The Dallas Court of Appeals sitting en banc recently denied review of a panel decision that reversed an $8.8 million dollar asbestos verdict and rendered a take-nothing judgment in favor of an employer in Bell Helicopter Textron, Inc. v. Dickson. The Court found missing any evidence that the employer knew in the 1960s that the millboards at issue contained asbestos. Because there was no evidence the employer had actual, subjective knowledge of any asbestos exposure risk, the employer could not be held liable under Texas law. Continue Reading Texas Appellate Court Divided On Reversal Of Jury Verdict In Favor Of Mesothelioma Plaintiffs

Heavy metals, such as arsenic, lead, cadmium, and mercury, are present in baby foods produced by U.S. baby food manufacturers according to a report released in February by the U.S. House of Representatives Subcommittee on Economic and Consumer Policy. Heavy metals are considered dangerous to human health and are especially concerning for children and babies, who are more susceptible to the neurological effects associated with exposure to heavy metals.

The Report

The report found significant levels of heavy metals in baby foods, unleashing a storm of consumer litigation with at least six class action lawsuits currently pending against baby food manufacturers. Initiated in response to reports of high levels of toxic metals in baby food, the report was compiled from internal company documents and test results from four of the largest manufacturers of baby food. Among several recommendations, including labeling and mandatory testing, the report emphasized the importance of the U.S. Food and Drug Administration (FDA) setting limits on allowable levels of heavy metals in baby food.

Safety Standards

Currently, the FDA has only one action level for heavy metals in baby food: a 100 ppb inorganic arsenic standard for infant rice cereal. Many argue that this is insufficient, especially given the long-term implications of heavy metal exposure for infants and children. Other government entities have established significantly lower action levels or require warnings on products due to the presence of heavy metals. The European Union has set maximum allowable levels of lead at 20 ppb in baby food, whereas California’s Proposition 65 requires businesses to warn consumers about significant exposures to Arsenic, Cadmium, Lead, and Mercury. In a recently released statement, the FDA emphasized that “FDA scientists routinely monitor levels of toxic elements in baby foods” through the Total Diet Study with the goal of reducing “exposure to toxic elements in foods to the greatest extent feasible.” The FDA also noted that heavy metals present in the environment may enter food through soil, water or air and cannot be completely avoided in fruits, vegetables or grains that are used in baby foods. These reassurances have done little to stem the flood of lawsuits.

Tough Road for Plaintiffs

Although the lawsuits are piling up, it is difficult to tell how successful plaintiffs will ultimately be. Plaintiffs will face significant hurdles in showing damages and outlining solutions for reduction of heavy metals in foods. Further, the resulting damage will be difficult to quantify. Similar lawsuits historically have had a hard time gaining traction and are often dismissed by the court. There are also real questions concerning redressability in this case. As the FDA highlighted in its recent statement, these metals are naturally occurring, and food manufacturers have a limited ability to reduce the presence of heavy metals in the produce and grains used to make foods. While there is a strong emotional appeal behind these lawsuits, it remains to be seen whether the courts will offer a viable solution.

The Fourth Circuit recently held that a premises owner in an asbestos case was not liable to a pipefitter based on insufficient evidence of exposure and the independent contractor exception to landowner liability.
Continue Reading Fourth Circuit Affirms Summary Judgment Based on North Carolina Independent Contractor Exception

HB 3360, vetoed by Gov. Pritzker on March 25, would have imposed 9 percent prejudgment interest on personal injury and wrongful death claims in Illinois. This is the governor’s first bill rejection in two years and his ninth veto since taking office.

HB 3360’s pathway to Gov. Pritzker’s desk was unusual: it was passed quickly and quietly during the Illinois legislature’s January lame duck session, where lawmakers worked through the night to get the bill finalized. The governor was expected to sign the bill as soon as it passed, but, surprisingly, a wait ensued after it reached his desk, suggesting that the bill would require some work. See our prior analysis of HB 3360’s provisions.

Continue Reading Governor Pritzker Vetoes HB 3360, But A Revised Version Will Soon Return to His Desk

Specific causation in an asbestos matter was addressed in a recent decision by the First Department of the New York Supreme Court. Notably, the decision is the first time an appellate court in New York affirmed a jury verdict in a case where a plaintiff’s mesothelioma was caused by alleged asbestos-containing talcum powder. This decision should have limited, if any, implication on national toxic tort litigation because of the distinct facts relating to the case, however, an analysis of the case can provide valuable lessons for defendants preparing for trial. Continue Reading Specific Causation Standard Further Addressed in New York

All legal practitioners should be familiar with the concept of personal jurisdiction and its two subsets: general jurisdiction and specific jurisdiction; both of which are juxtaposed with the inalienable Due Process Clause which effectively and simultaneously restricts a given court’s authority to exercise personal jurisdiction over a defendant. It is no surprise that civil litigators are trained to instantly analyze and determine where a defendant corporation is headquartered and incorporated to ascertain whether a particular court maintains general jurisdiction. A substantial amount of time in contemplation is involved when analyzing the “sufficient minimum contacts” needed to advance specific jurisdiction arguments, or whether claims alleged “arise out of or even relate to” those minimum contacts in the first place.

Continue Reading Specific Jurisdiction and “In-Forum Business Conduct” Further Defined by Landmark SCOTUS Decision

Virtual civil jury trials will be scheduled statewide in New Jersey starting April 5, 2021, with consent to proceed remotely not required as part of the state’s two-phase approach to virtual jury trials for all dockets and tracks during the COVID-19 pandemic.

Continue Reading Virtual Civil Jury Trials Begin Without Consent in New Jersey Beginning April 5

In 2019, the Missouri legislature passed Senate Bill 224 (SB 224), effectively revising Missouri’s discovery rules to align them with the Federal Rules of Civil Procedure. (See our 2019 post for analysis of SB 224’s changes to the Missouri Rules of Civil Procedure.) The applicability of SB 224’s revisions remained unclear for some time, however, as the Missouri Supreme Court hesitated to adopt them into the Missouri Rules of Civil Procedure.

Continue Reading SB 224 Adopted: Missouri Discovery Rules Follow Federal Footsteps

The Tennessee Supreme Court’s opinion in Carolyn Coffman et al v. Armstrong International, Inc., et al., at least implicitly, recognized a “bare metal defense” for the first time under Tennessee law. The Court addressed the issue of whether, under Tennessee law, equipment defendants “had a duty to warn of the dangers associated with the post-sale integration of asbestos-containing materials manufactured and sold by others.” The Court held that, under the Tennessee Products Liability Act (TPLA), Tenn. Code Ann. §29-28-101 through 108, the equipment defendants did not have a duty to warn end users about the post-sale incorporation of asbestos containing products manufactured by third parties. Continue Reading Tennessee Supreme Court Implicitly Adopts the “Bare Metal Defense”

The Illinois Supreme Court recently held that an increased risk of future harm is not an injury; tossing a class action suit which sought damages related to the City of Chicago’s replacement of water meters and water main pipes. The named Plaintiffs had filed the case on behalf of all Chicago residents who had water mains or meters replaced or installed between January 2008 and January 2017. The suit alleged negligence and inverse condemnation against the City of Chicago.

Continue Reading <i>Increased Risk of Future Harm </i> is Not an Injury: Illinois Supreme Court Dismisses Lead Exposure Class Action Against City of Chicago