THE FIFTH CIRCUIT ADOPTS A PRESUMPTION IN FAVOR OF FEDERAL JURISDICTION IN CLASS ACTIONS REMOVED UNDER CAFA

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CAFA extends federal jurisdiction to certain mass action and class action lawsuits where

  • the proposed class is at least one hundred (100) members, minimal diversity exists between the parties,
  • the amount in controversy is greater than $5,000,000, and
  • the primary defendants are not states, state officials, or other government entities. 28 USC §1332(d)(2), (5).

There are, however, exceptions to CAFA jurisdiction that empower a district court to remand a case to state court, particularly local controversies “…that uniquely affect a particular locality to the exclusion of all others”.

Remands of mass actions and class actions defeat the purpose of CAFA removals, and the Fifth Circuit has recently made remands under CAFA-exceptions more difficult. In Arbuckle Mountain Ranch of Texas, Inc. v. Chesapeake Energy Corp., 810 F.3d 335 (5th Cir. 1/7/2016), the Fifth Circuit joined other circuits in establishing a presumption in favor of retaining federal jurisdiction under CAFA. See, 28 USC § 1332(d).

The Fifth Circuit held that:

…When deciding whether an exception to CAFA removal applies, we adopt the general approach from sister circuits recognized in Opelousas. If the applicability of an exception is not shown with reasonable certainty, federal jurisdiction should be retained.”

Arbuckle, 810 F.3d at 338. Based on the ruling in Arbuckle, supra, CAFA jurisdiction is presumed and all doubts about the exercise of CAFA jurisdiction over a case based upon the application of an exception under CAFA must be resolved in favor of the federal court retaining jurisdiction.

HOW PLAINTIFFS CAN AVOID A CAFA REMOVAL

Mousetrap Ratonera Trappola per topi MausefalleIn Eagle U.S. 2, L.L.C. v. Abraham, 627 Fed. Appx. 351 (5th Cir. 12/11/15), the Fifth Circuit affirmed remand of several mass actions that had less than 100 persons in each suit. Under CAFA, a state court suit may only be removed if it is a “mass action” with 100 or more plaintiffs whose claims are to be consolidated or tried jointly because of similar fact and legal questions common to the plaintiffs’ claims. The plaintiffs’ counsel in Eagle had 1,700 clients with identical claims. He divided up the claims into 77 separate mass actions (averaging 22 plaintiffs in each case), with identical claims by each plaintiff against the defendant.

The defendant asserted that CAFA applied, based upon “piercing the pleadings” in the 77 different lawsuits to satisfy the 100-person per suit requirement of CAFA. The defendant argued that the 77 suits were really one lawsuit, as all 77 complaints filed by the same lawyers make identical claims on behalf of more than 1,700 plaintiffs and that the 100-or-more-person requirement is satisfied because plaintiffs’ counsel broke up their client base into multiple suits in a tactic to prevent the assertion of jurisdiction under CAFA. Eagle U.S. 2, 627 Fed. Appx. at 353.

The Fifth Circuit disagreed and held:

The “100-or-more-persons” cannot be satisfied by piercing the pleadings across multiple state court actions when the plaintiffs have not proposed that those actions be tried jointly or otherwise consolidated.

Id. Because the case did not involve “100-or-more-persons” it is not a “mass action.” Id.

On the surface, the advantages that plaintiffs seek by being in state court would seem to be outweighed by the burden and expense of 77 separate lawsuits in the same state court assigned to multiple judges – as opposed to a single consolidated proceeding. Under Louisiana law, cases cannot be consolidated for pre-trial purposes only. Presumably, defendants could renew the CAFA removal if some or all of the 77 different lawsuits are consolidated for trial in a Louisiana state court.

THE “EVERY EXPOSURE” THEORY IS ACCEPTED IN CALIFORNIA

EveryExposure

Many substances are harmless if you do not ingest a sufficient dose or amount of it. Asbestos is arguably one of those substances, see “Every Exposure, Thresholds and Low Doses” Toxic Torts and Environmental Law Newsletter, ABA Litigation Committee (Fall 2015), but some courts say “every exposure” to asbestos is harmful and causes mesothelioma.

On March 6, 2016, a California appellate court in Nickole Davis, et al v. Honeywell International, Inc., 199 Cal. Rptr. 3d. 583 (Court of Appeal of the State of California, Second Appellate District, Div. 4, 3/3/16), affirmed the trial court’s denial of the defendant’s motions in limine to exclude the “every exposure” theory testimony of plaintiff’s experts. In doing so, the court held that the “every exposure” theory is a subject of legitimate scientific debate, and the jury should decide if it is credible.

The deceased in Davis was exposed to asbestos in Bendix-brand brake linings when he did one or two brake jobs on autos every day for about fifteen years in the 1960s – 1970s. By weight, half of the brake lining material plaintiff used was made up of asbestos fibers.

Defendant Honeywell, the successor to Bendix, filed a motion in limine to preclude plaintiff’s expert from testifying that every exposure to asbestos by plaintiff above background levels contributed to the deceased’s mesothelioma. Plaintiff’s experts relied on three studies dealing with harm caused by low exposure to asbestos and mesothelioma, along with an article published in the American Journal of Industrial Medicine on brake lining workers’ exposure to asbestos. Based upon this evidence, the appellate court concluded:

These studies and article belie Honeywell’s assertion that [plaintiff’s expert] Dr. Strauchen admitted there are no studies of the association between mesothelioma and the kind of low dose exposure Davis experienced from Bendix brake linings… In short, Honeywell’s assertion that Dr. Strauchen’s testimony was not supported by materials he relied upon is not correct. Although Honeywell – and others – may disagree about the methods used in those materials or the conclusions Dr. Strauchen drew from them…many members of the scientific community do not.

*     *     *

“…If…the expert testifies that asbestos exposure is cumulative because the fibers remain in the lungs for a long period of time, it is not illogical to conclude that each exposure, when added to other exposures, can result in a cumulative exposure sufficient to cause mesothelioma or other asbestos-related diseases, and therefore each exposure is a substantial factor in contributing to the disease.” (Emphasis added).

Davis, 245 Cal. App. 4th.

The Davis court declined to follow cases from other jurisdictions that have rejected the “every exposure” theory of causation, including Betz v. Pneumo Abex, LLC, 615 Pa. 504 (Pa. 2012); Bostic v. Georgia-Pacific Corporation, 439 S.W.3d 332 (Tex. 2014); and Moeller v. Garlock Ceiling Technologies,LLC, 660 F.3d 950 (6th Cir. 2011) (applying Kentucky law).

Davis may be distinguished from case law in other jurisdictions based upon the controlling burden of proof in asbestos-related cancer cases in California, Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997), under which a plaintiff:

“may prove causation…by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in a reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.” (Emphasis in original).

Id. at pp. 976-977 fn omitted. Thus, under California law, a plaintiff may prevail by demonstrating that the defendant’s product was a substantial factor in contributing to the risk of developing asbestos-related cancer. Id. In any event, Davis is a significant victory for those who subscribe to the every exposure theory and stands in stark contrast to the Bostic case in Texas.

“EVERY EXPOSURE” THEORY IS REJECTED BY ALL LOUISIANA FEDERAL COURTS, ACCEPTED BY SOME STATE COURTS

NoEveryExposure

All federal courts in Louisiana that have considered the “every exposure” theory under Louisiana law have rejected it. See Davidson v. Georgia Pacific, LLC, No. 12-1463, 2014 WL 3510268 at *3-6 (W.D. La. July 14, 2014); Comardelle v. Pennsylvania General Insurance Co., 76 F.Supp.3d 628 (E.D. La. Jan. 5, 2015); Vedros v. Northrop Grumman Shipbuilding, Inc., 119 F.Supp.3d 556 (E.D. La. Aug. 4, 2015).

The Louisiana Supreme Court has not expressly spoken on the “every exposure” theory in mesothelioma cases. In its last major mesothelioma case, Rando v. Anco Insulations, 2008-1163 (La. 5/22/09), 16 So.3d 1065, the court stated that every non-trivial exposure to asbestos contributes to and causes mesothelioma. See Id. at 1091; see also, Landry v. Avondale Industries, Inc., 111 So.3d 508, 511 (La. App. 4th Cir. 2013).

The Louisiana Fourth Circuit in Oddo v. Asbestos Corp., 2014-0004 (La. App. 4 Cir. 8/20/15), 173 So.3d 1192, considered the trial court’s rejection of the every exposure theory, but did not rule on it. Instead, it affirmed the trial court’s adoption of the theory that every above-background exposure to asbestos contributes to the development of mesothelioma (which the defendant’s expert agreed was a valid, reliable theory).

The Louisiana First Circuit in Robertson v. Doug Ashy Building Materials, 2014-0141 (La. App. 1 Cir. 12/23/14), 168 So.3d 556 reversed the trial court’s rejection of the every exposure theory plaintiffs’ expert called his “special exposure” theory. The court held that a plaintiff is not required to prove his “quantitative level of exposure,” and endorsed, as reliable, the plaintiff’s expert opinion that if “there was a scientific reason to believe that the form of the exposure…would be expected to increase one’s risk of developing mesothelioma,” the plaintiff had a substantial exposure to asbestos.

“EVERY EXPOSURE” TO ASBESTOS,NO MATTER HOW LITTLE….

“EVERY EXPOSURE” TO ASBESTOS – NO MATTER HOW LITTLE – EQUALS AN ISSUE OF FACT FOR TRIAL AND WILL RESULT IN DENIAL OF A MOTION FOR SUMMARY JUDGMENT ON CAUSATION IN AN ASBESTOS CASE IN LOUISIANA STATE COURTS

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Many defendants in asbestos-exposure cases have very little involvement in causing plaintiff’s asbestos-related illness. At the close of fact discovery, they often rely on a “no evidence” motion for summary judgment in Louisiana state courts to force plaintiff to show he had a harmful exposure to asbestos for which the defendant moving for summary judgment is allegedly liable to the extent it was a substantial factor in bringing about his injury. Rando v. Anco Insulations, Inc., 2008-1163, p. 35-36 (La. 5/22/09), 16 So.3d 1065, 1091; Oddo v. Asbestos Corp., 2014-0004 (La. App. 4 Cir. 8/20/15), 173 So.3d 1192.

Recent Louisiana appellate decisions arguably send a message that “every exposure” to asbestos will defeat a no-evidence motion for summary judgment in an asbestos exposure case. This trend will force more defendants to pay cost-of-defense (or higher) settlements. See: Alberes v. Anco Insulations, Inc., 2013-1549 (La. App. 4 Cir. 12/10/14), 156 So.3d 795 (5 day exposure in a fifty-year exposure period is an issue for trial); Francis v. Union Carbide Corp., 2012-1397 (La. App. 4 Cir. 5/8/13), 116 So.3d 858 (the conduct of asbestos insulation work while the deceased was at the refinery creates a dispute issue of material fact for trial); but see, Landry v. Avondale Industries, Inc., 2012-0950 (La. App. 4 Cir. 3/6/13), 111 So.3d 508 (partial summary judgment on liability in favor of plaintiff reversed because of disputed fact about the quantity of asbestos to which plaintiff was exposed by defendant).

LOUISIANA CASE LAW LIMITS THE SUCCESSOR LIABILITY OF ASSET PURCHASERS

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Over the last few years, Louisiana courts have rendered decisions favorable to asset-purchasers. J.D. Fields & Co. v. Nottingham, 2015-0723 (La. App. 1st Cir. 11/19/15), 184 So.3d 99; Pichon v. Asbestos Defendants, 2010-0570 (La. App. 4 Cir. 11/17/10), 52 So.3d 240.

In these decisions, the courts recognize the general rule that an asset-purchaser has no successor liability for the tortious conduct of the asset-seller, with three basic exceptions:

  1. the purchaser expressly or impliedly agrees to assume the obligations;
  2. the purchaser is merely a continuation of the selling corporation; or
  3. the transaction is entered into to escape liability. J.D. Fields, 184 So.3d at 101, citing Golden State Bottling Co., Inc. v. National Labor Relations Board, 414 U.S. 168, 182 (1973).

When an asset-purchaser in Louisiana does face successor liability, it can rely on the assignment-by-contract of rights to insurance coverage theory. In Re Hurricane Katrina Canal Breaches, 2010-1823 (La. 5/10/11), 63 So.3d 955, 964; see also Fluor Corporation v. Superior Court, 61 Cal.4th 1175 (Cal. 2015).

THE DAIMLER DECISION’S RESTRICTIONS ON GENERAL JURISDICTION

key with label home

 

THE DAIMLER DECISION’S RESTRICTIONS ON GENERAL JURISDICTION PROVE SOLID PROTECTION FOR CORPORATE DEFENDANTS IN FORUMS OUTSIDE OF THEIR CORPORATE HOME – BUT NOT EVERYWHERE

The Supreme Court decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014) has been interpreted as limiting general personal jurisdiction over a corporate defendant to the state of incorporation or principal place of business of that corporate defendant. See, Smith v. Union Carbide Corp, et al, No. 1422-CCOO457, 2015 WL 191118 (Mo. Jan. 12, 2015); Long v. Patton Hospitality Management, LLC, 2016 WL 760780 (E.D. La. 2016); Namer v. Bank of America, N.A. (2016 WL 1089352 (E.D. La. 2016); Stanford v. DS Corp. of Indiana, 2015 WL 1623895 (W.D. La. 2015) (“[a] corporation is at home in a state when it is either incorporated there or has its principal place of business there”); Helene Cahen, et al v. Toyota Motor Corp., et al, — F. Supp. 3d —-, 2015 WL 7566806 (N.D. Cal. 2015) (Ford Motor Company is not subject to general in personam jurisdiction in California because it was not its home state, and the case was not “exceptional” enough to warrant the exercise of general in personam jurisdiction); Xilinx, Inc. v. Papst Licensing GMBH & Co. KG, 113 F. Supp. 3d 1027 (N.D. Cal. 2015).

Before Daimler, plaintiffs’ counsel forum-shopped mass actions in which hundreds, if not thousands, of plaintiffs would join in a single “destination” lawsuit in a plaintiff-friendly venue based on the loose concept of general jurisdiction. Oftentimes, out-of-state plaintiffs joined in these mass actions in which they were not even injured in the forum state (which would likely support the exercise of specific jurisdiction over an out-of-state corporate defendant). These “destination” mass actions for both out-of-state plaintiffs and out-of-state defendants were severely restricted by the Daimler decision that should be followed as the law of the land in every court considering general in personam jurisdiction as a matter of law under the U.S. Constitution, but is not. See Jeffs v. Anco Insulations, No. 15-L-533 (3rd Judicial Circuit Court, Madison County, IL 11/6/2015) (Ford Motor Corporation’s principal place of business is in Michigan and its state of incorporation is Delaware, but the court found that general jurisdiction existed over Ford in Illinois because it owned real property, had dealers and sold vehicles, and had an agent for service of process in Illinois for almost 100 years); State of West Virginia ex rel Ford Motor Company v. The Honorable Warren R. McGraw, et al, No. 15-1149 (Cir. Ct. Wyoming County, West Virginia, 10/21/2015) (Ford Motor Company found subject to general in personam jurisdiction in West Virginia state courts, despite the ruling in Daimler); Magill v. Ford Motor Company, No. 2015CV32019 (Dist. Ct. Co., December 1, 2015).