Author Archives: Gregory M. McNamee

Summary Judgment Granted and Request for Continuance Denied Based Upon Lack of Evidence U.S. District Court for the Northern District of California, April 16, 2018

CALIFORNIA — Defendant, Rohr, Inc., filed a motion for summary judgment based upon a lack of evidence demonstrating the plaintiff was exposed to a Rohr product. The plaintiffs opposed the motion, but failed to present any such evidence in support of their opposition. The plaintiffs also filed a motion to continue, pursuant to Federal Rule of Civil Procedure 56(d), for additional time to conduct discovery. To succeed on such a motion, the moving party must show: 1) an affidavit setting forth the specific facts to…

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Case Remanded Based Upon Lack of Fraudulent Joinder U.S. District Court for the District of South Carolina, April 16, 2018

SOUTH CAROLINA — The plaintiff filed a lawsuit in the Court of Common Pleas for Darlington County, South Carolina, alleging that Bertila Boyd-Bostic suffered from mesothelioma due to asbestos exposure in the 1980s. On March 2, 2018, a Third Amended Complaint was filed, alleging that Johnson & Johnson, Imerys Talc America, Rite Aid of South Carolina and others were liable for Ms. Boyd-Bostic’s mesothelioma, based upon her use of baby powder. The recently-joined defendants removed the case on April 6, 2018. The plaintiff filed an…

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Motion for Reconsideration Based Upon Change in Law Denied as Untimely U.S. District Court for the District of Delaware, April 9, 2018

DELAWARE — Plaintiffs Icom and Johanna Evans filed a lawsuit on June 11, 2015 in Delaware Superior Court relating to Mr. Evans’ alleged asbestos exposure. Foster Wheeler removed the matter to federal court on August 4, 2015, pursuant to the federal officer removal statute. Defendants Foster Wheeler and Warren Pumps filed motions for summary judgment in October 2016. Both motions were opposed. The district court issued a Report and Recommendation (R&R) on August 30, 2017, recommending that the motions be granted pursuant to maritime law,…

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Legislation Introduced in Pennsylvania to Abolish Lawsuits Against Employers for Asbestos-Related Diseases

PENNSYLVANIA — Republican Pennsylvania State Representative Eli Evankovich introduced a bill on April 2, 2018 to eliminate the ability of employees to sue their employers for asbestos-related diseases. Prior to the Pennsylvania Supreme Court’s issuance of the Tooey decision in November 2013, Pennsylvania employees were barred from filing suit against their employers due to the exclusivity provision of the Pennsylvania Workers’ Compensation. Those employees could file a workers’ compensation claim if diagnosed within 300 weeks of their last date of exposure, but due to the…

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Louisiana Statute of Limitations Bars Wrongful Death Claim Filed in Delaware Superior Court of Delaware, March 26, 2018

DELAWARE — The plaintiff, Sandra Kivell, filed a wrongful death and survival claim alleging her husband’s death was caused by mesothelioma. He passed on September 5, 2015, and the new claims were filed on September 30, 2016. The plaintiff’s decedent had originally filed a complaint before his death. Georgia-Pacific filed a motion for judgment on the pleadings, arguing that the claims were filed beyond Louisiana’s one year statute of limitations for wrongful death and survival claims. The plaintiff did not contend that the Louisiana statute…

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Pennsylvania Statute Authorized General Personal Jurisdiction if Foreign Corporation Registered in Pennsylvania U.S. District Court for the Middle District of Pennsylvania, March 19, 2018

PENNSYLVANIA — The U.S. District Court for the Middle District of Pennsylvania held that the defendants were subject to general personal jurisdiction due to the consent provision in Pennsylvania’s long-arm statute. The facts are as follows: the plaintiff, Thomas Gorton, alleged he developed mesothelioma as a result of his work at various phone companies and from changing automobile brakes. None of the alleged exposure took place in Pennsylvania. The case was filed in state court and removed to federal court. Defendants Ford Motor Company, Pacific…

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New Evidence Leads to Vacated Final Judgment in Favor of Fertilizer Company Superior Court of New Jersey, Appellate Division, February 26, 2018

NEW JERSEY — In an unpublished opinion issued by the New Jersey Superior Court, Appellate Division, the plaintiff successfully overturned the entry of summary judgment on the basis of discovery of new evidence. The plaintiff filed suit in 2012, alleging that his application of two bags of Scotts Turf Builder fertilizer twice a year, from 1967 to 1980, caused him to develop mesothelioma. He passed shortly after filing the lawsuit and his wife was substituted as executrix of the estate. The plaintiff alleged that Scotts…

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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…

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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,…

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Plaintiffs’ Motion for Reconsideration of Dismissals Based Upon Lack of Personal Jurisdiction Denied U.S. District Court for the Eastern District of Missouri, January 11, 2018

MISSOURI — On June 27, 2017, the U.S. District Court for the Eastern District of Missouri granted several defendants’ motions to dismiss based upon a lack of personal jurisdiction. The plaintiffs subsequently filed a motion to reconsider due to an intervening change in the law, specifically the U.S. Supreme Court’s Bristol-Myers Squibb (BMS) opinion issued on June 19, 2017. The court noted that such motions, filed pursuant to Federal Rule of Civil Procedure 59, cannot be used to raise arguments which could have been raised…

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