D.C. Court of Appeals Rebukes Asbestos Plaintiff’s Attorneys Strategy

James M. Dedman, IV

The strategy that attorneys use in litigation may come back to haunt them, as one plaintiff’s attorney in a federal asbestos exposure case recently learned. See Wannall v. Honeywell, Inc., — F.3d—, 2014 WL 7373517 (D.C. Cir. Dec. 30, 2014). The case began in the superior court in the District of Columbia when a former amateur mechanic and his wife brought suit against a number of defendants claiming that their products exposed him to asbestos. The plaintiff died during the pendency of the litigation, and his personal representative later appeared on behalf of his estate.

After the removal of the case to the U.S. District Court for the District of Columbia, it was later transferred to the asbestos Multidistrict Litigation 875 in the U.S. District Court for the Eastern District of Pennsylvania before it was remanded to the D.C. federal court and then ultimately appealed to the federal court of appeals.

The plaintiff’s attorney learned the lesson mentioned above all too well when Senior Circuit Judge Williams of the D.C. Circuit Court of Appeals opened the opinion as follows:

After discovery closed in this litigation, the Virginia Supreme Court issued an opinion addressing a key aspect of the law at issue. The development confronted the plaintiff with a strategic choice: acknowledge that the opinion changed the law and seek the district court’s leave to respond to appropriately with new evidence? Or deny that any change had occurred and proceed on the existing record? He selected the second alternative, and the district court honored that choice in its opinion granting defendant’s renewed motion for summary judgment. Although the plaintiff came to regret his decision, he remains bound by it.

Among the defendants sued was Honeywell, Inc., the successor in interest to the Bendix Corporation, a manufacturer of brakes. After the parties agreed that Virginia law governed the exposure allegations, Honeywell moved for a summary judgment, contending that there was no causal link between the purported exposure and the malignant pleural mesothelioma alleged by the plaintiff. Honeywell also argued that the plaintiff’s decedent was exposed to asbestos during his lengthy naval career.

In 2011, the U.S. District Court for the Eastern District of Pennsylvania denied Honeywell’s summary judgment motion, finding that the declaration of the plaintiff’s retained testifying expert, Dr. Steven Markowitz, created a genuine issue of material fact. In the declaration, Dr. Markowitz opined that the brakes manufactured by Honeywell were a “substantial” cause of the plaintiff’s disease, thereby bringing the allegations in line with the magic language of the Virginia case law at the time.

However, two years later, in early 2013, the Supreme Court of Virginia, in Ford Motor Company v. Boomer, changed the law governing asbestos exposure claims. See 736 S.E. 2d 724 (Va. 2013). In doing so, the court modified the causation standard, changing it from the previously mentioned “substantial cause” standard to an entirely new one premised on the notion that “exposure to the defendant’s product alone must have been sufficient to have caused the harm.”

After the issuance of the new case law, Honeywell requested that the D.C. federal district court—where the case had since returned—reconsider the previous ruling on the motion for summary judgment. In response, the plaintiff produced a new declaration from Dr. Markowitz, in which he modified his previous testimony and parroted the new Virginia standard. In the new testimony, Dr. Markowtiz found that the brakes at issue were indeed a “sufficient” cause of the disease. This new declaration was submitted two years after the district court’s deadline for the close of expert discovery.

Ultimately, the D.C. federal district court granted Honeywell’s renewed motion for summary judgment and struck the new Markowtiz declaration, and the D.C. Circuit Court of Appeals affirmed. The basis of the rulings was the plaintiff’s curious strategy of insisting that the new Supreme Court of Virginia case law did not actually alter preexisting jurisprudence. In light of this position, the plaintiff did not seek leave of court to file a new declaration in response to the new motion, which was filed well after the deadlines for expert testimony. The appellate court focused on Federal Rule of Civil Procedure 26(e), which sets forth a party’s duties in supplementing or otherwise correcting certain previously made disclosures in the matter. Specifically, Federal Rule 26(e)(1)(A) provides that such supplementations must be made “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” The appellate court also noted the plaintiff’s failure to invoke Federal Rule of Civil Procedure 56(d), which permits a party to seek an order from the court to “allow time to obtain affidavits or declarations or to take discovery” when facts are unavailable to the non-movant or it cannot present facts essential to justify its opposition. Essentially, the plaintiff did not cite the two rules that would have permitted the plaintiff to produce a new declaration in light of changing facts or circumstances, namely the new authority.

On appeal, the plaintiff argued that the production of the declaration was timely as a “supplemental” declaration under Federal Rule 26(e), although the district court found that the plaintiff had waived that argument by failing to make it in the proceeding below at the appropriate time.

The court then turned to the plaintiff’s argument that the declaration should be considered irrespective of the requirements of Federal Rules 26(e) and 56(d). As noted above, the plaintiff took the unusual position that the new Supreme Court of Virginia opinion did not alter the law, an argument that appeared to baffle both the federal district court and the appellate court. In fact, during the oral argument, the district court advised the plaintiff’s counsel that he was “putting [him]self in a very difficult box.” In making this argument, the plaintiff essentially argued that the two rules of civil procedure did not apply here, or as the court noted, the plaintiff “disabled himself from invoking Rule 26(e)’s mandate,” To the  plaintiff, the relevant governing rule was Federal Rule 56(c)(4), which generally permits a party to produce an affidavit or declaration to support or to oppose a summary judgment motion, presumably whether or not there are new circumstances.

Commenting on the plaintiff’s strategy, the court noted as follows:

The plaintiff’s decision not to invoke Rule 26(e) was apparently a part of his litigation strategy. He hoped to defeat Honeywell’s motion for reconsideration on its summary judgment motion by persuading the court that Boomer effected no change to Virginia law. Invoking Rule 26(e)— or, for that matter, Rule 56(d)— would have required admitting that Boomer did effect such a change, so the plaintiff declined to do so even in response to a motion to strike the new declaration as untimely.

Ultimately, in accordance with Federal Rule of Civil Procedure 37(c), the appellate court found that the untimely declaration was neither “substantially justified” nor “harmless.” Indeed, the appellate court noted the harms that would be suffered by Honeywell had the new declaration been permitted: the reopening of discovery or the denial of the chance to depose the retained testifying expert on the new opinions. Further, the appellate court found that the untimely declaration could not be “substantially justified” in light of plaintiff’s counsel’s decision to argue that the Supreme Court of Virginia had not altered the jurisprudential landscape with its opinion.

James M. Dedman IV is a partner in Gallivan White & Boyd PA’s Charlotte, North Carolina, office. Mr. Dedman is an experienced litigator with extensive experience in handling complex personal injury and business litigation. He focuses his practice on transportation law, torts and insurance practice, drug and medical device litigation, and product liability litigation. Mr. Dedman is a member of the DRI Toxic Torts and Environmental Law Committee.