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Asbestos Evolution California Coordination & Case law Texas, Louisiana and Georgia: Evolving Causation Standards & Expert Challenges House-hold exposure case law developments: California, Texas, Delaware, Tennessee Federal MDL 875
LAOSD Coordination August 31, 2011 Los Angeles, Orange, and San Diego asbestos pre-trial matters are now before Judge Elias in Los Angeles
JUDGE EMILIE H. ELIAS Appointed by Gov. Gray Davis in 2000 She was brand new to asbestos when appointed as the LAOSD judge in September 2011
What has LAOSD changed? All Pre-trial Matters Heard by Judge Elias Motions for Preference Discovery matters Summary Judgment Motions in Limine Sometimes Page-Line designations Sent to a trial court in the original county
Mandatory Settlement Conference Cases are referred to settlement judges Clients and carriers must be present –Someone with ultimate authority Some judges enforce and others do not Trial Judge may return the case to settlement conference It may last a half day or two weeks
7 Hour Limit on Depositions Approved: September 17, 2012 Effective: January 1, 2013
Except Asbestos Cases? 1.All Asbestos Cases are deemed Complex (LA GO No. 1) 2.General Order 43 limits depositions to 20 hours in preference cases. BUT…. No one knows how Judge Elias will deal with this until next year…
PLAINTIFFS FIRMS INCREASE 6 active firms in in 2012 SGPB Baron & Budd Lanier Law Firm WKP Weitz & Luxenberg Keller Fishback & Jackson Farisse Law Firm Deblase Brown Napoli Bern Cohn Swartzon Karst & von Oiste Simmons John Huebeck Carolin Shining Brayton Purcell Levin Simes Kaiser & Gornick Kazan
ONeil v. Crane Co. We hold that a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturers product …
The Chameleon Plaintiff Pre-ONeil WorldPost-ONeil World We ripped out and tons of insulation. It was everywhere. Insulation? What insulation? We spent hours cutting our own gaskets and packing. The manufacturers all sold their own gaskets and packing kits.
California Appellate Decisions Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222 –Expert declaration insufficient to prove product contained asbestos. Judge Elias has granted MSJs based on this. Farag v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 372 –Defendants single offer to both spouses was triggered by the cost-shifting statute under CCCP § 998
California Appellate Decisions Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 –plaintiff may recover no more than the amounts paid for the medical services not the amount charged. Campbell v. Ford (2012) 206 Cal.App.4th 15 –California leading the way???
Aint That Special! Several courts have excluded expert opinions that every fiber contributes towards a plaintiffs development of mesothelioma.
Butler v. Union Carbide Corporation (GA) Trial court decision, June 29, 2010); affirmed June 15, 2011; cert denied October 17, 2011 Excluding the testimony of Dr. Maddox and characterizing the any exposure theory as at most, scientifically-grounded speculation: an untested and potentially untestable hypothesis.
Georgia-Pacific Corp. v. Bostic, 320 S.W.3d 588 (Tex. App. Dallas, August 26, 2010) Excluding each and every exposure testimony from Drs. Samuel Hammar, Arnold Brody and Richard Kronenberg.
Robertson v. Doug Ashy et al,, East Baton Rouge, Louisiana (March 2, 2010). Striking testimony from Dr. Eugene Mark, that every special exposure to asbestos was a substantial contributing factor to the causation of mesothelioma. Reversed and remanded by Louisiana Court of Appeals on October 4, 2011.
Robertson v. Doug Ashby Building Materials, Inc. Trial Court Part 2 August 21, 2012 Three day evidentiary hearing Drs. Mark, Dyson, Moogalvkar, Graham Dr. Mark precluded from testifying that each special exposure to asbestos constitutes a significant contributing factor The term is meaningless and provides no scientific foundation for a causation opinion
Purposefully Small Dr. Welchs conclusion that the exposure and risk in the case were substantial simply was not a scientific conclusion... we join with several other courts in requiring quantitative epidemiological evidence. Dixon v. Ford Motor Co.Maryland Dr. Maddoxs any-exposure opinion is in irreconcilable conflict with itself. Simply put, one cannot simultaneously maintain that a single fiber among millions is substantively causative, while also conceding that a disease is dose responsive. Betz v. Pneumo Abex, LLC Pennsylvania
Even Smaller Smith v. Kelly-Moore Paint Company, Case No CV, Court of Appeals, Second District of Texas, Fort Worth (February 25, 2010). Ruben v. Asbestos Corporation, Ltd., et al., Los Angeles Superior Court Case No. BC396559, Ruling On Motion In Limine By The Honorable Rita Miller (January 25, 2010). Daly v. Arvinmeritor, Inc., Case No , Circuit Court of the 17th Judicial Court, Broward County, Florida (November 30, 2009). Lena K. Degrasse v. Anco Insulations Inc., et al., No , in the Civil Dist. Court for the Parish of Orleans, Div. G, Section 11, Judgment on Motion In Limine (June 11, 2009). In Re: Asbestos Litigation, Certain Asbestos Friction Cases Involving Chrysler LLC, in the Court of Common Pleas for the First Judicial District of Pennsylvania, Civil Trial Division, Control #084682, Findings, Memorandum and Order on Motion to Exclude Plaintiffs Causation Expert Testimony that Relies Upon Novel Scientific Evidence and Request for Evidentiary Hearing, Tereshko, A.L (September 24, 2008) Free v. Ametek, Cause No SEA, Superior Court, King County, State of Washington, p. 5 (February 29, 2008).
Your Glasses are fine Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, (Tex. App. 2007), rehg overruled (Oct. 13, 2007), review denied (Feb. 22, 2008). In Re Asbestos, Cause No ,964 (Tex. Dist. Ct. July 18, 2007), Letter Ruling. Gregg v. V-J. Auto Parts, Inc., 943 A.2d 216, 218, 223, (Pa. 2007). In re W.R. Grace & Co., 355 B.R. 462, 474, 478 (Bankr. D. Del. 2006), leave to appeal denied, No. 07-MC-0005 RLB, , 2007 WL (D. Del. Mar. 26, 2007). In re Toxic Substance Cases, No. A.D , 2006 WL at *7-8 (Pa. Ct. Com. Pl. Aug. 17, 2006); Basile v. Am. Honda Motor Co., No CD 2005 (Pa. Ct. Com. Pl. Feb. 22, 2007) (order granting Caterpillar Inc.s motion to exclude plaintiffs expert testimony); Summers v. Certainteed Corp., 886 A.2d 240, 244 (Pa. Super. Ct. 2005), appeal granted, 897 A.2d 460 (Pa. 2006). Brooks v. Stone Architecture, P.A., 934 So. 2d 350 (Miss. Ct. App. 2006). In Re: Asbestos Litig., Cause No , Letter Ruling, Davidson J., 11th District Court; Harris County, Texas, January 20, Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004), affd sub nom.
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008). Duty extends to car pool members, babysitters, or domestic help. Duty extends to those who regularly and repeatedly come into close contact with an employees contaminated work clothes over an extended period of time, regardless of whether they live in the employees home or are a family member.
Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex. Ct. App.Dallas 2007). Non-occupational exposure to asbestos dust on workers clothes was neither known nor reasonably foreseeable in the 1950s. Since plaintiffs exposure did not exceed the 1950s time frame, there was no duty under the foreseeability of harm test.
Campbell v. Ford, (2012) 206 Cal.App.4th 15. A premises owner owes no duty to protect workers family members from take-home asbestos exposure. Public policy dictates that extending tort liability to family members who are exposed to asbestos off-site would have the effect of extending tort liability [of premises owners] almost without limit.
FloridaNot So Sunny for Asbestos Defendants American Optical Corp. v. Spiewak, 73 So.3d 120 (2011). Florida Asbestos and Silica Compensation Fairness Act (2005)Deemed Unconstitutional as Applied Retroactively –Under the Act a plaintiff bringing a claim for damages from exposure to asbestos must plead and prove existing malignancy or actual physical impairment where asbestos exposure was a substantial contributing factor.
Federal MDL No. 875 New federal court cases will not be transferred to MDL No Subject to the following exceptions: – Cases from the following jurisdictions: E.D. of VA, 7th Cir., Maritime Docket, E.D. PN, and –Various pipeline cases from a variety of districts