Toxic Tort Seminar

91
Toxic Tort Seminar Charles R. Bailey Justin C. Taylor Michael W. Taylor

Transcript of Toxic Tort Seminar

Toxic Tort SeminarCharles R. BaileyJustin C. TaylorMichael W. Taylor

Overview• Causation and Experts• Medical Monitoring Claims• Chemical Distributor as a Defendant• Mediation

Causation and Experts• Two Types or Causation

General Causation is whether a substance is capable of causing of a particular injury or condition in the general population.

Specific Causation is whether a substance caused a particular individual’s injury.

General Causation• The plaintiff must establish that the level, duration, and mechanism

of exposure at which the substance in question causes the illness in question.

• General causation may be established through controlled scientific experiments that are carried out to determine whether a substance is capable of causing a particular injury or condition.

• However, in many toxic tort cases, direct experimentation cannot be done, and therefore the plaintiff will be unable to offer direct proof of causation.

• Courts, therefore, have generally held that plaintiffs may prove general causation through circumstantial evidence.

• Circumstantial evidence often includes epidemiological studies, clinical trials, and animal in laboratory studies.

Epidemiology• Epidemiology is the study of a pattern of instances and distribution of

disease in a defined population group. • Epidemiological studies cannot establish that a specific individual

contracted a given disease due to the defendant’s toxin, rather, epidemiological studies examine the existing populations to attempt to determine based on statistical analysis, whether there is an association between a disease and a toxin.

• Courts are divided as to the strength of association required and whether additional evidence is necessary or whether verdicts may be based solely on statistical evidence.

• In re Agent Orange Product Liability Litigation, Judge Weinstein held that the plaintiffs were required to offer evidence that causation was “more than 50% probable” and that plaintiff’s experts were required to “rule out the myriad other possible causations” of the plaintiffs afflictions.

Epidemiology Cont.• Many courts have followed Judge Weinstein’s lead in requiring

epidemiological evidence to show that the rick of an injury in the exposed population is more than double the risk in the unexposed population.

• In West Virginia, the Supreme Court seemingly rejected this requirement and will allow a jury to decide whether the expert’s methodology and results establish a sufficient causal connection.

• The reasoning for this is because “causation” is a question for the jury.

Specific Causation• A plaintiff must establish exposure to that substance to a specific

degree, and in a manner that would justify a jury concluding that the substance actually did cause the illness.

• Courts have wrestled, however, with defining how precise and detailed evidence of exposure must be.

• Proof of causation does not require proof of a “mathematically precise” level of exposure.

• The plaintiff must provide enough evidence to allow a reasonable person to be able to conclude that the exposure probably caused the alleged injury.

• An expert does not need to quantify the exact level of exposure to environmental chemicals, but the plaintiff must establish, at minimum, exposure to the alleged contaminant at harmful quantities.

Multiple Source Causation• The plaintiff must also establish that the particular defendant

was the source of the contaminant. • Courts have increasingly struggled with applying traditional

concepts of causations to situations where multiple sources have caused the plaintiff’s harm.

• One of the ways that courts are altering the traditional rules of causation in toxic tort cases in through so-called “market share liability”.

Multiple Source Causation Cont.• Market Share Liability holds a company’s liable for the

proportion of the judgment represented by its share of that market unless it could demonstrate that it could not have made the product which caused the plaintiff’s injury.

• The West Virginia Supreme Court of Appeals has neither adopted, nor even directly addressed, alternative liability, enterprise liability, and market share liability.

Chemicals and IllnessesBenzene• Benzene is a colorless, flammable liquid with a sweet odor. It is

a volatile chemical that evaporates quickly.• Benzene is formed from natural processes, such as volcanoes

and forest fires, as well as from human activities. • Benzene is widely used in the United States and ranks among

the top 20 chemicals produced.• Benzene is primarily used as a solvent, as a starting material

for the synthesis of other chemicals and as a gasoline additive.• Benzene is also widely used in the manufacture of chemicals to

make plastics, resins, nylon, synthetic fibers, rubbers, lubricants, dyes, detergents, drugs and pesticides.

Benzene Cont.• The 2 routes of exposure to benzene are inhalation and skin

absorption. • However since liquid benzene evaporates quickly, skin

absorption, which requires contact with a source such as gasoline, is less common.

• Therefore, inhalation of contaminated air is the primary route of exposure.

Occupational Exposures with Benzene• Workers in industries that make or use benzene may be

exposed to high levels of this chemical.• These industries include the rubber industry, oil refineries,

chemical plants, shoe manufacturers, and gasoline related industries.

• In 1987, OSHA estimated that about 237,000 workers in the United States were potentially exposed to benzene.

• It is not known if this number has changed since that time.

Environmental Exposures to Benzene• Sources of benzene in the environment include gasoline, automobile

exhaust fumes, cigarette smoke, emissions from coke ovens and other industrial processes, and waste water from certain industries.

• Areas of heavy vehicular traffic, gasoline stations, and areas near industrial sources may have higher air levels.

• Cigarettes have been found to release between 50 and 150 micrograms of benzene per cigarette, so smoking and second-hand smoke are important sources of exposure to benzene.

• Cigarette smoke accounts for about half of the US national exposure to benzene and for about 89% of benzene exposure among smokers.

• Secondhand smoke accounts for 10% of benzene exposure among nonsmokers. Benzene has also been identified in contaminated water and food.

Consumer Produts• Some consumer household products, such as glues, cleaning

products, detergents, art supplies, and paint strippers, contain benzene.

Cancer Causing• The evidence linking benzene and cancer predominantly comes from

studies of workers, and relates to leukemia, particularly with 2 types called acute myeloid leukemia (AML) and to a lesser degree, chronic lymphocytic leukemia (CLL).

• Leukemia is a cancer of blood-forming cells in the bone marrow.• Benzene is considered a human carcinogen based on experimental and

epidemiological data.• The EPA regulates limits concentrations of benzene in drinking water to 5

ppb (parts per billion) with an ultimate goal of 0 ppb. • The National Institute of Occupational Safety and Health (NIOSH) and the

Occupational Safety and Health Administration have limited occupational exposures to benzene to 1 ppm (part per million) during an average workday and also recommend personal protective equipment such as respirators.

Mold• When damp conditions are present, mold is able to grow on

such diverse materials as wood, carpet, insulation, cloth, and all types of food.

• Molds typically reproduce through their spores that are released into the air and land on moist, organic, materials.

• The spores then germinate and begin expanding out in elaborate networks.

• Molds also produce secondary metabolites such as antibiotics and mycotoxins (a poisonous substance produced by a fungus).

• Allergic reactions are the most common health effects of mold exposure.

Mold Cont.• Both growing mold and mold spores may lead to allergic

reactions. • Asthma attacks may be caused by mold or mold spores in

people who have asthma and are allergic to mold. • Symptoms of severe reactions include fever and difficulty

breathing. • People with compromised immune systems or those with

chronic lung disease can develop serious infections of the lungs due to molds.

• Mold can also be linked to acute and chronic hypersensitivity pneumonitis (includes cough, fever, malaise, shortness of breath, breathlessness, loss of appetite, and unintentional weight loss), kidney failure, cancer, tremors, chronic fatigue syndrome, and organic dust toxic syndrome .

Welding Rod Fumes• Fumes and gases containing manganese from the burning of

welding rods during welding operations are a recent trend of claims and mass tort actions in West Virginia and the United States.

• These plaintiffs, typically welders, allege that manganese exposure has been medically recognized as toxic to the human central nervous system and that such toxicity causes progressive, disabling neurological injuries and damage.

• This condition is commonly called manganese poisoning. Plaintiffs further allege that there is a medical relationship between manganese toxicity and Parkinson's Disease or Parkinsonism.

Polyacrylamide• Polyacrylamide litigation involves a lawsuit brought by

employees or former employees of coal preparation plants whereby they allege exposure to polyacrylamide.

• Polyacrylamide is a chemical which the coal companies utilize as a flocculent, to help particles settle in liquid and it helps remove unwanted particles when the coal is cleaned.

• Plaintiffs allege that the defendants were selling low grade polyacrylamide that contained residual acrylamide, which makes the product unsafe.

• Acrylamide is a chemical that is considered hazardous in certain doses.

Metal Working Fluids(monoethanolamine and triethanolamine)• Metal working fluids (MWF's) are used in grinding and cutting

machinery; parts making; and machining. • Workers can be exposed to MWF's by inhaling aerosols/mists or

skin contact.• There is substantial scientific evidence that workers exposed to

MWF's have an increased risk of contracting respiratory disease (including occupational asthma) and skin disease.

Chorinated Solvents, Degreasers, Paint Thinners (trichloroethylene or TCE)• Chlorinated Solvents are used for a wide variety of commercial

and industrial purposes, including degreasers, cleaning solutions, paint thinners, pesticides, resins, glues, and a host of other mixing and thinning solutions.

• Their chlorine-containing chemical structure helps them: to efficiently dissolve organic materials like fats and greases and to serve as raw materials or intermediates in the production of other chemicals.

• Workers can be exposed to chlorinated solvents through the absorption of solvents, through inhalation and skin contact.

• Inhalation is the most common form of workplace exposure, because the solvents can readily evaporate.

Chorinated Solvents, Degreasers, Paint Thinners (trichloroethylene or TCE)• Chlorinated solvents can leave the body through exhalation

and/or urination.• Exposures can lead to short-term or long-term health effects,

depending on the manner by which they entered your body and the amount of exposure.

• Short-term side effects may include dizziness, fatigue, headaches, and/or skin rashes.

• Long-term side effects may include chronic skin problems, and/or damage to the nervous system, kidneys, or liver.

• Some chlorinated solvents are also known to cause cancer, in both humans and animals.

Gas Drilling (Marcellus – Shale) ~ Hydraulic Fracturing or Fracking (Hyraulic Fracturing Chemicals)• Coalbed fracture treatments use anywhere from 50,000 to

350,000 gallons of various stimulation and fracturing fluids, and from 75,000 to 320,000 pounds of proppant during the hydraulic fracturing of a single well. Many fracturing fluids contain chemicals that can be toxic to humans and wildlife, and chemicals that are known to cause cancer.

• These include potentially toxic substances such as diesel fuel, which contains benzene, ethylbenzene, toluene, xylene, naphthalene and other chemicals; polycyclic aromatic hydrocarbons; methanol; fonnaldehyde; ethylene glycol; glycol ethers; hydrochloric acid; and sodium hydroxide.

• Very small quantities of chemicals such as benzene, which causes cancer, are capable of contaminating millions of gallons of water.

Expert WitnessesTypes• Product Specialist/purpose of product• State of the Art• Chemist/Scientist• Industry expert• Industrial Hygienist• Exposure expert• Warnings/OSHA expert• Causation physician type (toxicologist, neurologist,

epidemiologist/biostatistics, cancer physician)

Expert Witness Types Cont.• Human factors / psychology• Distributor expert• Economic• Life care planner• Vocationalist• Occupational Health specialist• Medical monitoring• Treating physicians

Expert WitnessesGentry/Daubert• Due to toxic tort cases being expert intensive, pre-trial motions

practice either attacking or defending the credentials or the abilities of the experts to testify is very important.

• In West Virginia, the seminal case is Gentry.• The first and universal requirement for the admissibility of

scientific evidence is that the evidence must be both reliable and relevant.

• Under Daubert/Wilt the reliability requirement is met only by a finding by the trial court under Fed. R. Evid. 1 04(a) that the scientific or technical theory which is the basis for the test results is indeed scientific, technical, or specialized knowledge.

Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993)

• Plaintiff victims were permanently injured and decedent was killed in an automobile accident.

• On appeal, defendant administrator challenged the admission of an economist's testimony on the calculation of damages for loss of enjoyment of life.

• The court reversed as to the admission of that testimony because it did not meet the reliability standard of W.Va. R. Evid. 702.

• The studies on which the expert relied were not admitted into evidence, they did not involve persons suffering permanent injury or cover loss of enjoyment of life, and the expert extrapolated data without explaining the underlying methodology.

Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993) Cont.• The court found that Daubert was directed at situations where the

scientific or technical basis for the expert testimony cannot be judicially noticed and a hearing must be held to determine its reliability.

• It concluded that Daubert's analysis of Federal Rule 702 should be followed in analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence.

• The trial court's initial inquiry must be considered whether the testimony is based on an assertion or inference derived from scientific methodology.

• Moreover, the testimony must be relevant to a fact at issue.• Further assessment should then be made in regard to the expert

testimony's reliability by considering its underlying scientific methodology and reasoning.

Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995)

• The court explained that the Daubert standard was not applicable because it provided a method for assessing a proffer of expert scientific testimony, while the witness in this case was not providing scientific testimony, but would have testified regarding a range of factors including his experiences and understanding of police work.

• The court found that Fed. R. Evid. 702 permitted a court to qualify an expert by virtue of education or experience or by some combination of these attributes.

• The court reasoned that the background and practical experience of the witness was sufficient to qualify as specialized knowledge gained through experience, training, or education under Rule 702, and, unless otherwise, inadmissible should have been admitted into evidence.

Expert Cases• Watson v. Inco Alloys International, Inc., 545 S.E.2d

294,301 (W. Va. 2001)• Perrine v. E. L du Pont de Nemours & Co., 694 S.E.2d

815, 869 (W. Va. 2010)• State v. Black, 2010 W. Va. LEXIS 12, *2 (W. Va. Mar. 4,

2010)

Expert WitnessW.Va. Standard• A circuit judge must determine whether the proposed expert

(a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, the circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify. There must be a match. What must be remembered, however, is that there is no best expert rule. Because of the liberal thrust of the rules pertaining to experts, circuit courts should err on the side of admissibility.

Parts Per Million Analysis• Parts per million (or ppm) is the number of parts of a chemical

found in 1 million parts of a particular gas, liquid or solid.• PPM is a term used in chemistry to denote a very, very low

concentration of a solution.• One gram in 1,000 milliliters equals 1000 ppm. • One thousandth of a gram (0.001g) in 1,000 milliliters equals 1

ppm.• There are various reasons why understanding ppm is

important, one being because federal guidelines will limit exposure to certain chemicals.

Parts Per Million Cont.• Ultimately, the main issue regarding ppm and litigation is, what level

of exposure is necessary in order for the substance to become toxic.• There is a maxim that, at a certain level, every substance is harmful.• What needs to be determined is “threshold” level or the level at

which a substance starts to become harmful.• “Threshold” is defined as the highest dose at which no effect is

observed.• The presumption that a chemical has a threshold is important in

litigation because it permits the argument that a plaintiff was not exposed to a threshold level of a substance.

• However, there are certain ailments that are considered “zero threshold” ailments, such as cancer.

Parts Per Million Cont.• This “zero threshold” theory is generally considered to be

linear, which means that if the risk of cancer at a certain exposure of 100 units is X, then the risk for cancer at a dose of 200 units is twice the amount of X.

• Another concept important for ppm discussions is the concept of specificity of effects.

• Chemical and substances have a specific effect when a person is exposed above the threshold.

Medical Monitoring Claims• West Virginia• Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va.

1999)• The plaintiff must prove that (1) he or she has, relative to

the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.

Medical Monitoring Claims cont.• Employees cannot bring a Medical Monitoring actions against their

employer in West VirginiaWest Virginia case law makes it clear that said medical

monitoring claims by an employee against his or her employer are precluded, as medical monitoring is established under traditional theories of recovery from which an employer is immune. In the City of Martinsburg v. Sanders, 219 W.Va. 228, 632 SE 2d 914 (2006) case, the West Virginia Supreme Court of Appeals makes this finding clear:

The immunity from liability afforded all employers participating in the Workers' Compensation system through West Virginia Code § 23-2-6 protects employers, including a political subdivision such as Martinsburg, against awards of medical monitoring damages based on common law tort theories. Syllabus point three of Bowers by its terms indicates that medical monitoring is only a compensable item of damage when liability is established under traditional theories of recovery.

Medical Monitoring Cont.• The elements of a medical monitoring claim do not meet the

strict statutory requirements when bringing an action against one's employer. Furthermore, if a plaintiff/employee does not have present injury, then there cannot be a statutory deliberate intent claim under any circumstances.

Medical Monitoring Cont.• . Punitive Damages Are Not Allowed in West Virginia Medical

Monitoring Actions• “Punitive damages may not be awarded on a cause of

action for medical monitoring.” Syl. Pt 3, Perrine v. E.I. Dupont, 225 W.Va. 482 (2010).

Cases• Perrine v. E.I. Dupont, • Environmental class action where Dupont was found to be liable to class members in the

amount of $ 381,737,522 for off-site arsenic, cadmium, and lead contamination which emanated from a smelter facility in West Virginia. The class consists of a property class and an overlapping medical monitoring class. The $ 381,737,522 amount includes the following: (1) $ 55,537,522 for soil and structural remediation, (2) an estimated cost of $130,000,000 for medical monitoring, and (3) $ 196,200,000 in punitive damages (the Supreme Court subsequently held that punitive damages cannot be found in medical monitoring action).

• The jury returned a verdict finding: (1) that the class members were significantly exposed in each zone to arsenic, cadmium, or lead; (2) that those elements are hazardous substances; and (3) that the significant exposure to those hazardous substances was "due to emissions from the smelter." Furthermore, the jury found that, as a proximate result of exposure to arsenic, cadmium or lead, due to emissions from the smelter, the class members have a "significantly increased risk of contracting" certain diseases making it "reasonably necessary" for all class members to undergo periodic diagnostic medical examinations "different from what would be prescribed in the absence of the exposure." The diseases thus determined by the jury included: (1) skin cancer, (2) lung cancer, (3) bladder cancer, (4) kidney cancer, (5) stomach cancer, (6) decreased renal function, (7) renal failure, (8) plumbism (lead poisoning), and (9) neurocognitive injury.

Cases Cont.• . IN RE: TOBACCO LITIGATION (Medical Monitoring Cases) 215

W. Va. 476; 600 S.E.2d 188; 2004 W. Va. LEXIS 27 (2004)• Plaintiffs were West Virginia residents who smoked the

equivalent of one pack of cigarettes per day for five years, and they filed a class action suit against defendants/appellee cigarette manufacturers. A jury in the Circuit Court of Ohio County, West Virginia, returned a verdict that declined to require the manufacturers to provide medical monitoring to appellants.

CasesApplying Bower, the trial court established that the first six issues were:• (1) whether a five-pack-year smoking history by an appellant constituted a

significant exposure to a hazardous substance;• (2) whether smoke from the appellees' tobacco-containing cigarettes

constituted, or contained, a proven hazardous substance;• (3) whether the appellees' conduct in designing and selling cigarettes was

tortious, under theories of strict liability, negligence or breach of a voluntary undertaking;

• (4) whether exposure to a minimum of five-pack-years of cigarette smoke results in an increased risk of contracting lung cancer and/or COPD;

• (5) whether that increased risk of contracting lung cancer and/or COPD makes it reasonably necessary for the appellees to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of smoking; and

• (6) whether monitoring procedures exist that make the early detection of lung cancer and/or COPD possible.

Cases Cont.• At the close of the trial, the trial court granted the appellants' motion

for judgment as a matter of law on the first two issues, ruling that the appellants (1) had been significantly exposed (2) to a proven hazardous substance. The jury deliberated on the remaining five issues, and found for the appellants on issues (4) and (6), concluding that the appellants had an increased risk of contracting lung cancer and/or COPD as a result of their exposure to cigarette smoke, and that medical monitoring procedures for the early detection of those diseases existed.

• The jury found against the plaintiffs on issues (3) and (5). The jury found that the appellees/defendants had not engaged in any tortious conduct, and found that the appellants had not established a necessity for medical monitoring. Bower requires that all six elements must be proven before recovery is available to any plaintiff. To say that one "needs no evidence to prove a medical monitoring cause of action" is a clear misstatement of the law.

Case Cont.• Rhodes v. EI Dupont, • This case arises from defendant E.I. du Pont de Nemours

and Company's ("DuPont") release of perfluoroctanoic acid, a substance also known as PFOA or C-8, from its Washington Works plant in Wood County, West Virginia. The plaintiffs alleged that C-8 released from the plant had contaminated the drinking water.

• DuPont has used C-8 at the plant in its manufacturing operations since the early 1950s.

• . In 1984, detectable levels of C-8 were discovered in the tap water of those communities.

• Studies have indicated that C-8 may cause liver disease, elevated cholesterol levels, and several types of cancer.

Cases Cont.• Plaintiffs' expert, Dr. David Gray, toxicologist. • Conducted a risk assessment finding that exposure to .02 ppb

of C-8 in drinking water would be significant after one year because health "effects would be observable at that time through clinical tests and found that "the buildup of C-8 body burden due to exposure through drinking water results in increased risk of serious latent disease.“

Cases Cont.• Plaintiff’s expert, Dr. Barry Levy, Occupational and Environmental

Health physician and epidemiologist• conducted an epidemiological survey concerning the human health

effects of C-8. He concluded that C-8 generally causes the following diseases: hepatotoxicity (liver damage), dyslipidemia (abnormal lipid or cholesterol levels), coronary artery disease, cerebrovascular disease, diabetes melitus, non-malignant thyroid disorders, bladder cancer, and prostate cancer. Dr. Levy testified that the proposed class has been significantly exposed to C-8, and that, as a result, the proposed class has suffered a significantly increased risk of those eight diseases.

• He also testified that the proposed class should receive community-wide medical monitoring for those diseases, that there are tests available to detect the early warning signs of those diseases, and that these tests are not ordinarily prescribed to the general population.

Cases Cont.• Bombardiere v. Schlumberger Technology, United States District

Court for the Northern District of West Virginia, applying Pennsylvania law

• Plaintiff alleged exposure to silica and other fracking materials, which could lead to silicosis, cancer, or other conditions and brought a medical monitoring action against the defendant. The District Court in analyzing the medical monitoring factors, stated that it must focus upon the fourth criterium, requiring a significantly increased risk of contracting a serious latent disease.

• The court found that neither plaintiff nor his experts offered competent expert evidence that he was exposed to silica dust and other fracking materials at levels and at durations known in the medical literature to be associated with silicosis, lung cancer or any other conditions.

Cases Cont.• Hagy v. Equitable Production, United States District Court for the Southern

District of West Virginia, Charleston Division• Claims that defendants contaminated plaintiff’s well water supply, which was in

close proximity to natural gas wells owned by Equitable. A medical monitoring action was brought against several defendants associated with the well and drilling process.

• The plaintiffs assert that the defendants began drilling operations on the property in late 2007, that they completed nitrogen fracturing operations in February 2008, and that the wells in question went into production shortly thereafter. In approximately July 2008, the plaintiffs claim that they began to notice particles in their water.. Later that year, the quality of their water began to degrade and the quantity of water available from their well began to decline. Tests performed showed an increase in levels of iron and manganese.

• The court found that plaintiff has failed to allege any facts in support of the second, fourth, fifth, or sixth elements of a medical monitoring cause of action.

Cases cont.• Allen v. Monsanto, Circuit Court of Putnam County, WV• Plaintiffs alleged negligence, nuisance, strict liability, and

trespass seeking damages as a result of Monsanto's operation of the 2,4,5-T process, which resulted in the by-product of a toxic dioxin, 2,3,7,8-TCDD.

• Plaintiffs alleged that the burning of 2,4,5-T waste materials resulted in air inhalation exposure to dioxin and elevated blood serum dioxin levels to individuals in the Class Affected Area, a five-mile radius from the plant in Putnam County. Plaintiffs also alleged the burning resulted in dioxin being deposited on the ground and in houses within the Class Affected Area.

Cases Cont. • Medical Monitoring Class Settlement Agreement • (1) creation of a fund that would provide testing for class members over a thirty-

year period.• (2) contribution by Monsanto of at least $3 million for each of the seven screening

periods, resulting in an obligation to provide at least $21 million in funding for screening.

• (3) contribution by Monsanto of an additional $63 million if certain benchmarks are triggered, i.e., if more than twenty-five percent of the participants in the medical monitoring program have blood serum dioxin levels greater than the background range, provided that at least 100 participants have serum samples drawn that are capable of analysis.

• (4) repeated blood testing every five years for a period of thirty years, unless the triggering event occurs, in which case, every two years.

• (5) medical monitoring be limited to class members who resided, attended school, or worked for minimum periods of time in a smaller area subsumed within the larger Class Affected Area, referred to as the Settlement Area.

Cases Cont.• Stern v. Chemtall, Circuit Court of Marshall County, WV• Plaintiffs in this class action case are asymptomatic present

and former coal preparation plant and wastewater treatment plant workers from West Virginia and coal preparation plant workers from Pennsylvania, all of whom seek medical monitoring for alleged health risks from exposure to polyacrylamide flocculant products. Defendants are current or former manufacturers and/or distributors of polyacrylamide flocculants, a group of chemical products used to clean water and dewater solid waste in coal preparation plants and municipal wastewater treatment plants, among other applications.

• At extremely high doses, acrylamide can be neurotoxic to humans, and has been shown to cause tumors in animals in laboratory experiments.

Cases Cont. • Plaintiffs claim that they may be are at an increased risk of

contracting one or more serious latent diseases, resulting from their exposure to polyacrylamide products in their workplaces. They are seeking medical monitoring for the early detection of such disease(s), which according to Plaintiffs may be present in a latent state notwithstanding the absence of overt symptoms. possible disease(s) allegedly caused by such exposures.

• The case settled and the settlement basically is a one time physical from a physician for the claimant.

Cases Cont.• Ballard / Coleman v. Union Carbide, United States District Court for the

Southern District of West Virginia• The plaintiffs, are or were previously residents, property owners,

workers, or students in an area within five miles of a metals plant located near Alloy, West Virginia. From 1934 to present, the Alloy Plant released substantial quantities of antimony, arsenic, chromium, iron, lead, manganese, vanadium, polycyclic aromatic hydrocarbons (PAHs), silica, and volatile and semi-volatile organic compounds ("hazardous substances") into the surrounding community.

• Tests indicate that residential areas within the five-mile radius are contaminated with levels of the hazardous substances.

• The plaintiffs seek medical monitoring for the following conditions: cancer, diabetes, hypertension, severe respiratory damage, Parkinson's disease, mental retardation, and neurotoxic disorders.

Cases Cont.• Daubert hearings were held.• Dr. Nicholas Cheremisinoff was retained by the plaintiffs to reconstruct the

manufacturing and emission practices, opined• 1. The Alloy Plant significantly under reports its emissions;• 2. Many of the stack emissions are from short stacks resulting in poor

dispersion and high ground level concentrations;• 3. Particulate and pollution releases both exceed those from some of the

largest fossil burning power plants in the nation.• 4. A 2010 emissions inventory shows that between 4.5 to 6 pounds of dioxins

are released, indicating that the Alloy Plant is among the largest, if not the largest, dioxin emitter in the United States;

• 5. Historically the facility was the worst polluting ferroalloy manufacturing plant in the country;

• 6. Until the Alloy Plant drew the attention of the EPA it was releasing more than 100,000 tons of particulate matter per year containing toxic heavy metals;

• 7. Assuming production levels in the 1970s were comparable to 2010, the mass releases of hazardous air pollutants would have been 78 times greater in the 1970s.

Cases Cont.• Expert Randy Horsak performed soil and residential testing.• 1. The Alloy Facility has emitted toxic pollutants into the atmosphere since its 1934

commissioning;• 2. From 1934 to 1970, few environmental controls existed due [*22] to the

lack of regulations;• 3. The Alloy Plant historically has been a major air polluter over the years

according to the EPA;• 4. The Alloy Plant's radius of impact should extend at least 3 miles in all

directions from its property boundary;• 5. Approximately 8,000 residents are within the radius of impact and probably

exposed to airborne emissions or other releases;• 6. Many of the contaminants emitted by the Alloy Plant persist and

accumulate without natural degradation, presenting risks for decades;• 7. The 3TM sampling of surface soils and household attic dust in 2006 confirm

pollutants are present at residences;• 8. The residents in the area surrounding the Alloy Plant have been

significantly exposed to toxic chemicals.

Cases Cont. • Mr. Greg Haunschild, plaintiff expert in air pollution and

dispersion modeling, identified the probable radius of impact resulting from the Alloy Plant over time, which is the key piece of evidence in a case such as this where significant exposure to toxins is central to the plaintiffs' claims.

Cases Cont.• Dr. James Dahlgren, plaintiffs expert in toxicology and medical monitoring.

He is a medical doctor specializing in internal medicine. He has a sub-specialty in occupational and environmental medicine with a further sub-specialty in toxicology. He concentrates on occupational and environmental medicine.

• Dr. Dahlgren identified the substances emitted from the Alloy Plant as including, dioxins, formaldehyde, particulate matter, sulphur oxides, and heavy metals. He also identifies certain volatile organic compounds such as benzene, toluene, ethylbenzene, xylene, and ethylene dibromide, including heavy metals such as arsenic, chromium, mercury, nickel, and lead.

• He examined the "amounts of chemicals that are reaching the neighbors," perhaps the most important part of his investigation inasmuch as the inquiry is central to the medical monitoring claim. He has relied upon Mr. Horsak's and Mr. Haunschild's measurements and modeling to conclude that there have been "high exposures to the people living in the Alloy Plant neighborhood and surrounding three miles."

Cases Cont.• Dr. Dahlgren, opined that "it is worse to live in the Alloy Plant

neighborhood with that air pollution than to live in Sao Paulo, Brazil, one of the most polluted cities in the world." and found that "[i]n the period prior to the 1970's, the class members . . . . experienced pollutant levels higher than the rats in the Sao Paulo study" but, by comparison, states further that "[t]he class members here were and are still probably being exposed to levels higher than [those] living in Sao Paulo.”

Cases Cont. • Dr. Dalgren also found that the total dose in Seveso, Italy,

which had a large release of dioxin that poisoned thousands and resulted in an increase in cancer, reproductive harm, diabetes, severe skin problems, neurological damage and other adverse health effects, was far lower than the total dose here.

• The third step in Dr. Dahlgren's methodology identified the people who are exposed by defining the area adversely affected. Dr. Dahlgren again relies upon Mr. Horsak and Mr. Haunschild to conclude that three or more miles from the Alloy Plant the contaminant levels are sufficiently elevated to cause a higher risk of serious latent illness.

Cases Cont. • Acord v. Colane Co., 228 W. Va. 291 (2011)• This is a class action for medical monitoring based on

negligence, strict liability and public nuisance claims, for a class of individuals consisting of current and former students and staff of Omar Elementary School. Plaintiffs contend that the class members are at an increased risk of contracting cancer because the property on which the school is located was used as a garbage dump from the 1920s through the 1950s.

• Plaintiffs alleged that the following substances were present at the site: arsenic, n-nitroso-di-n-propylamine, pentachlorophenol, delta-Benzene hexachloride, 1,2-Dibromo-3-chloropropane, heptachlor, cadium, lead, manganese, arochlor-1260 (PCB), gamma-chlordane, dieldrin, endrin aldehyde, haptachlor epoxide, TCDD equivalents, thallium, benzo(a)pyrene (PAH), benzo(g,h,i)perylene (PAH), phenanthrene, dibenzo(a,h)anthracene (PAH), and mercury.

Cases Cont. • Court found that plaintiff failed to present sufficient evidence

to prove her tort theories of liability asserted against Colane, and found that she cannot satisfy the third element necessary to sustain a claim for medical monitoring.

Other Jurisdictions• New York• Caronia v. Philip Morris USA, Inc., 2013 N.Y. Slip Op. 08372, 2013 WL

6589454. • .The state’s highest court rejected an independent tort for medical

monitoring. whether a heavy smoker who has not been diagnosed with a smoking-related disease may pursue a claim against a tobacco company for “medical monitoring.”

• “[a] threat of future harm is insufficient to impose liability against a defendant in a tort context.” This means that even though a plaintiff may have an increased likelihood of developing a disease, such as lung cancer, New York will not require defendants to pay for medical monitoring of that plaintiff to identify diseases that may develop in the future. Caronia makes it clear that, in New York, a plaintiff must establish the existence of an actual injury before recovering damages

Other Jurisdictions New York Cont.• New York’s intermediate court of appeals later refined the decision and

explained that plaintiffs can still seek damages for medical monitoring, but only if they establish the existence of actual physical injury or property damage related to the exposure. Ivory v. International Business Machines Corporation, 2014 N.Y. Slip Op. 01230, 2014 WL 641883 (N.Y. App. Div. 2014).

• In Ivory, the plaintiffs sought medical monitoring damages for their alleged exposure to trichloroethylene (TCE). The court concluded that the claims for medical monitoring damages were properly dismissed for all but two plaintiffs. Those two plaintiffs had presented evidence of property damage (contaminated soil under their property), and were allowed to pursue medical monitoring damages consequential to their trespass claims.

• .The Ivory court relied upon language in Caronia that requires “evidence of present physical injury or damage to property” before medical monitoring damages can be pursued. Ivory emphasizes that, in New York, property damage alone can be sufficient to allow a plaintiff to pursue medical monitoring damages. Bodily injury is not required.

Other Jurisditions Cont. Pennsylvania

The Eastern District of Pennsylvania has issued two medical monitoring decisions.

Brown, et al. v. C.R. Bard, Inc., et al., 942 F.Supp.2d 549 (E.D. Pa. 2013) -Pennsylvania medical monitoring claims satisfy the injury-in-fact requirement necessary for a plaintiff to have standing in federal court.

Pennsylvania's medical monitoring cause of action is relatively similar to West Virginia. Factors: (1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant's negligence; (4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.

Other Jurisdictions Pennsylvania Cont. • In Brown, the court explained that once “a defective device has

been implanted into the human body with a quantifiable risk of failure…the damage has been done.”

• Slemmer v. McGlaughlin Spray Foam Insulation, Inc., 955 F. Supp.2d 452, 465 (E.D. Pa 2013). The U.S. District Court granted a motion to dismiss medical

monitoring claims for failure to identify a serious latent disease and for failure to identify a suitable medical monitoring procedure.

Homeowner plaintiffs brought a putative class action against a manufacturer and installer of spray polyurethane foam insulation, and alleged they had suffered physical injuries, including eye irritation, sore throats, nausea, and fatigue from their exposure to the insulation requiring a need for medical monitoring.

Other Jurisdictions Pennsylvania Cont. • The Eastern District agreed that the physical injury claims and

medical monitoring claims were mutually exclusive, but allowed the claims to be pled in the alternative.

• The court dismissed the plaintiffs’ medical monitoring claims because they failed to sufficiently plead two elements of the claim under Pennsylvania law: (1) that the plaintiffs had a significantly increased risk of contracting a serious latent disease; and (2) that a monitoring program procedure exists that makes early detection of the disease possible.

Other Jurisdictions Cont. Massachusetts

Genereux, et al. v. Hardric Laboratories Inc., et al., 950 F.Supp.2d 329, 331 (D. Mass. 2013)

Federal district court rejected a medical monitoring claim where the plaintiffs could not show they suffered subcellular changes – a requirement for a medical monitoring claim in Massachusetts.

Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009). Massachusetts recognized medical monitoring claims, but limited these

claims to situations where exposure to a hazardous substance “produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury.”

The increased risk of subcellular change was insufficient to prove the plaintiffs’ claim for medical monitoring, and the court entered judgment in favor of the defense.

Massachusetts requires some manifestation of physical harm, even if that harm is at the subcellular level. The increased risk of developing a disease or condition alone is not enough.

Other JurisdictionsLouisiana• Lester, et al. v. Exxon Mobil Corporation,

Court of Appeals of Louisiana upheld a trial court’s judgment against Exxon and in favor of eight plaintiffs who sought damages for exposure to naturally occurring radioactive material while cleaning pipes and tubing.

Requirement of Louisiana Civil Code article 2315 that states a plaintiff must show that the claimed medical monitoring treatment is “directly related to a manifest physical or mental injury or disease.”

Four of the plaintiffs had blood in their stools and one had elevated levels of an enzyme suggesting health problems. Experts from both sides recommended more frequent cancer screening as a result of these test results. Id. at 779-80. For the remaining three plaintiffs, the Court of Appeal affirmed the trial court’s conclusion that the plaintiffs lacked sufficient medical testimony or evidence to support a causal relationship between their claimed abnormalities and their exposure to radiation.

Other JurisdictionsTexas• Norwood v. Raytheon Co., 414 F. Supp. 2d 659 (US Dist Ct,

Western Dist of Texas, 2006). The Court's conclusion not to recognize medical monitoring as a

cause of action is bolstered by its determination that doing so would constitute an improper "substantive innovation" of state law.

Fifth Circuit has never expanded state law by recognizing a completely new cause of action. Plaintiffs offer no example of the Fifth Circuit recognizing a new state cause of action.

Plaintiffs wanted create an entirely new cause of action and the Fifth Circuit has never taken such a step,

Other JurisdictionsFlorida• Petito v. A.H. Robins Co., 750 So. 2d 103 (1999)

A trial court may use its equitable powers to create and supervise a fund for medical monitoring purposes if the plaintiff proves the following elements:

(1) exposure greater than normal background levels; (2) to a proven hazardous substance. (3) caused by the defendant's negligence. (4) as a proximate result of the exposure, plaintiff has a significantly

increased risk of contracting a serious latent disease. (5) a monitoring procedure exists that makes the early detection of

the disease possible. (6) the prescribed monitoring regime is different from that normally

recommended in the absence of the exposure. (7) the prescribed monitoring regime is reasonably necessary

according to contemporary scientific principles.

Other JurisdictionsNew Jersey• Sinclair v. Merck & Co., Inc., 195 N.J. 51, 948 A.2d 587 (2008)

Sinclair relied upon the earlier Ayers case (Ayers v. Township of Jackson),

Prior to the adoption of the PLA (New Jersey Product Liability Act), Ayers, held, that. under limited circumstances, a plaintiff can recover

the cost of medical monitoring under the Tort Claims Act (TCA). In Ayers, a landfill operated by the defendant contaminated the

plaintiffs' well water when toxic pollutants leaked into the Cohansey Aquifer.

• The jury in Ayers found that the defendant created a "nuisance" and a "dangerous condition" in the operation of its landfill and awarded damages for emotional distress, deterioration of plaintiffs' quality of life, and future costs of annual medical surveillance.

Other JurisdictionsNew Jersey Cont. • Supreme Court of New Jersey affirmed - The cost of medical surveillance

is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary. . Two years later, this N.J. Court decided Mauro. There, a repairman

employed at a state psychiatric hospital sued private manufacturers of products containing asbestos for "injuries allegedly sustained as a result of inhalation of asbestos fibers."

. Testing revealed that plaintiff had a normal lung function test, he did have bilateral thickening of both chest walls and calcification of the diaphragm. Also a finding that his exposure to asbestos has been significant and there is some evidence that this exposure may increase the risk of development of lung cancer.

Other JurisdictionsNew Jersey Cont. • At trial, the court permitted the jury to consider the plaintiff's claim for

damages caused by emotional distress, his present medical condition, and the cost of future medical surveillance, but rejected the plaintiff's claim for damages based on his enhanced risk of cancer. The NJ Court distinguished between the plaintiff's enhanced-risk claims and

claims for medical surveillance, and found that recovery for enhanced risk of contracting a disease due to exposure to toxic chemicals is only possible upon proof that it is more probable than not (the rule of reasonable medical probability) that the plaintiff will develop the disease. The Court found that the plaintiff failed to submit evidence establishing that the future occurrence of cancer was a reasonable medical probability and therefore that claim was properly withheld from the jury. As for the plaintiff's claims for medical surveillance and emotional distress, the Court held that "[r]ecognition of present claims for medical surveillance and emotional distress realistically address significant aspects of the present injuries sustained by toxic-tort plaintiffs, and serve as an added deterrent to polluters and others responsible for the wrongful use of toxic chemicals.”

Other JurisdictionsNew Jersey Cont. • Theer case (1993). The widow of an asbestos worker brought a

products liability action against manufacturers of asbestos products to recover for her husband's death and for the risk of her own future injury due to her indirect exposure to asbestos through the handling of her husband's clothes. . At trial, the jury found that Mrs. Theer did not have an

asbestos-related injury; for that reason, "the court did not allow the jury to reach her claim for damages for emotional suffering and costs of medical surveillance based on the increased risk of cancer."

. However, the Appellate Division reversed and remanded in part for the jury to consider the plaintiffs medical surveillance claims. The NJ Court granted certification in part to address "whether costs of medical surveillance are available as compensatory damages for one exposed to asbestos."

Other JurisdictionsNew Jersey Cont. • In reviewing both the Ayers and Mauro cases, the Court explained

that Ayers indicates that medical surveillance damages constitute a special compensatory remedy designed to address the unique harm entailed in an increased risk of future injury arising from the exposure to toxic chemicals. It is not easily invoked. The remedy in Ayers was fashioned to help a class of person who had

been victimized by a public entity. The feasibility of developing a fund to provide limited compensation was a relevant consideration.

Because persons may often be exposed to toxic chemicals in a product-liability context, we recognize the soundness of Mauro, which, in a limited context, extends the Ayers cause of action to plaintiffs who have suffered increased risk of cancer when directly exposed to a defective or hazardous product like asbestos, when they have already suffered a manifest injury or condition caused by that exposure, and whose risk of cancer is attributable to the exposure.

Other JurisdictionsNew Jersey Cont. • The Theer Court emphasized that such a special remedy

"applies only to persons who have been directly exposed to hazardous substances." Because the plaintiff was not exposed to the product in a direct manner and had not suffered from any injury or condition relating to the exposure, this Court held that the plaintiff could not recover damages for medical surveillance.

Punitive Damages in other jurisdictions• Only one case appears to have expressly held that punitive

damages could be awarded for medical monitoring. Carlough v. Amchem Prods., Inc., 834 F. Supp. 1437 (E.D. Pa. 1993). In Carlough, the Plaintiffs filed a class action seeking medical

monitoring due to asbestos exposure. The federal district judge, in response to a motion by the defendants, had to determine whether the Plaintiffs' claim would result in a recovery that equaled the jurisdictional minimum for bringing an action in federal court.

The trial court held that it is not uncommon for plaintiffs to join claims for punitive damages with claims for medical monitoring.

Punitive Damages in other jurisdictions cont.• Carlough relid upon In re Fernald Litig., 1989 U.S. Dist. LEXIS

17764, 1989 WL 267039 (S.D. Ohio [Sept. 29,] 1989) in which the court approved a class action settlement of claims brought by owners of property adjacent to a nuclear facility and certain current and former employees of the facility. In evaluating the settlement, the court noted that, to facilitate settlement, it had conducted an advisory summary jury trial in which the non-binding verdict included $1,000,000 for diminution of property values, $80,000,000 for a medical monitoring fund, and $55,000,000 for punitive damages. In two recent cases, federal courts have held that punitive damages

could not be awarded for medical monitoring. See Guinan v. A.I. duPont Hosp. for Children, 597 F. Supp. 2d 517 (E.D. Pa. 2009); Hess v. A.I. DuPont Hosp., No. 08-0229, 2009 U.S. Dist. LEXIS 19492, 2009 WL 595602 (E.D. Pa. Mar. 5, 2009).

Defenses• Attack “significant exposure”• Must use expert witnesses to conduct their own analysis of the

plaintiffs’ class, range of the class and how they came into contact with the substance/chemical, the concentrations and levels of the substance/chemical in the environment, testing of plaintiffs blood, homes, clothes, and conducting air sampling. The chemical is not hazardous Certain substances or chemicals that individuals may be exposed at

certain levels are not hazardous, or there are no studies or testing results available demonstrating at what levels toxicity occurs or whether there are long term effects.

Defenses Cont. • Plaintiff would be getting these tests anyway

Expert witnesses are clearly necessary to prove a medical monitoring claim. As such, defendants will be required to retain expert witnesses to rebut and counter the opinions of plaintiff’s experts.

No sub-cellular harm

Chemical Distributor as a Defendant• West Virginia

A seller/distributor only of the product (a non-manufacturer), can be held just as liable if it is found that it sold a defective product or placed the product in the stream of commerce. This is regardless if the manufacture of the product is also a defendant in the lawsuit.

Necessary for the distributor to tender its defense to the manufacturer (which they may accept), or to review any contracts/agreements between them in order to tender the defense and assert contractual/express indemnity, depending upon the language of the agreement. More often than not, the there is no contract and the manufacturer will not assume the defense of the distributor.

Innocent seller defense:: under the law the seller would have rights of implied indemnity against the manufacturer, if it is found that the product is defective and damages rendered.

• A seller who does not contribute to the defect in a product may have an implied indemnity remedy against the manufacturer of the product, when the seller is sued by the user.

Chemical Distributor as a DefendantW.Va. Cont.• Dunn v. Kanawha County Board of Education, 194W.Va. 40, 47, 459

SE2d 151, 158 (1995). The remedy of implied indemnity provides an innocent seller, or

indemnitee, with the means to seek restitution from the actual wrongdoer, or indemnitor.

Inplied indemnity is based upon principles of equity and restitution and one must be without fault to obtain implied indemnity." Syl. Pt. 2, Sydenstricker v. Unipunch Products, Inc., 169 W.Va.440, 288 S.E.2d 511 (1982).

The requisite elements of an implied indemnity claim in West Virginia are a showing that:

(1) an injurywas sustained by a third party; (2) for which a putative indemnitee has become subject to liability because of a positive duty created by statute or common law, but whose independent actions did not contribute to the injury; and (3) for which a putative indemnitor should bear fault for causing because of the relationship the indemnitor and indemnitee share. Syl. Pt. 4, Harvest Capital v. West Virginia Dept. of Energy, 211 W.Va. 34, 560 S.E.2d 509 (2002).

Chemical Distributor as a DefendantW.Va. Cont.• Federal and 4th Circuit law• "The Hill decision established that the supplier of a defective

product is entitled to indemnity from the product's manufacturer as long as the supplier in no way contributed to the injury resulting from the use of the product. This principle, based upon sound equitable considerations of fault, applies to liability imposed pursuant to theories of strict tort liability as well as liability resulting from breach of warranty. The opinion stated that "the initial inquiry focuses on the activities of the indemnitor and the related question of whether the conduct of the indemnitee contributed to the injuries." Accordingly, a manufacturer-supplier relationship does not per se entitle a supplier to indemnity for damages resulting from the use of a product." Laurita Energy Corp. v. VOTO Manufacturers Sales Complany, 791 F. Supp. 610, 611-12 (NDWV 1992).

Chemical Distributor as a DefendantW.Va. Cont.• Irrespective of proving the innocent seller defense, the distributor

can always negotiate privately and confidentially with the manufacturer to pick up a percentage of its defense costs and/or a percentage of the settlement. Also, always file a cross-claim. Other jurisdictions New York Godoy v. Adamaster of Miami, Inc., 302 A.D.2d 57; 754 N.Y.S.2d 301;

2003 N.Y. App. Div. LEXIS 491; CCH Prod. Liab. Rep. P16,488 In strict products liability, a manufacturer, wholesaler, distributor, or

retailer who sells a product in a defective condition is liable for injury which results from the use of the product "regardless of privity, foreseeability or the exercise of due care" (Gebo v Black Clawson Co., 92 NY2d 387, 392, 681 N.Y.S.2d 221, 703 N.E.2d 1234; see Sukljian v Charles Ross & Son Co., 69 NY2d 89, 94-95, 511 N.Y.S.2d 821, 503 N.E.2d 1358.

Chemical Distributor as a DefendantW.Va. Cont.• The plaintiff need only prove that the product was defective as

a result of either a manufacturing flaw, improper design, or a failure to provide adequate warnings regarding the use of the product (see Sukljian v Charles Ross & Sons Co., supra; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107, 463 N.Y.S.2d 398, 450 N.E.2d 204. . Distributors and retailers may be held strictly liable to

injured parties, even though they may be innocent conduits in the sale of the product, because liability rests not upon traditional considerations of fault and active negligence, but rather upon policy considerations which dictate that those in the best "position to exert pressure for the improved safety of products" bear the risk of loss resulting from the use of the products (Sukljian v Charles Cross & Sons, Inc., supra at 95; see Bielicki v T.J. [*61] Bentey, Inc., supra).

Chemical Distributor as a DefendantW.Va. Cont. • One who is liable for an injury "by imputation of law may seek

common-law indemnity from a person primarily liable for the injury" (23 NY Jur 2d, Contributions, Indemnity and Subrogation § 90; see Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282, 574 N.Y.S.2d 165, 579 N.E.2d 195; Mas v Two Bridges Assocs., supra). Where an entity "has discharged a duty which is owed by [it] but which as between [it] and another should have been discharged by the other" a contract to reimburse or indemnify is implied by law (McDermott v City of New York, 50 NY2d 211, 217, 428 N.Y.S.2d 643, 406 N.E.2d 460, quoting Restatement of Restitution § 76). Thus, it is well settled that a seller or distributor of a defective

product has an implied right of indemnification as against the manufacturer of the product.

Chemical Distributor as a DefendantNew Jersey• Two basic principles underlie the development of strict liability

in tort. The first principle is the allocation of the risk of loss to the party best able to control it. Fischer v. Johns-Manville Corp., 103 N.J. 643, 657 (1986) The second is the allocation of the risk to the party best able to

distribute it. Fischer, supra, 103 N.J. at 65 Accordingly, the essence of a prima facie case of liability is proof

that defendant placed a defective product in the stream of commerce. As a matter of law, the seller is presumed to know of the defect, Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 239 (1981), so the injured party need not prove that the manufacturer was negligent or knew of the defect, Henningsen, supra, 32 N.J. at 372.

Chemical Distributor as a DefendantNew Jersey Cont. • Even in a failure-to-warn case, the cause is essentially one in strict liability

into which negligence creeps to the limited extent of analyzing the reasonableness of the defendant's conduct on the assumption that it knew of the defect. Fischer, supra, 103 N.J. at 654; Feldman, supra, 97 N.J. at 450. Although the focus remains on the product, the defendant satisfies its obligation by

proving that it "acted in a reasonably prudent manner in marketing the product or in providing the warnings given." Feldman, supra, 97 N.J. at 451.

In a strict-liability action, liability extends beyond the manufacturer to all entities in the chain of distribution. Michalko v. Cooke Color & Chem. Co., 91 N.J. 386, 394 (1982); American White Cross Laboratories, Inc. v. Continental Ins. Co., 202 N.J.Super. 372, 379 (App.Div.1985).

• Although a distributor and a retailer may be innocent conduits in the sale of the defective product, they remain liable to the injured party. American White Cross, supra, 202 N.J.Super. at 379; Santiago, supra, 201 N.J.Super. at 223. The net result is that the absence of the original manufacturer or producer need not deprive the injured party of a cause of action. W. Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 816 (1966).

Chemical Distributor as a DefendantNew Jersey Cont. • In the absence of an express agreement between them, allocation of the

risk of loss between the parties in the chain of distribution is achieved through common-law indemnity, an equitable doctrine that allows a court to shift the cost from one tortfeaseor to another. The right to common-law indemnity arises "without agreement, and by operation of law to prevent a result which is regarded as unjust or unsatisfactory." W. Keeton, D. Dobbs, R. Keeton, & D. Owens, Prosser & Keeton on The Law of Torts § 51 at 341 (5th ed. 1984) (Prosser & Keeton). One branch of common-law indemnity shifts the cost of liability from one who is

constructively or vicariously liable to the tortfeasor who is primarily liable. Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 80 (1960). A corollary to this principle is that one who is primarily at fault may not obtain indemnity from another tortfeasor. Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566 (1980).

Consistent with this principle, actions by retailers against manufacturers have been recognized in this State for twenty years. Newmark v. Gimbels Inc., 54 N.J. 585, 600-01 (1969).

Chemical Distributor as a DefendantPennsylvania• In strict liability actions, common law indemnification is

available to a non-negligent retailer or distributor of a defective product. Central Motor v. E.I. Dupont DeNemours, 596 A.2d 773 (N.J. Super. L. 1991) citing Promaulayko v. Johns Manville Sales Corp., 562 A.2d 202. "Common law indemnification is based on the equitable principles designed to further the ends of justice by allowing a party whose liability is merely constructive, technical, imputed or vicarious to be indemnified by the party who caused the defect. . . ."

Chemical Distributor as a DefendantPennsylvania Cont. • Where the manufacturer is found not to have committed any

tortious act and where the plaintiff proceeds to verdict in favor of the manufacturer, the costs of defending the action fall on the distributor. See Central Motor v. E.I. DuPont DeNemours, 596 A.2d at 762. The theory behind this rule is that a manufacturer should be held liable for its own active wrongdoing, but not for another's baseless claim. Id. at 762.

• Moreover, the manufacturer/indemnitor is not liable for indemnification for those costs incurred by a distributor in defense of charges of the distributor's independent fault.

Mediation in West Virginia• Discussion of mediators

Strategy and process i. Select a mediator ii. Usually mandatory, Court ordered iii. Who must attend iv. Pre-Mediation statements v. Introductory remarks, opening statements vi. Multiple defendants vii. Negotiation viii. Settlement / Release