Author Archives: Joseph J. Welter

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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Asbestos Litigation: Did We Forget These Are Warnings Cases?

In the world of asbestos, the predominant claim against defendants is that they should have warned against the dangers of asbestos. Typically, plaintiffs prove exposure to a product, absence of any warning (or an adequate warning) and damages. The jury verdict sheet simply reads something like, “Was defendant negligent in manufacturing, selling or supplying a product without an adequate warning” and “was that negligence a substantial factor in causing plaintiff’s injury.” Unlike all other products liability warnings cases, a plaintiff seems to be held to…

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Defense Verdict in New Jersey Cosmetic Talc Case Under New Jersey’s Product Liability Act November 2, 2015

In a case of first impression under New Jersey’s Product Liability Act, a Middlesex County, New Jersey jury returned a defense verdict in a mesothelioma case involving a 60-year-old plaintiff who claimed exposure to cosmetic talcum powder products in the 1950s-1970s that were allegedly contaminated with trace amounts of asbestos. The jury found that Shulton, Inc., the supplier of some of the products to which the plaintiff claimed exposure, and Whittaker, Clark & Daniels, Inc., the supplier of some of the raw talc used to…

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California Court Holds Refractory Contractor Established Insufficient Evidence of Exposure and Grants Summary Judgment U.S. District Court for the Southern District of California, November 2, 2015

The plaintiff commenced this wrongful death claim alleging the decedent was exposed to asbestos while J.T. Thorpe & Sons was performing refractory work around boilers. Thorpe moved for summary judgment on the ground that there was insufficient evidence decedent was actually in the vicinity of Thorpe employees working with refractory materials. The court concluded that the plaintiff has some threshold burden of establishing some factual basis for exposure and that Thorpe met it initial burden that there was insufficient evidence of exposure: “Thorpe has satisfied…

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Bacon is the New Asbestos! Really?

So, this is a perfect example of the realities of this world and how state of the art can be distorted. The World Health Organization has indicated that processed foods, such as bacon, sausage and hot dogs are in the same category as smoking and asbestos in terms of their potential to cause cancer. The news reports that have come out in the last few days barely touch upon the science and medical aspects, yet here come the sound “bites” that processed food is deadly.…

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A Call for an Evidence Based Approach in Asbestos Lung Cancer Cases: Better Late Than Never?

My friend and colleague Laura Kingsley Hong recently authored an article entitled “Controversies Regarding The Role of Asbestos Exposure in the Causation of Lung Cancer: The Need for An Evidence Based Approach,” which appeared in Mealey’s Litigation Report. Ms. Hong’s commentary ties together current medicolegal concepts that are applied in virtually every scientifically-based litigation to longstanding but evolving scientific issues in asbestos litigation. While this is a debate that needs to happen, it raises the interesting question of why now and why not before? In…

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The High Court Down Under Allows Earlier Cause of Action Accrual in Lawsuits Claiming Inevitable Onset of Mesothelioma

On October 7, 2015, the High Court of Australia dismissed the appeal of a negligent employer and held that where the contraction of mesothelioma was an inevitable result of asbestos exposure, the cause of action accrues shortly after the initial exposure as opposed to when the symptoms manifest. This ruling came from a case in which the plaintiff inhaled asbestos fibers in the course of his employment. The plaintiff’s mesothelial cells changed quickly after the initial exposure, but the symptoms were not apparent until 2013…

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Thoracic Surgeon Provides Heated Chemo, Hope for Veterans With Pleural Mesothelioma

Good news has come out of Boston for veterans suffering from mesothelioma.  Thoracic surgeon Dr. Abraham Lebenthal recently performed the first intraoperative heated chemotherapy procedure for a VA patient with malignant pleural mesothelioma, a procedure that should aid in this hard-fought battle against this cancer.  As Lebenthal said in an interview, “[f]or some veterans, it could mean the difference between long-term survival or not.” While some doctors have differing opinions as to this heated chemotherapy’s effectiveness, Dr. Lebenthal has been lobbying for its use…

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Texas Federal Court Ruled Primary Carrier Was Entitled to Reimbursement for Settlement Payments But Not Defense Costs in Connection with Underlying Asbestos Cases U.S. Disctrict Court, Eastern District of Texas, October 12, 2015

LGS Technologies, LP v. U.S. Fire Ins. Co., No. 2:07-CV-399, 2015 U.S. Dist. LEXIS 139085 (E.D. Tex. Aug 14, 2015) On October 12, 2015, the district court from the Eastern District of Texas filed an order, accepting the report and recommendation of the Special Master in connection with an asbestos insurance coverage dispute between a variety of primary and excess carriers.   LGS Technologies, LP (LGS), a gasket company, had both primary policies from 1980-83 with ACE, primary policies from 1983-1993 and excess policies from 1986-1993…

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Legislative Reform for Timely Disclosure of Settlements: What Do You Think?

Much has been made about the injustice of plaintiffs being able to game the system by potentially seeking excess recovery through a combination of claims asserted against bankruptcy trusts and in civil litigation. This has led to bankruptcy transparency legislation at the state and federal level, because defendants in asbestos litigation were being denied a full and fair opportunity to assess a plaintiff’s claim of asbestos exposure and to identify all the companies, both viable and bankrupt, that are allegedly responsible.  The fundamental principles are…

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