Segal McCambridge Legal Blog

As reported in the June 25, 2012 Indiana Lawyer

As of June 25th, 2012, a copy of the Indiana Supreme Court opinion can be found here

Indiana justices outline ‘˜improvement to real property’

For the first time, the Indiana Supreme Court addressed what constitutes an improvement to real property’? as mentioned in the construction statute of repose. In doing so, the justices reversed the trial court’s grant of a contractor’s motion for summary judgment in a wrongful death claim.

In 2007, Sharon Gill filed a complaint in Marion Superior Court against Evansville Sheet Metal Works and 18 other defendants asserting wrongful death claims. As to ESMW, she sought damages on theories of products liability and contractor negligence. Her husband worked at Aluminum Company of America in Newburgh and was allegedly exposed to and inhaled asbestos fibers during the course of his employment. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer in 2005.

ESMW allegedly worked as a contractor for Alcoa at a common worksite with Gill’s husband.

The Marion Superior Court placed the complaint on its Mass Tort Asbestos Litigation Docket and eventually granted ESMW’s motions for summary judgment on the grounds that Gill’s product liability and contractor negligence claims were barred by the product liability statute of repose and construction statute of repose, respectively. At issue Monday was only whether the construction statute of repose applied.

The Court of Appeals affirmed, finding Gill brought her claim outside the 10-year period stipulated in the statute, so her claim was barred.

Indiana courts have yet to define the meaning of improvement to real property’? as used in Indiana Code 32-30-1-5 (2004). The justices cited the statute in effect at the time of Gill’s complaint even though the statute was amended in 2005. Justice Frank Sullivan noted the court perceived no substantive difference between the former version and the current one.

Looking at how other states have handled this issue, the justices decided to take the commonsense’? approach that looks to the ordinary or plain meaning of the phrase. Whether something is an improvement to real property under the commonsense approach is a question of law, but its resolution is grounded in fact, Sullivan wrote in Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc., 49S05-1111-CV-672.

The high court held that an improvement to real property’? is an addition to or betterment of real property, that is permanent, that enhances the real property’s capital value, that involves the expenditure of labor or money, that is designed to make the property more useful or valuable, and that is not an ordinary repair.

In applying this commonsense definition, judges and lawyers should focus on these individual criteria but they should not lose sight of the fact that this is a definition grounded in commonsense,’? he wrote. The fact that a purported improvement satisfies each of these individual criteria may not be sufficient for it to be an improvement within the meaning of the CSoR if it would do violence to the plain and ordinary meaning of the term as used in the construction context.’?

In this case, ESMW failed to make a prima facie showing that its work at Alcoa constituted an improvement to real property. The justices remanded for further proceedings.

The justices also addressed the COA’s criticism of that Marion County court following its local rule allowing pre-discovery motions for summary judgment. They agreed with the COA judges that whether something is an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases, but disagreed with the conclusion that Local Rule 714 can’t be applied in this context.

The estate of a man who died from malignant mesothelioma did not produce enough evidence to prove he was exposed to the asbestos-containing brake shoes supplied by the defendant.

By Joe Forward, Legal Writer, State Bar of Wisconsin

Jan. 24, 2012 — In a recent decision, a Wisconsin appeals court reversed a $1.5 million damages award against a brake-shoe supplier whose product contained asbestos, concluding the evidence was insufficient to prove causation.

John Pender worked as a painter and glass setter for 41 years, from 1952 to 1993. In 2006, he was diagnosed with malignant mesothelioma and died shortly thereafter.

Pender's estate sued various product manufacturers based on negligence and strict products liability, claiming the brake shoes they supplied to Pender's employer, Harnischfeger Corp., contained asbestos that created an asbestos-laden dust during the grinding process.

Pneumo Abex LLC, a brake shoe supplier, was one of the manufacturers. Abex did not dispute that its product contained asbestos. But in Estate of John Pender v. Pneumo Abex LLC, (Jan. 18, 2012), the District I Wisconsin Court of Appeals agreed with Abex that the estate did not produce sufficient evidence to prove Pender had actual exposure to Abex's product.

The record indicated that Abex supplied brake shoes to Harnishfeger Corp. while Pender worked there, but there was insufficient evidence that Abex's brake shoes were supplied to the particular plant where Pender worked.

Harnishfeger had several plants in Milwaukee, and nine different companies supplied brake shoes to the company for a 20-year period. The other suppliers that Pender's estate sued were dismissed at the summary judgment stage. At trial, Abex stood as the sole defendant.

A jury found Abex liable on theories of both negligence and strict liability, awarding damages of nearly $1.5 million. But the appeals court ruled the case was over at summary judgment.

"We would have to pile inference upon inference in order to conclude that Pender was exposed to Abex's brake shoes while working at the National Avenue plant," wrote Judge Kitty Brennan.

"The evidence fails to take Pender's alleged exposure outside the realm of speculation and conjecture." The court noted a lack of evidence that Abex's brake shoes were ever delivered to Harnishfeger's National Avenue plant specifically, or were ever present or grinded there.

"The evidence presented to the trial court created on a 'mere possibility' of causation, which is not enough to survive summary judgment," the appeals court concluded.

The original article can be found here

On August 5, 2011, the Vermont Supreme Court affirmed the grant of summary judgment to Goodyear Tire & Rubber Company, holding that the plaintiff’s evidence that exposure to benzene allegedly caused his cancer was insufficient to get to the jury.

Plaintiff was diagnosed with non-Hodgkin’s lymphoma which he attributed to benzene exposure that allegedly occurred between 1968 and 1973 while he was a teenager playing on a baseball field on the grounds of the former Goodyear rubber manufacturing plant. That plant was in aoperation for approximately 50 years (1936-1986) in Windsor, Vermont. Plaintiff sued, alleging that the field itself was polluted and that there was a “gully” in the outfield that transported foul-smelling and oily stormwater discharge away from the manufacturing plant. Plaintiff claimed that the discharge carried benzene from the plant through the field and that his exposure to the benzene caused his cancer. There was no evidence that Goodyear used benzene in the plant's manufacturing process, but the chemical is contained in petroleum products that were used at the plant.

Defendants moved for summary judgment. The lower court concluded that plaintiff was not entitled to present his case to a jury because he had provided insufficient evidence to support an inference that he had been exposed to benzene in any amount, let alone an amount that could have caused his illness, nor sufficient expert testimony sufficient to eliminate other potential causes of his disease. On appeal, plaintiff argued that his circumstantial evidence of causation was sufficient to present his case to the jury.

The Vermont Supreme Court affirmed the grant of summary judgment. Stating in part:

In sum, plaintiff proffered evidence indicating that, as a teenager some thirty-five years earlier, he frequently played on a field adjoining the Goodyear plant. A gully that ran across the field may have contained water contaminated by petroleum products containing benzene. Benzene has been associated with non-Hodgkins lymphoma, a general category of cancer under which plaintiff's subtype falls. Plaintiff's lymphoma was not caused by an immunodeficiency disorder, a known cause of that type of lymphoma.

Assuming that we accept all of this evidence as true, it falls well short of what plaintiff would be required to show in order to prevail in a jury trial. Indeed, if a jury were to find in favor of plaintiff on the evidence relied upon by plaintiff, we would have to overturn the verdict. In the end, plaintiff's suspicion that his cancer was caused by exposure to benzene on the Goodyear ballfield when he was a teenager is purely speculative. As plaintiff's own expert acknowledged, there is no way to know whether any benzene-containing product actually contaminated the ballfield. It is possible, of course. Although benzene itself was not used at the plant, plant operations entailed the use of petroleum products, including gasoline, that contain benzene. But even if we were to assume that benzene-containing products made their way into the gully and through the field, there is no evidence indicating the amount or concentration of benzene that was present. Nor is there any evidence indicating plaintiff's level of exposure to any benzene that may have been present on the field. Nor is plaintiff able to point to studies indicating a risk of cancer posed by exposure to limited amounts of benzene from petroleum products in an outside environment. Putting aside plaintiff's failure to demonstrate the presence of benzene in the field, a jury could only wildly speculate on the level of plaintiff's exposure to any such benzene and on the relationship between any such exposure and plaintiff's disease.

The Vermont Supreme Court also dealt with a side issue of alleged spoliation. Specifically:

Finally, we address the issue of spoliation.  Without citing any case law or pointing to anything in the record to support his vague accusations, plaintiff suggests that Goodyear was obligated to keep records of its release of contaminants from the plant but either failed to do so or destroyed any records that were kept, making it virtually impossible for him to prove his case.  Plaintiff fails to cite a specific legal basis for the obligation he claims Goodyear had to keep records.  Nor does he cite any evidence of spoliation or note any extensive attempt on his part to discover Goodyear's past records.  Under these circumstances, we find unavailing plaintiff's unsupported argument that Goodyear's lack of records should result in an inference "favorable to the plaintiff"—presumably that benzene made its way from the plant to the ballfield at a level of concentration sufficient to cause plaintiff's illness.

The entire opinion can be found online at Blanchard v. Goodyear Tire & Rubber Co., No. 2010-250 (Vt. 8/5/11).

From Point of Law.com

“A must-read landmark decision from Judge Easterbrook in Aqua Dots Product Liability Litigation. The Chinese manufacturer of the Aqua Dots toy used the wrong adhesive in the product process; when swallowed, the adhesive metabolized into gamma-Hydroxybutyric acid, i.e., GHB, the so-called date-rape drug, with predictably adverse effects for the small children who did so.

The companies involved acted responsibly when they discovered the problem, and recalled the product, offering refunds and replacements.

There are of course legitimate personal injury claims that stem from a defective product like this. But there were also class actions seeking recovery for economic loss. What economic loss when the manufacturer is offering a refund or replacement? Well, that’s a problem, isn’t it, but lawyer-driven class actions often seek to free ride off of and take credit for what the manufacturer is already doing for the sake of justifying a large attorneys’ fee: the attorneys in the similarly free-riding Mattel Lead Paint settlement asked for $12.9 million.

This will not fly in the Seventh Circuit now: “the district court should have relied on the text of Rule 23(a)(4), which says that a court may certify a class action only if ‘the representative parties will fairly and adequately protect the interests of the class.’ Plaintiffs want relief that duplicates a remedy that most buyers already have received, and that remains available to all members of the putative class. A representative who proposes that high transaction costs (notice and attorneys’ fees) be incurred at the class members’ expense to obtain a refund that already is on offer is not adequately protecting the class members’ interests.” It is good to see a court recognize that Rule 23(a)(4)’s adequacy requirement forbids class representatives from incurring socially wasteful litigation costs for the benefit of their attorneys at the expense of the class they represent. This will be an especially important principle in merger-and-acquisition strike suits.”

The Seventh Circuit decision can be found here

The Illinois Appellate Court for the Fourth District has overturned a $2.5 million verdict that was one of several controversial jury awards in asbestos cases filed in McLean County.

In the recent opinion, Plaintiffs claimed that Juanita Rodarmel, a Bloomington woman contracted mesothelioma after she was exposed to asbestos on the clothing of her first husband, Leslie Corry, an employee of the former Union Asbestos & Rubber Co. Corry worked at the plant from 1953 to 1956.

In their decision tossing out the 2009 verdict, the court rejected the plaintiff's argument that Pneumo Abex LLC and Honeywell International should be held accountable for Rodarmel's illness because the companies allegedly conspired with other firms to keep secret information about the hazards of asbestos.

The ruling issued in Springfield appears to have eviscerated the “conspiracy theory” used by attorneys in the Fourth District of Illinois. Specifically, the Court overruled the Burgess v. Abex Corp., 311 Ill. App. 3d 900, 903 (2000) case which had stood for the proposition that the suppression of the report counted as evidence of agreement between asbestos producer Johns-Manville and Abex predecessor American Brake and Block.

They overruled the Dukes v. Pneumo Abex Corp., 386 Ill. App. 3d 425 (2008) decision which allowed several pieces of evidence in support of the conspiracy theory.

Further, the Fourth District held that jury improperly found a duty on the part of employers, in the 1950s, to warn workers against carrying asbestos dust home on their clothes.

The Court wrote that “in 1953 through 1956, the infliction of illness merely from asbestos carried home on clothing was not reasonably foreseeable, given what was known during that period.”

Jurors had awarded $2 million in compensation, $400,000 in punitive damages against Honeywell, and $100,000 in punitive damages against Abex.

The trial court cut compensatory damages to $183,333, after subtracting amounts other companies had paid to settle Rodarmel’s claims.

Some interesting excerpts from the opinion, in terms of Plaintiff’s expert, Barry Castleman’s testimony with respect to animal studies and their casual significance:

“More to the point, perhaps, it was unclear what qualifications, if any, that Castleman had in the field of pathology and, more specifically, in cancer experimentation with mice. He apparently was not a medical doctor or a veterinarian.”

“So that leaves no one – that is, no one with relevant expertise – opining that the eight or nine tumorous mice, in an uncontrolled experiment, were scientific evidence of a causal relationship between asbestos and cancer in humans.”

With respect to Barry Castleman’s testimony on “take-home” exposures to asbestos:

“In summary, then, Castleman conceded the following three points in his testimony. First, it was not until mesothelioma was widely recognized as a disease distinctively related to asbestos that it became possible to scientifically track the risk of asbestos into the homes of workers through the occurrence of mesothelioma among family members. Lung cancer was too nonspecific for that purpose. Second, in the 1950s, mesothelioma was not yet widely recognized as an asbestos disease, that is, a disease distinctive to, or specific to, asbestos. Third, in 1955, it was still an open question whether a person could suffer harm from breathing asbestos in quantities insufficient to cause asbestosis.”

Justice Appleton expressed open contempt for the decision by the trial court for allowing evidence that Johns-Manville (not a party to the case) helped Honeywell’s predecessor, brake maker Bendix, in writing a position paper. “If this paper is evidence of a conspiracy, so is the New England Journal of Medicine.”

Further, the opinion held that membership of companies in trade associations cannot be counted as evidence of some kind of “conspiracy.” “Joining a trade organization was just as consistent with innocence as with guilt.”

The Illinois Appellate Court for the Fourth District opinion in the Rodarmel case can be found here

On June 29, 2011, the Indiana Supreme Court issued three split opinions dealing with what fees are recoverable under the Adult Wrongful Death Statute, holding that attorney fees, litigation expenses, and loss of services can be recovered. Chief Justice Randall T. Shepard and Justice Robert Rucker dissented in each of the three decisions, stating that those items are not permitted under the plain language of the statute.

The justices granted transfer to the three decisions in which separate Indiana Court of Appeals panels had reached opposite conclusions on each of these topics.

The three decisions can be found at
Jeffery H. McCabe v. Commissioner, Indiana Dept. of Insurance

Indiana Patient’s Compensation Fund v. Beverly S. Brown

The Indiana Lawyer has an article on the decisions which is here

In a decision available here, the Florida Supreme Court held in American Optical Corp., et al. v. Williams, et al., No. SC08-1617; American Optical Corp., et al., v. Spiewak, et al., No. SC08-1616 (Fla. Sup. Ct. July 8, 2011) that the Asbestos and Silica Compensation Fairness Act (the Act) could not be retroactively applied. The Court found that those who had filed cases had vested rights such that, as found the Fourth District, “new legislation enacted after that accrual which substantially affects the cause of action may not be retroactively applied to that cause of action.”

In determining that the claimants had a vested right, the Court cited to case law that “clearly demonstrates that particular physical symptoms were not required, and changes in the lung evidencing asbestos-related disease were sufficient to trigger a cause of action.” It further found that development of symptoms of impairment “has never been the legal factor in determining ‘manifestation’ or accrual under Florida law.” The Court stated that the inhalation of asbestos fibers, which “became embedded in the lungs of the plaintiffs” constituted an actual injury. Thus, with this vested cause of action, the Act did not meet the two-part test to determine if a statute may be applied retroactively.

First, the Court determined that the Legislature did specifically intend for the Act to apply retroactively. However, next, the Court determined that the Act violated the Florida Constitution. Despite the Legislature’s statement that the Act was remedial in nature and did not impact vested rights, for the reasons set forth above, the Court disagreed, stating that under the Act, “vested rights simply vanish.”

The Court further concluded that the unconstitutional portion of the Act could not be severed in regard to the Appellees, thus the entire Act could not be applied in regard to their cases.

For more information on the author of this post, click here.

In follow up to our post of “Segal McCambridge argues in front of the Indiana Court of Appeals” on March 29, 2011, the Indiana Court of Appeals affirmed the dismissal and compelled arbitration sought by Segal McCambridge client, Brown Mackie.  The Indiana Court of Appeals published opinion can be found here.

Shareholder Jason Kennedy and Associate Jill Felkins represented Brown Mackie on appeal.

From the Madison Record

Illinois Supreme Court deciding ‘take home’ asbestos case; CSX says if allowed would create ‘unlimited universe’ of plaintiffs

SPRINGFIELD – Illinois Supreme Court Justices must decide whether to allow claims that asbestos caused disease in families of workers who brought fibers home on their clothing.

CSX Transportation seeks to reverse appeals judges who ruled that the railroad should have warned the late Annette Simpkins about hazards her late husband Ronald Simpkins brought home.

“The list of potential plaintiffs is endless,” Kurt Reitz, of Thompson and Coburn in Belleville, wrote for CSX in February.

He wrote that in asbestos litigation, “once a duty is recognized, it will quickly become a magnet for new attempts to expand its scope.”

Ronald Simpkins worked for B&O Railroad from 1958 to 1964.

He and Annette divorced in 1965.

In 2007, she sued CSX and 72 other companies in Madison County.

She blamed CSX for “take home” exposure, as successor to B&O.

CSX moved to dismiss, denying it owed any duty to warn families of employees.

Annette Simpkins died three months after suing, and Circuit Judge Daniel Stack substituted daughter Cynthia as plaintiff.

At a hearing, CSX argued that only appellate courts or legislatures can create new causes of action.

Stack dismissed the case and said, “It sounds like a great argument for the Supreme Court.”

Fifth District judges in Mount Vernon reversed Stack last year, finding B&O should have foreseen a risk to Annette while Ronald worked for the railroad.

“CXS argues that the B&O Railroad did not know of the dangers of take-home asbestos while Ronald Simpkins worked for it,” Justice Melissa Chapman wrote.

“The question, however, is not whether the employer actually foresaw the risk to Annette Simpkins; rather, the question is whether, through reasonable care, it should have foreseen the risk,” she wrote.

“While apparently the likelihood of contracting mesothelioma or another asbestos related lung disease through take-home exposure varies depending on the duration of exposure, these cases also demonstrate that the likelihood of developing such a disease from anything more than incidental exposure is not remote,” she wrote.

“We do not believe that the issue of whether anyone other than a member of an employee’s immediate family is owed a duty is before us,” she wrote.

“Whether harm to any such person is foreseeable depends on an assessment of circumstances not presented in this case,” she wrote.

“While we do not expressly limit the duty to immediate family members, we decide today only that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure,” she wrote.

“Should a proper case arise, we can consider whether the duty extends to others who regularly come into contact with employees who are exposed to asbestos containing products,” she wrote.

“Duty is not the equivalent of liability; she must still prove a breach and proximate cause,” she wrote.

Justices James Donovan and James Wexstten concurred.

Reitz appealed to the Supreme Court, writing that the decision “creates a specter of massive liability to an unlimited universe of potential plaintiffs.”

He wrote that Simpkins died of lung cancer after smoking a pack and a half a day for 41 years.

Heath Hooks, a colleague of Reitz at Thompson Coburn in Belleville, also represents CSX.

So do Michelle Odorizzi of Chicago and Andrew Tauber of Washington, both with the firm of Mayer Brown.

John Barnerd and Amy Garrett, both of John Simmons’s firm in East Alton, and Charles Chapman of Lakin Chapman in Wood River, represent Cynthia Simpkins.

Here is the Madison Record article

Related to our previous posts on “Further reaction to the $90M asbestos verdict in Illinois,” “Illinois jury awards almost $90 million in asbestos suit,” and “Reaction to the $90M asbestos verdict from Illinois” below is a recent article from the Madison Record, “Fourth District weighing asbestos conspiracy and ‘take home’ verdicts out of Bloomington”

The oral argument referenced in the below article, In re Estate of Holmes Case No.: 4-10-0462 argued 3-16-11 can be found here

Fourth District weighing asbestos conspiracy and ‘take home’ verdicts out of Bloomington
3/21/2011 7:24 AM By Steve Korris

SPRINGFIELD – Defendants say they will appeal a recent McLean County jury’s $90 million verdict in an asbestos conspiracy trial, but for practical purposes they already did.

Five days after jurors hit Honeywell and Pneumo Abex with $20 million each in punitive damages, Honeywell and Abex argued at the Fourth District for relief from an earlier conspiracy verdict.

The district’s website posted a link to audiotape of the March 16 oral argument, which featured Justices James Knecht, Thomas Appleton and John Turner.

The Fourth District plans oral argument on another McLean County conspiracy verdict on April 28.

The court clerk will announce in April whether the same judges will hear it.

Last year Honeywell, as successor to Bendix, and Abex, successor to American Brake and Block, appealed verdicts in two other conspiracy trials with five plaintiffs.

In all the cases, clients of local lawyer James Wylder claim business owners concealed the risks of asbestos 40 to 100 years ago, in order to protect profits.

Wylder’s clients hold Honeywell responsible for buying a company that bought a company that conspired with other companies.

Punitive damages matter a great deal in McLean County, because defendants set off compensatory damages by the amounts of prior settlements with other companies.

In the case set for April 28, offsets caused Circuit Judge Dennis Drazewski to reduce compensatory damages from $2,000,000 to $183,333.34.

He abided by the jury’s judgment on punitive damages, entering $400,000 against Honeywell and $100,000 against Abex.

Honeywell and Abex appealed in October.

“Plaintiffs failed to present evidence of any type of outrageous conduct similar to that usually found in a crime,” Michael Weaver of Chicago wrote for Honeywell.

“Even in the light most favorable to plaintiffs, Honeywell’s conduct is not close to the standard required for the submission of punitive damages,” he wrote.

He wrote that no evidence provided sufficient basis to hold Honeywell liable for civil conspiracy.

“Illinois law requires that there be a relationship between the plaintiff and a defendant before a court may impose a duty, so that defendants will not be subject to limitless liability to an indeterminate class of persons conceivably injured by its negligent acts,” Weaver wrote.

The appeal the judges heard on March 16 didn’t involve punitive damages, but instead challenged both the conspiracy theory and a theory that workers took asbestos home on their clothes.

The “take home” theory recently prevailed at the Fifth District appeals court in Mount Vernon, but defendant CSX Transportation petitioned the Illinois Supreme Court for review.

“The list of potential plaintiffs is endless,” Kurt Reitz of Belleville wrote for CSX in a Supreme Court brief on Feb. 16.

Jurors at the “take home” trial in McLean County awarded $2,632,611.66 in compensatory damages to Roger Holmes for the estate of Jean Holmes.

Drazewski reduced it to $1,546,361.66.

On appeal, Craig Zimmerman of Chicago argued that Honeywell owed no duty to the decedent, evidence of conspiracy was insufficient, and Drazewski misstated the law to the jury.

“Bendix’s conduct throughout the 1930s and to early 1970s was the norm in corporate and industrial America, not the exception, as portrayed by plaintiff to the jury,” Zimmerman wrote.

On appeal for Abex, Reagan Simpson of Austin, Texas, argued that plaintiffs produced no evidence of duty or proximate cause.

“Abex finds itself potentially liable to persons who were never its employees, or customers, or invitees, for alleged injuries arising from raw materials Abex never used, products it did not make, manufacturing processes it did not use, and working conditions it did not create,” he wrote.

In a January brief for Honeywell, Weaver attacked the “take home” theory.

“As a matter of public policy, plaintiff’s theory stretches potential liability beyond reason and should be disallowed,” he wrote.

The latest McLean County verdict dwarfed those awards, punishing not only Honeywell and Abex but also Owens-Illinois, at $40 million.

Jurors awarded about $9 million in compensatory damages against Honeywell, Abex, Owens-Illinois, and John Crane Inc.