Author Archives: Scott J. McDowell

Remand Granted Based on Finding that Plaintiffs Acted in Good Faith Naming Defendant With State Contact U.S. District Court, Northern District of California, August 22, 2016

The plaintiffs sued multiple defendants including several “citizens” of California. Four days before trial defendant John Crane Inc. removed the case to federal court on diversity. The plaintiff then moved to remand. The court began its analysis by stating the legal standard for removal which permits removal when the federal court could have “exercised original jurisdiction” in the case. Additionally, the burden falls upon the removing defendant. A case may be removed under diversity unless one of the parties is a properly joined and served…

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Court Denies Multiple Motions including Plaintiff and Ford Motor Co.’s Daubert Motions, Ford’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration U.S. District Court for the Southern District of Florida, July 11, 2016

Plaintiff James Waite and his wife Sandra Waite brought this action against Ford Motor Co. and Union Carbide Corporation (UCC) for Mr. Waites’ alleged development of mesothelioma from his work on brakes and clutches. UCC’s motion to dismiss for lack of personal jurisdiction was at first denied by the Court but then granted on UCC’s Motion for Reconsideration. Ford then moved to exclude the plaintiffs’ experts (Daubert Motion) and for summary judgment. The plaintiff moved to preclude various elements of Ford’s proposed expert witness testimony…

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Motion for Reconsideration of Summary Judgment of Defendants Electric Boat and General Dynamics Denied for Failure to Establish Material Difference in Fact or Law U.S. District Court for the Central District of California, August 1, 2016

The plaintiffs’ filed suit in the Superior Court for the County of Los Angeles, alleging her decedent developed mesothelioma as a result of occupational exposure to asbestos while he worked as a machinist on various U.S. Navy ships manufactured by the defendants. The case was removed to federal court and Electric Boat and General Dynamics moved for summary judgment on all of the plaintiffs’ claims. The court denied the motions. The defendants’ included in their motions the argument that strict liability claims could not be…

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Federal Court Grants Summary Judgment to Defendants for Plaintiffs’ Failure to Establish Substantial Factor but Denies It as to Joint Compound and Outside Contractor Defendants United States District Court for the District of Maryland, July 25, 2016

Plaintiffs Charles Arbogast and Barbara Arbogast brought this action against multiple defendants for Mr. Arbogast’s alleged development of mesothelioma as a result of his occupational exposure at Bethlehem Steel Sparrows Point Steel Mill, amongst other sites. Several defendants moved for summary judgment, including Eaton Corporation (Cutler Hammer), Foster Wheeler, MCIC, Georgia Pacific (GP), Schneider Electric (Square D), Union Carbide (UCC), and Crane Co. The court began its analysis by reciting the standard for summary judgment, which is appropriate when “the movant shows there is no…

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Insulation Found to be Integral to Turbine as Court Grants Renewed Motion for Summary Judgment Based on Statute of Repose U.S. District Court for the Northern District of Illinois, Eastern Division, July 21, 2016

The plaintiff brought this action against defendants, including Westinghouse, for Earl Norberg, her decedent’s, alleged development of lung cancer as a result of his work around asbestos containing products while working at the Joliet and Romeoville Power stations. The plaintiff’s fact witness was Mr. Norberg’s brother, Howard, who recalled that he and the plaintiff worked at Joliet Power Station from 1963-65 and again in the mid-1970s. Specifically, he testified that workers were insulating a turbine at Unit 9 while Units 7 and 8 were being…

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Kentucky Appellate Court Affirms Trial Court Finding of Plaintiff’s Failure to Establish Causation to Brake Defendants Court of Appeals of Kentucky, July 15, 2016

The plaintiff Hershel Mannahan brought an action against the defendants for his alleged development of mesothelioma as a result of his work as a laborer, driller, oiler, truck driver, mechanic, and welder for Peabody Coal Mannahan worked as a welder for Peabody at the Vogue Mine from March 1974 to February 1977 and at Riverview Mine from May 1977 to June 1978. He also performed welding and mechanic work at Vogue Mine from June 1978  until February 1986, when he retired. The plaintiff allegedly performed…

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U.S. District Court Applies Foreign State Removal and Denies Plaintiff’s Motion for Remand U.S. District Court for the Eastern District of Louisiana, July 14, 2016

The plaintiff brought an action against multiple defendants for his alleged occupational exposure to lung cancer while working as a longshoreman for different stevedoring companies from 1954-1979. Included with the numerous defendants was Industrial Development Corporation of South Africa, Ltd. (IDC) and South African Marine. The plaintiff’s claims included negligence, strict liability, intentional tort, and premises liability. Specific to IDC and South African Marine, the plaintiff asserted claims under the Jones Act. Immediately after filing suit, the plaintiff filed a motion to dismiss his claims…

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Special Electric’s Judgment Notwithstanding the Verdict Overturned on Appeal Despite Sale of Raw Asbestos Was to Sophisticated User Johns Manville Supreme Court of California, May 23, 2016

Plaintiff William Webb brought a claim against multiple defendants for his alleged development of mesothelioma as a result of his occupational exposure to crocidolite while working for Pyramid Pipe as a warehouseman and truck driver. A supplier of raw asbestos, defendant Special Electric, was found liable for failure to warn and negligence. Special Electric supplied the Johns Manville Corporation with raw crocidolite asbestos to be used in the manufacturer of multiple Johns Manville products. The court noted that Johns Manville was a vast manufacturer with…

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Trial Court Denies Mechanical Contractor’s Motion for Summary Judgment Opposed by Co-Defendants Supreme Court of New York, New York County, May 5, 2016

The plaintiff sued the defendants for his mesothelioma allegedly contracted from his work at the Northpoint Power Station in Northport, Long Island. Mechanical contractor, O’Connor, moved for summary judgment as to the plaintiff’s claims and cross claims. The motion was opposed by co-defendants National Grid and National Grid USA Service Company. O’Connor maintained that summary judgment is appropriate because the plaintiff did not identify O’Connor in his Interrogatories and deposition testimony. However, the co-defendants opposed, stating that their affidavits submitted create a sufficient issue of…

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California Appeals Court Applies “Inevitable Use” and Reverses Grant of Summary Judgment as to Brake Arcing Defendant Court of Appeal of California, First Appellate District, Division Four, May 9, 2016

The appellant brought an appeal on behalf of her late husband, Frank Rondon, arguing that the trial court erred in its grant of summary judgment as to her claims for strict liability and negligence. Frank Rondon worked as a mechanic using defendant Hennessy’s (Ammco Tools) brake arcing machines designed to grind asbestos brake shoes. Hennessy moved for summary judgment, arguing that it did not manufacturer, distribute, or design asbestos containing products. Hennessy relied upon expert declarations that non-asbestos brake show linings were available in the…

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