Author: Lynn A. Lehnert

Case Decisions / Federal Officer Removal / Florida
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Crane Asserted a Colorable Federal Defense to Establish Jurisdiction Under Federal Officer Removal Statute

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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Case Decisions / Motions in Limine / New York
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Various Rulings in NYCAL Case Regarding Defendants’ Motion in Limine to Preclude Certain Evidence

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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Case Decisions / Pennsylvania / Summary Judgment
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Death of Statutory Beneficiary During Pendency of Jones Act Claim Did Not Extinguish Jones Act Claims; Estate Could Recover Benefit

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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Bankruptcy / Case Decisions / Pennsylvania
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Non-Malignant but Not Malignant Claims Part of Bankruptcy Estate

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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Case Decisions / New Jersey / Summary Judgment
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“Frequency, Regularity and Proximity” Standard in New Jersey Law Acknowledged in Denying Two of Four Summary Judgments

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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Case Decisions / Federal Officer Removal / Louisiana / Remand/Removal
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Affidavits Used in Other Cases Enough to Establish Removal Under Federal Officer Jurisdiction

The plaintiff brought a wrongful death lawsuit after her husband died of mesothelioma, alleging asbestos exposure during her husband’s service in the Navy. Originally filed in Madison County, Illinois, defendant Crane Co. removed on the basis of the federal officer removal statute. The plaintiff filed a motion to remand, arguing that Crane waived its right to remove by first filing a motion to dismiss in state court, and that Crane failed to establish federal subject matter jurisdiction. The court denied the plaintiff’s motion.

Regarding waiver …

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California / Case Decisions
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Duty Exists for Employers and Property Owners’ to Prevent Take-Home Exposure; Duty Extends Only to Workers’ Household

Two cases addressed whether employers or landowners owed a duty to prevent secondary exposure to asbestos. Trial and appellate courts reached varying conclusions on this issue; here, the California Supreme Court determined that while employers and premises owners had a duty to prevent asbestos exposure carried home on the bodies and clothing of on-site workers, this duty extended only to members of a worker’s household.

In the first case, Johnny Kesner died of peritoneal mesothelioma. His uncle George Kesner worked at Pneumo Abex; during this …

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Case Decisions / Maryland / Summary Judgment
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Same Facts = Same Ruling? Nope! Baltimore Issues Grant and Denial of Summary Judgment In Two Groups of Smoking Lung Cancer Cases

Two opposing decisions were rendered by two different judges in two factually and legally similar groups of smoking lung cancer cases. In Harrell et al. and Boston et al., asbestos defendants filed nearly identical motions for summary judgment, arguing that the plaintiffs could not recover because (1) the plaintiffs knew the hazards of smoking and assumed the risk, and (2) were contributorily negligent. Summary judgment was granted in one group (Harrell et al.) and denied in the other (Boston et al…

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Case Decisions / Louisiana / Maritime/Admiralty Law
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Plaintiffs’ Dismissal with Prejudice of Claims Against Defendant Rendered Third-Party Demand for Contribution Void

Third-party defendant Industrial Development Corporation of South Africa, Limited (IDC) filed a motion to dismiss defendant Cooper/T. Smith Stevedoring Company, Inc.’s (Cooper) third party complaint. The court granted IDC’s motion and remanded the case to state court.

The plaintiffs filed suit on behalf of decedent Earl Lindsay, who died of lung cancer. The plaintiffs alleged the decedent worked as a longshoreman for several Cooper companies in the Port of New Orleans from 1954-1979, and during this time was exposed to asbestos. As against IDC, the …

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Case Decisions / Federal Officer Jurisdiction / Remand/Removal
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Broad Interpretation of the Federal Officer Removal Statute Keeps Case Against Boeing in Federal Court

The plaintiff filed a failure-to-warn product liability suit against, among others, The Boeing Company, after his wife Mary became ill from alleged secondary asbestos exposure. Boeing removed to federal court based upon the federal officer removal statute. The district court remanded, and the appellate court reversed.

The plaintiff alleged Mary suffered take home asbestos exposure through laundering the clothes of her first husband Robert Keck. While working for New Brunswick Plating Co. in the late 1970s, Keck sandblasted the landing gear of World War II …

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