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It is an obvious tenet of an asbestos action that in order to establish asbestos exposure from a product, there must have been a product that contained asbestos. From the perspective of a defense attorney, the failure of a plaintiff to specifically identify an asbestos-containing product seems like straightforward grounds for moving for summary judgment. However, recent Rhode Island case law suggests that a defendant may have a difficult time winning on these grounds.

In Suprey v. Alfa Laval, Inc., et al., the Rhode Island Superior Court, Gibney, J., denied a motion for summary judgment even though the plaintiff did not specifically identify any asbestos-containing product. In Suprey, the decedent, Paul F. McCarthy, served in the U.S. Navy aboard the U.S.S. Glennon from June, 1951 until June 1955. Mr. McCarthy filed an action alleging that he developed mesothelioma from exposure to asbestos-containing products while stationed aboard the Glennon.  The decedent was only able to identify products that he claimed contained asbestos on the Glennon, but could not identify which defendant manufactured the product. In their motion for summary judgment, the defendants argued that "there was insufficient evidence to even suggest that the Defendants placed any asbestos-containing products on the Glennon.”

In denying the motion for summary judgment, the Court relied on Welch v. Keen Corp., 575 N.E. 2d 766 (Mass.App.Ct. 1991) which identifies ways that a plaintiff may "sufficiently allege contact with a defendant’s asbestos-containing product.” Among other reasons, the Court denied the motion for summary judgment because the plaintiff had "offered historical documents to show a range of years during which the Defendants supplied equipment to the Glennon and Mr. McCarthy’s sworn statement described his contact and proximity to those products and areas of the ship that allegedly contained asbestos.”

Suprey affirms the principle that a plaintiff bringing suit in Rhode Island need not specifically identify an asbestos-containing product to survive a motion for summary judgment. However, the outcome in Suprey is deceptively advantageous for plaintiffs.  First, the Court in Suprey recognized that it must decide whether the plaintiff has sufficiently identified an asbestos-containing product on a "case-by-case” basis.  Second, the plaintiff in Suprey was able to produce certain information that in other cases would likely be difficult to obtain. The plaintiff was able to identify a precise range of years in which he was allegedly exposed to asbestos-containing products.  Given the length of time between alleged exposure and the filing of a lawsuit, it is unusual that the decedent could provide such a precise range. In addition, the plaintiff was able to produce historical documents suggesting that certain asbestos-containing products were present on the Glennon. Such historical documents, in most cases, would likely have been either destroyed or lost by the time suit commenced.

In sum, Suprey subtly suggests that a plaintiff may have his work cut out for him in contesting a motion for summary judgment on the grounds that he has failed to sufficiently identify an asbestos-containing product.

Dr. Michael Graham is well known in the realm of asbestos litigation. He is widely recognized as an expert pathologist, an expert medical examiner and an expert at determining causes of death.  He is also frequently retained to opine on the causes of asbestos-related diseases.  However, in a recent Rhode Island Superior Court case, his disclosure as a causation expert was challenged.

In Sweredoski v. Alfa Laval, et al., C.A. No. PC-2011-1544, Judge Alice Gibney presided over a motion in limine to preclude the testimony of defense expert, Dr. Graham.  In its motion, the plaintiff anticipated that Dr. Graham would be called to testify that Mr. Sweredoski’s exposure to products manufactured and/or supplied by the defendant did not contribute to the cause of his mesothelioma. The plaintiff challenged Dr. Graham’s suitability as a causation expert by pointing out that, of all Dr. Graham’s publications, only one references asbestos or mesothelioma. Thus, the plaintiff argued to the Court that an expert should be limited to fields in which he is specifically qualified, (i.e.; pathology, in this instance), and that Dr. Graham was not qualified to render opinions as to causation.  Lastly, the plaintiff cited to Soares v. Vestal to argue that expert testimony in the asbestos context should be confined to the expert’s field of expertise, as required in the medical malpractice context under Rhode Island law.  See 632 A.2d 647, 647-48 (R.I. 1993).

The defendant contended that Dr. Graham’s work and experience as a pathologist made him qualified to provide expert testimony regarding the causation of Mr. Sweredoski’s mesothelioma. The defense pointed out that Dr. Graham has been studying asbestos-related diseases for over 30 years, which includes the review of over 1,000 cases of asbestos-related disease in the legal context.

Judge Gibney agreed with the defense citing to the Rhode Island Supreme Court which has made clear that an expert witness "need not have a license in a narrow specialty, nor hold a particular title, as long as his or her ‘knowledge, skill, experience, training or education’ can deliver a helpful opinion to the fact-finder.” See Raimbeault v. Takeuchi Mfg. (U.S.), Ltd., 772 A.2d 1056, 1061 (R.I. 2001).  Judge Gibney declined to be swayed by the Soares decision which did not hold, broadly, that experts are required to be certified in a specific field in order to testify in medical malpractice cases; rather the Court affirmed the trial court’s opinion to preclude testimony, in that particular case, after the trial court found the witness was not sufficiently qualified to deliver an opinion helpful to the fact-finder. In Sweredoski, Judge Gibney found that Dr. Graham was "sufficiently qualified through his knowledge, skill, experience and training as a pathologist, in order to aid the fact-finder via his testimony.”  Hence, the plaintiff’s motion in limine was denied.

This decision rejects the need for narrow specialization to qualify as an expert on a given topic.  It is a small but notable victory for the defense bar in Rhode Island which relies upon pathologists, such as Dr. Graham to render opinions as to causation with regularity.

In February of 2016, a Missouri jury in the City of St. Louis delivered a stunning $72 million verdict against Johnson & Johnson for injuries caused by the Plaintiff’s use of talc products. The award garnered national attention and highlighted St. Louis as a plaintiff-friendly venue.  In truth plaintiffs, particularly in the world of asbestos litigation, realized their cases had more value in the jurisdiction long ago, thanks to its reputation for delivering high verdicts. Perhaps coincidentally, the large verdict in the Johnson & Johnson case came at a time when a shift in legal thinking at both the national and state levels significantly curbed the ability of plaintiffs to make their way into the warm embrace of the City of St. Louis.

Since 2014, the United States Supreme Court has reshaped the traditional standards for a court to exercise jurisdiction over a defendant.  The Daimler, Bristol-Myers Squibb, and BNSF cases are as well known as notoriously dry legal process cases can be.  The simple explanation for why they receive so much attention in the legal field is they changed everything about one of the law’s more fundamental questions: What is the proper venue for this lawsuit?

Before the Supreme Court cases listed above,the answer to that question was relatively simple.  A plaintiff could bring a lawsuit in the state where the injury occurred or in any venue where a defendant had sufficient contacts for a court to exercise general “all purpose” jurisdiction over the defendant.  Of course, what that meant had several layers of nuance, but for the most part the general rule limited jurisdictional challenges to only those cases where a given defendant had almost no contact with the chosen forum.  After these decisions, plaintiffs are limited to only those venues where the actual injury occurred, and more importantly, all purpose jurisdiction only exists in a very limited set of circumstances. In theory these decisions should limit the ability of a plaintiff to shop for a jurisdiction like St. Louis, where they have a perceived advantage.

For its part, the Missouri Supreme Court has followed the USSC on jurisdiction decisions.  In early 2017, the Missouri Supreme Court held that a mere license to do business in Missouri was not sufficient to confer general jurisdiction over a nonresident corporation The Court went further to say that having a registered agent in the state will not establish jurisdiction either.  Then in October of 2017, the Missouri Eastern District Court of Appeals overturned the Johnson & Johnson verdict mentioned above, applying the Bristol-Myers Squibb standard.  Recently, the Missouri Supreme Court declined an application for review of that appellate-level decision.  At least at the highest level, Missouri seems to be closing up shop to plaintiffs who cannot conclusively establish jurisdiction.

Still, what any given set of Supreme Court decisions, federal or state, actually means for day-to-day litigation at the local level is somewhat abstract.  Certainly these decisions do not immediately end all questionable litigation, and the ambiguity of the opinions allow for individual trial judges to exercise wide discretion in determining how and when their courts can exercise jurisdiction over a defendant.  

St. Louis City judges have settled into an interesting rhythm in this respect. In the past year, defendants have successfully challenged jurisdiction under the cases mentioned above, but with the caveat that they are subject to discovery first.  What this means in most cases is a plaintiff can bring a lawsuit against a non-resident defendant and subject that defendant to written discovery and depositions before the court will hear a challenge to jurisdiction. Beyond the obvious expenses to such defendants, this approach has the effect of allowing plaintiffs to keep some benefits of a friendly jurisdiction in the hope of an early settlement.  

For defendants, engaging in this discovery presents an additional element of danger—a defendant may unwittingly consent to the jurisdiction of a court by engaging in the litigation.  Given such a scenario, how far should a defendant go to defend the case before consent happens? If a defendant attends a deposition, is that a waiver of an objection to the court’s jurisdiction over the defendant in the first place?  If that defendant discloses experts or otherwise prepares a defense, is that a waiver? The local trial judges have attempted to draw the line between participating in the case in a way that would establish consent to jurisdiction and merely engaging in discovery necessary to rule out jurisdiction.  Where that line is, and how a defendant avoids it, remains unclear. At minimum, a defendant must take the step of securing a protective order from the court specifying that participation in discovery does not constitute a waiver of the objection to personal jurisdiction.

The larger question remains whether St. Louis City will continue as a plaintiff-friendly jurisdiction in the wake of these jurisdictional decisions, and as the Missouri legislature pushes for tort reform. For now non-resident defendants in St. Louis can, and should, press their personal jurisdiction objections, but do so knowing it is far from a sure thing those objections will yield a quick and easy dismissal.

General Motors was found liable for negligence last summer after an eight-year-old climbed into her parents’ 2004 Chevrolet Suburban, inserted the key into the ignition and placed the car in neutral;  the vehicle subsequently rolled downhill, crashed into a tree and fatally injured the child. The administrator of the estate for the child and her parent sued the car manufacturer and seller, General Motors Corporation ("Old GM") which later filed for bankruptcy. New GM then purchased some of Old GM’s assets and liabilities. The plaintiffs alleged that the Suburban was defective when manufactured and that neither Old GM nor New GM sufficiently warned of the risk of "rollaway" incidents. At trial, the jurors ruled against New GM on two theories of liability. The jury held New GM liable for the actions of Old GM, which manufactured the vehicle and also held it liable as a "product seller" that breached its duty to warn post-sale.

During trial, New GM argued that the Connecticut Product Liability Act (CPLA) does not recognize the existence of a post-sale duty to warn. The Court, interpreting state law, concluded that, "if this question were before the Connecticut Supreme Court, they would conclude there was such a theory of liability under the [CPLA]."  Therefore, the Court permitted the claims to advance to the jury. After the jury returned a $2.9 million dollar verdict against New GM, New GM moved for certification of the question, "under what circumstances, if any, does Connecticut impose a post-sale duty to warn?" 

The Motion for Certification was denied by United States District Judge Janet C. Hall. Judge Hall found that there was controlling law on the issue that came out of the Second Circuit in Densberger v. United Technologies Corp., 297 F.ed 66 (2d. Cir. 2002). While New GM argued that the CPLA only contains a duty to warn at the time of manufacture, the Densberger Court found that “the post-sale duty to warn exists in negligence and is cognizable under the CPLA.”  Densberger, 297 F.3d at 71.

Judge Hall’s ruling is significant, because it affirms that Connecticut law recognizes the existence of a post-sale duty to warn. As such, an asbestos manufacturer sued in this jurisdiction can be found to have had duty to warn post-sale of possible health hazards resulting from exposure to its product which it learned about before and after the sale.

In Rhode Island, Judge Gibney, a presiding asbestos Judge, issued a decision granting the defendant’s motion to dismiss the complaint against it for lack of personal jurisdiction in Murray v. 3M Co. (In re Asbestos Litig.), 2016 R.I. Super. LEXIS 119; this ruling is significant for nonresident defendant corporations. First, Judge Gibney concluded that no personal jurisdiction existed in Rhode Island over asbestos litigation involving a foreign limited liability company (LLC) and explained the reasons for reaching this conclusion.  Secondly, Judge Gibney found a defendant’s limited participation in discovery did not constitute a forfeiture of its defense.

The issue in this case was whether personal jurisdiction existed in Rhode Island over asbestos litigation involving a foreign limited liability company (LLC). The Murray court concluded that it lacked both general and specific jurisdiction over the LLC and its predecessor corporation because the cause of action did not arise out of either the LLC's or the predecessor corporation's contacts with Rhode Island. Here, while the defendant’s predecessor company had two Rhode Island businesses on its historical customer list, the Court explained there was no indication that the present matter arose from interactions with those two historical customers. As such, there was no basis for specific jurisdiction over the defendant or its predecessor company.

Once the court found specific jurisdiction over the foreign defendant did not exist, its analysis then shifted to whether the defendant had specific contacts with Rhode Island that would deem it "at home," citing Daimler AG v. Bauman, 134 S.Ct. 746 (2014). Here, the defendant was incorporated in Virginia, with its principal place of business in Ohio. Since its incorporation, its officers and executive employees have been located in Ohio. It had no offices or employees in Rhode Island. It owned or leased no property in Rhode Island, and it neither sold its products nor was registered or authorized to do business in Rhode Island; the same was true for its predecessor company. However, the defendant’s predecessor company had two Rhode Island customers, and Rhode Island, by State, accounted for less than one-tenth of one percent of the defendant’s total annual net sales. The court concluded that neither the defendant nor its predecessor company were virtually "at home" in Rhode Island and concluded that the Court lacked both general and specific jurisdiction over the defendant.

Secondly, the Murray court was not persuaded by the plaintiff’s argument that the defendant had waived its challenge to personal jurisdiction merely by attending four days of the plaintiff’s deposition.  The court ruled that the LLC timely asserted its motion to dismiss for lack of personal jurisdiction.

The Murray decision is a significant Rhode Island decision for nonresident corporations, as Judge Gibney both provided an excellent analysis of the limits of personal jurisdiction and defined when a defendant’s right to challenge personal jurisdiction is not waived.

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