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LexisNexis® Mealey's™ Asbestos Legal News
Headline Asbestos Legal News from LexisNexis®
Missouri Jury Returns Defense Verdict For 3 In Take-Home Asbestos Case
ST. LOUIS - A Missouri jury hearing a take-home asbestos exposure case returned a defense verdict for the three remaining defendants on Sept. 12, sources told Mealey Publications (Donna Harrison, et al. v. Volkswagen Group of North America Inc., et al., No. 1522-CC09759-01, Mo. Cir., 22nd Jud. Cir.).
California High Court Considers Liability In Take-Home Asbestos Cases
SACRAMENTO, Calif. - The question of whether California law recognizes liability in take-home asbestos exposure cases or if such a duty is simply "a bridge too far" was before the California Supreme Court in oral arguments on Sept. 7 (Johnny Blaine Kesner v. Superior Court of California for the County of Alameda, No. S219534, Haver v. BNSF, No. S219919, Calif. Sup.).
Illinois Judge Finds No Duty In Take-Home Asbestos Exposure Case
WINCHESTER, Ill. - An employer cannot be held liable for take-home asbestos exposures in a case where both father and son worked for the same company, an Illinois judge held Aug 1 in a two-page opinion (Rex Hill v. Ameren Illinois Co., et al., No. 2013-L-21, Ill. Cir., Morgan Co.).
3rd Circuit Rejects Insulation Claim, Says Switchgear Asbestos Claim Can Proceed
PHILADELPHIA - Evidence that a company would sometimes reuse original asbestos-containing insulation does not save claims based on exposure arising from turbines, but sufficient evidence exists to allow claims based on exposure from switchgears, a Third Circuit U.S. Court of Appeals panel held Sept. 13 (In re: Asbestos Products Liability Litigation, Linnie Frankenberger v. CBS Corp., No. 15-1988, 3rd Cir.).
Company Urges Wisconsin Top Court To Review Fraudulent Sale Asbestos Case
WAUSAU, Wis. - A Wisconsin appellate court misapplied state law in concluding that a transaction could have constituted a fraudulent transfer of assets in an attempt to avoid asbestos liabilities, a company told the Wisconsin Supreme Court July 25 (Penny L. Springer v. Nohl Electric Products Corp., et al., No. 2015AP829, Wis. Sup.).
Insufficient Evidence Parent Company Controlled Ship Owner, Judge Says
NEW YORK - A widow lacks evidence that a parent company controlled the day-to-day operations of a foreign, ship-owning subsidiary, a federal judge in New York held Aug. 23, while refusing to pierce the corporate veil and granting the company summary judgment in an asbestos action (Kelan Unterberg v. ExxonMobil Oil Corp., et al., No. 14-10025, S.D. N.Y.; 2016 U.S. Dist. LEXIS 118586).
Judge: Asbestos Plaintiff Can't Show AT&T Provided Subsidiary With Safety Advice
WILMINGTON, Del. - A woman lacks evidence that AT&T Corp. provided safety services for a subsidiary of the type necessary to impose liability under the Restatement (Second) of Torts, a Delaware judge held Aug. 31 in granting summary judgment in an asbestos case (Danielle Tetteh, et al. v. Alcatel-Lucent USA Inc., et al., No. N14C-08-023 ASB, Del. Super., New Castle Co.).
Magistrate Judge Recommends Granting Judgment To 2 Asbestos Defendants
WILMINGTON, Del. - A federal magistrate judge in Delaware on Aug. 29 recommended granting summary judgment to two defendants in an asbestos case, saying that maritime law shields one from liability for third-party insulation and that the record is devoid of evidence of exposure to the other (Jimmy R. Mitchell and Connie Mitchell v. Atwood & Morill Co., et al., No. 15-958, D. Del.; 2016 U.S. Dist. LEXIS 115210).
Judge: No Evidence Man Joined Talc Defendants To Defeat Federal Jurisdiction
TRENTON, N.J. - No evidence supports an allegation that a man joined two companies to an asbestos-tainted talc action simply to avoid federal court, a federal judge in New Jersey said Sept. 6 in remanding the case (Gilbert Paul Hernandez v. Brenntag North America Inc., et al., No. 16-4038, D. N.J.; 2016 U.S. Dist. LEXIS 119854).
Judge: Case Alleging Failure To Pay Workers' Comp Asbestos Benefits May Proceed
CHARLOTTE, N.C. - A mesothelioma sufferer has standing to pursue, and the court has jurisdiction over, claims that an employer and its insurer are not making timely payments under North Carolina's workers' compensation statutes, a federal judge in North Carolina held Sept. 9 (James Norman Richardson v. PCS Phosphate Company Inc., et al., No. 16-00068, W.D. N.C; 2016 U.S. Dist. LEXIS 122354).
Pennsylvania Court Affirms Denial Of Asbestos-Related Prostate Employment Claim
PHILADELPHIA - A firefighter's failure to link occupation exposure to asbestos and other carcinogens to his prostate cancer dooms his workers' compensation claim, a Pennsylvania Commonwealth Court held Sept. 7 (Earl Hutz v. Workers' Compensation Appeal Board [City of Philadelphia], No. 2140 C.D. 2015, Pa. Cmwlth.; 2016 Pa. Commw. LEXIS 382).
Ship Builder Tells Judge Man's Bid For Discovery Sanctions Unfounded
LOS ANGELES - The court previously considered and rejected a man's claim involving discovery violations, an asbestos defendant told a federal judge in California on Aug. 29 in urging him to deny terminating sanctions. An Aug. 1 ruling in the case denied reconsideration of a ruling allowing strict liability claims arising from exposure aboard a Navy ship to proceed (Victoria Lund, et al. v. Crane Co., et al., No. 13-2776, C.D. Calif.).
Magistrate Judge Finds Woman's Letter Demonstrates Knowledge Of Injury
TYLER, Texas - A woman's letter to a premises owner to investigate potential asbestos and mold contamination she claimed was sickening workers rises above suspicion and started the statute of limitations, a federal magistrate judge in Texas held Aug. 31 in granting summary judgment (Marci Jones v. Andy Anderson, et al., No. 14-366, E.D. Texas; 2016 U.S. Dist. LEXIS 117069).
Del. Judge Says Insurer Did Not Fulfill Duty To Defend Insured For Asbestos Suits
WILMINGTON, Del. - A Delaware state judge on Aug. 19 granted an insured's motion for summary judgment after determining that the insurer did not fulfill its duty to defend the insured against underlying asbestos suits because the insurer did not follow applicable Wisconsin law in contesting its duty to defend (CNH Industrial America LLC v. American Casualty Company of Pennsylvania, et al., No. N12C-07-108, Del. Super., New Castle Co.; 2016 Del. Super. LEXIS 418).
Widow Claims Asbestos Firm Used Reputation, Fraudulently Overcharged Her
SANTA ANA, Calif. - Napoli, Bern, Ripka, Shkolnik & Associates and potentially others used its status as a premier asbestos litigation firm to bill clients "excessive, inappropriate and possibly fabricated" charges, according to a widow's Aug. 31 California state court action (Eleanor Chattin v. Napoli, Bern, Ripka, Shkolnik & Associates, and DOES 1 to 10, inclusive, No. 30-2016-00872525-CU-FR-CJC, Calif. Super., Orange Co.).
The Continuing Irony Of "Tort Reform"
By Elihu Inselbuch and Andrew J. Sackett Introduction Under the banner of "tort reform," asbestos tort system defendants and their insurance companies continue to press for legislation at the state level to help them reduce their liability for the injuries and deaths they have caused. Currently, they argue that the processing of claims by asbestos bankruptcy trusts, claims which are also pursued against defendants in the tort system, has created some sort of an imbalance in plaintiffs' favor.1 To advance this thesis and support their push for legislation,2 and in an effort to distract observers and legislators from defendants' own decades-long outrageous and lethal misbehavior, they fund publications that purport to find wrongdoing by asbestos victims and their lawyers in the pursuit of compensation both from the asbestos bankruptcy trusts and the tort system. Written by attorneys and consultants for asbestos defendants, these publications rely on a gross misrepresentation of the historical context surrounding asbestos exposures, the operation of the asbestos bankruptcy trusts, and the tort system itself.3
California Top Court Won't Review Grinding Machine Asbestos-Liability Ruling
SAN FRANCISCO - The California Supreme Court on Aug. 24 declined a motion seeking review of an appellate ruling holding that a grinding machine's inevitable use with third-party asbestos-containing automobile brakes creates potential liability under strict liability and negligence theories, according to its docket (Renee Rondon, et al. v. Hennessy Industries Inc., Nos. S234839, Calif. Sup.).
Man Challenges Ruling Excluding Expert, Secret Investigation Into Juror
CHICAGO - A judge all but awarded a defense verdict when he overturned a previous judge's ruling allowing an asbestos expert's causation testimony during trial, and a defendant's secret investigation into a juror constitutes sanctionable conduct that must be prohibited, a man told the Seventh Circuit U.S. Court of Appeals Aug. 2 (Charles Krik v. ExxonMobil Oil Corp., et al., No. 15-3112, 7th Cir.).
Court Affirms Exclusion Of Premises Claim, Verdict In Asbestos Case
LOS ANGELES - A man failed to preserve his challenge to exclusion of premises liability claims by not timely challenging their exclusion and cannot honestly argue that the defendant's motion in limine caught him off guard, a California appeals court held Aug. 18 (Anthony Marquez v. PAC Operating Limited Partnership, No. B263403, Calif. App., 2nd Dist.; 2016 Cal. App. Unpub. LEXIS 6046).
Removal On Eve Of Trial 'Objectively Unreasonable'; Judge Remands, Awards Fees
SAN FRANCISCO - A federal judge in California on Aug. 22 remanded an asbestos case and awarded attorney fees, rejecting an argument that the plaintiffs joined defendants simply to defeat removal, finding the argument "so flawed as to be objectively unreasonable" and saying removal so close to trial suggested bad faith on the defendant's part (James Angus, et al. v. John Crane Inc., No. 16-3532, N.D. Calif.; 2016 U.S. Dist. LEXIS 111702).
5th Circuit Vacates Remand, Orders Consideration Of Jurisdiction Issues
NEW ORLEANS - An asbestos case removed on other grounds may remain in federal court where dismissal leaves only parties with complete diversity, but on remand a federal court must determine if that situation applies to the case before it, a Fifth Circuit U.S. Court of Appeals panel held Aug. 25 (Joannie L. Jefferson, et al. v. Certain Underwriters at Lloyd's London, No. 15-30211, 5th Cir.; 2016 U.S. App. LEXIS 15867).
9th Circuit Declines To Stay Remand While It Considers Asbestos Challenge
SAN FRANCISCO - An aircraft adhesives defendant lost its battle to stay an asbestos case and expedited hearing of its challenge to a remand order on Aug. 22, when the Ninth Circuit U.S. Court of Appeals discharged its order to show cause, denied the defendant's motion and sent the case to the merits panel (Velma Searcy v. 3M Co. and Hexcel Corp., No. 16-56034, 9th Cir.).
Judge Finds Chance Of Recovery From Retailer, Remands Asbestos-Talc Case
ALEXANDRIA, La. - A woman sufficiently alleges that retailers of commercial talc knew or should have known about the dangers of asbestos exposure from those products, a federal judge in Louisiana held Aug. 18 in finding that a chance of recovery existed and granting remand (Kay Powers v. Beacon CMP Corp., et al., No. 16-638, W.D. La.).
Military Equipment Maker Tells 4th Circuit Facts Support Asbestos Case's Removal
BALTIMORE - Military equipment manufactured and supplied in compliance with military specifications and under "intense supervision" meets the broad standard for federal officer removal, an asbestos defendant told the Fourth Circuit U.S. Court of Appeals on Aug. 12 (Janya Sawyer, et al. v. Union Carbide Corp., et al., No. 16-118, D. Md.; 2016 U.S. Dist. LEXIS 52750).
Asbestos MDL Ship Owners Waived Jurisdiction Objections, 3rd Circuit Rules
PHILADELPHIA - Two ship-owner defendants still litigating nearly 30-year-old asbestos cases waived personal jurisdiction defenses by at one point seeking trial in the court to which they now object, the Third Circuit U.S. Court of Appeals said Aug. 17 (Lionel C. Wilson, Joseph F. Braun, and Thomas Guiden v. Matson Navigation Co. Inc., American President Lines Ltd., Nos. 15-1387, 15-1388, 15-1389, 3rd Cir.).
Justice Permits Suit Against Valve Company For Subsidiary's Actions
NEW YORK - A defendant has not adequately shown that it operates apart from a subsidiary and seeks a "level of testimonial precision" about exposure improper for asbestos cases, a New York justice held Aug. 17, denying a motion for summary judgment (Gaspar Hernandez-Vega v. Air & Liquid Systems Corp., No. 190367/2014, N.Y. Sup., New York Co.).
California Judge Consolidates Potentially 2,000 Talcum Powder Cases
LOS ANGELES - Saying she expects approximately 2,000 such cases, a California judge on Aug. 2 consolidated actions against Johnson & Johnson by women who allegedly contracted ovarian cancer after exposure to the company's talcum powder (Coordination Proceeding Special Title Rule [3.550], Johnson & Johnson Talcum Powder Cases, No. JCCP4872, Calif. Super., Los Angeles Co.).
Pennsylvania Law Firm Looks To Have John Crane Conspiracy Suit Tossed
CHICAGO - A lawsuit filed by John Crane Inc. (JCI) accusing a Philadelphia asbestos plaintiffs' law firm of fabricating false exposure histories in a scheme to defraud the company should be dismissed for several reasons, including lack of jurisdiction, improper venue and failure to state a claim, the law firm says in an Aug. 8 motion filed in Illinois federal court (John Crane Inc. v. Shein Law Center Ltd., et al., No. 16-5913, N.D. Ill.).
Florida Federal Jury: Aerospace Company Not Negligent In Man's Death
JACKSONVILLE, Fla. - A Florida federal jury on July 26 found that Dexter-Hysol Aerospace LLC and Henkel Corp. did not negligently design an adhesive that was a legal cause of loss, injury or damage to an aviation structural mechanic who was allegedly exposed to asbestos-containing products during his career in the U.S. Navy (Marsha K. Dugas, et al. v. 3M Co., et al., No. 14-1096, M.D. Fla.).
California Jury Returns Defense Verdict For 2 In Asbestos Case
LOS ANGELES - A California jury on Aug. 9 returned a defense verdict for three companies accused of exposing a woman to asbestos in joint compounds, sources told Mealey Publications (Christine Louise Pass and Joseph David Pass v. Amcord Inc., f/k/a Riverside Cement Co., et al., No. BC587738, Calif. Super., Los Angeles Co.).
'Systemic Failure' Waived Law Memo's Protections, New York Justice Affirms
NEW YORK - The "systemic failures" of a company to adequately protect an internal memo in which in-house counsel provides guidance on asbestos litigation constitutes waiver of privilege under New York law, a state court justice held in an opinion posted July 25 (Richard Warren v. Amchem Products Inc., et al., No. 190281/2014, N.Y. Sup., New York Co.).
Federal Judge Finds Evidence Of Regular Exposure To Brakes, Compressors Lacking
WILMINGTON, Del. - A man's conflicting testimony and other evidence falls short of establishing sufficient evidence of regular exposure to asbestos from a brake manufacturer and air compressor manufacturer, a federal magistrate judge held in recommending the court grant summary judgment on Aug. 9 (Robert Lee Winhauer Jr., et al. v. Air & Liquid Systems Corp., et al., No. 15-177, D. Del.; 2016 U.S. Dist. LEXIS 104467).
Court Reverses Exclusion Of Hygienist, Judgment For Joint Compound Supplier
SAN FRANCISCO - A trial court improperly granted a joint compound supplier summary judgment after erroneously concluding that an industrial hygienist lacked sufficient basis for his conclusion that a man would have been exposed to asbestos by the products, a California appeals court held July 27 (Andrea Gerlach, et al. v. Goodman Lumber Co., No. A144642, Calif. App., 1st Dist., Div. 1; 2016 Cal. App. Unpub. LEXIS 5634).
New Trial Ordered After Florida Top Court Clarifies Strict Liability Standard
MIAMI - Subsequent Florida Supreme Court precedent applying the consumer expectation test requires retrial of strict liability claims against an asbestos-containing joint compound maker, a state appeals court held July 27 (Paula Font, et al. v. Union Carbide Corp., No. 3D11-3270, Fla. App., 3rd Dist.; 2016 Fla. App. LEXIS 11366).
Judge: Ship Builders' Alleged Role In Making Insulation Keeps Suit Alive
LOS ANGELES - Allegations that two ship manufacturers also potentially manufactured asbestos-containing insulation installed aboard Navy ships keeps them in a strict products liability action, a federal judge in California held Aug. 1 in denying reconsideration (Victoria Lund, et al. v. Crane Co., et al., No. 13-2776, C.D. Calif.; 2016 U.S. Dist. LEXIS 61847).
Washington Court Finds Asbestos Case Fits Exceptions To Alaska Statute Of Repose
SEATTLE - A turbine manufacturer's alleged distribution of asbestos-containing gaskets puts it outside the reach of Alaska's statute of repose, as does it and a premises owner's alleged knowledge about the dangers of asbestos, a Washington appeals court held Aug. 9 in reversing dismissal for the two companies (Larry Hoffman and Judith Hoffman v. General Electric Co., Ketchikan Pulp Co., et al., No. 47439-5-II, Wash. App., Div. 2; 2016 Wash. App. LEXIS 1903).
Woman Opposes Stay While 9th Circuit Considers Remand Appeal
SAN FRANCISCO - An aircraft adhesives defendant has little chance of prevailing on a nonappealable order finding its removal of an asbestos action untimely, especially in light of the court's questions regarding jurisdiction over the case, a woman argues in an Aug. 11 brief asking the Ninth Circuit U.S. Court of Appeals not to stay a case (Velma Searcy v. 3M Co. and Hexcel Corp., No. 16-56034, 9th Cir.).
Judge Finds Bad Faith Attempt To Defeat Removal In Claims Against Crown Cork
PHILADELPHIA - A man's failure to pursue litigation against a company and the existence of a clear statutory bar to recovery warrants a finding that the defendant was added in a bad faith attempt to defeat removal, a federal judge in Philadelphia held Aug. 11 (In re: Asbestos Products Liability Litigation (No. VI); William Ney, et al. v. Owens-Illinois Inc., et al., No. MDL 875, 16-2408, E.D. Pa.).
Missouri Jurisdiction Lacking; Removal Of Asbestos Case Proper, Judge Says
ST. LOUIS - A man's allegations fail to create personal jurisdiction in Missouri over the Federal-Mogul Asbestos Injury Trust or its predecessors, a federal judge in Missouri held Aug. 5 while also denying remand (Berg Hovsepian v. Crane Co., et al., No. 16-414, E.D. Mo.; 2016 U.S. Dist. LEXIS 103149).
Texas Court Won't Rehear Case Involving 9-Year Delay In Accepting Settlement
HOUSTON - A Texas appeals court on July 19 declined to rehear an asbestos case in which it found that a nine-year gap in accepting a settlement offer did not doom the claim, turning away Union Carbide Corp.'s warning that the ruling "risks creating a dangerous precedent" (Union Carbide Corp. v. Perry Jones, Rosemary Allegria, et al., No. 01-14-00574-CV, Texas App., 1st Dist.).
All-Sums Allocation Must Be Applied In Asbestos Coverage Dispute, Federal Judge Says
NEW YORK - Based on a recent decision by the New York Court of Appeals regarding allocation, a New York federal judge on Aug. 8 granted an insured's motion for reconsideration and said that in light of the Court of Appeals' decision, an all-sums method of allocation, not a pro rata method of allocation, must be applied to policies with noncumulation clauses (Liberty Mutual Insurance Co. v. The Fairbanks Co., Nos. 13-3755, 15-1141, S.D. N.Y.; 2016 U.S. Dist. LEXIS 104250).