Legal knowledge | Common law » Zarov-Woods-Isaac - Asbestos Litigation In California, The Creation And Retroactive Application Of Special, Expansive, Asbestos-Only Rules Of Liability

Source: http://www.doksinet TM MEALEY’S LITIGATION REPORT Asbestos Asbestos Litigation In California: The Creation And Retroactive Application Of Special, Expansive, Asbestos-Only Rules Of Liability, Part One by Herb Zarov, Craig Woods, Gary Isaac and Tyler Alfermann Mayer Brown Chicago, Illinois A commentary article reprinted from the August 26, 2015 issue of Mealey’s Litigation Report: Asbestos Source: http://www.doksinet MEALEY’S LITIGATION REPORT: Asbestos Vol. 30, #14 August 26, 2015 Commentary Asbestos Litigation In California: The Creation And Retroactive Application Of Special, Expansive, Asbestos-Only Rules Of Liability, Part One By Herb Zarov, Craig Woods, Gary Isaac and Tyler Alfermann [Editor’s Note: Herb Zarov, Craig Woods, Gary Isaac and Tyler Alfermann are attorneys with Mayer Brown’s Chicago office. The authors are grateful to the US Chamber Institute for Legal Reform for a grant that helped underwrite the project. Any commentary or opinions do not

reflect the opinions of Mayer Brown or LexisNexis, Mealey’s. Copyright # 2015 by Herb Zarov, Craig Woods, Gary Isaac and Tyler Alfermann. Responses are welcome] INTRODUCTION This is the first installment of a four part series analyzing the evolution of special ‘‘asbestos-only’’ rules created by the California courts. It is the thesis of these papers that California’s unique asbestos rules unfairly tilt the playing field sharply in favor of plaintiffs and strip asbestos defendants of common law defenses available to all California defendants outside the context of asbestos. This series focuses on three of the most significant of those special rules: the standard for determining medical causation; the test for when a raw material can be deemed defective in ‘‘design’’; and the rejection of the component parts doctrine. We argue that there are no principled reasons for the California courts to create special rules for asbestos different from those applicable to all

other intrinsically hazardous raw materials and that these special rules, taken together, so relax the burden of proof imposed on asbestos plaintiffs that they permit recovery even when the evidence plainly fails to establish the sine qua non of all other product liability litigation in California (and every other state): that it is more likely than not that the defendant’s conduct or defective product caused plaintiff’s harm. The California courts have justified creation and application of special asbestos rules as a necessary and fair response to the unique evidentiary problems faced by victims of asbestos exposure. But these special rules are neither necessary nor fair. The entities responsible for the vast majority of asbestos products to which today’s plaintiffs were exposed are in bankruptcy, and some $30 billion has been set aside in bankruptcy trusts to satisfy asbestos claimants, typically with minimal evidentiary requirements to qualify for payment. The typical

asbestos plaintiff recovers substantial sums from the bankruptcy trusts wholly apart from recoveries in the tort system. The companies that sold asbestos and asbestos-containing products that have thus far avoided bankruptcy and remain in the tort system were responsible for only a small fraction of the total asbestos sold in the United States. There is nothing fair about a legal regime that deprives those remaining companies of common law protections available to sellers of all other intrinsically hazardous raw materials and subjects them to liability under relaxed standards of proof that would not pass muster under traditional principles applied in all other California tort litigation. To the contrary, the retroactive application of special asbestos-only rules, decades after the conduct in question, violates fundamental principles of fairness and 1 Source: http://www.doksinet Vol. 30, #14 August 26, 2015 threatens the due process rights of the sellers of asbestos and

asbestos-containing products remaining in the tort system after the scores of bankruptcies of the principal players in the industry. DISCUSSION The first two of the four installments in this series address the most significant of the special rules California courts have created in response to asbestos litigation: the unique, relaxed standard for proving causation adopted in Rutherford v. Owens Illinois, 16 Cal 4th 953 (1997). In all tort cases, except those involving asbestos, California courts apply the traditional ‘‘substantial factor’’ causation principles set forth in the Restatement (Second) of Torts, §§ 430-432 (1965) and California Civil Jury Instruction (CACI) No. 430.1 Under the substantial factor test, a defendant’s conduct need not be the only causal agent to be deemed a substantial factor. But a plaintiff must establish that, more likely than not, the conduct actually participated in causing plaintiff’s injury, that the injury would not have been suffered

‘‘but for’’ the defendant’s conduct, and that the causal effect is more than trivial or remote. The ‘‘but for’’ requirement establishes causation in fact: that the defendant’s conduct, (or, in the case of toxic torts, exposure to defendant’s defective product) was part of a chain of events, each of which was necessary to precipitate the injury.2 CACI No. 430 specifically provides, however, that the standard causation instruction is not to be used in asbestos-related cancer cases and that a special, asbestosonly instruction derived from Rutherford and codified in CACI 435 should be used instead. In Rutherford, the California Supreme Court found that because of ‘‘scientific uncertainty regarding the biological mechanisms by which inhalation of [asbestos fibers] leads to lung cancer and mesothelioma,’’ id., at 974, the traditional common law causation requirement that plaintiff prove that defendant’s product or conduct actually participated in causing

plaintiff’s injury should no longer apply in asbestos cases. The Court held that asbestos plaintiffs could meet their burden of proving causation by ‘‘demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or 2 MEALEY’S LITIGATION REPORT: Asbestos decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.’’ Id at 976-77 (emphasis in original). See also id at 977 (plaintiff need not prove that ‘‘fibers from the defendant’s product were a substantial factor actually contributing to the development of the plaintiff’s or decedent’s cancer’’) (emphasis in original). In so holding, Rutherford made clear that

merely proving that exposure to the defendant’s asbestos fibers was part of plaintiff’s aggregate exposure would not be enough. Rather, under the Court’s new, two-pronged test, the plaintiff bore the burden of (i) proving some threshold exposure to the defendant’s defective asbestoscontaining products, and (ii) ‘‘further establish[ing] in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e, a substantial factor in bringing about the injury.’’ Id at 982 (italics in original) The Court explained that under the second prong of the new test, once exposure had been proved, ‘‘the question arises whether the risk of cancer created by a plaintiff’s exposure to a particular asbestos-containing product was significant enough to be considered a legal cause of the disease.’’ Id at 975 (emphasis added) An exposure would be deemed a legal cause ‘‘if its contribution to the plaintiff or

decedent’s risk or probability of developing cancer was substantial.’’ Id at 977 (emphasis in original). Finally, in determining whether the risk or probability was significant enough to be deemed a substantial factor, the jury should take ‘‘into account the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, any other potential causes to which the disease could be attributed (e.g, other asbestos products, smoking), and perhaps other factors affecting the assessment of comparative risk. ’’ Id at 975 (citations omitted) Rutherford thus relieved asbestos plaintiffs of meeting the traditional causation requirementthat defendant’s conduct or exposure to defendants’ product actually contributed to plaintiff’s injuryand substituted a new, risk-based test requiring that the contribution to risk of disease attributable to exposure to defendant’s product be significant enough to be deemed substantial. Source:

http://www.doksinet MEALEY’S LITIGATION REPORT: Asbestos Relieving asbestos plaintiffs of the burden of showing cause-in-fact violates the bedrock principle of our civil justice system that proof that a defendant’s defective product created a risk of harm is not sufficient to prove causation and that to recover in tort a plaintiff must prove that a defendant’s conduct, or exposure to defendant’s product, was more likely than not part of the chain of events that actually contributed to causing his or her injury. The Rutherford test has proved an object lesson in the perils of departing from timehonored principles of tort law. In the seventeen years since the decision was issued, no Court outside California has ever adopted it. Moreover, it has failed in practice to achieve its intended purpose: to relax common law standards in light of perceived difficulties of proving causation in asbestos litigation while retaining a meaningful basis for holding a defendant responsible for

causing plaintiff’s injury. Indeed, several California appellate courts have recently held in published opinions that a plaintiff in an asbestos case meets his causation burden under Rutherford simply by offering expert testimony that plaintiff’s risk of disease was attributable to his aggregate exposure to asbestos and that each and every exposure that contributed to plaintiff’s aggregate exposure (by definition, all of them) contributed to that aggregate risk. See Izell v Union Carbide Corp, 231 Cal. App 4th 962 (2014); Jones v John Crane, Inc, 132 Cal. App 4th 990 (2005)3 These holdings not only completely abandon the most fundamental common law principles governing tort causation, but they are also irreconcilable with the relaxed, special rule set forth in Rutherford itself. Izell illustrates the problem. At trial, plaintiffs’ experts offered the bare bones, cookie-cutter causation testimony now offered in virtually every California asbestos case: the risk that Mr. Izell

would contract mesothelioma was attributable to his aggregate occupational exposure to inhalable fibers; because Mr. Izell’s aggregate exposure was the sum of his individual exposures, every such exposure contributed to his aggregate risk; and every exposure that contributes to risk is a substantial factor. See Izell, 231 Cal App 4th at 986-77 Plaintiffs offered no testimony on the contribution to risk attributable to exposure to Union Carbide asbestos in the context of his total exposure and offered no testimony applying the Rutherford factors to evaluate that contribution. The court nevertheless found plaintiff had met his causation burden on the ground that ‘‘[n]othing in Rutherford precludes a plaintiff from establishing legal causation through opinion testimony Vol. 30, #14 August 26, 2015 by a competent medical expert to the effect that every exposure to respirable asbestos contributes to the risk of developing mesothelioma.’’ Id at 977 The court explained that

‘‘[a]s in Rutherford, the jury here could resolve the conflict between the competing expert opinions and conclude, based on [plaintiff expert’s] testimony, that even a single exposure to respirable asbestos fibers was a substantial factor increasing Mr. Izell’s risk of developing mesothelioma.’’ Id at 977, n5 This holding simply eliminates any meaningful causation requirement in California asbestos litigation. It obviously fails the common law test. It is well-settled in California tort law that the mere possibility that defendant caused plaintiff’s injury is not enough. See, e.g Saelzler v Advanced Group 400 25 Cal 4th 763, 775-76 (2001) (‘‘A mere possibility of . causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’’), (citation omitted, emphasis in original). In Lineaweaver v Plant Insulation Co,

184 Cal. App 4th 1412, 1419 (1995), a pre-Rutherford asbestos case, the court foundin a passage cited with approval in Rutherfordthat a plaintiff in an asbestos case does not meet his causation burden merely by showing that a defendant’s product ‘‘may have caused harm.’’ (Emphasis in original) As Lineaweaver explained, the mere possibility that an exposure caused the disease is not enough because ‘‘the probability that a particular asbestos supplier joined as a defendant has caused a plaintiff’s injury is often remote given the hundreds of possibly responsible parties and the unequal hazards posed by different asbestos products.’’ Id. See also, Whiteley v Philip Morris, Inc, 117 Cal App. 4th 635, 701 (2004), (under both the common law and Rutherford, ‘‘[i]ncreased risk alone is not actionable’’). But the testimony that every exposure contributes to the risk of disease found sufficient in Izell shows only that it is possible that the exposure played a role

in causing the disease, however remote that possibility might be. Moreover, as one trial court recently noted in describing expert testimony virtually identical to the testimony that passed muster in Izell, such testimony brings ‘‘nothing in the way of a scientific analysis to the issue of the risk of cancer posed by [plaintiff’s] exposure to [defendant’s] asbestos’’ and, indeed, ‘‘it is likely that in a case where actual proof of causation was required, such testimony would be excluded as unduly 3 Source: http://www.doksinet MEALEY’S LITIGATION REPORT: Asbestos Vol. 30, #14 August 26, 2015 speculative and unsupported.’’ See Order denying Union Carbide’s Motion for Judgment Notwithstanding the Verdict in Marteney v. Amcord, Inc, No BC489395, at 8 (Cal. Super Ct Sept 27, 2013) (citation omitted) (on file with authors) The court in Marteney found that special asbestos rules required admission of the testimony but suggested that ‘‘[t]he appellate courts

may wish to consider whether the issue of low dose risk assessment continues to be a matter of such irreducible uncertainty that vague testimony should continue to be allowed to meet the burden of proof on this question.’’ Id at 10 n7 Equally important, Izell and the cases it purports to follow cannot be reconciled even with the relaxed, asbestos-only test articulated in Rutherford itself. If every occupational exposure increases the risk of disease and is therefore a substantial factor, then all that is left of the Rutherford test is proof of exposure. That is plainly wrong. Rutherford expressly provided that once exposure had been proved, ‘‘the question arises whether the risk of cancer created by a plaintiff’s exposure to a particular asbestos-containing product was significant enough to be considered a legal cause of the disease,’’ id. at 975 (emphasis added), and the contribution to risk would be significant enough only if the second prong of the Rutherford test

was met: i.e, that the evidence showed that the exposure’s ‘‘contribution to the plaintiff or decedent’s risk or probability of developing cancer was substantial.’’ Id at 977 (emphasis in original).4 Hence, even if the Izell jury had credited expert testimony that ‘‘every exposure to respirable asbestos contributes to the risk of developing mesothelioma,’’ Izell, at 977, Mr. Izell would not have met his burden of showing that the contribution to risk attributable to Union Carbide asbestos was significant enough to be deemed a legal cause of his disease. See also, Sclafani v. Air & Liquid Sys Corp (CD Cal May 9, 2013) 2013 WL 2477077, at *4 (finding that ‘‘the ‘substantial factor’ prong of the causation test’’ would be rendered ‘‘meaningless’’ if ‘‘ ‘each and every exposure’ is a substantial factor’’) (emphasis in original). Izell and the line of cases it purports to follow have simply deleted the second prong of the test,

thereby permitting defendants to be found liablein clear contravention of Rutherfordin the absence of evidence that exposure to defendant’s asbestos substantially contributed to plaintiff’s risk of disease. In the second installment of this series, we discuss the modifications the Rutherford Court made in 4 response to a Petition for Rehearing that demonstrate beyond peradventure that the diluted version of the Rutherford test adopted by Izell and related cases is contrary to Rutherford itself. We show as well that the dilution of the Rutherford test now gaining currency in the California appellate courts relies on a misreading of a single sentence of dictum from Rutherford that cannot be reconciled with the body of the decision. We note that the result in Izell and the cases it purports to follow is adoption of a particularly aggressive version of the ‘‘every exposure theory’’ that has been rejected by the majority of courts across the country. And we conclude that the

result is an asbestos-only causation standard that imposes liability even where the plaintiff has failed to prove either that it is more likely than not that the defendant’s product participated in the biological process causing his or her injury or that exposure to defendant’s product contributed substantially to the risk that plaintiff would contract his or her asbestos-related disease. Endnotes 1. See Viner v. Sweet, 30 Cal 4th 1232, 1240 (2003) (referencing RESTATEMENT (SECOND) OF TORTS §§ 430-432 (1965)). See also, RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT HARM § 26 (2010) (‘‘Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.’’) 2. California courts, and courts in other jurisdictions, have adopted a narrow exception to the ‘‘but for’’ requirement where two independent forces act simultaneously and either, on its own, would

have brought about the full harm to the plaintiff. The classic example, oft-cited by law professors, is when two fires converge on a home, either of which independently and alone would have destroyed it. RESTATEMENT (SECOND) OF TORTS § 432 Applied in toxic tort cases, the exception deems causal any exposure that actually participated in the disease process but that was not a ‘‘but for’’ cause only because another, independent causal agent also participated and would have caused the injury on its own. 3. A number of unpublished California decisions have followed suit. See, eg, Strickland v Union Carbide Source: http://www.doksinet MEALEY’S LITIGATION REPORT: Asbestos Corp., 2013 Cal App Unpub LEXIS 4240, *13-22 (Cal. App June 18, 2013); Smith v Pneumo Abex LLC, 2010 Cal. App Unpub LEXIS 7395, *17-21 (Cal. App Sept 17, 2010); Norris v Crane Co, 2008 Cal. App Unpub LEXIS 2085, *36-41 (Cal. App Mar. 11, 2008) Other courts have applied Rutherford more rigorously, although

they now appear to be in the minority. See, eg, Whitmire v Ingersoll Rand Co 184 Cal. App 4th 1078, 1084 (2010); Pfeiffer v John Crane, 220 Cal. App 4th 1270, 1286-1287 (2013) 4. Izell reasoned that it was not eliminating Rutherford’s requirement that plaintiff show both exposure and Vol. 30, #14 August 26, 2015 that the exposure was significant enough to be a legal cause because plaintiff’s expert had testified that ‘‘trivial exposures in which plaintiff was not exposed to airborne fibers’’ flunked the Rutherford test, but evidence that plaintiff was exposed to ‘‘airborne’’ fibers and that ‘‘Mr. Izell breathed it in’’ was sufficient Izell, at 977. This interpretation cannot be squared with Rutherford’s express instruction that the goal of the second prong is to decide whether ‘‘inhalation of fibers from a particular product [should] be deemed a ‘substantial factor’ in causing the cancer.’’ Rutherford, 16 Cal. 4th at 975 (citations

omitted, emphasis added). I 5 Source: http://www.doksinet MEALEY’S LITIGATION REPORT: ASBESTOS edited by Bryan Redding The Report is produced twice monthly by 1600 John F. Kennedy Blvd, Suite 1655, Philadelphia, PA 19103, USA Telephone: (215)564-1788 1-800-MEALEYS (1-800-632-5397) Email: mealeyinfo@lexisnexis.com Web site: http://www.lexisnexiscom/mealeys ISSN 0742-4647