The plaintiff was employed by Ferro Engineering for four years, and alleged that during this time he was exposed to products containing asbestos. Forty-one years after this employment he was diagnosed with mesothelioma, and sued Ferro under several theories including negligence. Ferro filed a motion to dismiss, arguing the plaintiff’s claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act (820 ILCS 305/5(a), 11 (West 2010)) and the Workers’ Occupational Diseases Act (820 ILCS 310/5(a), 11 (West 2010)). The plaintiff replied that …
Continue ReadingAuthor: Lynn A. Lehnert
Chunk of Rulings From MDL Allow Previously Dismissed Asbestos Claims to Proceed Even Though Not Listed As Assets In Bankruptcy
Six cases were decided in the United States District Court for the Eastern District of Pennsylvania; all started in the Northern District of Ohio, and were transferred to the MDL 875 in the Eastern District of Pennsylvania. In all six cases, the plaintiffs brought claims against various shipowners represented by Thompson Hine LLP, and all alleged asbestos exposure while working on ships. All cases were administratively dismissed; after dismissal, the plaintiffs filed for bankruptcy, and did not list their asbestos claims as assets. After bankruptcy …
Continue ReadingCalifornia Appellate Court Examines Entire Record, Not Just Expert Testimony, To Affirm Denial of Motions for Judgment Notwithstanding the Verdict
The plaintiff in this case was diagnosed with mesothelioma and filed claims for negligence, strict liability, and loss of consortium against, among others, Union Carbide and Elementis Chemicals, as successor-in-interest of Harrison & Crosfield, Pacific, Inc., and certain related entities. The plaintiff submitted three theories of liability: strict liability (design defect under the consumer expectations test); strict liability (failure to warn); and negligence (failure to warn). The jury returned special verdicts in favor of the plaintiff on the strict liability claim in that Union Carbide …
Continue ReadingSummary Judgment Affirmed for Two Defendants – One Based on Government Contractor Defense and One Due to No Exposure
The Ninth Circuit affirmed the granting of summary judgment to two defendants – Lockheed and UTC, as successor-in-interest to Pratt & Whitney. Summary judgment was affirmed as to Lockheed based on the government contractor defense. Lockheed introduced two affidavits establishing that the Untied States approved specifications requiring the use of asbestos in government aircraft. This equipment conformed to the government’s specifications because Lockheed complied with all its directives for constructing this aircraft, including the use of specific warnings. Further, the United States knew about asbestos …
Continue ReadingFederal Court Applies Laws of New Jersey and the Third Circuit in Allowing Experts to Testify Regarding General, Not Specific, Causation in Case Alleging Renal Cancer
The plaintiff alleged that he developed renal cancer from asbestos exposure while working at the Philadelphia Navy yard, the New York Shipbuilding yard, and various automotive and electric shops in New Jersey. In July 2013, this case was removed to the federal court in Pennsylvania as part of MDL-875. Defendant Ford moved to exclude the expert testimony of Arthur Frank, M.D., Ph. D., and Scott A. Bralow, D.O., because: (1) the “any exposure” theory underlying their opinions has been deemed inadmissible under Pennsylvania law; (2) …
Continue ReadingYears After Bankruptcy Case Closed, Reopening of Asbestos Claims by MDL Not Judicially Estopped Due to Failure to List Claims in Bankruptcy Petition
In 1997, the decedent’s claims for asbestos exposure against shipowners represented by Thompson Hine LLP were administratively dismissed, with the option of pursuing at a later date. In 1999, the decedent brought claims against various defendants, including the shipowners represented by Thompson Hine LLP. In 2001, the decedent received a separate cancer diagnosis that he claimed was asbestos related; he died in 2002. In 2003, his widow, the plaintiff, filed for bankruptcy, which was closed four months later. In 2011, the MDL reinstated the action …
Continue ReadingPlaintiffs’ Motion for Leave to Amend Complaint to Delete Federal Question Neither Prejudicial Nor Futile Where Remaining Defendant’s Summary Judgment Motion Did Not Argue Federal Claims
The plaintiff was diagnosed with mesothelioma and filed suit against a sea of defendants in New York state court. After responding to interrogatories indicating that he was exposed to asbestos while in the Navy, Foster Wheeler timely removed this case to federal court based upon the federal government-contractor defense. When the only defendant remaining was Crane, the plaintiffs moved for leave to file a first amended complaint which would eliminate any federal claims or defenses. At the time the paintiff moved for leave to amend, …
Continue ReadingMaritime Law Applied to Plaintiffs’ Claims and State Court Filing Retained Plaintiffs’ Right to a Jury Trial
In this federal court case, defendant Crane asserted that state law should apply to some aspects of plaintiffs’ claims, while the parties appeared to agree that maritime law applied generally to the matter. The court examined this case sua sponte on the issue of whether maritime or state law governed the remaining claims of the plaintiffs, and whether the plaintiffs have a right to a jury trial. The court found that maritime law applied and trial would be before a jury.
In applying the locality …
Continue ReadingMerchant Mariner Plaintiffs’ Allegations Focusing on Vessel Operation — Instead of Vessel Design — Prohibited Removal Under Federal Officer Removal Statute
This is a consolidated case in which various plaintiffs alleged asbestos exposure while working as merchant mariners aboard many different vessels and employers. Each plaintiff also served on at least one Navy ship. The plaintiffs sued their former employers in Louisiana state court under the Jones Act and general maritime law. The defendants removed to federal court, and the district court remanded. The 5th Circuit held that remand was proper.
The defendants argued for removal under the Federal Officer Removal Statute, in which actions …
Continue ReadingClaim Representatives For Filing Bankruptcy Trust Claims Have No Standing To Sue Bankruptcy Trusts For Suspending Claims
Plaintiff Mandelbrot Law Firm specialized in preparing and filing asbestos personal injury claims to various bankruptcy trusts. In 2002, one such trust, the Delaware Trusts, suspended all payment of claims from claimants who the plaintiff represented, due to proceedings in California regarding allegedly fraudulent claims filed by the plaintiff. The plaintiff then filed this declaratory judgment, arguing that this decision was unauthorized and in violation of the Trusts’ distribution procedures, and that he lost fees. The district court granted defendants’ motion to dismiss for lack …
Continue Reading