Author Archives: Scott J. McDowell

Lack of Personal Jurisdiction Over Defendant Leads to Remand and Dismissal Appellate Court of Illinois, First District, SIXTH DIVISION. May 18, 2018

ILLINOIS —  The plaintiff brought this action against General Electric (GE) arguing that he developed mesothelioma from exposure during his work at various locations for Republic Steel from 1961-1999. According to the plaintiff, the work took place in Illinois, Alabama, Louisiana, and Texas. The plaintiff, a resident of Alabama, filed suit in Illinois. GE moved to dismiss the matter for lack of personal jurisdiction. Specifically, GE argued that the plaintiff’s complaint lacked facts establishing personal jurisdiction through Illinois’ long-arm statute. Moreover, GE took the position…

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Wisconsin’s Uniform Fraudulent Transfer Act Found Not Applicable in Successor Liability Case Against Refractory Manufacturer Supreme Court of Wisconsin, May 15, 2018

WISCONSIN — In a follow up to Asbestos Case Tracker’s previous post, the Supreme Court of Wisconsin reversed the Court of Appeals’ decision in a recent mesothelioma case involving allegations of fraudulent conveyance by a successor in interest entity. The plaintiff originally filed suit against several defendants including Fire Brick Engineering and Powers Holding claiming they were responsible for her late husband’s development of mesothelioma. Mr. Springer was allegedly exposed to asbestos from 1963-69. The plaintiff filed her suit against Powers naming it as…

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Lack of Causal Nexus Leads to Grant of Remand Against Shipyard Defendant U.S. District Court for the Eastern District of Louisiana, May 4, 2018

LOUISIANA — The plaintiff filed suit against several Defendants including Avondale Shipyards. James Latiolais allegedly developed mesothelioma from his work as a machinist onboard the USS Tappahannock. Avondale removed the case after the plaintiff’s deposition concluded. The removal was made pursuant to Federal Officer Removal Statute, 28 U.S.C. § 1442 (a)(1). The plaintiff moved to remand. The court began its analysis by discussing the elements associated with Federal Officer Removal. First, the defendant must meet the criteria of being a “person” which includes corporations like…

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Expert and Fact Witness Evidence Establishes Last Day of Exposure for UPS Worker in Workers’ Compensation Commission Award Court of Appeals of North Carolina, May 1, 2018

NORTH CAROLINA — The plaintiff filed an action under North Carolina Workers’ Compensation for alleged development of mesothelioma by her decedent. Mr. Penager worked as a driver for United Parcel Services (UPS) from approximately 1967-98. It was alleged by the plaintiff that Mr. Penegar drove tractor trailers each day and would walk through the mechanic shop after his shift where workers were using compressed air to clean out dust from brake jobs. The Commission found that the plaintiff’s last date of injury from asbestos occurred…

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Summary Judgment Affirmed For Railroad After Plaintiff Settles and Files Subsequent Suit for Lung Cancer Court of Common Pleas of Philadelphia County, April 24, 2018

PENNSYLVANIA — The plaintiff filed a claim for Federal Employer’s Liability Act (FELA) against Conrail for the development of alleged asbestosis in 1997. The parties settled in 2004 and executed an agreement that contemplated a release for “all known and unknown…injuries for any and all forms of cancer…” Years later, the plaintiff developed lung cancer and filed suit alleging the injury was a result of exposure to asbestos for which Conrail was liable. Conrail moved for summary judgment arguing that the claim was barred by…

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Plaintiff Survives Motion to Dismiss Upon Adding Additional Allegations in Amended Complaint U.S. District Court for the Western District of Wisconsin, April 17, 2018

WISCONSIN — The plaintiff filed suit against Weyerhauser and its insurer for alleged emissions of asbestos into the Marshfield, Wisconsin community. Plaintiff Michael Kappel moved to add additional allegations to his complaint. Weyerhauser moved to dismiss. The plaintiffs were substituted upon Mr. Kappel’s passing. Weyerhauser sought dismissal on two separate grounds. First, the defendant argued the plaintiffs did not allege Mr. Kappel’s exposure from work at Weyerhauser in an effort to circumvent the exclusivity rules in the local worker’s compensation statute. The court disagreed as…

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Plaintiff’s Age and Medical Condition Proper Criteria under Statute to Set Trial Preference California Court of Appeal, First Appellate District, March 20, 2018

CALIFORNIA — The Foxes brought this action against several defendants for Ms. Fox’s development of lung cancer and asbestosis from alleged exposure to asbestos containing products from 1954-63. The plaintiffs moved for trial preference pursuant to Code 36 as Ms. Fox was 81 and suffered from declining health. Ms. Fox had also undergone chemotherapy, which had caused side effects according to the plaintiff’s attorney. Of the 18 defendants, only Metalclad Insulation and Sequoia Ventures opposed the motion. The trial court denied the motion to set…

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Failure to Establish Good Cause Leads to Affirmation of Denial of Additional Expert Disclosure U.S. District Court for the District of Kansas, February 13, 2018

KANSAS — The plaintiff sued the Budd Company alleging her father, Robert Rabe, developed mesothelioma as a result of occupational exposure to asbestos for which the defendant was allegedly liable. Specifically, Rabe claimed exposure to pipe insulation used on railcars built by the defendant. A scheduling order was entered by the magistrate, which called for the disclosure of experts by June 23, 2012 amongst other deadlines. After that deadline passed, the defendant moved without objection for a modification of the expert disclosure deadline to September…

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Remand Granted After Finding that Government Did Not Direct Safety Operations of Shipyard Defendant U.S. District Court for the Eastern District of Louisiana, January 19, 2018

LOUISIANA — The plaintiffs brought this action against several defendants including Huntington Ingalls (Ingalls) alleging that their decedent, Tyrone Melancon, was exposed to asbestos for which the defendants were liable. The plaintiffs asserted that Melancon developed mesothelioma from exposure to asbestos while working at the Avondale Shipyard from 1965-2002. Ingalls. along with others, removed the case to U.S. District Court on federal officer removal. The plaintiffs moved for remand arguing that defendants were not entitled to such removal. According to the court, removal under federal…

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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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