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Thomas Bockrath v. Aldrich Chemical

California Supreme Court reverses cancer case dismissal

Thomas Bockrath was one of several Hughes Aircraft employees who developed multiple myeloma that the Law Offices of Raphael Metzger is representing in toxic tort cases. Multiple myeloma is a rare cancer affecting the bone marrow and the blood. The disease afflicts only a few people per 100,000 each year. The average age of onset of the disease is 69. Only about 7% of multiple myeloma victims (about 1 in 500,000) are diagnosed with the disease under age 50.

Most of the Hughes Aircraft employees who developed this rare disease were diagnosed in their forties – which is quite extraordinary. The employees all worked for Hughes Aircraft Company for many years and were exposed to advanced composite materials, exotic new chemical products, and various organic and chlorinated solvents.

Multiple myeloma is unique among cancers of the blood-forming organs because it is a cancer of the plasma cells -- the cells that produce antibodies to combat offensive agents such as infectious organisms and toxic chemicals. Chemicals that damage these cells impair the body's ability to manufacture antibodies which maintain a well-functioning immune system. Therefore, all chemicals which inhibit the production of antibodies by these cells are likely contributing factors to the development of this rare cancer.

On behalf of the Hughes Aircraft employees who developed this disease so early in life, the Law Offices of Raphael Metzger sued numerous manufacturers of chemical products used in the aerospace industry, alleging that these products caused the workers to suffer carcinogenic, genotoxic, immunotoxic, and hemotoxic injuries.

The trial judge doubted that the cases could be proved, and dismissed three of them, finding that they failed to state a cause of action. While the cases were on appeal, Mr. Bockrath died from complications of multiple myeloma at the age of 49.

The California Court of Appeal reversed on two cases, finding that the complaints stated a cause of action. However, the Court of Appeal affirmed the dismissal of Mr. Bockrath's case, finding that certain allegations of the complaint and certain discovery responses of the plaintiff established that the case could not be proved. All parties petitioned the California Supreme Court for review, and the California Supreme Court granted review in all three cases.

On July 29, 1999, the California Supreme Court issued its opinion in Mr. Bockrath's case -- Bockrath v. Aldrich Chemical Company. In a unanimous decision, the Supreme Court reversed the trial court's dismissal of Mr. Bockrath's case, finding that he should be allowed to have his day in court. Unfortunately, Mr. Bockrath can no longer have his day in court, because of his death during the years it took to successfully appeal his case . However, his estate and his heirs will now be able to assert the same claims in a wrongful death case.

The Supreme Court based its decision on its opinion in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th, in which it addressed the proof of causation in occupational cancer cases.

In Rutherford, the Court held that a cancer victim must prove, to a reasonable degree of medical probability, based on competent expert testimony, that the exposure to the defendant's product was a substantial factor in increasing the plaintiff's risk of cancer. In Rutherford, the Supreme Court explained that a "substantial factor" standard is a relatively broad one, requiring only that the contribution of the individual cause be more than "negligible" or "theoretical."

The Court noted that it had established the substantial factor standard in Rutherford after the trial court had dismissed the cases of the Hughes Aircraft multiple myeloma victims. The court therefore decided that Mr. Bockrath should be allowed to amend his complaint to allege that his exposure to each of the products was a substantial factor in causing his cancer.

The Court also established the requirements for a cancer victim to plead causation in a case alleging occupational exposure to multiple toxic chemical products:
(1) Plaintiff must allege that he was exposed to each of the toxic materials claimed to have caused a specific illness....
(2) He must identify each product that allegedly caused the injury....
(3) He must allege that as a result of the exposure, the toxins entered his body.
(4) He must allege that he suffers from a specific illness, and that each toxin that entered his body was a substantial factor in bringing about, prolonging, or aggravating that illness.
(5) Finally, except in a case ... governed by the principle of liability based on market share for a uniform product ..., he must allege that each toxin he absorbed was manufactured or supplied by a named defendant.

The Court also held that Mr. Bockrath's responses to certain interrogatories did not warrant dismissal of his case. A number of defendants had asked Mr. Bockrath to state the precise mechanism by which he claimed his exposure to their products had caused his cancer. Mr. Bockrath responded that he was a physicist, not a medical toxicologist, and that he had no personal knowledge how defendants' products had caused his disease. The Court of Appeal deemed these responses to be admissions that Mr. Bockrath's case could not be proved. However, the Supreme Court agreed with the argument of Mr. Bockrath's attorneys that his discovery responses "in no way constituted an admission that expert medical testimony could not be provided to establish causation at trial." The Court considered Mr. Bockrath's answers to the interrogatories "irrelevant with regard to the objective mechanisms that allegedly caused his illness" and therefore reasoned that "invoking them against the complaint cannot succeed."

The unanimous decision of the Court is a victory for all workers who claim that they developed a cancer from concurrent occupational exposure to multiple chemical products. No longer will a judge be able to toss an occupational cancer case out of court simply because he or she doubts that the case can be proved! Cancer victims in California will now have an opportunity to proceed with their cases and to attempt to prove them at trial. The right of access to the courts and to a jury trial for cancer victims has now been clearly established by the highest court of the State of California!

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