Erickson v. Pharmacia

548 P.3d 226

Kerry L. ERICKSON; Michelle M. Leahy; Richard A. Leahy; and Joyce E. Marquardt; Respondents,

v.PHARMACIA LLC, a Delaware limited liability company, f/k/a Pharmacia Corporation, Appellant.

No. 83287-5-I

Court of Appeals of Washington, Division 1.

Filed May 1, 2024

Honorable Douglass A. North, Judge.

Jennifer Lynn Campbell, Allison Kathleen Krashan, Carolea Welton Casas, Bryan Cave Leighton Paisner LLP, 701 5th Avenue, Suite 3860, Seattle, WA, 98104-7047, Jean-Claude Andre, Bryan Cave Leighton Paisner LLP, 120 Broadway, Suite 300, Santa Monica, CA 90401, A. Elizabeth Sternehll-Blackwell, Bryant Cave Leighton Paisner, LLP, 211 N Broadway, Suite 3600, St. Louis, MO, 63102, Kenneth Lee Marshall, Bryan Cave Leighton Paisner LLP, Three Embarcadero Center, Seventh Floor, San Francisco, CA, 94111-4070, Logan M. Rutherford, Bryan Cave Leighton Paisner LLP, 1200 Main Street, Suite 3800, Kansas City, MO, 64105-2122, for Appellant.

Sean Gamble, Attorney at Law, Ronald Jaesung Park, Attorney at Law, 1109 1st Ave. Ste 501, Seattle, WA 98101-2988, James A Hertz, Henry George Jones, Richard Friedman, Friedman | Rubin, 1126 Highland Ave., Bremerton, WA 98337-1828, Linnet Davis-Stermitz, Robert Friedman, Matthew W.H. Wessler, Jonathan E. Taylor, Deepak Gupta, Gregory A. Beck, Gupta Wessler PLLC, 2001 K Street Nw, Suite 850 N, Washington, DC, 20006, Neil K. Swahney, Gupta Wessler PLLC, 100 Pine Street, Suite 1250, San Francisco, CA, 94111, for Respondents.

Blythe H. Chandler, Elizabeth Anne Adams, Terrell Marshall Law Group PLLC, 936 N 34th St. Ste 300, Seattle, WA, 98103-8869, for Amici Curiae on behalf of Symeon C. Symeonides, Peter Nicolas, Brooke D. Coleman.

PUBLISHED OPINION

Chung, J.

¶1 Three former teachers in Monroe School District filed this lawsuit under the Washington product liability act (WPLA) against Pharmacia, the successor to Monsanto, the manufacturer of chemicals known as polychlorinated biphenyls (PCBs).¹ They claimed their exposure to PCBs in fluorescent light ballast capacitors (FLBs) at the Sky Valley Education Center (SVEC) caused them serious health impacts. After a seven-week trial, a jury found Pharmacia liable and awarded plaintiffs over $185 million in compensatory and punitive damages. The trial court denied Pharmacia’s post-trial motion for judgment as a matter of law or, alternatively, for a new trial and for remittitur of the damage awards.

¶2 Pharmacia’s appeal alleges numerous errors by the trial court, including improper application of Missouri law on the statute of repose and punitive damages; failure to instruct the jury on two defenses; erroneous admission of expert opinions on exposure, injury, and causation; and erroneous admission of injury to non-parties. Pharmacia also challenges the trial court’s determination that substantial evidence supported the liability verdicts and the denial of remittitur of the punitive damages awards.

¶3 We hold that when WPLA provides the applicable law on liability, WPLA’s statute of repose is not subject to a separate choice-of-law analysis because it is a claim-defining limitation on liability. We further hold that WPLA’s statute of repose does not violate the Washington Constitution’s privileges and immunities clause. Based on our conclusion that WPLA’s statute of repose applies and that it is constitutional, we remand to the trial court for further proceedings, including assessing whether Erickson's claims are subject to WPLA’s statute of repose.

¶4 We also address additional issues that are likely to recur in a new trial. As to choice of law on punitive damages, applying the "most significant relationship" test, we conclude that Missouri has the greater interest regarding allowing punitive damages for liability claims that are cognizable under its own products liability law. Thus, while the court properly may allow the jury to consider punitive damages, such damages cannot be awarded for claims not allowed under Missouri law, including, as relevant here, postsale failure to warn.

¶5 As to Pharmacia’s requested jury instruction related to whether the PCB-containing capacitor or the FLB that incorporated the capacitor was the relevant product, rather than PCBs, we hold that the court properly declined to give this instruction. A WPLA claim does not require proof of product failure. And because the Washington Supreme Court has rejected the "sophisticated purchaser" defense to product liability, the trial court properly denied that instruction as well.

¶6 Regarding Pharmacia’s challenges to admission of expert testimony, we conclude that industrial hygienist Kevin Coghlan’s expert testimony that calculated the historical levels of PCBs at SVEC by using methodologies he developed based on data from two other studies was novel and should have been excluded under Frye.² However, the trial court properly allowed Coghlan to testify about direct comparisons with data from the study of New York schools. The trial court also properly allowed the testimony of neuropsychologist Dr. Perrillo regarding causation of plaintiffs’ injuries, as he was qualified as an expert and his testimony met the standards of ER 702. The court also properly allowed toxicologist Dr. James Dahlgren to testify as an expert on causation, except to the extent his testimony relied on any inadmissible testimony by Coghlan about historical PCB levels.

¶7 Further, the admission of evidence of nonparty harms through Dr. Perrillo and Dr. Mahoney’s expert testimony was not an abuse of discretion. Information about other people’s illnesses was not admitted as substantive evidence, but as the basis for their opinions, and it was of the type reasonably relied upon by such experts. Lay witness testimony was limited to personal observations of others at the school being ill, not causation. This lay testimony was also properly admitted.

¶8 Because we conclude that WPLA’s statute of repose applies to claims brought under WPLA, rather than Missouri law, which has no statute of repose, we must reverse the jury verdict and remand for further proceedings.

FACTS

I. Polychlorinated Biphenyls

¶9 In 1929, the Swann Chemical Company invented a family of chemicals called polychlorinated biphenyls (PCBs). PCBs are formed by adding chlorine atoms to benzene rings. Adding different numbers of chlorine atoms to various locations on the benzene rings creates individual types of PCBs, called congeners. Scientists have made 209 individual PCB congeners. Congeners with more added chlorine, considered "heavier," were used as plasticizers to keep certain materials, such as caulk and paint, from becoming brittle. The lighter chlorinated PCBs were used as dielectric fluid in transformers and capacitors.

¶10 Capacitors are used in small electrical devices, such as fluorescent lights. Capacitors in a fluorescent light ballast help start the light and smooth out the voltage cycling to reduce flickering. Prior to PCBs, electrical equipment relied on mineral oil that had a potential risk of explosion and fire. PCBs are chemically very stable and do not burn. As a result, electrical companies such as General Electric (GE) quickly adopted the use of these non-flammable PCBs as the electric fluid in transformers and capacitors, in place of mineral oil. PCB use in capacitors and transformers led to a considerable reduction in the potential for fires. GE obtained a patent for these uses in 1933. The World Almanac designated the discovery of PCBs, and its application in electrical equipment, as one of the world’s greatest inventions and scientific discoveries.

II. Monsanto’s PCB Business

¶11 In 1935, Monsanto Company, with its principal place of business in St. Louis, Missouri, purchased Swann and began selling PCBs under the name Aroclor. Monsanto commissioned toxicity studies of PCB from the 1930’s to the 1960’s and shared the results with its customers and potential customers. By 1943, Monsanto had entered into an agreement with the U.S. Public Health Service to include on its bills of sales for PCBs that any products including PCBs must include a warning to "avoid repeated contact with the skin and inhalation of the fumes and dusts." However, by 1952, Monsanto bills of sales did not include this language, because their customers, manufacturers of products that included PCBs, would not like being told they had to put such a warning label on their products.

¶12 In late 1966, scientists warned that heavier chlorinated PCBs were remaining in the environment rather than biodegrading or metabolizing. Monsanto provided PCB samples for research and notified its major customers. By 1969, Monsanto had developed a plan to address the environmental concerns, which included warning its customers, ceasing production of these heavier chlorinated congeners, and buying back millions of pounds of PCBs for safe incineration. Monsanto also provided its distributors with suggested warnings to provide their customers in order to distribute the information down the supply chain, including electrical customers such as GE and Westinghouse.

¶13 By 1970, Monsanto decided to begin phasing out production of higher chlorinated congeners. GE became concerned the compa- ny would also cease production of the lower chlorinated PCBs used in electrical applications, and in early 1970, GE met with Monsanto to advocate for continued manufacture of these PCBs because they had no comparable replacement in this application. In 1973, Monsanto informed the government that it would sell PCBs to the electrical industry only for use in closed systems as dielectric fluid in transformers and capacitors. In 1975, Monsanto announced it would voluntarily cease all PCB production and sales and exited the PCB business in 1977. The Environmental Protection Agency (EPA) banned the manufacture of PCBs in 1979. After that time, newly manufactured electrical products could not contain PCBs. PCBs have since been banned in every country. However, PCB-containing light ballasts...