Yesterday, Today, and Tomorrow in Toxic Tort and Environmental Law Litigation

Hanson Horn, Managing Partner of The Cook Group's Fort Lauderdale Office

Today’s climate in litigation is scorching, particularly in the toxic tort and environmental realm. From the ongoing and seemingly never-ending asbestos litigation to asbestos litigation’s off-shoot, talc litigation, and the impending Camp LeJune water contamination claims and hair relaxer related cancer complaints, it seems like the temperatures are only rising and nuclear verdicts are living in the shadows of thermonuclear verdicts.

The following are updates on issues affecting toxic tort litigation across the county that give insight into what has recently happened, what is currently happening, and what is expected to come in the future.

Recent Blow to the Defense Bar in the New York Asbestos Litigation

On February 27, 2024, New York’s First Department of the Appellate Division rendered its decision in the James McWilliams matter; the decision is attached hereto. The McWilliams verdict was rendered in December 2022 against last remaining defendant, Jenkins Bros. (“Jenkins”) before New York County judge, Justice Suzanne Adams. The case involved an eighty-one-year-old living mesothelioma claimant represented by Weitz & Luxenberg. Mr. McWilliams obtained a $23,000,000 verdict at trial ($13,000,000 for past pain and suffering and $10,000,000 for future pain and suffering). Justice Adams issued her post- trial decision in September 2022, denying all of Jenkins’ requested relief, including remittitur, and instead granted plaintiff’s cross motion for sanctions ($10,000) due to false statements in Jenkins’ discovery. The First Department denied Jenkins’ appeal in its entirety.

Factually, Mr. McWilliams was a member of the Steamfitter’s Union Local 638 between 1960 and 1996; during this time plaintiff he worked at a variety of locations of commercial and residential locations. Mr. McWilliams alleged asbestos exposure from a variety of entities, including boilers, pumps, valves, and steam traps, as well as contractors, premises owners, and power plant operators.

Causation

The First Department found the trial court properly denied the motion to vacate the jury’s findings that gaskets and insulation associated with Jenkins valves caused plaintiff’s mesothelioma in holding that plaintiff’s counsel met its burden pursuant to the Parker test, recently reaffirmed in the vacation of the jury verdict in the Nemeth matter in 2022. The court held that Mr. McWilliams testified extensively concerning his tasks associated with Jenkins’ products, which counsel fortified with expert testimony (industrial hygienist (“CIH”), epidemiologist, and a thoracic surgeon). The court zeroed in on the CIH’s testimony (Kenneth Garza), which provided cumulative exposure levels based on the testimony and “conservative” assumptions. Garza’s reliance on studies which took samples via air cassettes, the court held, was sound and previously found to be proper in other First Department cases, like the recent Dyer matter, in which defendant American Biltrite won reversal of a denial of summary judgment. Further, the epidemiologist, Dr. Steven Markowitz, testified that Mr. McWilliams was 8-47 times more likely to develop the disease based on the testimony as compared to the studies at issue.
The court further found that admission of Tyndall lighting study videos to the jury, which demonstrate significant fiber release under bright lights and a dark background, was proper. While the court during oral argument conceded this actually had nothing to do with the causation analysis, and it is unclear exactly what of the dust exhibited was actually asbestos-containing, the court held that the video was relevant as a “visual aid to illuminate asbestos fibers in the air . . . not as a basis for substitute for quantifying asbestos exposure based on scientific studies.”

Error/Prejudice

Jenkins argued that a new trial was appropriate because of an OSHA-related charge to the jury, which effectively decided liability against Jenkins and resulted in removal of a question concerning liability from the verdict sheet. Jenkins further contended that a new trial was warranted because it was prejudiced by plaintiff’s counsel’s trial tactics—improper cross examination, misleading questions, jurors hearing sidebar remarks, and an improper, inflammatory summation. These arguments were rejected by the court—any challenge to the jury charge, the court held, was effectively waived as Jenkins failed to raise same at the proper juncture. Jenkins also failed to preserve its arguments concerning the jury overhearing any sidebars, or the prejudicial effect of plaintiff’s summation, as no timely objection was lodged.

Remittitur

Finally, the court declined to remit the $23,000,000 verdict any further. Mr. McWilliams endured 51 months of past pain and suffering—for which he was awarded $13,000,000. This equates to $254,904 per month. He was further awarded $10,000,000 for twenty-four months of future pain and suffering, or $416,666 per month. On average, this, in total, equates to $307,000, which is within recent First Department remittitur.

Analysis

This is a frustrating decision from several angles. After several positive causation decisions, this holding represents a step back in the causation analysis. CIH Garza’s studies were not specific to the exposure at issue and the court openly acknowledged that Mr. Garza took certain speculative leaps and assumptions in his analysis and calculations. Moreover, the court admitted the Tyndall lighting video as it “demonstrated asbestos fibers in the air,” but in the same sentence noted that it does not count as quantification. Tyndall lighting studies do not show asbestos fibers in the air, it shows dust release of a product generally—of the giant dust clouds exhibited in the Tyndall videos, only a small percentage, most likely, constitutes asbestos fibers.
Finally, while $23,000,000 is one of the larger post-appellate verdicts in New York, the sheer amount of pain and suffering (fifty-one months, plus a future award of twenty-four months) actually place this award within the universe of recent appellate remittitur—indeed it is lower than the $333,333 per month average the First Department held in Macaluso.

All Eyes on Miami-Dade County as Jurors Cannot Agree on Verdict in First Ovarian Cancer/Talc Trial Since J&J Bankruptcies

On Tuesday March 4, the first ovarian cancer trial in three years over Johnson & Johnson’s (“J&J”) talcum powder ended in a mistrial, as a Florida state court jury said it could not agree on a verdict. The trial, which began on February 13, wrapped up on Friday, March 1 in Miami before jurors went into deliberations the following week. The lawsuit was brought by Bob Sugarman on behalf of his wife, Marilyn Seskin, an anesthesiologist who died in 2019 from ovarian cancer, who said that J&J’s talc-based baby powder led his wife to develop ovarian cancer and die from the disease. Miami-Dade Circuit Judge William Thomas presided over the trial. Sugarman was represented by Motley Rice while J&J was represented by Skadden, Arps, Slate, Meagher & Flom.
Sugarman’s lawyers asked jurors in closing argument for $14,000,000 in compensatory damages and enough punitive damages to be “meaningful” to J&J. “It was reckless, but they did everything they did intentionally, and it was a diabolical level of intentionality,” he said. “If you punish them with $1,000,000, that doesn’t matter to them. That’s a rounding error. You have to pick an amount of money that will get their attention.” In closing arguments, J&J’s counsel told jurors that Seskin had other risk factors, especially her age. She informed jurors that hundreds of millions of women use J&J’s baby powder around the world but only 19,000 in the U.S. get diagnosed with ovarian cancer each year.“ It doesn’t make sense…this is an extraordinarily rare disease.”

The trial is the first against J&J since a bankruptcy judge tossed subsidiary LTL Management’s second Chapter 11 cases last year. J&J faces more than 50,000 lawsuits over talc, most by women with ovarian cancer, with a minority of the cases involving people with mesothelioma. The cases were on hold for about two years as J&J unsuccessfully tried to resolve them through bankruptcy. Talc trials against J&J have been on hold since 2021, when LTL filed its first bankruptcy. During the second Chapter 11 case, filed in 2023,
U.S. Bankruptcy Chief Judge Michael Kaplan of the District of New Jersey allowed one case to go before jurors because the plaintiff, twenty-four-year-old Anthony Hernandez Valadez, had months to live. Valadez, however, was diagnosed with mesothelioma, a type of cancer of the pleura. On July 18, the jury in California’s Alameda County Superior Court awarded $18,800,000.

‘Additional Punitive Damages May Be Warranted’

In the Florida trial, J&J filed a motion for judgment to prevent plaintiffs’ lawyers from asking jurors for punitive damages. They cited Florida Statute 768.73, a 1999 law that bans punitive damages if a previous jury awarded them against the same defendant in another action over the same course of conduct.

J&J’s lawyers relied on a 2018 verdict of $4,700,000,000 in St. Louis, Missouri, for twenty-two women who were diagnosed with ovarian cancer. That award, later reduced on appeal, included more than
$715,900,000 in punitive damages, which J&J’s lawyers in Florida now insist should offset any potential award in their case. The jury also returned $900,000,000 in punitive damages against Johnson & Johnson Consumer Inc., which no longer exists, but whose liabilities were absorbed by LTL, another defendant in the trial.
Judge Thomas did not agree with that argument. “But you also could have looked at the evidence that was there and you could have made a decision voluntarily to simply cease the product that jurors have already determined was defective,” Judge Thomas held. Instead, Judge Thomas said J&J continued to sell its product, which it insisted was safe. “And that, maybe,” he instructed, “is why additional punitive damages may be warranted. Because it doesn’t appear that you are even remotely remorseful for any of the conduct that you have been alleged, or been found, to have been involved in. Judge Thomas added: “And if you show absolutely no remorse, if you show absolutely no action or redemption, why can’t that be something the court considers in terms of whether or not the original award was adequate in order to deter this type of behavior in the future?”

Analysis

The mistrial is a huge “win”, in a sense, for the defense bar as it avoids the potential for another nuclear verdict in the talc litigation. Plaintiffs’ counsel continues to aggressively pursue talc claims as some firms have even set up offices abroad, particularly in the United Kingdom, to solicit talc clients. Florida sees a particularly high rate of talc plaintiffs from abroad.

The Year Ahead – Toxic and Environmental Torts to Keep an Eye on in 2024 and Beyond

Camp Lejeune

Camp Lejeune is the largest Marine Corps base on the East Coast and has provided housing and workspaces for thousands of servicemembers, their families, and civilian workers for decades. Between 1953 and 1987, many of these people drank cooked with, and bathed in water contaminated with volatile organic compounds (“VOC”). These chemicals, including perchloroethylene (“PCE”), trichloroethylene (“TCE”), benzene, and vinyl chloride, have been linked to serious illnesses including cancers, leukemia, birth defects, and Parkinson’s disease. The CDC’s Agency for Toxic Substances and Disease Registry connects the Camp Lejeune water contamination with various industrial spills, leaking underground storage tanks, and nearby dry cleaners’ contamination. The CDC specifically identified the four aforementioned VOCs in the Camp Lejeune water supply: PCE, TCE, benzene, and vinyl chloride. Exposure to any one of the four can cause damage to the human body, especially if exposure is prolonged.

On August 10, 2022, President Biden signed the Camp Lejeune Justice Act (“CLJA”). The Act gave potential plaintiffs two years from the date of its enactment to file suit in the U.S. District Court of North Carolina. The government allotted $22,000,000,000 to cover Camp Lejeune settlements.
In 2023, over 1,400 CLJA complaints were filed in the Eastern District of North Carolina. By December 18, 2023, fourteen of these cases had been dismissed and six settlements had been reached: $250,000 for a Parkinson’s disease case, $300,000 for a non-Hodgkin’s lymphoma case, $300,000 each for two cases of leukemia, $150,000 for another case of leukemia, and $150,000 for one case of bladder cancer. By some estimates, only about fifteen percent of filed claims are eligible for early settlement. The remaining eighty- five percent may need to go through the court system to reach a resolution. In early February 2024, the court ruled that the CLJA does not create a right to a jury trial for plaintiffs seeking relief under the Act.

Hair Relaxer-Related Cancers

Hair relaxers use various chemicals to straighten and soften hair by altering proteins found in the hair shaft. A number of consumer hair straightening products, including shampoos, conditioners, sprays, gels, moisturizers, and treatments contain these chemicals. Studies of hair relaxers increasingly show a connection between the most common chemicals used in hair relaxers and adverse health effects, including an increased risk of uterine fibroids.

Broadly speaking, a class of chemicals called Endocrine Disrupting Chemicals (“EDCs”) are so named because they affect the body’s hormonal systems. As these chemicals mimic or disrupt the body’s hormonal processes, they can cause developmental, reproductive, neurological, immunological, and other issues. Certain EDCs are present in hair-relaxing products. Research indicates a link between prolonged exposure to these chemicals - such as by using hair relaxers regularly for many years - and the development of fibroids, endometriosis, or ovarian, uterine, or endometrial cancers. Other risk factors for these conditions are also widespread, however, making it difficult to identify the EDCs in hair relaxers as the primary or sole cause of any of these conditions.

As relates to developments in hair-relaxer litigation, in fall 2022, a plaintiff in Missouri alleged that L’Oreal’s hair straightening products caused her uterine cancer. The suit also alleged that L’Oreal knew about the connection between the EDCs in their hair relaxers and cases of cancer since 2015 but concealed this information from the public. A related case filed in Illinois sought certification as a class action incorporating women who developed uterine cancer after using various L’Oreal hair relaxing products. At the end of 2022, only about 150 pending cases regarding cancers related to hair relaxer use had been filed nationwide. By January 2024, that number had grown to over 8,000 cases. The cases were consolidated into an MDL in the Northern District of Illinois in early 2023. The plaintiffs propose to submit a bellwether trial list in February 2024, focusing on cases of ovarian, endometrial, and uterine cancers allegedly linked to the use of hair relaxers.

Hanson Horn is a trial attorney with The Cook Group and Managing Partner of the firm’s Fort Lauderdale office where his practice focuses on product liability, toxic tort, environmental claims, and property and casualty defense litigation. He contributes significantly to the firm’s New York practice and is also licensed in Louisiana and Mississippi. This article is submitted on behalf of the FDCC’s Toxic Tort and Environmental Law Section. For more information on recent developments and navigating the toxic tort and environmental litigation landscape, please email Hanson Horn at hhorn@cookgrouplegal.com