Author Archives: Lynn A. Lehnert

Applying Maritime Law, Federal Court Grants Summary Judgment, Refusing to Speculate on Decedent’s Exposure to Pump Defendant’s Products While in the Navy U.S. District Court for the District of New Jersey, September 29, 2015

Plaintiff Josephine Fuoco, as executrix of the estate of Joseph Fuoco, alleged that Mr. Fuoco contracted mesothelioma while serving in the U.S. Navy as a machinists’ mate and as a construction worker. Defendant Warren Pumps moved for summary judgment, which the court granted. Warren did not dispute that its circulating pumps were on the USS Ammen, the ship on which Mr. Fuoco served. However, no fact witness offered testimony regarding Mr. Fuoco’s alleged asbestos exposure on board this shop. Warren was added to the…

Continue Reading....

Alabama Supreme Court Reverses Summary Judgment In Favor of Talc Defendant Based on Product Identification, Not Asbestos Content, of Talc Supreme Court of Alabama, September 30, 2015

In this case, the Alabama Supreme Court reversed and remanded the order granting summary judgment to defendant Vanderbilt Minerals. The Supreme Court included a large summary of facts in its opinion. The decedent, Dansby W. Sanders, died from mesothelioma; prior to his passing, he sued numerous defendants alleging he was exposed to asbestos while working for Mobile Paint Company. Vanderbilt supplied industrial talc under the brand name Nytal to Mobile Paint. Various witnesses testified as to the presence of Nytal supplied by Vanderbilt. Vanderbilt responded…

Continue Reading....

Defendant Establishes Colorable Defense Under Federal Law, Plaintiff’s Motion to Remand Denied U.S. District Court for the Southern District of Illinois, September 28, 2015

The plaintiff filed this action in Madison County, Illinois, alleging injury due to asbestos exposure. The defendants, CBS and General Electric, removed the action to federal court under federal officer removal statute 28 U.S.C. 1442. The plaintiff filed a motion to remand, which the court denied. The court cited the United States Supreme Court in listing the three elements required to establish a colorable defense to the use-of-asbestos claim: (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; (3)…

Continue Reading....

Applying Maritime Law, Defendants’ Summary Judgment Motions Denied in Case Alleging U.S. Navy Exposure U.S. District Court for the Southern District of Illinois, September 23, 2015

The plaintiff alleged he developed severe asbestosis as a result of inhaling asbestos while serving in the United States Navy. Three defendants — John Crane, General Electric, and Ingersoll-Rand — moved for summary judgment. In deciding the motion, the court determined whether maritime or Illinois law applied. A plaintiff’s exposure in a products liability claim must meet both a locality test and a connection test in order to apply maritime law. The locality test analyzes whether the tort occurred on navigable water, or, if the…

Continue Reading....

Defendants’ Motion in Limine To Exclude Expert Testimony on “Each and Every Exposure” Opinion Denied Based on Federal and Illinois Law U.S. District Court for the Southern District of Illinois, September 21, 2015

Various defendants filed a motion in limine to exclude the testimony of Matthew A. Vuskovich, M.D., M.S.P.H., arguing that he does not satisfy the requirements for expert testimony outlined in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Specifically, defendants sought to exclude his opinions based on the “every exposure” theory, because it is not accepted by the scientific community or the courts. The court denied the motion, as Federal Rule of Evidence 702 allowed for the theoretical basis for Dr. Vuskovich’s…

Continue Reading....

Release Agreement in Prior Claim Does Not Bar Future FELA Claim U.S. District Court for the Eastern District of Pennsylvania, September 17, 2015

Plaintiff Roger Lee Hindle was a railroad employee who developed lung cancer and brought a suit under the Federal Employers’ Liability Act (FELA), alleging that his exposure to asbestos caused him to develop the condition. The plaintiff had previously brought a claim against the same railroad defendants for hearing loss; in settling the previous claim, he signed a Release Agreement discharging them from any and all losses, known or unknown, including cancer. The railroad defendants moved for summary judgment, arguing that this release barred the…

Continue Reading....

Decedent’s At-Home Asbestos Exposure From Employer’s Products Does Not Bar the Application of California Workers’ Compensation Act Court of Appeal of California, Second Appellate District, Division Four, September 17, 2015

After working for defendant Ameron International for approximately 24 years, Lario Melendrez passed away from mesothelioma. The plaintiffs commenced a wrongful death action, alleging Mr. Melendrez was exposed to asbestos both during the manufacture of Ameron’s Bondstrand pipe products and in bringing scrap products home for use. Ameron moved for summary judgment, arguing that the plaintiffs’ sole remedy against Ameron lies in the California Workers’ Compensation Act. The trial court granted summary judgment and the appellate court affirmed. While the issue of whether Mr. Melendrez’s…

Continue Reading....

Louisiana Federal Court Grants Three Defendants’ Summary Judgment Motions Due to Lack of Exposure U.S. District Court for the Eastern District of Louisiana, September 9, 2015

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…

Continue Reading....

Wisconsin Federal Court Refuses to Enforce Settlement and Ruled Defendant Waived Defenses of Standing, Mootness, and Issue Preclusion U.S. District Court for the Western District of Wisconsin, September 9, 2015

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…

Continue Reading....

Court of Appeals Upholds Lower Court’s Rulings Denying Caterpillar’s Motions for Summary Judgment, a New Trial, and to Vacate Jury Award Court of Appeals of Washington, Division One, September 8, 2015

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…

Continue Reading....