Author Archives: Scott J. McDowell

U.S. Supreme Court Denies Appeal of Former Speaker of New York State Senate; Stage Set for Retrial

NEW YORK — Sheldon Silver’s appeal to the U.S. Supreme Court was denied on Tuesday, January 16, 2018. Silver appealed part of the Second Circuit’s decision overturning his convictions on corruption charges. That decision overturned Silver’s convictions citing improper jury instructions pursuant to the Supreme Court’s decision in U.S. v. McDonald. Silver’s appeal centered on the money laundering charge. For that charge, he argued that a split exists among federal appeals courts as to the prosecutorial requirement linking a transaction to the suspected crime.…

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Summary Judgment Reversed Against Gasket Defendant Despite Contradictory Declaration Court of Appeal of California, First Appellate District, Division Two, December 22, 2017

CALIFORNIA — The plaintiffs filed suit against dozens of defendants, including Familian Corporation, alleging that Mr. Turley developed an asbestos related disease for which defendants were liable. Specifically, Mr. Turley alleged that he was exposed to asbestos containing cement pipe, pipe collars, gaskets and elbows made by Familian while working at various Pacific Gas and Electric Company locations. Familian moved for summary judgment. The plaintiffs filed an opposition with a declaration from a witness, Paul Scott, who had not been deposed. The declaration implicated Familian…

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Employer Successfully Asserts Constitutional Challenge to Worker’s Compensation Commission Award

MISSOURI — The plaintiffs brought this claim against employer E.J. Cody Company (defendant) alleging her decedent passed from mesothelioma as a result of his occupational exposure to asbestos for which the defendant was liable. Mr. Casey had worked beginning in 1984 as a tile installer for several companies including the defendant. He retired in 1990 and filed suit for mesothelioma in February of 2015. Mr. Casey passed away prior to hearing. At the commission hearing, the plaintiffs agreed they sought claims under statute 287.200.4 (new…

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Contempt Order Vacated Against Boiler Defendant; Discovery Order Stands Appellate Court of Illinois, Fourth District, December 5, 2017

ILLINOIS — Cleaver Brooks filed an appeal of the trial court’s ruling of a “friendly contempt” order against it. By way of background, the plaintiff filed suit against multiple defendants arguing that he sustained injuries from working with and around asbestos containing parts associated with boilers. At issue were thousands of index cards specific to Cleaver Brooks’ products. The plaintiff sought those index cards through discovery requests. Cleaver Brooks eventually produced certain index cards after multiple discovery hearings at the trial court level. However, Cleaver…

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Removal Upheld on Government Contractor Defense for Turbine and Gasket Manufacturers U.S. District Court for the Southern District of New York, November 27, 2017

NEW YORK — Plaintiffs Michael and Anne Donohue brought suit against multiple defendants including Westinghouse (CBS) and Crane Co. alleging Mr. Donohue contracted mesothelioma from exposure to asbestos containing products for which the defendants were liable. Mr. Donohue claimed exposure from his time working in the Navy and with the New York Fire Department (NYFD). CBS removed the case one day after the plaintiff’s trial deposition. Crane quickly joined the removal. Both asserted the government contractor defense which shields liability in certain instances. The plaintiffs…

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Plaintiff’s FELA Claim Against Railroad Survives Limitations Challenge Supreme Court of Montana, November 14, 2017

MONTANA — The plaintiff worked for Burlington Northern and Santa Fe Railway Corporation (BNSF) and claimed exposure to amphibole containing vermiculite in that capacity as BNSF transported vermiculite for W.R. Grace. The plaintiff filed suit against BNSF for his asbestos related disease under FELA. The trial court granted summary judgment for the defendant and the plaintiff appealed. Prior to the suit, W.R. Grace filed for bankruptcy protection in 2001. A temporary restraining order (TRO) was immediately issued prohibiting any suits against third parties arising from…

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Bestwall LLC Seeks Bankruptcy Protection

Bestwall LLC, a unit of Georgia Pacific, sought bankruptcy protection under U.S. Chapter 11 early Thursday morning. Bestwall LLC filed the petition as a result of towering costs associated with defending asbestos claims around the nation. The filing comes during a period of time in which both state and federal lawmakers ponder proposals to curb asbestos claims. A company statement indicated that Georgia Pacific is unaffected by the filing.…

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Plaintiff’s Failure to Establish Causation and Lack of Opposition Leads to Grant of Summary Judgment U.S. District Court for the Western District of Kentucky, October 27, 2017

KENTUCKY — Rojelio Surita brought this action against several defendants alleging his decedent, Nancy Surita, developed mesothelioma from exposure to asbestos containing products for which Defendants were liable. Nancy Surita gave deposition testimony stating that she assisted in brake jobs on the family farm while growing up in Illinois. She also recalled maintenance on vehicles while serving in the National Guard. Later she testified as to working on military trucks. Although she recalled Caterpillar as the manufacturer of the transmissions, she testified that she did…

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Reversal of $72 Million Ovarian Cancer/Talc Verdict on Jurisdiction May Lead to Fewer Asbestos Filings in Missouri Missouri Court of Appeals, Eastern District, October 17, 2017

MISSOURI — In a case that could lead to fewer asbestos filings in Missouri, Johnson and Johnson successfully argued that the trial court lacked personal jurisdiction over it after a $72 million dollar plaintiff verdict in an ovarian cancer / talc case. Plaintiff Jacqueline Fox was one of 65 plaintiffs who filed suit against Johnson and Johnson (J and J) and Imerys Talc. J and J is a New Jersey resident and Imerys is a Delaware corporation. Both were sued in Missouri. The plaintiffs alleged…

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Standard Based Approach in Bare Metal Defense Permits Sailors to Recover in Negligence U.S. Court of Appeals, Third Circuit, October 3, 2017

The plaintiffs filed suit in negligence and strict liability against several defendants arguing their decedents died from mesotheliomas as a result of their exposure to asbestos containing products for which defendants were responsible. Both plaintiffs alleged exposure while working on-board naval vessels. The defendants removed the case to federal court and summary judgment was granted in their favor on the bare metal defense. The plaintiff separately appealed on the issues of negligence. The appeal was remanded to sort out the negligence issue against the backdrop…

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