Author Archives: Lynn A. Lehnert

In Bystander Exposure Case, Plaintiff Failed to Demonstrate that Defendant Had a Duty to Warn Court of Special Appeals of Maryland, January 27, 2017

Plaintiff Daniel Hiett developed mesothelioma and alleged bystander exposure from his father’s work. The plaintiff alleged negligence and strict liability claims based on a failure to warn theory. The circuit court granted defendant AC&R Insulation Company, Inc,.’s (AC&R) motion for summary judgment. The plaintiff appealed, arguing that several material facts distinguished their case from Georgia Pacific, LLC v. Farrar, 432 Md. 532 (2013), which held that a manufacturer/distributor of a product containing asbestos did not owe a duty to warn the household member of…

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State of Montana Properly Joined to Defeat Diversity Jurisdiction U.S. District Court for the District of Montana, January 30, 2017

The plaintiff is the surviving spouse of Susan McDowell, who died from mesothelioma. The plaintiff alleged exposure to asbestos-contaminated vermiculite discarded from railcars while being transported from the Libby, Montana mine by Burlington Northern Santa Fe. The state of Montana (State) began inspecting the mine in the 1950s and found hazardous levels of asbestos within the vermiculite. The State did not correct the hazard or warn Libby residents. The plaintiff sued numerous entities, including BNSF and the State of Montana. The defendants removed this case…

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Certain Bankruptcy Trust Information Ruled Discoverable in Louisiana U.S. District Court for the Eastern District of Louisiana, January 23, 2017

The plaintiff alleged he developed lung cancer due to his asbestos exposure while working on the premises of Freeport’s Port Sulphur facility, other facilities, and various drilling rigs. The defendants removed to federal court on the bases of original jurisdiction under the Outer Continental Shelf Lands Act. The plaintiff filed a motion to quash subpoena and notice of records deposition, and a motion for protective order. The court analyzed both at the same time, as both contained substantially the same arguments. Defendant McCarty Corporation issued…

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Tennessee Law Applied Over Virginia Law in Case Filed in Rhode Island; Tort Factors and Interest Factors Both Supported Tennessee Law Superior Court of Rhode Island, January 18, 2017

The plaintiffs alleged both direct and secondary exposure to asbestos by Harold Murray, leading to his development of mesothelioma. Mr. Murray worked in both Tennessee and Virginia. The plaintiffs lived in Tennessee. The defendants filed a motion to apply the law of Tennessee, while the plaintiffs argued for Virginia law. The court ruled that Tennessee was the correct choice of law. The defendants argued that under Rhode Island choice-of-law principles, Tennessee law applied; the plaintiffs were domiciled in Tennessee, the plaintiff was diagnosed in Tennessee,…

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Verdict Against Brand Insulation Upheld on Various Grounds, Including yhat General Negligence Duty of Care Recognized for Take Home Exposure Court of Appeals of Washington, January 23, 2017

The trial court found in favor of the plaintiff, finding Brand Insulation, Inc. liable for the mesothelioma suffered by Barbara Brandes due to secondary asbestos exposure from her husband’s work at ARCO. Brand appealed, and the plaintiff appealed the remittitur reducing the damages award from $3.5 million to $2.5 million. The court affirmed the verdict and reversed the remittitur. Brand was an insulation subcontractor during construction of the ARCO Cherry Point Refinery. At first Brand installed asbestos-free insulation, but later switched to asbestos insulation due…

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Crane Asserted a Colorable Federal Defense to Establish Jurisdiction Under Federal Officer Removal Statute U.S. District Court for the Middle District of Florida, January 9, 2017

The plaintiff sued various defendants for negligence, strict liability, and fraudulent inducement. Crane removed to federal court under the federal officer removal statute, and plaintiff moved to remand. The court denied this motion. To remove under Section 1442(a)(1) the defendant must qualify as a “person” under the federal officer removal statute, must act under the direction of a federal officer at the time the defendant engaged in the allegedly tortious act, and must advance a “colorable federal defense.” Also, a causal connection must appear between…

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Various Rulings in NYCAL Case Regarding Defendants’ Motion in Limine to Preclude Certain Evidence Supreme Court of New York, New York County, January 4, 2017

The plaintiff alleged asbestos exposure through his work as a roofer, maintenance man, and carpenter. The defendants submitted a joint motion in limine to preclude certain evidence. The court issued various rulings, summarized below. First, the defendants asserted that Dr. Jacqueline Moline would offer a scientifically unsupportable causation opinion that every occupational exposure was a substantial factor in causing the plaintiff’s mesothelioma. This was also known, among other things, as the “each and every exposure” or “cumulative exposure” theory. At the outset the court noted…

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Death of Statutory Beneficiary During Pendency of Jones Act Claim Did Not Extinguish Jones Act Claims; Estate Could Recover Benefit U.S. District Court for the Eastern District of Pennsylvania, January 5, 2017

Defendant Thompson Hine filed a motion for summary judgment, arguing that the plaintiff’s Jones Act survival claims abated due to no statutory beneficiary. The court denied the motion. The plaintiff alleged that the decedent, Joseph Braun, was exposed to asbestos during his work aboard ships owned by the defendants and died from an asbestos-related disease. This case was originally filed in 1989 and asserted claims under the Jones Act and general maritime common law. In April 2011, the case was transferred to MDL 875 as…

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Non-Malignant but Not Malignant Claims Part of Bankruptcy Estate U.S. District Court for the Eastern District of Pennsylvania, December 16, 2016

This case is part of the consolidated asbestos products liability multidistrict litigation (MDL 875), and is on the court’s maritime docket. The plaintiffs alleged the decedent William Lawrence was exposed to asbestos while working aboard various ships. Ship owners represented by Thomson Hine (the defendants) filed a motion for summary judgment, which the court denied. In 1996, Mr. Lawrence brought claims for non-malignant asbestos-related disease against various defendants, including the defendant ship owners. Two months later, Mr. Lawrence filed for bankruptcy and did not list…

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“Frequency, Regularity and Proximity” Standard in New Jersey Law Acknowledged in Denying Two of Four Summary Judgments U.S. District Court for the District of New Jersey, December 19, 2016

The plaintiff was a machinist, pipe fitter and electrician from the 1950s-1970s and alleged asbestos exposure during his work at a variety of locations, including during home repair and automotive maintenance. In 2013, he was diagnosed with asbestosis. The plaintiff testified as to working with pumps as a machinist helper on the USS Kitty Hawk while working for the New York Shipyard. He also testified as to asbestos exposure while working as a sheet metal worker for the Pennsylvania Railroad. Defendants Buffalo Pumps, DAP, Sid…

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