Author Archives: Scott J. McDowell

Denial of Summary Judgment of Boiler Manufacturer Affirmed on Appeal Supreme Court of New York, Appellate Division, First Department, October 13, 2016

Relying on Koulermos v. A.O. Smith Water Prods., the New York Appellate Division, First Department upheld the trial court’s denial of summary judgment. The court found that the trial court used the correct standard and that Cleaver Brooks failed to put forth evidence illustrating how it was entitled to summary judgment. Read the decision here. Read a full summary of the case here.…

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Jury Awards $8.5 Million to Widow on Loss of Consortium Claim in Mesothelioma Case

A Miami-Dade County jury recently awarded Rosa-Maria Britt $8.5 million for the passing of Dennis Britt in a case against Northrup Grumman Systems Corporation. An additional $519,265.69 was awarded for medical and funeral expenses. Read the verdict sheet here.…

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Plaintiffs’ Experts’ Testimony of General Causation Not Permitted to Prove Specific Causation in Mesothelioma Case U.S. District Court for the Eastern District of Louisiana, October 5, 2016

The defendants moved in limine to preclude testimony of the plaintiffs’ experts Drs. Kradin, Kraus and Parker for their reliance on the “each and every exposure” methodology of causation. The court began its analysis by stating the standard for expert qualification, which includes: 1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact issue 2) the testimony is based on sufficient facts or data 3) the testimony is the product of…

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Judgment in Favor of Insulation Manufacturer due to Plaintiff’s Failure to Establish Insulation Caused Pipe Insulator’s Mesothelioma U.S. District Court for the Western District of Wisconsin, September 30, 2016

The plaintiff alleged her decedent, Oswald Suoja died from mesothelioma as a result of his exposure to asbestos from Kaylo pipe insulation after working as a pipe insulator at Badger Ordance Works in Wisconsin. The case was transferred to the Eastern District of Pennsylvania for pretrial proceedings. The plaintiff specifically alleged that Mr. Suoja had been exposed to a pipe covering product made by Owens-Illinois called “Kaylo” while working as a career asbestos insulation worker. It was also alleged in his bankruptcy trust submissions and…

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Court Reverses Verdict Against Crane Co. and Remands as to Cigarette Defendants After Daubert Challenge Florida District Court of Appeal, Fourth District, September 14, 2016

Plaintiff Richard Delisle filed suit against multiple defendants alleging he developed mesothelioma as a result of exposure to sheet gaskets manufactured by Crane Co. and from the asbestos fibers from Micronite filters from smoking Kent cigarettes. The jury found both defendants’ products were a substantial contributing cause (SCC) of the development of Delisle’s mesothelioma. Both defendants unsuccessfully moved for directed verdicts and filed for appeal. Crane Co. argued that the plaintiff’s expert, Dr. James Dahlgren should not have been permitted to testify as an expert…

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Court Affirms Summary Judgment in Part Regarding Turbines But Reverses in Part as to Switchgears by Same Manufacturer U.S. Court of Appeals for the Third Circuit, September 13, 2016

The plaintiff brought his action on behalf of his decedent’s estate alleging that Howard Frankenberger developed lung cancer as a result of his work around asbestos containing insulation on turbines at various powerhouses in Illinois and Indiana. The turbines were alleged to have been manufactured by Westinghouse. Howard Frankenberger worked as a pipefitter at State Line Generating Station, Will County Generating Station, and Acme Steel from approximately 1953-1999. As for exposure, he was allegedly exposed to asbestos from turbines and switchgears. Expert testimony established that…

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Court Grants Summary Judgment After Plaintiff Fails to Establish Elements to Pierce the Corporate Veil U.S. District Court for the Southern District of New York , August 23, 2016

The plaintiff, Kelan Unterberg, brought this action against multiple defendants for his alleged development of mesothelioma. His complaint lodged three separate causes of action including negligence under the Jones Act, breach of warranty of sea worthiness and reasonable fitness under U.S. Maritime law, and remedy of maintenance and cure. All of the counts were related to Unterberg’s alleged exposure to asbestos aboard several civilian vessels while working as a chief engineer and merchant seaman from 1973-78. The plaintiff, a citizen of Germany, first brought this…

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Maritime Law Applied in Granting of Summary Judgment to Manufacturer of Blowers Used on Naval Ship U.S. District Court for the District of Delaware, August 29, 2016

The plaintiff sued several defendants alleging that he developed lung cancer as a result of exposure to asbestos products of the defendants while he served as a boiler tender in the U.S. Navy from 1976-79. Defendants Atwood and Morill (Atwood) and Carrier Corp. moved for summary judgment. The court’s analysis started with the standard for summary judgment. “The Court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as…

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Manufacturers of Generators, Turbines and Boilers Granted Summary Judgment on Bare Metal Defense U.S. District Court for the District of Delaware, August 29, 2016

The plaintiffs brought this action against several defendants for alleged exposure to asbestos and development of mesothelioma while working as a ship fitter at several shipyards from approximately 1964 until 2014. Defendants Cummins, CBS, and Foster Wheeler moved for summary judgment. Specifically, the plaintiff alleged that he rolled out amosite and cut it with an electric knife to make A-Cloth pads at the shipyards. He also stated that he had insulated various pieces of equipment including turbines, boilers, and generators. As to the defendants, Malone…

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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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