Category Archives: Pleadings Challenge

Appellate Court Affirms Dismissal in Federal Court Without Prejudice; Allows Plaintiffs to Refile in State Court U.S. Court of Appeals for the Ninth Circuit, March 9, 2017

Plaintiffs Richard Zanowick and Joan Clark-Zanowick filed suit in state court in July 2014. The defendants timely removed the case to federal court on diversity grounds a month later. With the case now in federal court, Richard Zanowick passed away on October 12, 2014. The plaintiffs filed and electronically served a notice of his death on November 17, 2014. Pursuant to Rule 25(a)(1), the plaintiffs were required to file a motion to substitute a new party for Richard Zanowick within 90 days, or in this…

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Defendants’ Motion for Judgment on the Pleadings Granted, but Plaintiffs Allowed to Amend Complaint U.S. District Court for the District of Maryland, January 3, 2017

The plaintiffs initially filed a “short form asbestos complaint” in the Circuit Court for Baltimore City, Maryland, that included general counts for negligence, strict liability, loss of consortium, conspiracy, and fraud. The plaintiffs also realleged and incorporated counts for wrongful death from the naster complaint. The case was removed to federal court and the defendants filed the motion for judgment on the pleadings under Rule 12(c), among other arguments, with the United States District Court for the District of Maryland. A motion for judgment on…

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Denial of Administrative Dismissal Turns on Definition of a “Smoker” Under Ohio State Code Court of Appeals of Ohio, Eighth Appellate District, November 17, 2016

Plaintiff Bobby Turner and his wife commenced an action in April 2013 alleging asbestos exposure caused his lung cancer. The plaintiff was a drywall finisher from 1962 to 1978. Defendant Union Carbide moved to administratively dismiss the claim in February 2014, claiming that the plaintiffs failed to submit prima facie evidence pursuant to R.C. 2307.92. (Under Ohio’s Revised Code General Provisions a plaintiff must meet minimum medical requirements for tort actions alleging an asbestos claim). In response, the plaintiffs submitted an affidavit saying that Mr.…

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U.S. District Court of Connecticut Denies Motion to Dismiss Punitive Damages Count Based on Sufficiency of Pleading U.S. District Court for the District of Connecticut, May 4, 2016

In this case pending in the U.S. District Court for the District of Connecticut, the plaintiffs’ third count of their complaint alleges reckless conduct by the defendants and seeks punitive damages. Defendant Aurora Pump Company moved to dismiss this count, arguing that the plaintiff failed to assert specific allegations of recklessness. The court noted, however, that the plaintiff alleges that the defendants manufactured, distributed, sold or otherwise placed into the stream of commerce products which contained asbestos and that the defendants intentionally and fraudulently concealed…

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Partial Motion to Dismiss of Talc Suppliers and Auto-Body Filler Granted Without Prejudice, Giving Plaintiff Time to Amend Claims of Concerted Acts and Intentional and Negligent Misrepresentation U.S. District Court for the Middle District of Florida, Ocala Division, April 8, 2016

This action was originally commenced by the plaintiff in the Southern District of New York and alleged that the decedent, Pedro Rosado-Rivera, was exposed to asbestos-containing auto-body filler while working in auto shops in New York (1959-1968), Puerto Rico (1968-1992) and then thereafter in Florida. The defendant BASF Catalysts LLC’s, joined by other defendants Superior Materials, Inc. and Whittaker, Clark & Daniels, Inc., motion to transfer the case to the middle district of Florida was granted. (BASF and Whittaker were talc suppliers and Superior was…

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Airplane Manufacturer Granted Dismissal in N.Y. Federal Court Action for Lack of Jurisdiction Even Though Registered to do Business and Appointed an Agent for Service of Process U.S. Court of Appeals for The Second Circuit, February 18, 2016

In this federal court case, it was alleged that the decedent, Walter Brown, was exposed to asbestos while serving as an airplane mechanic in the U.S. Air force from 1950-1970. During that time, he worked at various bases in Europe and in the U.S. in Alabama, Delaware, Georgia, Illinois, New Mexico, and Michigan. Prior to his passing, the decedent, who was living in Alabama, sued 14 companies, including Lockheed Martin Corporation in the United States District Court for the Southern District of Alabama. A motion…

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Defendants, Miners and Suppliers of Talc, Granted Motions to Dismiss Plaintiff’s Claim of Market Share Liability as Manufacturer of the Product was Identifiable Supreme Court of New York, New York County, February 8, 2016

In this case, it is alleged that the plaintiff, Keri Logiudice, contracted mesothelioma from her use of Cashmere Bouquet cosmetic talcum powder. The defendants, Cyprus Amax Minerals and Imerys Talc America Inc., mined and supplied talc to Colgate, the manufacturer of Cashmere Bouquet, and moved to dismiss the plaintiff’s sixth cause of action for market share liability. In its decision, the court explained: “In a products liability action, identification of the exact defendant whose product injured the plaintiff is generally required (see Hymowitz v Eli

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Plaintiff Allowed to Substitute and Limitedly Amend Complaint, Several Cases Consolidated Against 3M Among Court Rulings on Daubert Hearings and Expert Preclusion U.S. District Court for the Western District of Wisconsin, November 9, 2015

In these federal court cases there were several motions brought forward, including a motion by the plaintiff to substitute the estate and file a third amended complaint following the death of the decedent, defendant 3M’s motion to preclude the plaintiff’s expert Dr. Arnold Brody, and defendant Weyerhaeuser’s Daubert motion regarding the plaintiff’s experts Frank M. Mark, III, and Drs. Henry A. Anderson and Jerrold L. Abraham. Regarding the plaintiff’s motion for substitution and to amend the complaint, the court held: “The court will grant the…

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Federal Court Remands Action Based on Equity Even Though Removal Was Proper on Bankruptcy Issue U.S. District Court for the Northern District of California, October 13, 2015

In this federal court case, the plaintiffs commenced an action against various defendants for the alleged asbestos exposure and development of mesothelioma for decedent, George Fenicle.  Following decedent’s death, plaintiffs amended their complaint to name Boise Cascade Company and OfficeMax (“Defendants”). The defendants subsequently removed the matter to federal court under 28 U.S.C. 1441, for putative federal question jurisdiction, and 28 U.S.C. 1452, as a bankruptcy-related action. The plaintiffs moved to remand, arguing removal was improper since the defendants did not seek approval from all…

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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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