Asbestos Case Tracker Named to ABA Journal’s Blawg 100

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For the second time this month, the Asbestos Case Tracker blog has been honored as one of the best legal blogs online today! Editors of the ABA Journal announced this week they have selected Asbestos Case Tracker as one of the top 100 best legal blogs. Now included on the ABA Journal’s Blawg 100, Asbestos Case Tracker made the list of “the 100 most compelling” blogs by beating out more than 4,000 other legal blogs. Once again, we have to thank all of our readers for your support. Our intent for this blog was to provide informative, timely posts related to asbestos litigation and we are honored that it has been recognized as a valued and trusted resource.
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Affidavits Used in Other Cases Enough to Establish Removal Under Federal Officer Jurisdiction U.S. District Court for the Southern District of Illinois, November 30, 2016

US Navy The plaintiff brought a wrongful death lawsuit after her husband died of mesothelioma, alleging asbestos exposure during her husband’s service in the Navy. Originally filed in Madison County, Illinois, defendant Crane Co. removed on the basis of the federal officer removal statute. The plaintiff filed a motion to remand, arguing that Crane waived its right to remove by first filing a motion to dismiss in state court, and that Crane failed to establish federal subject matter jurisdiction. The court denied the plaintiff’s motion. Regarding waiver of removal by first filing a motion to dismiss, the Seventh Circuit has found that waiver cannot be a basis for remand except in “extreme situations.” Since this ruling was made, the language interpreted by the Seventh Circuit has been deleted. Most district courts have ...
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Defendant Dismissed for Lack of Personal Jurisdiction U.S. District Court for the Eastern District of Louisiana, November 30, 2016.

iStock_000056734526_XXXLarge (1) Plaintiffs Breck Williams and Tarsi Williams, the children of decedent Frank Williams, filed this suit in Louisiana state court on June 2, 2016, after Frank Williams contracted mesothelioma and died as a result of alleged asbestos exposure. The plaintiffs allege their father’s exposure was caused by, among other defendants, Fiat S.p.A. for the installation, use, and maintenance of the injury-causing asbestos and sought damages under Louisiana law. Fiat filed a motion to dismiss, challenging both the court’s personal jurisdiction over it and the sufficiency of service of process. The plaintiffs did not oppose the motion but because the jurisdictional issue is dispositive of the matter, the court addressed it at the outset. When a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary ...
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Duty Exists for Employers and Property Owners’ to Prevent Take-Home Exposure; Duty Extends Only to Workers’ Household Supreme Court of California, December 1, 2016

Judge Holding Documents Two cases addressed whether employers or landowners owed a duty to prevent secondary exposure to asbestos. Trial and appellate courts reached varying conclusions on this issue; here, the California Supreme Court determined that while employers and premises owners had a duty to prevent asbestos exposure carried home on the bodies and clothing of on-site workers, this duty extended only to members of a worker’s household. In the first case, Johnny Kesner died of peritoneal mesothelioma. His uncle George Kesner worked at Pneumo Abex; during this time Johnny spent a significant amount of time staying with his uncle. In the second case, Lynne Haver died of mesothelioma; her children filed suit alleging secondary exposure through Lynne’s first husband’s work at BNSF Railway Company. Procedurally, neither suit reached a jury. The trial ...
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No Duty To Warn Third Parties for Take-Home Exposures in Georgia Supreme Court of Georgia, November 30, 2016

On November 30, 2016, the Georgia Supreme Court issued a ruling, that affirmed in part and reversed in part, a Georgia Court of Appeals decision, which was previously reported on in the ACT. For a brief background, the plaintiff, Marcella Fletcher originally filed suit against CertainTeed after being diagnosed with malignant pleural mesothelioma. Fletcher attributed this diagnosis to years of laundering her father’s asbestos dust covered work clothing to which she alleges CertainTeed manufactured the asbestos-laden water pipes that her father had worked with. In her complaint, Fletcher alleged negligent design and negligent failure to warn. The trial court granted CertainTeed’s motion for summary judgment and found that the plaintiff failed to establish sufficient evidence with respect to both allegations. The Georgia Court of Appeals reversed on both accounts to ...
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Same Facts = Same Ruling? Nope! Baltimore Issues Grant and Denial of Summary Judgment In Two Groups of Smoking Lung Cancer Cases Circuit Court for Baltimore City, November 29, 2016

Lung cancer Two opposing decisions were rendered by two different judges in two factually and legally similar groups of smoking lung cancer cases. In Harrell et al. and Boston et al., asbestos defendants filed nearly identical motions for summary judgment, arguing that the plaintiffs could not recover because (1) the plaintiffs knew the hazards of smoking and assumed the risk, and (2) were contributorily negligent. Summary judgment was granted in one group (Harrell et al.) and denied in the other (Boston et al.). In Maryland, in order to assert the affirmative defense of assumption of risk, defendants must show that the plaintiff (1) had knowledge of the risk of the danger; (2) appreciated the risk; and (3) voluntarily confronted the risk of danger. In order to assert the defense of contributory negligence, ...
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Plaintiffs’ Dismissal with Prejudice of Claims Against Defendant Rendered Third-Party Demand for Contribution Void U.S. District Court for the Eastern District of Louisiana, November 18, 2016

Third-party defendant Industrial Development Corporation of South Africa, Limited (IDC) filed a motion to dismiss defendant Cooper/T. Smith Stevedoring Company, Inc.’s (Cooper) third party complaint. The court granted IDC’s motion and remanded the case to state court. The plaintiffs filed suit on behalf of decedent Earl Lindsay, who died of lung cancer. The plaintiffs alleged the decedent worked as a longshoreman for several Cooper companies in the Port of New Orleans from 1954-1979, and during this time was exposed to asbestos. As against IDC, the plaintiffs asserted claims under the Jones Act; one day after filing suit the plaintiffs filed a motion to dismiss all claims against IDC with prejudice. Prior to the court ruling on this motion, Cooper filed a third-party demand seeking contribution and/or indemnification from IDC for ...
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Granting of Summary Judgment to Asbestos Insulation Supplier Based on Government Contractor Defense Upheld on Appeal Court of Appeal of California, First Appellate District, Division One, November 22, 2016

US Navy In this case, the plaintiff, Gary Kase, claimed exposure to asbestos insulation used in Navy nuclear submarines during the 1970s. Defendant Metalclad Insulation Corp. provided the asbestos-containing insulation, Unibestos, to the U.S. Navy. Metaclad moved for and was granted summary judgment based on the government contractor defense. The plaintiff appealed. On appeal, the court thoroughly reviewed the standards for summary judgment based on the government contractor defense pursuant to the seminal case Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Boyle set forth a three prong test for granting summary judgment: “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier ...
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Ford’s Denial of Nonsuit Affirmed; Improper Consolidation of Meso Cases Did Not Warrant New Trial Supreme Court of Pennsylvania, Eastern District, November 22, 2016

Medicine law concept. Gavel and stethoscope isolated on white Richard and Joyce Rost filed this action against multiple defendants, including Ford Motor Company, alleging that Mr. Rost developed mesothelioma as a result of his work around asbestos products. The plaintiff worked at Smith Motors as “gofer” assisting mechanics with the removal of brake shoe linings 3-5 times per week after graduating from high school. Further, the plaintiff contended that 85-95 percent of the vehicles were manufactured by Ford. The parties stipulated that Ford vehicles utilized asbestos brakes and clutches for its vehicles made from 1945-1950. Mr. Rost recalled being exposed to brakes, clutches, and gaskets during engines repairs and stated that he had to clean up the waste with a push broom. According to the plaintiff, the mechanics used a compressor to blow out dust from the brake drums, ...
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Court Affirms Defense Verdict Finding Defendant Contractor Was Not Negligent California Court of Appeal, Second District, November 22, 2016

iStock_000058921340_Full Plaintiff Kenneth Evans was diagnosed with asbestosis after a decades-long career working for the Southern California Gas Company (SoCalGas). For about 35 percent of his employment, Evans worked alongside contractors who helped build and replace gas pipelines; some of those pipelines were covered in a coating that contained asbestos. Evans testified that he worked for SoCalGas from 1954 to 1990. He started out as a pipeline repairman, repairing pipe at various work sites, and working side-by-side with outside contractors on pipeline this work. Specifically, Evans inspected the work done by contractors to ensure that it complied with the required specifications. Due to his diagnosis, Evans and his wife, plaintiff Dorothy Evans, sued several contractors, alleging that they contributed to Evans’s asbestosis. By the conclusion of trial, the only remaining defendant ...
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