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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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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Summary Judgment Granted Where Worker’s Compensation Act Bars Plaintiff’s Claims U.S. District Court for the Western District of North Carolina, September 29, 2017

NORTH CAROLINA — Plaintiffs filed suit against Alcatel Lucent, as successor in interest to Western Electric and Bell Labs (Alcatel), alleging Mr. Moore developed mesothelioma as a result of his work as a cable puller from 1965-95. Alcatel moved for summary judgment, arguing that the North Carolina Worker’s Compensation Act (Act) prohibited the plaintiffs’ claims. The plaintiffs opposed summary judgment and took the position that the exception laid down by the court in Woodson applied. The court’s analysis began with the standard for summary judgment. Summary judgment is appropriate “if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as matter of law.” The Act provided that employers are only liable to the extent permitted by the Act itself. ...
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Lack of Service on Forum Defendants Fails to Defeat Removal Due to Diversity Jurisdiction U.S. District Court for the Eastern District of Louisiana, September 30, 2017

LOUISIANA — The plaintiffs originally filed their petition in the Civil District Court for the Parish of Orleans, State of Louisiana, after William Leech died of mesothelioma. The plaintiffs were residents of Arizona and named numerous defendants, including three who were Louisiana residents. Nine days after the petition was filed, and before any other defendants were served, defendant Honeywell International removed the action to federal court on the basis of diversity jurisdiction, which was uncontested. The decedent was a construction engineer who alleged asbestos exposure at various work sites in various states from 1965-92. The plaintiffs filed a Motion to Remand arguing two points: 1) the presence of the three Louisiana defendants in the matter defeated removal under the forum defendant rule, pursuant to 28 U.S.C. § 1441; 2) all defendants ...
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