Tooey Is Not Just a Bunch of “Hooey”— Practical Tactics for Defending an Employer in the Realm of Toxic Tort Litigation

By Christopher N. Santoro, Esq. and Christine P. Dower, Esq.*

The Pennsylvania Supreme Court’s ruling in Tooey v. A.K. Steel Corp., 81 A.3d 851 (Pa. 2013) represents a significant shift in Pennsylvania law. In the wake of Tooey, new companies are being targeted and new theories of liability are being raised in toxic tort cases filed throughout the Commonwealth. Many employers and their insurers are faced with a growing litigation trend—defending themselves against common law tort claims by plaintiffs who develop latent occupational diseases. The first wave of toxic tort cases involving “Tooey defendants” are likely to hit the trial docket within the next one to two years. As these cases approach, here are five basic, yet practical, considerations for practitioners to keep in mind.

I.   Get To Know the Employer – Early

Since the implementation of the Occupational Disease Act in 1939, employers in Pennsylvania have been protected from common law suits by plaintiffs who develop latent occupational diseases that manifest more than 300 weeks (five and one-half years) after the plaintiff’s last date of employment. See 77 P.S. § 411(2). The decades of enjoying this exclusivity protection, however, may prove to be problematic for some employers. For example, in the wake of Tooey, documents and data that the employer routinely discarded, believing future litigation was no longer possible, may suddenly become relevant. Not to mention, changes in corporate ownership and staff personnel over decades of time may create logistical nightmares in terms of gathering documents and other evidence. These factors, and more, weigh in favor of starting your investigation at an early juncture: perform internet an research on the employer’s corporate history, familiarize yourself with the corporate structure, the company products, as well as its past and present safety practices. Inquire about the company’s electronic data and document management systems, the existence of MSDS sheets or any air sampling/quality assurance testing that was performed on site. Visit the OSHA, EPA and local government websites to find out whether the employer has ever received a citation or been investigated for occupational hazards on site—you can expect that the plaintiffs’ attorneys have already done this. There is a lot of leg work to be done. So, develop the best ways to streamline your own discovery process and get started early.

II.  Point the Finger at the Plaintiff

Today’s mainstream toxic tort cases in Pennsylvania involve suits against manufacturers and distributors of allegedly defective products, and these defendants are held strictly liable for manufacturing or supplying defective products that proximately cause the plaintiffs’ harm. Berkebile v. Brantly Helicopter Corp., 337 A.2d 893 (Pa. 1975). Under the theory of strict liability, contributory negligence is not a viable defense because the sole focus is on the defective condition of the product, rather than the conduct of the parties. Kimco Dev. Corp. v. Michael D’s Carpet Outlets, 637 A.2d 603, 605-606 (Pa. 1993).

However, allegations against an employer in a toxic tort lawsuit sound in negligence. An employer will be held liable if its breach of duty to the plaintiff proximately caused the plaintiff’s harm. Now, the conduct of the employee may become a key element of the employer’s defense and could make an impact on the jury at the time of trial. When defending an employer at a deposition, it is imperative to elicit testimony that helps establish that the plaintiff was contributorily negligent in his own handling and use of the alleged toxic products. For example, a witness will often testify that protective equipment was available, but that he or she chose not to use it because it was too cumbersome or it got in the way of their daily duties. Develop this testimony. Confirm that protective equipment was available but not utilized. Establish that the plaintiff did not attend safety meetings. When possible, demonstrate that the plaintiff tended to disobey orders. By presenting evidence that the plaintiff was aware of warnings, but failed to exercise reasonable diligence for his or her own protection, the defendant employer can argue that the plaintiff’s own behavior was a contributing cause to the development of his or her condition. This defense was not utilized in the realm of toxic torts prior to Tooey, and now it is finally time to use it to the defendant’s advantage!

III.  Challenge State-of-the-Art

As with any tort claim, the plaintiff must establish the existence of duty, breach, causation and damages. There is little doubt that an employer’s safety obligations to its employees establish the existence of a legal duty. However, there will be issues regarding what the employer knew and/or should have known. Plaintiffs will retain state-of-the-art witnesses who will rely on historical documents and periodicals to establish that the employer: (1) should have received documents from organizations or trade magazines available at the time; or (2) should have undertaken specific activities to stay abreast of developing technologies. Prior to Tooey, state-of-the-art evidence, often kept out of negligence cases because of Pennsylvania’s workers’ compensation bar, may now become admissible and will need to be addressed from the outset.

State-of-the-art witnesses are simply historians. They are not qualified to testify as to what any defendant employer should have received from any person or entity. See, Christiansen v. Silfies, 667 A.2d 396, 401 (Pa.Super. 1995). Moreover, a state-of-the-art witness does not have the requisite knowledge, skill, experience, training or education with regard to the methods an employer should have used to stay abreast of developing technologies. See, Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 539-40 (Pa.Super. 2003). Arguably, employers may develop a widely varied method or procedure for obtaining information and keeping abreast of the world around them, and a paid historian is not qualified to testify that one methodology for gathering information is superior to others. When defending your employer, it is essential not only to master the literature that the state-of-the-art witnesses are relying upon, but also to challenge the plaintiffs’ expert’s lack of qualifications in this area.

IV.  Question The Warnings

There is a presumption that employers are in the best position to warn of potentially hazardous products used on the job. There is also a presumption, however, that workers will actually follow warnings. As a practical matter, following warnings was simply not part of the culture that existed in the 1960s and 1970s (and possibly even as late as the 1980s). For example, as late as 1969, Dr. Irving Selikoff, a well-known pioneer of asbestos research, noted that only four percent of insulators wore a mask even after being warned. The Asbestos Worker, Green Insert, May 1969. At the time of trial, illustrate the cultural and societal context in which the alleged exposure occurred, and cast doubt on the effectiveness any warnings that they may have had on the plaintiff’s behavior.

V.  Preserve, Preserve, Preserve

Employers have not been subject to common law tort liability for latent occupational diseases for decades. The new wave of Tooey defendants are paving the way for others to follow. A timid approach to defending an employer is not recommended. As evident from this discussion, toxic tort suits involving the employer have presented new legal and tactical considerations. Do not simply fall in line with the old approaches—be proactive, be prepared and be persistent. Preserve all issues.

*Christopher Santoro, a shareholder, and Christine Dower, an associate, work in our Philadelphia, Pennsylvania office. Christopher can be contacted at 215.575.2589 or cnsantoro@mdwcg.com, and Christine can be reached at 215.575.2621 or cpdower@mdwcg.com.

Defense Digest, Vol. 20, No. 3, September 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.