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Preview: LexisNexis® Mealey's™ Asbestos Legal News

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Jury Awards $6.8 Million In 2nd Massachusetts Asbestos Trial
WOBURN, Mass. - For the second time in nine days, a Massachusetts jury on Sept. 29 handed down a multimillion asbestos verdict, this time handing $6.8 million to a widow who claims that her deceased husband suffered exposure while serving as a part-time insulator while in school (Amy Ross, et al. v. New England Insulation Co., et al., No. 13-5580, Mass. Super., Middlesex Co.).



Jury Hears Opening Arguments In 1st Asbestos-Talc Trial Against Johnson & Johnson
LOS ANGELES - Attorneys representing parties to the first asbestos-tainted talc case against Johnson & Johnson presented opening arguments Oct. 5 in the Los Angeles County Superior Court, arguing over what the testing says about the source of the talc used in the company's products and alternative sources of a woman's mesothelioma (Tina Herford, et al. v. AT&T Corp., et al., No. BC646315, Calif. Super., Los Angeles Co.).



3rd Circuit: Maritime Negligence Claims Survive Asbestos Bare-Metal Defense
PHILADELPHIA - The bare-metal defense does not bar asbestos negligence actions under maritime law's "bedrock principle" of protecting sailors, a Third Circuit U.S. Court of Appeals panel held Oct. 3 (In re: Asbestos Products Liability Litigation [No. VI], 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.).



Pennsylvania Judge Excludes Asbestos-Talc Experts As Unreliable
PHILADELPHIA - While portions of asbestos-talc experts' testimony regarding the presence of asbestos and causation may arise from generally accepted scientific methodology, they deviate enough from those methodologies to exclude their opinions, a Pennsylvania judge held Sept. 25 (Sally Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. December Term, 2015, 2987, Pa. Comm Pls., Philadelphia Co.).



Man Tells Ohio High Court Expert Testimony Meets Causation Standard
CLEVELAND - An expert's testimony that asbestos and tobacco use both substantially contributed to a man's lung cancer easily meets Ohio's causation standard and does not require review, a man argues to the Ohio Supreme Court in a Sept. 27 brief (Kevin E. Howell v. Consolidated Rail Corp., et al., No. 2017-1207, Ohio Sup.).



New York Court Affirms Brake-Grinding Maker's Liability, $9M Asbestos Award
NEW YORK - A manufacturer of brake-grinding machines had a duty to warn about the dangers the use of its machines with asbestos-containing brakes posed, a New York appellate court held Oct. 5 while also affirming a stipulated $9 million award (Walter Miller v. BMW of North America LLC, et al., No. 190087/2014, N.Y. Sup., New York Co.).



Employer Urges Court To Reconsider Asbestos Causation Waiver Finding
DALLAS - A "direct, rifle-shot complaint" and footnote incorporating earlier arguments preserved challenges to the jury's asbestos causation finding, an employer argues in a Sept. 28 motion asking a Texas appellate court for rehearing (The Goodyear Tire & Rubber Co. v. Vicki Lynn Rogers, et al., No. 05-15-00001-CV, Texas App., 5th Dist., 2017 Tex. App. LEXIS 8382).



Judge Finds Allegations Don't Put Asbestos Case Outside Workers' Comp Laws
ASHEVILLE, N.C. - Merely knowing of the presence of asbestos and its hazards is not enough to escape the state's workers' compensation exclusivity provision, a federal judge in North Carolina held Sept. 29 (Howard Milton Moore Jr., et al. v. Alcatel-Lucent USA Inc., et al., No. 16-157, W.D. N.C., 2017 U.S. Dist. LEXIS 162517).



N.Y. Court Won't Rehear Case After Rejecting Coke Oven Product Liability Claim
BUFFALO, N.Y. - A New York appeals court on Sept. 29 rejected a motion seeking reargument and declined a man's request for leave to further appeal a decision that a contract governing the construction of coke oven batteries involves materials, work and labor rather than a product for product liability purposes (In the matter of the Eighth Judicial District Asbestos Litigation, Donald J. Terwilliger, et al. v. Beazer East Inc., et al., No. 85 CA 16-00947, N.Y. Sup., App. Div., 4th Dist., 2017 N.Y. App. Div. LEXIS 6836).



Asbestos Defendant Fails In Bid For Appeal Of Ruling Denying Dismissal
ASHEVILLE, N.C. - A company unable to escape what it portrays as a "shotgun" asbestos complaint at the motion to dismiss stage has not shown that an interlocutory appeal is warranted or that it would help forward the litigation, a federal judge in North Carolina held Oct. 5 (Tommy Lineberger, et al. v. CBS Corp., et al., No. 16-390, W.D. N.C.).



Judge: Asbestos Defendant's Database Search Objections Unconvincing
SEATTLE - A company cannot avoid discovery from its database simply by claiming that the resulting search would be "incomprehensible," but a second company's claim that it has no responsive documents in an asbestos case ends any debate, a federal judge in Washington held Sept. 19 (William C. Blosser, et al. v. Ashcroft Inc., et al., No. 17-5243, W.D. Wash.).



Ohio Top Court Won't Weigh In On FELA Settlement's Impact On Lung Cancer Case
COLUMBUS, Ohio - The Ohio Supreme Court on Sept. 27 declined to review a state appellate court's ruling that a settlement resolving Federal Employers' Liability Act (FELA) asbestosis claims did not bar a subsequent lung cancer claim (Richard C. Arpin v. Consolidated Rail Corp., et al., No. 2017-0171, Ohio Sup.).



Companies Say Transcript, Not Deposition, Starts 'Other Paper' Removal Clock
BATON ROUGE, La. - The federal officer removal statute's plain language unambiguously supports a conclusion that receipt of a deposition transcript, and not the deposition itself, triggers the time period for removing an asbestos case, two companies told a federal appellate court in Sept. 6 and Sept. 11 briefs (Curtis D. Morgan v. Dow Chemical Co., et al., No. 17-30523, 5th Cir.).



Judge OKs Defendant's Pre-Service Removal Of Asbestos Action
NEW ORLEANS - A defendant's quick removal of an asbestos action precludes consideration of the forum of any unserved defendants, but is not the type of "snap removal" that is objectionable and absurd, a federal judge in Louisiana held Sept. 29 in denying remand (Margaret Leech, et la. V. 3M Co., et al., No. 17-446, E.D. La.).



Expert Index
PLAINTIFF



Considerations In Deciding To Seek, Or Not To Seek, Lone-Pine Orders In Mass Tort Litigation
By James M. Beck So-called "Lone Pine" orders are something of a hybrid litigation tool. Named after an unpublished New Jersey trial court opinion, Lore v. Lone Pine Corp.,1 such orders have become "a common trial management technique in toxic torts cases with multiple plaintiffs."2 "Lone Pine" has come to describe a variety of pretrial case management orders that "require plaintiffs to provide facts in support of their claims including by expert evidence or risk having their cases dismissed."3 Most commonly, they relieve "potential burdens on defendants and the court in mass tort litigation by requiring plaintiffs to produce some evidence to support a credible claim," such as "an affidavit from a qualified treating or other physician."4 The original Lone Pine order directed several hundred plaintiffs claiming injuries from environmental pollution to produce "sufficient information to establish the existence of a prima facie case."5 The Lone Pine court declared "that prior to the institution of such a cause of action, attorneys for plaintiffs must be prepared to substantiate, to a reasonable degree, the allegations of personal injury, property damage and proximate cause."6 Such a requirement is hardly onerous, as this kind of information "should have" been marshaled by plaintiffs even "before filing their claims."7



Massachusetts Jury Awards $7.55M In Asbestos-Insulation Case
WOBURN, Mass. - A Massachusetts jury on Sept. 20 found a company liable under negligence and breach of warranty claims for its installation of asbestos-containing insulation and awarded a couple $7.55 million for a man's resulting mesothelioma (Gerald and Marjorie Sylvestre v. New England Insulation Co., et al., No.15-7031, Mass. Super., Middlesex Co.).



New York Appellate Court Vacates Stay Of New York Asbestos Case Management Order
NEW YORK - A New York appellate court on Sept. 19 vacated the stay it issued in July that halted implementation of the hotly contested case management order (CMO) governing asbestos cases in New York City (In re: New York City Asbestos Litigation, All Asbestos Cases., No. 40000/1988 782000/2017, N.Y. Sup. App. Div., 1st Dept.)



6th Circuit Affirms Dismissal Of Ship Owners In Asbestos Cases
DETROIT - Dismissal for ship owners for lack of jurisdiction in thousands of Merchant Marine asbestos cases was proper, the Sixth Circuit U.S. Court of Appeals held Sept. 13 (Henry Kalama, et al. v. Matson Navigation Co. Inc., et al., No. 16-3408, 6th Cir., 2017 U.S. App. LEXIS 17931).



Maryland Court Agrees To Hear Asbestos Case Implicating Statute Of Repose
ANNAPOLIS, Md. - Maryland's top court on Sept. 12 agreed to decide if the state's statute of repose bars a woman's asbestos action involving exposure from insulation applied to a generator whose construction was completed in June 1970 (June Diane Duffy, et al. v. CBS Corp. et al., No. 41 September Term, 2017, Md. App.).



Judge: Jurisdiction, Timeliness Arguments Can't Free Employer From Asbestos Case
NEW YORK - An employer's operations in New York make jurisdiction there proper, and an amended complaint naming it as a defendant was timely filed, a federal judge held Sept. 20 (Kelan Unterberg v. ExxonMobil Oil Corp., et al., No. 14-10025, S.D. N.Y.; 2016 U.S. Dist. LEXIS 118586).



Judge Finds 2009 Judgment In Asbestosis Case Precludes Mesothelioma Claim
ST. LOUIS - An unopposed summary judgment in an asbestosis action bars a subsequent mesothelioma action involving the same exposures and naming the same defendant, a federal judge in Missouri held Sept. 11 (Diane MacCormack, et al. v. The Adel Wiggins Group, et al., No. 16-414, E.D. Mo., 2017 U.S. Dist. LEXIS 146392).



Judge Finds Evidence Lacking In Asbestos Case Against Joint Compound Maker
WILMINGTON, Del. - The record in an asbestos case does not support the conclusions regarding exposure a widow claims it does, a Delaware judge held Sept. 12 in granting summary judgment (In re: Asbestos Litigation, Thelma Lempert, et al. v. CertainTeed Corp., et al., No. N15C-05-221 ASB, Del. Super., 2017 Del. Super. LEXIS 452).



Family Tells Court Asbestos Release Shouldn't Bar Wrongful Death Claim
NEW ORLEANS - Family members mistakenly signed away asbestos wrongful death claims based on their father's attorney's misrepresentations, and the failure to hire their own counsel should not be considered inexcusable neglect, plaintiffs told the Fifth Circuit U.S. Court of Appeals Sept. 18 (Essie Lemieux, et al. v. American Optical Corp., No. 17-30346, 5th Cir.).



Couple: Tort Didn't Impact Bankruptcy, Lack Of Disclosure Shouldn't Bar Action
NEW YORK - Failing to disclose an asbestos claim that arose after confirmation and complete repayment under a bankruptcy plan is not the type of conduct that requires imposing judicial estoppel, a couple told the Second Circuit U.S. Court of Appeals Sept. 12 (John Clark, et al. v. AII Acquisition LLC, et al., No. 17-1727, 2nd Cir.).



Judge Concludes Man's Earlier Asbestosis Makes Mesothelioma Action Untimely
MINNEAPOLIS - Medical evidence suggests that a man knew of his asbestosis diagnosis before 2010, triggering the statute of limitations and barring a subsequent mesothelioma claim filed in 2016, a federal judge in Minnesota held Sept. 21 in granting summary judgment to five defendants (Marlin P. Filipek, et al. v. The Boeing Co., et al., No. 16-1998, D. Minn., 2017 U.S. Dist. LEXIS 154201).



Advocacy Group Wants Asbestos Experts Rejected, Asks Florida To Adopt Daubert
TALLAHASSEE, Fla. - The Florida Supreme Court should use an asbestos case to adopt the superior standard for reviewing evidence espoused in Daubert regardless of the constitutionality of the Legislature's attempt to do so and reject the opinion that any exposure to asbestos contributes to disease, an advocacy group told the court on Sept. 20 (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).



Ohio High Court Asked To Review Whether Expert Testimony Meets But-For Standard
CLEVELAND - Two railways and their insurer have asked Ohio's top court to stay an upcoming trial and reject the idea that expert testimony that tobacco and asbestos combined to substantially cause a man's lung cancer satisfies the state's but-for causation standard (Kevin E. Howell v. Consolidated Rail Corp., et al., No. 2017-1207, Ohio Sup.).



Ohio Court To Define 'Smoker,' Medical Report Status In Asbestos-Lung Cancer Case
COLUMBUS, Ohio - The Ohio Supreme Court on Sept. 13 agreed to decide whether the state requires a medical expert to weigh in on whether a lung cancer plaintiff qualifies as a "smoker" or whether the law simply requires those already recognized as smokers to submit an opinion regarding the role asbestos played in their disease (Bobby Turner, et al. v. Union Carbide Corp., et al., No. 17-0004, Ohio Sup.).



Federal Judge Affirms Contested Appointment Of Asbestos Discovery Master
NEWARK, N.J. - A federal judge in New Jersey on Sept. 21 cast aside defendants' concerns regarding a special master's ability to objectively oversee discovery in a case alleging that a company and its attorneys hid evidence of asbestos contamination of talc products from asbestos plaintiffs (Kimberlee Williams, et al. v. BASF Catalysts LLC., et al., No. 11-1754, D. N.J., 2017 U.S. Dist. LEXIS 154772).



Judge Finds No Justification For Asbestos Case's Removal, Awards $7,702.50
SEATTLE - After finding that a defendant lacked any reasonable basis for removing to federal court an asbestos case already remanded once, a federal judge in Washington awarded the plaintiff $7,702.50 (Geraldine Barabin, et al. v. AstenJohnson Inc., et al., No. 17-597, W.D. Wash.).



Shipyard, Family Of Asbestos Victim Square Off On Removal Standard
NEW ORLEANS - Plaintiffs have told the Fifth Circuit U.S. Court of Appeals that their case involves the negligence of a private company in mishandling asbestos and does not involve the U.S. Navy's requirement that asbestos be used. But in a July 27 reply, the shipyard defendant argue that under 2011 amendments to the federal code, such conduct is sufficiently associated with federal directives as to require removal (Stephen R. Legendre, et al. v. Huntington Ingalls Inc., et al., No. 17-30371, 5th Cir.).



Asbestos Plaintiffs Tell Court Little Question Company Controlled NASA Worksite
NEW ORLEANS - A company is simply unwilling to acknowledge that a man suffering from the asbestos-signature disease of mesothelioma but who never worked directly with the material must have been exposed at the NASA worksite for which the company was responsible, plaintiffs tell the Fifth Circuit U.S. Court of Appeals in an Aug. 31 brief (Tarsia Williams, et al. v. Boeing Co., No. 17-30230, 5th Cir.).



Judge Finds Delaware Lacks Jurisdiction Over Asbestos Case Against Power Company
WILMINGTON, Del. - An out-of-state power company that allegedly exposed a Connecticut resident to asbestos in that state during service in the U.S. Navy is not subject to personal jurisdiction in Delaware, a federal judge held Sept. 14 (In re: Asbestos Litigation, Michael R. Harding, et al. v. A.O. Smith Corp., et al., No. 17-251, D. Del., 2017 U.S. Dist. LEXIS 148776).



Judge Remands Asbestos Case After Dismissal Of Lone Federal Jurisdiction Defendant
NEW ORLEANS - A federal judge in Louisiana on Sept. 18 remanded a case, saying he would not exercise supplemental jurisdiction over state law asbestos claims after dismissal of the lone defendant giving rise to federal jurisdiction (Earl T. Lindsay Jr., et al. v. Ports America Gulfport Inc., et al., No. 17-6758, E.D. La.).



Split 9th Circuit Sends Row Over Lawyer's Trust Claims Ban Back To Trial Court
SAN FRANCISCO - A California federal court must decide on remand whether federal or state law controls - and whether a Ninth Circuit U.S. Court of Appeals decision impacts - two asbestos trusts' attempt to enforce a settlement under which an attorney agreed to stop filing claims with the trusts due to his pattern of presenting unreliable evidence, a divided Ninth Circuit panel held Aug. 14 (Michael J. Mandelbrot, et al. v. J.T. Thorpe Settlement Trust and Thorpe Insulation Company Asbestos Settlement Trust, No. 15-56430, 9th Cir., 2017 U.S. App. LEXIS 17924).



Expert Index
PLAINTIFF



John Crane Tells Court Errors In Asbestos Case Led To $3M Punitive Award
PORTLAND, Ore. - Evidentiary and other errors require a new trial in an asbestos case or, at the very least, require reversing a $3 million punitive damages award, John Crane Inc. told an Oregon court on Aug. 28 (Robert G. Sprague Jr., et al. v. A.W. Chesterton Co., et al., No. 15CV14771, Oregon Cir., Multnomah Co.).



Magistrate Judge Allows Punitive Damage Claim Against John Crane To Proceed
WILMINGTON, Del. - Seemingly contradictory corporate testimony regarding any steps a company took to prevent asbestos exposures, and evidence involving media and state laws detailing the dangers exposure presented warrant allowing a couple to pursue a punitive damages claim against John Crane Inc., a federal magistrate judge in Delaware recommended Aug. 30 (Icom Henry Evans, et al. v. Alfa Laval Inc., et al., No. 15-681 D. Del., 2017 U.S. Dist. LEXIS 139582).



Business Losses Are Earnings In Asbestos Case, Best Left To Jury, Judge Says
NEW ORLEANS - How much if any economic damage a business suffered from the asbestos-related death of its principal falls under the umbrella of earnings and is up to a jury, a federal judge in Louisiana held Aug. 22 (Martha Denmon Storer, et al. v. Crown Cork & Seal Company Inc., et al., No. 14-2488, W.D. La., 2017 U.S. Dist. LEXIS 135241).



7th Circuit Rejects Asbestos Expert's Cumulative Exposure Testimony
CHICAGO - Expert testimony that cumulative asbestos exposures causes disease is not significantly different than the opinion that every exposure causes a disease, a Seventh Circuit U.S. Court of Appeals panel held Aug. 31. The panel also found no prejudice from a defendant company's investigation into a juror (Charles Krik v. ExxonMobil Oil Corp., et al., No. 15-3112, 7th Cir., 2017 U.S. App. LEXIS 16795).



Florida Court Allows Cumulative Exposure Opinion, Affirms $9M Asbestos Verdict
MIAMI - A court properly admitted an expert's testimony that cumulative asbestos exposures were sufficient to cause a man's mesothelioma, a Florida appeals court held Sept. 6 in differentiating the testimony from the opinion that every exposure leads to disease and affirming a $9 million verdict (Northrop Grumman Systems Corp., et al. v. Rosa-Maria Britt, et al., No. 3D16-2583, Fla. App., 3rd Dist., 2017 Fla. App. LEXIS 12834).



Company: Talc Expert Can't Establish That Asbestos Tainted Specific Bottles
SAN FRANCISCO - A woman's evidence that tests on some bottles of talc revealed the presence of asbestos does not lead to the conclusion that the asbestos contaminated the specific bottles she used, a consumer products company told a California appeals court on Aug. 11 (Mary Lyons v. Colgate-Palmolive Co., No. A150567, Calif. App., 1st Dist.).



Court Affirms Exclusion Of Asbestos Product ID Testimony As Sanction
CLEVELAND - A trial judge properly excluded deposition testimony as a sanction for failing to update interrogatories to indicate potential drywall compound exposures the witnesses testified to in asbestos bankruptcy claim forms, an Ohio appeals court held Sept. 7 (Paul Heaton, et al. v. Ford Motor Co., et al., No. 104636, Ohio App., 8th Dist., 2017 Ohio App. LEXIS 3800).



Texas Court: Employer Liable For Asbestos Exposure, But Economic Award Too High
DALLAS - Generalized knowledge of the risk asbestos posed is sufficient to show that an employer acted with gross negligence in exposing an individual, a divided Texas appeals court held Aug. 30 in affirming a verdict but reducing the economic damages award (The Goodyear Tire & Rubber Co. v. Vicki Lynn Rogers, et al., No. 05-15-00001-CV, Texas App., 5th Dist., 2017 Tex. App. LEXIS 8382).



California Appeals Panel Affirms $3.75 Million Judgment Against Tobacco Company
LOS ANGELES - A California appellate court on Aug. 30 affirmed a $3.75 million verdict in a product defect and negligence suit against a tobacco company to the widow of a man who died from lung cancer after finding that the trial court did not err in excluding evidence of the man's exposure to asbestos (Tajie Major v. R.J. Reynolds Tobacco Co., No. B260355, Calif. App. 2nd Dist. 8th Div., 2017 Cal. App. LEXIS 749).



California Judge Improperly Applied 'But-For' Standard In Asbestos Case, Man Says
SAN FRANCISCO - A trial court improperly concluded that Kansas law applied to an asbestos case and then compounded the mistake by erroneously imposing an impossible to meet but-for causation standard, a mesothelioma sufferer told a California appeals court on July 31 (Gerald Hake v. Honeywell International Inc., No. A150366, Calif. App., 1st Dist.).



Landowners Not Liable For Asbestos Not Inherent To Premises, Judge Says
WILMINGTON, Del. - Landowners have a duty under Louisiana law to protect contractors only from hazards of which they have knowledge and that are inherent to their property, a Delaware judge held in granting summary judgment to three premises defendants Aug. 30 (Sandra Kivell, et al. v. Murphy Oil USA Inc., et al., No. N15C-07-093 ASB, Del. Super., New Castle Co.).



Affidavit Doesn't Establish Timeliness Of Asbestos Suit, Delaware Judge Says
WILMINGTON, Del. - An unsigned and unnotarized affidavit stating that a woman didn't learn of the potential asbestos connection to lung cancer until after her attorneys filed suit is insufficient evidence on which to deny summary judgment under the statute of limitations, a Delaware judge held Aug. 29 (Sherrie Bagwell, et al. v. BorgWarner Morse Tec LLC, et al., No. N14C-06-023 ASB, Del. Super., New Castle Co.).



Magistrate Judge: Bare Metal Defense Frees 5 Companies From Asbestos Case
WILMINGTON, Del. - A couple produces some evidence of exposure to products from named defendants but no evidence the products contained asbestos or that the work in question released asbestos, a federal magistrate judge in Delaware held Aug. 31 in applying the bare metal defense and recommending summary judgment for five companies (In re: Asbestos Litigation, Marilyn Charlevoix, et al. v. CBS Corp., et al., No. 15-726, D. Del., 2017 U.S. Dist. LEXIS 140328).



Judge Adopts Report Rejecting Challenges To Asbestos Pleadings, Jurisdiction
ASHEVILLE, N.C. - An asbestos defendant's argument that a plaintiff had not met the pleading standard imposes an overly restrictive reading of federal rules, and a second defendant relies on evidence outside the pleadings in attempting to challenge jurisdiction, a federal judge in North Carolina held Sept. 5 in adopting a pair of magistrate judge rulings (Tommy Lineberger, et al. v. CBS Corp., et al., No. 16-390, W.D. N.C.).



Virginia Top Court Applies 'Risk Of Harm' Analysis To FELA Asbestos Settlement
ROANOKE, Va. - A release precluding liability for future asbestos injuries contemplated by the parties does not violate Federal Employers' Liability Act (FELA), the Virginia Supreme Court held Aug. 31 in applying the risk-of-harm standard (Alan Barry Cole, et al. v. Norfolk Southern Railway Co., No. 161163, Va. Sup., 2017 Va. LEXIS 109).



Railroad Asks Mississippi High Court To Allow Setoff Of FELA Asbestos Verdict
JACKSON, Miss. - The Mississippi Supreme Court should follow federal common law and allow a defendant to offset a Federal Employers' Liability Act (FELA) asbestos-related lung cancer award with recoveries the plaintiff received from asbestos bankruptcy trusts, a railroad argues in a Sept. 5 supplemental brief (Illinois Central Railroad Co. v. Bennie Oakes, et al., No. 2015-TS-00644, Miss. Sup.).



New York Court Says Settlement Terms Don't Bar Mesothelioma Action
NEW YORK - A release signed in a previous tort action lists asbestos-related illnesses among the diseases for which the employee released his employer from liability, but the agreement's boilerplate language is not the type of carefully negotiated terms required to bar a subsequent lawsuit alleging mesothelioma, a majority of a New York appeals court held Aug. 29 (In re: New York City Asbestos Litigation, Anne M. South, etc. v. Chevron Corp., etc., et al., No. 4048 190029/15, N.Y. Sup., App. Div., 1st Dept.).



Citing U.S. Supreme Court, Judge Allows Discovery On Jurisdiction In Asbestos Case
WILMINGTON, Del. - Citing the recent changes to how courts handle jurisdiction wrought by the U.S. Supreme Court's Bristol-Myers Squibb Co. v. Superior Court of California ruling, a Delaware judge on Aug. 30 granted an asbestos plaintiff additional time to conduct discovery into the issue of personal jurisdiction over a Michigan company (Derry L. Middleton, et al. v. McCord Corp., et al., No. N14C-05-261 ASB, Del. Super., New Castle Co.).



Asbestos-Talc Evidence Destruction Spat Parties Continue Throwing Barbs
NEWARK, N.J. - Former asbestos plaintiffs adopted a frivolous interpretation of a discovery ruling in an effort to avoid required production, a talc company told a New Jersey federal judge on Aug. 30. In a Sept. 1 letter, the plaintiffs, who claim that they were defrauded into settling claims for far less than they were worth after the company used a carefully crafted record retention policy to destroy evidence of asbestos contamination of its talc, lamented that the defendant brought the judge into the dispute before allowing the parties or special discovery master to resolve it (Kimberlee Williams, et al. v. BASF Catalysts LLC., et al., No. 11-1754, D. N.J.).



Insured Seeks Coverage For $12.9M Asbestos Liability Verdict, Says Coverage Owed
LOS ANGELES - An insured claims in an Aug. 18 complaint filed in California state court that its insurers are required to indemnify it for an underlying $12.9 million jury verdict entered against it in an asbestos bodily injury and wrongful death suit (The Hillshire Brands Co., et al. v. Continental Casualty Co., et al., No. BC672967, Calif. Super., Los Angeles Co.).



Virgin Islands Judge Faults Defendants' Lack Of Staffing, Denies Sought-After Stay
ST. CROIX, Virgin Islands - The single counsel defending asbestos litigation performed admirably, but it is clear that the two defendants have not properly staffed the more than 120 cases, a judge in the Virgin Islands held Aug. 23 in largely denying a motion to continue a case for further discovery (In re: Asbestos, Catalyst, and Silica Toxic Dust Exposure Litigation, No. SX-15-CV-096, V.I. Super., St. Croix Div., 2017 V.I. LEXIS 135).



Delaware Judge Won't Consolidate For Trial Asbestos Cases Against Georgia-Pacific
WILMINGTON, Del. - A shared defendant and expert witness alone do not provide a sufficient nexus to warrant consolidated trial, a Delaware judge held Aug. 29 (In re Asbestos Litigation, Limited to: Craig Cantarano, Donald Gladu, Nos. N15C-10-30 ASB, N15C-09-093 ASB, Del. Super., New Castle Co., 2017 Del. Super. LEXIS 425).



3rd Circuit Affirms Asbestos Attorney's Overbilling Restitution Sentence
PHILADELPHIA - A lawyer who pleaded guilty to inserting his firm's clients as defendants and then billing them as if he represented them in the cases cannot contest a portion of his restitution sentence he claims was legitimately spent, the Third Circuit U.S. Court of Appeals held Aug. 29 (United States v. Arobert C. Tonagbanua, No. 17-1815, 3rd Cir., 2017 U.S. App. LEXIS 16506).



Attorney: Revive Case Seeking To Unseal Asbestos Client-Coaching Deposition
DALLAS - A motion seeking to unseal Russell Budd's 1997 deposition involving a memo allegedly showing his law firm coaching clients for their own depositions should proceed to a ruling on the merits, an attorney told a Texas appeals court on Sept. 5 (Christine Cole Biederman v. Beverly Jean Brown, et al., No. 01-07-00263-CV, Texas App., 1st Dist.).



Alabama Court Reinstates Class Action Over Asbestos Attorneys' Compensation
MONTGOMERY, Ala. - A judge improperly concluded that ambiguity in a contract provision governing how hundreds of asbestos plaintiffs would compensate their counsel overcame class action claims arising from the attorneys' imposition of an additional fee, the Alabama Supreme Court held Sept. 1 in once again reinstating the case (Mary Hall, et al. v. Environmental Litigation Group, P.C., No. 1151077, Ala. Sup., 2017 Ala. LEXIS 81).



Expert Index
PLAINTIFF



Asbestos: An Immature Tort (The Contrarian View)
By Thomas W. Tardy III and Taylor H. Wilkins A mass tort is mature, according to Duke Law School Professor Francis McGovern, "where there has been full and complete discovery, multiple jury verdicts, and a persistent vitality in the plaintiffs' contentions." Vanderbilt Law Professor Richard Nagareda added in his book Mass Torts in a World of Settlement that the "transition to the mature litigation stage comes only when the threat to prevail is such that defendants face a substantial probability of loss in the event of trial." As the asbestos litigation in the United States approaches its golden anniversary one would assume that this mass tort is "mature," and probably has been that way for many years. Data shows that assumption is wrong with respect to today's asbestos litigation environment. Whatever maturity existed earlier in the litigation vanished when the major asbestos producers exited the tort system through bankruptcy and were replaced by newer and formerly peripheral defendants as the target of plaintiffs' claims.