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Product Liability Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

Illinois First District Appellate Court upholds $4.8 million asbestos verdict against John Crane.

February 20, 2020 | Gregory Odom and Meghan Kane

Much to the defense bar’s dismay, in late 2019, the First District Appellate Court affirmed and upheld a $4.6 million verdict against John Crane Inc. in Daniels v. John Crane, Inc., 2019 IL App (1st) 190170.

In that case, the decedent’s estate filed suit, alleging that the decedent developed pleural mesothelioma due to asbestos exposure. The decedent worked as a union pipefitter from 1957 to 1985. Prior to his death, the decedent testified to significant asbestos exposure from valves and gaskets, including gaskets manufactured by John Crane.  

At trial, plaintiff's expert, Dr. Jerrold Abraham, testified that the decedent's asbestos exposure through his work with John Crane products was a substantial contributing factor in his development of mesothelioma. Dr. Abraham did not quantify the decedent's exposure through John Crane products, and he testified that exposure to all types of asbestos fibers can cause mesothelioma. Moreover, according to Dr. Abraham, while mesothelioma is a dose-response disease – meaning the more exposure an individual has the more likely they are to contract the disease – once someone sustains an asbestos-related disease, it does not matter whether they have had a high or low exposure to asbestos. Dr. Abraham conceded that all of the decedent’s exposures, including through friable insulation, were substantial contributing factors to the development of his illness. Essentially, Dr. Abraham opined that if the decedent was exposed to asbestos through John Crane products, such exposure was a substantial factor to the development of his illness, regardless of the dose of the exposure or the dose of the decedent’s exposures through other sources.

Plaintiff also presented William Ewing, a Certified Industrial Hygienist. Ewing testified that the decedent was exposed to asbestos by using picks, chisels, and hammers to remove John Crane packing, and by using brushes and sanders to dislodge or reshape John Crane gaskets. Ewing quantified the duration of the decedent’s exposure (1957 to 1985) and his alleged dosage amount (.05 to 1 fibers per cubic centimeter when removing and installing gaskets; .05 to 2 fibers per cubic centimeter when removing packing). 

At the close of evidence, during the jury instruction conference, the plaintiff presented the standard Illinois Pattern Jury Instruction for proximate causation. John Crane objected and presented its own instruction regarding proximate cause. John Crane argued that the jury instruction should have included language requiring the jury to find that John Crane’s products were a “substantial factor” in the development of the decedent’s illness in order for proximate cause to exist. John Crane further submitted an instruction defining substantial factor as if, absent John Crane’s conduct, the injury would not have occurred. John Crane further also submitted a “state of the art” instruction, which would have required the plaintiff to prove that John Crane and those in the asbestos products manufacturing industry knew of the alleged dangerous nature of John Crane’s packing and gaskets. John Crane argued that such knowledge was required to establish a duty to warn. The trial court rejected these instructions submitted by John Crane.

Ultimately, a Cook County jury found for the plaintiff and entered a $6 million verdict. The trial court reduced the verdict to $4.8 million to account for pre-trial settlements. 

In a posttrial motion, John Crane argued that Dr. Abraham should not have been allowed to testify because he essentially testified that the decedent’s cumulative dose (or "each and every exposure") to all asbestos products caused his injuries. In other words, John Crane claimed that Dr. Abraham failed to differentiate the decedent’s exposure through John Crane products from his exposure through other sources. In addition to arguing that the court erred in rejecting the previously discussed jury instructions, John Crane also argued that the trial court erred by failing to properly analyze settlements the plaintiff entered into with certain defendants. The trial court denied John Crane’s motion.

On appeal, the First District first determined that the trial court properly allowed Dr. Abraham to testify. The court determined that Dr. Abraham did not testify that even a “de minimis” exposure to asbestos can cause illness. Rather, the court characterized Dr. Abraham’s testimony as emphasizing the importance of understanding the dose of asbestos fibers to which a person was exposed when determining causation. Moreover, the court believed the plaintiff established the dose of the decedent’s exposure through William Ewing’s testimony, who quantified the decedent’s exposure range and opined that the dosage level exceeded the background rate of asbestos exposure one would experience from the ambient environment. Overall, the court concluded that Dr. Abraham’s testimony provided the background knowledge the jury required to interpret Ewing’s opinions regarding the dose of the decedent’s asbestos exposure through John Crane products.   

John Crane also argued that the trial court erred in excluding proposed jury instructions that included language regarding Illinois' substantial factor causation test. On this point, John Crane appeared to argue that the jury should have been instructed on the Illinois frequency, regularity, and proximity causation standard used in asbestos cases. The court found that the Illinois pattern instructions on causation (which do not use the terms substantial factor or frequency, regularity, proximity) sufficiently instructed the jury. The court also determined that using these terms in instructions would have improperly suggested that the plaintiff had to prove a specific dosage amount, when, under Illinois law, a plaintiff need only prove that exposure by a defendant was legally significant. The appellate court seemed to take the position that the frequency, regularity, proximity test is relevant when the court is making a legal determination on whether or not the plaintiff has met her burden of proof in an asbestos case, but the jury should not be given instructions using this language because it suggests that the plaintiff must quantify her exposure levels. 

As to John Crane’s proposed “state of the art” jury instruction, John Crane argued that the jury should have been instructed that the plaintiff was required to prove either that John Crane specifically knew of the hazards of asbestos or, if not, that members of John Crane's industry had such knowledge. The court rejected this argument because there was evidence in the case that John Crane itself had knowledge regarding the dangers of asbestos when the decedent used its products. Moreover, the court believed that John Crane’s proposed instruction would have required the jury to find both that John Crane and those in its industry knew of the dangerous nature of John Crane’s products. According to the court, industry knowledge can be used to support a failure to warn claim, but it is not necessary evidence. Rather, the defendant's knowledge is at issue in such a claim.

Finally, the court rejected John Crane's argument that certain settled defendants should have appeared on the jury form and that the court should have compelled the plaintiff to disclose the amounts of certain pre-trial settlements. The court reasoned that it is well settled Illinois law that a party defendant cannot include former co-defendants or non-parties on the verdict form. As to the settlement amount issue, John Crane argued that the trial court erred in finding that the plaintiff reached good faith settlements with certain defendants without requiring the parties to disclose the settlement amounts. In rejecting this argument, the court determined that the trial court had sufficient evidence – including the plaintiff’s theory of liability, that plaintiff sought in excess of $50,000, and that John Crane was asserting a sole proximate cause defense – to make its good faith findings without the need to determine the amounts of the settlements. 

Overall, while there have been recent positive rulings favoring defendants from the First District and the Circuit Court of Cook County in asbestos litigation, those rulings have largely been limited to the issue of personal jurisdiction. Unfortunately for defendants, the court’s opinion in this case is largely consistent with the trial court’s rulings on these issues. However, a possible silver lining is that defendants might be able to rely on this opinion to argue that, at trial, plaintiffs cannot simply argue that all exposures to asbestos cause or contribute to the development of mesothelioma, but rather, must present some evidence establishing the dosage level of a plaintiff’s asbestos exposure. 

Eastern District Missouri Court of Appeals Overturns Talc Verdict

November 20, 2019 | Robert Chandler

On October 15, 2019 the Missouri Court of Appeals for the Eastern District overturned a jury verdict, including punitive damages, to an out of state plaintiff. The Court ruled that the trial court lacked personal jurisdiction to render the verdict pursuant to recent United States Supreme Court authority.

Facts

Plaintiff Lois Slemp, a resident of Virginia, was one of sixty-two plaintiffs alleging claims against defendants Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc. and Imerys Talc America, Inc. for personal injuries related to use of talc products produced, manufactured and sold by defendants. Plaintiff’s claim was tried separately, and the jury awarded a verdict in her favor for actual and punitive damages in May 2017. Judgment was entered on August 3, 2017, including a finding by the trial court pursuant to Missouri Rule of Civil Procedure 74.01(b) that there was no just reason to delay entry of final judgment for purposes of proceeding with appeal. 

After the verdict but before judgment was entered, the landmark United States Supreme Court personal jurisdiction case, Bristol-Myers Squibb v. Superior Court of Ca., 137 S.Ct. 1773 (2017), was handed down. Following entry of judgment, defendants filed a timely post-trial motion on September 1, 2017 seeking dismissal of plaintiff’s claims for lack of personal jurisdiction based upon the BMS case. Defendants argued that under the Bristol-Myers case, there was no basis for the trial court to exercise specific personal jurisdiction over the non-resident plaintiff’s claims where none of the circumstances leading to the plaintiff’s claim occurred in the State of Missouri. 

Plaintiff later filed a motion requesting the Court temporarily vacate the judgment, and allow discovery on the issue of personal jurisdiction. On November 29, 2017, the trial court denied both defendants’ motions to dismiss for lack of personal jurisdiction and plaintiff’s motion to vacate and reopen discovery. The trial court also issued an order striking the Rule 74.01(b) language from its original judgment.   Defendants’ subsequently appealed. 

Appeal

The Court of Appeals reversed the trial court’s ruling denying defendants’ motion to dismiss on the personal jurisdiction issue, and vacated the trial court judgment in plaintiff’s favor. Key to the appeal was whether the judgment entered by the trial court was final for purposes of appeal. Because claims remained pending as to other plaintiffs, a rule 74.01(b) finding was necessary for defendants to proceed with an appeal. The Court originally entered the finding on August 3, 2019, then modified the judgment on November 29, 2017.

Under Missouri law, a trial court maintains control of its judgment for thirty days and may modify the judgment, for good cause, within this window, regardless of whether either party requests a change. After expiration of this original thirty-day window, a judgment may be modified only upon grounds asserted in a timely-filed post-trial motion, which must be filed within thirty days of entry of judgment.

Because neither party filed a timely, authorized post-trial motion requesting the Rule 74.01(b) language be removed, the appellate court ruled that the trial court was without authority on November 29, 2017 to modify its judgment to remove the language certifying the judgment as final for purposes of appeal. The Appellate Court therefore ruled that the Order removing the Rule 74.01(b) certification language exceeded the authority of the trial court, and the appeal was properly before the Court pursuant to the language in the August 3, 2017 Judgment. 

After determining the judgment was final for purposes of appeal, the Court found that specific personal jurisdiction may not be established by out of state plaintiffs under circumstances arising outside the state merely by joining the claim with a Missouri plaintiff. Accordingly, the rulings on the personal jurisdiction motions were reversed, and plaintiff’s judgment was reversed.

Guidance for the Future

When filing post-trial motions, all parties should be certain to timely request all post-trial relief, including any desired modification of judgment language, within the time allowed under procedural rules. Additionally, under the Bristol-Myers case personal jurisdiction against a defendant must be established for each claim made against it.

United States Supreme Court Holds Counterclaim Defendants May Not Remove Diverse Lawsuits

July 25, 2019 | Lisa Larkin and Jessica Cozart

In Home Depot U.S.A., Inc. v. Jackson, 139 S.Ct. 1743 (May 28, 2019), the U.S. Supreme Court affirmed in a 5-4 decision authored by Justice Thomas that neither the general removal provision (28 U.S.C. §1441(a)) nor the removal provision in the Class Action Fairness Act of 2005 (28 U.S. C. §1453(b)) permits a third-party counterclaim defendant to remove a class-action from state to federal court.

Citibank filed a debt-collection action against George Jackson alleging he was liable for charges he incurred on a Home Depot credit card. In response, Jackson filed a counterclaim against Citibank and third-party class-action claims against Home Depot U.S.A. and Carolina Water Systems. Jackson alleged that Home Depot and Carolina Water induced homeowners to buy water treatment systems at inflated prices and engaged in unlawful referral sales and deceptive and unfair trade practices. Jackson also alleged that Citibank was jointly and severally liable for the conduct of Home Depot and Carolina Water and that his obligations under the sale were null and void. After Citibank dismissed its claims against Jackson, Home Depot removed the case to federal court under the Class Action Fairness Act (“CAFA”). Jackson moved to remand, arguing that precedent barred removal by a third-party/additional counter-defendant like Home Depot.

The District Court remanded and the Fourth Circuit affirmed, relying on some almost-80 year old precedent that the general removal provision (§1441(a)) did not allow Home Depot as a third-party defendant to remove the class-action claims; and concluding that CAFA’s removal provision (§1453(b)) likewise did not allow removal. The Supreme Court affirmed.

The general removal statute, 28 U.S.C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” Similarly, CAFA provides that a “class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U.S.C. §1453(b).

Home Depot argued that because a third-party counterclaim defendant is a “defendant” to the claim against it, it may remove pursuant to §1441(a). The Supreme Court disagreed based on the structure of the statute and precedent. When determining whether a district court has original jurisdiction over a civil action, it must evaluate whether that action could have been brought originally in federal court, either because it raises claims arising under federal law or because it falls within the court’s diversity jurisdiction. The Court noted that the presence of a counterclaim is irrelevant to whether the district court has “original jurisdiction” over the civil action because the “civil action” of which the district court must have original jurisdiction is the action as defined by the plaintiff’s complaint and the “defendant” to that action is the defendant to that complaint, not a party named in a counterclaim. Further, the Court noted that Congress did not intend for the phrase “the defendant or the defendants” in §1441(a) to include third-party counterclaim defendants because the Federal Rules of Civil Procedure differentiate between third-party defendants, counterclaim defendants, and defendants. Additionally, in other removal provisions, Congress clearly extended the reach of the statute to include parties other than the original defendant (See §1452(a) and §§1454(a) and (b)), whereas §1441(a) does not so clearly extend its reach. Section 1441(a) limits removal to “the defendant or the defendants” in a civil action over which the district courts have original jurisdiction. Section 1441(a), therefore, does not permit removal by any counterclaim defendant, including parties brought into the suit for the first time by a counterclaim.

Home Depot also argued that it could remove under §1453(b) because of the different wording of that statute. It argued that although §1441(a) permits removal only by “the defendant or the defendants” in a “civil action,” §1453(b) permits removal by “any defendant” to a “class action.” The Court disagreed, holding that there was no indication that this language does anything more than alter the general rule that a civil action may not be removed on the basis of diversity jurisdiction “if any of the … defendants is a citizen of the State in which such action is brought.” The Court found that the two clauses in §1453(b) that use the term “any defendant” simply clarify that certain limitations on removal do not limit removal under that section. The Court specifically found held that neither alters the limitation on who can remove, which suggests that Congress intended to leave that limit in place.

The Court also referenced and reaffirmed its holding in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941), which held that an original plaintiff may not remove a counterclaim against it. The Court found that this decades-old holding applies equally to third-party counterclaim defendants.

Justice Alito wrote a lengthy dissenting opinion (joined by Justices Roberts, Gorsuch, and Kavanaugh), arguing that a “defendant” is a ‘person sued in a civil proceeding’ and that the majority’s decision leaves third-party defendants unprotected under §1441 and CAFA. He thus asserted that the majority opinion reads an irrational distinction into the removal statutes.

As noted by the dissent, this inability of a third-party defendant to remove raises concerns about out-of-state bias, the inability to take advantage of federal procedure rules, and the inability to use multidistrict litigation procedure.

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About Product Liability Law Blog

The BSCR Product Liability Blog examines significant developments, trends, and topics in product liability law of interest to individuals and product manufacturers, distributors and sellers. Learn more about the editor, David E. Eisenberg,  and our Product Liability practice.

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