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Preview: LexisNexis® Mealey's™ Asbestos Legal News

LexisNexis® Mealey's™ Asbestos Legal News



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Court: Jury Properly Tasked With Determining 'Consumer' Of Asbestos Fibers
LOS ANGELES - A pipe manufacturer and its employees can properly be considered the ordinary consumers of asbestos fibers supplied for the use in the employer's product, a California appeals court held Dec. 21 (David Baeza, et al. v. Special Electric Company Inc., No. B264220, Calif. App., 2nd Dist., Div. 4; 2016 Cal. App. Unpub. LEXIS 9178).



Asbestos Plaintiffs Urge 3rd Circuit To Reject Bare-Metal Defense
PHILADELPHIA - The entire bare-metal defense relies on a misreading of an appellate opinion that did not even involve negligence claims and should be rejected, plaintiffs told the Third Circuit U.S. Court of Appeals on Dec. 20 (Roberta G. DeVries, et al. v. Buffalo Pumps Inc., et al., No. 16-2602, Shirley McAfee, et al. v. Ingersoll-Rand & Co., No. 16-2669, 3rd Cir.).



New York Justice: Chef May Rely On Cumulative Asbestos Exposure Causation Opinion
NEW YORK - An expert need not offer quantitatively precise descriptions of asbestos exposure to render causation opinions, a New York justice held Dec. 21 in allowing an expert's testimony that cumulative exposures to asbestos from commercial kitchen equipment substantially contributed to a chef's mesothelioma (In re New York City Asbestos Litigation, Dario Battistoni v. Aerco International Inc., No. 190103/2015, N.Y. Sup., New York Co.; 2016 N.Y. Misc. LEXIS 4775).



Court Affirms Asbestos Verdict Where Jury Heard About 'Drive-By Screenings'
NEW ORLEANS - A judge did not err in admitting an advertisement related to asbestos screenings, closing comments about "drive-by screenings" or in allowing pictures of clinic where the plaintiff went for a diagnosis, a Louisiana appeals court held Dec. 21 (Dan Freeman v. Phillips 66 Co., et al., No. 2016-CA-0247, La. App., 4th Cir.; 2017 U.S. Dist. LEXIS 89).



Companies Tell 7th Circuit Patent, Take-Home Asbestos Claims Must Fail
MADISON, Wis. - Workers' compensation law precludes employees' tort actions alleging asbestos exposure at home, and claims based on licensing a patent ask a court to completely misapply patent law, two companies told the Seventh Circuit U.S. Court of Appeals on Dec. 12 (Janet Pecher, et al. v. Owens-Illinois Inc., No. 16-1799, Dianne Jacobs, et al. v. Rapid American and Weyerhaeuser Co. and Owens-Illinois Inc., No. 16-2376, Katrina Masephol v. Weyerhaeuser Co., et al., No. 16-2377, Robert Sydow, et al. v. Owens-Illinois Inc., No. 16-2378, Kathy Boyer v. Owens-Illinois Inc., No. 16-2379, Janice Seehafer v. Weyerhaeuser Co., et al., No. 16-2380., 7th Cir.).



Company Says No Need To Reinvent Wheel On Successor Liability
WAUSAU, Wis. - Wisconsin courts need not turn to unfair transfer law because successor liability law already includes a fraudulent transfer analysis baked in, defendant companies told the Wisconsin Supreme Court Dec. 22 in urging it to extinguish its liability for a predecessor's asbestos activities (Penny L. Springer v. Nohl Electric Products Corp., et al., No. 2015AP000829, Wis. Sup.).



Judge: Nonmalignant Claims Fall To Bankruptcy Court; Later Cancer Claims Proceed
PHILADELPHIA - While there was no bad faith in a man's failure to disclose a nonmalignant asbestos action in two personal bankruptcies, the bankruptcy trustees are the tort action's rightful owners; but a claim arising from a later diagnosed colon cancer is properly before the court, a federal judge in Pennsylvania held Dec. 16 in denying ship owners' motions for summary judgment (Willard E. Bartel (Administrator for the estate of William A. Lawrence), et al. v. A-C Product Liability Trust, et al., No. MDL 875, 11-45628, E.D. Pa.; 2016 U.S. Dist. LEXIS 174817).



Judge Improperly Granted Judgment, Rejected Amendment, Woman Claims In Appeal
MADISON, Wis. - A judge erred both in rejecting a motion to amend or add findings to a ruling and in the original order granting judgment to an asbestos-insulation manufacturer after a bench trial, a woman claims in Dec. 19 filing with the Seventh Circuit U.S. Court of Appeals (Gary Souja, et al. v. Owens-Illinois Inc., No. 16-4177, 7th Cir.).



Federal Judge Finds Submarines' Construction Doesn't Warrant Maritime Law
WILMINGTON, Del. - Submarines under construction are not vessels under maritime law, a federal judge in Delaware held Dec. 30 in finding that Connecticut law applies to the asbestos case (Ralph Elliott Shaw and Joan Sanderson Shaw v. Andritz Inc., et al., No. 15-725, D. Del. 2016 U.S. Dist. LEXIS 180137).



Federal Magistrate Judge Finds No Evidence Exposures Were Substantial Cause
WILMINGTON, Del. - A federal magistrate judge in Delaware recommended granting four motions for summary judgment, saying Dec. 30 the plaintiffs, who had not responded, failed to show that exposure to the products in question were a substantial factor in the man's mesothelioma (In re: Asbestos Litigation, Charlevoix, et al. v. CBS Corp., et al., No. 15-726, D. Del.; 2016 U.S. Dist. LEXIS 180138).



Beneficiaries May Pursue Jones Act Survival Claim, Asbestos MDL Judge Rules
PHILADELPHIA - Surviving beneficiaries of a Merchant Marine's Jones Act survival action originally filed in 1989 should not be penalized simply because the court lacked the resources to quickly resolve asbestos cases, a federal judge in Pennsylvania held Jan. 6 (Creighton E. Miller (administrator for estate of Joseph F. Braun v. Manville Corporation Asbestos Disease Compensation Fund, et al., No. MDL 875, 11-33896, E.D. Pa.; 2017 U.S. Dist. LEXIS 1975).



Judge Finds Asbestos Complaint Overly Broad, But Allows Plaintiff Chance At Remedy
BALTIMORE - "Formulaic" allegations of asbestos exposure failing to distinguish between defendants or time periods fall short of pleading standards, but the plaintiff may amend in an effort to cure the deficiencies, a federal judge in Maryland held Jan. 3 (Esther Rhodes, et al. v. MCIC Inc., et al., No. 16-2459, D. Md.; 2017 U.S. Dist. LEXIS 89).



3rd Circuit Approves Of Future Asbestos Cancer Release In FELA Case
PHILADELPHIA - A Federal Employers' Liability Act (FELA) release properly included future asbestos-related cancer claims based on evidence that both parties understood it as a "known risk," a Third Circuit U.S. Court of Appeals panel held Dec. 16 in affirming dismissal of a lung cancer case (James S. Collier, Mary Elizabeth Collier, H/W v. CSX Transportation Inc., No. 16-1999, 3rd Cir.; 2016 U.S. App. LEXIS 22464).



FELA Asbestosis Settlement Doesn't Preclude Later Cancer Claim, Ohio Court Says
CLEVELAND - A Federal Employers' Liability Act (FELA) settlement involving nonmalignant asbestos disease improperly attempted to extinguish future claims and does not bar a man's lung cancer action, an Ohio appeals court held Dec. 22 (Richard C. Arpin v. Consolidated Rail Corp., et al., No. 104279, Ohio App., 8th Dist.; 2016 Ohio App. LEXIS 5168).



Judge: Navy Specifications Keep Asbestos Case In Florida Federal Court
TAMPA, Fla. - Evidence that a company complied with the U.S. Navy's precise specifications for products it ordered from private contractors keeps an asbestos case in federal court, a federal judge in Florida held Dec. 27 (Marc Killam v. Air & Liquid Systems Inc., et al., No. 16-2915, M.D. Fla.; 2016 U.S. Dist. LEXIS 178637).



Government Contractor Defense Change Leads 4th Circuit To Vacate Remand Ruling
RICHMOND, Va. - An intervening understanding of how the circuit applies the government contractor defense to failure-to-warn cases requires vacating a remand order, a Fourth Circuit U.S. Court of Appeals panel held Dec. 21 (Charles and Louise Brinkman v. General Dynamics Corp., Electric Boat Corp., et al., No. 15-1752, 4th Cir.; 2016 U.S. App. LEXIS 22907).



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Jury Hands Talc Maker Defense Verdict In Asbestos Case
LOS ANGELES - A California jury hearing an asbestos-tainted talc case returned a defense verdict for Colgate-Palmolive Co. on Nov. 29, according to the court's docket (Anna Blount v. Colgate-Palmolive Co., et al., No. BC617806, Calif. Super., Los Angeles Co.).



Divided Arkansas High Court: Workers' Comp Exclusivity Bars Asbestos Tort Action
LITTLE ROCK, Ark. - Because the state's workers' compensation system contemplates coverage for mesothelioma, the law's exclusivity provision bars a tort action against an employer, even where the disease arose outside the period for filing a claim, the Arkansas Supreme Court held Dec. 15 in a 4-3 opinion (Brenda Hendrix, et al. v. Alcoa Inc., No. CV-15-558, Ark. Sup.).



Connecticut Top Court Finds Workers' Comp Court Can Reinstate Dismissed Claims
NEW HAVEN, Conn. - The complexity of asbestos cases requires that the workers' compensation commissioner have the power to grant provisional dismissals to "clear the room" and then reinstate claims as necessary, Connecticut's top court held in an opinion set for release on Dec. 20 (John Graham, et al. v. Olson Wood Associates Inc., et al., No. SC 19626, Conn. Sup.; 2016 Conn. LEXIS 371).



Mississippi Court: FELA Award Not Subject To Offsets For Asbestos Trust Recoveries
JACKSON, Miss. - A railroad cannot offset a $50,000 Federal Employers' Liability Act (FELA) asbestos verdict with monies collected from asbestos bankruptcy trusts, a divided Mississippi Court of Appeals held Dec. 13 (Illinois Central Railroad Co. v. Bennie Oakes, deceased, by and through Clara Hagan, his representative, No. 2015-CA-00644-COA, Miss. App.).



Court Reinstates Case Involving Mechanic's Asbestos-Brake Exposure
LOS ANGELES - Evidence that a mechanic frequently worked on Ford Motor Co. vehicles and that Ford fitted many of those vehicles with a defendant's asbestos-containing brakes during the time in question raises triable issues, a California appeals court held Dec. 7 in reversing summary judgment (LAOSD Asbestos Cases, Sharon Linsowe, et al. v. BorgWarner Morse Tec Inc., et al., No. B263726, Calif. App., 2nd Dist.; 2016 Cal. App. Unpub. LEXIS 8764).



Widow: Courts Properly Relied On Transfer Law In Asbestos Liability Case
WAUSAU, Wis. - Lacking clear guidance on what constitutes a fraudulent effort to avoid asbestos liabilities, a judge and court did not err in relying on a related law, a widow told the Wisconsin Supreme Court on Dec. 8 (Penny L. Springer v. Nohl Electric Products Corp., et al., No. 2015AP000829, Wis. Sup.).



Widow Defends Admission Of, Testimony From Co-Workers After $4M Asbestos Verdict
ST. LOUIS - A judge properly admitted, and a jury reasonably relied upon, co-worker testimony regarding the work conditions in specific buildings in hitting an asbestos-wire maker with a more than $4 million verdict and 5 percent liability, a widow told a Missouri court on Nov. 21 (Jean Urbach v. The Okonite Co., No. ED104393, Mo. App.; 2016 MO App. Ct. Briefs LEXIS 1005).



Maryland Judge Dismisses Negligence Suit Against Asbestos Manufacturer
BALTIMORE - A Maryland judge on Nov. 16 granted a defense motion for summary judgment and dismissed a suit claiming that five workers were never warned that smoking cigarettes while working with asbestos can lead to lung cancer (James Harrell, et al. v. ACandS Inc., et al., No. 24X16000053, Md. Cir., Baltimore Co.).



Special Master Keeps Asbestos Talc Case In City's In Extremis Docket
NEW YORK - Despite lacking any identifiable exposures in New York City, a woman's asbestos case now involving only talc defendants may proceed in the court's in extremis docket, a New York special master ruled Dec. 5 (Leslie Fogel and Catherine Fogel v. American International Industries for Clubman, et al., No. 190093/2016, N.Y. Sup., New York Co.).



Federal Judge: Registration, Illinois Contacts Insufficient For Jurisdiction
BENTON, Ill. - Neither a company's registration to do business in a state nor its employment of individuals in the state rises to the levels required for jurisdiction, a federal judge in Illinois held in dismissing an asbestos action on Dec. 2 (Sylvia Perez, et al. v. Air And Liquid Systems Corp., et al., No. 16-842, S.D. Ill.; 2016 U.S. Dist. LEXIS 166645).



Judge Orders Removing Defendant To Support Jurisdiction
NEW HAVEN, Conn. - A federal judge in Connecticut on Dec. 8 told a removing defendant it must state its place of incorporation or the citizenship of the appropriate party to the suit. Counsel for the plaintiff asked the judge to stay the case on the same day, citing the death of the plaintiff and impending motion to substitute (James Schmidt v. Case Corp., f/k/a Case Equipment Corp., No. 16-1995, D. Conn.).



Asbestos Firm Fights Insurers' Injunction Request Over Reimbursements
GALVESTON, Texas - Insurers claiming that asbestos lawyers knowingly assisted clients in avoiding reimbursement provisions in health insurance contracts have now shown that the individuals in question were insured by the plaintiffs, what types of coverage they participated in or what settlements they recovered, a law firm told a federal judge in Texas on Nov. 23 in urging him to deny a preliminary injunction (Humana Inc., et al. v. Brent W. Coon P.C., a/k/a Brent Coon & Associates, et al., No. 16-240, S.D. Texas).



Company Urges Reversal Of Severing, Remand Of Asbestos Claims
BALTIMORE - A federal judge ignored judicial economy, comity and fairness considerations in severing and remanding asbestos claims while retaining jurisdiction over contribution claims, a company tells the Fourth Circuit U.S. Court of Appeals in a Dec. 1 brief urging de novo review (Wayne Oliver v. Campbell-McCormick Inc., No. 16-1895, 4th Cir.).



Judge: Asbestos Document Request Overly Broad, But Some Production Warranted
PHILADELPHIA - A company's failure to comply with a state court motion to compel does not warrant sanctions because the request is overly broad, but going forward, the company must produce documents relevant to product identification testimony in an asbestos case, a federal magistrate judge in Pennsylvania held Dec. 6 (William Ney, et al. v. Owens-Illinois Inc., et al., No. 16-2408, E.D. Pa.; 2016 U.S. Dist. LEXIS 169371).



Canada Announces 2018 Deadline For Asbestos Ban
OTTAWA - Canada will ban the use of asbestos products by 2018, Canadian Science Minister Kirsty Duncan announced Dec. 15.



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California High Court Finds Duty To Prevent Household Asbestos Exposures
SACRAMENTO, Calif. - California imposes a duty on employers and premises owners to prevent reasonably foreseeable asbestos exposures to household members, the state Supreme Court held Dec. 1 (Johnny Blaine Kesner v. Superior Court of California for the County of Alameda, No. S219534, Haver v. BNSF, No. S219919, Calif. Sup.).



Georgia Top Court: Manufacturer Had No Duty To Warn Of Take-Home Exposures
ATLANTA - A manufacturer of asbestos-containing pipe had no duty to warn about the potential danger of take-home exposures, Georgia's top court held Nov. 30, while finding that such a duty would be impractical in practice and would unreasonably shift responsibility to the product user (CertainTeed Corp. v. Fletcher, No. S151903, Ga. Sup.).



Arizona High Court Asked To Take Up Asbestos Take-Home Exposure Case
PHOENIX - Arizona law would impose liability for take-home asbestos exposures, and the question is sufficiently important and unresolved for Arizona Supreme Court review, a woman told the court on Oct. 20 (Mary Quiroz, et al. v. Alcoa Inc., et al., No. 16-0248, Ariz. Sup.; 2016 AZ S. Ct. Briefs LEXIS 221).



Pa. Top Court Affirms Experts' Cumulative Exposure Testimony In $1M Asbestos Case
HARRISBURG, Pa. - Expert testimony that every dose of asbestos contributes to the cumulative total simply states accepted scientific fact and is not the type of "every exposure" testimony rejected by precedent, a divided Pennsylvania Supreme Court held Nov. 22 in affirming a nearly $1 million verdict (Richard Rost and Joyce Rost v. Ford Motor Co., No. 56 EAP 2014, Pa. Sup.).



Wire Maker To Mo. Court: $4.1M Asbestos Award Built On Speculative Lay Testimony
ST. LOUIS - A jury's $4.1 million asbestos wire verdict rests on inadmissible lay testimony of exposure from people who conceded that they never worked with the decedent, a company told a Missouri appeals court on Oct. 7 (Jean Urbach v. The Okonite Co., No. ED104393, Mo. App.; 2016 MO App. Ct. Briefs LEXIS 853).



Widow Tells Missouri Court Crane Co. Ignores Evidence In $11.5M Verdict Challenge
ST. LOUIS - Crane Co.'s appeal of a $11.5 million verdict ignores its role in the asbestos exposures and expert testimony that the decedent would have encountered up to a million fibers working with gaskets and packing on the company's valves, a widow tells a Missouri appeals court in a Nov. 9 brief (Jeanette G. Poage, et al. v. 3M Co., et al., No. ED 103953, Mo. App., Eastern Dist.).



Calif. Court Upholds Evidence, Instructions On Way To Affirming Asbestos Verdict
LOS ANGELES - Asbestos plaintiffs themselves introduced irrelevant contract provisions about which they now complain, and any error arising from improper jury instructions regarding an employer's duty did not prejudice them, a California appeals court held Nov. 22 (Kenneth Evans, et al. v. American Optical Corp., et al., No. B265222, Calif. App., 2nd Dist.).



Judge Rejects Tobacco Risk Assumption, Contribution Defenses In Asbestos Case
BALTIMORE - Knowledge regarding the link between tobacco and lung cancer or the synergistic effects of tobacco and asbestos on the disease were not widely enough known to support defendants' assumption of risk and contributory negligence defenses, a Maryland judge held Nov. 7 (In re: Baltimore City Asbestos Litigation, Henry Boston, et al. v. ACandS Inc., et al., No. 24-X-16000054, Md. Cir., Baltimore City).



Court: Government Contractor Defense Applies To Commercially Available Products
SAN FRANCISCO - The government contractor defense applies in a case involving commercially available insulation where the record shows that the U.S. Navy carefully weighed its options and essentially mandated the use of asbestos, a California appeals court held Nov. 22 (Gary Kase, et al. v. Metalclad Insulation Corp., No. A143590, Calif. App., 1st Dist.; 2016 Cal. App. LEXIS 1025).



Phoenix, Builders, Battle In Arizona Over Review Of Asbestos Liability Ruling
PHOENIX - The City of Phoenix asked Arizona's top court to accept review and reverse a holding freeing the "real wrongdoers" from the obligation to indemnify the government in an asbestos suit. A phalanx of third-party builders and developers told the court in response that the statute of repose clearly barred liability for conduct occurring almost five decades ago and that there was nothing remarkable about the case that required intervention (City of Phoenix v. Glenayre Electronics Inc., et al., No. 1 CA-CV 14-0739, Ariz. App.; 2016 Ariz. App. LEXIS 88).



Pennsylvania High Court Dismisses Asbestos Appeal Over Dangerous Product Question
HARRISBURG, Pa. - The Pennsylvania Supreme Court on Nov. 22 dismissed as improvidently granted an appeal challenging whether a judge or jury properly decides if the lack of warnings on a product renders the product unreasonably dangerous (Thomas Amato and Jean Amato v. Bell & Gossett, et al., No. 5 EAP 2016, Charlotte Vinciguerra, et al. v. Bayer Cropscience Inc., et al., No. 4 EAP 2016, Pa. Sup.).



3rd Circuit: Judge's Standard Too Strict In Remanding Boeing Asbestos Case
PHILADELPHIA - Federal contractors must only present a colorable federal defense for removal and are not subject to a special standard requiring that they prove their case to prevail against a motion to remand, a Third Circuit U.S. Court of Appeals panel held Nov. 22 (Steven Papp, et al. v. Fore-Kast Sales Co. Inc., et al., No. 15-2851, 3rd Cir.; 2016 U.S. App. LEXIS 20924).



9th Circuit Again Declines To Stay Remand While It Considers Asbestos Challenge
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Nov. 28 once again declined to stay a case while it considers the propriety of a remand order; it is the third time a court denied the company's request for such relief (Velma Searcy v. 3M Co. and Hexcel Corp., No. 16-56034, 9th Cir.).



Judge Finds Affidavits Filed In Other Cases, Courts Support Removal
BENTON, Ill. - Affidavits filed in other cases and courts are sufficient for removal of an asbestos case, a federal judge in Illinois held Nov. 30 (Sylvia Perez, et al. v. Air And Liquid Systems Corp., et al., No. 16-842, S.D. Ill.; 2016 U.S. Dist. LEXIS 165279).



Judge Dismisses Case, Finds Personal Jurisdiction Lacking In Asbestos Action
NEW ORLEANS - A company's uncontested evidence that it had no contacts in Louisiana overcomes conclusory statements and suffices for a finding that a court lacks personal jurisdiction over it, a federal judge in Louisiana held Nov. 30 (Breck Williams, et al. v. Rust Engineering & Construction Co., et al., No. 16-13136, E.D. La.; 2016 U.S. Dist. LEXIS 165012).



West Virginia High Court Upholds Death Benefits Denial In Face Of Other Causes
CHARLESTON, W.Va. - A man's history of tobacco use and myriad medical conditions adequately supports a decision that his death arose from them and not occupational asbestos injury even though a court previously granted him benefits, the West Virginia Supreme Court of Appeals held Nov. 29 (Pearl Vincent, widow of Fonzo Vincent v. West Virginia Office of Insurance Commissioner and Upshur Coals Corp., No. 16-0083, W.Va. Sup. App.; 2016 W. Va. LEXIS 965).



Asbestos Attorney Fights Expert Testimony-Based Sanctions Ruling
SAN FRANCISCO - A judge conducted only a perfunctory and conclusory investigation before finding that counsel violated court orders in an effort to elicit expert testimony regarding chemotherapy's impact on kidney disease, yet the jury already knew about the connection and no ruling excluded the testimony, a sanctioned attorney told the Ninth Circuit U.S. Court of Appeals Nov. 23 (Barry Kelly and Molly Kelly v. CBS Corp., et al., No. 15-16457, 9th Cir.).



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