Author Archives: Jason A. Botticelli

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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Indiana Found to be Proper Venue in Federal Court Case that was Previously Transferred Based on Convenience and in the Interest of Justice U.S. District Court for the Northern District of Indiana, Hannond Division, July 13, 2016

In this federal court case, the plaintiff, Clovis Aresnault, commenced an action in the Northern District of Indiana alleging exposure to asbestos while working in steel mills in Illinois and at a plant located both in Illinois and the Northern District of Indiana. The case was transferred to the Eastern District of Pennsylvania as part of the multi-district litigation. The case was remanded back to Indiana after an order granted part of defendant’s motion for summary judgment. The plaintiff subsequently moved to transfer the case…

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Certainteed Obtains Spoliation Charge on Missing Pipe and Defense Verdict Following Two-and-a-Half Week Trial Circuit Court of the Tenth Judicial Circuit for Highlands County, Florida

On July 7, 2016 a Florida jury rendered a defense verdict on behalf of building products manufacturer Certainteed Corporation (“Certainteed”). In this case, it was alleged that the decedent was exposed to asbestos and developed mesothelioma from his work cutting couplings on Certainteed asbestos-containing irrigation pipe next to his family property for an approximate two-week period in either 1969 or 1970. Through discovery it was learned that some of the pipe was removed and reinstalled. After finding witnesses who were able to testify where the…

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What Does New York’s Decision on Duty to Warn Mean Going Forward in Asbestos Litigation?

New York’s highest court has imposed a duty on equipment manufacturers to warn about asbestos containing products manufactured by other manufacturers. This long-awaited decision now resolves the duty issue, but what does it mean going forward in asbestos litigation? On June 28, 2016, the New York Court of Appeals ruled in the Dummitt/Suttner cases that Crane Co. had a “a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as…

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$22 Million Verdict Against Burnham in NYCAL Case

On June 24, 2016 a NYCAL jury awarded a plaintiff, Frank Gondar, $22 million. The award was broken down $12 million for past pain and suffering and $10 million for future pain and suffering. Mr. Gondar was living and had been diagnosed with mesothelioma. He owned a part-time construction company from 1953 to 1973 and allegedly was exposed to asbestos form working in the vicinity of others working with and on residential boilers. The jury found that Burnham failed to provide adequate warnings, which was…

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$6.25 million Jury Verdict In NYCAL Case Against Boiler Manufacturers Supreme Court of New York, New York County, June 13, 2016

On June 13, 2016 a NYCAL jury awarded plaintiff $6.25 million for the death of the decedent, Vincent Geritano, who had been diagnosed with mesothelioma. The only defendants remaining at trial were Burnham and Crown Boiler Co.  The jury found Burnham liable, but not Crown. Burnham was assessed 9 percent liability, with several other entities sharing the remainder of the liability. Read the verdict sheet here.…

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