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LexisNexis® Mealey's™ Asbestos Legal News

Headline Asbestos Legal News from LexisNexis®


Florida Jury Awards $9M In Bystander Asbestos Case
MIAMI - A Florida jury on Sept. 27 awarded $$9,019,265.60 to the widow of a man who suffered bystander exposure to asbestos, sources told Mealey Publications (Rosa-Maria Britt, et al. v. Northrop Grumman Systems Corp., No. 2012-30637-CA-01, Fla. Cir., Miami-Dade Co.).

Judge: Existing Frameworks Wanting; Parties Must Brief On Third-Party Parts Liability
NEW ORLEANS - Rejecting both the Sixth Circuit U.S. Court of Appeals' complete preclusion of liability for manufacturers of products requiring asbestos-containing third-party parts and the existing exemptions for imposing such liability, a federal judge in Louisiana on Oct. 4 asked for additional briefing on the issue (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La.).

Judge Rejects Challenge To Duty To Warn About Third-Party Asbestos Parts
PHILADELPHIA - The argument that a valve company did not have a duty to warn about the dangers of third-party asbestos parts ignores both a previous ruling in the case and legal precedent, a federal judge in Philadelphia held Sept. 28 in affirming a $1,085,000 million verdict (Lynn C. Dobrick, et al. v. Air & Liquid Systems Corp., et al., No. 10-03202, E.D. Pa.).

Premises Owners Liable For Workers', Contractors' Conduct In Asbestos Case
INDIANAPOLIS - Premises owners can be liable for the conduct of their employees and independent contractors where insufficient evidence suggests that an electrician's own work caused his exposure to asbestos, the Indiana Court of Appeals held Sept. 28 (Larry Myers and Loa Myers v. Bremen Casting Inc. and Mastic Home Exteriors Inc., No. 49A04-1503-MI-113, Ind. App.).

Washington Top Court Finds Wrongful Death Action Requires Valid Underlying Claim
SEATTLE - Wrongful death actions accrue at the time of death, but require that a valid, timely, underlying claim exist, the Washington Supreme Court held Oct. 4 in a 5-4 decision, affirming summary judgment in a daughter's asbestos case (Judy R. Deggs, et al. v. Asbestos Corp. Limited, et al., No. 91969-1, Wash. Sup.).

New York Court Further Reduces Asbestos Damages Award, Otherwise Affirms Verdict
NEW YORK - A widow must accept a $4.25 million award for past pain and suffering in an asbestos case or face retrial on the issue, a New York appeals court said Oct. 6 while otherwise rejecting Crane Co.'s challenge to the verdict (Ivana Peraica, etc., et al. v. A.O. Smith Water Products Co., et al., Crane Co., No. 190339/11, N.Y. Sup., App. Div., 1st Dept.).

New York Court: Asbestos Awards Excessive, But Otherwise Supported
NEW YORK - A New York appellate court on Oct. 6 reduced two awards in asbestos cases but said the evidence otherwise supported the verdicts against Crane Co. (In re New York City Asbestos Litigation; Laraine Sweberg, etc. v. ABB Inc., et al., Crane Co., No. 190017/13, N.Y. Sup., App. Div., 1st Dept.).

Judge Rejects Expert's Cumulative Exposure Testimony, Finds For Defendant
MADISON, Wis. - An expert's opinion that cumulative exposures to asbestos lead to mesothelioma does not differ noticeably from the type of "every exposure" testimony excluded by the court, and the plaintiff cannot otherwise demonstrate exposure or causation, a federal judge held Sept. 30 in granting judgment after a bench trial (Gary Suoja, et al. v. Owens-Illinois Inc., No. 99-475, W.D. Wis.; 2016 U.S. Dist. LEXIS 135421).

Railway, Couple Debate FELA Settlement's Impact On Lung Cancer Case
PHILADELPHIA - A railroad and a man who previously settled asbestosis claims with it recently briefed the Third Circuit U.S. Court of Appeals over whether the release bars subsequent lung cancer claims (James S. Collier, et al. v. CSX Transportation Inc., No. 16-1999, 3rd Cir.).

Judge Remands 2 Asbestos Cases Removed Under Same Notice
NEW YORK - After untwisting two asbestos cases removed in the same notice, a federal judge in New York on Sept. 6 remanded both, saying dismissal of the removing defendant stripped the court of jurisdiction over one and that federal jurisdiction never existed in the second (Frances A. Barrio, et al. v. A.C. and S. Inc., et al., No. 14-3717, S.D. N.Y.; 2016 U.S. Dist. LEXIS 130388).

Virgin Islands Judge Closes 53 Asbestos Cases, Finds 1998 Remand Improper
CHRISTIANSTED, Virgin Islands - More than 50 asbestos cases remanded to a Virgin Islands court in 1998 by a magistrate judge alone were never properly before the state court despite years of filings, a judge in the U.S. territory said Sept. 21 (In re: Cases removed to the District Court of the Virgin Islands, Nos. SX-98-CV-109 - SX-98-CV-161, Virgin Islands Super.; 2016 V.I. LEXIS 154).

Judge Grants Petition To Perpetuate Testimony To Woman With Mesothelioma
DALLAS - A woman's petition for a deposition in advance of filing a lawsuit seeks only to preserve testimony, and her failed attempt to so in state court does not preclude the remedy, a federal judge in Texas held Sept. 29 (In re: Barbara Reed, No. 16-1964, S.D. Texas; 2016 U.S. Dist. LEXIS 135963).

Asbestos Claims Force Kaiser Gypsum, Affiliate Into Chapter 11
CHARLOTTE, N.C. - Former gypsum plaster and wallboard manufacturer Kaiser Gypsum Co. Inc. filed a Chapter 11 petition Sept. 30 in North Carolina federal bankruptcy court along with cement company affiliate Hanson Permanente Cement Inc. (HPCI) to resolve thousands of asbestos personal injury claims filed against the debtors (In re Kaiser Gypsum Company, Inc., at al., No. 16-31602, W.D. N.C. Bkcy.).

A story in the Sept. 14, 2016, issue of Mealey's Litigation Report: Asbestos on the trial in the case of Richard Batchelor and Regina M. Batchelor v. American Optical Corp., et al. (No. 16-000012 CA 42, Fla. Cir., Miami-Dade Co.) should have listed Christopher J.M. Collings of Sedgwick in Miami and John M. Fitzpatrick of Wheeler Trigg O'Donnell in Denver as representing Foster Wheeler, which settled prior to verdict.

Expert Index

Arizona Appeals Panel Rejects Duty For Take-Home Asbestos Exposures
PHOENIX - Saying Arizona does not recognize foreseeability in its duty analysis, a panel of the state's appellate court on Sept. 20 declined to impose a duty on a premise owner for a man's take-home asbestos exposures (Mary Quiroz, et al. v. Alcoa Inc., et al., No. 1 CA-CV 15-0083, Ariz. App., Div. 1; 2016 Ariz. App. LEXIS 218).

9th Circuit Reinstates Sophisticated Intermediary Asbestos Case
SAN FRANCISCO - Recent California Supreme Court precedent shows that a federal judge erred in applying the sophisticated user doctrine, a Ninth Circuit U.S. Court of Appeals panel said in reinstating an asbestos case on Sept. 21 (Kimbra Gottschall, et al. v. General Dynamics Corp., et al., No. 14-15379, 14-15380, 9th Cir.; 2016 U.S. App. LEXIS 17248).

Mississippi High Court Reinstates Asbestos Drilling Mud Case's $3,856,346 Verdict
JACKSON, Miss. - A judge erred by relying on a previously reversed ruling in deciding to once again wipe out a $3,856,346.17 verdict in an asbestos drilling mud case, the Mississippi Supreme Court held Sept. 22 (Elsie Smith, et al. v. Union Carbide Corp., et al., No. 2014-CA-01371-SCT, Miss. Sup.; 2016 Miss. LEXIS 399).

3rd Circuit Urged To Reinstate Third-Party Asbestos Parts Negligence Case
PHILADELPHIA - The federal judge overseeing the asbestos multidistrict litigation ignores recent precedent, Third Circuit U.S. Court of Appeals guidance and the proper negligence analysis in holding that manufacturers cannot be liable under maritime law for third-party asbestos-containing products they knew would need replaced, a pair of plaintiffs argue in an Aug. 22 brief (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.).

Magistrate Judge: Maritime Law Warrants Granting Pump, Boiler Makers Judgment
WILMINGTON, Del. - A couple's evidence placing two defendants' products aboard U.S. Navy ships does not establish causation under maritime law, a federal magistrate judge held Sept. 16 in recommending that the court grant summary judgment (Jimmy R. Mitchell and Connie Mitchell v. Atwood & Morill Co., et al., No. 15-958, D. Del.; 2016 U.S. Dist. LEXIS 115210).

Judge Finds Sufficient Questions Of Fact To Keep Asbestos Fiber Company In Case
ELIZABETH CITY, N.C. - Resolution of conflicting evidence regarding a company's supply of asbestos to a joint compound maker is best left to a jury, a federal judge concluded Sept. 21 in declining to grant summary judgment to the last remaining defendant in a case (Maria J. Lee, et al. v. Advance Auto Parts Inc., et al., No. 14-230, E.D. N.C.; 2016 U.S. Dist. LEXIS 128703).

Florida Court Reverses $8M Verdict, Orders Retrial For Tobacco Defendant
FORT LAUDERDALE, Fla. - After rejecting an expert's testimony that every exposure to asbestos substantially contributes to developing mesothelioma, a Florida appeals court on Sept. 14 granted a directed verdict to a gasket company and ordered a new trial for a tobacco company (Crane Co., R.J. Reynolds Tobacco Co., and Hollingsworth & Vose Co. v. Richard DeLisle and Aline DeLisle, Nos. 4D13-4351, 4D14-146, Fla. App., 4th Dist.).

Plaintiff, Transit System Face Off Before Supreme Court On Preemption Standard
TRENTON, N.J. - A New Jersey court's "unprecedented and unjustified" expansion of federal preemption law to a state-regulated transit system requires review, an asbestos plaintiff told the U.S. Supreme Court on Aug. 3. In response, Port Authority Transit Corp. told the court that preemption of the claims furthers the congressional goal of uniform liability by preventing different standards for identical products (Estate of Sandra Brust and Philip Brust, et al. v. Delaware River Port Authority, et al., No. 15-1529, U.S. Sup.).

Widow Asks Supreme Court To Review 5th Circuit Ruling Vacating Remand
NEW ORLEANS - A woman on Aug. 16 asked the U.S. Supreme Court to review a case, saying the Fifth Circuit U.S. Court of Appeals erroneously vacated remand of her asbestos case after confusing the standards for exposure at a shipyard with a manufacturer's products liability standard (Lorita M. Savoie, et al. v. Huntington Ingalls Inc., et al., No. 16-226, U.S. Sup.; 2016 U.S. S. Ct. Briefs LEXIS 3191).

9th Circuit Again Declines To Stay Remand While It Considers Asbestos Challenge
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Sept. 21 again denied a defendant's motion seeking stay remand of an asbestos case now set for trial later this year while it challenges the order returning the case to state court (Velma Searcy v. 3M Co. and Hexcel Corp., No. 16-56034, 9th Cir.).

Judge Remands, Finds Reasonable Chance Of Recovery Against Nondiverse Defendant
NEW ORLEANS - The mere fact that a man and his co-workers cannot identify a company that allegedly supplied asbestos-containing products to their employer does not preclude recovery or justify finding the defendant improperly joined, a federal judge in Louisiana held Sept. 14 in granting emergency remand (William Gregory Bozeman v. Wyeth Holdings Corp., et al., No. 16-14606, E.D. La.; 2016 U.S. Dist. LEXIS 124713).

Judge Finds Registering In State Provides Jurisdiction Over Talc Companies
PHILADELPHIA - Registering to do business in Pennsylvania provides consent to personal jurisdiction in the state even in light of recent Supreme Court precedent, a federal judge in Philadelphia held Sept. 20 in a case alleging ovarian cancer arising from exposure to talc (Nancy Bors v. Johnson & Johnson, et al., No. 16-2866, E.D. Pa.; 2016 U.S. Dist. LEXIS 128259).

Judge Dismisses Lockheed Martin For Lack Of Jurisdiction, Remands Asbestos Case
PITTSBURGH - Pennsylvania law imposing jurisdiction over companies that register to do business in the state applies only to periods where the company was actually registered, a federal judge held Sept. 16 in granting dismissal and remanding an asbestos case (Leona George, et al. v. A.W. Chesterton Co., et al., No. 16-115, W.D. Pa.; 2016 U.S. Dist. LEXIS 126176).

Judge: Appointing Agent For Service Creates Personal Jurisdiction In Missouri
ST. LOUIS - An asbestos defendant consented to personal jurisdiction in Missouri when it appointed an agent for service in the state, a federal judge held Sept 19 in denying reconsideration and interlocutory appeal (Lester D. Shirah v. Air & Liquid Systems Corp., et al., No. 15-1635, E.D. Mo.; 2016 U.S. Dist. LEXIS 126902).

Delaware High Court: Coverage Triggered If Injury Occurred During Policy Period
WILMINGTON, Del. - The Delaware Supreme Court on Sept. 12 determined that coverage for underlying asbestos bodily injury claims is owed if the bodily injury was sustained during the applicable policy periods of the excess insurance policies at issue (In re Viking Pump Inc. and Warren Pumps LLC Insurance Appeals, Nos. 518, 2014; 523, 2014; 525, 2014; 528, 2014, Del. Sup.; 2016 Del. LEXIS 474).

Expert Index

Florida Jury Awards $21M On Couple's Claim That Asbestos Led To Man's Mesothelioma
MIAMI - A Florida jury awarded a husband and wife more than $21 million on Aug. 30 after finding that his mesothelioma arose in part from asbestos exposure during overhaul work at a power plant (Richard Batchelor and Regina M. Batchelor v. American Optical Corp., et al., No. 16-000012 CA 42, Fla. Cir., Miami-Dade Co.).

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.).

New Jersey Jury Hearing Asbestos Case Returns Verdict For Talc, Tobacco Companies
NEW BRUNSWICK, N.J. - Two tobacco companies and a talc supplier accused of causing a man's mesothelioma escaped a New Jersey asbestos trial with a defense verdict on Aug. 15, sources told Mealey Publications (Valarie Panzarella v. Lorillard Tobacco Co., et al., No. MID-L-5418-12AS, N.J. Super., Middlesex Co.).

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.).

Expert Index

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