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© 2005 DRI. All rights reserved.

Toxic Torts and Environmental Law

The newsletter of the DRI Toxic Tortsand Environmental Law Committee

continued on page 6

Winter 2005

In This Issue…

Enough is Enough: The DutyProblem with Liability Claimsagainst One Manufacturer forFailing to Warn aboutAnother Manufacturer’sProduct ................................. 1

Toxic Torts and EnvironmentalLaw Committee Leadership . 2

From the Chair:Sneak Preview ........................ 4The “Sophisticated User” and

“Bulk Supplier” Defenses:Duty and Causation Issues . 10

Recent Developments in theTexas Asbestos MDL .......... 17

Fitting the Mold: It’s All aboutthe Construction ................ 20

ENOUGH IS ENOUGH

The Duty Problem withLiability Claims against OneManufacturer for Failing toWarn about AnotherManufacturer’s Product

John W. Petereit is an associate in the Dallas, Texas office of Kirkpatrick & Lockhart,LLP. He regularly defends prominent manufacturers and contractors in toxic tortcases in Texas, California, Florida, New York and Illinois.

John W. PetereitKirkpatrick & Lockhart Nicholson

Graham, LLPDallas, [email protected]

As the title of this article indicates,the author strongly advocates thatproduct liability law goes too farwhen it imposes a “duty” to warn orinstruct about another manufacturer’sproducts, even though a third partymight use those products in connec-tion with the manufacturer’s ownproduct. Nevertheless, asbestos plain-tiffs make such claims across thiscountry against equipment defendants

(such as pump and valve manufactur-ers) for alleged asbestos-containingproducts affixed to the finished prod-uct of the defendants (such as asbestoscontaining flange gaskets and externalinsulation)—products neither made,sold, specified nor recommended bythe manufacturers of the equipment.

Clearly, a “duty” to warn may existfor an unreasonably dangerous prod-uct. However, to argue that the ab-sence of a warning for defects in otherproducts (i.e., the external insulation)somehow makes unaltered, completedequipment defective is nothing lessthan “semantic nonsense” (Garman v.American Clipper Corp., 117 Cal.

mailto:[email protected]

2 Winter 2005Toxic Torts and Environmental Law

Chair

Robert P. Scott, Jr.Abrams Scott & Bickley LLP700 Louisiana, Ste 1800Houston, TX 77002-2727(713) 228-6601(713) 228-6605- [email protected]

Vice Chair

Barbara L. ArrasPhelps Dunbar LLP365 Canal Street, Ste 2000New Orleans, LA 70130-

6534(504) 566-1331(504) 566-9130- [email protected]

Membership Chair

Brickford Y. BrownMoran Kiker Brown PC4110 E Parham Road, Ste ARichmond, VA 23228(804) 421-6252(804) 497-7549- [email protected]

Marketing Chair

TBA

Publications Chair

Eric ReevesMoran Kiker Brown PC4110 East Parham Road,

Ste ARichmond, VA 23228(804) 421-6250(804) 421-6251- [email protected]

Program Chairs

Martin P. (Marty) ZuckerMonsanto Company800 North Lindbergh

BoulevardSt. Louis, MO 63167(314) 694-3894(314) 694-2965- [email protected]

Vice ChairKevin PowellSwift Spears & Harper LLP1135 Lakeshore Drive, 4th

FlLake Charles, LA 70602-

1810(337) 433-0707(337) 433-0828- [email protected]

Expert Witness Chair

Kirk F. MartyShook Hardy & Bacon LLP10801 Mastin, Ste 1000Overland Park, KS 66210-

1671(913) 451-6060(913) 451-8879- [email protected]

Legislative/RulemakingLiaison

TBA

State Liaison Chair

TBA

Diversity Liaison

Sue D. RosenthalAbrams Scott & Bickley LLP700 Louisiana, Ste 1800Houston, TX 77002(713) 228-6601(713) 228-6605- [email protected]

Web Page Co-Chairs

TBA

Subcommittee Chairs

Agricultural Chemicals &Pesticides ChairF. Grey Redditt, Jr.Vickers Riis Murray &

Curran LLC106 St. Francis Street, 11th

FloorMobile, AL 36602-3419(334) 432-9772(334) 432-9781- [email protected]

Asbestos/Silicosis ChairGeorge P. PappasSheehy Serpe & Ware909 Fannin Street, Ste

2500Houston, TX 77010-1003(713) 951-1000(713) 951-1199- [email protected]

Environmental CoverageChairW. Edward CarltonQuilling Selander

Cummiskey & Lownds PC2001 Bryan Street, Ste

1800Dallas, TX 75201(214) 871-2100(214) 871-2111- [email protected]

Environmental&Regulatory Law ChairLisa M. BrombergProzio Bromberg & Newman

PC100 Southgate ParkwayMorristown, NJ 07962-

1997(973) 538-4006(973) 538-5146- [email protected]

Indoor Air Quality/MoldCharles E. ReynoldsButler Pappas Weihmuller

Katz Craig LLP6200 Courtney Campbell

CausewayTampa, FL 33607(813) 281-1900(813) 281-0900- [email protected]

Mass Tort/IndustrywideLitigation ChairThomas M. GoutmanWhite & Williams LLP1650 Market Street, Ste

1800Philadelphia, PA 19103(215) 864-7057(215) 864-7123- [email protected]

TOXIC TORTS AND ENVIRONMENTAL LAW COMMITTEE LEADERSHIP

Solvents & ChemicalExposures ChairDaniel W. McGrathHinshaw & Culbertson LLP222 North LaSalle Street,

Ste 300Chicago, IL 60601-1081(312) 704-3000(312) 704-3001- [email protected]

Trial TacticsFrederick J. UfkesKirkpatrick & Lockhart10100 Santa Monica

Boulevard, 7th FloorLos Angeles, CA 90067(310) 552-5000(310) 552-5001- [email protected]

White Collar CrimeWilliam A. CoatesRoe Cassidy Coates & Price

PA1000 E. North StreetGreenville, SC 29601(864) 349-2603(864) 349-0303- [email protected]

Public RelationsContacts

EastCarl B. Epps III

CentralH. Patrick MorrisJohnson & Bell Ltd.55 E Monroe Street, Ste

4100Chicago, IL 60603-5896(312) 984-0244(312) 372-0522- [email protected]

WestTBA

Young Lawyer Liaison

James ShepherdShook Hardy & Bacon LLP600 Travis Street, Ste 1600Houston, TX 77002-2911(713) 227-8008(713) 227-9508- [email protected]




















3Winter 2005 Toxic Torts and Environmental Law

Vice ChairRob DintamanSwartz & Campbell55 Public Square, Ste 1120Cleveland, OH 44113(216) 685-9188(216) 685-9293- [email protected]

Steering Committee

Barbara ArrasBrickford Y. BrownBrian J. ClarkWilliam A. CoatesRobert E. DintamanCarl B. Epps IIIPatrick T. GarveyDemarcus J. GordonThomas M. GoutmanBurton M. HarrisRonald E. HurstStephen J. ImbrigliaRobert B. JaskowiakChristen A. MattisonKevin C. MayerRobert E. MeadowsH. Patrick MorrisDonald H. PyleMichelle I. SchafferRobert P. Scott, Jr.Mary H. TerzinoMarc E. WilliamsP. Gerhardt ZacherF. Grey Redditt, Jr.

Eric K. FalkDavies McFarland & Carroll

PCOne Gateway Center, 10th

FloorPittsburgh, PA 15222-

1416(412) 338-4722(412) 261-7251- [email protected]

William G. GandyHiscock & Barclay LLP2000 HSBC PlazaRochester, NY 14604-

2404(585) 295-4410(585) 325-5458- [email protected]

Cameron F. KerryMintz Levin Cohn Ferris

Glovsky & Popeo PCOne Financial CenterBoston, MA 02111(617) 348-1671(617) 542-2241- [email protected]

George P. PappasSheehy Serpe & Ware PC909 Fannin Street, Ste

2500Houston, TX 77010-1003(713) 951-1067(713) 951-1199- [email protected]

William A. RuskinShipman & Goodwin LLP300 Atlantic StreetStamford, CT 06901(203) 324-8113(203) 324-8199- [email protected]

Newsletter Editor

Eric Reeves

Board Liaison

Steven GerberGerber & Samson LLC155 Willowbrook

BoulevardWayne, NJ 07470(973) 256-9000(973) 256-9001- [email protected]

Law Institute Liaison

Chrys A. MartinBullivant Houser & Bailey PC888 SW Fifth Avenue, Ste 300Portland, OR 97204-2089(503) 228-6351(503) 295-0915 - [email protected]









4 Toxic Torts and Environmental Law Winter 2005

FROM THE CHAIR Sneak PreviewThomas W. Lyons

Bob Scott

Abrams Scott & Bickley, LLPHouston, [email protected]

In my opening comments to the Sum-mer 2004 Toxic Torts and Environmen-tal Law newsletter, I reported on,among other things, the success of theTTEL 2004 seminar. Since this willbe our last newsletter before the up-coming 2005 seminar, I want to pro-vide a preview that I hope willencourage many of you to register.

The seminar will be held fromMarch 2–4, 2005, at the Ritz CarltonHotel in New Orleans. The brochurewas recently mailed and is also avail-able on the DRI website(www.dri.org). We have a block ofrooms reserved at a special rate at thehotel. To assure that you get a room atthe hotel, you should call the RitzCarlton as soon as possible (504-524-1331 or 800-241-3333). The specialrate will be available for reservationsmade no later than February 1, 2005,but the rooms go quickly, so don’twait.

In addition to being back in NewOrleans at a fabulous hotel site, theprogram is outstanding. Here is asneak preview of the 2005 programspeakers and topics.

Walter Dellinger, former SolicitorGeneral of the United States and advi-sor to President Clinton on constitu-tional issues as well as a DukeUniversity law professor and a preemi-nent appellate lawyer withO’Melveny & Myers, will speak on

“When You Know the Trial Won’t GoWell: Involving Appellate Counsel Be-fore the Disastrous Verdict.” Those ofyou who saw Walter debate ToddSmith (the 2004–05 President ofATLA) at the October DRI AnnualMeeting on the need for civil justicereform legislation already know whata thoughtful and entertaining speakerhe is.

The seminar will also feature SonyaHamlin, an author, consultant andpioneer in the field of courtroomcommunication. Sonya, whose publi-cations include the landmark WhatMakes Juries Listen? and the updatededition, What Makes Juries Listen To-day? will speak on how to address theGen-Xers and Gen-Yers on today’sjury. Sonya will provide practicalcommunications methods that evenseasoned trial lawyers will find usefulin persuading juries.

Mickey Mills, perhaps the mostwell-known mediator of big-dollar,high-profile environmental and toxictort cases in the country, will speak onwhat’s important in mediating thosecases. Today, almost every case endsup in mediation, and Mickey has awealth of experience to offer in hisown inimitable style.

Dr. David Weill is a noted pulmo-nary medicine specialist and professorat the University of Colorado’s HealthSciences Center, Division of Pulmo-nary Medicine and Critical Care aswell as the Lung Transplant Program.Dr. Weill will speak on the emergingmedical issues related to silica expo-sure and lung cancer. This is cutting-edge science for lawyers involved insilica or mixed dust cases.

Our demonstrative programs willinclude multiple simulated courtroompresentations that will provide practi-cal, “how-to” techniques on the pre-sentation of sometimes difficult andabstract scientific evidence. Thesedemonstrations are designed tosharpen the trial practice skills of bothexperienced and novice trial lawyers.

Mark Lanier is a Texas plaintiff ’slawyer who many of you already know(or know of ). Mark was recentlynamed by the American Lawyer as oneof the top 45 attorneys in the nationunder the age of 45. Mark has ob-tained several verdicts in excess of$100 million, and he will square offwith defense attorney Larry Riff ofSteptoe & Johnson with demonstra-tive opening statements before a livemock jury panel in a toxic tort casedemonstration. Angela Abel ofDecisionQuest will handle the mockjury panel as well as provide real-timeelectronic analysis of the opening state-ments and a critique of the lawyers.

The following day, Lanier and Riffwill be joined by Gary Bezet of KeanMiller and Ricky Raven of Thompson& Knight to offer demonstrative di-rect and cross-examinations of defenseexperts. The defense experts in thismock toxic tort case will include Dr.Mark Bayer—an M.D. Toxicologistwho is Chief of the Division of Medi-cal Toxicology at the University ofConnecticut School of Medicine—andDr. Darwin Labarthe—a world-recog-nized M.D. epidemiologist now withthe Center for Disease Control andPrevention in Atlanta. Ms. Abel willreturn to moderate a critique of thedirect and cross-examinations with


http://www.dri.org

5Toxic Torts and Environmental LawWinter 2005

the experts, consultants and lawyers aswell as with the audience. Drs. Bayerand LaBarthe will also speak on morethan just the basics of toxicology andepidemiology, their respective areas ofexpertise.

Rick Sarver of Barrasso UsdinKupperman Freeman & Sarver in NewOrleans will provide an overview ofthe welding rod litigation that issweeping the country. Rick will dis-cuss some of the legal and scientific is-sues in that litigation such as thedifference between Manganism andParkinson’s disease.

Morgan Copeland of Vinson &Elkins, who was lead defense counselin a huge pipeline rupture case thatthe National Law Journal called the

“nation’s top environmental/toxic tortdefense victory” of 1997, will speakon the many legal and strategic issuesinvolved in handling mass disasterlitigation.

Penelope E. Codrington of PorzioBromberg & Newman PC inMorristown, New Jersey will discussthe interplay between environmentallitigation and related toxic tort cases.

Victoria L. Orze of Hinshaw &Culbertson’s Phoenix office andformer General Counsel of AttorneysLiability Protection Society Inc.(ALPS), will talk about the ethical ob-ligations and traps in multiple clientrepresentation.

As always, we will have a useful up-date on recent toxic tort and environ-

mental case law. Kevin Clark ofLightfoot Franklin & White in Bir-mingham, Alabama will bring you upto speed on important recent deci-sions in the field.

For those of you with clients whoare members of the American Chemis-try Council, the ACC Tort LitigationGroup will again hold its Spring2005 meeting in connection with ourseminar.

I think this preview shows that wehave brought together some of theleading authorities on the hottest top-ics in our practice for this seminar. Welook forward to seeing you in New Or-leans this March for a great seminar.


Enough is Enough, from page 1

App. 3d 634, 638 (Cal. Ct. App.1981)). It is not the product suppliedby the defendant (equipment) but theproduct used in connection with theequipment (external insulation, flangegaskets) that may be defective for lackof warnings (See Blackwell v. PhelpsDodge Corp., 157 Cal. App. 3d 372,378 (Cal. Ct. App. 1984)). There-fore, regardless of whether phrased instrict liability, warranty or negligenceterms, defense counsel must ensurethat the plaintiffs and courts do notpermit boundless, ludicrous duties.

In this article, we will explore theconcept of duty and its role in warn-ings claims. Next, we will look at sev-eral popular arguments put forth byplaintiffs in an attempt to impose aduty to warn with respect to another’sproducts that are used in connectionwith the defendant manufacturer’sproduct. Finally, we will evaluatecounter-arguments and discuss a sug-gested defense strategy for eliminatingthe need for lengthy, costly defense ofthese absurd claims.

The Concept of “Duty”

In general terms, “duty” is a questionof whether one party is so particularlysituated in relation to another as tocreate a legal obligation for the benefitof the other (W. Page Keeton et al.,Prosser & Keeton on Torts §53 (5thed. 1984)). The concept of duty isfirmly rooted in our law and remainsan essential means of limiting a party’slegal responsibility. It is no surprisethen that the analysis of the existenceof a duty is so hard to confine to asimple formula. As observed by DeanProsser, as our ideas of human rela-

tions change, the law as to dutieschanges with them (Prosser, PalsgrafRevisited, 52 Mich. L. Rev. 1, 12–15(1953)).

In recent years, the role of publicpolicy as an influence upon the defini-tion of human relations has greatly in-creased. As a result, in decidingquestions of duty, courts across thiscountry have considered such issues ofpublic policy (overtly and off therecord) as convenience, capacity tobear the loss, prevention of futureharm, moral blame, changing socialconditions, forseeability, certainty ofinjury and many others. (See, e.g., Vuv. Singer Co., 538 F. Supp. 26, 29(N.D. Cal. 1981)). Thus, we mustmake a conscious effort to see that lawis decided in a manner that achievesdesirable social results.

Nature of Warning Claims

Among the three fundamental prod-ucts liability defect claims, marketingor warning defects claims continue tooffer furtive ground for the creativeand artful pleader. Unfortunately, le-gal theorists and scholars have largelyignored warnings issues and the legallandscape has suffered as a result. Theprice of this unchecked artistic license,as described by Professors James A.Henderson and Aaron D. Twerski,two leading products liability theo-rists, is that “[f ]ar too many frivolousfailure-to-warn cases survive appellatereview. The absence of principledstandards has fostered an atmosphereof lawlessness” (Henderson & Twerski,Doctrinal Collapse in Products Liability:The Empty Shell of Failure to Warn, 65N.Y.U. L. Rev. 265, 269 (1990)). It

is noteworthy that Henderson andTwerski also served as the reporters forthe Restatement (Third) of Torts:Products Liability.

Whether defined by case law orstatute, phrased in strict liability, war-ranty, or negligence terms, warningsclaims are usually analyzed under aquasi-negligence standard for the im-position of liability (See, e.g., DouglasR. Richmond, Renewed Look at theDuty to Warn and Affirmative Defenses,61 Def. Couns. J. 205, 207-8 (1994);James T. O’Reilly, Product Warnings:Defects and Hazards, 6.02(A)-(B) (2ded. 1999). Thus, the threshold in-quiry for a warnings claim is the exist-ence of a legal duty on the part of themanufacturer to warn of a danger.Further, most states, including Texas,Illinois, California, Michigan, Ohio,Mississippi, New York, Minnesotaand Massachusetts, hold that the ex-istence of a duty to warn is solely aquestion of law for the court to decide(See generally O’Reilly, supra, at6.02(A); 63A Am. J. Juris. 2d. Prod.L. 1216 (1997 & Supp. 1999)). Thisshould hold true regardless of whetherthe claimant has brought the claimsounding in strict liability, negligenceor warranty (See, e.g., Brown FormanCorp. v. Brune, 893 S.W.2d 640, 644(Tex. App.—Corpus Christi 1995,writ denied).

Judicial Treatment of Warnings

Claims with Respect to Another’s

Products

It seems axiomatic that a manufac-turer has no duty to warn of the dan-gers of a defective product that it didnot manufacture, design or place into


the stream of commerce. Neverthe-less, such claims are repeatedlymade against equipment manufac-turers for asbestos-containing prod-ucts that are affixed to or used withtheir finished equipment by thirdparties after the equipment has leftthe manufacturer’s control.

In Texas, the Supreme Court hasheld in the clearest possible termsthat “[a] manufacturer does not have aduty to warn or instruct about an-other manufacturer’s products,though those products might be usedin connection with the manufacturer’sown products” (Firestone Steel ProductsCo. v. Barajas, 927 S.W.2d 608, 614(Tex. 1996)(citing Walton v.Harnischferger, 796 S.W.2d 225 (Tex.App.–San Antonio, 1990, writ de-nied)). In Walton, the plaintiff wasinjured when the nylon strap riggingattached to the defendantmanufacturer’s crane failed allowingthe tin to fall and injure the plaintiff(See id. at 225). Plaintiff claimed thatthe crane manufacturer had a duty towarn regarding this rigging. However,the court held that the crane manu-facturer had no duty to warn or in-struct users of its crane about thenylon strap rigging because it was nota component part of the crane, wasnot incorporated into the crane by themanufacturer and was not placed intothe stream of commerce by the cranemanufacturer (See id. at 227–28). Fi-nally, the court noted that to requirethe crane manufacturer to warn of allrigging dangers would be unfair andunrealistic. (See id. at 227.)

Numerous other state and federalcourts have issued similar rulings (Seee.g., Lindstrom v. AC Products LiabilityTrust, 264 F. Supp. 2d 583, 589, 591& 595 (N.D. Ohio 2003)(dismissing

strict liability and negligence claimsbecause exposure limited to asbestosparts of another manufacturer); Spen-cer v. Ford Motor Co., 367 N.W.2d393, 396 (Mich. Ct. App. 1985)(ve-hicle manufacturer not liable for de-fective wheel rim component addedafter sale); Mitchell v. Sky Climber,Inc., 487 N.E.2d 1374, 1376 (Mass.1986)(manufacturer of lift motor hadno duty to warn about rigging usedwith scaffolding of another manufac-turer); Kaloz v. Risco, 466 N.Y.S.2d218, 220 (N.Y. Sup. Ct. 1983) (re-fusing to require a warning as to aconjunctive product made by anothereven though such other product maybe a sine qua non to the use of thefirst); Rastelli v. Goodyear Tire & Rub-ber Co., 591 N.E.2d 222, 225–26(N.Y. 1992)(declining to hold thatone manufacturer has a duty to warnabout another manufacturer’s productwhen the first manufacturer producesa sound product that is compatiblefor use with a defective product of theother manufacturer); Fricke v. Owens-Corning Fiberglass Corp., 618 So. 2d473 (La. App. 4 Cir. 1993) (decliningto hold a manufacturer responsible foralleged inadequate warnings about aproduct it neither manufactured norsold); Niemann v. McDonnel DouglasCorp., 721 F. Supp. 1019, 1030(S.D. Ill. 1989)(airplane manufac-turer had no duty to warn about re-placement asbestos chafing strips usedin the engines that it did not manu-facture); Ford Motor Co. v. Wood, 703A.2d 1315, 1330 (Md. Ct. Spec.App. 1998)(no duty to warn for re-placement asbestos brake and clutchparts that Ford did not make, marketor supply). For example, in Baughmanv. General Motors Corp., 780 F.2d1131, 1133 (4th Cir. 1986), the

plaintiff was injured by the explosiveseparation of a multi-piece rim thathad been installed, as a replacementpart, on a truck manufactured by de-fendant. GM neither designed normanufactured the rim. In affirmingsummary judgment in favor of GM,the court indicated that accepting theplaintiff ’s position would require GMto test all possible replacement partsmade by any manufacturer to deter-mine their safety and to warn againstthe use of certain replacement parts.“If the law were to impose such aduty, the burden upon a manufac-turer would be excessive. While themanufacturer can be fairly chargedwith testing and warning of dangersassociated with components it decidesto incorporate into its own product, itcannot be charged with testing andwarning against any of a myriad of re-placement parts supplied by anynumber of manufacturers” (Id. at1133).

Fortunately, the courts in theabove-cited cases recognized the po-tential for creating a boundless dutyto warn persons allegedly injured byanother manufacturer’s products. Theauthor submits that to hold otherwisewould make all manufacturers theguarantors not only of their own prod-ucts, but also of each and every prod-uct that could conceivably be used inconnection with or in the vicinity oftheir product. Should the law withrespect to warnings be allowed to getthis far out of control, the ability tosuccessfully defend such claims seemsa near impossibility. Can’t you justsee a smoker with lung cancer suingmanufacturers of matches and lightersfor failing to warn that smoking ciga-rettes is dangerous to their health?Perhaps this analysis would be differ-


ent if a manufacturer had actually de-signed, supplied, or specified, a par-ticular asbestos-containing product beused in connection with its product;certainly a plaintiff ’s argument in fa-vor of a duty to warn on the part ofthe manufacturer would be strongerand more palatable.

Creative “Spin” Used to Argue for

the Existence of A Duty

Apparently aware of the overwhelmingweight of authority and logic, plain-tiffs may attempt one or more argu-ments in an attempted end-runaround the non-existent duty to warnfor another’s products. Two examplesof such arguments are examined be-low.

First, plaintiffs may argue that adistinction exists between their claimbased on “conduct” and their claimbased on “product.” This is a distinc-tion without merit and plaintiffsshould be hard pressed to cite author-ity for the proposition that a manufac-turer may not have a duty to warn ofdangers regarding a product it did notmanufacturer (i.e., strict liabilityclaim), but does have the very sameduty for purposes of a negligenceclaim, primarily on grounds offorseeability. Indeed, federal courtsapplying Texas law have rejected suchtactics by litigants bringing productliability claims.

In one such case, a plaintiff at-tempted to avoid application of thelearned intermediary doctrine by at-tempting to characterize his productliability claim as a deceptive tradepractices claim. “The gravamen of allof Plaintiffs’ causes of action, includ-ing misrepresentation and violation ofthe DTPA, is that Wyeth failed to ad-

equately warn of or disclose the sever-ity of Norplant’s side effects. There-fore, the learned intermediarydoctrine applies to all of Plaintiff ’scauses of action…If the doctrinecould be avoided by casting what isessentially a failure to warn claim un-der a different cause of action such asviolation of the DTPA or a claim formisrepresentation, then the doctrinewould be rendered meaningless” (Inre: Norplant Contraceptive Prods. Liab.Litig., 955 F. Supp. 700, 709 (E.D.Tex. 1997), aff ’d, 165 F.2d 374 (5th

Cir. 1999); see also Sanchez v. Liggett& Myers, Inc., 187 F.3d 486, 491 (5th

Cir. 1999)). Thus, both law and logiccompel the rejection of any attemptby plaintiffs to recast their productsliability warnings claims as negligenceclaims to avoid the non-existent dutywith regard to another’s products.

Second, plaintiffs may argue thatanother manufacturer’s products af-fixed to or used with the equipmentby a third party after distribution ofthe equipment are “components” ofthe equipment (i.e., the flange gasketsand external insulation were requiredfor the equipment to function prop-erly). Again, using basic rules of con-struction and established productliability precedent, this argumentshould be easily discredited.

According to its ordinary, plain-En-glish meaning, the term “component”is “a constituent element, as of a sys-tem” (American Heritage Dictionaryof the English Language (4th ed.,2000)). Texas courts, like others,limit the definition of component tothose parts of a finished product thatare integrated into the finished prod-uct before the finished product isplaced into the stream of commerce.For example, in the Walton case dis-

cussed earlier, the court expressly heldthat nylon strap rigging was not acomponent of the crane where thecrane manufacturer did not supply itscrane with any rigging, but rather, therigging was affixed to the crane after itleft the crane manufacturer’s control(See also Bostrom Seating Inc. v. CraneCarrier Co., 140 S.W.3d 681 (Tex.2004)(seat installed in garbage truckprior to truck’s distribution was com-ponent of truck); Smith v. Aqua-Flo,Inc., 23 S.W.3d 473, 479–80 (Tex.App.—Houston [1st Dist] 2000, pet.denied)(water pump was “compo-nent” of spa pool); Molina v. KelcoTool & Die, Inc., 904 S.W.2d 857,861 (Tex. App.—Houston [1st Dist]1995, writ denied)(molding die inte-grated into punch press prior to dis-tribution was “component” of press)).Based on the above, unless plaintiffscan present evidence that a piece ofequipment was distributed with exte-rior insulation and/or flange gasketsintegrated in or attached to the equip-ment, such products should never beheld to be a “component” of theequipment since they left the factoryin exactly the condition contemplatedby the ultimate consumer (withoutinsulation or flange gaskets).

Public Policy Must be Addressed

for the “Duty” Analysis

As we discussed above, public policyplays an important role in definingthe concept of duty. Social, economicand political questions and their ap-plicability to the facts at hand mustbe taken into consideration in the de-termination of the existence of a dutyto warn. Longstanding principles ofpublic policy underlying products li-ability dictate that responsibility for a


product’s danger rests with companiesin the chain of distribution of thatproduct, and responsibility for thesafety of the workplace rests with theemployer. “[P]ublic policy demandsthat the burden of accidental injuriescaused by products intended for con-sumption be placed upon those whomarket them, and be treated as a costof production …” (Barham v. TurnerConstruction Co. of Texas, 803 S.W.2d731, 738 (Tex. App.—Texarkana1981, writ ref ’d n.r.e.); Sells v. SixFlags Over Texas, Inc., 1997 WL527320, at *3 (N.D. Tex. Aug. 14,1997) (recognizing that “policy con-siderations that inform strict liabilityprinciples seek to encourage the re-sponsible manufacture and design ofproducts” and therefore declining toimpose strict liability on defendantthat did not sell, manufacture or de-sign product)).

Accordingly, fundamental prin-ciples of public policy require thatplaintiffs’ novel and far-fetched theoryof duty in warnings/marketing defectclaims be rejected. Manufacturerscannot be expected to determine therelative hazards of various productsthat they do not manufacture or selland have not had the opportunity toinspect, test and evaluate, much lesswarn consumers about using suchproducts. Moreover, if adopted bythe law, such a duty would lead tomore legal and business chaos—everyproduct supplier would be required towarn of the foreseeable dangers of nu-merous other manufacturers’ productsused at a jobsite. The result?—an ex-traordinary and confusing proliferationof warnings, arguably removing anymeaningful benefit to the product user.

Defensive Strategy for Warnings

Claims

Given that most states properly treatthe existence of duty as a question oflaw, the author submits that a tradi-tional motion for summary judgment(as opposed to no-evidence) on theduty issue should be filed as early in acase as possible, perhaps along withthe answer. Using this type of motionavoids any procedural requirement of“adequate time for discovery” and of-fers an opportunity to be in control ofthe arguments and law to which theplaintiffs must respond.

Recently trial courts in Texas andCalifornia have granted summaryjudgments in favor of equipmentmanufacturers, holding that they hadno duty to warn of alleged hazards ofasbestos-containing products, manu-factured, designed, supplied and af-fixed to the equipment by unrelatedthird parties, after the equipment leftthe manufacturers’ control (e.g.,Harry and Janet Simkins v. AlfaLaval, Inc., et al., Cause No. CC-03-02935-B, County Court at Law No.2, Dallas County, Texas, May 5,2004; Mary Nolen, et al. v. A.W.Chesterton Co., et al., Cause No. 153-200843-03, 153rd Judicial DistrictCourt, Tarrant County, Texas, June17, 2004; George and Ruth LaChapellev. American Standard, Inc, et al., CaseNo. BC 303899, Superior Court ofCalifornia, Los Angeles County, April26, 2004; Ernesto and Maria Escamillav. American Standard, Inc., et al., CaseNo. BC 303900, Superior Court ofCalifornia, Los Angeles County, May11, 2004). For example, in Nolen,the plaintiff claimed exposure to as-bestos-containing products installed

on and around defendant manufactur-ers’ valves and pumps. The court re-jected the plaintiff ’s duty argumentsand granted summary judgment in fa-vor of the equipment manufacturers.

Conclusion

Regardless of how artfully pled, lawand public policy prohibit the impo-sition of a legal duty to warn or in-struct for the defects in othermanufacturers’ products. This followsfrom the simple fact that a manufac-turer of a completed product is not le-gally the designer, manufacturer ormarketer of the numerous other prod-ucts that may be used in connectionwith the manufacturer’s product. Par-ticularly in toxic tort litigation withwarnings claims for external insulationand flange gaskets that are broughtagainst equipment manufacturers, it isnot an unreasonably dangerous condi-tion or feature of the equipment itselfthat caused any alleged injury. Plain-tiffs’ theories to the contrary wouldplace a heavy, unjustified burden onmanufacturers. These absurd claimscan and should be effectively dealtwith using a well-drafted traditionalmotion for summary judgment on thesole issue of legal duty. This strategywill allow a manufacturer to properlyframe the issue for the court and re-quire the plaintiffs to respond to theoverwhelming weight of authorityagainst their theories to find the exist-ence of a duty. Moreover, this ap-proach should anchor the motion tothe law, without the need for consid-eration of facts and mountains of irrel-evant evidentiary exhibits.


The “Sophisticated User” and “Bulk Supplier”Defenses: Duty and Causation Issues

Robert ScottAbrams Scott & Bickley, L.L.P.Houston, [email protected]

Many toxic tort plaintiffs sue the sup-pliers of the chemical or chemicals al-leged to have caused their injury ordeath, either in addition to or insteadof their current or former employer.These cases are usually based in negli-gence and/or strict products liabilityand premised on a failure to warn.Often, however, the plaintiff ’s em-ployer is a refinery or chemical plantoperator, who knew or should haveknown as much as the companies thatsupplied the chemicals at issue andwas certainly in a better position towarn its employees about the poten-tial hazards of those chemicals. More-over, because the chemicals are oftensupplied in bulk by pipeline, barge ortank truck, it is impractical for themanufacturer or supplier to commu-nicate warnings directly to the end-user.

The existence of a legal duty andcausation are two required elements inany negligence or strict liability claimbased on the alleged failure of theproduct supplier to adequately warnof hazards associated with the use orhandling of the product at issue. Whyshould a chemical supplier be re-quired to issue warnings to an end-user employee about hazards of whichhis or her employer is or should beaware and which the employer is le-

gally obligated (and in a much betterposition) to convey? Moreover, assum-ing that the plaintiff ’s employer hadadequate knowledge of the potentialhazards associated with the chemicalsat issue, how could a chemicalsupplier’s failure to convey redundantinformation already known by theplaintiff ’s employer have been acause-in-fact of the plaintiff ’s claimedinjury? These duty and causationquestions will be addressed separatelybelow.

DutyDutyDutyDutyDuty

The logical starting point in the dutyanalysis is consideration of the legalbasis for imposing a duty to warn.

In any situation where there is aduty to warn, the warning is requiredin order to impart special knowledge. Ifthat special knowledge already exists,further information is not necessary.

Munoz v. Gulf Oil Co., 732 S.W.2d62, 66 (Tex. App.—Houston [14thDist.] 1987, writ ref ’d n.r.e.) (empha-sis added) (affirming summary judg-ment for supplier defendants becausethey sold propane to a sophisticated,commercial distributor who possessedthe same knowledge as the sellers). Itseems reasonable that there should beno duty to warn or impart specialknowledge when selling to a purchaserthat already has the same specialknowledge as the seller.

A number of courts have recog-nized, in some form, a “sophisticated

user” defense to both negligence andstrict liability warning claims. The so-phisticated user defense is akin to the“learned intermediary” defense whichwas developed in pharmaceuticalcases. The learned intermediary de-fense provides that the pharmaceuti-cal manufacturer does not have a dutyto warn the end-user of the drug ormedical device, but only has a duty towarn the end-user’s physician, a“learned intermediary.” Alm v. Alumi-num Co. of Amer., 717 S.W.2d 588,592 (Tex. 1986); McCombs v. Synthes,587 S.E.2d 594 (Georgia 2003); Lacyv. G.D. Searle & Co., 567 A.2d 398(Delaware 1989); Bean v. BaxterHealthcare Corp., 965 S.W.2d 656(Tex. App.—Houston [14th Dist.]1988). If the manufacturer informsthe doctor of the potential dangers, ithas satisfied its duty to the end-user.Mauldin v. Upjohn Co., 697 F.2d644, 647 (5th Cir. 1983), cert. de-nied, 464 U.S. 848 (1983); see alsoCooper v. Bowser, 610 S.W.2d 825,830–31 (Tex. Civ. App.—Tyler 1980,no writ).

Given the specialized knowledgepossessed by the industrial employerand such employer’s relationship withits employees, for purposes of deter-mining the locus of a duty to warn,the situation is analogous to that ofdoctor-patient in the pharmaceuticalcontext. It is appropriate, therefore, toapply the same principles in the in-dustrial workplace setting. This is theorigin of what has become known as



the sophisticated user defense. SeeSmith v. Walter C. Best, Inc., 927 F.2d736, 741 (3d Cir. 1990) (employerhas the duty to provide its employeeswith a safe working environment andemployer has control over the work-ing environment; supplier has no realability to enforce safety measures); seealso Wood v. Phillips Petroleum Co.,195 S.W.3d 870, 874 (Tex. App.—Houston [14th Dist.] 2003, pet.denied)(“[P]rotecting workers fromthe ill effects of benzene exposurecould be accomplished, if at all, onlyby minimizing such exposure withengineering controls (such as devicesto keep benzene contained and workareas well ventilated), personal pro-tective and respiratory equipment,and environmental and medicalmonitoring.”); Phillips v. A.P. GreenRefractories Co., 630 A.2d 874, 883(Pa. Super. Ct. 1993) (the employerwas “in the best position to warn theworkers by providing safety throughthe use of air monitoring devices andrespirators and to monitor the use ofthe equipment”).

In toxic tort cases involving work-place exposure to solvents or otherchemicals, most courts that have uti-lized a sophisticated user “defense”analysis have focused on the duty is-sue. In the duty analysis, the focus iswhether the chemical manufacturer’sduty to warn is discharged, either be-cause the supplier provided an ad-equate warning to the plaintiff ’semployer or because the plaintiff ’semployer knew of the potential haz-ards of the chemical even without awarning from the manufacturer.Courts have differed as to whetherthe supplier must prove that, at thetime of the product sale, it had ascer-tained that the employer was “sophis-

ticated” or, alternatively, whether ret-rospective proof of the employer’s “so-phistication” is sufficient, regardless ofwhether the supplier can demonstratethat it knew about, and relied upon,the fact that the employer possessedspecialized knowledge at the time ofthe sale.

As set out above, one line of au-thority requires proof that the sup-plier reasonably relied on theemployer to pass on to the end-userthe warning information that the em-ployer already possessed. O’Neal v.Celanese Corp., 10 F.3d 249 (4th Cir.1993) (Maryland law); Adams v.Union Carbide Corp., 737 F.2d 1453,1457 (6th Cir.), cert. denied, 469 U.S.1062 (1984) (Ohio law); Purvis v.PPG Indus., 502 So. 2d 714, 720–21(Ala. 1987); Swan v. I.P., Inc., 613So.2d 846 (Miss. 1993) (en banc);Phillips, 630 A.2d at 883–84; Alm,717 S.W.2d at 592; Tasca v. GTEProducts Corp., 438 N.W.2d 625(Mich. App. 1988); Walter C. Best,Inc., 927 F.2d at 740–44 (3d Cir.1990) (Ohio law). These decisions,which generally rely on §388 of theRestatement (Second) of Torts, requirea showing of subjective knowledge onthe part of the supplier that the inter-mediary was knowledgeable about thepotential hazards and likely to com-municate such information to theend-user.

Another line of authority holdsthat the duty is discharged once thesupplier defendant shows that it ei-ther actually warned the employer orthat the employer was already knowl-edgeable or “sophisticated” about po-tential hazards of the chemicals. Curtisv. M&S Petroleum, Inc., 174 F.3d 661(5th Cir. 1999) (supplier actuallywarned employer); Akin v. Ashland

Chemical Co., 156 F.3d 1030 (10thCir. 1998), cert. denied, 119 S.Ct.1756 (1999); Davis v. AvondaleIndus., Inc., 975 F.2d 169 (5th Cir.1992) (Louisiana law) (citing City ofJackson v. Ball, 562 So.2d 1267,1270 (Miss. 1990)); Cook v. BranickMfg., Inc., 736 F.2d 1442 (11th Cir.1984) (supplier discharged duty bywarning the employer); Younger v.Dow Corning Corp., 451 P.2d 177(Kan. 1969) (manufacturer warnedimmediate vendee); Higgins v. E.I.DuPont de Nemours & Co., 671 F.Supp. 1055, 1058–59 (D. Md.1987); Morsberger v. Uniking ConveyerCorp., 647 F. Supp. 1297, 1299(W.D. Va. 1986) (“in Virginia amanufacturer owes no §388(c) dutyto warn an employee of a knowledge-able industrial purchaser”). Many ofthese decisions discuss the fact thatthe defense has its roots in the Re-statement (Second) of Torts, althoughthey do not analyze the defense interms of the reasonableness of thesupplier’s reliance as seen in the Re-statement. These cases do not focuson whether the warnings actuallyreached the end-user or whether itwas reasonable for the supplier to be-lieve that the third-party employerwould warn the end-user.

The Restatement Approach—Was

the Supplier’s Reliance on the

Intermediary Reasonable?

In analyzing a product supplier’s obli-gation to warn users of hazards associ-ated with its product, section 388 ofthe Restatement focuses on the rea-sonableness of the seller’s conduct,rather than the intermediary’s knowl-edge, providing:

One who supplies directly or


through a third person a chattel foranother to use is subject to liabilityto those whom the supplier shouldexpect to use the chattel with theconsent of the other or to be en-dangered by its probable use, forphysical harm caused by the use ofthe chattel in the manner for whichand by a person for whose use it issupplied, if the supplier (a) knows orhas reason to know that the chattelis or is likely to be dangerous forthe use for which it is supplied,and (b) has no reason to believe thatthose for whose use the chattel is sup-plied will realize its dangerous condi-tion, and (c) fails to exercisereasonable care to inform them ofthis dangerous condition or of thefacts which make it likely to bedangerous.Restatement (Second) of Torts

§388 (1965). (Emphasis added).Comment n to §388 allows the sellerto discharge its duty to warn by pro-viding necessary information aboutthe dangers of the product to a thirdperson upon whom it can reasonablyrely to communicate the informationto ultimate users of the product. Un-der §388, the seller is liable if theuser is uninformed as to potentialdangers of a product and the sellerfails to use reasonable care to informthe user of those dangers. The ques-tion under comment n is whether reli-ance on the third party to pass onwarnings is reasonable. Factors used indetermining whether the reliance isreasonable include the known orknowable character of the third party,the duties or normal procedures im-posed on the third party, the magni-tude of possible harm to the plaintiffand the burden placed on the supplieritself to warn the end-users. Several

decisions have applied a detailedanalysis of these factors and held thatthe supplier satisfied its duty bywarning the plaintiff ’s employer.O’Neal, 10 F.3d at 252; Smith, 927F.2d at 740–44; Phillips, 630 A.2d at881–82; Seibel v. Symons Corp., 221N.W.2d 50 (N.D. 1974) (applyingfactors and holding manufacturer li-able); Alm, 717 S.W.2d at 595 (“Theissue in every case is whether theoriginal manufacturer has a reasonableassurance that its warning will reachthose endangered by the use of itsproduct.”); Tasca, 438 N.W.2d at628.

The analysis of whether the sup-plier was reasonable to rely upon thepurchaser to communicate warningsto the end-user is complicated be-cause, in many toxic tort cases, theseller supplied products to plants orrefineries decades before the suit at is-sue is filed. Adducing evidence of thepurchaser’s state of knowledge at apoint in time decades prior to suitpresents a challenge that can be insur-mountable for a product supplier. Un-der the Restatement’s “reasonablereliance” approach, the defendantsupplier is required to show not onlythat the purchaser, in fact, was knowl-edgeable about the product’s hazardsat the time of sale, but also that thesupplier had a subjective awareness ofsuch knowledge at the time of sale.This can be an impossible burdenwhen the products were supplied tothe plant or refinery in the 1950s or1960s, and records and witnesses thatwould have established such subjec-tive awareness are no longer available.

The “No Ascertainment” Duty

Approach: Was the Intermediary

Knowledgeable?

In Akin v. Ashland Chemical Co., 156F.3d 1030 (10th Cir. 1998), cert. de-nied, 119 S.Ct. 1756 (1999), theEleventh Circuit Court of Appeals,applying Oklahoma law, held as amatter of law that there was “no dutyto warn a purchaser as knowledgeableas the U.S. Air Force of the potentialdangers of low-level chemical [ben-zene] exposure.” The Akin court reliedin part upon Duane v. Oklahoma Gas& Elec. Co., 833 P.2d 284, 286(Okla. 1992), which held that “thereis no duty on a manufacturer or sellerto warn…a knowledgeable user of theproduct dangers associated there-with.” (Duane also held that if there isno duty to warn a purchaser who iswell aware of the dangers of the prod-uct, it follows that there is no duty towarn an employee of the purchaser.Id. at 287).

The plaintiffs in Akin argued thatthe U.S. Air Force did not actuallyknow of the risks associated with ben-zene exposure. The Court held thatOklahoma law imposed a “shouldhave known standard” and that, as amatter of law, the U.S. Air Forceshould have known of the risks.Therefore, the supplier’s duty to warnpurchasers was discharged if the pur-chasers were aware, or should havebeen aware, of the potential dangersof the product.

Under the “no ascertainment” so-phisticated user duty analysis, theseller’s duty to warn the ultimate user(usually the employee) is dischargedwhen the seller provides an adequatewarning to the intermediary or if theintermediary is already knowledgeable,


in which case the warnings would beredundant. Akin, 156 F.3d 1030; seealso Davis, 975 F.2d at 174 (“theproduct manufacturer owes no dutyto the employee of a purchaser if themanufacturer provides an adequatewarning of any inherent dangers tothe purchaser or if the purchaser hasknowledge of those dangers and theduty to warn its employees thereof ”).The Akin approach provides a bright-line test in determining whether achemical supplier is liable to a plain-tiff-employee for failure to warn of thedangerous propensities of its productsto the plaintiff ’s employer—if theemployer was, or should have been,knowledgeable, the supplier is not li-able for any failure to warn; if the em-ployer was not, and should not havebeen, knowledgeable, the suppliermay be liable.

In the recent Texas decision ofHumble Sand v. Gomez, 146 S.W.3d170 (Tex. 2004), where the fact that awarning would have reached the end-user was essentially stipulated, theTexas Supreme Court remanded thecase to the trial court for an analysis ofthe factors that it held would deter-mine whether a duty existed. (Simi-larly, in Humble Sand, there was noissue concerning whether the plaintiffwould have seen and understood anadequate warning and, therefore,would have suffered no injury. Id. at170). Accordingly, there was an estab-lished causal connection between theplaintiff ’s failure to receive an ad-equate warning and his injury.

In doing so, the court explainedthat it shifted the burden of establish-ing a legal duty in the sophisticateduser context to the defendant, holdingthat:

The issue…is whether the original

manufacturer has a reasonable as-surance that its warning will reachthose endangered by the use of itsproduct . . . . We think the burdenshould have been on Humble [thesupplier] to show that the warningGomez [plaintiff ] contends [the]suppliers should have given wouldnot have been effectual. This is ap-propriate, even though proof ofduty is usually the plaintiff ’s re-sponsibility, for several reasons.First, in most circumstances asupplier’s duty to warn is simply as-sumed; the availability of the warn-ing to end users is not in question.Circumstances in which that assump-tion is not warranted, as when thesales are in bulk or there is an inter-mediary who should have the dutyto warn, seem more the exceptionthan the rule. (Emphasis added)(Note that, in several places, theHumble Sand court made it clearthat the bulk supply situationcould be distinguished and ex-cepted from the normal duty towarn.)

Interestingly, the plaintiff in HumbleSand contended that it is never rea-sonable to excuse a supplier from pro-viding warnings to the ultimate userof its product whenever it is feasible.The Texas Supreme Court rejectedthat argument, holding that, even un-der circumstances where it is feasibleto provide a warning such as in theHumble Sand case, there may still beno duty on the supplier to do so. TheSupreme Court, responding to a dis-senting opinion, made it clear that itwas not suggesting “that a supplierhas any duty to investigate hiscustomer’s operations to avoid liabil-ity.” In fact, the majority noted that:

To require Humble [the supplier]

and each other plant supplier to in-vestigate every customer’s own ap-preciation of the dangers of abrasiveblasting would be impractical ifnot entirely impossible. Commentn [Restatement (Second) of Torts§388 (1965)] imposes no suchduty to investigate.

* * *The idea that product suppliers

must investigate every customer’sawareness of dangers and tailor awarning to fit each one is certainlyimpractical, as we have explained, andradical at least in the sense that the dis-sent offers no authority in support of ageneral duty to investigate customers.

Id. See also, Mays v. Ciba-GeigyCorp., 661 P.2d 348 (Kan. 1983)(noting that requirement of manufac-turers and suppliers to instruct indus-trial employees on proper uses ofproducts which are used in a myriadof specialized processes and with othertypes of products would impose im-possible burden); Phillips, 630 A.2dat 881 (“it would be prohibitively ex-pensive and unduly burdensome torequire suppliers to orally warn eachworker”); Marker v. Universal OilProd. Co., 250 F.2d 603 (10th Cir.1957) (employer-purchaser is in a farbetter position to provide such in-struction).

The “no ascertainment duty” ap-proach places the burden of providingspecial knowledge about the hazardsof a chemical where it should be mosteffective; that is, on the employer whohas full knowledge of workplace con-ditions and controls the use of thechemicals involved and the capabili-ties and circumstances of the end-useremployees.


Bulk Supplier Doctrine

As noted by the Texas Supreme Courtin the Humble Sand case, one of thefew exceptions to the normal duty towarn placed on a product supplier iswhen the product is supplied in bulk.The “bulk supplier” doctrine providesthat one who sells a product in bulkto another, who in turn provides theproduct to end-users (whether em-ployees or the public) is required onlyto provide adequate warnings regard-ing potential hazards of the productto the immediate distributor and notto each individual consumer. The un-derlying assumption of this doctrineis that the seller may rely on an in-formed distributor to communicatewarnings to the consumer. However,the bulk seller’s reliance on the inter-mediary must be reasonable. The bulkseller fulfills its duty to the ultimateconsumer only if it ascertains that thedistributor to whom it sells is ad-equately trained, familiar with theproperties of the product, and capableof passing this knowledge on to theconsumer. The policy rationale for thebulk supplier doctrine is that a sup-plier of a product in bulk has no wayto determine who the ultimate pur-chaser or user may be and no practicalmethod of communicating warningsto the end-users. Little v. Liquid AirCorp., 952 F.2d 841, 850 (5th Cir.1992) (Miss. law) (citing Jones v.Hittle Serv., Inc., 549 P.2d 1383 (Kan.1976)); Alm, 717 S.W.2d at 592(Tex. 1986); Smith, 927 F.2d at 740;Beans v. Entex, Inc., 744 S.W.2d 323(Tex.App.—Houston [1st Dist.]1988, writ denied). For example,when the product at issue is a liquidor gaseous chemical delivered in largetank trucks, barges or by pipeline,

there is no package likely to reach theend-user on which to place a warningor instructions for safe use.

In Wood v. Phillips Petroleum Co.,119 S.W.3d 870, 874 (Tex. App.—Houston [14th Dist.] 2003, pet. de-nied), the court recognized that in theinstance of a bulk supplier, who hasno package on which to place a warn-ing, the supplier may satisfy the dutyto warn ultimate users of its productby proving that the intermediary towhom the supplier sold its productwas a sophisticated user, meaning thatit is “adequately trained and warned,familiar with the propensities of theproduct and its safe use, and capableof passing its knowledge on to users ina warning” (Citing Alm, 717 S.W.2dat 591–92 (Tex. 1986)). The Woodcourt noted that:

[P]rotecting workers from the ill ef-fects of benzene exposure could beaccomplished, if at all, only byminimizing such exposure with en-gineering controls (such as devicesto keep benzene contained andwork areas well ventilated), per-sonal protective and respiratoryequipment, and environmental andmedical monitoring.

The Wood court then reasoned thatbecause the evidence in the case dem-onstrated that the need for precau-tions regarding the use of benzene“was well understood by Monsanto[the employer] during the years [theplaintiff ’s deceased] worked there” thesupplier defendants “had no duty toinstruct Monsanto on these matters. . . ”Id. at 185.

The bulk supplier approach (likethe broader sophisticated user doc-trine) is supported by the employer-employee relationship because theemployer has a common law and

statutory duty to maintain a safeworkplace for its employees, includingthe duty to provide warning of dan-gers present in the workplace. Occu-pational Safety and Health Act of1970, §5, 29 U.S.C. §654 (1982)(employer is required to provide placeof employment free from recognizedhazards); Goodbar v. Whitehead Bros.,591 F. Supp. 552, 559 (W.D.Va.1984), aff ’d sub nom., Beale v. Hardy,769 F.2d 213, 214 (4th Cir. 1985)(finding critical the Restatement’scommentary that “modern life wouldbe intolerable unless one were permit-ted to rely to a certain extent on othersdoing what they normally do, particu-larly if it is their duty to do so”).

Causation

The typical toxic tort case against aproduct supplier lends itself to a sophis-ticated user causation analysis (nocause-in-fact) as well. Regardless ofwhether the duty is described throughthe Restatement or “no ascertainment”framework, a defendant supplier shouldalways be able to argue that whether ornot the supplier satisfied the duty towarn, any failure to warn was not acause-in-fact of the plaintiff ’s injury. Byanalogy, pharmaceutical cases applyingthe “learned intermediary” doctrinehave held that the causal connection be-tween a seller’s failure to adequatelywarn and the patient’s injury may besevered where a learned intermediaryhad prior, independent knowledge ofthe hazards of the product. In thosecases, the seller’s failure to warn is notconsidered a proximate cause of thepatient’s harm. The argument shouldbe very similar for a supplier of prod-ucts to a knowledgeable purchaser.

Even if it is determined that the


supplier had a duty to warn andbreached that duty by failing to warn,the plaintiff still must prove that thesupplier’s failure was a proximate orproducing cause of the plaintiff ’s in-jury in order to recover for negligenceand product liability failure to warnclaims. McCullock v. H.B. Fuller Co.,61 F.3d 1038, 1044 (2d Cir. 1995)(to sustain a verdict in a failure towarn case, defendant’s failure to warnmust be a proximate cause ofplaintiff ’s injury); Scronce v. HowardBros. Discount Stores, 679 F.2d 1204,1205–06 (5th Cir. 1982) (causationis an essential element in a failure towarn claim); Ramirez v. Komori Amer.Corp., 1999 U.S. Dist. LEXIS 4300,*23 (S.D.N.Y. 1999, n.w.h.)(plaintiff ’s failure to warn claim maybe properly dismissed unless the plain-tiff can prove causation; that is, plain-tiff must show that manufacturer’swarning would not have been superflu-ous considering plaintiff ’s existing ac-tual knowledge of product dangers).

Both proximate and producingcause require proof that thedefendant’s conduct was a cause-in-fact of the plaintiff ’s injury. Thesupplier’s failure to warn a sophisti-cated purchaser cannot be the cause-in-fact of the employee’s injurybecause the knowledgeable purchaserdid not warn the end-user, eventhough it had the warning informa-tion. Cimino v. Raymark Indus., Inc.,151 F.3d 297, 331 (5th Cir. 1998)(applying Texas law to hold thatmanufacturer’s failure to warn sophis-ticated user is immaterial and not le-gal cause of plaintiff ’s harm whensophisticated user is fully knowledge-able of product’s relevant risks); seealso, Strong v. E.I. Dupont de NemoursCo. Inc., 667 F.2d 682, 688 (8th Cir.

1981) (despite deficient warnings bythe manufacturer, if a user [here, anatural gas company] is “fully awareof the danger which a warning wouldalert him or her of, then the lack ofwarning is not the proximate cause ofthe injury”); see also, Nelson v.Brunswick Corp., 503 F.2d 376, 379–80 (9th Cir. 1974).

In Wood, 195 S.W.3d at 874–75,the court addressed the causation is-sue as well as the duty issue, holdingthat, presuming the purchaser-em-ployer already had the special knowl-edge about which it could have beenwarned, any insufficiency in warningor failure to warn, as a matter of law,cannot be a cause-in-fact of theplaintiff ’s injury. This rule of law istrue, even if the supplier defendantprovided no warning or an insufficientwarning to the employer and even ifthe defendant did not ascertain theemployer’s level of knowledge at thetime of sale. Id.

The public policy considerationsinherent in duty issues are irrelevantto whether conduct was, as a factualmatter, a cause of the claimed injury.Either the supplier’s conduct causedthe harm or it did not. In some cases,defendant suppliers have argued thatthe failure to warn was not the soleproximate cause of the plaintiff ’s in-jury, or, alternatively, that theemployer’s conduct was a supersedingcause. These arguments have had littlesuccess. See Van Buskirk v. Carey Ca-nadian Mines, Ltd., 760 F.2d 481,493–96 (3rd Cir. 1984)(“the soleproximate cause defense…is particu-larly difficult to demonstrate in a fail-ure to warn context, for one mustshow that the third party’s conduct insome way negates the proposition thatplaintiffs would have avoided injury

had they been appropriately warned”and “only where the third party’s ac-tion is so extraordinary as to have notbeen reasonably foreseeable mightsuch an action constitute a superced-ing cause”); see also Billiar v. Minne-sota Min. & Mfg. Co., 623 F.2d 240(2nd Cir. 1980).

Conclusion

Counsel representing a chemicalmanufacturer or supplier in a case in-volving claimed occupational exposureto chemicals at a workplace controlledby a sophisticated or knowledgeableintermediary, such as an employer,should be aware that under the rel-evant jurisdiction’s law, the supplierdefendant may be able to assert: (1)that its duty to warn the end-user wassatisfied by providing adequate warn-ing to the intermediary who had theduty to warn the end-user; (2) that ithad no duty to warn either the end-user or the intermediary of the poten-tial hazards of its product because theintermediary was knowledgeable ofthose hazards, as a result of informa-tion received from another source;and/or (3) that any failure to ad-equately warn the intermediary wasnot a cause-in-fact of the end-userplaintiff ’s claimed injury. These de-fensive matters may, in some in-stances, be raised by summaryjudgment motion. In the event thosemotions are denied, the supplier de-fendant should be entitled to juryquestions and/or instructions on thesedefenses.

There are a couple of practicepointers that may be helpful in assert-ing a sophisticated user defense on be-half of a chemical supplier defendant.First, the existence of a duty to warn


of dangers or instruct on the safe useof a product is a question of law. SeeAm. Tobacco Co. v. Grinnell, 951S.W.2d 420, 426 (Tex. 1997). In ad-dition, remember that a supplier de-fendant is usually not attempting toblame the plaintiff ’s employer for theplaintiff ’s injury. In fact, in mostcases, either because the employer ex-ercised all reasonable care in protect-ing its workers and/or because thedisease suffered by the employee-plaintiff is not one known to becaused by the chemical at issue, thereis no evidence that the plaintiff ’s in-jury is in any way related to chemicalexposure. When appropriate, I suggestincluding a footnote statement in thebody of the motion for summaryjudgment along the following lines:

This motion is not intended tosuggest that [Employer] was in anyway negligent, or that any act or

omission by [Employer] was in anyway responsible for any harm tothe Plaintiff. In fact, the evidencein this case demonstrates that, not-withstanding Plaintiffs’ allegations,Mr. [Plaintiff ] did not have an oc-cupationally induced disease, andthat [Employer’s] knowledge andconduct dating back many yearsbefore Mr. [Plaintiff ] started workat [Employer’s plant] exceeded gen-erally accepted standards of occupa-tional and industrial health,knowledge, and practice.

orThe bulk supplier defendants nei-ther adopt nor agree with the alle-gations made by plaintiffsregarding the conduct of the pre-mises owners or the cause of theplaintiffs’ injuries. In fact, basedupon substantial evidence adducedin this case and others, plaintiffs’

allegations with regard to both theconduct of the premises owners andthe cause of the plaintiffs’ injuriesare demonstrably untrue.

The plaintiff ’s employer can be of in-valuable assistance in developing theevidence necessary to show that it wassophisticated regarding the knowablehazards of the chemicals handled byits employees and took all appropriateprecautions in that regard. That is evi-dence the employer should want tomake available in light of its commonlaw and statutory duties to maintain asafe workplace for its employees. Itwill not benefit your supplier client orthe employer if there is an incorrectappearance that the supplier defen-dants are attempting to make a caseagainst the employer.


Recent Developments in the Texas AsbestosMDL

Nathan Horne and Melissa Ferrell defend asbestos cases throughout Texas and are partners in the Austin office of SegalMcCambridge Singer & Mahoney.

Nathan HorneMelissa FerrellSegal McCambridge Singer & MahoneyAustin, [email protected]

While debates continue on efforts toadopt sweeping reform to address theasbestos litigation crisis, some stateshave managed to push various reformmeasures through their own legisla-tures. Given the vast number of asbes-tos cases pending in Texas and whathas often been viewed as widespreadabuse of the process by the plaintiffs’bar, states across the nation are watch-ing with great interest as Texas puts itstort reform legislation into practice.

This article is not meant to be an ex-haustive discussion of the workings ofthe Texas tort reform bill, but is meantto merely highlight some of the moresignificant aspects of the legislation as itis being implemented in Texas. Specifi-cally, this article will address how thelegislation—and, in particular, the“MDL Order” that has been adopted inresponse to the legislation—has im-pacted some of the standard practicesand abuses in Texas courts.

Introduction

In the spring of 2003, the Texas legis-lature passed a comprehensive tort re-form measure affecting many areas ofTexas civil procedure. The bill, often

called “HB 4,” contained a provisionthat established a Judicial Panel onMulti-District Litigation (“Panel”).The Panel was created to decide, if pe-titioned, whether a single judgeshould be appointed for pretrial mat-ters for cases with similar facts filed af-ter September 1, 2003. In response toa motion filed by the Union CarbideCorporation, the Panel ruled that asingle judge should be appointed topreside over all pretrial matters in as-bestos cases. The appointment ofMDL judges is made by the ChiefJustice of the Texas Supreme Court.The then-Chief Justice Tom Phillips ap-pointed Judge Mark Davidson of Hous-ton to preside over all asbestos cases.

Judge Davidson is a republican sit-ting on the bench in the 11th JudicialDistrict of Harris County, Texas. Inthe months following his appoint-ment, Judge Davidson worked withboth the asbestos plaintiff and defensebars to draft master discovery requestsand a case management order to gov-ern all MDL cases. The resulting Or-der, signed into effect on July 29,2004, outlines discovery and proce-dural requirements for the parties, re-placing the patchwork of “In Re:Asbestos” standing orders across thestate. Thus, the wide variation in localrules and procedures from county tocounty—many of which that weredrafted in the early 1990s and do notaddress the current trends of asbestos

litigation—have been replaced with asingle coherent case management or-der for all cases.

Many asbestos cases not includedin Union Carbide’s original motionwere moved to the MDL throughoutthe spring and early summer of 2004.These tag-along cases were transferredas arising from similar facts in accor-dance with the newly established pro-cedures. By the time Judge Davidsonsigned the Order, there were approxi-mately 450 cases pending in theMDL. But the Order, unprecedentedin its detail, appears to have moti-vated defendants to transfer almostall eligible cases. There are currently1,078 cases pending in the asbestosMDL, involving an untold numberof plaintiffs.

As cases filed before September 1,2003 work through the system, theMDL will take an increasingly largerole in governing how asbestos casesare litigated in Texas. Although still inits infancy, it is already clear that theMDL Order will bring substantialchanges to Texas asbestos litigation.

The MDL Order

The MDL Order places malignancyand non-malignancy claims on differ-ent tracks for working the case up. A“fast track” also has been establishedfor in extremis cases. (It should benoted that out-of-state plaintiffs who



never worked in Texas are ineligiblefor fast track status per one of the firstrulings from Judge Davidson.) Re-gardless of the track, the discovery re-quirements on both plaintiffs anddefendants are substantial, and moreextensive than any current standingorder in Texas.

The Order requires each defendantto answer general interrogatories andrequests for production, and includesspecific discovery requests for the vari-ous types of defendants in asbestoslitigation (i.e., product, contractor,employer, premises, equipment manu-facturer, general negligence, etc.).This very specific discovery will re-quire many defendants to providemore detailed discovery responsesthan previously produced in Texas.Many newer defendants, who have yetto file substantial discovery in otherjurisdictions, will likely find them-selves conducting extensive documentreviews, facility inspections, and em-ployee interviews to gather the re-quired information. For example,defense counsel may now need tomeet with new types of departmentsor individuals to respond to several ofthe 41 general requests for produc-tion. These requests include the pro-duction of all binders and finaltransaction documents for sales, distri-bution, indemnity agreements, andcorporate acquisitions. The discoveryalso forces defendants to take a firmposition on several issues. For ex-ample, there are 18 general interroga-tories to defendants, includingquestions as to whether it was foresee-able that the product produced, sold,or distributed might be removed,stripped, ripped off, or replaced atsome time after installation.

The Order likewise places substan-

tial discovery requirements on plain-tiffs, including when it must be pro-duced. Until a case has met all therequirements of the Order, it cannotbe certified for remand to the trialcourt. Further, depending on whetherit is a malignancy or non-malignancycase, it cannot be set for trial less than180 days and 90 days after certifica-tion, respectively. This time period al-lows expert discovery and pretrialmotions to be filed and heard beforethe trial date. Currently, it is not un-common to have a court move hear-ings on motions for summaryjudgment or forum non conveniens tothe pretrial hearing the morning oftrial. This requires defendants to workup a case for trial even though theymay win a summary judgment. Andas practical matter, a forum non conve-niens motion does not carry muchweight the morning of trial if the caseis already worked up and ready fortrial. It also is not uncommon for ex-pert and even fact witness discovery totake place on the eve of or duringtrial. The Order addresses these situa-tions and they should no longer occurabsent good cause.

The Order also logically organizesother areas of the litigation. For ex-ample, fact witnesses must be deposedbefore expert witnesses absent goodcause, and plaintiff ’s experts must bedeposed before defense experts in thesame area of expertise.

In addition to the procedural dead-lines and requirements, the Order alsoimpacts how MDL cases will be liti-gated. The Order places an emphasison the use of telephone hearings to re-solve conflicts, which will eliminatetravel time and expenses for routinehearings. Another part of the Orderexpected to have a significant impact

is the explicit statement that alterna-tive dispute resolution is not requiredin asbestos cases. Many courts cur-rently require mediation of asbestoscases before they can be heard fortrial. As many defendants havelongstanding relationships with theplaintiff firms, mandatory mediationis often merely a pro forma exerciseand a waste of time and money.

Another issue of note addressed inthe Order is a provision allowing non-Texas lawyers to cover out-of-statedepositions without having first fileda motion to appear pro hac vice. Thisis important as Texas pro hac vice rulesbecame substantially more cumber-some following the passage of HouseBill 462 in the spring of 2003. In ap-praising the new rules, many defenselawyers had voiced concern that send-ing local counsel to an out-of-statedeposition could be problematic ifplaintiff ’s counsel objected that thelocal lawyer did not hold a Texas li-cense. The worry was that plaintiff ’scounsel could prevent the lawyer fromasking questions by arguing that al-lowing them to cross-examine the wit-ness would be the unauthorizedpractice of law. The language of theOrder allowing non-Texas lawyers toattend out-of-state depositions willprevent this from occurring.

The Order contains deadlines thatwill move asbestos cases along. Itdoes not allow plaintiffs to file casesand stonewall on producing discov-ery or witnesses for deposition. Italso does not allow cases to linger foryears even if only some or most ofdiscovery is complete. Because ofthis, many defendants may be sur-prised how quickly cases workthrough the system.


What the Future May Hold

Only some of the changes broughtby the MDL are mentioned here.Still others not apparent on the faceof the Order will become apparentin time, as MDL cases begin towork their way through the courtsystem. We will also have a betteridea how the cases will be litigatedon a practical level as Judge Davidsonmakes rulings on issues that will im-pact all the cases, such as admissibil-ity of experts and expert testimony,and motions in limine.

Judge Davidson has set DaimlerChrysler Corporation’s Havner Motionto Strike Expert Testimony That Fric-tion Products Cause Asbestosis, LungCancer and Mesothelioma for hearingon November 22–23, 2004. Thus, by

the time this article appears we mayalready have a ruling that will sub-stantially affect the way all the casesin the MDL are defended. JudgeDavidson has also stated he intends toask the regional presiding judge to ap-point him as trial judge for the firstasbestos case to be remanded for trial.This trial, when it happens, shouldprovide yet more certainty on how thecourt will rule in asbestos cases. Inaddition to the guidance provided tothe parties in the Order, JudgeDavidson has posted his local rules onthe Internet at http://www.justex.net/civil/11/proc11.htm. Titled “TheRockin’ Rules of the Eleventh DistrictCourt,” the post is clever and providesa clear picture of Judge Davidson’s ex-pectations of lawyers that practice inhis court.

Conclusion

It is clear that the intent and purposeunderlying the Texas asbestos tort re-form legislation has been taken veryseriously, and the MDL Order has al-ready had—and will continue tohave—a tremendous impact on thecourse of asbestos litigation in thestate. Although the reform measuresmay not stem the tide of asbestos law-suits, at least in the immediate future,it will have the effect of “leveling theplaying field” for litigants and pre-venting the discovery abuses and “un-fair surprise” that has causedheadaches for defendants and defenselawyers for so many years.

http://www.justex.net/civil/11/proc11.htm


Fitting the Mold: It’s All about the Construction

Kelly A. Campbell practices in the litigation and dispute resolution group and the environmental group at Spencer Fane Britte &Browne in Kansas City. She has expertise in defending toxic tort claims involving mold, asbestos and other agents.

Nick Badgerow practices with Spencer Fane’s litigation and dispute resolution group, as well as its labor and employment lawgroup. His practice focuses on the trial of construction, business and employment matters.

Kelly A. CampbellJ. Nick BadgerowSpencer Fane Britt & Browne LLPKansas City, [email protected]@spencerfane.com

Mold cases blend theories of toxic tortand construction defect. By emphasiz-ing the construction defect side of thecase, defendants can simplify theirevidence and arguments, thereby in-creasing the likelihood of success. Thisapproach worked for the authors ofthis article in a recent mold case,when we successfully defended a win-dow supplier against a personal injuryand property damage lawsuit relatedto mold in a home. Our case was sig-nificant because it was one of the firstjury trials in the state of Kansas involv-ing allegations of personal injuries re-sulting from mold exposure in a home.

In mold cases, plaintiffs often em-phasize complex medical opinions,exposure analyses, and testing meth-odology. Rather than emphasizingthese points, defendants should fo-cus on the simple and more directfacts related to the building—did itleak and, if so, why? By keeping theevidence simple and short, defen-dants have an advantage over plain-tiffs’ complicated causation analyses.Once the jury sees the case as a con-struction issue, it makes the messageeasier to understand. It also allows the

jury to use its collective commonsense and experience as homeownersto reach its decision.

Physical evidence also reinforces theconstruction side of the case. Whetherit is a commercial building or a resi-dence, defendants can win mold casesby emphasizing the construction de-fect side of the case.

Facts of the Case

The case we tried and won is similarto most mold cases involving a home.The plaintiffs, a Kansas family of five,alleged that they were forced to movefrom their home because mold wasmaking them sick. Plaintiffs claimedthat their house had suffered numer-ous and continuous leaks since itsconstruction in 1995. For five years,plaintiffs looked to their builder to re-pair the problems, and in 2000 thebuilder notified our client, the win-dow supplier, of the alleged problemswith the windows. As an accommoda-tion to the builder, the window sup-plier agreed to replace the windows.During the window replacement pro-cess, the homeowners discoveredmold. Six months later, the familyhired a mold testing consultant.Within three days of receiving the ver-bal recommendation of their consult-ant, the family vacated the house.

Before the plaintiff-homeownersfiled their lawsuit, the builder agreed

to buy back the house. Thehomeowners then sued both thebuilder and the window supplier. Thehomeowners complained the moldcaused their numerous illnesses, in-cluding cognitive impairment,fibromyalgia, neurological complaints,gastrointestinal complaints, fatigue,asthma, allergies, and pneumonia.The homeowners also alleged propertydamage to their personal belongings,and consequential damages from leav-ing their home. Plaintiffs’ legal theo-ries included both negligence andstrict products liability. Weeks beforethe scheduled trial date, the buildersettled a second time, leaving the win-dow manufacturer as the sole remain-ing defendant.

Before trial, summary judgmentwas granted on plaintiffs’ propertydamage claim, plaintiffs’ products li-ability claim, and several of plaintiffs’more serious medical claims. First, aswith many mold cases, plaintiffs had astatute of limitations problem. Thecourt applied the Kansas discoveryrule, which begins the statute of limi-tations period at the time the wrong-ful conduct causes substantial injuryor when the fact of injury becomesreasonably ascertainable to the injuredparty. We successfully asserted thatplaintiffs knew of their property dam-age claims more than two years priorto their filing of the lawsuit. Thecourt, however, ruled that the date on




which plaintiffs knew or could reason-ably ascertain their personal injuryclaims was a fact question to be sub-mitted to the jury.

In addition to winning dismissalof a portion of the plaintiffs’ negli-gence claim, we also won outrightdismissal of plaintiffs’ products li-ability claim on summary judgment.We argued that plaintiffs had failedto support their claims with experttestimony. The court agreed, findingthat plaintiffs had not made a primafacie showing that the windows wereunreasonably dangerous. Further,the court severely limited plaintiffs’medical claims only to an exacerba-tion of asthma and allergies, dis-missing the cognitive impairmentand neurological allegations.

How to Make It a Construction

Defect Case

In order to emphasize the construc-tion side of a mold case, we used a fewsimple techniques. First, we focusedon the facts regarding the house leaks;second, we kept the medical evidencesimple and short; third, we showedthe jury the physical evidence, theoriginal windows from the home; last,we emphasized the common sense ap-proach to every allegation, relying onthe jurors’ experiences. These tech-niques shifted the emphasis fromplaintiffs’ preferred toxic tort focus toour simpler construction defect focus.

Focus on LeaksWe focused the majority of our de-fense on the nature of the leaks. Moldplaintiffs often attempt to scare jurieswith bold assertions that mold is in-sidious and dangerous, forcing fami-lies from their homes. Plaintiffs want

to minimize evidence on constructiondefects to this: “Windows leaked, causedmold.” To shift the focus, it is helpful todraw out the details of the leaks.

We shifted the focus by examiningplaintiffs on how the leaks occurred,when they occurred, what plaintiffsdid in response to each leak, and whataction the builder took in response.We identified and emphasized leaks inthe home unrelated to the windows.(Notably, there were several leaks thatcould not have come from the win-dows.) We also focused on one diningroom window that plaintiffs admittedleaked far more that any other win-dow. Our witness identified a pitchedroof directly above this window,which likely forced water behind theminimal flashing above this window.Even the builder agreed that roofflashing could have been the problem,admitting that he asked one of ourclient’s employees to help with thecorrection of that problem.

Focusing on the leaks served twocritical purposes. First, it highlightedplaintiffs’ neglect in failing to seek in-dependent advice regarding the leaks;second, it emphasized the builder’sapparent inability to repair the leaks.Because Kansas is a comparative faultjurisdiction, this evidence supportedour argument that the builder wasprimarily responsible for the leaks.Moreover, it showed how unreason-able plaintiffs were in relying uponthe ineffective builder for five years tofix the leaks. This allowed an appor-tionment of fault to the plaintiffsthemselves.

Medical Evidence: Keep it Simple,Keep it ShortThe axiom “Keep it simple, keep itshort” can benefit defendants on

medical evidence in mold cases. In or-der to win on personal injury, plain-tiffs have to present a complex toxictort exposure analysis. This entailspresenting medical opinions, exposureanalysis, and testing methodology.First, they have to convince the jurythat mold is either itself a toxin, or ca-pable of producing a toxin. Here,plaintiff ’s experts will introduce newterminology such as stachybotryschartarum and aspergillus niger andnew technology such as mycotoxintesting. Serious questions can beraised as to whether the testing tech-niques are even generally accepted inthe medical community, thereby lay-ing the groundwork for a challenge tothe experts’ opinions and perhaps anissue on appeal in the event of an un-fortunate result. Next, plaintiffs willhave to show general causation, that aparticular dose of the toxin is capableof causing a disease. Then plaintiffswill have to show that they actuallyreceived that dose of toxin for a suffi-cient duration. For plaintiffs, this stepcan be convoluted if mold is onlyfound inside the walls, and not in theindoor air. Plaintiffs will then need toprove an ascertainable medical illness.Finally, plaintiffs should exclude otherknown causes of the same illness.These are the elements of most toxictort cases. Defendants have an advan-tage because of the numerous hurdlesplaintiffs must overcome to make aprima facie case.

In our case, plaintiffs presented tworetained experts, Dr. EckhardtJohanning of Syracuse, New York, andMs. Susan Flappan, of Lenexa, Kansas,to prove those elements. Ms. Flappan,a certified industrial hygienist, testi-fied about air and surface samplingshe conducted in the home. Ms.


Flappan not only did the testing,she also performed the microscopiclaboratory analysis. Ms. Flappanexplained how she only foundstachybotrys spores in surfacesamples and in the air inside thewall cavities. Dr. Johanning thentestified about the mycotoxin test-ing that he instructed Ms. Flappanto conduct, the testing methodol-ogy that included a dilution factoranalysis in order to determine thetoxicity in the air, and the qualifi-cations of the German meat pack-ing laboratory that reported theresults. Dr. Johanning also de-scribed the results of the IgG, IgE,and IgA blood tests that he or-dered. Based on his review of thetest results and medical records,Dr. Johanning then opined thatplaintiffs’ preexisting asthma andallergies were made worse as a re-sult of their exposure to mold intheir home. Plaintiffs did not ex-clude other known causes of theirinjuries.

To make it more simple, we pre-sented evidence of how often plain-tiffs visited their doctors before,during, and after they lived in thehome. We then examined plaintiffs’treating allergist regarding the trig-gers for plaintiffs’ asthma and aller-gies, and whether they routinelyfollowed his advice and treatmentregimen. The allergist also testifiedto his advice to refrain from havinganimals in the house or around thechildren. Plaintiffs confirmed thatat various times, they had ownedthree dogs, two sheep, ducks, birds,a ferret, and a pet rat. Finally, theallergist testified to the risk factorsinvolved in plaintiffs’ subsequentdecision to move into a 110-year-

old farmhouse, with three barns onthe property, and their purchaseand care of three horses. Plaintiffstherefore had voluntarily exposedthemselves to known allergens. Thislessened the impact of plaintiffs’ ex-pert causation opinions on exacer-bation of asthma and allergies.Keeping the jury focused on moreplausible explanations for plaintiffs’symptoms, rather than the convo-luted theories presented by plain-tiffs’ experts was critical to theoutcome of the trial.

Real or Demonstrative ExhibitsNo single witness spoke louderthan the five original windows thatwere kept in the courtroomthroughout the trial. The jurorswanted to see the windows. Insteadof photographs or drawings, the ju-rors were able to look at all sides ofthe windows while our client’s em-ployee pointed to the absence ofwater stains, much less any evi-dence of mold or deterioration.Moreover, they observed the physi-cal effort necessary to move thewindows around while the defensewitness testified how solid thesewindows were made. They had norot or mold. Physical exhibits spokelouder than words and were thebest witnesses in the trial.

Emphasize Common SenseWe emphasized common sensethroughout the trial and explainedhow the windows were made. Weexplained when and how we soldthe windows to the builder. Wefirst learned of a problem five yearsafter the windows were installedand took care of the customer com-plaint as a business should. Plain-

tiffs attempted to use our client’sreplacement of the windows as anadmission of liability or defect.While we had legal cause to excludethis as impermissible evidence ofremedial conduct, we instead usedthe window replacement to showthe jury that we responsiblyhandled the customer complaint.This served to reduce the emphasison the alleged defect and increasethe emphasis on plaintiffs’ failureto exercise reasonable care in main-taining their home. Once we knewof the problem, we took care of it. Byrepeating this mantra, the jury sawour client’s replacement of the win-dows as a reasonable business deci-sion. Conversely, the jury viewedplaintiffs’ failure to contact our clientfor five years as unreasonable.

Why Should You Emphasize the

Construction Side of Mold Cases

The jury found our client, the win-dow supplier, not liable for plaintiff ’sclaims. By focusing on the construc-tion side of our mold case, we wereable to simplify the message for thejury. It allowed us to argue to the ju-rors that they should use their com-mon sense regarding the claimedleaks. Most jurors owned homes andunderstood that no home is perfect—leaks occur. We argued that no rea-sonable person would watch leakshappen in their home and continueto complain to the same builder forfive years with no improvement,without taking further steps. Themessage worked and the jurors ap-portioned fault to the builder andplaintiffs.

Forcing plaintiffs to make com-plex arguments to the jury high-


lighted our simple themes. Plain-tiffs’ case necessarily required novelscientific theories and convolutedexposure analyses. Keeping it shortsimplified our message to the jury.

Conclusion

Mold cases are usually a blend of con-struction defect and toxic tort. By em-

phasizing the construction defect sideof the case, defendants can simplifythe evidence and arguments. This ap-proach worked in our favor in thiscase. We examined plaintiffs’ claims ofbuilding leaks and their response tothem. We used common sense andphysical evidence to provide the jurywith a more plausible explanation forplaintiffs’ claims. Instead of respond-

ing to all of plaintiffs’ toxic exposureanalysis, we argued the far simpler ex-planation for plaintiffs’ allergies andasthma. By keeping our messagesimple and short, and by emphasizingthe construction side of the case, wewere able to win our client’s case. Itwas a simple approach that worked.

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