The Oregon state court cases all involve Oregon resident plaintiffs.  In order to prevent the cases from being removed to federal court under diversity rules, it is necessary to include an Oregon defendant.  Usually this means a retailer or wholesaler whose name often does not appear on the final product, because there were essentially no Oregon manufacturers of asbestos products.  Nonetheless, if Oregon companies sold an “unreasonably dangerous” product, they can be strictly liable if it “caused” plaintiff’s injuries.  With a possible limited exception for installers, asbestos related disease claims have no statute of ultimate repose, but the claim must be filed within two years of when an injury is, or should have been, discovered to have been caused by asbestos exposure.  

     After years of trying a few cases in federal court before they were all being removed to Pennsylvania, and after several years of filing and settling cases in the Oregon state court system, the Pozzi firm decided to try one in state court.  Marlene Purcell v. Asbestos Corp LTD et al was tried in 1993 to “re-establish case values” for future settlements.  During the course of that case, nine of twelve defendants settled, and our Oregon client got out on a directed verdict because of inadequate product ID.  That left just E.J. Bartells and Owens-Corning against whom the jury awarded $307,000 economic and $1.5 million in non-economic damages jointly, plus $3 million in punitives against Owens-Corning.  The case was appealed on various issues, but primarily causation.  In Purcell, 153 Or App 415, at 423 (1998) the Court adopted the “substantial factor” test, holding that there was sufficient evidence to get to the jury against the two defendants based on testimony by Dr. Andrew Churg that a single exposure to asbestos fibers can cause mesothelioma, and each subsequent exposure exponentially increased the risk.  Note, though, that neither was a diminimus exposure defendant. 

     After the Purcell case, until the Fall of 1999, very few of these cases got to trial and all trials concluded with settlements.  Cases were routinely filed and settled by the major players, with little or no contribution from local defendants, who were named primarily for jurisdictional purposes.   

     Although it was clear that my clients often provided some asbestos containing products to the job sites, plaintiffs have not been able to distinguish products purchased from my clients from products brought to the job site by others.  This is because none of the products were manufactured by the local defendants, none had labels from anyone besides the manufacturers, and nearly all job sites had multiple local suppliers of each asbestos product present.  Thus, in two recent cases that were decided by summary judgment as opposed to plaintiff giving up, the Court ruled that the inability of plaintiff to prove actual exposure to a specific product, definitely supplied by my client, was fatal to their claims.  In the only case in which monies were paid on behalf of any of my clients, we were able to tender to a manu-facturer who paid the plaintiff, and then paid our fees incurred after the date of our tender.  

     Beginning about three years ago, a California law firm, Brayton, Purcell, Curtis & Geagan, rode into town to challenge the Pozzi firm’s dominance in Oregon.  For unrelated reasons, the Pozzi firm recently split up so that there are now two separate local offices, one with Jeff Mutnick and one with Peter Preston (both former Pozzi asbestos lawyers) doing asbestos litigation.  Accordingly there are now three primary groups of lawyers plaintiffing asbestos litigation in Oregon.  A Texas law firm and a Seattle firm are also openly advertising in local newspapers for asbestos cases, so more counsel may soon be involved.   

     More importantly, because of the long history of settlements and apparent direction to counsel by the major defendants to do as little as possible, many cases were getting dangerously close to trial without the defendants being ready to try the cases on the merits.  The clients I represented, however, all retailers or wholesalers, continued to get out on summary judgment or by convincing plaintiffs’ counsel to dismiss voluntarily because of inadequate product ID, and the possibility of sanctions if they did not.  

Kaiser Gypsum

     Last Fall, the Brayton firm decided to take a case to trial, Robert Bush v. Anchor Packing, et al, purportedly thinking that the defendants were not going to be ready.  They isolated an individual manufacturer for reasons that may have been retaliatory over actions taken in other states.  Plaintiff settled with all but one defendant for very modest sums and then put on his case against Kaiser Gypsum.  Plaintiff obtained a $1.5 million verdict, which included $600,000, for fear of future mesothelioma!  In that case, Judge Anna Brown (recently elevated to the federal bench) made several rulings, with extremely significant implications for other cases, some of which are discussed below.   

Tort Reform Law Held Inapplicable – Joint & Several Liability Applied

     In the Bush case, the Court found that there was a spot on plaintiff’s lung (which later was identified as being caused by asbestos) and, in retrospect, logically had to predate the tort reform changes in the joint and several liability laws (September 1995).  Therefore, the Court held Kaiser Gypsum would be liable for the entire amount of plaintiff’s judgment, less only what was previously paid in settlements, rather than just for the proportionate share of the damages attributed to Kaiser Gypsum’s fault (the result for claims which did not “arise” before the effective date of the change in the law). 

Junk Science

     Despite a limited Daubert challenge, the Court apparently accepted plaintiff’s "one fiber contributes to the disease process theory” (referred to but not pivotal to the case in Purcell) and felt this was sufficient to get the case to the jury, notwithstanding that there was much more exposure at other sites, and other locations, involving other manufacturers’ products.  Kaiser’s appeal may clarify some issues as to what it takes to be a “substantial” factor, though it is unlikely to clarify if one exposure to a few fibers is truly enough to be a substantial factor, an issue best raised by very minor players. 

The Reaction 

     Understandably, most defendants have begun to do what we believed they should have been doing all along, and that is coordinating the handling of individual cases, eight of which are often set for the same trial date, by assigning a lead counsel for each case.   

Cross-Claims For Indemnity 

     Obviously no one ever wants to be left in a case as the only defendant on a joint and several liability theory.  Accordingly, since we represent retailers and wholesalers, and not manufacturers, we started filing cross-claims for indemnity.  When plaintiffs settle with individual defendants, they can bar contribution but they cannot bar indemnity.  If the plaintiff will produce product ID earlier (and this has been a problem), clearly a distributor or wholesaler can tender to a manufacturer for indemnity based on the exposure to that product.  When there are multiple products from different manufacturers distributed by one client, however, each individual manufacturer is not too anxious to pick up the tender of the whole case.  The case law is not well developed on exactly what they will be required to indemnify, particularly as it relates to defense costs.