Author Archives: Scott J. McDowell

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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U.S. District Court Denies Plaintiffs’ Motion for Reconsideration on Grant of Summary Judgment as to Daubert Challenge, Worker’s Compensation Exclusivity, and Public Nuisance Claim U.S. District Court for the Western District of Wisconsin, May 5, 2016

The plaintiffs brought a motion for reconsideration for the court’s decision to grant partial summary judgment as to the defendant Weyerhauser’s motion as to its Daubert challenge, The plaintiffs’ claims for Worker’s Compensation Exclusivity and public nuisance claim. The court stated that Rule 56 does not provide for a motion for reconsideration but permits a motion to alter judgment. However, the standard requires the movant to show a “manifest error” in judgment or that newly discovered evidence is available. The court noted that the rule…

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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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