Author Archives: Scott J. McDowell

Timely Removed Take-Home Exposure Case Remanded for Failure to Establish Colorable Federal Defense U.S. District Court for the Eastern District of Louisiana, June 19, 2017

The plaintiffs filed suit against several defendants including Avondale alleging that their decedent, Ms. Blouin, contracted mesothelioma after washing the laundry of her husband’s work clothes. Victor Blouin worked as an electrician for Avondale onboard two government vessels from April 1972 until August 1972. The plaintiffs’ claims were brought in negligence and not for strict liability. Avondale removed the case to federal court on March 28, 2017, 26 days after receiving a copy of the deposition transcript. The plaintiffs’ moved to remand. The plaintiffs took…

Continue Reading....

Lung Cancer Case Transferred After Defendants Successfully Argue Forum Non Conveniens on Appeal Appellate Court of Illinois, June 13, 2017

Plaintiffs Irvin and Marlene Rohl brought this action against several defendants including Caterpillar and Navistar. The plaintiffs argued that Mr. Rohl’s lung cancer was caused by exposure to asbestos from brakes, gaskets, clutches, engines, and heavy duty equipment made by Caterpillar and Navistar. At the trial level,  the defendants moved to transfer the case from Cook County to Winnebago County on the doctrine of forum non conveniens. The court denied the motion after a finding that the plaintiff had attended trade school in Cook County…

Continue Reading....

Summary Judgment Reversed in Finding Co-Worker Testimony Personal Knowledge, Not Hearsay Court of Appeals of Ohio, Ninth District, Summit County, May 31, 2017

Plaintiff Ruth Williams filed suit against multiple defendants, including Akron Gasket, as a result of her late husband’s development of mesothelioma. Specifically, the plaintiff alleged that Mr. Williams was exposed to asbestos tape made by Akron while working at PPG Industries and Goodyear Tire and Rubber. Summary judgment was granted in favor of Akron. The plaintiff appealed, arguing that the trial court erred in finding that co-worker testimony was hearsay and that medical causation could not be proven. The court began its analysis by reminding…

Continue Reading....

Defendant Fails to Establish Improper Joinder in Mesothelioma Case; Remand Granted U.S. District Court for the Eastern District of Louisiana, May 22, 2017

Plaintiff Ronald Smith sued multiple defendants, including Honeywell, alleging he developed mesothelioma from occupational exposure to asbestos. Honeywell removed the case the United States District Court, arguing that the plaintiff only joined defendant Taylor-Seidenbach Inc. to defeat diversity. The plaintiff moved to remand. The case was originally set on an expedited trial date because of the mesothelioma diagnosis. Discovery was ongoing when the plaintiff produced his work history relied upon by the plaintiff’s expert, Dr. Arthur Frank. Honeywell took the position that the work history…

Continue Reading....

Action Dismissed Against Canadian Automotive Defendant Based on Lack of Specific Jurisdiction U.S. District Court for the Western District of Washington, May 17, 2017

The plaintiffs filed suit against multiple defendants alleging Mr. Hodjera’s mesothelioma was caused by exposure to the defendants’ products from 1986-94. Volkswagen of Canada (VWGC) moved to dismiss the complaint, arguing that the court lacked personal jurisdiction. The court started its analysis by stating that due process requires the court to have personal jurisdiction over the defendant before it can adjudicate a claim. General jurisdiction is available when the defendant’s “contacts are so constant and pervasive as to render it essentially at home.” The court…

Continue Reading....

Jury Verdict Returned in Favor of Boiler Defendant Despite a Finding of Product Exposure and Negligence in Mesothelioma Case Supreme Court of New York, New York County, May 3, 2017

The Evans matter involved an 87 year deceased mesothelioma claimant.  All defendants resolved prior to trial with the exception of Burnham Corporation.  After a 2 ½ week trial before Judge Moulton, the jury returned a defense verdict for Burnham, finding that there was exposure to asbestos from a Burnham product, and that Burnham was negligent, but that Burnham’s negligence was not a substantial contributing factor to Mr. Evan’s mesothelioma.…

Continue Reading....

Defendants’ Motion in Limine Denied on Multiple Issues; Including Regulatory Materials, Past Conduct, MAS Studies and Expert Testimony Based on Animal Studies Supreme Court of New York, New York County, April 5, 2017

The plaintiff filed this action against several defendants alleging his asbestos related disease was caused by products for which the defendants were liable. Mr. Evans worked as a cable puller for Western Electric from 1946-48, as a grounds man and lineman for Queens Gas and Electric from 1948-52, as an HVAC worker for multiple employers from 1952-63 and again in a mechanic and supervisory role from 1965-68 at residential and commercial sites. He also claimed potential bystander exposure from residential jobs including roofing, flooring, ceiling,…

Continue Reading....

Plaintiff’s Assertion of the Mere Possibility of Exposure Insufficient to Create a Triable Issue of Fact for Summary Judgment Court of Appeal of California, First Appellate District, Division One, March 30, 2017

The plaintiff filed suit against multiple defendants, including Moore Drydock, alleging he developed mesothelioma as a result of his work onboard the USS Carter Hall. The plaintiff further alleged that defendant Moore Drydock built the USS Carter Hall. Specific sources of exposures alleged by the plaintiff included gaskets, packing, and pipe insulation. The defendant moved for summary judgment, arguing that no issue of fact existed. The plaintiff opposed and took the position that the declaration of its insulation expert, Charles Ay, offered the fact that…

Continue Reading....

Plaintiff’s Objections to Magistrate’s Recommendation for Granting Summary Judgment Overruled U.S. District Court for the District of Delaware, March 31, 2017

The plaintiff filed objections to the Magistrate’s recommendation for granting summary judgment, arguing that his expert’s affidavit was enough to create an issue as to material fact. The court began its analysis and stated that its review of objections to a magistrate’s decision are de novo. The issue at heart was the plaintiff’s reliance on the Boyd case to support his claim that the affidavit of his expert, Captain Bulger, established an issue of fact. The court found that the affidavit only “bolstered” was had…

Continue Reading....

Plaintiffs’ Motion for Remand Granted After Defendant Removes on Federal Officer; Sanctions Denied U.S. District Court for the Central District of California, March 31, 2017

The plaintiffs filed this action against multiple defendants including Foster Wheeler for Mr. Hukkanen’s alleged development of mesothelioma after serving as a machinist onboard the USS Somers and USS Walke from 1960 through 1968. Foster Wheeler removed the case, arguing that it was acting under an officer or agency of the United States. Foster Wheeler quickly moved for remand claiming that the court lacked subject matter jurisdiction because the plaintiffs specifically waived claims sounded in military contractors immunity defense. Foster Wheeler took the position that…

Continue Reading....