Foreseeability of Harm or Relationship Between The Parties: The Difference in Liability for Premise Owners in Take-Home Exposure Cases

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Depending on the state, liability of a premise owner in a take-home toxic tort case will hinge either on foreseeability of harm or the relationship of the parties. This distinction is illustrated below in two recent take-home exposure cases, one from New Jersey and one from Arizona. In the New Jersey case, Schwartz v. Accuratus Corp., 225 N.J. 517, 139 A.3d 84, (N.J. 2016) , the New Jersey Supreme Court unanimously ruled that the premise liability of a landowner can go beyond the spouse of an exposed person of a toxic substance on the landowner’s property. In its ruling, the court would not set a limitation as to how far the duty could extend, but stressed each case would have to be determined on its own facts. In the Schwartz ...
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Certification of Class for Unmanifested Asbestos Claims in Bankruptcy Court Denied U.S. District Court for the District of Delaware, September 28, 2016

iStock_000016880645_Large Debtors filed voluntary petitions for relief in the United States Bankruptcy Court; certain debtors’ subsidiaries have potential liability related to former employees’ alleged exposure to asbestos in power plants owned or operated by debtors’ predecessors. The bankruptcy court issued an order setting a bar date for all asbestos claimants, establishing requirements for proofs of claim for manifested and unmanifested asbestos claimants, and notice procedures. Appellants filed a motion seeking to have the court, among other things, certify a class of persons holding unmanifested asbestos claims. The court denied the motion and this appeal followed. The district court found that the bankruptcy court did not abuse its discretion in ruling that the class would not be superior to other methods of adjudication. Appellants argued that the bankruptcy court committed legal error ...
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Pro Rata Allocation and Exposure Trigger Confirmed in New York Federal Court Decision for Insurers U.S. District Court for the Northern District of New York, September 29, 2016

Gavel and money isolated on white Troy Belting & Supply Co. was named as a defendant in lawsuits alleging bodily injury caused by exposure to asbestos from products it manufactured. It became involved in a dispute with its insurers over coverage for the costs of settling such lawsuits. Pacific Employers provided coverage for Troy Belting from 1974 to 1984, and various Hartford Insurance Company entities provided coverage from 1984 to 1992. Pacific Employers and Hartford sought reimbursement from Troy Belting for cases where they paid 100 percent of the settlement costs but contended they were not obligated to pay 100 percent of the coverage. The insurers’ position was that they were obligated to pay only a pro rata share based on their time on the risk, and that Troy Belting was obligated to pay the remainder. ...
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Due Precaution Exception to General Rule of Non-Liability for Independent Contractors Applied to Potentially Establish Liability Against Premises Owners Court of Appeals of Indiana, September 28, 2016

475462408 The plaintiff was an industrial and commercial electrician diagnosed with malignant pleural mesothelioma. He and his wife filed a complaint alleging negligence against various defendants. The plaintiffs argued defendants were vicariously liable for the acts of their independent contractor employees (non-delegable duty doctrine), those of their own employees (respondeat superior), and as premises owners. Defendants Bremen Casting and Mastic Home Exteriors moved for summary judgment, which was partially granted on the negligence of independent contractor and premises liability claims. All parties moved for interlocutory appeal. The appellate court concluded that the trial court (1) erred in granting summary judgment on the negligence of independent contractor claim, (2) did not err in denying summary judgment on the respondeat superior claim, and (3) erred in granting summary judgment on the premises liability ...
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Federal Court Rejects Argument That Manufacturer Cannot Be Liable for Asbestos-Containing Component Parts U.S. District Court for the Eastern District of Pennsylvania, September 28, 2016

100974359 The plaintiffs filed suit in the Court of Common Pleas, First Judicial District, Philadelphia County, against various defendants claiming that the decedent, who had been employed since the 1950s as a millwright in multiple power plants and steel mill factories, developed work-related malignant mesothelioma from exposure to asbestos and to products containing asbestos. This state action was ultimately removed to federal court and became part of Multidistrict Litigation-875 in the Eastern District of Pennsylvania. Here, the plaintiffs specifically alleged that defendant Crane Co. manufactured, produced, sold, and/or supplied valves to the decedent’s various worksites. Following an eight-day trial against only defendant Crane Co. (all other defendants were dismissed or settled), the jury found in favor of the plaintiffs and awarded $1,085,000 in total damages; $835,000 in compensatory damages to the ...
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Trial Court’s Reaffirmation of Judgment Notwithstanding the Verdict in Favor of Defendants Reversed Supreme Court of Mississippi, September 22, 2016

Lung cancer Larry Smith worked on various drilling rigs from the mid-1960s until the early 1990s. He was also a heavy smoker. He was diagnosed with lung cancer and died shortly thereafter. His widow and other heirs filed a wrongful death action against several defendants in 2006. At trial, only Union Carbide Corporation, Montello, Inc., and Chevron Phillips Chemical Co. remained. The plaintiffs brought a strict liability claim under a products liability design-defect theory and claimed that Mr. Smith’s exposure to the defendant’s asbestos-containing products on the oil rigs caused his lung cancer. After a three week trial in May 2009, the jury returned a verdict for the plaintiffs. All of the defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV). The trial judge granted JNOV on the sole issue of ...
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Supplier of Asbestos for Joint Compound Denied Summary Judgment U.S. District Court for Eastern District of North Carolina, Eastern Division, September 21, 2016

464671805 The U.S. District Court for the Eastern District of North Carolina denied the motion for summary judgment of defendant Union Carbide Corporation in a case involving alleged exposure to raw asbestos fiber allegedly in joint compound. James Lee was a painter in North Carolina from the late 1960s into the 2000s, and during that time the plaintiffs allege that Lee applied and sanded asbestos-containing joint compound to finish drywall, as well as sanded and swept joint compound. Sanding joint compound created a dust, which would cake in Lee’s hair, on his face, and on his clothes. Lee stated that he worked primarily with U.S. Gypsum joint compound and Georgia-Pacific ready-mix joint compound throughout his painting career, and sanded it on every job he did while working for employers between 1970 ...
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Employers Not Liable for Employee Take-Home Exposure Court of Appeals of Arizona, Division One, September 20, 2016

482440409 The plaintiffs allege Ernest V. Quiroz was exposed to asbestos from his father’s work clothes during the years he lived at his father’s home (1952 to 1966). Defendant Reynolds moved for summary judgment, arguing that it did not owe Dr. Quiroz a duty of care. The trial court granted the motion, finding Reynolds “had no duty to Plaintiffs as a matter of law.” The plaintiffs appealed and the case was heard by the Court of Appeals of Arizona, Division One. In a negligence action under Arizona law, a “duty” is defined as an obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. Whether a defendant owes the plaintiff a duty of care is ...
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Court Grants Summary Judgment for Defendant Boiler Manufacturer Based on Lack of Causation Under Maritime Law U.S. District Court for the District of Delaware, September 16, 2016

Large industrial boiler factory Plaintiffs Jimmy R. Mitchell and Connie Mitchell filed suit alleging that Mr. Mitchell developed lung cancer as a result of exposure to asbestos-containing products, in part during the course of his employment as a boiler fireman with the U.S. Navy from 1976-79. Defendant Foster Wheeler filed for summary judgment and argued, among other things, lack of causation. To establish causation under maritime law (which both parties agree applied), plaintiffs must show that (1) Mr. Mitchell was exposed to a Foster Wheeler boiler; (2) the exposure was a substantial factor in causing Mr. Mitchell’s injury; and (3) Foster Wheeler manufactured or distributed the asbestos-containing product to which Mr. Mitchell alleges exposure. In this case, Mr. Mitchell testified that the he performed maintenance on two Foster Wheeler boilers and the door gaskets ...
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Case Remanded on Basis of Failure of Removing Party to Meet Burden of Proof on Improper Joinder U.S. District Court for the Eastern District of Louisiana, September 14, 2016

Plaintiff William Bozeman brought suit alleging exposure to asbestos and asbestos-containing products caused him to contract mesothelioma. Mr. Bozeman, a Louisiana resident, worked for Arizona Chemical Company, later known as International Paper Company, from 1975 to 1981 and 1981 to 1999 in Louisiana and claims he was exposed while on the job. He filed suit in the Civil District Court for Orleans Parish. On September 9, 2016 defendant Wyeth Holding Corp., formerly known as American Cyanamid Company removed the case to the U.S. District Court for the Eastern District of Louisiana on the basis of diversity jurisdiction days before trial was set to begin on September 12, 2016. Cyanamid maintained that as of August 12, 2016 all but four Louisiana defendants had settled or been dismissed, that on August 12 ...
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