Category Archives: Delaware

Motion for Reconsideration Based Upon Change in Law Denied as Untimely U.S. District Court for the District of Delaware, April 9, 2018

DELAWARE — Plaintiffs Icom and Johanna Evans filed a lawsuit on June 11, 2015 in Delaware Superior Court relating to Mr. Evans’ alleged asbestos exposure. Foster Wheeler removed the matter to federal court on August 4, 2015, pursuant to the federal officer removal statute. Defendants Foster Wheeler and Warren Pumps filed motions for summary judgment in October 2016. Both motions were opposed. The district court issued a Report and Recommendation (R&R) on August 30, 2017, recommending that the motions be granted pursuant to maritime law,…

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Limited Access to Exhibits Filed in Asbestos-Related Bankruptcy Cases was Proper Under Bankruptcy Code Section 107 U.S. District Court for the District of Delaware, March 27, 2018

DELAWARE — Appellants Honeywell and Ford filed a request seeking unlimited access to thousands of exhibits (2019 Exhibits) filed in nine Delaware bankruptcy cases commenced in connection with the debtors’ asbestos-related liabilities (Consolidated Cases). All but one of the nine Consolidated Cases was closed. The appellants argued they were entitled to indefinite access to the 2019 Exhibits, including investigating potential fraud in the claims process and advancing the appellants’ legislative and lobbying activities. The appellees (various Trust Advisory Committees and Future Claimants Representatives) opposed the…

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Louisiana Statute of Limitations Bars Wrongful Death Claim Filed in Delaware Superior Court of Delaware, March 26, 2018

DELAWARE — The plaintiff, Sandra Kivell, filed a wrongful death and survival claim alleging her husband’s death was caused by mesothelioma. He passed on September 5, 2015, and the new claims were filed on September 30, 2016. The plaintiff’s decedent had originally filed a complaint before his death. Georgia-Pacific filed a motion for judgment on the pleadings, arguing that the claims were filed beyond Louisiana’s one year statute of limitations for wrongful death and survival claims. The plaintiff did not contend that the Louisiana statute…

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Plaintiffs’ Experts Permitted to Testify Regarding Conspiracy Claims U.S. District Court for the District of Delaware, March 14, 2018

Defendant Crane Company filed motions to strike the plaintiff’s expert reports from James A. Bruce, M.D., Barry Castleman Sc.D, and Captain Francis J. Burger as violating Federal Rules of Evidence 402 and 702 in this lung cancer case that was removed to Federal Court. The plaintiff alleged asbestos exposure through his work on two ships in the United States Navy, and through his work as a salesman. Only one count remained from the plaintiff’s Fourth Amended Complaint following Crane’s summary judgment motion, and it alleged…

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Exclusion of Decedent’s Deposition Testimony Upheld due to Lack of Meaningful Opportunity for Cross Examination Superior Court of Delaware, February 7, 2018

DELAWARE — Plaintiff William Sykes filed suit in March of 2014 against numerous defendants after being diagnosed with mesothelioma in October, 2013. The plaintiff’s counsel requested expedited trial and discovery depositions due to Plaintiff’s rapidly deteriorating health; a video trial deposition was taken on April 16, 2014. During a break in the trial deposition, the plaintiff informed counsel that he was unable to complete the remainder of the deposition. At that time, the parties were left with only the video trial deposition and no cross…

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Summary Judgment Granted for Ford on Strict Liability, Punitives, and Conspiracy Claims U.S. District Court, District of Delaware December 12, 2017

DELAWARE — Asbestosis plaintiff Gerald Hickman alleged take home, bystander, and direct exposure to asbestos from, among others, defendant Ford Motor Company. Ford moved for summary judgment, which was granted in part and denied in part. The plaintiff alleged exposure to Ford products during his work around others in garages and gas stations, from his father’s work in the family service station, and from his own repair work on his wife’s new Ford Mustang. Applying Delaware law, the court denied summary judgment as to the…

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No Reasonable Inference that Union Carbide Supplied Asbestos to Joint Compound Manufacturers; Summary Judgment Granted Superior Court of Delaware, December 11, 2017

DELAWARE — Plaintiff Larry Sturgill, who died of mesothelioma, worked in home remodeling and construction for three years, using joint compound manufactured by three companies. Defendant Union Carbide moved for summary judgment, which the court granted. U.S. Gypsum and National Gypsum, were allegedly supplied with Calidria asbestos for their joint compound products by Union Carbide. Virginia substantive law governed the case. Union Carbide argued that 1) the plaintiff could not establish that he worked with any joint compound containing Calidria, 2) that a bulk supplier…

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Summary Judgment Affirmed in Delaware Maritime Action Based Upon Lack of Product Identification Superior Court of Delaware, November 29, 2017

DELAWARE — In an unreported opinion issued on November 29, 2017, the Superior Court of Delaware affirmed the entry of summary judgment on behalf of Warren Pumps. The plaintiff, Phillip Walsh, served aboard the USS Halsey and USS Bigelow from 1975 to 1977 as a machinist in the U.S. Navy. He was the only product identification witness offered. He testified that he removed insulation from pumps, and also removed and installed packing and gaskets on the pumps. With regard to the manufacturer of those replacement…

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Plaintiff’s Status as Independent Contractor Bars Negligence Claim Superior Court of Delaware, October 26, 2017

DELAWARE — Defendant Covestro was the premises owner or successor in interest to one or more prior owners of Mobay Chemical Plant. The plaintiff worked at Mobay for six months in 1979 and was employed by Dravo Corporation, a third party contractor.  The plaintiff testified that he removed insulation from pipes and other equipment; he received instruction and equipment from Dravo supervisors. The plaintiff also worked at Mobay from 1986-88 as a contract engineer for Midwest Tech and testified that he reported to two Mobay…

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Magistrate Judge Recommends No Personal Jurisdiction Over Exelon Corporation in Delaware U.S. District Court of Delaware, September 14, 2017

DELAWARE — Plaintiffs Michael and Sally Harding filed claims in Delaware state court due to Michael Harding’s exposure to asbestos while working as a pipefitter for the United States Navy from 1963-67. Defendant Crane Co. removed to federal court. Defendant Exelon Corporation moved for dismissal due to lack of personal jurisdiction. Exelon was not a Delaware business entity and did not have a principal place of business in Delaware.  The plaintiffs did not respond to Exelon’s motion to dismiss. The magistrate judge recommended granting this…

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