Category Archives: Case Decisions

State of The Art Experts Drs. Markowitz and Rosner Found Qualified to Testify U.S. District Court for the Western District of Missouri, Western Division, September 3, 2015

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendant Caterpillar Incorporated moved to strike the expert state of the art testimony of historians Dr. Gerald Markowitz and Dr. David Rosner, arguing that “…(1) their testimony will not assist the jury in deciding any issue in this case; (2) they fail to qualify as ‘experts’ under Rule 702; (3) their report was written solely for the purposes of litigation; (4) their report is unreliable…

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Connecticut Appellate Court Affirms Dismissal of Asbestos Action for Failure to Prosecute the Action with Reasonable Diligence Appellate Court of Connecticut, Decided September 2015

The plaintiff’s decedent brought this personal injury action in August 2009, alleging that his mesothelioma was caused by exposure to asbestos from several defendants’ products. The plaintiff’s decedent died a few days after the commencement of this action and before any deposition testimony or product identification evidence was disclosed. The plaintiff was appointed as executrix of the decedent’s estate less than a month after his death. In November 2012, three years after the decedent’s death, the trial court set a trial date. The defendants moved…

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Court Refuses to Dismiss Garlock’s RICO Complaints Against Plaintiff Law Firms U.S. District Court for the Western District of North Carolina, Charlotte Division, September 2, 2015

Following the well-publicized decision in the Garlock bankruptcy, Garlock commenced a number of actions in federal court against asbestos plaintiffs’ law firms that allegedly engaged in fraud in the settlement of their clients’ mesothelioma claims against Garlock. In two of these actions, the defendant plaintiffs’ firms moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on a variety of grounds, including that the claims were time-barred. One of the arguments was that Garlock knew of the alleged misrepresentations so long ago that…

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Court Applies Delaware’s Borrowing Statute in Granting Defendants’ Summary Judgment on Statute of Limitations Superior Court of Delaware, New Castle, September 1, 2015

In this case, the plaintiff alleged that his lung cancer was caused by exposure to several defendants’ asbestos-containing products while he was working in Michigan. The plaintiff and his wife filed their claim in Delaware and all defendants moved for summary judgment, arguing that the action was untimely under the Delaware statute of limitations, which they claimed applied pursuant to Delaware’s “Borrowing Statute,”10 Del. C. 8121. The court agreed and granted defendants’ motions for summary judgment. The court pointed out that the parties had agreed…

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Plaintiff’s Expert B Reader Found Qualified to Testify on Exposure and Causation U.S. District Court for the Southern District of Illinois, August 31, 2015

In this federal court case, the defendants moved to preclude the testimony of the plaintiff’s expert, Dr. Matthew Vuskovich, arguing that he was not qualified to testify, his testimony was not sufficiently reliable, and his opinions were based on the “every exposure” theory. The court denied the motion, finding Dr. Vuskovich’s credentials as a certified B Reader to be adequate. Regarding the reliability of his testimony and the “every exposure” argument, the court held: “Dr. Vuskovich does state that asbestosis is a cumulative disease, which…

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Plaintiff’s Expert Found Qualified to Testify and Pump Manufacturer Denied Summary Judgment on Frequency, Regularity, and Proximity Argument U.S. District for the Southern District of Illinois, August 28, 2015

In this federal court case, the plaintiff alleges that he was exposed to asbestos while serving in the Navy from 1954 to 1958 while aboard the USS Roosevelt, USS Bremerton, and USS Intrepid. Several defendants moved to limit the trial testimony of the plaintiff’s proffered expert, Dr. Jerome Spear, arguing that his report and testimony rely on the “every exposure” theory, his opinions are based on unreliable scientific methodology, and his testimony would not assist the jury. The defendant, Ingersoll-Rand Company (“Ingersoll-Rand”), also moved for…

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John Crane Inc. Establishes Prima Facie Entitlement to Summary Judgment U.S. District Court for the Western District of North Carolina, Asheville Division, August 21, 2015

In this federal court case, defendant John Crane Inc. moved for summary judgment. The plaintiffs did not oppose the motion, and the court stated that it “may consider the forecast of evidence presented by the movant to be undisputed for the purposes of the present motion. See Fed. R. Civ. P. 56(e)(2).” In granting Crane summary judgment, the court held: “To prove causation in North Carolina, a plaintiff in a personal injury asbestos case ‘must present “evidence of exposure to a specific product on a…

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Preclusion of Plaintiff’s Expert Witness and Defendant’s Investigation of Juror Do Not Warrant New Trial U.S. District Court for the Northern District of Illinois, Eastern Division, August 25, 2015

In this federal case, the plaintiff, Charles Krik, sued Owens-Illinois and ExxonMobil and claimed they negligently exposed him to asbestos, causing his lung cancer. The case went to trial and a verdict was returned in favor of the defendants as the jury found that the plaintiff’s smoking was the sole cause of his lung cancer. The plaintiff subsequently moved for a new trial, arguing that the exclusion of his expert was in error and prejudicial and that Mobil’s investigation of contact between the plaintiff and…

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Federal Court Refuses to Maintain Supplemental Jurisdiction After Plaintiff Amends Complaint U.S. District Court for the Southern District of New York, August 18, 2015

In this federal court case, the decedent, Thomas Maguire alleged exposure to asbestos while he served as a metalsmith in the Navy between 1958 and 1961, and then again while working as a steamfitter aboard Navy ships between 1962 and 1963. The defendant, Crane Co. removed the case to federal court based on the federal officer statute 28 U.S.C. 1442(a)(1). The plaintiff’s original motion to remand was denied, but they were granted leave to amend the complaint to remove all federal claims and defenses. The…

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National Grid Successfully Opposes Co-Defendant’s Motion to Dismiss Cross-Claims Supreme Court of New York, New York County, August 13, 2015

In this NYCAL action, the plaintiff, Michael Koulermos claimed he developed mesothelioma from working near employees of Treadwell Corp. while he was employed at the Northport Power Station. The plaintiff subsequently agreed to a no-opposition summary judgment motion on behalf of Treadwell. However, the co-defendant, National Grid, opposed the motion’s requested dismissal of any cross-claims. The court agreed with National Grid and held: “Treadwell has failed to establish a prima facie case that National Grid’s cross-claims have no merit. Treadwell makes no specific argument as…

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