Asbestos Plaintiffs Too Late to Take Advantage of Expansive Maryland Coverage Ruling Court of Special Appeals of Maryland, June 1, 2017

A large group of asbestos plaintiffs failed to file claims seeking more expansive coverage within the applicable statute of limitations.  MCIC Inc. (formerly McCormick Asbestos Company, “MCIC”) sold and installed asbestos insulation products. By the early 1970s, it was clear that asbestos was hazardous, and MCIC ceased selling and installing asbestos-containing products in approximately 1973.  In the late 1980s, several law firms collectively filed several thousand lawsuits against MCIC asserting personal injury claims resulting from exposure to asbestos-containing products. The cases of 8,555 plaintiffs were consolidated for trial.  Those plaintiffs, MCIC, and MCIC’s insurers entered into a settlement in 1994 in which plaintiffs received amounts representing the full amount of coverage believed to be available to MCIC.  The settlement agreement provided that if MCIC or the insurers became aware that more coverage was available, they would distribute the ...
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Summary Judgment Reversed in Finding Co-Worker Testimony Personal Knowledge, Not Hearsay Court of Appeals of Ohio, Ninth District, Summit County, May 31, 2017

Plaintiff Ruth Williams filed suit against multiple defendants, including Akron Gasket, as a result of her late husband’s development of mesothelioma. Specifically, the plaintiff alleged that Mr. Williams was exposed to asbestos tape made by Akron while working at PPG Industries and Goodyear Tire and Rubber. Summary judgment was granted in favor of Akron. The plaintiff appealed, arguing that the trial court erred in finding that co-worker testimony was hearsay and that medical causation could not be proven. The court began its analysis by reminding of the standard for summary judgment. Summary judgment is appropriate when 1) there is no material issue of fact in dispute 2) the movant is entitled to summary judgment and 3) viewing the evidence most strongly in favor of the non-moving party, the reasonable person ...
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Abandonment of Claims Alleging Asbestos Exposure at Government Facilities Eliminated Federal Jurisdiction U.S. District Court for the Southern District of New York, May 31, 2017

Defendant Crane Co. appealed the remand ordered by the district court to New York State Court. Crane had removed based upon the federal officer removal statute. The appellate court affirmed the remand without a summary of the underlying facts. First, Crane argued remand was erroneous because the federal courts had original subject matter jurisdiction. The district court had concluded that the plaintiffs had abandoned any claims arising from asbestos exposure occurring at a government facility; thus, the basis on which this action was originally removed was extinguished. Crane argued that the claims giving rise to original jurisdiction must be formally dismissed, not abandoned, for a properly removed case to be remanded to state court. However, the case law was contrary to this argument. Clearly, the federal claims were abandoned, and ...
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Maryland Court Affirms Application of Statute of Repose in Asbestos Matter Court of Special Appeals of Maryland, May 31, 2017

On December 13, 2013, plaintiff James F. Piper was diagnosed with mesothelioma and filed suit in the Circuit Court for Baltimore City on March 26, 2014 for damages caused by his occupational asbestos exposure. Piper worked as a steamfitter at the Morgantown Generating Station in Woodzell, Maryland. In early 1970, defendant Westinghouse installed a turbine generator at this site to which the specifications called for the use of insulation containing asbestos. Piper testified that while he did not work directly on the installation of the turbine generator, he worked in the vicinity of the workers installing the turbine generator’s insulation. The last day of work on the turbine generator was June 28, 1970 and it was operational in July of that same year. On January 9, 2015, Westinghouse filed a ...
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Automotive Parts Manufacturer Granted Dismissal due to Lack of Personal Jurisdiction U.S. District Court for the Western District of Washington, May 23, 2017

In another decision out of the Hodjera suit in the Western District of Washington, the motions to dismiss of Dana Companies, LLC and Dana Canada Corporation (the defendants), were granted based on lack of personal jurisdiction. Dana Companies is a Virginia corporation with its principal place of business in Ohio. Dana Canada is a Canadian corporation with its principal place of business in Ontario. The plaintiff alleged that he was exposed to asbestos in Toronto, Ontario, between 1986 and 1994. Neither company is registered to do business in Washington; nor has either appointed a registered agent in Washington. Neither company has facilities, real property, offices, or employees in Washington. A court can establish personal jurisdiction over a particular defendant through either general or specific jurisdiction. The court first found that ...
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Louisiana Court of Appeal Finds $500K Jury Verdict Not Enough Court of Appeal of Louisiana, Fourth Circuit, May 24, 2017

Plaintiffs Frank Romano, Sr. and Lynne Rome Romano filed suit in the Civil District Court, Orleans Parish against a number of defendants on September 12, 2014, after Romano contracted mesothelioma allegedly caused from occupational asbestos exposure. For a brief background, Romano grew up in Marrero, Louisiana and lived about two blocks away from the Johns-Manville Corporation’s plant for 20 years before he went away for college. As a result of this Johns-Manville connection, two defendants filed a third party demand against CRMC, a successor in interest to Johns-Manville. After college, Romano worked at defendant Union Carbide Corporation’s (UCC) Taft facility for nine to ten months during 1967 and 1968. For the majority of time that he worked at the Taft facility, Romano was assigned to the stores department, where his ...
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Defendant Fails to Establish Improper Joinder in Mesothelioma Case; Remand Granted U.S. District Court for the Eastern District of Louisiana, May 22, 2017

Plaintiff Ronald Smith sued multiple defendants, including Honeywell, alleging he developed mesothelioma from occupational exposure to asbestos. Honeywell removed the case the United States District Court, arguing that the plaintiff only joined defendant Taylor-Seidenbach Inc. to defeat diversity. The plaintiff moved to remand. The case was originally set on an expedited trial date because of the mesothelioma diagnosis. Discovery was ongoing when the plaintiff produced his work history relied upon by the plaintiff’s expert, Dr. Arthur Frank. Honeywell took the position that the work history lacked mention of the plaintiff working with or around insulation. Further, the work history was absent as to the plaintiff working at a location where insulation was possibly present. Shortly after the work history was produced, Taylor served its answers to discovery propounded by the ...
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NYCAL Justices Appointed to First Department-Appellate Division

On May 22, 2017, New York Governor Andrew Cuomo appointed New York City Asbestos Litigation (NYCAL) Supreme Court Justices Cynthia S. Kern and Peter H. Moulton to the First Department-Appellate Division. Associate Justice Rolando Acosta was designated to the Presiding Justice of this Appellate Division and Supreme Court Justices Jeffrey Oing and Anil Singh will fill the remaining Associate Justice vacancies. The First Department covers New York and Bronx Counties. Justice Cynthia S. Kern has been a justice in the 1st Judicial District of the Supreme Court, Civil Branch, New York County since her election in 2011.  Justice Peter H. Moulton has been serving as both the Administrative Judge, 1st Judicial District of the Supreme Court, Civil Branch, New York County and the Coordinating Judge of NYCAL since March 2015. ...
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Action Dismissed Against Canadian Automotive Defendant Based on Lack of Specific Jurisdiction U.S. District Court for the Western District of Washington, May 17, 2017

The plaintiffs filed suit against multiple defendants alleging Mr. Hodjera’s mesothelioma was caused by exposure to the defendants’ products from 1986-94. Volkswagen of Canada (VWGC) moved to dismiss the complaint, arguing that the court lacked personal jurisdiction. The court started its analysis by stating that due process requires the court to have personal jurisdiction over the defendant before it can adjudicate a claim. General jurisdiction is available when the defendant’s “contacts are so constant and pervasive as to render it essentially at home.” The court quickly found that it lacked general jurisdiction over VWGC. However, a defendant might also be sued if it has minimal contacts in a forum when the complaint arises out of those contacts by specific jurisdiction. The court will not exercise specific jurisdiction over the defendant ...
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No Jurisdiction over Foreign Auto Manufacturer, But Case Remanded for Consideration of Jurisdictional Discovery Florida District Court of Appeal, Second District May 17, 2017

Plaintiffs Kenneth and Carol Jones filed suit against various defendants after Kenneth Jones developed mesothelioma. Defendant Volkswagen Aktiengesellschaft (VWAG) sought review of an interlocutory order denying its motion to dismiss for lack of personal jurisdiction. The court reversed the trial court’s order and remanded. In its motion to dismiss for lack of personal jurisdiction, VWAG submitted a supporting affidavit and the court held an evidentiary hearing to determine this issue. The hearing had no testimony and the trial court received nothing into evidence. The trial court ruled, without providing statements regarding its rationale, that specific jurisdiction existed. At the outset the court noted that VWAG did not waive the defense of personal jurisdiction. The plaintiff conceded that general jurisdiction did not exist, and adequately alleged both specific jurisdiction under Florida’s ...
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