Was There Exposure? Objective Tests Through Advances in Biomarker Science Relevant to Asbestos and Other Toxic Tort Litigation

C-reactive protein (CRP, human) inflammation biomarker, chemical structure. Infections and inflammation cause increased blood levels of this protein. Atoms are represented as spheres. Per chain coloring.

Some of the most difficult product liability cases to resolve are tough because of a lack of clarity as to the duration or amount of exposure. For example, defendants and plaintiffs sometimes take very different views of exposure in the so-called “take home” cases where a spouse allegedly developed a cancer from a “toxin” in the workplace of the other spouse. Over the next few years, some litigants will be smart enough to take advantage of the findings from new, objective tests that are arising due to the revolutionary developments in molecular biology, Simply put, the revolution is moving towards increasingly fast, and relatively inexpensive tools and tests useable to identify and measure objective molecular data related to mesotheliomas and other cancers. These biomarkers are being developed because of their ...
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Kentucky Appellate Court Rejects “Any Exposure” Causation Theory U.S. Court of Appeals for the Sixth Circuit, January 10, 2017

100974359 In September of 2012, William Stallings filed suit in Kentucky state court against Georgia Pacific and other manufacturers of the asbestos containing products he had been exposed to decades earlier, seeking punitive damages under theories of strict liability and negligence. Specifically, Stallings was diagnosed with mesothelioma allegedly caused by his four years of Naval Service, where he helped operate and maintain boilers aboard the USS Waller. After leaving the Navy, Stallings worked as a drywall finisher, where he alleged exposure from mixing and installing drywall. The case was later removed to federal district court, and proceeded there until September 2013, when Stallings passed away from complications due to his mesothelioma. Carol Lee Stallings, as the surviving spouse and as executrix of the estate (the plaintiff), filed an amended complaint and ...
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Federal Court Denies Defendants’ Motion to Dismiss on Jurisdiction Without Prejudice U.S. District Court for the Middle District of Florida, Tampa Division. January 12, 2017

475449322 On September 26, 2016, Plaintiff Marc Killam filed suit in the Thirteenth Judicial Circuit in and for Hilsborough County, Florida against various defendants after learning of his asbestosis diagnosis. Killam alleged he was exposed to asbestos through his Naval Service, from 1973-77 aboard the USS McCandless while at sea and in the Philadelphia Navy Yard. Here, Killam claims a number of defendants manufactured, sold, distributed, installed, or promoted the asbestos products with which he came into contact. He also alleged, that from 1978-80, as an auto mechanic, he breathed asbestos dust emanating from products manufactured by additional defendants. The defendants removed the case to the U.S. District Court for the Middle District of Florida, Tampa Division on October 13, 2016 pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. Killam sought ...
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Motion to Dismiss on Lack of Jurisdiction Denied as Limited Discovery is Required U.S. District Court for the District of New Jersey, January 9, 2016

iStock_000054736346 On October 28, 2015, the plaintiff, Estelle Grimes, widow of plaintiff-decedent Thomas Grimes, brought suit against the defendants and numerous other corporations who also allegedly mined, sold, or distributed asbestos in New Jersey state court. On December 1, 2015, the case was removed from state to federal court. The plaintiff amended the complaint on August 1, 2016. The defendants ACL and Bell filed mirror-image motions to dismiss for lack of personal jurisdiction on August 4, 2016 before the U.S. District Court for the District of New Jersey. The defendants argued, among other things, that they were Canadian corporations, were not registered to do business in New Jersey, and that all sales of asbestos were made F.O.B. (Free on Board). The plaintiff countered that this argument has been rejected each and ...
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Appellate Court Reverses Trial Court’s Directed Verdict in NYCAL Supreme Court of New York, Appellate Division, First Department, January 10, 2017

On August 29, 2014, Judge Barbara Jaffe entered an order granting defendant Consolidated Edison’s (Con Edison) post-trial motion to set aside a verdict against it and direct that judgment be entered in its favor. Upon appeal, the Supreme Court of New York, Appellate Division, First Department, issued an a decision on January 10, 2017. The crux of this case revolves around the plaintiff’s exposure to asbestos while working for a subcontractor at Con Edison’s power plant. The Appellate Division found the trial court improperly set aside the verdict in the plaintiff’s favor on the Labor Law § 200 claim against Con Edison. Here, the court held the evidence at trial demonstrated that Con Edison had the authority to control the activity bringing about the injury, and an implicit precondition to ...
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No Error in Recommendation of Summary Judgment Where Plaintiffs Failed to Establish Causation U.S. District Court for the District of Delaware, January 9, 2017

Large industrial boiler factory Summary Judgment was recommended by the magistrate for the plaintiffs’ failure to establish causation in this case. The plaintiff appealed and contended that his asbestos related disease was a result of exposure to asbestos from Foster Wheeler boilers while working onboard the USS Gridley. The court noted that the standard of review of a magistrate’s report and recommendation is de novo. In this case, no party objected to the application of maritime law. Accordingly, the plaintiff had the burden to show: 1) The plaintiff was exposed to products made by Foster Wheeler 2) Foster Wheeler made or distributed the product 3) the product was a substantial factor in causing the plaintiff’s injuries. The court stated that direct and circumstantial evidence is permitted to establish substantial factor. However, the plaintiff must ...
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Crane Asserted a Colorable Federal Defense to Establish Jurisdiction Under Federal Officer Removal Statute U.S. District Court for the Middle District of Florida, January 9, 2017

The plaintiff sued various defendants for negligence, strict liability, and fraudulent inducement. Crane removed to federal court under the federal officer removal statute, and plaintiff moved to remand. The court denied this motion. To remove under Section 1442(a)(1) the defendant must qualify as a “person” under the federal officer removal statute, must act under the direction of a federal officer at the time the defendant engaged in the allegedly tortious act, and must advance a “colorable federal defense.” Also, a causal connection must appear between what the officer has done under asserted official authority and the state prosecution. In support of remand, the plaintiff argued Crane failed to demonstrate a colorable federal defense. Crane asserted the federal contractor defense, which was available if: (1) the United States approved reasonably precise ...
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Various Rulings in NYCAL Case Regarding Defendants’ Motion in Limine to Preclude Certain Evidence Supreme Court of New York, New York County, January 4, 2017

468770277 The plaintiff alleged asbestos exposure through his work as a roofer, maintenance man, and carpenter. The defendants submitted a joint motion in limine to preclude certain evidence. The court issued various rulings, summarized below. First, the defendants asserted that Dr. Jacqueline Moline would offer a scientifically unsupportable causation opinion that every occupational exposure was a substantial factor in causing the plaintiff’s mesothelioma. This was also known, among other things, as the “each and every exposure” or “cumulative exposure” theory. At the outset the court noted this was a mischaracterization of the plaintiff’s theory, as these theories were different. In support, the defendants cited to various cases around the country which have rejected the “every exposure” theory. The defendants also requested a Frye hearing on this issue. The plaintiff argued this ...
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National Forum on Asbestos Claims and Litigation

Welter-Joseph_s-web On Thursday, January 12, 2017, Joseph J. Welter, partner and chair of Goldberg Segalla’s Toxic Tort and Environmental Practice Group, will be speaking at ACI’s Asbestos Claims and Litigation Conference in Philadelphia. This is ACI’s 22nd National Forum on Asbestos Claims and Litigation and will feature several topics, including: Insurer-counsel-insured relationships: strategy between client, carrier, national counsel, and local counsel Fallout surrounding bankruptcy trust transparency Lung cancer and asbestos and a closer look at the science behind it Joe will be part of the panel “Reviewing the Recent Uptick in Talc Cases: Litigating Claims Involving Products Containing Talc (Industrial, Cosmetic) and Determining How the Increase in Ovarian Cancer Claims Factors Into These.” For more than two decades, Joe has served as national, regional, and local trial counsel for prominent manufacturers, ...
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Death of Statutory Beneficiary During Pendency of Jones Act Claim Did Not Extinguish Jones Act Claims; Estate Could Recover Benefit U.S. District Court for the Eastern District of Pennsylvania, January 5, 2017

iStock_000057140096_XXXLarge Defendant Thompson Hine filed a motion for summary judgment, arguing that the plaintiff’s Jones Act survival claims abated due to no statutory beneficiary. The court denied the motion. The plaintiff alleged that the decedent, Joseph Braun, was exposed to asbestos during his work aboard ships owned by the defendants and died from an asbestos-related disease. This case was originally filed in 1989 and asserted claims under the Jones Act and general maritime common law. In April 2011, the case was transferred to MDL 875 as part of the consolidated asbestos products liability multidistrict litigation. During the pendency of this action, the decedent’s wife also died. The record was unclear regarding whether the decedent had further next of kin dependent upon him. Thompson Hine argued there was now no statutory beneficiary ...
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Defendants’ Motion for Judgment on the Pleadings Granted, but Plaintiffs Allowed to Amend Complaint U.S. District Court for the District of Maryland, January 3, 2017

The plaintiffs initially filed a “short form asbestos complaint” in the Circuit Court for Baltimore City, Maryland, that included general counts for negligence, strict liability, loss of consortium, conspiracy, and fraud. The plaintiffs also realleged and incorporated counts for wrongful death from the naster complaint. The case was removed to federal court and the defendants filed the motion for judgment on the pleadings under Rule 12(c), among other arguments, with the United States District Court for the District of Maryland. A motion for judgment on the pleadings under Rule 12(c) is assessed under the same standard applicable to motions to dismiss under Rule 12(b)(6). Here, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. [Citation Omitted]. In ...
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