Plaintiff Widow Allowed to Proceed on Claims Even Though Not Timely Substituted as Special Administrator of Husband’s Estate U.S. District Court for the Western District of Wisconsin, November 10, 2015

The decedent died of mesothelioma and the plaintiff, his widow, proceeded on the claims that had been filed prior to his death; the plaintiff did not substitute herself as special administrator of his estate. Defendant Owens-Illinois filed a notice of death pursuant to federal rules, then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 25(a)(2), requiring timely substitution of a proper party. Defendants 3M and Weyerhaeuser filed motions to join. The plaintiff then dismissed Owens-Illinois, and 3M and Weyerhaeuser filed no…
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Washington Appellate Court Applies New Case Law to Bar Wrongful Death Suits if Statute of Limitations Expires on Personal Injury Claim During Decedent’s Lifetime Court of Appeals of Washington, November 9, 2015

In 2006, the plaintiff successfully sued two defendants for injuries related to the plaintiff’s workplace asbestos exposure. This judgment was vacated and remanded to federal district court, where it remained pending. The plaintiff passed away in 2012; two years later, his widow filed a wrongful death claim against new defendants.  The defendants moved for summary judgment, arguing that the statute of limitations on a personal injury action during the decedent’s lifetime precludes a wrongful death action based on this underlying personal injury claim. The trial…
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Reliance of Dr. Eugene Mark on MSDS Sheets Not Enough to Overcome Court’s Exclusion of His Testimony Based on Daubert U.S. District Court for the Eastern District of North Carolina, Western Division, November 5, 2015

The court excluded the testimony of the plaintiff’s expert, Dr. Eugene Mark, on the basis of Daubert. After this order, defendant Ford filed a motion for summary judgment and a motion to dismiss, and defendant Honeywell filed a motion to reconsider the court’s summary judgment order; both were made pursuant to the court’s order excluding Dr. Mark. The plaintiff then moved to continue the trial to find a different causation expert and to file a motion for reconsideration. The court denied the motion to…
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Illinois Supreme Court Rules Workers’ Compensation Is Employees’ Exclusive Remedy for Asbestos Claims Against Employers, Even if Workers’ Compensation Claim is Time-Barred Illinois Supreme Court, November 4, 2015

The plaintiff was employed by Ferro Engineering for four years, and alleged that during this time he was exposed to products containing asbestos. Forty-one years after this employment he was diagnosed with mesothelioma, and sued Ferro under several theories including negligence. Ferro filed a motion to dismiss, arguing the plaintiff’s claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act (820 ILCS 305/5(a), 11 (West 2010)) and the Workers’ Occupational Diseases Act (820 ILCS 310/5(a), 11 (West 2010)).  The plaintiff replied that…
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California Court Holds Refractory Contractor Established Insufficient Evidence of Exposure and Grants Summary Judgment U.S. District Court for the Southern District of California, November 2, 2015

The plaintiff commenced this wrongful death claim alleging the decedent was exposed to asbestos while J.T. Thorpe & Sons was performing refractory work around boilers. Thorpe moved for summary judgment on the ground that there was insufficient evidence decedent was actually in the vicinity of Thorpe employees working with refractory materials. The court concluded that the plaintiff has some threshold burden of establishing some factual basis for exposure and that Thorpe met it initial burden that there was insufficient evidence of exposure: “Thorpe has satisfied…
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Chunk of Rulings From MDL Allow Previously Dismissed Asbestos Claims to Proceed Even Though Not Listed As Assets In Bankruptcy United States District Court for the Eastern District of Pennsylvania

Six cases were decided in the United States District Court for the Eastern District of Pennsylvania; all started in the Northern District of Ohio, and were transferred to the MDL 875 in the Eastern District of Pennsylvania. In all six cases, the plaintiffs brought claims against various shipowners represented by Thompson Hine LLP, and all alleged asbestos exposure while working on ships. All cases were administratively dismissed; after dismissal, the plaintiffs filed for bankruptcy, and did not list their asbestos claims as assets. After bankruptcy…
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$6.6 Million Verdict Reinstated by Florida’s Highest Court After Analysis of Arguments on Alternative Design, Causation, and Jury Instruction on Failure to Warn Supreme Court of Florida, October 29, 2015

In this case, the plaintiff, William Aubin, claimed he was exposed to asbestos from SG-210, an asbestos product used in items such as joint compound and texture sprays that was manufactured by Union Carbide Corporation. Following trial, a jury returned a verdict of $6.6 million finding Union Carbide was liable, in part, under the plaintiff’s claims of negligence and strict liability. The Third District Court of Appeal reversed the jury verdict on three grounds: “(1) the trial court erred in failing to apply the Restatement…
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California Appellate Court Examines Entire Record, Not Just Expert Testimony, To Affirm Denial of Motions for Judgment Notwithstanding the Verdict Court of Appeal of California, Second Appellate District, Division Four, October 28, 2015

The plaintiff in this case was diagnosed with mesothelioma and filed claims for negligence, strict liability, and loss of consortium against, among others, Union Carbide and Elementis Chemicals, as successor-in-interest of Harrison & Crosfield, Pacific, Inc., and certain related entities.  The plaintiff submitted three theories of liability: strict liability (design defect under the consumer expectations test); strict liability (failure to warn); and negligence (failure to warn). The jury returned special verdicts in favor of the plaintiff on the strict liability claim in that Union Carbide…
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Summary Judgment Affirmed for Two Defendants – One Based on Government Contractor Defense and One Due to No Exposure United States Court of Appeals for the Ninth Circuit, October 27, 2015

The Ninth Circuit affirmed the granting of summary judgment to two defendants – Lockheed and UTC, as successor-in-interest to Pratt & Whitney. Summary judgment was affirmed as to Lockheed based on the government contractor defense. Lockheed introduced two affidavits establishing that the Untied States approved specifications requiring the use of asbestos in government aircraft. This equipment conformed to the government’s specifications because Lockheed complied with all its directives for constructing this aircraft, including the use of specific warnings. Further, the United States knew about asbestos…
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In Severing Late Third-Party Claims Against Defendant with Federal Defenses, Court Remands Case That had Been Litigated in State Court for Almost Two Years U.S. District Court for the Western District of Kentucky, Louisville, October 26, 2015

In this case, an action was brought in Jefferson Circuit Court asserting state-law claims for the asbestos exposure and death of the decedent, Glen Brown. Defendant General Electric Company (GE) was granted leave to assert a third-party claim against Tennessee Valley Authority (TVA), who then removed the matter to federal court pursuant to 28 U.S.C. 1442(a)(1), the federal officer removal statute. The plaintiff moved to remand the matter and to sever GE’s claims against TVA. The court first looked at the severance of GE’s claims…
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