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• A copy of this presentation will be on my webpage.

• Go to our website• Go to Lawyers, and find Ed

Slaughter• On my page there will be a link to

the this Powerpoint

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, 2012Effective: 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 2008 17 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

O’Neil v. Crane Co.

• “We hold that a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product …”

The Chameleon Plaintiff

Pre-O’Neil World Post-O’Neil 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 – Defendant’s 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???

Ain’t That Special!

Several courts have excluded expert opinions that “every fiber” contributes towards a plaintiff’s 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. Welch’s 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. Maddox’s 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. 2-08-198-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. 07-19211, Circuit Court of the 17th Judicial Court, Broward County, Florida (November 30, 2009).

• Lena K. Degrasse v. Anco Insulations Inc., et al., No. 07-12736, 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 Plaintiff’s 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. 07-2-0409109 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, 320-21 (Tex. App. 2007), reh’g

overruled (Oct. 13, 2007), review denied (Feb. 22, 2008).• In Re Asbestos, Cause No. 2004-3,964 (Tex. Dist. Ct. July 18, 2007), Letter

Ruling.• Gregg v. V-J. Auto Parts, Inc., 943 A.2d 216, 218, 223, 226-27 (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, 01-1139, 2007 WL 1074094 (D. Del. Mar. 26, 2007).

• In re Toxic Substance Cases, No. A.D. 03-319, 2006 WL 2404008 at *7-8 (Pa. Ct. Com. Pl. Aug. 17, 2006); Basile v. Am. Honda Motor Co., No 11484 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. 2004-03964, Letter Ruling, Davidson J., 11th

District Court; Harris County, Texas, January 20, 2005.• Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004), aff’d 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 employee’s contaminated work clothes over an extended period of time, regardless of whether they live in the employee’s 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 1950’s.

• Since plaintiff’s exposure did not exceed the 1950’s 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.”

Florida—Not 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. 875. 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

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