Pennsylvania’s Long Arm Statute and its Effect on Personal Jurisdiction

In the wake of the Daimler, BNSF, and Bristol-Myers Squibb opinions recently issued by the U.S. Supreme Court, defendants in asbestos cases throughout the country have been challenging personal jurisdiction with greater success. Yet, Pennsylvania remains a difficult jurisdiction for defendants to assert the defense, due to Pennsylvania’s long arm statute. No Pennsylvania state appellate court or federal court has yet ruled on the general personal jurisdiction issue in an asbestos case since the Bristol-Myers Squibb opinion was issued. In the meantime, a split among courts continues, as explained below. Pennsylvania law explicitly states that qualification as a foreign corporation under the laws of Pennsylvania provides a sufficient basis for the exercise of personal jurisdiction. See 42 Pa. Stat. and Cons. Stat. Ann. § 5301(a). The statute provides, in relevant ...
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Case Remanded to Determine Setoff Amounts from Settlements with Asbestos Trusts Supreme Court of Mississippi, February 15, 2018

MISSISSIPPI — On February 13, 2009, Clara Hagan filed a complaint, as the representative of Bennie Oakes, against Illinois Central Railroad in the Warren County Circuit Court. The complaint, brought under the provisions of the Federal Employers Liability Act, sought to recover damages for personal injuries and/or death sustained by decedent Bennie Oakes while decedent was employed by Illinois Central and while engaging in interstate commerce. The decedent was employed by Illinois Central from 1952 through 1994 and alleged he was exposed to asbestos “on a daily basis.” The first trial occurred in 2011 but resulted in a hung jury. The jury in the second trial found in favor of Hagan and awarded $250,000; however, the jury also apportioned fault, with Illinois Central being twenty percent at fault and Oakes ...
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Plaintiff’s “Every Exposure” and “Cumulative Exposure” Theories Unreliable; Various Plaintiff’s Experts Excluded U.S. District Court for the Western District of Washington, February 12, 2018

WASHINGTON — Defendant Scapa Dryer Fabrics, Inc. filed motions to exclude the plaintiff’s exposure and causation experts in this mesothelioma death matter. The Ninth Circuit remanded this matter for a new trial after finding that the District Court failed to make appropriate determinations under Daubert and Federal Rule of Evidence 702 in allowing expert testimony. The plaintiff alleged asbestos exposures during work at the Crown-Zellerbach Pulp and Paper Mill in Camas, WA. The plaintiff worked with dryer felts, among other products, in his time at the Camas Mill from 1968-2001. Now the District Court found that the “every exposure” and “cumulative exposure” theories were unreliable, and granted the defendant’s motion in part, precluding testimony of the plaintiff’s epidemiology and occupational medicine experts along with quantitative testimony from the plaintiff’s industrial hygienist. ...
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Failure to Establish Good Cause Leads to Affirmation of Denial of Additional Expert Disclosure U.S. District Court for the District of Kansas, February 13, 2018

KANSAS — The plaintiff sued the Budd Company alleging her father, Robert Rabe, developed mesothelioma as a result of occupational exposure to asbestos for which the defendant was allegedly liable. Specifically, Rabe claimed exposure to pipe insulation used on railcars built by the defendant. A scheduling order was entered by the magistrate, which called for the disclosure of experts by June 23, 2012 amongst other deadlines. After that deadline passed, the defendant moved without objection for a modification of the expert disclosure deadline to September 30, 2017. The court granted the motion to modify. The defendant then disclosed 8 experts by the deadline and emailed the plaintiff the name of an additional expert on November 6, 2017. The email stated that Dr. Burgher would offer “general, state of the art ...
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Exclusion of Decedent’s Deposition Testimony Upheld due to Lack of Meaningful Opportunity for Cross Examination Superior Court of Delaware, February 7, 2018

DELAWARE — Plaintiff William Sykes filed suit in March of 2014 against numerous defendants after being diagnosed with mesothelioma in October, 2013. The plaintiff’s counsel requested expedited trial and discovery depositions due to Plaintiff’s rapidly deteriorating health; a video trial deposition was taken on April 16, 2014. During a break in the trial deposition, the plaintiff informed counsel that he was unable to complete the remainder of the deposition. At that time, the parties were left with only the video trial deposition and no cross examination by any defense counsel. Sykes’s health worsened, and he passed away two weeks later without any further depositions taking place. The defendants sought to exclude the plaintiff’s testimony as inadmissible hearsay under the Delaware Rules of Evidence. The defendants further argued that the Delaware ...
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Second Motion to Remand Denied When Plaintiff Asserted Claims She Previously Waived U.S. District Court for the District of Oregon, February 2, 2018

OREGON — The plaintiff initially filed her lawsuit on behalf of her father’s estate, in Oregon state court, alleging he was exposed to asbestos while working at Norwest Marine & Iron Works Shipyard and Albina Engine & Machine Works Shipyard. Both shipyards serviced military and civilian vessels. Neither the original nor amended complaints contained specific ship information. Defendants GE and CBS removed to federal court based upon the federal officer removal statute after plaintiff provided a ship list. The plaintiff filed a motion to remand, asserting that she was not claiming exposure aboard any U.S. Navy vessel. The court granted the motion to remand. Shortly after remand, the plaintiff sent the defendants a request for production of documents regarding evidence of the plaintiff’s exposure while working in the pump rooms ...
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Four Cases Improperly Removed Due to Citizenship of Managing Agent of Defendant U.S. District Court for the District of Montana, February 1, 2018

MONTANA — Four plaintiffs originally filed suit in the Eighth Judicial District of Cascade County Montana alleging exposure to asbestos in Libby, Montana. Defendant BNSF removed the case to federal court on diversity of citizenship grounds, and alleged that BNSF’s managing agent John Swing was fraudulently joined. The court reviewed the Magistrate Judge’s Findings and Recommendations following a November 2017 hearing, and remanded all four cases to state court. Each of the four plaintiffs named 80-year-old Montana resident John Swing in their complaints, and gave a two sentence description of his role with BNSF. Swing allegedly acted as a supervisory agent for BNSF in Libby Montana from 1973 to 1984, with safety concerns falling in his purview. The allegations of the complaints were the same as to Swing and BNSF: ...
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Federal Court Collaterally Estops Claims in Separate Disease Case U.S. District Court for the Eastern District of Missouri, Eastern Division, January 30, 2018

MISSOURI — Over a period of six years, plaintiff Berj Hovsepian filed two separate actions for two separate diseases, asbestosis and mesothelioma, arising out of his work with various products as a civilian employee of the United States Navy in Boston from 1958-1964. The current action sits in federal court, having been removed from a December 2015 case filed in state court in Missouri. The court granted defendant Ingersoll-Rand’s summary judgment motion on collateral estoppel for the reasons discussed below. In December of 2009, Hovsepian sued Ingersoll-Rand and other defendants in state court in Massachusetts, alleging negligence, breach of express and implied warranties, and gross negligence. In this action, the plaintiff alleged that his work with the defendants’ products led to the development of his asbestosis. Ingersoll-Rand did not complete ...
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Plaintiff’s Motion to Remand to State Court Denied After Court Finds Federal Jurisdiction under the Outer Continental Shelf Lands Act U.S. District Court for the Eastern District of Louisiana, January 24, 2018

LOUISIANA — On June 16, 2017, plaintiff Federico Lopez filed suit against 15 defendants, claiming that his exposure to asbestos as a welder and pipefitter at numerous locations caused his mesothelioma.  Defendants Shell Oil Company and Tennessee Gas Pipeline, LLC, removed the action, invoking federal subject matter jurisdiction pursuant to the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. Section 1349(b), and alternatively, pursuant to federal question jurisdiction, 28 U.S.C. Section 1331.  Further, the defendants contended that the court had supplemental jurisdiction over the plaintiff’s claims against all other defendants pursuant to 28 U.S.C. Section 1367(a) as those claims are so related to the claims falling under this Court’s original jurisdiction such that they form part of the same case or controversy.  Finally, the defendants asserted that removal was timely ...
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Remand Granted After Finding that Government Did Not Direct Safety Operations of Shipyard Defendant U.S. District Court for the Eastern District of Louisiana, January 19, 2018

LOUISIANA — The plaintiffs brought this action against several defendants including Huntington Ingalls (Ingalls) alleging that their decedent, Tyrone Melancon, was exposed to asbestos for which the defendants were liable. The plaintiffs asserted that Melancon developed mesothelioma from exposure to asbestos while working at the Avondale Shipyard from 1965-2002. Ingalls. along with others, removed the case to U.S. District Court on federal officer removal. The plaintiffs moved for remand arguing that defendants were not entitled to such removal. According to the court, removal under federal officer is proper when “1) the defendant is a person within the meaning of the statute and 2) the defendant acted pursuant to a federal officer’s direction and 3) that a causal connection exists between the defendant’s actions under the color of federal office and ...
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