The problem: Most toxic tort trials involve only 1-2 defendants, despite the existence of evidence implicating numerous, even dozens, of other entities as contributing to the plaintiff’s exposure to a toxic substance. Because the trial defendant is the topic of the bulk of plaintiff’s case, it is common for the trial defendant(s) to take a disproportionately high percentage of fault. More and more, plaintiff’s attorneys downplay the exposures attributable to non-parties during discovery, limiting the availability of that evidence. Then, at trial, plaintiff’s counsel calls the trial defendant’s representative to testify, sometimes for days, and focuses their case on that defendant. They quietly acknowledge that some others were also at fault but imply that the one or two in front of the jury are present at trial because they were the majority of the problem and leave it to the defense to prove the fault of others.
The bias that comes from being the only defendant at trial can be overcome. In one California asbestos case, we went through the entire trial with only one active trial defendant. Plaintiff’s very experienced attorney over-reached and asked the jury for an award of 40% against my client. With 12 entities on the verdict form, I argued for no liability, with a fallback of 0.5% if they disagreed. The jury found for the plaintiff on only one of three causes of action and awarded 0.5% against my client. JNOV on the one cause of action later turned it into a defense verdict. In another asbestos case, also in California, a ten-week trial against my client and two other defendants closed with the plaintiff’s attorney essentially asking the jury for 30% against each of the trial defendants, plus punitive damages. With over 70 entities on the verdict form, the jury found that all three defendants were negligent and that their products were defective, but found in a 12-0 vote that none of the defendants were a cause of plaintiff’s injuries.
Giving your client the best chance to overcome this issue requires a plan that starts at the outset of the case.
1. Know the rules for allocation of fault. Each jurisdiction has different rules for liability – some are joint and several, others are pure several liability, and yet others are a hybrid. California provides for joint and several liability for economic losses, and pure several liability for non-economic loss, but allows allocations to anyone for which there is evidence of fault – including entities that are immune from suit like the government, employers and bankrupts. Maritime law and some states allow allocations only to other defendants that were sued and actually settled the lawsuit. In addition, some jurisdictions have very specific disclosure requirements as a predicate to putting on a case against third parties. It is critical to know these requirements and limitations.
2. The plaintiff’s deposition. You need to get as much information as possible to evaluate the claim and prepare for trial, but you don’t want to create a record in which discussion of your client’s product/service is substantially longer than the others. For example, in an asbestos case with 15 valve and pump defendants, you don’t want the testimony specific to your client to be over an hour long when all the others are 15 minutes or less. At trial, it just sounds like there was far more work with your client’s product than any of the others, even if the testimony doesn’t say that. Instead, consider asking questions about valves and pumps in general first. Most plaintiffs testify that their work on all similar products was also the same. You may be able to cover most of the work on valves, for example, by asking questions about valves in general, without mentioning any specific brand. You can follow that with just a few minutes of questions about your client’s brand. Teach the lawyers taking the deposition how to get the information needed efficiently and without saying your client’s name 100 times, and empower the lawyer at the deposition to use discretion about how long to go. If a junior lawyer feels bound to ask every question in a 50-page outline/script, you’re going to get a very long discussion of your client.
3. Plaintiff’s discovery responses. Monitor plaintiff’s’ responses to other defendants’ discovery. Typically, their answers to each defendant’s interrogatories include allegations of exposure, negligence, failure to warn, knowledge of the hazard, etc. You’ll use these at trial, but they’ve got to be verified in most jurisdictions. Some plaintiff’s attorneys don’t verify their responses. Make sure you collect the verifications that are served and, if allowed, pressure the plaintiff to verify the rest. If you cannot force verification, you can use your own discovery requests to obtain admissions that each other defendant caused exposure, was negligent, etc., or to simply admit that the unverified responses to other defendants’ interrogatories were true and accurate. Sometimes discovery will also reveal documents that support the alternative exposures, like disability applications or deposition testimony the plaintiff gave in a coworker’s case..
4. Your client’s discovery responses. In discovery, many plaintiff’s counsel will ask you for the facts supporting your defenses. Don’t forget to give a substantive answer to the question. You may not have to provide all the details, but you can easily cite to plaintiff’s deposition testimony and all of plaintiff’s responses to other defendants’ discovery to say that your defense includes evidence that plaintiff has offered against all the other defendants, and even immune/bankrupt entities. Without a substantive response, you may face a motion to exclude the evidence you want to put on.
5. Prepare for trial. You’re likely to have to make a lot of your case against absent entities through plaintiff’s experts. The experts you hire don’t think your client’s product caused the injury, so they won’t testify that other similar products did. Plan to spend a lot of time — during the plaintiff’s case — on the other exposures the plaintiff experienced. Spend as much time as possible during their case talking about things other than your client. It will sound less like the case is all about your client. This will support the argument that the exposure alleged against your client was not a substantial factor in causing the injury or risk of injury, and allows the fall back argument that IF the jury finds against your client, the percentage of fault should be really, really small (or as small as you can suggest without losing credibility).
6. Cross-examine the plaintiff. Whether the plaintiff testifies live or through his prior deposition testimony, use all the testimony about work with/exposure to the toxin from other companies’ products. The “not a substantial factor” argument should allow a comparison of the alleged exposures attributable to your client to the total exposures, even if not all can go on the verdict form separately. You don’t want the jury to think you are mistreating a dying plaintiff, so designate liberally from the prior testimony. During the plaintiff’s live testimony, set the stage for the later deposition testimony — spend time getting him to say that in his deposition he told the truth about all those other exposures/products, that he was exposed for decades but only worked with your client’s product for a small part of that time, etc. Also, read into evidence all or some of the plaintiff’s verified responses to discovery that prove up the other exposures.
7. Cross-examine the plaintiff’s experts. On direct, the plaintiff’s medical and industrial hygiene experts will have already talked about exposures to your client’s product and likely some others. They may have testified about many more by name in their deposition or report. It can be touchy to go after other active defendants during the deposition, but at trial, all the absent parties are fair game. The expert who believes that even a small exposure is substantial and causative will have to testify that essentially all exposures attributable to someone other than your client were also substantial and causative. Cross the expert first about the opinions specific to your client, and make it clear that you do not agree that the exposures attributed to your client are, in fact significant or causative. Before you finish, transition to the alternative exposures. You can even start with “As should be obvious by now, I disagree with you that exposures like this are causative, but your opinion on this extends well beyond my client, right?” Then, go through the entire list for which there is evidence. Take some time, address each one, by name and one at a time. Ask the expert whether they have read the deposition testimony about this work, whether they have read the responses to discovery, and lead them to confirm that it is their opinion that each other product/service/etc. was a substantial and causative exposure, and that the other entity had just as much reason to know of the hazard as your client did. As you go, write each name in big letters on a posterboard and check each one off as the expert confirms the entity’s fault. Make this take a while, with each expert you can.
8. The defense case. Put as much of the alternative exposure evidence as possible on in the plaintiff’s case. You may be forced to play some of the plaintiff’s deposition testimony and probably have to read the plaintiff’s interrogatory responses during the defense case. However, you may not always even mention the other entities’ products with the defense experts. Your experts may support some alternative exposures, but you should have already covered those with the plaintiff’s experts, so generally keep it relatively short here. The defense case should usually focus on the proposition that your client’s product did not harm the plaintiff.
9. Closing. If you’re arguing against liability altogether, that obviously has to remain the focus of your closing. You’ll likely argue that the exposure alleged against your client didn’t happen or was so small it couldn’t possibly have contributed to the injury or risk. You’ll want to remind the jury about all the other exposures so you can also argue that the exposure alleged against your client was such a small part of the total that it was not a substantial factor. Use the posterboards you wrote on earlier in the case to remind the jury of the alternative exposure testimony. You’ve also got to tell them clearly that if they disagree with you, and accept the plaintiff’s experts’ testimony about substantial factor causation, then they have to take all those other exposures into account when deciding percentages and assign your client only a tiny percentage in accordance with the evidence.
