable Abrasives had bought the sand, processed it, and at the relevant time mostly sold it in tanker trucks.  It was "in the beginning mostly probably around 90 percent bulk sand; 10 percent bag sand." Dependable offered evidence that while its competitors sold white sand, defendant sold brown sand "mined out of the red clay hills of Wiggins, Mississippi."

The jury returned a defense verdict, but the appellate court entered an order granting the plaintiff a new trial after that court found the verdict to be "against the overwhelming weight of the evidence presented at trial."

The Supreme Court noted that the fact of product exposure is a threshold question in products liability cases: "[I]t is incumbent upon the plaintiff in any products liability action to show that the defendant's product was the cause of the plaintiff's injuries." Banks ex rel. Banks v. Sherwin-Williams Co., 134 So. 3d 706, 710 (Miss. 2014). Even accepting as true Pierce's allegation that the warnings on the Diamond Blast sand were "grossly inadequate," as posited by his expert, there could be no recovery if Pierce failed to prove that the Defendant's sand "caused the damage for which recovery is sought."

Dependable contended that the evidence showed that there were only narrow time periods during which Pierce could possibly claim exposure, and that Pierce could not recall where or when he used or was exposed to Defendant's brand of sand. While Pierce was able to identify the Dependable Abrasives bag, he could not correctly identify the sand itself. He testified that the sand was white, but there was un-contradicted testimony that this company's sand was distinctly brown in color, due to its extraction from the red clay hills in or near Wiggins, Mississippi. There was testimony that defendant never sold sand, directly at least, to any of the companies for which Pierce had worked.

The Supreme Court decided that the circuit court had failed to analyze whether the jury's determination of causation truly was against the overwhelming weight of the evidence. Even though evidence was presented regarding the extent of Pierce's exposure to respirable silica, with respect to Dependable Abrasives, the evidence on product identification was mixed.  Pierce remembered the bag and the warning label, but could not accurately recall the color of the sand, the very product that he alleged had caused his injuries. If he was exposed at all, the time frame in which Pierce could have worked with Defendant's sand was minimal. Indeed, said the court, the evidence in this case was more favorable to the defense than to the plaintiff.  So, under the facts presented, this jury's  conclusion cannot be said to have been "against the overwhelming weight of the trial evidence.  The jury should have been permitted to pass upon the question of fact raised by this conflicting evidence, and it did so.  No new trial.

New Report on Asbestos and Silica Litigation in Texas

The Texas Civil Justice League has released a new report, "A Texas Success Story: Asbestos and Silica Lawsuit Reform."

Established in 1986, the Texas Civil Justice League is a non-partisan, statewide business coalition committed to legal reform and public policy research. The League makes legislative recommendations in vital issue areas, such as administration of the courts, general business liability, mass torts, and products liability.

The purpose of this special report is to document the current state of asbestos and silica litigation in Texas state courts. Part one provides a brief history of asbestos and silica litigation in the United States and an overview of the legislative efforts in Texas to address abuses in asbestos and silica litigation.  The report then offers a description of asbestos and silica litigation in Texas’s two multidistrict litigation courts handling asbestos and silica cases, and the impact of reform legislation (S.B. 15) on the state MDLs.

The report then turns to recent issues in asbestos litigation, specifically to the science-based evidentiary standards required by the Texas Supreme Court’s decision in Borg-Warner Corp. v. Flores.

Next are the issues relating to asbestos claimant compensation, starting with the role of bankruptcy trusts in compensating asbestos claimants; the bankruptcy trust payment system can provide substantial compensation to asbestos victims, but is a “black box” system that remains hidden from public scrutiny.

Lots of good info, worth a read.

New Report on Asbestos and Silica Litigation in Texas

The Texas Civil Justice League has released a new report, "A Texas Success Story: Asbestos and Silica Lawsuit Reform."

Established in 1986, the Texas Civil Justice League is a non-partisan, statewide business coalition committed to legal reform and public policy research. The League makes legislative recommendations in vital issue areas, such as administration of the courts, general business liability, mass torts, and products liability.

The purpose of this special report is to document the current state of asbestos and silica litigation in Texas state courts. Part one provides a brief history of asbestos and silica litigation in the United States and an overview of the legislative efforts in Texas to address abuses in asbestos and silica litigation.  The report then offers a description of asbestos and silica litigation in Texas’s two multidistrict litigation courts handling asbestos and silica cases, and the impact of reform legislation (S.B. 15) on the state MDLs.

The report then turns to recent issues in asbestos litigation, specifically to the science-based evidentiary standards required by the Texas Supreme Court’s decision in Borg-Warner Corp. v. Flores.

Next are the issues relating to asbestos claimant compensation, starting with the role of bankruptcy trusts in compensating asbestos claimants; the bankruptcy trust payment system can provide substantial compensation to asbestos victims, but is a “black box” system that remains hidden from public scrutiny.

Lots of good info, worth a read.

Mass Tort Litigation Screenings Exposed

Professor Lester Brickman, of Cardozo School of Law, has published a fascinating article entitled, "The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?"

At MassTortDefense, we would simply remove the question mark.

Plaintiff lawyers obtain the "mass" for some mass tort litigation by conducting screenings to sign-up potential litigants. These "litigation screenings" have no intended medical benefit, and thus this entrepreneurial response to highly profitable opportunities that arise in certain mass tort litigation should not be confused with true medical screening. In a litigation screening, potential litigants are solicited by lawyers or their agents by use of mass mailings, television and newspaper advertisements providing “800” telephone numbers, and by use of web sites purporting to provide medical information about toxic exposures, drugs, devices, or specific diseases but which are, in fact, “fronts” for law firms to whom the web site visitor is referred.

Screenings can be held in motels, shopping center parking lots, local union offices, and even lawyers' offices. There, an occupational history is taken by persons typically with no medical training, a doctor may do a cursory physical exam, and non-doctor technicians administer tests, such as X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate "medical" evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants' products – all pre-planned. Usually a handful of doctors ("litigation doctors") provide the vast majority of the thousands of medical reports prepared for that litigation.

By the good professor’s count, at least 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigation. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation under plaintiffs’ legal theory, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. He further estimates that litigation doctors and screening companies have been paid well in excess of $250 million – huge number, but a tiny fraction of the contingency fees earned well in excess of $13 billion by his estimates.

The professor concludes that approximately 90% claims generated from the screenings were based on "diagnoses" of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were "manufactured for money."

He also presents the case that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings.

Professor Brickman's areas of expertise include legal ethics, contingency fees, mass torts, and asbestos litigation. He notes the significant volume of literature about the use of junk science in the court, even today, especially to try to prove general causation in mass torts. But his analysis is particularly valuable because it turns an empirical light on the use of litigation screenings to try to prove specific causation.
 

Florida Appeals Court Rejects Retroactive Application of Asbestos and Silica Compensation Fairness Act

The Florida court of appeals earlier today rejected retroactive application of the state’s Asbestos and Silica Compensation Fairness Act, finding that the many claimants who filed claims prior to the statute’s enactment need not plead or prove that they developed a malignancy or impairment as a result of their exposure. Williams, et al. v. American Optical Corp., et al., No. 4D07-143 (Fla. Ct. App., 4th DCA, May 28, 2008). 

The decision conflicts with the opinion of another Florida court a few months ago, DaimlerChrysler Corp. v. Hurst, 949 So.2d 279 (Fla. 3d DCA 2007), and is of potential significance because of the wave of reform statutes passed in various states recently in an attempt to bring some fairness and justice to the grandfather of all mass torts, asbestos, and its lurking dust cousin, silica. E.g., Ohio Rev. Code Ann. §§ 2307.71-80; 2307.84-90; 2307.901 (including a requirement that claimants meet certain medical criteria establishing impairment before proceeding with their claims); Kansas (Silica & Asbestos Claims Act, S.B. 512); South Carolina (Asbestos & Silica Claim Procedures Act, S.C. Code Ann. § 44-135-10 et seq.); Tennessee (Silica Compensation Fairness Act, Tenn. Code Ann. § 29-34-301 et seq.).

In the spring of 2005, the Florida Legislature passed the Asbestos and Silica Compensation Fairness Act, which not only requires plaintiffs to show they meet certain medical criteria before proceeding with their claims but also requires that plaintiffs be Florida residents before filing claims in Florida courts. See Fla. Stat. Ann. § 774.201-774.209. The Fourth DCA consolidated several appeals from plaintiffs whose claims were dismissed for not complying with the Act. The issue was stated: Can the Florida Asbestos and Silica Compensation Fairness Act be retroactively applied to prejudice or defeat causes of action already accrued and in litigation? And the court held that the Act cannot constitutionally be so applied.

Asbestos Reform

The long and persistent asbestos litigation led the Florida Legislature to enact the Florida Asbestos and Silica Compensation Fairness Act, which became effective in 2005. The Legislature found that the number of asbestos-related claims has increased significantly in recent years. The true victims of asbestos, the truly injured, were in danger of not receiving compensation, as those who were exposed and could point to some minimal indication of impact without any impairment or disability, soaked up all the resources. The Act made significant changes to the cause of action for damages resulting from an exposure to asbestos. Before the Act was adopted, it was not necessary for any plaintiff to establish that any malignancy or physical impairment had resulted from their exposure and their “asbestosis.” Under the Act, however, a claimant bringing an action for damages from exposure to asbestos must now, as an indispensable element, plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor. Plaintiffs’ asbestosis claims were dismissed for failing to meet these requirements.

Retroactive Analysis

Under Florida’s Constitution, one form of intangible property is a cause of action. This is a right grounded in tort, property or contract law to recover a judgment for money or property from another person whose conduct or activity is deemed by applicable law to have caused the claimant to suffer damage or a loss. Retroactive provisions of a legislative act are invalid when they destroy vested rights. When a cause of action accrues it becomes a substantive vested right. In contrast, said the court, when a right to sue is inchoate, a mere prospect, it is merely an expectation that if another person does someday engage in specific conduct or activity causing some injury, and a specific cause of action has then accrued, the person so aggrieved may then be able to bring an action in court to vindicate the claim in money damages. It is well established that the right to sue on an inchoate cause of action — one that has not yet accrued — is not a vested right because no one has a vested right in the common law.

The question therefore became whether before the statute was enacted Florida law recognized a cause of action for damages arising from the disease of “asbestosis” without any permanent impairment or the presence of cancer. The 4th DCA thought the answer was yes, citing Eagle-Picher Industries Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1985), although that was really a negligent infliction of emotional distress case, and Zell v. Meek, 665 So.2d 1048 (Fla. 1995), although in that case the allegation was of serious lung damage, and Willis v. Gami Golden Glades LLC, 967 So.2d 846 (Fla. 2007), which again seemed to focus on alleged emotional effects from exposures.

The appeals court disagreed, implicitly, with the Legislature’s statement that the Act was intended to simply change the form of asbestos claimants' remedies without impairing their substantive rights. And rejected defendants’ argument that plaintiffs can have no vested right in their claimed cause of action because, in the absence of a true injury in the form of malignancy or impairment, it is a mere expectancy. The right to pursue a cause of action is generally considered to have become vested when the cause of action has accrued. A cause of action accrues when “the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2007). Constitutionally, a new statute becoming effective after a cause of action has already accrued may not be applied to eliminate or curtail the cause of action. In the appealed cases, plaintiffs alleged a previous exposure to asbestos resulting in what they called the disease of asbestosis, which in turn had manifested itself in some way. Thus, for each, the cause of action had passed from an expectation to the accrual of the right to sue for damages.

Conflict With the 3rd DCA

The opinion attempts to distinguish the decision of the Third District in DaimlerChrysler Corporation v. Hurst, 949 So.2d 279 (Fla. 3d DCA 2007), on the grounds that even under the law existing before the Act the result in Hurst might have been sustained because of the lack of any proof that asbestos was a proximate or even concurring cause of lung cancer. However, the court recognized that in the trial courts in the state, Hurst is being applied to dismiss asbestosis cases like the ones on appeal in which there is no cancer injury or any failure to link asbestos to the injury. Accordingly, the 4th DCA certified that a circuit conflict exists with Hurst to the extent that it does stand for a holding that the Act may be validly applied to asbestosis claimants with accrued causes of action for damages but without permanent impairments or any malignancy.

The 4th DCA did not address in any real depth the reasoning of the 3rd DCA, which noted that the legislature in enacting the Act claimed that the Act does not impair vested rights because the Act expressly preserves the right of all injured persons to recover full compensatory damages for their loss. When the plaintiffs filed their asbestos claims, they were pursuing a common law tort theory. A person has no property, no vested interest, in any rule of the common law. Prior to the enactment of the Act, the plaintiffs had, at most, a “mere expectation” that the common law would not be altered by legislation. See generally Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 864 N.E.2d 682 (Ohio App. 12 Dist. 2006)(retroactive application of Ohio reform statute).



This circuit split means the issue will likely wind up before the Florida Supreme Court at some time.

Severability

Finally, the court noted that after giving the entire text of the Act — especially its preamble of purpose — a careful reading in light of these considerations, it is not intellectually possible to disconnect the several provisions of the Act. Thus, the Act, in its entirety, may not constitutionally be applied to deprive asbestos claimants of an accrued cause of action for damages resulting from exposure to asbestos. Tellingly, the language used by the opinion to describe the legislative purpose betrays the court’s view of the legislation: “whose singular purpose is to end litigation by claimants who have been damaged by asbestos exposure without resulting malignancy or physical impairment.”

What the legislature actually said, was that it wanted to give priority to true victims of asbestos and silica, claimants who can demonstrate actual physical impairment caused by exposure to asbestos or silica, while fully preserving the rights of claimants who were merely exposed to asbestos or silica to pursue compensation if they become impaired in the future as a result of the exposure. The Act would also enhance the ability of the judicial system to supervise and control asbestos and silica litigation; and conserve the scarce resources of the defendants to permit compensation to cancer victims and others who are physically impaired by exposure to asbestos or silica while securing the right to similar compensation for those who may suffer physical impairment in the future.

Nevertheless, the court ruled that plaintiff need only show that they suffered an injury from an asbestos-related, non-malignant disease. The trial court decisions to the contrary were reversed.