Mass tort defendants frequently defend lawsuits in venues like Los Angeles County, California, which are favored by plaintiff firms due to their plaintiff-favorable law and propensity for large verdicts. In a recent decision clarifying the California punitive damages standard, the intermediate appellate court for Los Angeles County has provided relief to mass tort defendants, especially those whose products contain only trace amounts of an allegedly harmful substance. See McNeal v. Whittaker, Clark & Daniels, Inc., No. B313472, 2022 Cal. App. LEXIS 587, at *54 (Ct. App. July 5, 2022).
It is a maxim of toxicology and medical causation that "the dose makes the poison." However, California trial courts, relying on law developed primarily to address asbestos litigation, sometimes adopt "no safe level" theories espoused by plaintiff counsel and their experts. Building on these theories, the courts adopt plaintiff arguments that knowledge of the mere presence of an allegedly harmful substance in a defendant's product, no matter how small (e.g., trace benzene in a petroleum-based solvent) is sufficient to create an issue of fact that defendant willfully disregarded consumer safety and therefore can be liable for punitive damages.
Related, California trial courts occasionally hold that even though there is no scientific consensus that a given substance causes a disease, punitive damages can be imposed. In both of the above circumstances, courts conflate the standards for negligence—conduct the jury determines is unreasonable—and punitive damages, which requires "conduct having the character of outrage frequently associated with crime," and proof by clear and convincing evidence. Johnson & Johnson Talcum Powder Cases, 37 Cal. App. 5th 292, 335 (2019) (a/k/a Echeverria). Such rulings disregard California precedent. For example, in Echeverria, the court held that punitive damages could not be imposed on a talc product manufacturer where scientific consensus had not yet drawn a causal relationship between talc products and the alleged disease.
In McNeal, the Second Appellate District, which hears appeals from Los Angeles County, confirmed and clarified that holdings like these are erroneous. Defendant in McNeal supplied talc in talc products used until 1980 by plaintiff, who later developed mesothelioma. By 1972, defendant knew its talc could contain asbestos, and that asbestos is capable of causing illness. Defendant also knew its talc could contain asbestos. In overturning the jury's punitive damages award, the court emphasized that defendant did not know through at least 1994 that talc (as opposed to asbestos) is capable of causing mesothelioma, and that "[t]his is not a case involving exposure to raw asbestos or asbestos dust from products made with asbestos." The court additionally noted the lack of scientific literature through 1980 associating talc (as opposed to asbestos) with mesothelioma. Without knowledge by 1980, or constructive knowledge based on medical or scientific developments, that talc containing trace asbestos (as opposed to asbestos itself) can cause mesothelioma, defendant could not be liable for punitive damages even if aware that asbestos itself can cause mesothelioma.
Plaintiff argued "trace" levels translates to millions of asbestos fibers per ounce of talc, but the court responded that plaintiff then needed to show defendant knew this amount had a high probability of injury. Plaintiff also noted a 1972 meeting attended by defendant where the FDA and industry scientists agreed the presence of asbestos in talcum powder products is a potential safety hazard, arguing this proves defendant knew there was no safe level of asbestos in talc. The court dismissed this, reasoning that concern over a potential safety hazard does not support an inference that defendant knew any level of asbestos in talc, however small, is dangerous.
The dissent in McNeal was lengthy and vociferous. Therefore, it may influence judges to continue to misapply the law. The dissent may also signal that McNeal is vulnerable to further appeal.
Under McNeal, defendants may argue that for punitive damages to be imposed, plaintiff must show defendant's knowledge (actual or constructive) that its product had dangerous levels of the allegedly harmful constituent. Defendant's mere knowledge that the constituent was present at some level is not sufficient. See McNeal, 2022 Cal. App. LEXIS 587, at *37-38. Along with Johnson & Johnson/Echeverria, defendants may argue that punitive damages cannot be imposed where there is a lack of scientific consensus before the end of the alleged exposure period that the whole product and/or the trace amounts of the constituent present are capable of causing the alleged disease. See id.; Johnson & Johnson/Echeverria, 37 Cal. App. 5th at 335. Defendants can thereby resist plaintiffs' attempts to misframe the question by asking only if defendant was aware the substance was present, not if defendant knew the substance was present at a dangerous level.
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