Author Archives: Scott J. McDowell

Summary Judgment Recommended for Naval Boiler Manufacturer on Issues of Product Identification and Bare Metal Defense

The plaintiff filed suit alleging Mr. Tallman developed mesothelioma while serving in the U.S. Navy from 1947-67. Foster Wheeler removed the case to the United States District Court. Mr. Tallman served on board the USS Caloosahatchee as a boiler tender from 1948-56. Specifically, the plaintiff contended that Mr. Tallman’s mesothelioma developed as a result of exposure to asbestos for which Foster Wheeler was responsible. Two fact witnesses were offered for deposition. Mr. Nealon testified that he served on board the USS Caloosahatchee from 1951-54. He…

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Summary Judgment Granted For Plaintiff’s Failure to File Complaint Within the Statute of Limitations Superior Court of Delaware, August 18, 2017

Ms. Bagwell filed suit against several defendants, alleging her husband developed lung cancer from asbestos related to Borg Warner clutches. The plaintiff’s brother was the sole fact witness who recalled his brother performing clutch work starting in 1965 through the 1980s approximately one time per week. The plaintiff’s expert report stated that the plaintiff was exposed to asbestos containing products including exposure to asbestos from the clutches. Mr. Bagwell was diagnosed in May of 2009 and passed away on January 28, 2010. The plaintiff’s complaint…

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Plaintiff’s Medical Expert Permitted to Testify After Reversal of Judgment Barring Opinion California Court of Appeals, August 14, 2017

Plaintiffs brought suit against several defendants including TRZ Realty, alleging their decedent developed colon cancer as a result of occupational exposure to asbestos. William Duty worked as a drywall taper for over 40 years. Before trial, TRZ filed a motion in limine challenging Dr. Revels Cayton’s qualifications to testify as to the causal connection between colorectal cancer and Plaintiff’s exposure to asbestos. After the trial court’s hearing, the court disqualified Dr. Cayton. The plaintiffs conceded they could not prevail at trial without his testimony. The…

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Loss of Consortium Claim Dismissed Where Wrongful Death Statute Controls U.S. District Court for the Middle District of North Carolina, August 9, 2017

The plaintiff filed suit against multiple defendants, alleging her decedent developed mesothelioma as a result of exposure to asbestos containing products. Within the complaint, Ms. Stewart added a count for loss of consortium. The defendant moved to dismiss the loss of consortium count pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff filed no response. The court quickly analyzed its review of a case while sitting in diversity. The court noted that “if state substantive law has denied a plaintiff a remedy for his…

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Channeling Injunction Prohibits General Motor’s Wrongful Death Suit for Contribution against the Manville Trust U.S. Bankruptcy Court, Southern District of New York, July 24, 2017

General Motors (GM) filed suit against the Manville Personal Injury Settlement Trust (Manville) seeking a declaratory order that its state suit against Manville was not barred by the longstanding “Channeling Injunction” of the Manville Corporation’s chapter 11 reorganization (the Plan) and subsequent order confirming the same. Separate from the declaratory complaint, GM filed suit in Ohio state court against the estate of Bobby Bolen and multiple asbestos defendants including Manville. GM alleged the defendants were jointly and severally liable to GM as it had subrogated…

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Plaintiffs’ Daubert Challenge Denied as Expert Disclaims Causation Expertise United States District Court, D. Maryland, July 17, 2017

Plaintiffs filed their Daubert challenge seeking exclusion of Georgia Pacific’s Certified Industrial Hygienist, Donald Marano. Plaintiff argued that Mr. Marano would offer qualitative and quantitative exposures of Plaintiff along with the risk and causation of Mr. Arbogast’s mesothelioma. Georgia Pacific countered with the position that Mr. Marano has “repeatedly disclaimed any expertise on causation and has confined his opinion to explaining the risk assessments performed by various agencies and organizations and offering his risk assessment opinion based on the analysis that his profession is trained…

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Exclusion of Plaintiffs’ Causation Experts Leads to Granting of Summary Judgment United States District Court, D. Maryland, July 17, 2017

Plaintiffs filed suit against Georgia Pacific (“GP”) and Union Carbide Corporation (“UCC”) alleging Mr. Rockman’s peritoneal mesothelioma was caused by exposure to asbestos for which both Defendants were responsible. Specifically, Mr. Rockman claimed “bystander” exposure to GP’s Ready Mix joint compound that contained UCC’s Calidria chrysotile asbestos during residential renovations in 1965, 1973 and 1976. Plaintiff stated that he was exposed during his time living in a Brooklyn apartment when a ceiling was repaired in 1965, again in 1973 during wall repair in Baltimore, MD…

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Plaintiff Failure to Establish Retailer’s Knowledge of Danger of Asbestos Leads to Summary Judgment Superior Court of Delaware, July 12, 2017

Plaintiffs brought this suit against multiple defendants for Mr. Glaser’s alleged asbestos related injuries. Scott Glaser alleged that he was exposed to asbestos floor tile sold by Sears and Roebuck (“Sears”) while working for various employers. His work required him to clean up “scraps or pieces of floor tile off the floor.” Defendant took the position that it was a retailer and never “mined, milled, processed, or distributed wholesale asbestos containing products.” The Court noted that under Michigan law for a products liability action, a…

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Summary Judgment Denied Upon Showing that Defendant’s Boilers Contained Asbestos Gaskets and Rope Superior Court of Delaware, July 12, 2017

Plaintiff Clarence Dionne filed suit against several defendants including Cleaver Brooks alleging that he was exposed to asbestos while working at the Bay Area Medical Facility. Plaintiff alleged that he “scraped off the rope gaskets and supervised this task” on the doors of Defendant’s boilers. Not only did he personally perform this work but he also supervised others in the process. After a promotion in 1975, he took on the task of ordering replacement parts through his secretary. The replacement gaskets and insulation were supplied…

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Summary Judgment Granted upon Plaintiff’s Failure to Establish Replacement Parts Supplied by Valve Defendant Superior Court of Delaware, July 12, 2017

Plaintiff brought this action against several defendants including Fairbanks Company alleging exposure to asbestos while working with Defendant’s valves. Specifically, Plaintiff recalled working with globe, gate and ball valves for various employers and locations. Plaintiff also testified that he replaced packing in the valves and personally removed external insulation to repair the valves. Plaintiff assumed that the packing he encountered contained asbestos based on the high heat application of the equipment. Fairbanks argued that no evidence pointed to it having made asbestos packing Plaintiff encountered.…

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