IADC Amicus brief program.

The International Association of Defense Counsel has an active amicus curiae program, submitting briefs on issues of importance to IADC members and their clients. Through its amicus participation, the IADC has helped shape the law surrounding product liability, arbitration, class actions, attorney client privilege, punitive damages, civil discovery, standing, jurisdiction, and tort reform. This section of the Defense Counsel Journal is dedicated to highlighting recent amicus briefs so that the Journal's readers can benefit from the insights presented therein.

In its brief in Haver v. BNSF Railway Company, 175 Cal.Rptr.3d 810 (Cal. 2014) and its companion case Kesner v. S.C. (Pneumo Abex LLC), 175 Cal.Rptr.3d 810 (Cal 2014), the International dissociation of Defense Counsel, together with the Federation of Defense & Corporate Counsel, filed briefi to determine the existence and scope of a duty of premises owners and employers to those exposed to asbestos through particles carried on the clothing of its employees. The briefs were authored by IADC member and Amicus Committee Chair M. C. Sungaila of Haynes and Boone, LLP.

The majority of states that have considered the question ofliability for take-home asbestos have determined that the law does not impose a duty to protect against such exposure, citing the burden it would place on employers and the community as a result of claims filed by a potentially limitless pool of plaintiffs. In its brief in Haver, the IADC urged the California Supreme Court to reject recognition of a duty extending from employers to nonemployee plaintiff in take-home exposure asbestos cases such as these based on two additional policy concerns beyond those briefed by the parties: the intersection between the state's already burgeoning asbestos docket and the state court budget crisis, which together could significantly limit access to justice.

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

Joshua Haver, individually and as successor-in-interest to Lynne Haver, deceased, et al.,

Plaintiffs, Appellants and Petitioners,

v.

BNSF Railway Company,

Defendant and Respondent.

After a Decision by the Court of Appeal, Second Appellate District, Case No. B246527

Los Angeles County Superior Court, Case No. BC435551 The Honorable Richard Rico

APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF OF INTERNATIONAL ASSOCIATION OF DEFENSE COUNSEL AND FEDERATION OF DEFENSE & CORPORATE COUNSEL IN SUPPORT OF DEFENDANT AND RESPONDENT BNSF RAILWAY COMPANY

Snell & Wilmer L.L.P.

Mary-Christine Sungaila (#156795)

Jenny Hua (#294984)

600 Anton Boulevard, Suite 1400

Costa Mesa, California 92626

Tel: 714-427-7000 * Fax: 714-427-7799

mcsungaila@swlaw.com

Attorneys for Amici Curiae International Association of Defense Counsel and Federation of Defense & Corporate Counsel

TABLE OF CONTENTS TABLE OF AUTHORITIES APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF INTEREST OF AMICI CURIAE; HOW THE AMICI CURIAE BRIEF WILL ASSIST THE COURT NO PARTY OR COUNSEL FOR A PARTY AUTHORED OR CONTRIBUTED TO THIS BRIEF CONCLUSION AMICI CURIAE BRIEF OF INTERNATIONAL ASSOCIATION OF DEFENSE COUNSEL AND FEDERATION OF DEFENSE & CORPORATE COUNSEL IN SUPPORT OF DEFENDANT AND RESPONDENT BNSF RAILWAY COMPANY. INTRODUCTION. LEGAL DISCUSSION I Additional Public Policy Considerations Weigh in Favor of Finding No Duty in Take-Home Asbestos Cases A. Public Policy and the Rowland Factors. B. The Impact on the Courts and the Community from an Even More Greatly Expanded Asbestos Docket Favors Declining to Impose a Broader Duty. 1. The lingering burden of asbestos litigation in the court system 2. California courts' unprecedented budget cuts. CONCLUSION CERTIFICATE OF WORD COUNT TABLE OF AUTHORITIES CASES Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591 Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 Hamilton v. Beretta U.S.A. Corp. (N.Y. 2001) 750 N.E.2d 1055 In re Combustion Eng'g, Inc. (3d Cir. 2005) 391 F.3d 190 In re New York City Asbestos Litig. (Holdampf v. A.C.&S., Inc.) (N.Y. 2005) 840 N.E.2d 115 Oddone v. Superior Court (2009) 179 Cal.App.4th 813 Rowland v. Christian (1968) 69 Cal.2d 108 OTHER AUTHORITIES Anderson & Martin, The Asbestos Litigation System in the San Francisco Bay Area: A Paradigm of the National Asbestos Litigation Crisis (2004) 45 Santa Clara L. Rev. 1 Behrens, What's New in Asbestos Litigation? (2009) 28 Rev. Litig. 501 Behrens, et al., Asbestos Litigation Magnet' Courts Alter Procedures: More Changes on the Horizon, Mealey's Litigation Report: Asbestos (May 16, 2012) Vol. 27, #8 California Bar Journal, Closed Courthouses in California (November 2014) Carroll et al., Asbestos Litigation (RAND Institute for Civil Justice, 2005) TABLE OF AUTHORITIES Case Management Order (Cal. Super. Ct. S.F. Cnty. June 29, 2012) In re Complex Asbestos Litig., No. GC-84-828684 Chiantelli, Judicial Efficiency in Asbestos Litigation (2003) 31 Pepperdine L. Rev. 171 Congressional Budget Office, Cost Estimate: S. 1125 Fairness in Asbestos Injury Resolution Act (October 2003) Corriere, Improving Asbestos Case Management in the Superior Court of San Francisco (November 2010) DataPoints: Business Intelligence for the California Judicial Branch Dolan, New California Budget Fails to Ease Court Woes, Chief Justice Says, Los Angeles Times (June 20, 2014) Fielding, Plaintiffs' Lawyers Turn to L.A. Courts for Asbestos Litigation, Daily J. (L.A.), (Feb. 27, 2009) Hanlon & Smetak, Asbestos Changes (2007) 62 N.Y.U. Ann. Surv. Am. L. 525 Henderson & Twerski, Asbestos Litigation Gone Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, and Medical Monitoring (2002) 53 S. C. L. Rev. 815 Judges Roundtable: Where Is California Asbestos Litigation Heading?, Harris Martin's Columns-Asbestos (July 2004) Judicial Conference Ad Hoc Comm, on Asbestos Litig., Report to The Chief Justice of the United States Supreme Court and Members of the Judicial Conference of the United States (1991) Judicial Council of California Workload Assessment Advisory Committee, The Need for New Judgeships in the Superior Courts: 2014 Update of the Judicial Needs Assessment (November 2014) McCarthy, Budget Cuts Hit Home (August 2011) California Bar Journal Mintz, California Courts Get Funding Boost in Gov. Brown's Budget, San Jose Mercury News (Jan. 9, 2015) Pollack & Ghanaat, California Asbestos Law Update (August 2011) Wasserman et al., Asbestos Litigation in California: Can it Change for the Better? (2007) 34 Pepperdine L. Rev. 883 Welch, Center to Protect Workers' Rights, in testimony before the...