When preparing a corporate client for deposition, conduct one of the meetings at the corporate representative's office. You want to see the office first hand, see how they conduct business and see where they keep their records. A client can explain her business to you and explain the facts of a case as they relate to that business, but until you see your client in her company setting, you will not gain a full appreciation of what she does or what her company does. It is this background information which will help you better serve your client and better prepare her for her deposition, including developing themes for the case. Ask for a tour of the company and ask to see what documents it creates and where they maintain them. By doing so, you'll gain a better appreciation of why your client behaved as it did in this case.
Title: Maryland Court of Appeals Slashes Jury Verdicts in Exxon Gas Leak CasesIn these companion cases, Exxon Mobil Corp. v. Albright, Slip Op. No. 15 (Maryland Court of Appeals, Feb. 26, 2013) and Exxon Mobil Corp. v. Ford, Slip Op. No. 16 (Maryland Court of Appeals, Feb. 26, 2013), Maryland’s high court reversed more than $1 billion in punitive damages awarded by a Baltimore County jury to Jacksonville, Maryland residents and businesses. The damages were in connection with a 26,000 gallon gas leak at an Exxon Mobil-owned gas station in 2006. The Court also reversed a large number of the compensatory damages, which originally totaled around $500 million.
In Albright, the Court of Appeals reversed the fraud verdict. Plaintiffs’ fraud theory was based on allegedly fraudulent statements that Exxon made to government officials. Plaintiffs contended that the public officials relied on Exxon’s false statements to the detriment of them—i.e., the public. The Court held that Maryland does not allow a third party to recover damages for fraud purely on the basis of a fraudulent statement made to the government. Overall, the Court held that none of the Plaintiffs were able to prove any of their fraud theories by clear and convincing evidence. Because the fraud verdicts were reversed, all the punitive damages stemming therefrom were reversed as well. In addition, because of the absence of fraud, there was no permissible recovery for emotional distress attendant to property damage. The Court therefore reversed jury awards on that basis as well.
In both Albright and Ford, the Court also considered whether emotional distress damages could be awarded due to the Plaintiffs’ fear of contracting cancer arising from the leak. The Court held that a Plaintiff can recover emotional distress damages for fear of contracting a latent disease if Plaintiff demonstrates: 1) he was actually exposed to a toxic substance due to the defendant’s tortious conduct; 2) which lead him to, objectively and reasonably, fear that he would contract a disease; and 3) as a result of the objective and reasonable fear, he manifested a physical injury capable of objective determination. The Court reversed jury awards to many of the Plaintiffs due to their failure to prove the elements of this cause of action.
The Plaintiffs were also awarded damages for medical monitoring in connection with the gas leak, although Maryland courts have never explicitly recognized a cause of action for medical monitoring. The Court held that in Maryland, a Plaintiff may recover damages for medical monitoring costs, usually through the administration of an equitable fund, upon a showing that: 1) the plaintiff was significantly exposed to a proven hazardous substance through the defendant’s tortious conduct; 2) that as a proximate result of the significant exposure, the plaintiff suffers a significantly increased risk of contracting a latent disease; 3) that the increased risk makes periodic diagnostic medical examinations reasonably necessary; and 4) that the monitoring and testing procedures exist which make early detection and treatment of the disease possible and beneficial. Again, the Court reversed jury awards to many of the Plaintiffs in the case for their failure to prove the elements of this cause of action.
The Court also held that the Plaintiffs should not have been allowed to recover damages for both diminution in property value AND past loss of use and enjoyment of real property as the recoveries were duplicative. The Court held that Plaintiffs could only recover damages for diminution in property value and reversed the verdicts for past loss of use and enjoyment.
Overall, many of the damages awarded to the Plaintiffs in these cases ended up being overturned.
Submitted by: Marisa A. Trasatti & Colleen K. O’Brien of Semmes, Bowen & Semmes
On February 6, 2013, West Virginia’s highest court addressed an unusual concept: to enforce an exclusion, is an insurer required to bring this provision to the insured’s attention? American States Insurance Co. v. Surbach, 2013 W. Va. LEXIS 49 (Feb. 6, 2013).
The policyholder argued that the exclusion could only be enforced if the insurer told the policyholder about the exclusion verbally.
The insurer argued that if the exclusion was clear and conspicuous, it had to be enforced, without regard to whether the policyholder had had been notified. In the alternative, the insurer argued that if special disclosure was required, the insurer made the required disclosure.
To my surprise, the court held that West Virginia requires that “an insurer seeking to invoke exclusions ‘must bring such provisions to the attention of the insured.’” The court said that this issue is rarely addressed because most policyholders do not raise the issue.
The court then cited two notification efforts. First, the insurer sent the policy with a cover letter stating: “Please read your policy carefully. In the event of a loss your insurance coverage will be controlled by the terms.”
Additionally, the top of the policy itself read that “Various provisions in this policy restrict coverage. Read the entire policy carefully to determine, rights, duties and what is and is not covered.”
The court held that these notices satisfied the insurer’s obligation to notify the policyholder of exclusions. The court held that “there is no basis to suggest that American States had to do more than demonstrate that it communicated in writing to [the policyholder] that he should read the policy and its exclusions and contact American States if he had concerns.”
In effect, the court retained an anachronistic requirement, but it set a low standard for satisfying this requirement.
Title: Jury Verdict Upheld in Product Liability Suit by Major League Baseball UmpireIn Wilson Sporting Good Company v. Edwin Hickox, et ux., Case No. 11-CV-0445 (District of Columbia Court of Appeals, Jan. 31, 2013), the Court affirmed the Superior Court’s ruling that the Plaintiff’s expert’s opinion had adequate foundation and that Defendant was not entitled to an assumption of the risk jury instruction.
The Plaintiff, Edwin Hickox, a Major League Baseball umpire, was injured while working as a home-plate umpire and wearing a mask manufactured by Wilson Sporting Goods Company (“Wilson”). Mr. Hickox wore a Wilson mask while umpiring a game in Washington, D.C. Specifically, he was struck in the mask by a foul-tip. The impact of the ball caused Mr. Hickox a concussion and damage to a joint between bones in his inner ear. The Plaintiff claimed permanent hearing loss of mild to moderate severity. He and his wife filed a products liability claim against Wilson.
The mask was equipped with a newly designed throat guard that angled forward instead of extending straight down. The Plaintiffs alleged that this allowed the ball to be trapped temporarily by the throat guard instead of deflected away, and caused the ball’s energy to be concentrated at Plaintiff’s jaw. The Plaintiff argued that safer alternative masks and throat guards were available, and that Wilson failed to test the mask that it manufactured for this type of impact.
Wilson argued alternatively that it had field tested and lab tested the masks, that Mr. Hickox would have sustained the same injury if wearing another type of mask, and that “Mr. Hickox was an experienced umpire who knew that participating in sports creates the risk of injury, that no face mask can guarantee safety, and that injury is more likely without protective equipment.” Wilson Sporting Goods at *5.
At the close of trial, the jury rendered a verdict for the Hickoxes on claims of defective product, design defect, negligent design, failure to warn, and breach of implied warranty. They awarded $750,000 to Mr. Hickox and $25,000 to his wife. Wilson appealed on the basis that the testimony of Plaintiff’s expert, Dr. Igor Paul, was not supported by adequate data and lacked a scientific foundation. Wilson also argued that it was entitled to have the jury instructed on an assumption of risk defense, and that there was insufficient evidence to support the jury verdict.
The Court of Appeals found no error in the trial court’s decisions and affirmed the jury award. The Court noted that Dr. Paul based his opinions on various information including: freeze-frame and slow-motion analysis of video of the incident, a calculation of a baseball’s energy when pitched at various speeds, published results of impact testing on various helmet styles, and his own examination of the mask at issue as well as other baseball masks. The Court held that Dr. Paul’s failure to conduct his own testing was not fatal as “there is no requirement that an expert perform tests, particularly where the expert relies on published data generated by another expert in the pertinent field.” Wilson Sporting Goods at *8.
Wilson argued further that Dr. Paul did not adequately explain the reasoning behind his opinions at trial. The Court noted, however, that gaps or inconsistencies in an expert’s testimony go to the weight of the expert’s testimony, not its admissibility. As such, the Court found no error in permitting Plaintiff’s expert to testimony at trial.
The Court also determined that there was no error in the trial court’s failure to give an assumption of the risk instruction. The Court stated that an assumption of risk instruction is warranted in a design-defect case when the defendant offers evidence that the plaintiff knew about the specific alleged defect and the associated danger. Therefore, the assumption of the risk did not come from an umpire knowing a ball could strike him in the face, but rather that the mask and throat guard’s design could increase the risk of injury.
Finally, the Court determined that there was sufficient evidence presented in the case to support the jury’s finding of liability on the various product liability claims at issue.
Submitted by: Marisa A. Trasatti and Eric M. Leppo of Semmes, Bowen & Semmes
On February 22, 2013, the Supreme Court of Idaho declined to adopt the “Baseball Rule.” Rountree v. Boise Baseball, LLC, 2013 Ida. LEXIS 555 (Feb. 22, 2013).
The facts are simple. At a Boise Hawks baseball game, a ball hit a fan. The fan lost his eye. He sued.
The Hawks argued that the court should adopt the Baseball Rule, which limits the stadiums’ duties to injured spectators. Essentially, if a stadium provides screened seats for as many spectators as may be reasonably expected to request these seats, management is not liable to spectators hit by balls. The Idaho Supreme Court found that most states have adopted some form of the Baseball Rule.
The stadium owner, however, did not persuade the Supreme Court: “Our Legislature can create a similar rule if it chooses. However, no compelling public policy rationale exists for us to do so. Thus, we decline to adopt the Baseball Rule.” The court found that stadium owners’ liability should be evaluated under standard tort principles.
Additional rules of the road for your client for her deposition:
31. Don't take notes during your deposition. The interrogator will you ask you about them.
32. Be careful of questions that use absolutes, like "never" and "always."
33. Don't assume anything you say is "off the record."
34. Don't object to questions. That's what your lawyer is there for.
35. Only bring those documents to a deposition your lawyer asked you to bring. Before the deposition, show your lawyer what you brought.
36. Don't discuss the deposition in the bathroom, hallway or on the phone. You never know who may be listening.
37. Be yourself.
38. Don't let the attorney's pregnant pauses or silence compel you to keep talking. Once you're done with your answer, stop. Don't continue explaining it.
39. If the interrogator is confused or lost, don't help him.
40. Your conversations with your lawyer are privileged. Don't offer them up in deposition.
41. Avoid superlatives.
42. Whatever you say to opposing counsel will find its way into the record. Do not fraternize with opposing counsel during breaks.
43. Ask to read the deposition at the end. Do not waive the reading of the deposition.
44. If you made a mistake or misspoke during the deposition, let your attorney know before the deposition is over.
45. Try to remain relaxed while remaining vigilant.
On February 25, 2013, the Colorado Supreme Court found for insurers on the question of whether pollution exclusions apply to common everyday waste products. Mountain States Mutual Casualty Co. v. Fitz-Gerald, 2013 CO 14; 2013 Colo. LEXIS 166 (2013).
The insured, a restaurant, dumped cooking grease into the sewer system. The insurer found that the grease was a “pollutant.”
The trial court agreed with the insurer.
The intermediate appellate court found for the policyholder. The court held that applying pollution exclusions to kitchen grease would lead to absurd, overbroad applications of the exclusion.
The Colorado Supreme Court reversed to find for the insurer. The decision is interesting on several levels.
The Supreme Court did not dismiss the appellate court’s concern about exclusions being overbroad: “we are mindful of the concerns expressed by the court of appeals….” But, the Supreme Court was persuaded by two factors. First, the disposal was huge; it created an eight-foot clog. Second, the restaurant’s conduct violated a local ordinance.
Ultimately, the court said that it was applying the exclusion “under the circumstances of this case.” Of course, all decisions are under the circumstances of the presented case. But, the court seemed to be emphasizing the circumstances here.
This decision will not be the last word on the meaning of “pollutant,” but it is an important victory for insurers.
Title: Third Circuit Enjoins Diet Drug Lawsuit Under Terms of Settlement AgreementIn In Re Diet Drugs, No. 12-1180 (3d Cir., January 28, 2013), the Third Circuit held that the plaintiffs’ suit for injuries from primary pulmonary hypertension allegedly caused by defendants’ diet drugs was properly enjoined by the district court because it did not qualify under the nationwide class action Settlement Agreement as a cause of action that could proceed despite the terms of the settlement, and plaintiffs waived their argument regarding reformation of the Settlement Agreement.
In November 1999, Wyeth L.L.C. (“Wyeth”) entered into a nationwide class action settlement agreement (the “Settlement Agreement”) with the users of certain diet drugs linked to various health problems. The United States District Court for the Eastern District of Pennsylvania certified the settlement class and entered a pre-trial order enjoining members of the class from suing Wyeth for injuries related to those drugs. Appellants Carmen and Ricky Leon Cauthen brought a lawsuit against Wyeth in the Court of Common Pleas of Philadelphia County, Pennsylvania, seeking to redress Ms. Cauthen’s injuries from primary pulmonary hypertension (“PPH”), a condition that she alleged was caused by the diet drugs. Wyeth moved the District Court to enjoin the suit, arguing that it did not qualify under the Settlement Agreement as a cause of action that could proceed despite the settlement. The district court agreed and enjoined the Cauthens’ lawsuit.
Aside from certain narrow exceptions, the Settlement Agreement at issue enjoined class members from suing Wyeth for all diet drug-related injuries. One of the exceptions was that the Settlement Agreement allowed class members to sue Wyeth if they could demonstrate that they developed PPH through the use of the diet drugs. To qualify for the exception, a class member was required to draw on “[m]edical records” to demonstrate the “exclus[ion]” of certain medical conditions. To exclude one such condition, referred to as “greater than mild restrictive lung disease,” a class member was required by Section I.46.a(2)(c) of the Settlement Agreement to produce “pulmonary function tests” (“PFTs”) showing that the class member’s “total lung capacity” was greater than “60% of predicted at rest.” (Settlement Agreement, § I.46.a(2)(c)).)
The Cauthens produced a “[p]ulmonary consultation note” prepared by Terry Fortin, M.D., a cardiologist certified by the American Board of Internal Medicine. The note stated that based on a PFT that Dr. Fortin had conducted, Ms. Cauthen’s “total lung capacity was 56%.” Because Ms. Cauthen’s only PFT showed that she had lung capacity of less than 60 percent predicted at rest, Wyeth notified the Cauthens that they were prohibited from bringing their claim for failure to satisfy Section I.46.a(2)(c) of the Settlement Agreement. At trial, Dr. Fortin testified that “whether [Ms. Cauthen’s] total lung capacity percent predicted calculation is 56% or 60% is clinically irrelevant,” and “Ms. Cauthen’s diet drug use was the cause of her [PPH].” Unconvinced, however, the district court held that the Cauthens had not produced a PFT that supported their claim as required by Section I.46.a(2)(c) of the Settlement Agreement.
On appeal to the Third Circuit, the Cauthens argued that the district court erred in two (2) ways: (1) the district court misunderstood Dr. Fortin’s declaration, which demonstrated that Ms. Cauthen in fact had PPH that was caused by her use of the diet drugs and not by mild restrictive lung disease; and (2) in the alternative, even if Ms. Cauthen did not meet the technical definition of PPH provided by the Settlement Agreement, the district court should have reformed the Settlement Agreement, given changes in diagnostic capabilities that have rendered obsolete the requirement that a putative plaintiff.
With respect to the Cauthens’ first contention, the Third Circuit determined that the Settlement Agreement unambiguously stated that a putative PPH plaintiff must demonstrate, through a PFT, that the plaintiff’s total lung capacity is greater than 60 percent of predicted at rest. Under the specific terms of that agreement, this PFT was the only way to rule out “greater than mild restrictive lung disease” as a cause of PPH. Because Ms. Cauthen produced only one PFT, which showed that her lung capacity was only 56 percent of predicted at rest, the appellate court concluded that Dr. Fortin’s confident assertion that Ms. Cauthen’s PPH was caused by the diet drugs was irrelevant in light of the Settlement Agreement.
With respect to the Cauthens’ second contention, the Third Circuit noted that the Cauthens never sought reformation of the Settlement Agreement before the district court, but chose instead to argue on appeal that the lower court should have reformed the Settlement Agreement because diagnostic procedures for PFTs have changed. Because the Cauthens did not raise that argument in the district court, however, the Third Circuit held that the claim was waived, stating that “[i]t is axiomatic that arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in this Court absent exceptional circumstances.” Tri-M Grp., L.L.C. v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (internal quotation marks omitted). Although the appellate court acknowledged that the waiver rule is one of discretion rather than jurisdiction, which may be relaxed whenever the public interest so warrants, the court found no exceptional circumstances in this case that would permit it to ignore the rule. Consequently, the Third Circuit determined that the parties did not develop in the district court the arguments in favor and against reformation; thus, the district court was not allowed to perform its vital function of developing a complete factual record on the relevant changes, if any, in diagnostic technology and procedures. Without the aid of factual development by the district court, the Third Circuit concluded that it could not adequately evaluate the merit of Dr. Fortin’s assertion that diagnostic technologies have changed to such a degree that reformation was warranted.
Submitted by: Marisa A. Trasatti and Jhanelle A. Graham of Semmes, Bowen & Semmes
Picking up from the last post, additional rules of the road for your client for her deposition:
16. When asked about a document, ask for it and take the time to read it before answering any questions about it.
17. Don't exaggerate.
18. Don't think out loud.
19. Many questions you will be asked can be answered with: (1) yes; (2) no; (3) I don't know; (4) I don't recall at this time.
20. However, don't be forced to answer "yes" or "no." Sometimes qualifications are necessary.
21. Be wary of leading questions.
22. Be wary of compound questions. Understand if you answer "yes," you are answering yes to the entire question.
23. Be wary of summaries of your testimony. If the summary is incorrect, say so.
24. Sometimes, the less you say the better.
25. This is not a friendly conversation. It is an interrogation. Treat it that way.
26. Listen to the objections your counsel makes.
27. If you're instructed not to answer by your counsel, don't answer.
28. If you don't know what a word means in a question, don't be embarrassed to say so.
29. Don't assume you know what a question is and start answering it before it is completed.
30. Dress appropriately but comfortably.
Title: In Mesothelioma Case, Virginia High Court Adopts Restatement (Third) of Torts’ “Sufficient to have Caused the Harm” Causation Standard
In Ford Motor Co. v. Boomer, Record No. 120283 (Supreme Court of Virginia, January 10, 2013),the Virginia Supreme Court addressed a pair of appeals arising out of a jury verdict against Honeywell International Incorporated (“Honeywell”)and Ford Motor Company (“Ford”) for the alleged wrongful death of James D. Lokey. Lokey’s death was allegedly caused by mesothelioma resulting from exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles (Bendix’s successor in interest was Defendant Honeywell).
The Court held that the trial court gave an improper jury instruction as to causation, and reversed and remanded the case. In a case of first impression, the Court explicitly ruled on the causation standard that was appropriate for mesothelioma cases. In doing so, the Court adopted the standard from the Restatement (Third) of Torts § 27 and its comments a through e.
The underlying facts were that Lokey’s exposure to asbestos arose from his job as a state trooper. Beginning in 1965 or 1966, and for approximately eight years, his duties required that he observe vehicle inspections wherein mechanics used compressed air to blow out brake debris to allow for a visual inspection of the brakes. Lokey testified that he supervised inspections at a Ford dealership and that he was present when this process was being done on Ford cars. Lokey could not identify the type of brake linings being inspected, but his estate produced circumstantial evidence at trial that the likely manufacturer of the brake linings was Bendix.
Plaintiff’s experts, Dr. John C. Maddox and Dr. Laura Welch, testified that chrysotile asbestos, the type of asbestos found in brakes, can cause mesothelioma. They opined that the exposure to dust from Bendix brakes and brakes in new Ford cars were both “substantial contributing factors” to Lokey’s mesothelioma.
Lokey also testified that he worked as a pipefitter at the Norfolk Naval Shipyard for slightly over a year in the early 1940s. Lokey testified that his own work and the work of those immediately around him involved packing sand into pipes so that the pipes could be bent to fit the ships. He had no personal knowledge of any exposure to asbestos in the shipyard. Lokey admitted, however, that he worked in a large warehouse and was unaware of all the work done and products used in the warehouse, whether asbestos products were present, or whether there was any ventilation.
Defense expert Dr. David H. Garabrant, testified that people who work around asbestos-containing brakes are at no higher risk of developing mesothelioma than those who do not. He noted documented evidence, though, of increased risk of mesothelioma for those who worked around shipyards, both directly with asbestos material and also in its vicinity. Dr. Victor Roggli, a defense pathologist, testified that he found amosite asbestos fibers in Lokey's lung tissue. Dr. Roggli opined that Lokey’s profile was more consistent with a person who had exposure to amosite asbestos at a shipyard sixty years ago than a person exposed to chrysotile brake products. Dr. Roggli admitted, however, that his investigation did not include the pleura of the lungs. He also opined that each and every exposure to asbestos above background level is a substantial contributing factor in the development of mesothelioma.
The trial court instructed the jury on negligence and breach of warranty theories. The jury found in favor of the estate as to negligence and awarded damages in the amount of $282,685.69. Defendants appealed, on grounds that, inter alia, the circuit court erred in its jury instructions regarding causation.
The trial court instructed the jury to determine whether Ford’s or Bendix’ negligence was a “substantial contributing factor” to Lokey’s mesothelioma. The Virginia Supreme Court noted that the “substantial contributing factor” instruction was “prominent” in other jurisdictions, citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986), which upheld Maryland’s substantial contributing factor standard in asbestosis cases. The Court noted, however, that it had never invoked this language. In considering it for the first time, the Court found “several problems” with the “substantial contributing factor” instruction, which had the potential to confuse the jury. The Court agreed with the “explicit rejection” of the “substantial contributing factor” language from the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010).
While the Restatement (Second) of Torts used the substantial factor language, the latest version of the Restatement had abandoned it. To the Court, the question in mesothelioma cases is whether exposure to the Defendant’s product, alone, would have been “sufficient to have caused the harm.” After being so instructed, the factfinder, having heard the nature of the exposures to each of the products at issue, as well as the medical testimony as to the requisite exposure necessary to cause mesothelioma, to determine whether the exposure attributable to each Defendant was “more likely than not sufficient” to have cause the harm. The Court therefore held that in concurring causation cases, the “sufficient”-to-have-caused standard is the proper way to define the cause-in-fact element of proximate cause. The Court held that the trial court erred in failing to sustain the Defendant’s objections to the “substantial contributing factor” jury instructions, and remanded the case.
Submitted by: Marisa A. Trasatti and Colleen K. O’Brien of Semmes, Bowen & Semmes