In Bankhead v. ArvinMeritor, Inc., __ Cal. Rptr. 3d __, 2012 WL 1354522 (Cal. App. 2012), the plaintiff developed mesothelioma as a result of his exposure to asbestos brake linings during his 34-year career as a “parts man” at various automotive maintenance facilities from 1965 to 1999. The defendant on appeal was ArvinMeritor – the corporate successor to a manufacturer of brake shoes that contained asbestos linings manufactured by other companies.

ArvinMeritor knew in the 1960s that exposure to asbestos was dangerous and even complained about the issue in the early and mid-1970s to its suppliers of asbestos brake linings. Still, the company failed to warn at all until the mid-1980s and did not warn of the known cancer risks of its products until 1987. The company didn't stop selling asbestos containing brake shoes until the 1990s and only then when it exhausted its stockpile of the dangerous product.

The jury found ArvinMeritor liable to Mr. Bankhead and his wife for compensatory and punitive damages. The compensatory award included economic damages of $1.47 million and noneconomic damages of $2.5 million. The jury allocated 15 percent fault to the defendant, which under California law, left the defendant jointly and severally liable for the entire award of economic damages, and severally liable for 15 percent of the noneconomic damages, for a total of $1.845 million.

In a separate trial on the amount of punitive damages, the jury heard testimony from the plaintiff's expert concerning the defendant's economic condition and then returned a verdict of $4.5 million against ArvinMeritor, 2.4 times the amount of the compensatory award. The trial court entered judgment on the full amount of the jury's awards and the defendant appealed solely on the issue of the court's refusal to reduce the amount of the punitive award.

The California Court of Appeals affirmed the judgment in its entirety.

The court rejected the defendant's first complaint that the punitive award was excessive per se because it exceeded ten percent of the company's net worth, which was negative. Rather, the court observed that several California courts, when considering punitive damages, have cautioned against a strict reliance solely on net worth given how easily that figure can be manipulated. In particular, the court noted the evidence that in spite of its net worth, the defendant paid its CEO much more in 2010 than the amount of the jury's punitive award. In addition, the award was only 1.3 percent of the defendant's immediately available funds at the end of that year. Further, the defendant introduced no evidence that the award would prove financially disastrous.

Given the totality of the evidence regarding the defendant's financial condition, the court found that it could not conclude that the punitive award was the result of passion or prejudice or exceeded “the level necessary to properly punish and deter.”

The court also was unpersuaded by the defendant's second argument – that the ratio of punitive to compensatory damages was so high that it violated the Fourteenth Amendment's due process clause under the guidelines for evaluating punitive awards adopted by the United States Supreme Court. In considering the most important of the Supreme Court's “three guideposts,” the court focused in particular on the reprehensibility of the defendant's conduct: “In the present case, Bankhead contracted a painful cancer, and ultimately died, due to ArvinMeritor’s (and the other defendants’) failure to ensure that people like Bankhead who used or worked with asbestos-containing products were not exposed to lethal asbestos dust. ArvinMeritor’s conduct continued over many years, and evinced an indifference to or reckless disregard of the health and safety of Bankhead and those similarly situated.”

The court then turned to an analysis of the 2.4 to 1 ratio between the punitive and compensatory damages awards to determine whether the “punitive damages [bore] a 'reasonable relationship' to compensatory damages or to the actual or potential harm to the plaintiff.” Noting that California courts have “adopted a broad range of permissible ratios—from as low as one to one to as high as 16 to one—depending on the specific facts of each case,” the court reviewed the evidence of the very real harm to the plaintiff dying of mesothelioma and the “highly reprehensible” nature of the defendant's conduct. The court concluded: “This single-digit ratio is well within the range for comparable cases, and is not extraordinarily high. Accordingly, we are not persuaded that the award exceeded the constitutionally permissible limits.”

Misty Farris, Laurie Meggesin and Janice Pennington are three practicing appellate lawyers who had nothing in the slightest to do with this appeal.  In fact, two of us haven't even read it.  But we all enjoy helping consumer and trial lawyers with Web content and marketing projects. We know the law, we know the business and we know the clients. We could easily be describing your appellate victories for referring counsel to read on your own law firm website or in your law blog instead of ours. Give us a call at 214 586 0040 or complete our Contact form.

In Union Carbide Corp. v. Fields, __ S.E.2d __, 2012 WL 917601 (2012), the plaintiffs, Rhonda and Gary Fields, allege that Mrs. Fields developed peritoneal mesothelioma caused by her exposure as a child to asbestos dust brought home on her father's work clothing. Mrs. Field's father had worked around a number of asbestos containing products during his employment with the Georgia Power Company from 1966 to 1988. In addition, during the 1973 construction of the home in which she lived as a child, Mrs. Fields had been exposed to joint compound containing Calidria asbestos. Further, Mrs. Fields had been exposed to asbestos dust generated from her family members' work with automotive asbestos-containing brakes.

Mr. and Mrs. Fields filed suit in Georgia state court against the manufacturers of the asbestos products to which Mrs. Fields had been exposed as a child, including Union Carbide Corporation (“UCC”), Georgia–Pacific, LLC (“GP”) and CBS Corporation, f/k/a Viacom, Inc., f/k/a Westinghouse Electric Corporation (“Westinghouse”).

Rather than wait for the asbestos defendants to raise the matter, the plaintiffs moved for partial summary judgment concerning the issue of nonparty fault. In effect, the plaintiffs sought to preempt the defendants from introducing at trial a laundry list of nonparties with whom the defendants' liability might be apportioned (ie. outsourced). The trial court granted the plaintiffs' motion and UCC, GP and Westinghouse appealed.

UCC also moved for summary judgment, though unsuccessfully. UCC complained that the plaintiffs had not come forward with admissible expert testimony to prove that UCC's primarily chrysotile-asbestos products had caused the plaintiff's mesothelioma. The trial court denied the motion and UCC appealed that ruling too.

In March of 2012, the Georgia Court of Appeals affirmed both rulings of the trial court.

Apportionment of fault to settled nonparties

The court first addressed the issue of nonparty fault. Most significantly, the court rejected the asbestos defendants' perennial argument that settled entities should be included automatically on the verdict form to apportion fault. The Georgia court explained that under OCGA § 51–12–33(d)(1), “a defending party still must show that a settled entity 'contributed to the alleged injury or damages' before its fault can be assessed by a trier of fact. Otherwise, there would be no basis for the apportionment of fault between the settled entity and the defendant.” 2012 WL 917601 at *4.

Nor were the asbestos defendants able to persuade the court that the failure to include settled entities on the verdict form would result in an unfair double-recovery for the plaintiffs. Instead, observed the court, if “there was no evidence that the settled entity in fact contributed to the plaintiff’s injury, then it cannot be said that a plaintiff will have received double-recovery for that injury.” Id. Indeed, “'[b]asic fairness and justice dictate that a tortfeasor should not benefit from a plaintiff’s good fortune in reaching settlements with other potential defendants not determined to be liable.'” Id. quoting Broda v. Dziwura, 286 Ga. 507, 509, 689 S.E.2d 319 (2010).

The defendants also argued that the trial court erroneously granted the plaintiffs' motion for summary judgment concerning nonparty Georgia Power, the employer of Mrs. Fields' father. Despite the fact that in Georgia, an employer owes no duty to household members who are exposed off-site to an employee's asbestos-covered work clothing, the defendants maintained that fault could still be apportioned to the employer. The Court of Appeals disagreed, holding that where there is no duty, there is no fault, and thus no apportionment under OCGA § 51–12–33(c).

Finally, the court also rejected the asbestos defendants' suggestion that they could prove the fault of settled entities by relying on allegations of asbestos exposure contained in the plaintiffs' complaint. The plaintiffs' allegations of exposure to the settled entities' products, without evidence that those particular products contained asbestos, ruled the court, do not amount to sufficient proof that the settled entities' products caused the plaintiffs' injuries to warrant an apportionment under OCGA § 51–12–33(d)(1). Fields, 2012 WL 917601 at *6-7.

UCC's chrysotile defense

The Court of Appeals also affirmed the trial court's denial of UCC's motion for summary judgment that the plaintiffs had not come forward with admissible expert testimony to prove that UCC's primarily chrysotile-asbestos products had caused the plaintiff's mesothelioma. The plaintiff had been exposed to UCC's Calidria asbestos contained in joint compound products that had been used in the 1973 construction of Mrs. Fields’ family home. “Calidria” asbestos, UCC maintained, was chrysotile asbestos that unlike amphibole asbestos, does not – according to UCC – cause mesothelioma. After the trial court entered a Daubert order prohibiting the plaintiffs' expert from testifying that pure chrysotile could cause the plaintiff's peritoneal mesothelioma, UCC moved for summary judgment under the theory that the plaintiffs could not offer expert testimony that UCC's Calidria asbestos caused the plaintiff's injury. Fields, 2012 WL 917601 at *8.

The Court of Appeals agreed with the trial court in dismissing this argument. Noting, as had the trial court, that the plaintiffs had presented evidence that exposure to chrysotile and amphibole asbestos in combination can cause an increased risk for peritoneal mesothelioma, the appellate court held that a genuine issue of material fact remained concerning whether the combined exposure to chrysotile and amphibole asbestos caused the plaintiff's peritoneal mesothelioma. Id. at *9. The Fields court thus held that “in light of the expert testimony that exposure to Union Carbide’s product, when combined with other asbestos fibers, could have contributed to Mrs. Fields’ mesothelioma, the Fields have demonstrated the existence of a genuine issue for trial as to causation.” Id.

Misty Farris, Laurie Meggesin and Janice Pennington are three practicing appellate lawyers who also enjoy helping consumer and trial lawyers with Web content and marketing projects. We know the law, we know the business and we know the clients. We could easily be describing your appellate victories for referring counsel to read on your own website instead of ours. Give us a call at 214 586 0040 or complete our Contact form. 

In Daley v. A.W. Chesterton, Inc., No. J-98-2010 (Pa. 2012), the Pennsylvania Supreme Court held that the “two-disease” or “separate disease” rule applied to a mesothelioma case in which the plaintiff had previously sued and recovered for asbestos-related lung cancer over a decade earlier. The issue was whether the rule allows a plaintiff to bring more than one lawsuit for more than one type of cancer caused by the same exposure to asbestos.

The plaintiff, Herbert Daley, was diagnosed in 1989 with pulmonary asbestosis and squamous-cell carcinoma of the lung, both caused by Mr. Daley's exposure to asbestos in the workplace. In 1990, Mr. Daley filed suit and the case was settled in 1994. Then, eleven years later in 2005, Mr. Daley learned that he had developed mesothelioma as a result of the same asbestos exposure. He filed suit the same year, and in the second case sued manufacturers that had not been named in the earlier litigation.

The defendants in the mesothelioma case moved for summary judgment on the grounds that the case was barred by limitations because it was not brought within two years of the lung cancer diagnosis in 1989. The trial court granted the motion, ruling that Pennsylvania's “separate disease,” or Marinari, rule would allow two consecutive suits arising out of the same asbestos exposure only when the first suit involved a nonmalignant injury and the second suit was brought for a malignant one. Pennsylvania's intermediate appellate court, the Pennsylvania Superior Court, reversed the trial court and on February 21, the Pennsylvania Supreme Court affirmed the order of the Superior Court and remanded the case to the trial court for further proceedings.

In reaching its decision, the Pennsylvania Supreme Court discussed at length the 1992 decision of the Pennsylvania Superior Court in Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa. Super. 1992) (en banc), in which the “two-disease” or “separate disease” rule was first adopted in a case where the plaintiff was first diagnosed with asbestos-related pleural thickening and later with asbestos related lung cancer. The Court also reaffirmed its adoption of Marinari in Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996). The same reasoning applied, held the court in its most recent decision on the issue, in cases where the first and second diseases at issue are both separate and distinct asbestos related cancers:

While the separate disease rule initially developed from, and has since been 
applied in, cases involving a cause of action for a nonmalignant disease, followed by a
cause of action for a malignant disease, the concerns the rule was designed to address
are not limited to situations where a plaintiff suffers one nonmalignant asbestos-related
disease and one malignant asbestos-related disease. Indeed, the same difficulties that
led the Marinari court to conclude that the single cause of action rule was unworkable in
situations where an asbestos plaintiff is first diagnosed with a nonmalignant disease,
and subsequently diagnosed with a malignant disease, are equally present in situations
where an asbestos plaintiff is diagnosed with a malignant disease, and later diagnosed
with a separate and distinct malignant disease caused by the same asbestos exposure.

The court rejected the defendants' suggestion that the decision would overwhelm the courts and observed that “the likelihood of a plaintiff contracting two separate and distinct asbestos-related malignancies appears to be remote.” The court further refuted the claim that it ruling violates the doctrine of res judicata. Noting that a claim for mesothelioma is distinct from a claim for lung cancer, the court explained that the doctrine of res judicata was not applicable.

The Pennsylvania Supreme Court thus held in Daley:

[T]he separate disease rule, as adopted in Pennsylvania, allows a plaintiff to file an action for a malignant asbestos-related disease, even if he previously filed an action for a different malignant asbestos-related disease, provided the second or subsequent action is based on a separate and distinct disease which was not known to plaintiff at the time of his first action, and is filed within the applicable statute of limitations period.

Misty Farris, Laurie Meggesin and Janice Pennington are three practicing appellate lawyers who also enjoy helping consumer and trial lawyers with Web content and marketing projects. We know the law, we know the business and we know the clients. We could easily be describing your appellate victories for referring counsel to read on your own website instead of ours. Give us a call at 214 586 0040 or complete our Contact form.