California Confronts the High Liability Costs of Scientific Uncertainty

Much has been said about the eye-popping verdict and the post-trial rulings in the Roundup case tried in San Francisco earlier this year. Johnson v. Monsanto Co., 2018 WL 5246323 (S.F. Super. Ct. Oct. 22, 2018). The court sustained the jury’s award of ~$39 million in compensatory damages, including $37 million in non-economic damages, and its finding that Monsanto was liable for punitive damages. The court reduced the punitive award on due process grounds to a one-to-one ratio, slashing it from $250 million to approximately $39 million. Monsanto recently filed its notice of appeal, and as we await the briefing and argument, a few issues and takeaways merit further discussion, particularly several disturbing issues surrounding the award of punitive damages. We will save for another day (or post) other significant liability and damages issues.

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New Jersey Reverses Course on Bare Metals Defense

The New Jersey Appellate Division recently published an opinion significantly affecting asbestos litigation and defenses available to certain product manufacturers. In Whelan v. Armstrong International Inc., No. A-3520-13T4 (Aug. 6, 2018) the court changed the landscape related to the “bare metal defense,” breaking from prior law regarding the scope of a manufacturer’s liability for injuries caused by exposure to asbestos-containing components or replacement parts in their products supplied by third parties.

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To Toll or Not to Toll? An Unsettling Answer

Resolving a split among the intermediate appellate courts, the California Supreme Court recently issued an opinion that dramatically extends the period to file suit for birth defects in toxic tort cases. In Lopez v. Sony Electronics, Inc., No. S235357 (Cal. 7/5/18), the court held that these cases, already subject to tolling under the delayed discovery rule, are also tolled during the period of the plaintiff’s minority. The limitations clock does not even start to tick until at least the plaintiff’s eighteenth birthday.

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