Category Archives: Asbestos Litigation Analysis

Growing Number of Cases Involving Cosmetic Talc and Mesothelioma Nationwide

In the past five years, the number of lawsuits filed against manufacturers of cosmetic talcum powder has skyrocketed. The lawsuits generally allege that the application of the alleged defective product causes ovarian cancer in women, many times decades after exposure. As the cases involving ovarian cancer balloon with varying degrees of success, plaintiffs have recently begun filing a growing number of lawsuits alleging that exposure to asbestos-containing cosmetic talcum powder causes mesothelioma. The science behind these cases is evolving; courts and juries are not convinced…

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Pennsylvania’s Long Arm Statute and its Effect on Personal Jurisdiction

In the wake of the Daimler, BNSF, and Bristol-Myers Squibb opinions recently issued by the U.S. Supreme Court, defendants in asbestos cases throughout the country have been challenging personal jurisdiction with greater success. Yet, Pennsylvania remains a difficult jurisdiction for defendants to assert the defense, due to Pennsylvania’s long arm statute. No Pennsylvania state appellate court or federal court has yet ruled on the general personal jurisdiction issue in an asbestos case since the Bristol-Myers Squibb opinion was issued. In the meantime, a split…

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A Look Back at the Bare Metal Defense in 2017

In the past year, the bare metal defense continued to see some variance from jurisdiction to jurisdiction, with at least one federal appellate court taking up an issue for further clarification late in the year. The bare metal or component parts defense essentially provides that a manufacturer is not liable for harm caused by asbestos products that the manufacturer did not manufacture or distribute, and owes no duty to warn of the hazards inherent to those products. It is viewed in some jurisdictions in the…

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Application of § 5 of Federal Employers Liability Act (FELA) for Releases Remains Clear as Mud

Two plaintiffs in two jurisdictions bargain for settlement in asbestos related claims. Both agree to take money in exchange for a release of all future claims. Both later develop new diseases and sue the same defendant again. Only this time, one court finds the release unenforceable and the other court dismisses the complaint. No doubt the split that exists in federal circuits applying § 5 of FELA is confusing and remains fact intensive. The two predominant rules are found in Babbitt v. Norfolk & Western

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Madison County “Judicial Hellhole” Designation Sees Signs of Changing

Madison County, Illinois has traditionally been dubbed the “judicial hellhole” of asbestos litigation, but this designation shows signs of changing. In the first half of 2016, this venue had 29 percent of the nation’s asbestos filings. It has a history of unfair docketing practices, denial of forum non conveniens motions, and large plaintiff verdicts. Full-blown jury trials in asbestos litigation are rare for various reasons, not the least of which is the threat of multi-million dollar plaintiff verdicts, but in recent years Madison County jury…

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Personal Jurisdiction Decision by Missouri Supreme Court to Significantly Impact Asbestos Litigation in Missouri

St. Louis City, Missouri is often termed a “judicial hellhole” for corporate defendants in product liability actions, most notably in asbestos litigation. Until recently, Missouri courts offered little guidance on what constituted general jurisdiction for corporate defendants in light of the U.S. Supreme Court’s holding in Daimler AG v. Bauman, 134 S.Ct. 746 (2014). In Daimler, the Supreme Court held that absent exceptional circumstances, a company is only subject to general jurisdiction in its state of formation or where it has its principal…

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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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Argument That Plaintiff’s Counsel Misrepresented Return of Privileged Memo Unavailing; Defendant’s Own Actions Waived Privilege Supreme Court of New York, July 14, 2016

Defendant J-M Manufacturing Company, Inc. moved to vacate the Recommendation of the Special Master finding that J-M waived privilege. In so doing, the defendant argued the Special Master erroneously applied New York law instead of California law in determining that the defendant waived the attorney-client privilege attached to the redacted and unredacted versions of a 1983 memo from the defendant’s in-house counsel to its president. The plaintiff opposed the motion. In its motion to vacate, J-M argued the memo was first inadvertently produced in a…

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No Liability Coverage Allocation for Manufacturers Who Continued Making Products with Asbestos After 1987 N.J. App. Ct. July 20, 2016

  A New Jersey appellate court held that policyholders who continued to manufacture products containing asbestos after 1987 — when coverage for injuries arising from such products was no longer available — need not shoulder any portion of liability for injuries related to asbestos exposure from their products, so long as any portion of such exposure occurred prior to 1987. The Bendix Corporation, predecessor of Honeywell International, Inc., manufactured and sold brake and clutch pads that contained asbestos. Honeywell has been sued in tens of…

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What Does New York’s Decision on Duty to Warn Mean Going Forward in Asbestos Litigation?

New York’s highest court has imposed a duty on equipment manufacturers to warn about asbestos containing products manufactured by other manufacturers. This long-awaited decision now resolves the duty issue, but what does it mean going forward in asbestos litigation? On June 28, 2016, the New York Court of Appeals ruled in the Dummitt/Suttner cases that Crane Co. had a “a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as…

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