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LexisNexis® Mealey's™ Asbestos Legal News

Headline Asbestos Legal News from LexisNexis®


Judge Issues 'Third-Way' Opinion Addressing Bare-Metal Parts Liability
NEW ORLEANS - Manufacturers of bare metal products can be liable for asbestos in component parts if they assisted in integrating the asbestos part with their own product, knew the hazards involved in the part, or recommended the asbestos-containing part, a federal judge in Louisiana held March 6 in explaining what he earlier described as a "third way" of handling the bare-metal defense (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La.).

Court: Causation Opinion Admissible, Punitives OK In $6.5M Asbestos Verdict
FRESNO, Calif. - A judge properly admitted expert testimony that every identifiable exposure to asbestos contributes to mesothelioma, a California appeals court held March 17, while also rejecting challenges involving tobacco use and an award of punitive damages (Charity Faith Phillips, et al. v. Honeywell International Inc., No. F070761, Calif. App., 5th Dist.).

Judge: Expert's Report Satisfactory, But Must Limit Opinion To General Causation
NEW ORLEANS - An expert's conclusion that six defendants' products couldn't have caused a man's mesothelioma impermissibly leaps to specific causation from his general causation opinion regarding chrysotile asbestos' role in the disease, a federal judge in Louisiana held March 6 (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La., 2017 U.S. Dist. LEXIS 31117).

Judge Affirms Exclusion Of Asbestos Experts' Specific Causation Opinions
NEW ORLEANS - Experts' failure to tether the opinion that small asbestos doses cause mesothelioma to the specific exposures in question renders their opinions too similar to the type of "every exposure" theory rejected by courts, a federal judge in Louisiana held March 6 (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La., 2017 U.S. Dist. LEXIS 31117).

Widow Who Lost $10.3M Jones Act Asbestos Verdict Urges Top Court Review
WASHINGTON, D.C. - A Florida court ignored the "featherweight" causation standard applied in Jones Act cases while reversing a $10.3 million asbestos verdict against cruise line, plaintiffs told the U.S. Supreme Court March 3 (Giovanna Settimi Caraffa, et al. v. Carnival Cruise Lines, No. 16-1074, U.S. Sup.).

Man's Recall Doesn't Overcome Expert Testimony In Asbestos Roof Compound Case
LOS ANGELES - A man's inability to recall a brand name or even if he repeatedly used the same roof product dooms his asbestos claim against the alleged manufacturer, a California appeals court held March 2 (John DeLoof, et al. v. Ace Hardware Corp., et al., No. B265886, Calif. App., 2nd Dist., 2017 Cal. App. Unpub. LEXIS 1503).

Court Rejects Mandamus Challenge To Texas Asbestos MDL Expert Ruling
DALLAS - Two asbestos defendants have not shown that a traditional appeal could not remedy their complaints about a judge's ruling regarding the admissibility and sufficiency of experts, a Texas appeals court held March 2 in denying a petition for writ of mandamus (In re Exxon Mobil Corp., f/k/a Exxon Corp., SeaRiver Maritime Inc. and SeaRiver Maritime Financial Holdings Inc., et al., No. 14-17-00133-CV, Texas App., 14th Dist.).

Heeding Presumption Rejected In Tobacco User's New York Asbestos Lung Cancer Trial
NEW YORK - A New York justice refused to impose a heeding presumption in an asbestos trial in an opinion posted March 20, saying that absent evidence that a cigarette user who ignored tobacco warnings would have acted differently in the asbestos context, she would not impose such a standard (Donna Castorina, et al. v. A.C.&S., et al., No. 123077/01, N.Y. Sup., New York Co.).

Plaintiffs To Texas Top Court: Asbestos Settlement Envisioned Delayed Submissions
AUSTIN, Texas - Having enjoyed the benefits of a settlement resolving all of the firm's asbestos suits, Union Carbide Corp. now seeks to rewrite its contract to block individuals with late-forming diseases from receiving their side of the bargain, plaintiffs told the Texas Supreme Court on March 13 (Union Carbide Corp. v. Perry Jones, Rosemary Allegria, et al., No. 16-0648, Texas Sup.).

9th Circuit Rejects 'Game Over, Man' Reading Of Party Substitution Rule
LOS ANGELES - A rule requiring dismissal when asbestos plaintiffs failed to substitute a party within the allotted time frame is not the fatal weapon defendants wish it was, a Ninth Circuit U.S. Court of Appeals panel held March 9 (Richard Zanowick, an individual and Joan Clark-Zanowick v. Baxter Healthcare Corp., et al., No. 15-56047, 9th Cir.).

Judge Applies Differing State Laws To Survivorship, Punitive Damages Claims
NEW ORLEANS - Louisiana law will govern a survivorship claim as its application does not substantially affect Idaho, while the latter state's policy against punitive damages precludes allowing that claim to proceed in an asbestos action, a federal judge in Louisiana held March 6 (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La.).

Judge Finds Grocery Properly Joined In Asbestos-Talc Case
MIAMI - A retail grocery was not fraudulently joined in an asbestos case because allegations regarding what it should have known sufficiently support a negligence action, a federal judge in Florida held in remanding the case on March 10 (Andrienne Fransas v. Brenntag North America Inc., et al., No. 17-80058, S.D. Fla., 2017 U.S. Dist. LEXIS 35545).

Unopposed Summary Judgment Estops Asbestos Action, Federal Judge Says
ST. LOUIS - An unopposed summary judgment motion involved the same parties and allegations, despite longer alleged exposures to asbestos and the original plaintiff's death, a federal judge in Missouri held March 8 in finding that collateral estoppel precluded the action (Diane MacCormack, Nancy Broudy, and Karen Loftus, as personal representatives of Berj Hovsepian v. The Adel Wiggins Group, et al., No. 16-414, E.D. Mo.; 2017 U.S. Dist. LEXIS 32652).

Justice: Advertising Doesn't Subject Tile Maker To New York Jurisdiction
NEW YORK - A decades-old marketing and advertising campaign for an asbestos-containing product allegedly similar to one a man bought in Missouri does not create jurisdiction in New York, a justice held in an opinion posted March 13 (Richard S. Trumbal and Margaret Trumbal v. Adience Inc., f/k/a BMI Inc., et al., No. 190084/2016, N.Y. Sup., New York Co.).

Judge Remands Case After Dismissal Of Lone Federal Officer Defendant
BALTIMORE - Dismissal of all claims against the lone defendant claiming a federal officer defense to asbestos claims does not strip a court of jurisdiction, but remand is nonetheless warranted, a federal judge in Maryland held March 7 (Esther Rhodes, et al. v. MCIC Inc., et al., No. 16-2459, D. Md.; 2017 U.S. Dist. LEXIS 31852).

Connecticut Panel Says Insured Not Responsible For Costs During Uninsured Years
HARTFORD, Conn. - In reversing a number of rulings entered by a trial court as part of the second phase of an asbestos and silica coverage dispute, the Connecticut Appellate Court on March 7 said the trial court construed the occupational disease exclusions too narrowly and erred in finding that the insured is responsible for defense costs from 1993 through 2007 when it was uninsured (R.T. Vanderbilt Co. Inc. v. Hartford Accident & Indemnity Co. et al., Nos. AC 36749, AC 37140, AC 37141, AC 37142, AC 37143, AC 37144, AC 37145, AC 37146, AC 37147, AC 37148, AC 37149, AC 37150, AC 37151, Conn. App., 2017 Conn. App. LEXIS 59).

Judge Finds Asbestos Claims Against English Insurer Related To Arbitration Clause
NEW ORLEANS - A Louisiana federal judge on March 16 found that an English insurer's removal of a former machinist's asbestos-related claims from a state court was appropriate, finding that the dispute could relate to an underlying arbitration agreement contained in an insurance policy (James Edward O'Connor v. Maritime Management Corp., et al., No. 16-16201, E.D. La., 2017 U.S. Dist. LEXIS 37798).

Maryland Federal Judge Says Insured's Claims On Policy Exhaustion Not Timely Filed
BALTIMORE - A Maryland federal judge on March 10 granted motions for partial summary judgment filed by a number of insurers involved in an asbestos coverage dispute after determining that the insured's claims regarding the exhaustion of the insurers' policies were not timely filed (General Insurance Company of America v. The Walter E. Campbell Co. Inc., et al., No. 12-3307, D. Md.; 2017 U.S. Dist. LEXIS 34348).

Expert Index

"ME THINKS THE LAWYERS DOTH PROTEST TOO MUCH" A Response to "The Irony of Tort Reform"
By Peggy Ableman Introduction Faced with ever-increasing instances of inconsistencies in trust claiming in asbestos tort litigation, plaintiffs and their attorneys have once again solicited the assistance of one of their longstanding advocates, Elihu Inselbuch, Esquire, together with his colleague, Andrew J. Sackett, Esquire, to put forth a defense. Both are counsel for existing asbestos claimants in bankruptcy as well as for the Trust Advisory Committees ("TACs") associated with several asbestos trusts. In their recent article "The Continuing Irony of 'Tort Reform,'"1 they take great pains to try to refute and undermine the express findings of judges, economists and defense attorneys, as well as the raw data itself, in an effort to legitimize plaintiffs' widespread practice of obtaining compensation for injuries from exposure to the products of bankrupt companies without admitting to these exposures in tort litigation against solvent defendants.

California Jury Awards More Than $10 Million In Asbestos-Pipe Case
OAKLAND, Calif. - A California jury on Feb. 24 awarded $10,026,201 to a man who developed mesothelioma after exposure to asbestos while cutting and working with pipe. The jury found that CertainTeed Corp. knew of the risks but misrepresented the safety of its product and that its negligence contributed to the man's disease (Michael B. Burch and Cindy Burch v. CertainTeed Corporation, et al., No. RG16819332, Calif. Super., Alameda Co.).

Brake-Grinder Maker Escapes Madison County Case With Asbestos Defense Verdict
EDWARDSVILLE, Ill. - A shop teacher was not negligently exposed to asbestos when he ground asbestos-containing brakes on Hennessy Industries Inc. grinding machines, a Madison County, Ill., jury decided Feb. 28 (Urban v. Borg-Warner Morse TEC Inc., No. 13-L-437, Ill. Cir., Madison Co.).

New York Jury Returns Defense Verdict In Chef's Commercial Equipment Action
NEW YORK - A chef and butcher suffered exposure to asbestos from asbestos-containing materials in commercial kitchen equipment, but the defendant did not fail to exercise reasonable care, a New York jury held Feb. 16 (In re New York City Asbestos Litigation, Dario Battistoni v. Aerco International Inc., No. 190103/2015, N.Y. Sup., New York Co.).

9th Circuit Revives Only Premises Asbestos Claim Against Aircraft Company
SAN FRANCISCO - Plaintiffs' premises liability allegations in an action against aircraft company are sufficiently detailed to permit the claims to go forward, but strict liability and negligence claims lack supporting evidence regarding the products in question or are barred by law, a Ninth Circuit U.S. Court of Appeals panel held Feb. 23 in partially reversing dismissal of a case (Titus May, et al. v. Northrop Grumman Systems Corp., et al., No. 15-56219, 9th Cir., 2017 U.S. App. LEXIS 3314).

Texas Top Court Rejects Jurisdiction In Asbestos Claims Collusion Case
AUSTIN, Texas - Settlement negotiations in Texas involving asbestos liabilities do not support the conclusion that the parties sought to avail themselves of the state's laws, even if the company eventually selected to manage a resulting trust is based there, the Texas Supreme Court held March 3 in finding that the state lacked jurisdiction (M&F Worldwide Corp., et al. v. Pepsi-Cola Metropolitan Bottling Company Inc., No. 15-0083, Texas Sup.).

Judge Rejects Punitive Damage Award In Asbestos Case, But Otherwise Affirms
LOS ANGELES - A jury awarded $3.6 million in punitive damages without the necessary evidence that Crown Cork & Seal Co. Inc. could satisfy such a judgment, but the remainder of the verdict stands as the company mounted "very limited and highly generalized" testimony supporting the contention that it was insulated from liability by a sophisticated intermediary, a California appeals court held Feb. 15 (Donna Saller, et al. v. Crown Cork & Seal Company Inc., et al., No. B260277, Calif. App., 2nd Dist., Div. 1, 2017 Cal. App. Unpub. LEXIS 1062).

Judge: Internal Hospital Record Doesn't Doom Asbestos-Lung Cancer Suit
PHILADELPHIA - A reference to asbestos in what appears to be an internal hospital document is not sufficient to put a couple on notice of a potential cause of his lung cancer, a federal judge in Pennsylvania held March 8 (Joseph Conneen and Kathleen Conneen v. Amatek Inc., et al., No. MDL 875, 15-1063, E.D. Pa., 2017 U.S. Dist. LEXIS 29787).

Evidence Falls Short In Case Against Auto Maker, Magistrate Judge Says
WILMINGTON, Del. - Testimony that a man worked with gaskets during an engine overhaul lacks any reference to who manufactured the gaskets or whether they contained asbestos, a federal magistrate judge in Delaware held Feb. 16 in recommending summary judgment based on the lack of triable issues (In re: Asbestos Litigation, Charlevoix, et al. v. CBS Corp., et al., No. 15-726, D. Del., 2017 U.S. Dist. LEXIS 22590).

Judge Nixes Asbestos Contribution, Set-Offs From Third-Party Counterclaims
CHRISTIANSTED, Virgin Islands - While the Virgin Islands continues to recognize the doctrines, an oil company's attempt to bring contribution and set-off claims fail, leaving only its indemnification claim in an asbestos third-party case, a Virgin Islands judge held in an opinion posted March 2 (Albina Willie, personal representative of the estate of Terence Willie v. Amerada Hess Corp., et al., No. SX-06-CV-202, V.I. Super., St. Croix Div.).

N.Y. Court Explains Causation Standard In Affirming Rejection Of $11M Verdict
NEW YORK - Causation requires more than evidence of a mechanic's exposure to dust from asbestos-containing brakes, the majority of a New York appeals court held Feb. 28 (In re New York City Asbestos Litigation, Mary Juni, etc. v. A.O. Smith Water Products Co., et al., No. 190315/12, 2457-2458, N.Y. Sup. App., 1st Dept.; 2017 N.Y. App. Div. LEXIS 1505).

Wrongful Death Act Requires Couple Be Married At Time Of Injury, Court Says
WEST PALM BEACH, Fla. - The state's Wrongful Death Act does not permit a widow's wrongful death loss of consortium claim arising from asbestos exposure occurring before the couple's marriage, a divided Florida court held Feb. 22 (Janis Kelly, et al. v. Georgia-Pacific LLC, et al., No. 4D15-4666, Fla. App., 4th Dist., 2017 Fla. App. LEXIS 2413).

Plaintiffs In Asbestos-Talc Fraud Suit Urge Court To Reject Subpoena
NEWARK, N.J. - A company accused of destroying evidence and fraudulently concealing evidence of asbestos contamination of its talc should not get to relitigate 25-year-old cases and has no legitimate need for discovery into them, named plaintiffs in a class action told a federal court on Feb. 21 (Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., No. 11-1754, D. N.J.).

Jurisdictional Discovery, More Specific Allegations Required, Judge Says
NEW ORLEANS - Plaintiffs in an asbestos exposure case are entitled to further discovery in an attempt to muster the difficult support they need to overcome jurisdictional issues against one defendant and must amend their complaint to allege more specifics against a second company, a federal judge in Louisiana held Feb. 16 (Robin Murphy, et al. v. Alcatel-Lucent USA Inc., et al., No. 15-5566, E.D. La., 2017 U.S. Dist. LEXIS 21979).

Magistrate Judge Largely Limits Discovery Requests In Ford Asbestos Case
BALTIMORE - While Ford Motor Co. must respond to discovery requests in an asbestos action, the plaintiffs' requests are overly broad and the company's responses can be limited to the vehicles and times in question, a federal magistrate judge in Maryland said Feb. 21 (Helen Thomas Fish, et al. v. Air & Liquid Systems Corp., et al., No. 16-496, D. Md., 2017 U.S. Dist. LEXIS 24188).

Texas' Top Court Urged To Reject Settlement Accepted 9 Years After Offer
AUSTIN, Texas - An appeals court opinion allowing a jury to decide the reasonableness of a nine-year delay in accepting an asbestos settlement ignores both the terms of the offer and Texas precedent, Union Carbide Corp. tells the state's top court in a Feb. 20 opening brief (Union Carbide Corp. v. Perry Jones, Rosemary Allegria, et al., No. 16-0648, Texas Sup.).

House Judiciary Committee Passes Reintroduced FACT Act
WASHINGTON, D.C. - Congress' latest measure aimed at requiring asbestos trusts to make claimant information public and provide the information to defendant companies in asbestos lawsuits was approved Feb. 15 by the House Judiciary Committee after being reintroduced by a Texas Republican a week earlier.

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Arizona High Court Considers Asbestos Take-Home Exposure Case
PHOENIX - The Arizona Supreme Court on Feb. 14 agreed to hear a woman's case claiming that state law imposes liability for take-home asbestos exposures, according to the court's docket (Mary Quiroz, et al. v. Alcoa Inc., et al., No. 16-0248, Ariz. Sup.; 2016 AZ S. Ct. Briefs LEXIS 221).

Proximity Lacking In Take-Home Asbestos Case, Delaware High Court Says
WILMINGTON, Del. - A judge properly granted five defendants summary judgment after finding insufficient evidence that either a father or husband worked in proximity to asbestos-containing products, the Delaware Supreme Court held Feb. 6 (In re Asbestos Litigation, Wayne Reed, et al. v. Asbestos Corporation Limited, et al., No. 387, 2016, Del. Sup.).

Judge Reduces $22 Million Asbestos Damages Award, Nixes Recklessness Finding
NEW YORK - A plaintiff must agree to a reduced asbestos award of $7 million from $22 million and discontinue or drop his recklessness claim or face a new trial on those issues, a New York justice held Feb. 14 (Frank Gondar v. A.O. Smith Water Products Co., et al., No. 190079-2015, N.Y. Sup., New York Co.).

Parties Settle Case After Judge Excludes Testimony From Diagnosing Doctors
NEW ORLEANS - A federal judge in Louisiana dismissed a case on Feb. 3 after being informed the parties settled, just a day after the judge excluded treating physicians from offering expert testimony regarding asbestos's role in the plaintiff's asbestosis and lung cancer (Jesse Frank Sheppard v. Liberty Mutual Insurance Co., et al., No. 16-2401, E.D. La.).

New York Justice Orders Production Of Data In Native Format, Metadata
NEW YORK - Production of electronic documents in an asbestos dispute do not satisfy discovery requests where they are not in the requested format and lack metadata, a New York justice held in an opinion posted Feb. 3 (All Craft Fabricators Inc. v. ATC Assoc. Inc.,, No. 156897/13, N.Y. Sup., New York Co.; 2017 N.Y. Misc. LEXIS 323).

Justice: Talc Case Lacks New York City Anchor For In Extremis Inclusion
NEW YORK - An asbestos-tainted talc case is not entitled to inclusion in the court's trial preference system because the mere allegation of exposure - absent a link to a product or defendant - provides no anchor to New York City, a New York justice held Feb. 3 (In Re: Leslie Fogel and Catherine Fogel v. American International Industries for Clubman, et al., No. 190093/2016, N.Y. Sup., New York Co.).

Justice Finds Allegations Keep Asbestos Case In In Extremis Docket
NEW YORK - A man's recollection that he visited breweries and food-processing plants in New York City provides a sufficient anchor to the city for inclusion in the court's in extremis asbestos docket, a New York justice held Jan. 5, sources told Mealey Publications (Richard Trumball v. Adience Inc., f/k/a BMI Inc., No. 190084/2016, N.Y. Sup., New York Co.).

California Top Court Won't Review Challenges To Asbestos Defense Verdict
LOS ANGELES - The California Supreme Court on Feb. 1 declined to hear a case challenging a verdict where the jury found exposure to asbestos related to the defendant's conduct, but found no negligence, according to its docket (LAOSD Asbestos Cases, No. S238684, Calif. Sup., 2017 Cal. LEXIS 924).

Dearth Of Causation Evidence Dooms Most Of Widow's Claims, Magistrate Says
WILMINGTON, Del. - A widow's failure to establish a genuine issue of material fact as to whether her late husband was exposed to the asbestos products of three defendant companies is fatal to all but one of her claims against the companies, a Delaware federal magistrate judge ruled Feb. 8 in recommending that the companies be awarded summary judgment on most of her causes of action (Marguerite MacQueen v. Union Carbide Corporation, et al., No. 13-831, D. Del., 2017 U.S. Dist. LEXIS 17645).

Judge: Jury Should Decide If Asbestos Was Specified By Accused Company
COLUMBIA, S.C. - A federal judge in South Carolina on Feb. 13 denied a valve company's motion for summary judgment, holding that it must be left to a jury to decide whether the company specified the use of asbestos in its valves and whether that asbestos was a substantial cause of a former naval officer's mesothelioma (James Wilson Chesher, et al. v. 3M Company, No. 15-cv-2123, D. S.C., 2017 U.S. Dist. LEXIS 20706).

Justice Finds No Evidence Of Continuity Of Ownership, Grants Judgment
NEW YORK - Despite the potential unfairness given the facts of a case, asbestos plaintiffs must demonstrate a continuity of ownership to show that an asset purchase constituted a de facto merger until a New York appellate court changes the standard, a New York justice held Feb. 15 in granting summary judgment (Ivette Montanez and Peter Montanez v. American Honda Motors Co. Inc., et al., No. 190409/2014, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 493).

Kentucky Court Finds State University Immune To Asbestos Tort Action
FRANKFURT, Ky. - A state university is a state agency ordinarily entitled to sovereign immunity and thus any action seeking damages arising from exposure to asbestos must be filed in the Kentucky Board of Claims, a Kentucky appeals court held Feb. 3 (Lewis Williamson v. Morehead State University and Commonwealth of Kentucky, No. 15-CI-90186, Ky. App., 2017 Ky. App. Unpub. LEXIS 109).

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