Minnesota Asbestos Court’s Rulings on Reallocation, Expert Reliability Affirmed

John Wells By John Wells

On May 21, 2018, the Minnesota Court of Appeals, in an unpublished decision, affirmed the rulings of the district court judge overseeing all asbestos litigation in Minnesota on various grounds.  The decision, Conda v. Honeywell International, Inc., arose out of a three-week trial in 2016 regarding the death of Ronald Conda, who passed away because of mesothelioma.  Plaintiff had argued that Mr. Conda was exposed to various asbestos-containing products through his work at Northern States Power (“NSP”) facilities and through non-occupational exposures to joint compound and automotive products.

The jury returned a verdict awarding Mr. Conda’s estate over $3.7 million dollars. The jury allocated fault among various parties, attributing 80% of the fault to Mr. Conda’s employer, NSP, 10% to Honeywell for its Bendix brakes, and 10% to Foster Wheeler.  The amounts allocated to Plaintiff’s employer, NSP, were uncollectible due to the exclusivity provisions of Minnesota’s Workers’ Compensation Statute.  As a result, the district court applied a previous version of Minnesota’s Comparative Fault Statute and found that Honeywell would be responsible for its own fault plus 50% of NSP’s fault—for a total of nearly $1.9 million dollars.  Honeywell then appealed on various grounds, a number of which are discussed herein.

First, the Court of Appeals affirmed the district court’s application of the pre-2003 version of Minnesota’s Comparative Fault Statute. Honeywell had argued that the post-2003 version of the statute applied because the wrongful death claim accrued in 2015 when Mr. Conda died.  Plaintiff had argued that the prior version of the statute applied because the exposures that caused his disease occurred before the statute was amended. The previous version of the statute allowed for joint and several liability. See Minn. Stat. § 604.02, subd. 1 (2002).  In 2003, Minnesota revised its comparative fault statute to allow for joint and several liability only when:

  1. a defendant’s fault is greater than 50%
  2. two or more defendants acted in a common plan or scheme
  3. an intentional tort is committed, or
  4. the liability arose under specific statutes (such as those governing pesticide control or underground storage tanks) not at issue in this case. 

The effective date provision of the 2003 statute provides that it “applies to claims arising from events that occur on or after August 1, 2003.”  Minn. Stat. § 604.02, subd. 1 (2016) (emphasis added).  The district court agreed with the Plaintiff’s argument that the statute’s unique language specifying it applied to “events that occur” after 2003 did not apply to asbestos exposures that occurred decades ago.  The appellate court agreed, reasoning that “[t]he date on which a claim arises or accrues is not necessarily the same as the dates of the underlying events giving rise to the claim.”  The appellate court held that while the wrongful death claim may not have accrued until the time of Mr. Conda’s death in 2015, events that gave rise to the claim occurred before the statute was amended.  Accordingly, the appellate court held that the current version of Minn. Stat. 604.02, subd. 1 does not apply to cases where some of the events giving rise to the claim occurred before August 1, 2003, even though the claim accrued on or after that date.  The appellate court therefore affirmed the district court’s decision to apply the prior version of the statute and determined that the district court correctly re-allocated the uncollectible portion attributed by the jury to the decedent’s employer, NSP, to Honeywell. 

Second, the appellate court determined that the district court did not err in allowing Plaintiff’s causation experts, Drs. Holstein and Mark, to testify. Honeywell had moved to exclude these experts’ anticipated testimony in pre-trial Frye-Mack motions, and argued that the proffered witnesses’ testimony was not foundationally reliable under Minn. R. Evid. 702 and associated caselaw. The district court concluded that Plaintiff’s experts had sufficient foundation to express causation opinions because their testimony was not speculative and assisted the trier of fact.  Further, the district court found that this case essentially presented a “battle of the experts” scenario where each side’s experts debated about competing studies published over the course of decades.  As a result, the district court reasoned that the determination of which expert’s testimony was more reliable was an issue of credibility for the jury, rather than an issue of foundational reliability for the court. 

The appellate court agreed with the district court.  It rejected Honeywell’s argument that the Plaintiff’s experts’ testimony was tantamount to “every exposure”-type arguments that many other jurisdictions have rejected as speculative and lacking in foundation.  Honeywell had argued that the “every exposure” theory lacks foundational reliability because it is based on the lack of scientific data definitively establishing the level of asbestos exposure below which there is no risk of disease. The appellate court found, however, that Plaintiff’s causation experts did not testify that all exposures were substantial contributing factors to Mr. Conda’s development of mesothelioma.  Instead, the appellate court found that Plaintiff’s experts based their causation opinions on specific exposure levels, and that the exposure levels testified to by Plaintiff and his experts had support in the scientific literature. As a result, the appellate court determined the district court did not abuse its discretion in finding that the opinions were foundationally reliable and properly admitted.

Third, the appellate court determined the district court did not abuse its discretion in declining to include the U.S. Navy on the special verdict form as an entity to whom the jury could apportion fault.  The district court had determined that under Minnesota law any entity could be placed on the verdict form if the requesting party had made a “prima facie case under which a reasonable jury without speculating could assess fault to that entity.”  The district court declined to include the Navy, reasoning that while there was “plenty of evidence that the Navy was arguably a substantial contributing factor” to the decedent’s development of mesothelioma, there was insufficient evidence in the record that the Navy failed to use reasonable care or otherwise breached a duty to the decedent.  The appellate court agreed with the district court and found that there would need to be evidence in the record regarding the standard of care in order for the jury to determine whether the Navy breached a duty of care to Mr. Conda.  

A copy of the full opinion is available here: 

https://mn.gov/law-library-stat/archive/ctapun/2018/OPa171381-052118.pdf

If you have any questions regarding this content or other asbestos litigation trends, please contact the author or one of the other attorneys in HKM’s Toxic Tort Litigation Group at (651) 227-9411.