Applying Maritime Law, Federal Court Grants Summary Judgment, Refusing to Speculate on Decedent’s Exposure to Pump Defendant’s Products While in the Navy

Plaintiff Josephine Fuoco, as executrix of the estate of Joseph Fuoco, alleged that Mr. Fuoco contracted mesothelioma while serving in the U.S. Navy as a machinists’ mate and as a construction worker. Defendant Warren Pumps moved for summary judgment, which the court granted. Warren did not dispute that its circulating pumps were on the USS Ammen, the ship on which Mr. Fuoco served. However, no fact witness offered testimony regarding Mr. Fuoco’s alleged asbestos exposure on board this shop. Warren was added to the …

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Alabama Supreme Court Reverses Summary Judgment In Favor of Talc Defendant Based on Product Identification, Not Asbestos Content, of Talc

In this case, the Alabama Supreme Court reversed and remanded the order granting summary judgment to defendant Vanderbilt Minerals. The Supreme Court included a large summary of facts in its opinion. The decedent, Dansby W. Sanders, died from mesothelioma; prior to his passing, he sued numerous defendants alleging he was exposed to asbestos while working for Mobile Paint Company. Vanderbilt supplied industrial talc under the brand name Nytal to Mobile Paint. Various witnesses testified as to the presence of Nytal supplied by Vanderbilt. Vanderbilt responded …

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Defendant Establishes Colorable Defense Under Federal Law, Plaintiff’s Motion to Remand Denied

The plaintiff filed this action in Madison County, Illinois, alleging injury due to asbestos exposure. The defendants, CBS and General Electric, removed the action to federal court under federal officer removal statute 28 U.S.C. 1442. The plaintiff filed a motion to remand, which the court denied. The court cited the United States Supreme Court in listing the three elements required to establish a colorable defense to the use-of-asbestos claim: (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; (3) …

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Applying Maritime Law, Defendants’ Summary Judgment Motions Denied in Case Alleging U.S. Navy Exposure

The plaintiff alleged he developed severe asbestosis as a result of inhaling asbestos while serving in the United States Navy. Three defendants — John Crane, General Electric, and Ingersoll-Rand — moved for summary judgment. In deciding the motion, the court determined whether maritime or Illinois law applied. A plaintiff’s exposure in a products liability claim must meet both a locality test and a connection test in order to apply maritime law. The locality test analyzes whether the tort occurred on navigable water, or, if the …

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Missouri Court, Applying Maryland Law, Upholds $4 Million Verdict, Rejecting Arguments on Expert Challenges, Offsets, and Defective Damages Verdict

In this case, the plaintiff worked as a steamfitter between 1958 and 1983 at a variety of industrial and commercial sites. Of the original 57 defendants, only valve manufacturer Nibco, Inc. went to trial, which resulted in a $4 million plaintiff’s verdict with the trial court applying Maryland law. On appeal, Nibco raised four issues: it should have been granted a directed verdict; the plaintiff’s experts were allowed to offer opinions based on facts not in evidence; the lower court improperly denied setoff rights; and …

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Brake Defendant’s Motion to Preclude Causation Expert Under Daubert Denied

The plaintiff commenced this wrongful death action alleging that the decedent developed mesothelioma caused by prolonged exposure to brake dust from brake pads manufactured by Bendix while working as a part-time bookkeeper at an auto repair shop from 1984-1990.  Defendant moved in limine to preclude testimony from the plaintiff’s expert, Dr. Jill Ohar, with respect to any testimony that brake dust causes mesothelioma and any testimony based on the every exposure theory. The defendant also sought to preclude any testimony that asbestos or chrysotile causes …

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Joint Compound Manufacturer’s Summary Judgment Overturned on Appeal Based on Issue of Fact of Plaintiff’s Contradictory Testimony

In this case, the plaintiff,  David Bergstrom, claimed exposure to asbestos while working as a contractor installing drywall for various companies between 1962 and 2011. The trial court granted the defendant, joint compound manufacturer Welco, summary judgment based on the plaintiff’s testimony that he did not have any exposure to joint compound after 1979 and was not exposed to Welco’s product, Welco, prior to 1979. In opposition to the motion, the plaintiff alleged that he did not make such a clear admission, that his testimony …

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Defendants’ Motion in Limine To Exclude Expert Testimony on “Each and Every Exposure” Opinion Denied Based on Federal and Illinois Law

Various defendants filed a motion in limine to exclude the testimony of Matthew A. Vuskovich, M.D., M.S.P.H., arguing that he does not satisfy the requirements for expert testimony outlined in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Specifically, defendants sought to exclude his opinions based on the “every exposure” theory, because it is not accepted by the scientific community or the courts. The court denied the motion, as Federal Rule of Evidence 702 allowed for the theoretical basis for Dr. Vuskovich’s …

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Release Agreement in Prior Claim Does Not Bar Future FELA Claim

Plaintiff Roger Lee Hindle was a railroad employee who developed lung cancer and brought a suit under the Federal Employers’ Liability Act (FELA), alleging that his exposure to asbestos caused him to develop the condition. The plaintiff had previously brought a claim against the same railroad defendants for hearing loss; in settling the previous claim, he signed a Release Agreement discharging them from any and all losses, known or unknown, including cancer. The railroad defendants moved for summary judgment, arguing that this release barred the …

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Decedent’s At-Home Asbestos Exposure From Employer’s Products Does Not Bar the Application of California Workers’ Compensation Act

After working for defendant Ameron International for approximately 24 years, Lario Melendrez passed away from mesothelioma. The plaintiffs commenced a wrongful death action, alleging Mr. Melendrez was exposed to asbestos both during the manufacture of Ameron’s Bondstrand pipe products and in bringing scrap products home for use. Ameron moved for summary judgment, arguing that the plaintiffs’ sole remedy against Ameron lies in the California Workers’ Compensation Act. The trial court granted summary judgment and the appellate court affirmed. While the issue of whether Mr. Melendrez’s …

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