Author Archives: Scott J. McDowell

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.…

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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,…

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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…

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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…

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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…

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Plaintiffs Survive Summary Judgment as to Turbine and Valve Defendants; Fail to Establish Exposure to Other Equipment Defendant U.S. District Court for the District of Connecticut, March 31, 2017

The defendants moved for summary judgment arguing that the plaintiff, Paul Paquin, had not established that he was exposed to any asbestos containing product for which the defendants were responsible. The court launched into its analysis with the standard for summary judgment and stated that summary judgment is not appropriate unless “the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment.” The parties disputed whether maritime…

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Summary Judgment Recommended for Turbine and Valve Defendants in Mesothelioma Case U.S. District Court for the District of Delaware, March 30, 2017

The plaintiff’s executrix brought this claim against multiple defendants alleging that her decedent, Mr. Denbow, developed mesothelioma as a result of his work in the U.S. Navy onboard the USS New Jersey from 1954-57 and while working at Koppers Chemical from 1965-70. The plaintiff relied upon the testimony of product identification witness Charles Ricker. Although not sure when he met Mr. Denbow, he testified that he met him while working as a machinist mate in engine room Nos. 2 and 4 during his stint on…

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Mississippi House and Senate Approves Conference Committee Report Requiring Transparency in Asbestos Bankruptcy Trust Submissions

The Mississippi House and Senate approved a conference report regarding asbestos bankruptcy trust transparency legislation. The bill is expected to be signed into law. Findings of the Conference Committee include an acknowledgement that approximately 100 employers have declared bankruptcy related to asbestos litigation. Further, 85 percent of industries in the U.S. economy have been named as defendants in asbestos litigation. As a result, trusts have been established in asbestos related bankruptcy proceedings “to form a multibillion dollar asbestos bankruptcy trust compensation system outside of the…

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Port Commission’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Granted Where Plaintiff’s Work was Predominantly Land Based U.S. District Court for the Middle District of Louisiana, March 13, 2017

Mr. Genusa developed mesothelioma as a result of his work as a longshoreman, truck loader, and warehouse worker from 1963-1999. Mr. Genusa passed away and a claim was paid by Baton Rouge Marine Contractors (BRMC) and Signal Mutual Indemnity under the Longshore and Harbor Worker’s Compensation Act. The plaintiffs instituted this action against 13 defendants that allegedly “designed, tested, evaluated, manufactured, packaged, furnished, stored, handled, transported, installed, supplied and/or sold asbestos containing products to recover the benefits paid to Mr. Genusa’s wife. The last standing…

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Summary Judgment Granted as to Two Defendants and Denied for Several Others in Bare Metal Defense Case

The plaintiffs brought this action against several defendants for their decedent’s alleged development of mesothelioma while working aboard ships as an engine man, machinery repairman, and machinist mate. The defendants moved for summary judgment again after the court announced it would not adopt the Sixth Circuit’s version of the bare metal defense. The court concluded that “the bare metal defense should immunize only a narrower range of conduct.” Summary Judgment is appropriate when the court determines that there is no genuine dispute as to material…

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