Author Archives: Jason A. Botticelli

Maryland’s Court of Appeals Rules on Applicability of Statute of Repose

MARYLAND — The Maryland Court of Appeals reversed the decision of the Court of Special Appeals in the matter of Duffy v. CBS Corporation, making two holdings relating to Maryland’s Statute of Repose. First, the court held that an injury related to asbestos exposure that underlies a cause of action for personal injury or wrongful death arises at the time of exposure. The court held that the “exposure approach,” as adopted by the Court in John Crane Inc. v. Scribner, 369 Md. 369,…

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Proposed Testimony of Plaintiff’s Expert, Dr. Arnold Brody, Precluded as Being Cumulative U.S. District Court for the Western District of Washington, March 30, 2018

WASHINGTON — In this case, the plaintiff had already presented testimony from occupational and environmental medicine physician, Dr. Carl Brodkin, on the impacts of asbestos on the body. The plaintiff then was looking to call Dr. Arnold Brody to also provide expert opinion on this subject. The defendant objected, arguing that both experts testimony is substantially similar and should be precluded as cumulative. The court agreed. In its decision, the court outlined the proffered testimony of Dr. Brody and stated that his testimony would have…

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Boiler Manufacturer’s Summary Judgment Reversed; Question of Fact on Product ID and Denial of Bare Metal Defense U.S. District Court for the Northern District of California, April 2, 2018

CALIFORNIA — In this federal court case, the plaintiffs commenced an action in the Eastern District of Pennsylvania alleging the plaintiff’s decedent, Robert Hilt, was exposed to asbestos from numerous products, including Foster Wheeler boilers, on Navy ships . Foster Wheeler moved for and was granted summary judgment based on the finding that the plaintiff’s expert, Dr. Charles Ay’s, opinion was speculative.  Subsequently all other defendants either settled or were dismissed from the case. The plaintiff appealed the order granting Foster Wheeler summary judgment and…

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Dismissal on Basis of Judicial Estoppel Overturned by Second Circuit U.S. Court of Appeals for the Second Circuit, March 30, 2018

NEW YORK — The Clarks entered into personal bankruptcy in 2010. Their proposed bankruptcy plan consisted of monthly payroll deductions. For five years, the Clarks made each payment. In July 2015, Edward Clark was diagnosed with mesothelioma. He believed he was exposed to asbestos while serving in the Air Force and during his subsequent private sector employment. The Clarks decided to file a personal injury action. They informed their bankruptcy attorney of that fact, as they were unsure whether the bankruptcy schedule needed to be…

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Valve Manufacturer’s Renewed Motion for Summary Judgment Granted Based on Preclusion of Plaintiff’s Expert Witness U.S. District Court for the District of South Carolina, March 29, 2018

SOUTH CAROLINA — In this mesothelioma case, the plaintiff, James Chesher, sued alleging asbestos exposure while serving as a machinist mate and commissioned officer in the Navy from 1965 to 1989. Defendant Crane had moved for and was denied summary judgment. However, Crane’s motion to preclude the plaintiff’s causation expert, Dr. Carlos Bedrossian, was granted. The plaintiff moved for reconsideration of the preclusion of his expert and Crane moved to renew its motion for summary judgment. The parties agreed that maritime law applied. The court…

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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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