Category Archives: Summary Judgment

NYCAL Court Rules a Plumber Dismantling a Sectional Boiler Was a Foreseeable User of That Product Supreme Court of New York, New York County, September 25, 2015

In this NYCAL mesothelioma case, the plaintiff worked as a plumber from 1984-1996, disassembling plumbing equipment including Cleaver Brooks cast iron sectional boilers.  Cleaver Brooks initially moved for summary judgment on the grounds that a plumber such as the plaintiff was not a foreseeable user of the product, which the lower court denied. The Appellate Division then issued a decision in Hockler v William Powell Co., 129 AD3d 463 (1st Dept. 2015), holding that a salvaging and dismantling valve was not a foreseeable use of…

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Granting of Summary Judgment to Radio Manufacturers Overturned Based on Circumstantial Evidence Court of Appeals of Kentucky, September 11, 2015

In this case, the decedent, Kenneth Anderson, was allegedly exposed to asbestos while working as a radio and television repairman in the 1960s and 1970s. Prior to trial, radio manufacturers Zenith and Motorola moved for — and were granted — summary judgment, arguing that the plaintiff could not “provide evidence regarding what radios Anderson actually repaired, whether those radios contained asbestos, and if so, who manufactured or distributed those asbestos-containing parts.” On appeal, the plaintiff argued that the trial court erred, since the decedent had…

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Louisiana Federal Court Grants Three Defendants’ Summary Judgment Motions Due to Lack of Exposure U.S. District Court for the Eastern District of Louisiana, September 9, 2015

The plaintiff commenced this wrongful death mesothelioma case, alleging in part that his father was exposed to asbestos-containing products while in the U.S. Naval Reserve in the 1950s and 1960s. The defendants, GE, CBS, and Foster Wheeler, moved for summary judgment, arguing that the plaintiff’s evidence was insufficient to establish the decedent’s exposure to their products. The plaintiff opposed the motion with an expert affidavit, described by the court as follows: “Plaintiff relies on the expert report of Laurence Durio, who opined that Mr. Laurent…

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Court of Appeals Upholds Lower Court’s Rulings Denying Caterpillar’s Motions for Summary Judgment, a New Trial, and to Vacate Jury Award Court of Appeals of Washington, Division One, September 8, 2015

In this case, it was alleged that the decedent, Edwin Estenson, was exposed to asbestos while in the Navy from 1948 to 1952 and while working on Caterpillar equipment for three contractors between 1955 and the late 1960s. Prior to trial, Caterpillar’s  motion for summary judgment was denied.  Following trial, where Caterpillar was the only defendant, the jury awarded the plaintiff a verdict of approximately $4.5 million. Caterpillar subsequently appealed the court’s denial of its motion for summary judgment, motion for a new trial, and…

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Defendants’ Motion for Summary Judgment on Judicial Estoppel Grounds Denied Because Plaintiff Did Not Act in Bad Faith When He Failed to Disclose His Asbestos Lawsuit in Subsequent Bankruptcy Filing U.S. District Court for the Eastern District of Pennsylvania, September 4, 2015

The plaintiff claims he developed an asbestos-related illness as a result of exposure to asbestos while working aboard various ships. The plaintiff originally brought his asbestos-related claims against several defendants in 1997. His claims were administratively dismissed in a manner allowing for those claims to be brought at a later time; the claims were reinstated in 2001, but there was no evidence that the plaintiff had been informed that his lawsuit had been reinstated.  Following the reinstatement, the plaintiff filed for bankruptcy under Chapter 7…

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Court Rejects Plaintiffs’ Experts’ Opinions Because They Did Not Read Plaintiff’s Deposition Testimony and Grants Summary Judgment Based on Insufficient Product Exposure Court of Appeal of California, September 8, 2015

In this mesothelioma case, plaintiff James Shiffer worked at a power plant for several months in 1969 and 1970, during which time he claimed exposure to a Westinghouse turbine with asbestos-containing components that was present at the plant. Westinghouse moved for summary judgment because “…[t]here is no dispute Shiffer did not repair or maintain any Westinghouse equipment, and did not install or remove any insulation material himself. Nor is there any dispute that no already-installed insulation was removed or disturbed during Shiffer’s time at Ginna.”…

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Court Provides Mixed Ruling in Applying Kansas Law and Granting Summary Judgment to One Defendant, but not the Other 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. Defendants Hennessy Industries and Caterpillar Incorporated moved to apply Kansas law and for summary judgment. The court granted in part Hennessy’s motion and dismissed the plaintiff’s complaint. The court found that Kansas law “possesses the most significant relationship to these parties and causes of actions.” In its assessment, the court reviewed four factors: the place of exposure and diagnosis, where the conduct causing the injury…

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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 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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Outside Contractor Granted Summary Judgment Under Frequency, Proximity, and Regularity Proximate Cause Analysis U.S. District Court for the District of Maryland, August 10, 2015

In this Maryland case, the plaintiff’s decedent was exposed to asbestos while aboard various Naval vessels. He claimed to have walked by outside contractors installing bulkhead Marinite panels and insulation while heading to and from the engine rooms. Defendant Hopeman moved for summary judgment based on product identification grounds.  Applying Maryland law, the court denied Hopeman’s motion on product identification grounds, even though that portion of the motion was unopposed, finding that the defendant had failed to meet its burden of proof that the work…

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