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Toxic Torts: Workable Defenses Available to the Corporate Defendant Volume 28 Issue 6 Article 7 1982 Toxic Torts: Workable Defenses Available to the Corporate Defendant Robert St. Leger Goggin Thomas A. Brophy Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Business Organizations Law Commons, and the Torts Commons Recommended Citation Robert S. Goggin & Thomas A. Brophy, Toxic Torts: Workable Defenses Available to the Corporate Defendant, 28 Vill. L. Rev. 1208 (1982). Available at: https://digitalcommons.law.villanova.edu/vlr/vol28/iss6/7 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Goggin and Brophy: Toxic Torts: Workable Defenses Available to the Corporate Defenda [Vol. 28: p. 1208 TOXIC TORTS: WORKABLE DEFENSES AVAILABLE TO THE CORPORATE DEFENDANT ROBERT ST. LEGER GOGGINt THOMAS A. BROPHYt TABLE OF CONTENTS I. PREFACE ............................................... 1209 II. INTRODUCTION ......................................... 1210 III. THE OBVIOUS DEFENSES ............................... 1216 A. Statute of Limitations ................................ 1216 B. M edical Causation ................................... 1226 C. Product Zdentication ................................. 1235 IV. THE PRODUCT-RELATED DEFENSES .................... 1244 A. Defective/Unsafe Products ............................ 1245 B. Duty to Warn/State of the Art ........................ 1251 C. Proximate Cause ..................................... 1261 Product Specifcation Defense ...................... 1264 Government Speqftcation Defense ................... 1265 V. THE LAST RESORT DEFENSES ......................... 1268 A. The SophisticatedPurchaser as Superseding/Intervening Cause .............................................. 1268 B. Contributog Negligence ............................... 1276 C. Assumption of the Risk ............................... 1279 D . Product M isuse ...................................... 1281 VI. EVIDENTIARY CONSIDERATIONS RELEVANT TO TRIAL STRATEGY ............................................. 1282 V II. CONCLUSION ........................................... 1284 t Partner, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., B.S. St. Joseph's College, 1958; J.D. Temple University, 1961. Member, Penn- sylvania Bar. t Associate, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa. B.A. University of Dayton, 1974; J.D. Temple University, 1982. Member, Penn- sylvania Bar. (1208) Published by Villanova University Charles Widger School of Law Digital Repository, 1983 1 Villanova Law Review, Vol. 28, Iss. 6 [1983], Art. 7 1982-1983] Toxic TORTS 1209 I. PREFACE T ODAY, our courts are clogged with cases in which claimants al- lege injuries caused by exposure to a toxic substance. Cases of this nature have sometimes been referred to as toxic torts.' In 1983 Villanova Law School presented a Symposium on Toxic Torts. At this Symposium, one of the authors of this article presented a sum- mary of the legal arguments that have been effective in the defense of toxic tort cases.2 That presentation formed the basis for this paper. The primary emphasis of this article will be the defenses avail- able in asbestos litigation. 3 The article focuses upon asbestos litiga- tion for two reasons. First, while there has been toxic tort litigation prior to the onset of asbestos-related litigation, the recent deluge of asbestos-related injury claims, 4 coupled with the subsequent downfall 1. The term "toxic torts," for purposes of this article, refers to personal injury claims that arise out of exposure to a toxic substance and which affect thousands, perhaps even millions, of people. Even if one excludes the various occupational dis- eases contracted by industrial employees such as silicosis, anthrocosis, and asbestosis, there has still been considerable toxic tort litigation arising out of the sale and use of pharmaceuticals and chemicals. For example, over 500 lawsuits alleging injuries caused by the drug MER/29 were filed during the mid-1960's. See, e.g., Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967). More recently, there have been over 1000 suits filed claiming injuries due to in utero exposure to DES (diethyl- stilbesterol). See, e.g., Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980). There are potentially 50,000 plaintiffs who could become involved in the "agent orange" litigation. See In re "Agent Orange" Prod. Liab. Li- tig., 506 F. Supp. 762 (E.D.N.Y. 1980) (certifying all Vietnam War veterans, their families, and survivors as potential plaintiffs in the class action suit against manufac- turers of "agent orange," a defoilant used in the Vietnam War). For a further discus- sion of the potential magnitude of toxic torts litigation, see Podgers, Toxic Time Bombs-Say Latent Disease Suits Will Be Key Battleground in '80s, 67 A.B.A. J. 139 (1981). 2. The authors have spent approximately five years in defending the Manville Corporation in Pennsylvania and federal courts. It is the authors' intention in this article to demonstrate those strategies and legal approaches that have been successful in the actual trial setting, rather than to provide an overall evaluation of the legal principles each side uses in its case. The fact that the authors have chosen to address toxic torts within this context does not suggest that they believe the litigation/tort context is the best or the only means of handling such claims. On the contrary, much research has been done which suggests that an administrative system, similar to the Workmen's Compensation scheme, would be the best system for resolving toxic tort claims. That topic is, however, beyond the scope of this paper, and has therefore not been discussed in any detail. For a discussion of the advantages of a legislative solu- tion to the toxic tort problem, see Schwartz & Means, The Need For Federal Product Liabii'ty and Toxic Tort Legislation. A Current Assessment, 28 VILL. L. REV. 1088 (1983). 3. The authors have focused on asbestos litigation for purposes of discussing the defense of toxic tort claims because they believe that the procedures and tactics de- veloped for resolving asbestos claims may well be used to handle future toxic tort claims. See also Phillips, Asbestos Litigation: The Test of the Tort System, 36 ARK. L. REV. 343 (1982). 4. Through 1980, a total of approximately 25,000 asbestos-related disease law- suits had been filed in the United States, and that number is expected to grow. Podg- https://digitalcommons.law.villanova.edu/vlr/vol28/iss6/7 2 Goggin and Brophy: Toxic Torts: Workable Defenses Available to the Corporate Defenda 1210 VILLANOVA LAW REVIEW [Vol. 28: p. 1208 of Johns-Manville Corporation, 5 suggests that this area of litigation merits discussion. Secondly, tlhe complexity and sheer volume of as- bestos-related disease litigation provides practitioners with a fund of knowledge that can be readily applied to other types of toxic tort litigation.6 This article, therefore, attempts to apply the trial proce- dures and tactics of asbestos litigation to the field of toxic torts gener- ally. To this end, the article will discuss the appropriateness and effectiveness of asbestos-related defenses vis-a-vis other toxic tort claims. II. INTRODUCTION The toxic tort decisional law is replete with references to esoteric 7 defenses created, or at least recognized by, contemporary tort law. Without denigrating such imaginative defenses, the best approach for any trial lawyer is to determine at the outset which defenses will gen- erally be successful and those which will not be successful. This ap- proach is especially recommended in the toxic tort context, where hundreds of lawsuits may be filed and where a defendant must exer- cise some selectivity in deciding which cases to try. In making such determinations, the practitioner must keep in mind that many typical products liability defenses, while logically and legally sound, are gen- erally ineffective in the toxic tort area because the jury either will fail ers, supra note 1, at 139-42. See also, Olick, Chapter I--A Dubious Solution to Massive Toxic Tort Liability, 18 FORUM 361 (1982). 5. On August 26, 1982, Johns-Manville Corporation and its affiliated companies filed a petition for reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978 in the United States Bankruptcy Court for the Southern District of New York. At the time it filed this petition, Johns-Manville was a defendant in approximately 16,000 asbestos-related disease suits. Since the filing of the petition, Johns-Manville has not been named in any additional asbestos-related disease lawsuits. See An Asbes- tos Bankruptcy, NEWSWEEK, Sept. 6, 1982, at 54; Manville's Bold Maneuver, TIME, Sept. 6, 1982, at 17. 6. During the course of this article, reference frequently will be made to Penn- sylvania law. This has been done because of the authors' familiarity with Penn- sylvania law and because Pennsylvania law amply demonstrates the practical and legal difficulties inherent in defending toxic tort claims. Moreover, the use of one jurisdiction's law in explaining the defense of toxic tort claims lends a thread of con- sistency to the discussion of the defenses available to a defendant in the toxic tort area. 7. The term "esoteric defenses," for the purposes of this article,
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