Author: Joseph J. Welter

Case Decisions / Louisiana / Summary Judgment
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Louisiana Federal Court Grants Three Defendants’ Summary Judgment Motions Due to Lack of Exposure

The plaintiff commenced this wrongful death mesothelioma case, alleging in part that his father was exposed to asbestos-containing products while in the U.S. Naval Reserve in the 1950s and 1960s. The defendants, GE, CBS, and Foster Wheeler, moved for summary judgment, arguing that the plaintiff’s evidence was insufficient to establish the decedent’s exposure to their products.

The plaintiff opposed the motion with an expert affidavit, described by the court as follows: “Plaintiff relies on the expert report of Laurence Durio, who opined that Mr. Laurent …

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Case Decisions / Wisconsin
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Wisconsin Federal Court Refuses to Enforce Settlement and Ruled Defendant Waived Defenses of Standing, Mootness, and Issue Preclusion

The plaintiff sued the defendant, Owens-Illinois, for injuries caused to the decedent by asbestos exposure, which proceeded in multidistrict litigation for many years and was transferred back to the District Court of Wisconsin in 2014. A settlement agreement had apparently been reached, which the plaintiff’s estate representative claimed was not authorized. After the district court refused to enforce the settlement, Owens-Corning moved to dismiss the case on three grounds: the plaintiff lacked standing as the estate representative; the plaintiff’s action is moot because she failed …

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Case Decisions / Summary Judgment
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Court of Appeals Upholds Lower Court’s Rulings Denying Caterpillar’s Motions for Summary Judgment, a New Trial, and to Vacate Jury Award

In this case, it was alleged that the decedent, Edwin Estenson, was exposed to asbestos while in the Navy from 1948 to 1952 and while working on Caterpillar equipment for three contractors between 1955 and the late 1960s. Prior to trial, Caterpillar’s  motion for summary judgment was denied.  Following trial, where Caterpillar was the only defendant, the jury awarded the plaintiff a verdict of approximately $4.5 million. Caterpillar subsequently appealed the court’s denial of its motion for summary judgment, motion for a new trial, and …

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Case Decisions / Summary Judgment
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Defendants’ Motion for Summary Judgment on Judicial Estoppel Grounds Denied Because Plaintiff Did Not Act in Bad Faith When He Failed to Disclose His Asbestos Lawsuit in Subsequent Bankruptcy Filing

The plaintiff claims he developed an asbestos-related illness as a result of exposure to asbestos while working aboard various ships. The plaintiff originally brought his asbestos-related claims against several defendants in 1997. His claims were administratively dismissed in a manner allowing for those claims to be brought at a later time; the claims were reinstated in 2001, but there was no evidence that the plaintiff had been informed that his lawsuit had been reinstated.  Following the reinstatement, the plaintiff filed for bankruptcy under Chapter 7 …

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Case Decisions / Summary Judgment
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Court Rejects Plaintiffs’ Experts’ Opinions Because They Did Not Read Plaintiff’s Deposition Testimony and Grants Summary Judgment Based on Insufficient Product Exposure

In this mesothelioma case, plaintiff James Shiffer worked at a power plant for several months in 1969 and 1970, during which time he claimed exposure to a Westinghouse turbine with asbestos-containing components that was present at the plant. Westinghouse moved for summary judgment because “…[t]here is no dispute Shiffer did not repair or maintain any Westinghouse equipment, and did not install or remove any insulation material himself. Nor is there any dispute that no already-installed insulation was removed or disturbed during Shiffer’s time at Ginna.” …

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Case Decisions / Expert Challenges / Missouri / Summary Judgment
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Court Provides Mixed Ruling in Applying Kansas Law and Granting Summary Judgment to One Defendant, but not the Other

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendants Hennessy Industries and Caterpillar Incorporated moved to apply Kansas law and for summary judgment.

The court granted in part Hennessy’s motion and dismissed the plaintiff’s complaint. The court found that Kansas law “possesses the most significant relationship to these parties and causes of actions.” In its assessment, the court reviewed four factors: the place of exposure and diagnosis, where the conduct causing the injury …

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Case Decisions / Expert Challenges / Missouri
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State of The Art Experts Drs. Markowitz and Rosner Found Qualified to Testify

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendant Caterpillar Incorporated moved to strike the expert state of the art testimony of historians Dr. Gerald Markowitz and Dr. David Rosner, arguing that “…(1) their testimony will not assist the jury in deciding any issue in this case; (2) they fail to qualify as ‘experts’ under Rule 702; (3) their report was written solely for the purposes of litigation; (4) their report is unreliable …

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Case Decisions / Connecticut / Summary Judgment
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Connecticut Appellate Court Affirms Dismissal of Asbestos Action for Failure to Prosecute the Action with Reasonable Diligence

The plaintiff’s decedent brought this personal injury action in August 2009, alleging that his mesothelioma was caused by exposure to asbestos from several defendants’ products. The plaintiff’s decedent died a few days after the commencement of this action and before any deposition testimony or product identification evidence was disclosed. The plaintiff was appointed as executrix of the decedent’s estate less than a month after his death. In November 2012, three years after the decedent’s death, the trial court set a trial date. The defendants moved …

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Bankruptcy Trusts / Case Decisions
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Court Refuses to Dismiss Garlock’s RICO Complaints Against Plaintiff Law Firms

Following the well-publicized decision in the Garlock bankruptcy, Garlock commenced a number of actions in federal court against asbestos plaintiffs’ law firms that allegedly engaged in fraud in the settlement of their clients’ mesothelioma claims against Garlock. In two of these actions, the defendant plaintiffs’ firms moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on a variety of grounds, including that the claims were time-barred. One of the arguments was that Garlock knew of the alleged misrepresentations so long ago that …

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Case Decisions / Delaware / Summary Judgment
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Court Applies Delaware’s Borrowing Statute in Granting Defendants’ Summary Judgment on Statute of Limitations

In this case, the plaintiff alleged that his lung cancer was caused by exposure to several defendants’ asbestos-containing products while he was working in Michigan. The plaintiff and his wife filed their claim in Delaware and all defendants moved for summary judgment, arguing that the action was untimely under the Delaware statute of limitations, which they claimed applied pursuant to Delaware’s “Borrowing Statute,”10 Del. C. 8121.

The court agreed and granted defendants’ motions for summary judgment. The court pointed out that the parties had agreed …

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