Author Archives: Scott J. McDowell

Boilermaker Contractor Granted Summary Judgment Over Past Employee as No Proof Existed of Exposure Outside of His Work Directly for Contractor U.S. District Court for the Southern District of California, April 25, 2016

The plaintiffs filed a wrongful death and survival action claiming their decedent, Michael Walashek, developed mesothelioma from his work as a career boiler maker from 1967-86. The plaintiff’s social security records listed his employers FBS, Inc. and Camass Company, along with others. The case was removed to federal court and FBS, Inc. moved for summary judgment. Previously, a gasket manufacturer and cloth manufacturer moved for and were granted summary judgment.  A summary of that decision can be found here. Specially, FBS, Inc. argued that…

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Federal Court of Appeals Vacates U.S. District Court Judgment Dismissing Two Defendants for Improper Joinder and Orders Remand of Mesothelioma Case U.S. Court of Appeals for the Fifth Circuit, April 19, 2016

The plaintiff filed an action against multiple defendants for his alleged mesothelioma as a result of his occupational exposure to asbestos. The case was removed to federal court. Discovery took place over the course of eleven months. The plaintiff passed away and The defendant’s motion to dismiss was granted as the estate and family did not substitute plaintiffs. The family then filed a survival and wrongful death action in state court but added a new allegation that the plaintiff had been exposed to asbestos insulation…

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U.S. District Court Exercises Supplemental Jurisdiction and Denies Plaintiff’s Motion to Remand U.S. District Court for the Eastern District of Louisiana, March 31, 2016

In this case, the plaintiff, Frank Williams, brought an action in the Civil District Court for the Parish of Orleans for exposure to asbestos while working as a mechanical engineer for Lockheed Martin. Lockheed Martin removed the case to on the basis of a potential federal defense. The plaintiff filed a motion to remand, but the court declined to decide the motion and transferred the case to the Eastern District of Pennsylvania for consolidation into the Multi District Litigation “MDL.” Judge Robreno denied the motion…

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U.S. District Court for Northern California Grants Plaintiff’s Motion to Remand Case Based on Untimely Diversity Jurisdiction Removal U.S. District Court for the Northern District of California, March 28, 2016

The plaintiff brought an action for alleged development of mesothelioma as a result of asbestos exposure on April 15, 2014. After the plaintiff passed on July 7, 2015, his wife filed a second amended complaint, adding a wrongful death and survival claim on October 28, 2015. The defendant removed the case based on diversity jurisdiction and the plaintiff’s moved to remand as untimely. Although the removal statute requires removal within 30 days from date of service of the complaint, the defendant relied upon two arguments…

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Federal Court of Appeals Remands Case for Determination of Colorable Federal Defenses Alleged by Shipyard U.S. District Court of Appeals for the Fifth Circuit

In this case, the plaintiffs’ decedent claimed exposure to asbestos containing thermal insulation while working at the Avondale Shipyard in Louisiana as laborer and painter from 1948-1996. The shipyard at issued worked on contracts for the federal government. The defendants removed the case under federal officer removal and took the position that removal was proper since the government, through Navy inspectors, was involved in the building of the ships and had control of safety issues during construction. The plaintiffs, on the other hand, argued that…

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