Application of § 5 of Federal Employers Liability Act (FELA) for Releases Remains Clear as Mud

Two plaintiffs in two jurisdictions bargain for settlement in asbestos related claims. Both agree to take money in exchange for a release of all future claims. Both later develop new diseases and sue the same defendant again. Only this time, one court finds the release unenforceable and the other court dismisses the complaint. No doubt the split that exists in federal circuits applying § 5 of FELA is confusing and remains fact intensive. The two predominant rules are found in Babbitt v. Norfolk & Western Railroad Company, 104 F. 3d 89 (1997) and Wicker v. Conrail, 142 F. 3d 690 (1998). Babbitt is known as the strict scrutiny test and Wicker tends to be more lenient. Recently, two federal courts analyzed the application of § 5 of FELA and issued ...
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Plaintiff’s Incomplete Deposition Testimony Deemed Inadmissible; Summary Judgment Granted for Defendant U.S. District Court for the Northern District of Ohio, Eastern Division, October 19, 2017

OHIO — The decedent, Donald French, filed suit as a result of his diagnosis of mesothelioma allegedly caused by occupational exposure from asbestos-containing products through his work at U.S. Steel in Dearborn, Michigan. French provided testimony as to his alleged exposures at a discovery deposition that lasted approximately 18 hours over three days. On the third day, French identified the defendant as a source of exposure. The deposition, however, was not completed. The fourth day of deposition was adjourned due to French’s poor health. French passed away shortly thereafter and the deposition was never completed. The defendant acknowledges, during the relevant time period, that it did manufacturer and sell products that contained asbestos. However, there was no other evidence in this case connecting defendant to French or U.S. Steel. The defendant ...
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Talc Manufacturer’s Summary Judgment Reversed; Question of Fact as to Asbestos content of Product Court of Appeal of California, First Appellate District, Division Three, October 19, 2017

CALIFORNIA — Plaintiff Mary Lyons appealed summary judgment entered against her on her product liability claim against defendant Colgate-Palmolive, which was based on the allegation that she developed mesothelioma from the use of Colgate’s Cashmere Bouquet cosmetic talcum powder. The plaintiff testified at her deposition that she regularly used Cashmere Bouquet after bathing from the early 1950s through the early 197’s. Colgate manufactured Cashmere Bouquet from 1871 until 1985, and continued marketing the product until 1995, which coincided with the United States EPA’s report that the presence of asbestos in talc makes it a human carcinogen. Colgate argued that since the plaintiff was unable to produce any of the tin cans containing Cashmere Bouquet, there “is no evidence of any testing of a Cashmere Bouquet product that Ms. Lyons actually ...
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Reversal of $72 Million Ovarian Cancer/Talc Verdict on Jurisdiction May Lead to Fewer Asbestos Filings in Missouri Missouri Court of Appeals, Eastern District, October 17, 2017

MISSOURI — In a case that could lead to fewer asbestos filings in Missouri, Johnson and Johnson successfully argued that the trial court lacked personal jurisdiction over it after a $72 million dollar plaintiff verdict in an ovarian cancer / talc case. Plaintiff Jacqueline Fox was one of 65 plaintiffs who filed suit against Johnson and Johnson (J and J) and Imerys Talc. J and J is a New Jersey resident and Imerys is a Delaware corporation. Both were sued in Missouri. The plaintiffs alleged they developed ovarian cancer from the use of J and J’s talcum powder. During trial, the defendants filed a motion to dismiss asserting that “their activities in Missouri did not give rise to the claims of the non-residents who purchased Defendants’ products elsewhere.” The trial court ...
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Res Judicata Bars Plaintiff’s Mesothelioma Claim Against Prior Settled Defendant U.S. District Court for the Eastern District of Louisiana, October 13, 2017

LOUISIANA — The decedent filed an asbestosis lawsuit in 1991 against Owens-Illinois and other defendants. Owens-Illinois settled the claim for $4,000 as part of a group settlement. The Release Agreement stated that the decedent agreed to release the defendant from any cause of action arising out of the decedent’s asbestos-related injury, including mesothelioma, cancer, wrongful death and survival claims. Seventeen years after executing the Release Agreement, the decedent was diagnosed with mesothelioma and eventually passed. His wife and children brought a second action against Owens-Illinois in state court seeking survival and wrongful death damages. After removing the case, Owens-Illinois filed a Motion to Re-Urge State Court Exception of Res Judicata. Owens-Illinois argued that the motion should be granted because the Release Agreement clearly and unambiguously released it from future claims, ...
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Personal Jurisdiction Challenges Growing in Madison County; May Lead to Fewer Asbestos Filings Supreme Court of Illinois, September 21, 2017

ILLINOIS — Continuing a national trend following the Bristol Myers Squibb Co. v. Supreme Court of California (2017) and Daimler AG v. Bauman (2014), the Supreme Court of Illinois has issued a personal jurisdiction opinion that will limit the ability of out-of-state plaintiffs to file suit in Illinois against “non-resident” or foreign defendants. In the matter of Aspen American Insurance Company v. Interstate Warehousing, Inc., Eastern Fish Company (Eastern) is a New Jersey-based corporation that sources and imports fish products. In 2013, Eastern contracted with defendant to store some of its fish products in a refrigerated warehouse near Grand Rapids, Michigan. On March 8, 2014, part of the warehouse’s roof collapsed, causing ruptured gas lines and an ammonia leak. The leak contaminated the fish products that were stored in the ...
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Joe Welter to Speak at Upcoming Talc Seminar

On Wednesday November 1, 2017, Joseph J. Welter, partner and chair of Goldberg Segalla’s Toxic Tort and Environmental Practice Group, will be speaking at Cardno ChemRisk’s Talc Seminar in Las Vegas.  This half-day seminar will feature several topics, including: The mineralogy and epidemiology of cosmetic talc Historical perspectives on talc, along with its asbestos content and potential health risks Emerging strategies in talc litigation Joe will present “Talc and Ovarian Cancer: The Dilution of Scientific Causation.” For nearly three decades, Joe has served as national, regional, and local trial counsel for prominent manufacturers, distributors, and contractors in asbestos litigation. To register, please click here.
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Remand Denied and Plaintiffs’ Mesothelioma Suit Dismissed Based on Lack of Personal Jurisdiction U.S. District Court for the District of Minnesota, October 10, 2017

MINNESOTA — In March 2016, the plaintiffs filed suit against multiple defendants, including Conwed Corporation, in Missouri Circuit Court in St. Louis alleging that the husband plaintiff’s mesothelioma was caused by exposure to the defendants’ asbestos-containing products, including Conwed’s ceiling tile. On January 19, 2017, the Missouri Circuit Court dismissed the plaintiffs’ complaint against Conwed without prejudice, finding, in part, that Conwed was “a Delaware corporation with its principal place of business in New York.” The plaintiffs refiled suit on March 16, 2017 in Ramsey County District Court, Minnesota against Conwed and served the summons and complaint upon C.T. Corporation Systems, Conwed’s registered agent in Minnesota. On April 4, 2017, Conwed removed the case to federal court, invoking federal diversity jurisdiction. The plaintiffs’ advanced three separate arguments for why the ...
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New York Appellate Court Affirms Nine Million Dollar Verdict in Duty to Warn Grinder Case New York Supreme Court, Appellate Division, First Department, October 5, 2017

NEW YORK — The plaintiff filed suit against various defendants, including Hennessy Industries’ subsidiary, Ammco, alleging that the plaintiff’s use of Ammco’s grinder on asbestos-containing brake linings exposed him to asbestos. The plaintiff’s expert testimony was sufficient to establish exposure to asbestos via use of the grinder in sufficient quantities to cause the plaintiff’s mesothelioma. Further, “because the asbestos-laden dust was created by plaintiff’s use of defendant’s grinder and defendant knew its grinder would be used on asbestos-containing products, defendant had a duty to warn plaintiff of the latent danger arising from the foreseeable use of its product.” The court unanimously upheld the award, reduced by the trial court and stipulated to by the plaintiff, of $5 million for past pain and suffering and $4 million for future pain and ...
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Fraudulent Joinder Determination Turns Only on Factual and Legal Basis, Not Intent U.S. District Court for the Western District of Missouri, Central Division, October 3, 2017

MISSOURI — Kansas resident plaintiffs filed an action in the Circuit Court of Jackson County, Missouri, alleging mesothelioma and asbestosis arising out of work first performed in the state of Missouri. Two defendants named in the state court petition were also residents of Kansas, and the rest were from various states. Defendant Athene Annuity & Life Assurance Company removed the case on the basis of diversity. In response to the plaintiffs’ motion to remand, Athene alleged that the plaintiffs had no intention of prosecuting claims against the Kansas defendants. The plaintiffs countered by expressing their intention to seek default judgment from one of the Kansas defendants, Fuhrco, Inc. As the party seeking to remove, Athene had the burden of establishing subject matter jurisdiction. In briefs, Athene did not contend that ...
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Standard Based Approach in Bare Metal Defense Permits Sailors to Recover in Negligence U.S. Court of Appeals, Third Circuit, October 3, 2017

The plaintiffs filed suit in negligence and strict liability against several defendants arguing their decedents died from mesotheliomas as a result of their exposure to asbestos containing products for which defendants were responsible. Both plaintiffs alleged exposure while working on-board naval vessels. The defendants removed the case to federal court and summary judgment was granted in their favor on the bare metal defense. The plaintiff separately appealed on the issues of negligence. The appeal was remanded to sort out the negligence issue against the backdrop of the split in authority regarding the bare metal defense. The court applied the bright line rule finding that the bare metal defense applied to both strict liability and negligence. The appellate court then consolidated both cases on yet another round of appeals. The court’s ...
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