A Look Back at the Bare Metal Defense in 2017

In the past year, the bare metal defense continued to see some variance from jurisdiction to jurisdiction, with at least one federal appellate court taking up an issue for further clarification late in the year. The bare metal or component parts defense essentially provides that a manufacturer is not liable for harm caused by asbestos products that the manufacturer did not manufacture or distribute, and owes no duty to warn of the hazards inherent to those products. It is viewed in some jurisdictions in the context of causation, with manufacturers of products that did not originally include asbestos component parts escaping liability given a lack of proximate cause for plaintiffs’ injuries. Other courts try to examine whether the risks of asbestos hazards were reasonably foreseeable to defendants whose products may ...
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U.S. Supreme Court Denies Appeal of Former Speaker of New York State Senate; Stage Set for Retrial

NEW YORK — Sheldon Silver’s appeal to the U.S. Supreme Court was denied on Tuesday, January 16, 2018. Silver appealed part of the Second Circuit’s decision overturning his convictions on corruption charges. That decision overturned Silver’s convictions citing improper jury instructions pursuant to the Supreme Court’s decision in U.S. v. McDonald. Silver’s appeal centered on the money laundering charge. For that charge, he argued that a split exists among federal appeals courts as to the prosecutorial requirement linking a transaction to the suspected crime. Essentially, he argued that the prosecutors had failed to meet that requirement. Silver had been convicted in 2015 of using his political influence and position to steer money to a mesothelioma researcher in a trade for client referrals to Silver’s law firm. Check back with Asbestos ...
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Plaintiffs’ Motion for Reconsideration of Dismissals Based Upon Lack of Personal Jurisdiction Denied U.S. District Court for the Eastern District of Missouri, January 11, 2018

MISSOURI — On June 27, 2017, the U.S. District Court for the Eastern District of Missouri granted several defendants’ motions to dismiss based upon a lack of personal jurisdiction. The plaintiffs subsequently filed a motion to reconsider due to an intervening change in the law, specifically the U.S. Supreme Court’s Bristol-Myers Squibb (BMS) opinion issued on June 19, 2017. The court noted that such motions, filed pursuant to Federal Rule of Civil Procedure 59, cannot be used to raise arguments which could have been raised prior to the issuance of judgment. Recognizing that the BMS opinion was issued after briefing on the personal jurisdiction issue, the court nevertheless found that the plaintiffs could have raised the argument before the June 27, 2017 decision was rendered. The court also held that ...
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Removal Under Federal Officer Removal Statute Held to Begin on Date of Receipt of Deposition Transcript U.S. Court of Appeals for the Fifth Circuit, January 11, 2018

On February 23, 2017, the plaintiff filed a complaint against Avondale Shipyards, and numerous other defendants, alleging he suffered mesothelioma from his employment at Avondale. The plaintiff was deposed over eight days from March 9 to April 13, 2017. He was cross-examined by counsel for Avondale on March 10 and 20, 2017. On March 28, 2017, counsel for Avondale received a link to the deposition transcript. Avondale removed the matter on the basis of federal officer jurisdiction on April 27, 2017, 30 days following receipt of the transcript. The plaintiff filed a motion to remand on the basis that the removal was untimely, which was granted by the District Court. The Fifth Circuit detailed the statutory language permitting removal, and after a thorough statutory construction analysis, found that oral testimony ...
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Denial of Remand When Removal Under Federal Officer Removal Statute Deemed Timely U.S. District Court for the District of Maryland, January 10, 2018

MARYLAND — The plaintiff filed her lawsuit in the Circuit Court for Baltimore County on June 5, 2015, alleging the decedent was exposed to asbestos at Bethlehem Steel Sparrows Point Shipyard as a riveter heater and boiler maker from 1948 through the 1970s. A co-worker was deposed on December 11, 2015, and testified that decedent was exposed to asbestos from Foster Wheeler products while building ships for the Vietnam War. Foster Wheeler removed the case base on the Federal Officer Removal Statute to the U.S. District Court for the District of Maryland on January 11, 2016. The plaintiff filed a motion to remand on February 9, 2016 on the basis that Foster Wheeler had not established a colorable federal defense. Foster Wheeler appealed to the Fourth Circuit Court of Appeals, ...
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Asbestos Case Tracker — 2017 Compendium

With reported asbestos decisions continuing to rise, the need to keep informed on developments across the country is imperative. Goldberg Segalla’s Asbestos Case Tracker blog — ranked on the ABA Journal Blawg 100 list of the best legal blogs — is the go-to resource for up-to-date asbestos decisions happening in courts throughout the United States. Our blog also reports on legislative updates, significant verdicts, and other critical developments in the asbestos area. We provide summaries of and access to decisions, along with insightful commentary from our attorney bloggers and guest authors, in-depth feature articles, links to useful resources, and much more. We are pleased to provide this full-year compendium of Asbestos Case Tracker posts to clients and friends of Goldberg Segalla. Our hope is it acts as a convenient resource for you. Click here ...
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Plaintiffs’ Asbestos-Related Claims Time-Barred Due to Prior Settlement Agreement U.S. Court of Appeals, Fifth Circuit, January 4, 2018

LOUISIANA — Plaintiffs-Appellants are the widow and surviving children of Raymond J. Lemieux, Sr.. Mr. Lemieux, Sr. worked for Johns-Manville in Marrero, Louisiana from 1956 to 1970 during which time he wore a respirator designed by American Optical, Defendant-Appellee. Raymond, Sr. developed asbestos-related lung cancer, which eventually caused his death in 2015; prior to his death, he filed suit in 2011 against American Optical stemming from his use of their respirator. Represented by his attorney, Raymond, Sr. entered into settlement negotiations with American Optical. The plaintiffs were unaware of these discussions, but as a condition of Raymond, Sr.’s settlement with American Optical, they eventually signed sworn, notarized Settlement agreements. Nearly one year after Raymond Sr.’s death and over five years after executing the settlement agreements, the plaintiffs filed suit against ...
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Superior Court Affirms Five Post-Trial Rulings, Remands to Trial Court for Apportionment Under Pennsylvania Fair Share Act Superior Court of Pennsylvania, December 28, 2017

PENNSYLVANIA — Appellee William Roverano initially filed suit in 2014 against multiple defendants, alleging that his lung cancer was caused by exposure to asbestos while employed by PECO between 1971-81. Appellee Jacqueline Roverano also made a claim for loss of consortium. More than a dozen of the named defendants had filed for bankruptcy, and only John Crane, Inc. and Brand Insulations, Inc. had not settled before the jury’s verdict. Prior to the trial, the court held that the Fair Share Act, 42 Pa.C.S. Section 7102, did not apply to asbestos cases. At trial, the appellants focused on Roverano’s history of smoking and further argued that any exposure to their products was de minimus and could not have caused his lung cancer. Conversely, the appellees’ experts opined that it was both ...
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Personal Jurisdiction Defense Waived in Maritime Multidistrict Litigation U.S. Court of Appeals, Third Circuit, December 28, 2017

Appellants George Perdreauville and Joseph Blue, along with thousands of other seamen, initially filed lawsuits in the late 1980s in the U.S. District Court for the Northern District of Ohio under the Jones Act, 46 U.S.C. Section 304 et seq., and general maritime law, alleging injury from exposure to asbestos while onboard the Appellees’ various ships. A lengthy and complex procedural course ensued, and, in 1991, the suits were consolidated in the Asbestos Multidistrict Litigation (MDL) in the U.S. District Court for the Eastern District of Pennsylvania. In 2014, that court dismissed the appellants’ cases due to lack of personal jurisdiction. The appellants subsequently filed a timely joint appeal, arguing, inter alia, that the appellees had waived their personal jurisdiction defenses. This case directly parallels a 2016 decision from the ...
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Claire’s Removes Children’s Makeup Kits After Reported Positive Asbestos Tests

Claire’s Stores Inc. removed nine children’s makeup products from store shelves after a report by WJAR-TV that tremolite asbestos was found in various Claire’s kits. Claire’s released a statement, saying that initial testing found the cosmetics to be asbestos-free, but that “out of an abundance of caution, additional testing is underway.” Claire’s further stated that the talcum powder used in its products is from a certified asbestos-free European vendor. A Rhode Island mother was the first to report the potential problem. Kristi Warner, an attorney with the Deaton Law Firm, had just received training about the dangers of asbestos and talc and saw her daughter using Claire’s products. Warner sent the product to Sean Fitzgerald, who had trained her firm about the dangers of asbestos. He conducted testing and found ...
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Jury Verdict Against Construction Company Reversed in Premise Liability Case District Court of Appeal of Florida, Third District, December 27, 2017

FLORIDA — Appellant/defendant Bechtel appealed the trial court’s final judgment after a Florida jury found that plaintiff Richard Batchelor’s mesothelioma was caused in part by exposure to asbestos at Florida Power and Light (FPL) during the years 1974 to 1980. Bechtel built the plant at issue, and was responsible for ongoing maintenance services throughout the plaintiff’s six years at FPL, providing over a million contracted man hours during that time period, and having trailers on site for office space and storage. A three judge panel heard Bechtel’s appeal, and addressed two issues in its decision to grant. First, Bechtel challenged the trial court’s discretion in instructing the jury that Bechtel’s alleged failure to search for evidence permitted an adverse inference. The court stated that “(t)he normal rule is that ‘[a] ...
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