Author Archives: Jason A. Botticelli

Summary Judgment Overturned on Triable Issue as to Medical Monitoring of Plaintiff’s Asbestos-Related Pleural Plaques Court of Appeals of California, First Appellate District, Division One, March 14, 2016

In this federal court case, the plaintiff, Robert Hanson, filed a complaint in 2010 against various defendants, including “Doe” defendants, alleging asbestos exposure caused his asbestosis. In 2012, the plaintiff substituted Collins Electrical Company for one of the Doe defendants. In 2013, Collins moved for summary judgment, arguing that the plaintiff did not have any evidence of asbestosis or any asbestos-related injury. While the motion was pending, the plaintiff was allowed to file a first amended complaint, which removed any reference to asbestosis and claimed…

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Motion to Remand Granted Based on Supporting Documents Showing Asbestos Work of Non-Diverse Defendant and Early Stage of Discovery U.S. District Court for the Eastern District of Louisiana, March 4, 2016

In this case, the plaintiff alleged exposure through his father’s work close from 1953 through the 1970s. The plaintiff’s father worked at the Exxon Baton Rouge facility. The plaintiff also claimed exposure to asbestos as an adult while working as a carpenter at various residential construction sites and as a contractor at Exxon between 1965 through 1978. Defendant Exxon removed the action to federal court based on diversity with the consent of defendants Georgia-Pacific, LLC and Union Carbide Corporation . The plaintiff subsequently moved to…

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Garlock’s Action Based on Fraud For Failure to Disclose Exposure to Bankrupt Manufacturer’s Products Dismissed as Time-Barred Court of Appeals of Kentucky, March 4, 2016

In a prior action brought by estate representative, Delores Robertson, for alleged asbestos exposure to the decedent, Thomas Robertson, Garlock Sealing Technologies LLC was found by a jury to be 25-percent liable. The remainder of the liability was split between the decedent and other settled and non-settled first and third party defendants. Judgment was entered on December 1, 2008.  On July 26, 2012, Garlock brought an action pursuant to CR 60.02(d) claiming that the judgment was based on fraud for plaintiff failing to disclose in…

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Case Remanded to State Court to Hear Defendant’s Motion to Dismiss on Personal Jurisdiction as State Court Issues Predominate Case U.S. District Court for the Central District of California, March 3, 2016

In this case, the decedent Oscar Villanueva, is alleged to have been exposed to asbestos from various products while working at Glendale Auto Radio Stereo from 1969 to 1990. Defendant FCA US LLC removed the case to federal court since any judgment would have an impact on its bankruptcy estate. Defendant Dr. Ing. H.C.F. Porsche moved to dismiss arguing improper service of process and lack of personal jurisdiction. The plaintiff subsequently dismissed the claim against FCA and moved to remand for lack of subject matter…

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Section 2 of the Indiana Product Liability Act Statute of Repose Found Unconstitutional Supreme Court of Indiana, March 2, 2016

In this federal court case, three appeals regarding the constitutionality of the Indiana product liability act statute of repose were consolidated for review. Several defendants moved for summary judgment based on the statute of repose in each of the cases with various results. The plaintiffs now argue that section 2 of the statute draws a constitutional impermissible distinction between asbestos plaintiffs who have claims against defendants who both mined and sold raw asbestos and asbestos and those asbestos plaintiffs that have claims against defendants that…

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Case Remanded to State Court Despite Defendant’s Claim Plaintiffs Acted in Bad Faith with Claims Against Non-Diverse Defendant U.S. District Court for the Northern District of California, February 24, 2016

In this case, Asbestos Corporation, Ltd. (ACL) removed the action to federal court on the ground of diversity. The plaintiffs moved to remand, arguing that ACL removed the action past the one year deadline to do so. ACL responded that the missing of the deadline to remove is excused since the plaintiffs acted in bad faith by maintaining a claim against a non-diverse defendant, J.T. Thrope & Sons, Inc. (JTTS), to prevent removal. The plaintiffs responded that they were active in prosecuting those claims in…

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Expert Opinion on Asbestos Content of Insulation — Based in Part on Non-Party Witness Declaration — Sufficient to Create Question of Fact to Overcome Summary Judgment Court of Appeal of California, First Appellate District, Division One, February 18, 2016

In this case, it was claimed that the decedent, Michael O’Leary, was exposed to asbestos while working as a rigger at the Tosco Refinery in the 1970s to late 1980s near employees from the defendant, Dillingham Construction N.A., Inc., who were sweeping up insulation off the floor in his vicinity. The trial court precluded the opinion that the insulation contained asbestos as being speculative from the plaintiff’s expert, Charles Ay, and granted summary judgment to Dillingham. On appeal, the court found the expert’s opinion to…

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Mixed Rulings on Daubert Challenges and Motions for Summary Judgment by Employer on Employees’ Non-Occupational Asbestos Exposure Claims U.S. District Court for the Western District of Wisconsin, February 19, 2016

In this decision, there were eight separate actions against Weyerhaeuser Company involving private and public nuisance claims brought by, or on the behalf of, former employees of Weyerhaeuser for asbestos-related injuries based on non-occupational exposure. Weyerhaeuser used asbestos in its mineral core plant to manufacture a door core. The plaintiffs non-occupational exposure claims were based on their living, or being, in close proximity to the plant. Weyerhaeuser “moved to strike plaintiffs’ experts and for summary judgment, arguing that plaintiffs are unable to prove injuries beyond…

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Airplane Manufacturer Granted Dismissal in N.Y. Federal Court Action for Lack of Jurisdiction Even Though Registered to do Business and Appointed an Agent for Service of Process U.S. Court of Appeals for The Second Circuit, February 18, 2016

In this federal court case, it was alleged that the decedent, Walter Brown, was exposed to asbestos while serving as an airplane mechanic in the U.S. Air force from 1950-1970. During that time, he worked at various bases in Europe and in the U.S. in Alabama, Delaware, Georgia, Illinois, New Mexico, and Michigan. Prior to his passing, the decedent, who was living in Alabama, sued 14 companies, including Lockheed Martin Corporation in the United States District Court for the Southern District of Alabama. A motion…

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Daubert Challenge of Plaintiff’s Experts Denied in Career Boilermaker Case U.S. District Court for the Southern District of California, February 16, 2016

The plaintiff in this case alleged that the decedent, Michael Walashek, was exposed to asbestos from various products while working as a boilermaker between 1967 and 1986 on various naval, commercial, and industrial vessels. The defendant, Foster Wheeler LLC, filed a motion to preclude the testimony of the plaintiff’s experts Dr. Edwin Holstein ad Dr. Michael Claude Fishbein on the grounds that their opinions do not satisfy the requirements of Fed. R. Evid. 702 and Daubert. The court denied the motion. Regarding Dr. Fishbein,…

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