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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Johnson & Johnson Found Not Liable in California Talcum Trial Los Angeles County Superior Court, November 16, 2017

After almost three days of deliberation following a four week trial, a Los Angeles area jury reached a defense verdict in a mesothelioma case against Johnson & Johnson and its supplier Imerys Talc America, Inc. In closing arguments, the plaintiff urged the jury to consider evidence that allegedly documented Johnson & Johnson’s long awareness of asbestos contamination in its talc mines in attributing the plaintiff’s disease to the defendants. Defense arguments focused on a lack of asbestos markers in the plaintiff’s lungs, and pointed to breast cancer radiation treatments as an alternate cause of the mesothelioma. The jury found that the defendants’ talc was not defective or unsafe, that the defendants did not fail to warn of potential risks, that the talc was not negligently designed, and that the talc ...
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Plaintiff’s FELA Claim Against Railroad Survives Limitations Challenge Supreme Court of Montana, November 14, 2017

MONTANA — The plaintiff worked for Burlington Northern and Santa Fe Railway Corporation (BNSF) and claimed exposure to amphibole containing vermiculite in that capacity as BNSF transported vermiculite for W.R. Grace. The plaintiff filed suit against BNSF for his asbestos related disease under FELA. The trial court granted summary judgment for the defendant and the plaintiff appealed. Prior to the suit, W.R. Grace filed for bankruptcy protection in 2001. A temporary restraining order (TRO) was immediately issued prohibiting any suits against third parties arising from W.R. Grace’s mining operations. The court entered a preliminary injunction in 2001, which stayed all actions pending or not filed. Years later, W.R. Grace moved to enlarge the language of the injunction to include claims arising from its mining operations, e.g., those against BNSF. The ...
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Los Angeles Jury Deliberating in $24M Talcum Product Trial Los Angeles County Superior Court, November 13, 2017

CALIFORNIA — Closing arguments were conducted on Monday, November 13, 2017 in a trial against Johnson & Johnson and its supplier, Imerys Talc America Inc., alleging that asbestos in talcum powder caused the plaintiff’s mesothelioma. The plaintiff’s counsel argued that Johnson & Johnson and Imerys pushed to delay regulation of talc for years, and that the companies advocated for methods of testing their products for asbestos that could not detect the levels actually present. The plaintiff suffers from mesothelioma, and her life is predicted to be cut short by 23 years. The plaintiff’s counsel asked the jury to award $1M in non-economic damages for each of those years, in addition to approximately $1M in lost wages and medical bills. Punitive damages were also alleged. Johnson & Johnson countered by arguing ...
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Mesothelioma Verdict Reduced by $4.3 Million on Appeal Supreme Court, State of New York, November 8, 2017

NEW YORK — Plaintiff Mary Nash filed suit on behalf of the plaintiff’s decedent, Lewis Nash, alleging bystander exposure to asbestos-containing dust from defendant Navistar’s brakes and gaskets while working as a janitor and bus driver in the Fayettteville-Manluis Central School District. The decedent’s exposure occurred in the bus garage at the school, where decedent routinely spent time during his bus runs. The jury awarded the plaintiff the following: three million dollars in conscious pain and suffering; three million dollars in emotional pain and suffering between the onset of the decedent’s disease and death; 200,000 dollars for loss of services and society from the onset of the decedent’s disease until his death; one million dollars for wrongful death from the date of death until the verdict, and; 500,000 dollars for ...
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After Close of Discovery Motion for Release of Pathology Materials Granted U.S. District Court for the Eastern District of North Carolina, November 3, 2017

NORTH CAROLINA — Defendant John Crane filed a motion for an order governing the release of pathology materials following the close of discovery. Although pathology materials had been requested from the plaintiff’s counsel nearly a year and a half prior to the discovery end date, they were not produced until eight days after that deadline had passed. John Crane then learned that there were additional pathology materials in the possession of Duke University Hospital System (DHUS). John Crane requested the additional slides in April 2017, to which the plaintiff’s counsel objected. In July 2017, DHUS informed John Crane that it would not voluntarily release the additional pathology materials, even if DHUS’ conditions for release were met. John Crane then filed a motion for leave to file the motion for order governing ...
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Lack of Product Specific Expert Testimony About Respirable Asbestos Fibers Reverses Mesothelioma Verdict Supreme Court of Connecticut, November 2, 2017

CONNECTICUT — Plaintiff Marianne Bradley, as executrix of her husband Wayne Bagley’s estate, sought to recover damages pursuant to Connecticut’s Product Liability Act for the wrongful death of the decedent under theories of negligence and strict liability. Plaintiff alleged that the decedent was exposed to asbestos-containing dust from FM-37, a product manufactured by the defendant, while working at Sikorsky Aircraft Corporation and this exposure caused decedent’s mesothelioma. The plaintiff further alleged that the defendant’s actions in selling its product constituted violations of the Act in that its product was unreasonably dangerous and that the defendant knew or should have known that its product was inherently dangerous and yet failed to use reasonable care by not testing the product to ascertain its danger or removing the product from the marketplace. For approximately ...
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Bestwall LLC Seeks Bankruptcy Protection

Bestwall LLC, a unit of Georgia Pacific, sought bankruptcy protection under U.S. Chapter 11 early Thursday morning. Bestwall LLC filed the petition as a result of towering costs associated with defending asbestos claims around the nation. The filing comes during a period of time in which both state and federal lawmakers ponder proposals to curb asbestos claims. A company statement indicated that Georgia Pacific is unaffected by the filing.
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Plaintiff’s Failure to Establish Causation and Lack of Opposition Leads to Grant of Summary Judgment U.S. District Court for the Western District of Kentucky, October 27, 2017

KENTUCKY — Rojelio Surita brought this action against several defendants alleging his decedent, Nancy Surita, developed mesothelioma from exposure to asbestos containing products for which Defendants were liable. Nancy Surita gave deposition testimony stating that she assisted in brake jobs on the family farm while growing up in Illinois. She also recalled maintenance on vehicles while serving in the National Guard. Later she testified as to working on military trucks. Although she recalled Caterpillar as the manufacturer of the transmissions, she testified that she did not perform transmission work. As for the brakes, she was unable to recall the brands of the removed or replacement brakes. Caterpillar removed the case to the United States District Court. The defendants moved for summary judgment. The plaintiff filed no opposition. The court reviewed ...
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Los Angeles Jury Concludes Mesothelioma Not Caused By Asbestos Superior Court of the State of California, County of Los Angeles, October 27, 2017

CALIFORNIA — The estate of Velma Searcy (plaintiffs) filed suit in the Superior Court of Los Angeles for the personal injuries and subsequent death of Velma Searcy at age 51. The plaintiffs argued that Searcy’s mesothelioma diagnosis and death was caused from occupational exposure to asbestos through Searcy’s work as an electrician in the aerospace industry. The plaintiffs’ claims also included allegations of take-home asbestos exposure as a child watching her father perform brake changes on various vehicles. Most of the defendants either settled with the plaintiff or were dismissed prior to trial. Dexter Hysol Aerospace LLC, as the lone remaining defendant, proceeded to trial on two main defenses: (1) Searcy’s mesothelioma diagnosis was not accurate and her disease was not caused by asbestos exposure, and (2) even if it ...
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Wisconsin Federal Court Denies Insurers’ Attempt to Consolidate Coverage Actions U.S. District Court for the Eastern District of Wisconsin, Oct. 27, 2017

WISCONSIN — A federal judge in Wisconsin denied several insurers’ request that it abstain from hearing claims against them for coverage in asbestos-related related suits against Eaton Corporation. Some of the underlying claims brought against Eaton were based on personal injuries from using products produced by a company Eaton acquired by merger, Cutler-Hammer, Inc. Each of the defendant insurers had, at some time, issued an excess liability insurance policy to Cutler-Hammer. Eaton has coverage actions pending against insurers in both Ohio and Wisconsin. The Ohio action is a state court action dealing with coverage for suits based on asbestos-related personal injuries from Eaton’s own axle-brake business, while the Wisconsin case involves only coverage for suits based on Cutler-Hammer’s business. Motions are pending in the Ohio case that would make all ...
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