Author Archives: Jason A. Botticelli

Summary Judgment Granted to Various Defendants For Lack of Product Identification Despite Inclusion in Interrogatory Responses in Take-Home Exposure Case (New York, Supreme Court, Erie County, May 26, 2016)

In this case, it was alleged that the decedent was exposed to asbestos from laundering her husband, Eugene Blamowski’s, work clothes. Mr. Blamowski worked as a laborer at Bethlehem Steel from 1955-84, with the exception of his Army service from 1958-62. He and the decedent were married in 1965 and the decedent had laundered his clothes since that time. Several defendants, including Frontier Insulation Contractors, Beazer East, Riley Power, Inc., and Buffalo Pumps, Inc., moved for summary judgment based on lack of product identification and…

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Issue of Foreseeable Duty to be Determined by a Jury in Take-Home Exposure Case Against Plant Where Decedent’s Husband Worked Court of Appeal of Louisiana, Fourth Circuit, May 4, 2016

The plaintiffs’ decedent, Elizabeth Sutherland, alleged take-home exposure to asbestos from her first husband’s work clothes. The plaintiff’s first husband, James “Huey” Chustz, worked as an electrician helper for Hershel Leonard Jr. Electric Company from 1964-72. At minimum, he spent 250 days at the sugar mill Alma Plantation, LLC, where he would become covered in dust from coming into contact with pipes. After dismissal of various parties and claims, the only claim remaining against Alma was if it owed a foreseeable duty to the decedent.…

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Summary Judgment in Favor of Supplier of Insulation Affirmed on Strict Liability, But Reversed on Failure to Warn Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County, May 5, 2016

In this case it is alleged that the decedent, Ian Blandford, was exposed to asbestos while working as a pipefitter from 1955 to 1998. The Edward R. Hart Company (Hart) moved for and was granted summary judgment. The plaintiff appealed. On appeal the court affirmed the trial court’s granting of summary judgment on strict product liability, but reversed the granting of summary judgment on the failure to warn claim. Regarding strict product liability, the court pointed out that Hart was a supplier of asbestos insulation,…

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Federal Court Analyzes New Jersey State Law in Granting Unopposed Summary Judgment Motions of Six Defendants U.S. District Court for the District of New Jersey, April 8, 2016

In this federal court case, the plaintiff, James McCourt, alleged exposure to asbestos from serving in the Navy (1962-66), working as a pipefitter (1961-62 and 1966-68), home renovations (1952-60), automotive repair work (1959-98), and from the clothing of his father from products manufactured by various defendants. Six defendnats, Guard-Line, Inc., CertainTeed Corporation, Union Carbide Corporation, Exxon Mobil Corporation, PSEG Power, and DAP, Inc., moved for summary judgment. While the plaintiff did not oppose the defendants’ motions, the court still analyzed each motion under New Jersey…

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Partial Motion to Dismiss of Talc Suppliers and Auto-Body Filler Granted Without Prejudice, Giving Plaintiff Time to Amend Claims of Concerted Acts and Intentional and Negligent Misrepresentation U.S. District Court for the Middle District of Florida, Ocala Division, April 8, 2016

This action was originally commenced by the plaintiff in the Southern District of New York and alleged that the decedent, Pedro Rosado-Rivera, was exposed to asbestos-containing auto-body filler while working in auto shops in New York (1959-1968), Puerto Rico (1968-1992) and then thereafter in Florida. The defendant BASF Catalysts LLC’s, joined by other defendants Superior Materials, Inc. and Whittaker, Clark & Daniels, Inc., motion to transfer the case to the middle district of Florida was granted. (BASF and Whittaker were talc suppliers and Superior was…

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Summary Judgment Overturned on Statute of Limitation Argument as No Proof Offered Linking Past Disease With Mesothelioma Diagnosis Supreme Court of New York, Appellate Division, Third Department, March 31, 2016

In this take-home exposure case, the plaintiff was diagnosed with malignant epithelial mesothelioma (MEM) on or about August 5, 2010 and commenced her case against various defendants on November 5, 2012.  After joinder of issue and discovery, several defendants moved for, and were granted, summary judgment, arguing that the plaintiff’s action was time-barred pursuant to CPLR 214-c (2).  Under this statute, “the three year period within which an action to recover damages for personal injury . . . caused by the latent effects of exposure…

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Summary Judgment to Shipbuilders Upheld on Appeal Since Ships Are Not Products and Rejection of Plaintiffs’ Every Exposure Claim U.S. Court of Appeals for the Ninth Circuit, March 31, 2016

In this case, the decedent, James McIndoe, was alleged to have been exposed to asbestos pipe insulation while serving aboard the USS Coral Sea, built by Huntington Ingalls Inc., from 1961–63 and the USS Wordern, built by Bath Iron Works Corporation from 1966-67. The case was removed to federal court under the federal officer removal statute, and Huntington and Bath moved for summary judgment. The district court granted the motions “on the grounds that the ships were not products for purposes of strict liability…

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Plaintiff’s Motion to Consolidate Numerous NYCAL Cases into Six Trial Groups Granted Supreme Court of New York, New York County, March 21, 2016

The plaintiff moved to consolidate numerous cases into six trial groups pursuant to CPLR 602(a) on the grounds that there are common issues of law and fact. Several defendants opposed the consolidation, arguing, among other things, that they are prejudiced by joint trials, which violate their due process and equal protection rights. They also argued that the plaintiffs consistently recover more in joint trials as juries are confused in joint trials and rely on testimony in one action to bolster their determination in another action…

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Lack of Evidence Linking Decedent’s Asbestos Exposure to Defendants Leads to Summary Judgment for Pump and Valve Manufacturers and Contractor U.S. District Court for the Northern District of Alabama, Northeastern Division, March 24, 2016

The plaintiff, George Holland, brought this action on behalf of the decedent, Owen Holland, alleging exposure to asbestos from his work at Monsanto Chemical Plant from 1967–2004. From 1974-2002, the decedent worked with external components of pumps and valves manufactured by Goulds and Crane. He also would sweep packing from around the pumps and fibers from around the valves. Both Goulds and Crane moved for—and were denied—summary judgment. Defendant Fluor Daniel preformed construction and maintenance work at Monsanto from 1967-1998. Its motion for summary judgment…

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Summary Judgment Affirmed as Evidence of Asbestos Impurities in Auto Body Filler Only Equated to a Possibility of Asbestos Exposure Court of Appeal of California, First Appellate District, Division Five, March 15, 2016

In this case, it was alleged that the plaintiff, John DePree, was exposed to asbestos from various products, including the use of Bondo auto body filler in the 1970s to repair dents in his cars.  BASF Catalysts, LLC moved for, and was granted, summary judgment based on its argument that the plaintiffs could not offer more than a mere possibility of exposure to asbestos from a BASF product since any asbestos in the Bondo talc was an impurity and not an intended ingredient. The plaintiffs…

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