Product Liability Litigation

Below is a look at recent pivotal cases.

Massachusetts Appeals Court Ruling

MA appeals court notes, but does not address, admissibility of plaintiff's expert testimony that “each and every exposure to asbestos” is “substantial contributing factor” to disease; declines to decide whether manufacturer has duty to warn of dangers of another manufacturer's product.

In Morin v. Autozone Northeast, Inc., et al., 79 Mass. App. Ct. 39 (Mar. 14, 2011), the plaintiff's mother worked over the course of many years in offices near loading bays where her company's delivery trucks were maintained. After her mother died of mesothelioma, the plaintiff sued 40 vehicle parts manufacturers and retailers for wrongful death in Massachusetts Superior Court, asserting claims of breach of express and implied warranties of merchantability and negligence and alleging decedent's mesothelioma was caused by exposure to the defendants' asbestos-containing parts in the trucks. After the court granted summary judgment to 12 defendants on the ground that the plaintiff had presented insufficient evidence that their products contributed to her mother's death, the plaintiff appealed the judgment as to three defendants.

The Massachusetts appeals court reversed as to two defendants, but affirmed as to the third. The court first noted that to prove causation in an asbestos case, a plaintiff must establish: 1) that the defendant's product contained asbestos, 2) to which the victim was exposed, and 3) that such exposure was a substantial contributing factor in causing the victim's harm. The court also noted that the evidence as to the second element would generally be sufficient if it “permit[ted] the reasonable inference of the presence at a work site of both the [victim] and the defendant's asbestos-containing product for an appreciable period of exposure.” The adequacy of the plaintiff's proof on the third element was not at issue because her expert had testified at deposition that “each and every exposure to asbestos that [the decedent] received as a bystander ' was a substantial contributing factor in causing [her] malignant mesothelioma,” and the admissibility of this opinion apparently was not challenged in the summary judgment proceedings.

Addressing the plaintiff's claims against the two defendants, both suppliers of replacement brakes and clutches, the court found that the plaintiff had presented sufficient evidence to establish the element of asbestos content. In so finding, the court cited the deposition testimony of two of the decedent's coworkers that they had purchased from each of the defendants replacement brakes and clutches with the word “asbestos” on the packaging, and defendants' admissions that their stores carried some asbestos-containing brakes and clutches in the 1970s and 1980s when the maintenance work at issue was done. Additionally, the two co-workers testified that: 1) each defendant was one of eight suppliers from whom they bought replacement brakes and clutches; 2) the co-workers had performed “hundreds” such replacements, generally one every two or three days in the decades in question; and 3) they had used air hoses to blow brake dust from the company vehicles during brake replacement.

Moreover, the decedent's office was only 30 feet from the vehicle bays, and she walked through the area ten or more times a day. Considered alongside the plaintiff's expert's testimony that asbestos fibers can remain airborne for long periods and drift considerable distances, the court found that a jury could infer decedent had been “in close proximity” to the defendants' asbestos-products “on numerous occasions,” so that there was sufficient evidence of exposure.

As to the third defendant, a trailer manufacturer, the court found that there was insufficient evidence for a jury to conclude that its originally installed brakes, even if they contained asbestos, were still in the trailer at the time decedent's company acquired it. Regarding the plaintiff's claim that the defendant should have warned of the danger of using compressed air in removing replacement brakes of any manufacturer, the court found it unnecessary to decide whether Massachusetts law would hold that a manufacturer has a duty to warn about the foreseeable risks of a product supplied by others. The court held that, even if such a duty were to be recognized, there was insufficient evidence here to find that the decedent was exposed to anything other than “insignificant or de minimis” asbestos from other manufacturers' brakes, as the trailer's brakes were worked on only six or seven days during the seven years decedent's company owned it and there was no evidence as to which, if any, of the replacement brakes contained asbestos.

First Circuit Ruling

First Circuit holds expert opinion that benzene causes rare leukemia subtype admissible because applying “Bradford Hill” or “weight of the evidence” criteria to conclude association between benzene and disease was causal is scientifically reliable; court, however, appears to ignore lack of scientifically reliable evidence of association.

The plaintiffs in Milward v. Acuity Specialty Products Group, Inc., 2011 U.S. App. LEXIS 5727 (1st Cir. Mass. Mar. 22, 2011), sued three chemical companies in the United States District Court for the District of Massachusetts, claiming workplace exposure to their benzene-containing products had caused the plaintiff husband to develop acute promyelocytic leukemia (APL). After a four-day evidentiary hearing, the district court excluded the plaintiffs' expert's “general causation” opinion that benzene is capable of causing APL in humans generally, ruling that plaintiffs had not demonstrated the testimony to be reliable as required by Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Based on the lack of essential expert testimony, the court entered judgment for defendants.

The First United States Circuit Court of Appeals reversed. The court held that the expert had indeed applied a reliable methodology, namely making a scientific judgment that the “weight of the evidence,” considering generally accepted criteria enumerated years ago by the British epidemiologist Sir Arthur Bradford Hill, as well as additional similar criteria, “supported the inference that the association between benzene exposure and APL is genuine and causal.” The Bradford Hill criteria include such factors as the temporal relationship between exposure and disease, strength of the association between the two, presence of a dose-response relationship and biological plausibility of causation in light of existing scientific knowledge.

At the outset, the court acknowledged that APL is a relatively rare subtype of acute myeloid leukemia (AML), which is itself one of four broad leukemia types, and that while there was a scientific consensus that APL was in part caused by a particular genetic mutation, there was no consensus as to the cause(s) of that mutation. In addition, while there was epidemiologic evidence of a statistically significant association between benzene exposure and AML generally, there was no such evidence specifically with respect to APL.

The district court had found the expert's causation opinion unreliable because, among other things, it was based upon data concerning the genetic mutations involved in other AML subtypes, as well as animal and in vitro studies about the possible role of benzene metabolites in causing those mutations, to support the conclusion that benzene caused APL, even though it involved a different mutation. The appeals court, however, held that in so doing the district court had “placed undue weight on the lack of general acceptance of [the expert]'s conclusions and crossed the boundary between gatekeeper and trier of fact” by making its own “evaluation of the weight of the evidence.” The appellate court also suggested the trial judge had misunderstood the Bradford Hill/weight of the evidence methodology as requiring that each criterion analyzed by the expert by itself reliably demonstrate causation, rather than merely that the criteria cumulatively do so.

It appears from the court's opinion, however, that the court committed precisely the error of which it accused the trial court ' namely, of misunderstanding the Bradford Hill methodology, which is only intended to guide the determination of causality where epidemiological studies have demonstrated a statistically significant association between the exposure and disease at issue. Indeed, many of the Bradford Hill criteria themselves ' such as the strength of the association and the presence of a dose-response relationship ' only underscore this fact. Here, there was no such association, and the court did not purport to analyze whether there was any methodology that supports drawing scientifically reliable conclusions, as opposed to merely offering hypotheses for further investigation, about the causation of one disease or genetic mutation from evidence about another.

David R. Geiger, a member of this newsletter's Board of Editors, served for seven years as Deputy Chair and Chair of Foley Hoag's Litigation Department, and since 1989 has headed the firm's Product Liability and Complex Tort Practice Group. Creighton K. Page is an Associate in the firm's Litigation Department.

Below is a look at recent pivotal cases.

Massachusetts Appeals Court Ruling

MA appeals court notes, but does not address, admissibility of plaintiff's expert testimony that “each and every exposure to asbestos” is “substantial contributing factor” to disease; declines to decide whether manufacturer has duty to warn of dangers of another manufacturer's product.

In Morin v. Autozone Northeast, Inc., et al., 79 Mass. App. Ct. 39 (Mar. 14, 2011), the plaintiff's mother worked over the course of many years in offices near loading bays where her company's delivery trucks were maintained. After her mother died of mesothelioma, the plaintiff sued 40 vehicle parts manufacturers and retailers for wrongful death in Massachusetts Superior Court, asserting claims of breach of express and implied warranties of merchantability and negligence and alleging decedent's mesothelioma was caused by exposure to the defendants' asbestos-containing parts in the trucks. After the court granted summary judgment to 12 defendants on the ground that the plaintiff had presented insufficient evidence that their products contributed to her mother's death, the plaintiff appealed the judgment as to three defendants.

The Massachusetts appeals court reversed as to two defendants, but affirmed as to the third. The court first noted that to prove causation in an asbestos case, a plaintiff must establish: 1) that the defendant's product contained asbestos, 2) to which the victim was exposed, and 3) that such exposure was a substantial contributing factor in causing the victim's harm. The court also noted that the evidence as to the second element would generally be sufficient if it “permit[ted] the reasonable inference of the presence at a work site of both the [victim] and the defendant's asbestos-containing product for an appreciable period of exposure.” The adequacy of the plaintiff's proof on the third element was not at issue because her expert had testified at deposition that “each and every exposure to asbestos that [the decedent] received as a bystander ' was a substantial contributing factor in causing [her] malignant mesothelioma,” and the admissibility of this opinion apparently was not challenged in the summary judgment proceedings.

Addressing the plaintiff's claims against the two defendants, both suppliers of replacement brakes and clutches, the court found that the plaintiff had presented sufficient evidence to establish the element of asbestos content. In so finding, the court cited the deposition testimony of two of the decedent's coworkers that they had purchased from each of the defendants replacement brakes and clutches with the word “asbestos” on the packaging, and defendants' admissions that their stores carried some asbestos-containing brakes and clutches in the 1970s and 1980s when the maintenance work at issue was done. Additionally, the two co-workers testified that: 1) each defendant was one of eight suppliers from whom they bought replacement brakes and clutches; 2) the co-workers had performed “hundreds” such replacements, generally one every two or three days in the decades in question; and 3) they had used air hoses to blow brake dust from the company vehicles during brake replacement.

Moreover, the decedent's office was only 30 feet from the vehicle bays, and she walked through the area ten or more times a day. Considered alongside the plaintiff's expert's testimony that asbestos fibers can remain airborne for long periods and drift considerable distances, the court found that a jury could infer decedent had been “in close proximity” to the defendants' asbestos-products “on numerous occasions,” so that there was sufficient evidence of exposure.

As to the third defendant, a trailer manufacturer, the court found that there was insufficient evidence for a jury to conclude that its originally installed brakes, even if they contained asbestos, were still in the trailer at the time decedent's company acquired it. Regarding the plaintiff's claim that the defendant should have warned of the danger of using compressed air in removing replacement brakes of any manufacturer, the court found it unnecessary to decide whether Massachusetts law would hold that a manufacturer has a duty to warn about the foreseeable risks of a product supplied by others. The court held that, even if such a duty were to be recognized, there was insufficient evidence here to find that the decedent was exposed to anything other than “insignificant or de minimis” asbestos from other manufacturers' brakes, as the trailer's brakes were worked on only six or seven days during the seven years decedent's company owned it and there was no evidence as to which, if any, of the replacement brakes contained asbestos.

First Circuit Ruling

First Circuit holds expert opinion that benzene causes rare leukemia subtype admissible because applying “Bradford Hill” or “weight of the evidence” criteria to conclude association between benzene and disease was causal is scientifically reliable; court, however, appears to ignore lack of scientifically reliable evidence of association.

The plaintiffs in Milward v. Acuity Specialty Products Group, Inc., 2011 U.S. App. LEXIS 5727 (1st Cir. Mass. Mar. 22, 2011), sued three chemical companies in the United States District Court for the District of Massachusetts, claiming workplace exposure to their benzene-containing products had caused the plaintiff husband to develop acute promyelocytic leukemia (APL). After a four-day evidentiary hearing, the district court excluded the plaintiffs' expert's “general causation” opinion that benzene is capable of causing APL in humans generally, ruling that plaintiffs had not demonstrated the testimony to be reliable as required by Daubert v. Merrill Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). Based on the lack of essential expert testimony, the court entered judgment for defendants.

The First United States Circuit Court of Appeals reversed. The court held that the expert had indeed applied a reliable methodology, namely making a scientific judgment that the “weight of the evidence,” considering generally accepted criteria enumerated years ago by the British epidemiologist Sir Arthur Bradford Hill, as well as additional similar criteria, “supported the inference that the association between benzene exposure and APL is genuine and causal.” The Bradford Hill criteria include such factors as the temporal relationship between exposure and disease, strength of the association between the two, presence of a dose-response relationship and biological plausibility of causation in light of existing scientific knowledge.

At the outset, the court acknowledged that APL is a relatively rare subtype of acute myeloid leukemia (AML), which is itself one of four broad leukemia types, and that while there was a scientific consensus that APL was in part caused by a particular genetic mutation, there was no consensus as to the cause(s) of that mutation. In addition, while there was epidemiologic evidence of a statistically significant association between benzene exposure and AML generally, there was no such evidence specifically with respect to APL.

The district court had found the expert's causation opinion unreliable because, among other things, it was based upon data concerning the genetic mutations involved in other AML subtypes, as well as animal and in vitro studies about the possible role of benzene metabolites in causing those mutations, to support the conclusion that benzene caused APL, even though it involved a different mutation. The appeals court, however, held that in so doing the district court had “placed undue weight on the lack of general acceptance of [the expert]'s conclusions and crossed the boundary between gatekeeper and trier of fact” by making its own “evaluation of the weight of the evidence.” The appellate court also suggested the trial judge had misunderstood the Bradford Hill/weight of the evidence methodology as requiring that each criterion analyzed by the expert by itself reliably demonstrate causation, rather than merely that the criteria cumulatively do so.

It appears from the court's opinion, however, that the court committed precisely the error of which it accused the trial court ' namely, of misunderstanding the Bradford Hill methodology, which is only intended to guide the determination of causality where epidemiological studies have demonstrated a statistically significant association between the exposure and disease at issue. Indeed, many of the Bradford Hill criteria themselves ' such as the strength of the association and the presence of a dose-response relationship ' only underscore this fact. Here, there was no such association, and the court did not purport to analyze whether there was any methodology that supports drawing scientifically reliable conclusions, as opposed to merely offering hypotheses for further investigation, about the causation of one disease or genetic mutation from evidence about another.

David R. Geiger, a member of this newsletter's Board of Editors, served for seven years as Deputy Chair and Chair of Foley Hoag's Litigation Department, and since 1989 has headed the firm's Product Liability and Complex Tort Practice Group. Creighton K. Page is an Associate in the firm's Litigation Department.