Representative H & L Toxic Tort/Products Liability Cases

• Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649.

Plaintiff Antonio Laico alleged that he contracted a leukemia-like blood disease from testing gasoline in the workplace. Chevron U.S.A., Inc. (CUSA) owned the land on which Laico worked, but his employer was another Chevron entity, the Chevron Research and Technology Company (the CRTC). The jury found CUSA liable as a landowner and allocated only 13 percent fault to Laico's employer, the CRTC. The Sixth Appellate District reversed in a published opinion. The Court of Appeal held that the trial court should have granted nonsuit or JNOV in CUSA's favor because Laico failed to present evidence that CUSA had knowledge of, or control over, any of the alleged dangerous conditions of the workplace, and that, as a result, CUSA had no duty as a matter of law.

Horvitz & Levy LLP represented Chevron U.S.A., Inc. on the appeal.

• Lockheed Litigation Cases (2004) 115 Cal.App.4th 558.

The Second Appellate District affirmed summary judgment for the defendants in a toxic tort action brought on behalf of former workers at Lockheed’s plant in Burbank. The plaintiffs claimed that chemical manufacturers and suppliers failed to adequately warn of hazards associated with products they allegedly supplied to Lockheed and which purportedly caused the workers harm. The trial court excluded the testimony of the plaintiffs’ sole causation expert, Dr. Daniel Teitelbaum, based on the lack of a reliable foundation for his testimony, and then subsequently granted summary judgment for the defendants.

Dr. Teitelbaum relied on a single survey of epidemiology studies to support his opinion that the chemicals -- five cleaning solvents -- increased the risk of contracting the types of cancer at issue in the case. But the survey did not show that the chemicals were responsible for this increased risk. Instead, the survey established only that painters exposed to a complex mixture of thousands of chemicals, containing only three of defendants’ five chemicals, experienced an increased risk of cancer.

Plaintiffs argued that the trial court had no authority to examine these deficiencies because Evidence Code section 801 allows a trial court to examine only the type of study that an expert relies on, not the relevance of the content of that study to the expert's opinion. In affirming the trial court’s exclusion of this testimony, the Court of Appeal made clear that the California Evidence Code requires a link between the matter the expert relies upon and the particular opinion being offered.

Horvitz & Levy represented defendants ExxonMobil and Unocal in this action.

• Lockheed Litigation Cases (2005) 126 Cal.App.4th 271, 285 (Lockheed II), S132167, review granted April 13, 2005.

In a subsequent appeal in the same coordinated Lockheed litigation, the Court of Appeal reiterated that, in “determining whether there is a reasonable basis for an expert opinion” under section 801, a trial court “must examine the matter that the expert relied on in forming his or her opinion.” Moreover, the court made clear that this “analysis is limited to determining whether the matter relied on can provide a reasonable basis for the opinion or, on the other hand, reveals that the opinion is based on a leap of logic, conjecture, or artifice.”

In April 2005, the California Supreme Court granted review of this case. The issue the Court agreed to decide is whether Evidence Code section 801 “permit[s] a trial court to conduct its own review of the scientific evidence underlying an expert’s opinion to determine whether the evidence adequately supports the proffered opinion before allowing it to be presented to the jury.”

The California Supreme Court has never explained, and the Courts of Appeal in California are in conflict about, the trial court's role in assessing the reliability of expert testimony in the many cases where expert testimony is not founded on a novel scientific technique. The Lockheed Litigation Cases therefore present the Supreme Court with the opportunity to construe the scope of a trial judge’s discretion under California law to exclude expert testimony that is lacking in scientific foundation - an important issue in light of the ever-increasing use and complexity of expert testimony in the California courts.

Horvitz & Levy LLP will continue to represent defendants ExxonMobil and Unocal in this important case before the Supreme Court.

• Nickel v. Mazda (2003) [unpublished].

Dr. Nickel was a surgical resident at UCLA's Jules Stein Eye Institute. Late one night she crashed her Mazda Miata into a tree, suffering severe neurological injury that ended her fledgling medical career. She sued Mazda on a products liability theory, claiming a defect in the roof latch caused a latch to open creating a startling wind noise that led to her accident. The jury returned a defense verdict following the liability phase. Nickel appealed, claiming numerous prejudicial errors entitled her to a new trial. The Court of Appeal (2/4) affirmed the judgment, holding that, although the trial court committed errors and defense counsel was guilty of some misconduct, Dr. Nickel's right to a fair trial was not prejudiced.

• Sharp v. Samsonite Corporation (2002) [unpublished].

The plaintiff injured her ankle on a metal chair transporter at her church. She sued Samsonite alleging that it had manufactured or sold the transporter. Samsonite moved for summary judgment on the ground that the transporter was not labeled with the Samsonite logo and that Samsonite did not manufacture or sell chair transporters in the relevant years. Plaintiff countered with an expert declaration stating that the transporter that caused injury was manufactured by a Samsonite licensee and Samsonite could be held responsible as the licensor. Samsonite replied with an expert declaration stating that the transporter was of a generic design and could have been manufactured by any number of manufacturers and, absent the Samsonite logo or other evidence, there was no way to tie the transporter the a Samsonite licensee. The Superior Court granted summary judgment to Samsonite and the Court of Appeal affirmed on the ground that plaintiff failed to adequately tie the transporter to Samsonite.

• Aguilar v. Ashland Chemical Co. (2000) [unpublished].

Coordinated proceeding involving claims of fifth set of plaintiffs in series of products liability trials. Plaintiff employees at Lockheed facility claimed defendant chemical companies' failed to warn about the effects of workplace exposure to their industrial chemicals. The jury awarded $24,922,342 in compensatory damages and $760,000,000 in punitive damages. The trial court reduced the remaining punitive damages award to $380,000,000. The appellate court reversed the compensatory award and remanded for new trial, finding that collateral estoppel was wrongly applied to findings of warning inadequacy from prior group trials. The appellate court also reversed the punitive award and directed the trial court to enter judgment in defendants' favor because there was no substantial evidence that defendants engaged in any conduct that could support an award of punitive damages.

• Arnold v. Ashland Chemical Co. (2000) [unpublished].

Coordinated proceeding involving claims of fourth set of plaintiffs in series of products liability trials. Plaintiff employees at Lockheed facility claimed defendant chemical companies' failed to warn about the effects of workplace exposure to their industrial chemicals. Jury awarded $13,465,159.46 in compensatory damages and $7,548,000 in punitive damages. The appellate court reversed the compensatory award and remanded for new trial, finding that collateral estoppel was wrongly applied to findings of warning inadequacy from prior group trials. The appellate court also reversed the punitive award and directed the trial court to enter judgment in defendants' favor because there was no substantial evidence that defendants engaged in any conduct that could support an award of punitive damages.

• Carrillo v. ACF Industries, Inc. (1999) 20 Cal.4th 1158.

Action against railcar manufacturer for design defect and failure to warn arising out of personal injuries sustained when plaintiff fell from a railcar. Jury found in favor of plaintiff on both theories. After offsets for comparative fault and settlement, judgment totaled $1,429,274.13. Court of Appeal affirmed, holding that the plaintiff's claims were not preempted by the federal railroad safety laws. Supreme Court reversed, holding that the acts and their regulations reflect a congressional intent to occupy the field of regulating railroad safety appliances, thus precluding common law tort claims predicated on design defects.

We appeared as co-counsel of record on behalf of ACF Industries, Inc.

• Ehret v. Congoleum Corporation (1999) 73 Cal.App.4th 1308.

Personal injury action against several flooring manufacturers and distributors by floor-covering installer who contracted cancer from prolonged asbestos exposure, and died during trial. Pretrial settlement was effected between plaintiff and all but one manufacturer and one distributor. Trial then proceeded as a wrongful death action by the heirs against Congoleum, the nonsettling defendant. Jury rendered plaintiffs' verdict for $3,322,551 in compensatory damages, assigning 25% fault to Congoleum and 12.5% fault each to six settling defendants. Trial court subsequently ordered entry of judgment notwithstanding the verdict (JNOV), eliminating apportionment of fault to all manufacturers other than Congoleum. Trial court also ruled 75% of partial settlements were for pain and suffering; and this could not be offset against the wrongful death verdict. Court of Appeal reversed granting of JNOV, holding jury's apportionment of fault was supported by substantial evidence. Court also held that an apportionment of the settlements between economic and noneconomic damages would be made based on ratios established by the jury's verdict. After computing offsets for settlement and comparative fault, the Court of Appeal remanded for entry of judgment of $817,896, as requested by Congoleum.

We appeared as co-counsel of record on behalf of the Congoleum Corporation.

• Dendy v. Sears, Roebuck & Co. (1999) [unpublished].

Action addressing liability of retailer and manufacturer of a radial arm saw for alleged product defect. After offsets for comparative fault, jury awarded $634,800 in compensatory damages and $3,200,000 in punitive damages (split evenly between both defendants). Court of Appeal affirmed, holding (1) evidentiary claim challenging admission of other-accident evidence was waived by trial counsel's failure to make timely and specific objection; (2) claim of instructional error was waived due to failure to request specific definition of clear and convincing evidence; (3) substantial evidence supported award of compensatory damages and jury's findings of malice and oppression; (4) punitive damage award was not excessive.

We appeared as co-counsel of record on behalf of Emerson Electric Company.

• Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App.4th 187.

Action for injuries caused by defective heat sealing machine manufactured by defendant's corporate predecessor 24 years earlier. Jury found in favor of plaintiff, ascribing 40 percent fault to employer and 60 percent fault to predecessor corporation. After offsets for previously received workers' compensation benefits, judgment totaled $544,875. Trial court additionally awarded $123,000 in sanctions for deceptive pretrial discovery responses. Court of Appeal affirmed, holding (1) acquisition of predecessor corporation destroyed plaintiff's remedy against original manufacturer and (2) defendant continues to distribute same products of predecessor corporation and to benefit from predecessor's good will. Upon rehearing, Court of Appeal again affirmed the judgment, holding additionally that (1) instructional error existed, but the error was harmless; and (2) although the issue of successor liability was solely for the trial court, the trial court indicated its belief that defendant was liable by awarding sanctions.

We appeared as co-counsel of record for Thermex-Thermatron, Inc.

• Guerrero-Espinosa v. Bulk Materials Handling (1998) [unpublished].

Action against parts supplier arising out of injuries sustained while plaintiff was servicing a machine that transports crushed ice. Trial court granted summary judgment on behalf of parts supplier. Court of Appeal affirmed, holding (1) none of the parts used to build the defective machine were provided by the parts supplier and (2) no special relationship among the parties existed, hence there was no duty to warn of the dangers of the machine.

We appeared as co-counsel of record for Bulk Materials Handling.

• Sadek v. Sorrento Biochemical, Inc. (1998) [unpublished].

Products liability action by heirs of chemist who perished in laboratory explosion. We represented Sorrento Biochemical, Inc., which had supplied the chemist with sodium chlorite, allegedly without providing adequate warning of chemical's hazards. Trial court granted summary judgment for defendants. Court of Appeal affirmed on alternative grounds that undisputed facts established decedent was a sophisticated and knowledgeable user of sodium chlorite and that Sorrento was neither a manufacturer, producer, nor seller of the chemical.

We appeared as co-counsel of record on behalf of Sorrento Biochemical, Inc.

• Holland v. Lexington Safety Products, Inc. (1996) [unpublished].

Action addressing liability of equestrian-helmet manufacturer for alleged product defect allegedly causing serious injuries during plaintiff's fall from a horse. Trial court entered defense judgment after jury found that defendant had not manufactured helmet. Court of Appeal affirmed.

We appeared as co-counsel of record on behalf of Lexington Safety Products, Inc.

• Montoya v. Honda Motor Corp. (1993) [unpublished].

Action addressing liability of all-terrain vehicle manufacturer for injuries to consumer. Jury found plaintiff and defendant almost equally liable. Court of Appeal reversed and remanded for new trial, holding that probative evidence concerning plaintiff's use of marijuana and alcohol was wrongly excluded, and plaintiff's accident reconstruction video was wrongly admitted.

We appeared as co-counsel of record on behalf of Honda Motor Corporation.

• Roslan v. Permea (1993) 17 Cal.App.4th 110.

Action addressing liability of commercial air dryer manufacturer for injuries to delivery person who alleged packaging of product caused injury. The Court of Appeal reversed and remanded for a new trial.

We appeared as co-counsel of record on behalf of Permea, Inc., and Zeks Air Dryer Corporation.

• Meier v. Nissan Motor Co. (1992) [unpublished].

Personal injury action arising out of automobile accident. Main issue at trial was whether seat belts were used and, if so, were they defective. Jury found in favor of Nissan. Court of Appeal affirmed.

We appeared as co-counsel of record on behalf of Nissan Motor Co., Ltd.

• White Motor Corp. v. Teresinski (1989) 214 Cal.App.3d 754.

Action addressing allocation of liability between a manufacturer and a seller of allegedly defective vehicles. This case raised novel questions concerning application of collateral estoppel. Trial court granted summary judgment to the manufacturer in its cross-action against the seller. Court of Appeal reversed and remanded for trial court to make an allocation of fault.

We appeared as co-counsel on behalf of the seller of the vehicle which gave rise to the litigation.

Home | Firm Directory | About H & L | Practice Areas | H & L News
Seminars | Publications | Recruiting | Directions | Links | Site Map