Cal Biz Lit

Glyphosate In the Trial Courts – Liability for Failure to Warn, Cancer Causation

As noted in CalBizLit on September 22nd, Proposition 65 warning requirements regarding the chemical glyphosate are currently being litigated. As it happens, aside from Proposition 65, glyphosate is also a subject of civil litigation, and is also in signficant dispute in that realm.
Let’s take a moment to be clear, because this is not actually universally understood: A company can be liable for a violation of Proposition 65 without any allegation (let alone proof) that anyone was injured as a result of that product’s sale or use in California. If Californians have been exposed to a potentially cancer causing or reproduction injury-inducing chemical without providing warning to California citizens, there is potential liability.
In contrast, liability under products liability theories in civil litigation requires that there be a finding that the given chemical not only was a potential cause of injury, but rather that it actually did cause (was “a substantial factor” in causing) an injury to the Plaintiff (or their decedent.)
The contrast between the two theories of liability is currently well illustrated when considering glyphosate. As noted in the September 22, 2021 edition of CalBizLit, there is a Court Order coming from the US District Court holding that the maker or user of glyphosate cannot be found liable under Proposition 65 for failure to have warnings about cancer risks on their products. The rationale is that it is a violation of the First Amendment to require such a warning because there is a substantial dispute in the scientific literature as to whether the product is actually a cancer causing substance.
In contrast, Bayer, the current manufacturer of the pesticide Round Up, which includes glyphosate as an active ingredient, is facing substantial civil liability. Most recently, the California Court of Appeals upheld a verdict that was rendered in 2019 favor of the Pilliod family. The husband and wife both claimed use of Round Up had caused them to develop non-Hodgkin’s Lymphoma. The jury had awarded them a total of $55 million in general damages, and $2 billion in punitive damages. The trial court reduced that number of $81 million total, including punitive damages, and the Pilliods agreed to accept that amount.
Bayer did not agree to even the reduced damages. In upholding the Judgment the Court of Appeals specifically approved the punitive damages by noting “Monsanto’s conduct evidenced reckless disregard of the health and safety of unsuspecting consumers it kept in the dark”.
Quite a contrast with a finding that companies that use glyphosate cannot be forced to put a Proposition 65 warning on the product. And this verdict is not an isolated one:: Bayer has paid out some 411 billion to settle cases pending against it for damages allegedly result in from glyphosate exposure. Bayer is, however, pursuing in the US Supreme Court a preemption defense based on 7 U.S.C. § 136 et seq., which requires that prior to distributing a pesticide in commerce, a manufacturer must register the pesticide with the United States Environmental Protection Agency (USEPA) by submitting scientific data regarding efficacy and health and environmental impacts, as well as proposed product labeling.

CAL Supremes Reverse Previous Appellate Cases, Rule In Favor Of Plaintiffs In “Take-Home” Exposure Asbestos Cases

So as not to bury the lede, here’s the short version: Last week, the California Supreme Court overruled two recent Court of Appeals decisions to hold that a company can be held liable for negligence liability when it exposes an employee to asbestos fibers, the employee takes the fibers home on his or her clothing, a member of the household is exposed to the asbestos and as a result, develops a disease and dies.

The case is Kesner v. Superior Court, December 1, 2016, S219534. It constitutes a ruling in favor of asbestos plaintiffs on an issue that has been legally hot and factually contested all over the United States. When applying the decision to a take-home exposure asbestos case, all one needs to know is the Cal Supremes ruled there was a legal duty owed by employers to members of their employees’ households not to expose those household members to asbestos fibers.

But for other tort practitioners, the Kesner case is a good example of how the seven factors from the nearly 50 year-old decision of  Rowland v. Christian (1968) 69 Cal.2^nd 108 will be used for the court to determine whether there is a legal duty – a decision always made by the court, not the jury. More about this after the jump. 

Some Little Bits And Pieces From The California Courts

What do bloggers do when they don't have time for real posts?  Stitch together some little pieces of stuff.  So here are CBL's pieces for February:

The California Courts of Appeal keep banging their heads against the wall when it comes to arbitration, finding arbitration agreements unconscionable and refusing to enforce them no matter what the US Supreme Court said in AT & T Mobility v. Concepcion (2011) ___ U.S. ___.  You can see lots of examples in previous posts here, here and here.

And this month, we've got two more cases:  Ajamian v. Cantorcoe2E (Feb 16, 2012) ___Cal.App.4th___ and Mayers v. Volt Management Corp. (February 27, 2012) ___Cal.App.4th___.  Be curious to see how many times Calfornia courts have to get slapped down by SCOTUS on this issue.

An in the "Crystal Ball Actually Worked" department, we bring you  Gonzales v. Southern California Gas S188956, where a Court of Appeal ruled that a gas company owed no duty in connection with its placement of a gas meter more than 11 feet from the curb in a 25 mph residential zone;  the teenage driver decedent in the case took evasive action to avoid another car, jumped the 8 foot curb,  smashed into the gas meter, caused a fire and died from her burns.  In December of last year, CBL predicted the Cal Supremes would depublish the decision, meaning it would have no stare decisis effect.  Sure enough, on February 22, the Supreme Court denied a hearing, and ordered that the decision not be published in official reports.

What's The Tort Law About Duty for Placing Stationary Objects? It's Anybody's Guess.

Let's review how tort legal duty works under California law:

In Bigbee v. Pacific Telephone and Telegraph Company (1983) 34 Cal.3d 49, the Cal Supremes during one of their more, um, interesting eras, ruled that the phone company had a duty not to locate a telephone booth 15 feet from a parking lot where a drunk driver might jump the curb and run into it, injuring the poor shcnook in the booth just trying to make a call.

 

 

Then there was Gonzales v. Southern California Gas S188956, in which the Fourth District Court of Appeal held the gas company owed no duty in connection with its placement of a gas meter more than 11 feet from the curb in a 25 mph residential zone;  the teenage driver decedent in the case took evasive action to avoid another car, jumped the 8 foot curb,  smashed into the gas meter, caused a fire and died from her burns.

Next was  Cabral v. Ralphs Grocery Co.(2011) 51 Cal. 4th 764, where the modern-day, much more conservative 21st century Cal Supremes found that a truck driver had a duty not to park his truck on the dirt shoulder 16 feet off the Interstate freeway while he was stopped for a snack, resulting in his being struck by the decedent's pickup which, while going 70 - 80 miles per hour, swerved off the freeway and into the shoulder, rearending the truck driver.

As CBL predicted, the Supremes then sent the no-liability decision in Gonzales back to the Court of Appeal for a do-over.  The results of which were published earlier this month. And after considering the Cabral decision, the Court of Appeal re-issued the Gonzales decision with the same result:  no legal duty.  Said the Court of Appeal, this case is not the same as Cabral.  There, the negligent truck driver was on the shoulder adjacent to freeway traffic going 70 - 80 miles per hour.  So cars and trucks and pickups are foreseeably going to go flying all over the place.  

But in Gonzales, the adjacent roadway had a speed limit of 25 mph.  And it is not foreseeable, said the court, that cars at that very low speed are going to fly into gas meters 11+ feet away.  Legal duty requires forseeablility and is decided as a matter of law.  And the Court of Appeal ruled that there was no foreseeability as a matter of law and therefore, no legal duty.

Unlike SCOTUS, which sometimes hears the same or similar issues repeatedly (particularly when it wants to spank the 9th Circuit or reinforce its message that the California courts can't mess with arbitration), Cal Supremes don't grant hearings to decide issues they have already decided.  So they almost certainly won't be hearing Gonzales.  But they do have the authority to "depublish" lower court decisions they don't like;  this means the decisions lose their stare decisis value and are binding only on the parties.  Although CBL thinks the Gonzales court has the better argument, its decision looks like a prime candidate for depublication.

What's New At Cal Supremes

Here are a couple of updates on cases CBL has reported on over the last few months.

First, under the category "Court of Appeals Pokes SCOTUS in Eye," binding arbitation division, CBL reported on July 14 about Brown v. Ralph's Grocery Stores (July 12, 2011) ___Cal.App.4th ___ (2nd Dist., B222689) wherein the Court of Appeals used some extremely convoluted reasoning to try to get around the US Supremes' disapproval of  Discover Bank v.  Superior Court (2005) 36 Cal.4th 148.  The Brown court essentially tossed a  binding arbitration provision with a class action waiver in an employment action brought under California's Private Attorney General Act.  The employer has petitioned the Cal Supremes for a hearing.  They have until November 21 to grant or deny a  hearing (if they grant themselves a 30-day extension).  The Cal Supremes' case number is S195850.

Second, under the category "Who just took my $15 million verdict away?" ancient precedent division, CBL reported in March on Leung v. Verdugo Hills Hospital (now an unciteable case) where the Court of Appeal relied on some very old authority to hold that release of one defendant in a multi-defendant lawsuit could result in the release of all defendants.  The Court of Appeal begged the Cal Supremes to take the case up.  The Cal Supremes have obliged and granted a hearing, and the first brief on the merits is due September 7.  The Cal Supremes' case number for this one is S192768.

Stay tuned.  CBL will keep you up to date.

Cal Supremes Decide Howell v. Hamilton Meats . . . . Correctly

So CBL had lots of posts about this issue, and lots of detail (if this all fascinates you, try this link, which has more links, where you'll find still more links, etc.), but frankly, the question is really simple:

You're a plaintiff in a tort. case.  You have bills from the doctor and hospital for $100K.  Your health insurance carrier pays them $15K, and they accept that as payment in full.  What do you get at trial, $100k in special damages, or $15K in special damages?

CBL's collegeague Georges Haddad went to the Cal Supremes hearing on this, and his crystal ball said the defense would win -- the answer was $15K.

Georges didn't get the last word -- the Cal Supremes did.  And turns out, Georges was right:

When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person‘s health insurer, an amount less than that stated in the provider‘s bill.  In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider‘s bill but never paid by or on behalf of the injured person?  We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.

Howell v. Hamilton  Meats (August 18, 2011) ___ Cal.4th ___.  End of story.  Plaintiff gets what was paid, not what was billed.  Correct result, sez CBL. 

This Just In: California Court Throws Out Tort Case For Want of Legal Duty

Last month, CBL was blogging about legal duty, cars flying off the street into phone booths and the like, and generally grumbling that tort duty seemed to extend just about every place and to everything.  Well, here's a case suggesting there may be some limits after all.

Back when California had actual factories where products were actually made, we used to see quite a few personal injury cases involving unguarded power presses and similar equipment.  I'm guessing most of those cases went to Asia along with the manufacturing and the equipment.  But Garcia v. Becker Bros. Steel Co. (April 18, 2011) ___Cal.App.4th____ (Second Dist., B221096) is such a case. 

Here's the deal:  Becker Bros. buys a slitter line (a collection of machines that slices sheet metal) from Cincinnati Company in 1973.  In 1974, California starts requiring guarding, and Cincinnati sends Becker Bros. a couple of letters telling it to guard the equipment.  Becker Bros. doesn't, and over the course of twenty-six years, one employee sustains a  finger-tip amputation.

In 1999, Becker Bros. sells the equipment to Columbia Steel.  Columbia Steel tanks, its bank takes the equipment.  Bank eventually sells the equipment to Lexwest.  In 2004, Lexwest's employee Garcia sustains a finger amputation using the still unguarded equipment.  Garcia sues Becker Bros. for strict product liability and negligence.

Trial court says ixnay, and Court of Appeal agrees.  1.  No strict product liability for occasional sale of equipment.  2.  As to negligence, no legal duty to an employee of a subsequent purchaser.   Period.  Ever.  Assuming, without deciding, that Becker Bros. may have owed a duty to employees of Columbia Steel, that's where the duty ended.  No legal duty to employees owners farther down the feeding chain.

How To Make a $15 Million Verdict Fly Away

[August 25, 2011 Update:  The Cal Supremes granted a hearing of this case on June 8.  Opening brief on the merits is due on September 8.]

There are lots and lots of multi-defendant tort cases in California.  And in many of them, some defendants settle without getting a good faith order under Code of Civil Procedure section 877.6, leaving other defendants to go to trial.  What if I were to tell you that, when that happens, the first defendant who takes a release wipes out most of the plaintiff's case against the other defendants?  I'm going out on a limb here and telling you that's the law.

Work with me here for a minute.  This is kind of inside baseball, but for those of you in the tort world, it's worth taking a look at.  Our case for today is called Leung v. Verdugo Hills Hospital (March 23, 2011) ___Cal.App.4th___ (Court of Appeals, 2nd Dist., B204908).

  Medical malpractice case v. doctor and hospital.  (If you do tort work but not med mal, keep reading anyway -- the med mal part doesn't matter). Catastrophic and tragic injury to newborn.  Doctor and plaintiff settle for doctor's $1 million policy, on condition that doctor sits as a defendant at trial.  Jury awards $250K in non-economic damages (the maximum under California's med mal reform statutes) and a thumping $15.2 million in economic damages (past and future medical, future lost earnings, etc., everything reduced to present cash value).  Jury finds doctor 55% at fault, hospital 40% and parents 5%.  But since California is a joint and several state for economic damages, the hospital is on the hook for (a) 40% of the $250K; (b) all of the $15.2M, less (c) about $10,000 from the doctors' settlement (just trust CBL on this -- we'll explain it some other time, and how the math works isn't the point of this case or this post). 

Instead, the point is this:  The case goes to the Court of Appeals, which takes all of the $15M+ in economic damages away.  Why? Because the Plaintiff's release of the doctor for the $1M policy is deemed a release of the hospital.

CBL hears you ask:  How did this happen and what does it mean to me?  Go the jump, and all will be revealed.

Look Out Where You Put That Phone Booth

The late Professor Finz  used to say that the first question in every tort case is this:  "Was there a legal duty?"  And that's the subject of today's discussion.

It was only a two weeks ago that CBL was blogging about Cabral v. Ralph's Grocery Company, S178799 and what it might augur for one of CBL's all time stupid cases, Bigbee v. Pacific Telephone and Telegraph Company (1983) 34 Cal.3d 49.  Yes, Bigbee was the case about the phone booth in the parking lot fifteen feet from the street and the drunk who ran off the road and crashed into it.

Cabral wasn't quite as silly as Bigbee;  rather it involved liability for Ralph's supermarkets after one of its drivers parked on a dirt shoulder off the freeway and the plainitff's decedent ineplicably drove his own vehicle off the freeway, slammed into the truck and died.

As CBL noted, the Supremes also issued a "grant and hold" for Gonzales v. Southern California Gas S188956, a case much more like Bigbee, in that it involved a claim of liability against a utility after the decedent jumped the curb in her car and slammed into a gas meter assembly more than eleven feet from the curb.  Would this be the end of Bigby? mused CBL.

Nah.  Unanimous decision in Cabral finding legal duty:

We conclude, contrary to the decision of the Court of Appeal, that Ralphs was not entitled to judgment notwithstanding the verdict on grounds either of lack of legal duty or insufficient proof of causation. The judgment of the Court of Appeal is therefore reversed.

More importantly is how they got there.  The logic runs like this:  Under Rowland v. Christian (1968) 69 Cal.2d 108 (our leading case on tort duty), the general rule is that everyone is responsible for the consequences of their own actions unless there is an exception based on public policy derived from the following factors:

. . . . the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

(Rowland, 69 Cal.2nd at 113).  Application of the Rowland factors is not case by case.  Rather:

we have asked not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.

(Slip op. at 7.)  So unless the court is prepared to say that there will never be a duty owed by the guy who parks on the freeway shoulder to the driver who veers out of control, there will always be a duty.

Likewise, we may assume, the Supremes are not prepared to rule out liability for a utility in any case, under any circustances, where a vehicle veers off the road and flies into the utility's structure.  So it seems like a pretty safe bet the same Supremes will send Gonzales back to the Court of Appeal with directions to reconsider it in light of the decision in Cabral.  And it's also a pretty good bet that Bigbee continues as good law.  Well, maybe not good law.  But valid authority.

As the Supremes wrote years ago: 

there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury.

Thing v. La Chusa (1989) 48 Cal.3d 644, 668.  

 

Will Cal Supremes Overturn That Stupid Telephone Booth Case?

Take a seat right there, children, and Uncle CBL will tell you one of his long boring stories about the olden days.

Once upon a time, before we all carried our own telephones around with us and before we all became so important that we had to answer calls in the movie theater, in depositions and in church, there were structures called telephone booths.  These were big glass or plastic-enclosed boxes.  They contained big black clunky land-line telephones that often ate our quarters without allowing us to complete our calls.  And they sometimes contained big plastic telephone book covers (telephone books = directories we used to look up numbers before the Internets came along).  The telephone book covers were normally empty, or had a bunch of torn up useless yellow pages.

Anyway, in 1983, the California Supreme Court, presided over by Chief Justice Rose Bird, wrote a decision that said the telephone company could be held liable for placing a telephone booth in a parking lot, fifteen feet from the street, where a drunk driver ran off the road, crashed into it and severely injured somebody inside.  The case was Bigbee v. Pacific Telephone and Telegraph Company (1983) 34 Cal.3d 49, described by one of Uncle CBL's favorite Superior Court judges as "one of the stupidest decisions ever to come out of the Supreme Court."

Late last year, the Supremes granted a hearing in the case of Cabral v. Ralph's Grocery Company, S178799.  As described by the Court, the issues are these:

(1) Does a big-rig truck driver owe a duty of care to freeway motorists not to park for non-emergency reasons in an "Emergency Parking Only" area at the side of a freeway? (2) Was the driver's act of parking in the "Emergency Parking Only" area not a substantial factor, as a matter of law, in causing plaintiff's injuries in this case?

The Court of Appeal ruled (in a non-citeable decision) that the driver who parked his truck owed no legal duty to the decedent who ran into his truck, so that judgment for the plaintiff was reversed.

The case was argued and submitted last week, so we'll hear something in the next sixty days.  But that isn't the interesting part.  Here's the interesting part:

Last month, the Supremes issued a "grant and hold" -- meaning "we aren't really going to hear this case, but we're going to hear another one kind of like it and the decision in the first case may dispose of this one" -- in Gonzales v. Southern California Gas S188956.  This was an unpublished decision, which in California means it can't be cited, has no precedential value, means nothing to anybody but the immediate parties.  But it's a death case, where plaintiffs received a judgment of $800,000 after their daughter swerved to avoid a coming car, jumped a curb and crashed her car into defendant's gas meter assembly more than eleven feet from the curb.  The Court of Appeal took the judgment away and ordered the trial court to enter judgment for Southern California Gas.

Facts sound familiar?  The main difference between these and Bigbee, the phone booth case, seem to be that the victims here were in the moving object, not the stationary one.  Well, that isn't quite the only difference -- there had been one previous incident involving the Bigbee phone booth. 

In both the recent cases, the Court of Appeal held that the collisions were not foreseeable and there was no legal duty owed to the decedent.  These decisions both seem to be staring Bigbee right in the eye and saying "oh yeah?  Says who?"

We'll let you know what happens.