New Considerations in Defending Against Lung Cancer Cases Part 1: HPV Status

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For some time now, we have been writing, discussing, and suggesting that there is great value in thinking about genetic and other “omic” data when defending toxic tort or product liability cases involving disease allegations of any kind. But these “omic” data are especially critical in cases involving allegations of cancer causation. On this note, we were intrigued when we saw a recent post reporting that defense experts and lawyers in asbestos litigation spent some time thinking about the Human Papilloma Virus (HPV) as a possible factor in a lung cancer case. Needless to say, it is refreshing to see this thinking being applied in an actual case, even though it settled before trial. (Nicholson v. Akzo Nobel, Cal. Super. Ct., No. RG13700989). HPV and Recent Lung Cancer Case So, ...
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Remand Granted Based on Finding that Plaintiffs Acted in Good Faith Naming Defendant With State Contact U.S. District Court, Northern District of California, August 22, 2016

iStock_000058921340_Full The plaintiffs sued multiple defendants including several “citizens” of California. Four days before trial defendant John Crane Inc. removed the case to federal court on diversity. The plaintiff then moved to remand. The court began its analysis by stating the legal standard for removal which permits removal when the federal court could have “exercised original jurisdiction” in the case. Additionally, the burden falls upon the removing defendant. A case may be removed under diversity unless one of the parties is a properly joined and served defendant of that state.  A notice of removal must be filed within 30 days of service of paper from which the removing defendant could “ascertain” that the case is removable. The defendant took the position that it was not aware that the case was removable ...
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Magistrate Judge Recommends Various Rulings on Five Summary Judgment Motions Filed by Defendants U.S. District Court for the District of Delaware, August 19, 2016

US Navy The United States Magistrate Judge recommended disposition on five summary judgment motions filed by various defendants in this mesothelioma case wherein plaintiffs alleged asbestos exposure during plaintiff Mark Hillyer’s employment with the U.S. Navy from 1967-1997.  The only product identification witness was plaintiff Mark Hillyer, who testified that he was exposed to asbestos through his maintenance work on reactor plant systems, steam plant systems, engines, and turbine generators.  In deciding these motions, the court applied maritime law such that plaintiff must show that (1) he was exposed to defendants’ product and (2) the product was a substantial factor in causing the injury he suffered.  The plaintiffs alleged strict liability, negligence, and loss of consortium claims.  The court recommended granting summary judgement for each defendant on the plaintiffs’ punitive damages claims, ...
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Exclusion of Belated Theory of Exposure Upheld on Appeal Court of Appeals of California, Second Appellate District, Division Four, August 18, 2016

iStock_000012627058_Full The plaintiff sued multiple defendants, including “asbestos” and “premises” defendants, asserting claims of negligence, strict liability and premises liability based on his alleged asbestos exposure in the City of Coalinga (where he resided from 1959 to 1972) and during his 30-year career as a pipe inspector. Defendant PAC Operating Limited Partnership was sued as a premises defendant. Its predecessor, Southern Pacific Land Company (SPLC), owned 557 acres of land in the Diablo Mountain Range, located 17 miles outside of Coalinga. In 1961, SPLC leased the land to a company primarily owned by Johns-Manville, which mined and milled asbestos ore at the site until 1972. In 1980, the EPA declared the land a “superfund” site. In 1987, the EPA also declared the Coalinga Operating Unit (Coalinga OU) (a 107 acre plot ...
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Summary Judgment for Crane Manufacturer Based on Affidavit of Company Vice President Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport, July 19, 2016

475449316 Plaintif Katherine Filosi, individually and as executor of the estate of Donald Filosi, filed a complaint against multiple defendants, including American Crane & Equipment Corporation (ACECO).  The plaintiff alleged that the decedent Donald Filosi was exposed to asbestos while employed by Boat Corporation (Electric Boat) as a rigger from 1961 to 1998 and, as a result of that exposure, he developed lung cancer and died. Defendant ACECO moved for summary judgment, arguing that the plaintiff produced no evidence from which a jury could conclude that Mr. Filosi was ever exposed to asbestos from any product manufactured, distributed, or sold by ACECO.  ACECO argued that the cranes referenced by Mr. Filosi in his deposition bearing the name “American” were not manufactured by ACECO.  In support of its argument, ACECO submitted an ...
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Court Denies Multiple Motions including Plaintiff and Ford Motor Co.’s Daubert Motions, Ford’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration U.S. District Court for the Southern District of Florida, July 11, 2016

iStock_000056734526_XXXLarge (1) Plaintiff James Waite and his wife Sandra Waite brought this action against Ford Motor Co. and Union Carbide Corporation (UCC) for Mr. Waites’ alleged development of mesothelioma from his work on brakes and clutches. UCC’s motion to dismiss for lack of personal jurisdiction was at first denied by the Court but then granted on UCC’s Motion for Reconsideration. Ford then moved to exclude the plaintiffs’ experts (Daubert Motion) and for summary judgment. The plaintiff moved to preclude various elements of Ford’s proposed expert witness testimony and also moved for reconsideration of the order dismissing UCC. The court began its lengthy discussion with the three prong test for a Daubert Challenge, which includes 1) the expert is qualified to testify competently regarding the matters he intends to address; 2) the methodology ...
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Appeals Court finds No Conflict of Laws and Reverses Dismissal Based on Alaska Statute of Repose Court of Appeals of Washington, Division Two, August 9, 2016

Plaintiff Larry Hoffman filed suit in the Superior Court of Washington, Pierce County against numerous defendants alleging he developed mesothelioma from exposure to asbestos. Specifically, Hoffman is alleging take-home exposure from his father working as a welder for Ketchikan in Alaska in the 1950s and 1960s. Hoffman also alleges exposure from his own work at Ketchikan pulp mills in the 1960s and 1970s. Each mill featured steam turbines manufactured by General Electric (GE). Although it operated solely in Alaska, Ketchikan is a Washington corporation, having incorporated in 1947 before Alaska became a state. Hoffman’s suit included both Ketchikan and GE (among others) as defendants alleging theories of product liability and negligence. After extensive motion practice, the superior court ruled that a conflict of laws existed between Alaska’s and Washington’s respective ...
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Jury Returns Defense Verdict on Failure to Warn and Design Defect Claims Involving Contaminated Talc and Kent Cigarettes Middlesex County, New Jersey, August 15, 2016

iStock_000054736346 In a case involving a variety of alleged asbestos exposures, trial proceeded against three defendants – Lorillard Tobacco, H&V, and Whittaker Clark – for asbestos exposures through allegedly contaminated talc and Kent cigarettes with micronite filters. The jury found that plaintiff did not prove by a preponderance of the evidence its failure to warn claims against all three defendants. Design defect claims were alleged against Lorillard and H&V; again, the jury found that plaintiff did not prove by a preponderance of the evidence that both defendants defectively designed its products. Read the verdict sheet here.
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Defendants Granted Summary Judgment Where Plaintiff Failed to Satisfy Frequency, Proximity, Regularity Standard U.S. District Court for the District of Delaware, August 9, 2016

100974359 Plaintiff Robert Lee Winhauer filed an asbestos action in the Delaware Superior Court against multiple defendants, asserting personal injury claims relating to a mesothelioma diagnosis proximately caused by alleged exposure to asbestos. The defendants removed the action to the U.S. District Court for the District of Delaware. After Winhauer’s death, the complaint was amended to substitute a representative of the estate and add a wrongful death claim. The defendants Honeywell (successor in interest to Bendix) and Ingersoll Rand both filed motions for summary judgment, which are the basis for this decision. The plaintiff alleged that Mr. Winhauer developed mesothelioma as a result of exposure to asbestos-containing products while performing automotive maintenance work during his employment in a shipyard in Mississippi from the 1940s through 1990s. All product identification evidence was ...
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Court Rules Summary Judgment Not Appropriate Due to Ambiguity on How Non-Cumulation Clause Operated U.S. District Court for the Southern District of New York, August 5, 2016

Liberty Mutual Insurance Company issued successive annual insurance policies to the Fairbanks Company from January 1, 1974 to January 1, 1982. Liberty issued both comprehensive general liability and umbrella policies. Multiple lawsuits were filed in several jurisdictions against Fairbanks, alleging injuries due to exposure to asbestos, and this coverage litigation resulted. On March 21, 2016, the court ruled on Liberty’s motion for summary judgment, concluding that the policies were subject to pro rata allocation such that Liberty was only liable to indemnify Fairbanks for the years Liberty was “on the risk.” In this decision, the court granted reconsideration of its ruling in light of the New York Court of Appeals decision in In re Viking Pump, Inc., 27 N.Y.3d 244 (2016), which held that “all sums” allocation should apply to ...
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