Author Archives: Jason A. Botticelli

California Jury Awards $13 Million in Wrongful Death Action Against Sugar Plant

The decedent, Mark Lopez, died from mesothelioma in July 2015. His family brought suit against Hillshire Brands Co., now Tyson Foods, for the decedent’s exposure to asbestos from the now derelict Union Sugar plant. The plant had several owners and closed for good in 1993. The decedent’s family alleged that the small town of Betteravia, where the plant was located and the decedent’s family lived, was contaminated with asbestos from the plant’s operations. The decedent’s grandfather and father worked at the plant. Additionally, as a…

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Case Remanded to State Court Following Resolution of Claims that Invoked Federal Officer Statute U.S. District Court for the Northern District of Ohio, Eastern Division, March 17, 2017

The plaintiffs commenced this action in state court alleging that various products caused plaintiff Ralph Shonkwiler to develop mesothelioma. Defendant CBS Corporation (Westinghouse) removed the matter to federal court based on the federal officer statute since the plaintiffs claimed exposure to their product was a Navy turbine and the claimed exposure took place while plaintiff was serving in the Navy aboard the U.S.S. Ingram. In January 2017, the plaintiffs informed the court that all claims against Westinghouse were resolved and Westinghouse was dismissed from the…

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Daubert Challenges Result in Experts Being Allowed to Testify Regarding General Causation; Not Specific Causation U.S. District Court for the Eastern District of Louisiana, March 6, 2017

In this federal court case, it was alleged that the plaintiff’s decedent was exposed to asbestos while serving in various job duties while in the U.S. Navy during the 1960s.  The plaintiff brought two Daubert motions seeking to preclude the defendants’ experts, Drs Michael Graham and Mark Taragin, from testifying. Dr. Graham is a forensic pathologist and Dr. Taragin is an epidemiologist.  The court granted in part and denied in part the plaintiff’s motions. The court would allow each expert to provide general causation testimony…

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Happy Holidays; or Alternative Exposure to Asbestos Snow

With the holiday season upon us, I came across a vintage picture of asbestos snow. There were several manufacturers of asbestos snow, which used to be a product that provided some ambiance to Christmas trees. Common brands were Pure White, Snow Drift and White Magic. The directions called for sprinkling the powder freely over and beneath your tree. It was also used by manufacturing companies to decorate any type of Christmas decoration you can think of — from tree ornaments to wreaths that hung…

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Granting of Summary Judgment to Asbestos Insulation Supplier Based on Government Contractor Defense Upheld on Appeal Court of Appeal of California, First Appellate District, Division One, November 22, 2016

In this case, the plaintiff, Gary Kase, claimed exposure to asbestos insulation used in Navy nuclear submarines during the 1970s. Defendant Metalclad Insulation Corp. provided the asbestos-containing insulation, Unibestos, to the U.S. Navy. Metaclad moved for and was granted summary judgment based on the government contractor defense. The plaintiff appealed. On appeal, the court thoroughly reviewed the standards for summary judgment based on the government contractor defense pursuant to the seminal case Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Boyle set forth…

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Denial of Administrative Dismissal Turns on Definition of a “Smoker” Under Ohio State Code Court of Appeals of Ohio, Eighth Appellate District, November 17, 2016

Plaintiff Bobby Turner and his wife commenced an action in April 2013 alleging asbestos exposure caused his lung cancer. The plaintiff was a drywall finisher from 1962 to 1978. Defendant Union Carbide moved to administratively dismiss the claim in February 2014, claiming that the plaintiffs failed to submit prima facie evidence pursuant to R.C. 2307.92. (Under Ohio’s Revised Code General Provisions a plaintiff must meet minimum medical requirements for tort actions alleging an asbestos claim). In response, the plaintiffs submitted an affidavit saying that Mr.…

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Removal Found Procedurally Proper Based on Diversity U.S. District Court for the Eastern District of Louisiana, October 24, 2016

The plaintiffs, Nolan and Susan Legeaux, brought a motion to remand their asbestos case from federal court arguing that removing defendants failed to follow the correct removal procedure, that there are non-diverse defendants, and that the federal officer removal statute, 28 U.S.C. § 1442, is not applicable to the facts of the case. The motion was opposed by defendants Puget Sound Commerce Center, Inc., Vigor Industrial LLC, and Vigor Shipyards, Inc. The plaintiffs’ motion was denied. The court found there was nothing procedurally improper about…

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Foreseeability of Harm or Relationship Between The Parties: The Difference in Liability for Premise Owners in Take-Home Exposure Cases

Depending on the state, liability of a premise owner in a take-home toxic tort case will hinge either on foreseeability of harm or the relationship of the parties. This distinction is illustrated below in two recent take-home exposure cases, one from New Jersey and one from Arizona. In the New Jersey case, Schwartz v. Accuratus Corp., 225 N.J. 517, 139 A.3d 84, (N.J. 2016) , the New Jersey Supreme Court unanimously ruled that the premise liability of a landowner can go beyond the spouse…

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No Harm No Foul in Asbestos Product Liability Action With Physical Injury

In a recent decision out of an Illinois appellate court, it was held that physical injury does not always equate to compensable physical harm. In the case of Sondag v. Pneumo Abex Corp., et al, the plaintiffs, Joseph and Phyllis Sondag, sued various defendants they claimed exposed Joseph Sondag to asbestos, which lead to his developing pleural plaques and interstitial fibrosis. The plaintiffs alleged that the defendant Tremco, Inc. manufactured asbestos containing tape that was used by Joseph as a professional plasterer. The case…

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Various Manufacturers Granted Summary Judgment Under Mississippi Law, Including Acceptance of Bare Metal Defense U.S. District Court for the District of Delaware, July 13, 2016

The plaintiff, Robert Lee Winhauer, commenced this action alleging asbestos exposure from his personal work on his automobiles from the 1940s through the 1990s, from his work at the Ingalls Shipyard in Pascagoula, Mississippi from 1965 to 1976 and while working at Courtaulds North America Rayon Staple Plant in Le Moyne, Alabama from 1977 to 1998. Nine defendants, John Crane, John Crane Inc. (JCI), Flowserve US Inc., Carver Pump Co. , Sterling Fluid Systems (USA) LLC, FMC Corp., Velan Valve Corp., Borg-Warner (D.I. 173), and…

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