Was There Exposure? Objective Tests Through Advances in Biomarker Science Relevant to Asbestos and Other Toxic Tort Litigation

Some of the most difficult product liability cases to resolve are tough because of a lack of clarity as to the duration or amount of exposure. For example, defendants and plaintiffs sometimes take very different views of exposure in the so-called “take home” cases where a spouse allegedly developed a cancer from a “toxin” in the workplace of the other spouse. Over the next few years, some litigants will be smart enough to take advantage of the findings from new, objective tests that are arising due to the revolutionary developments in molecular biology, Simply put, the revolution is moving towards increasingly fast, and relatively inexpensive tools and tests useable to identify and measure objective molecular data related to mesotheliomas and other cancers. These biomarkers are being developed because of their ...
Continue Reading...


Federal Court Grants Summary Judgment for Automotive Defendant for Lack of Causation U.S. District Court for the District of Delaware, February 16, 2017

Plaintiffs Stephen and Marilyn Charlevoix brought this asbestos-related action against various defendants, including Fiat Allis North America, on July 10, 2015, in the Delaware Supreme Court. They alleged that Stephen Charlevoix developed mesothelioma as a result of naval and occupational exposure to asbestos between 1961 and 1978. During this time, Charlevoix worked as boiler tender, maintenance worker, and equipment installer. Charlevoix also ran his own logging business from the late 1960s up until the filing of the lawsuit at issue. The case was removed to the U.S. District Court for the District of Delaware on August 21, 2015. Mr. Charlevoix’s deposition was conducted on December 15, 2015 and additional co-workers were deposed on May 24, 2016 and May 26, 2016. During Mr. Charlevoix’s deposition, he identified Fiat as the manufacturer ...
Continue Reading...

California Appellate Court Reverses $3.6M Punitive Damages Award Court of Appeal of California, Second Appellate District, Division One, February 15, 2017

In November 2005, after William Saller was diagnosed with mesothelioma, the plaintiffs filed suit naming 22 defendants, including the manufacturers of various asbestos products. After Saller passed away in February 2006, his wife and daughters added a wrongful death claim and continued the lawsuit. In 2007, the plaintiffs proceeded to trial against two remaining defendants: Crown Cork and Bondex International, Inc. The jury returned a defense verdict, rejecting the plaintiffs’ strict liability design defect claim and their negligent failure-to-warn claim. The plaintiffs appealed and the appellate court ordered a new trial, ruling that the trial court erroneously refused to instruct the jury on two of the plaintiffs’ theories of liability — the “consumer expectations” theory of design defect and strict liability for failure to warn. Bondex filed for bankruptcy protection ...
Continue Reading...

Magistrate Judge Recommends Granting Summary Judgment to Four Defendants Due to Lack of Evidence U.S. District Court for the District of Delaware, February 15, 2017

A report and recommendation was made regarding four summary judgment motions filed by defendants Gardner Denver, Flowserve, Atwood & Morrill Company, and Nash Engineering. The plaintiffs did not respond to any of the motions for summary judgment. The magistrate judge recommended granting all four motions. The plaintiffs originally filed in Delaware state court, alleging that Icom Henry Evans developed mesothelioma due to asbestos exposure while a fireman and boiler tender with the U.S. Navy from 1957-1967. Foster Wheeler removed to federal court. The only fact witness deposed was Mr. Evans, who testified he believed he was exposed to asbestos gaskets and refractory brick on the USS Kearsarge and USS John A. Bole. He did not identify any products made by Gardner Denver, Flowserve (Edward Valves), Atwood, or Nash. The parties ...
Continue Reading...

New York Court Finds No Successor Liability and Grants Defendant’s Summary Judgment Motion Supreme Court of New York, New York County, February 8, 2017

In this NYCAL asbestos action, plaintiff Ivette Montanez alleged that she developed malignant mesothelioma as the result of washing her brother’s laundry. Montanez’s brother, Eliud Hernandez, Jr., testified to working with Beck/Arnley brakes at a friend’s automobile ship in Puerto Rico when he was 15-17 years old. Defendant Beck Arnley Worldparts, Inc. moved for summary judgment, arguing, among other things, that it was not the successor to the product alleged to have caused the exposure. The key issue to this motion centered on successor liability and whether any of the seller’s owners required a direct or indirect interest in the buyer under an asset purchase where no stock was exchanged. The plaintiffs ultimately argued that a more flexible standard should apply to de facto mergers in the context of tort ...
Continue Reading...

NYCAL Court Sets Aside Portion of $22M Verdict and Recklessness Charge Supreme Court of New York, New York County, February 14, 2017

As noted in a prior ACT post, a NYCAL jury awarded plaintiff Frank Gondar $22M ($12M for past pain and suffering and $10M for future pain and suffering) in a living mesothelioma claim. Here, the jury found defendant Burnham failed to provide adequate warnings, which was a substantial contributing factor to Mr. Gondar’s disease, and allocated Burnham with 25 percent liability. Most notably, the jury found Burnham to have acted with reckless disregard for the plaintiff’s safety after the court charged the jury on this issue using the New York Pattern Jury Instructions [PJI 2:275:2]. In New York, under CPLR 1601[1] and 1602[7], a defendant is jointly and severally liable for 100 percent of the damages if the jury finds defendant “acted with reckless disregard for the safety of others.” ...
Continue Reading...

Valve Manufacturer’s Summary Judgment Denied in Failure to Warn Case Despite Bare Metal Defense U.S. District Court for the District of South Carolina, Charleston Division, February 13, 2017

The plaintiffs brought this action against Crane Co. alleging James Chesher developed mesothelioma as a result of exposure to asbestos containing packing and gaskets found inside Crane Co. valves while he served in the United States Navy from 1965-1989. The court began its discussion by stating the standard for summary judgment. Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”  It was undisputed that maritime law applied. Prior to applying the law to the facts, the court gave a lengthy analysis on competing state laws regarding the bare metal defense which Crane had asserted in the instant ...
Continue Reading...

Expert Affidavit Does Not Create a Question of Fact for Nonmoving Party in Motion for Summary Judgment U.S. District Court for the District of Delaware, February 8, 2017

On February 8, 2017, the United States District Court for the District of Delaware granted Defendants Crane Co., Warren Pumps LL, and Air & Liquid Systems Corporation (Buffalo) separate motions for summary judgment with regards to all causation counts of the plaintiff’s complaint. The plaintiff asserted state law causes of actions against the defendants based on David MacQueen’s (the decedent) employment in the U.S. Navy. The decedent was aboard the U.S.S. Randolph and the U.S.S. Independence from 1956-60. The plaintiff alleged that Crane, Warren, and Buffalo were manufacturers of asbestos containing equipment that was aboard the U.S.S. Randolph and the U.S.S. Independence at the same time the decedent served on those vessels. Under federal law, summary judgment is appropriate where “the movant shows that there is no genuine dispute as ...
Continue Reading...

Mesothelioma Case Removed from Extremis Trial Group Where Plaintiff Failed to Identify New York City Defendant Supreme Court of New York, New York County, February 2, 2017

Talc defendants filed an appeal of a recent mesothelioma case arguing that the plaintiff should not have been added to a fast tracked “in extremis” trial group. All defendants in this matter were talc defendants. However, the plaintiff alleged that he was exposed to asbestos from ovens in Queens when he was approximately 8-10 years old. The plaintiff alleged that he accompanied his father to work and would crawl inside the “cooled oven” to retrieve the resistors that were inside since he was the only one small enough to fit inside the oven. The defendants argued: 1) The plaintiff failed to identify any manufacturer/supplier of the ovens 2) the plaintiff did not prove that the ovens contained asbestos 3) the plaintiff “manufactured” testimony to achieve in extremis status and 4) ...
Continue Reading...

Favorable Defense Discovery Rulings, Including Preclusion of Treating Physicians from Testifying as Experts U.S. District Court for the Eastern District of Louisiana, February 2, 2017

The district court issued two opinions in the same case, issuing various rulings on motions brought by both parties. The plaintiff alleged he developed lung cancer from asbestos exposure while employed by Freeport Sulphur Company, predecessor to Mosaic Global Holdings, Inc. This case started in Louisiana state court, and was removed by Mosaic. The primary rulings on these motions are summarized below. The plaintiff moved to exclude evidence of settled claims and collateral sources of compensation. The defendants argued that both settlement agreements and collateral sources may be admissible to show bias or for other limited purposes. While the court agreed that Federal Rule of Evidence 408, which excludes this type of evidence, was not a “blanket ban,” the court must also balance the exception against the public policy objectives. ...
Continue Reading...

Automotive Parts Manufacturers Granted Summary Judgment in Secondary Exposure Case Court of Appeal of California, February 2, 2017

The plaintiff sued various automotive parts manufacturers, alleging secondary asbestos exposure from the work of his father, a mechanic. The plaintiff had been diagnosed with mesothelioma. The plaintiff’s father worked at Bekins warehouse from June 1974-May 1982, where he did brake, clutch, and engine gasket repair. The plaintiff visited his father at work, helped him at work, and father’s clothes were washed at home. Products identified in discovery included: two Ford trucks; four International semi-truck tractors; Rockwell axles; Carlisle brake linings; Grizzley brake linings (Maremont, or ArvinMeritor); International replacement parts. Various defendants moved for summary judgment, which was granted by the trial court and affirmed here. The court provided a lengthy summary of the evidence for and against summary judgment and summarized the legal standards applicable to asbestos exposure cases. ...
Continue Reading...