Summary Judgment Reversed Against Gasket Defendant Despite Contradictory Declaration Court of Appeal of California, First Appellate District, Division Two, December 22, 2017

CALIFORNIA — The plaintiffs filed suit against dozens of defendants, including Familian Corporation, alleging that Mr. Turley developed an asbestos related disease for which defendants were liable. Specifically, Mr. Turley alleged that he was exposed to asbestos containing cement pipe, pipe collars, gaskets and elbows made by Familian while working at various Pacific Gas and Electric Company locations. Familian moved for summary judgment. The plaintiffs filed an opposition with a declaration from a witness, Paul Scott, who had not been deposed. The declaration implicated Familian as a product to which Mr. Turley had been exposed. The declaration, along with other discovery matters, became the subject of alleged “sharp” discovery practices lodged by both sides. For purposes of summary judgment, the court noted that the discovery issues were not germane to ...
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Employer Successfully Asserts Constitutional Challenge to Worker’s Compensation Commission Award

MISSOURI — The plaintiffs brought this claim against employer E.J. Cody Company (defendant) alleging her decedent passed from mesothelioma as a result of his occupational exposure to asbestos for which the defendant was liable. Mr. Casey had worked beginning in 1984 as a tile installer for several companies including the defendant. He retired in 1990 and filed suit for mesothelioma in February of 2015. Mr. Casey passed away prior to hearing. At the commission hearing, the plaintiffs agreed they sought claims under statute 287.200.4 (new statute) which was enacted January 1, 2014. The defendant sought coverage for any liability under the new statute. However, the commission found the defendant to be liable under the “last exposure rule” based on the decedent’s Fall 2014 diagnosis. Accordingly, the commission found the decedent’s ...
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Third Party Negligence Found as New Proximate Cause in a Mesothelioma Claim U.S. Court of Appeals, Fourth Circuit, December 14, 2017

Plaintiff Erik Ross Phillips filed suit against a number of defendants after contracting mesothelioma allegedly caused by occupational exposure to asbestos in brake linings used in a machine at the facilities of his employer. The defendants, among others, included the manufacturers and distributors of the brake linings. At trial, Phillips pursued a negligent failure-to-warn theory under North Carolina law against both defendants. As a defense, the distributor and manufacturer argued that even if they were negligent, they are not liable because of the intervening negligence of a third party (the employer). Here, they argued where both defendant and a third party are negligent but the third party’s negligence is the sole proximate cause of the injury, the plaintiff cannot recover from the defendant. See generally Boudreau v. Baughman, 368 S.E.2d ...
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Plaintiff’s Testimony about Secondary Brake Exposure Sufficient to Overcome Summary Judgment U.S. District Court, Northern District of Ohio, Eastern Division, December 13, 2017

OHIO – Plaintiff Julia Alexander filed suit against multiple defendants after she was diagnosed with peritoneal mesothelioma in May of 2016. The plaintiff alleges that she was exposed to asbestos via Bendix brake products which were manufactured by Honeywell International. The plaintiff testified that she visited her fiancé, an automobile mechanic, two to three times per week for four hours a visit from 1987-91. Throughout this period, the plaintiff alleges she observed her fiancé performing brake work on a variety of vehicles one to three times per week. The plaintiff identified Bendix as the only brand of replacement brakes her fiancé used, and testified during her deposition that she was within five feet of him while he was working. The proper summary judgment analysis under Fed.R.Civ.P. 56(c) and multiple case opinions ...
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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 negligence and duty to warn claims, finding that the plaintiff’s work on original factory installed brakes that Ford knew contained asbestos presented a sufficient product nexus to defeat summary judgment. In granting summary judgment for Ford on punitive damage claims, the court noted that 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 of raw material to a sophisticated manufacture has no duty to end users for dangers associated with the manufacturer’s end product, and 3) if a duty existed, there was insufficient causation. Factually, Union Carbide argued it did not sell Calidria to the facility responsible for ...
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California Jury Finds Against Asbestos/Talc Defendants for $22.17 Million Alameda County Superior Court, California December 12, 2017

CALIFORNIA — Earlier this week, an Alameda County, California jury awarded plaintiffs $22.17 million dollars, comprised of $17.6 million in compensatory damages and $4.6 million in punitive damages.  Defendants Imerys Talc America Inc. (40 percent) and Vanderbilt Minerals LLC (60 percent) were found liable.  Vanderbilt Minerals reportedly settled the case after the compensatory verdict.  The plaintiffs alleged that the 72-year-old decedent developed mesothelioma after working with paint made with talc that was contaminated with asbestos.  According to the plaintiffs’ closing arguments, the defendants had denied the presence of asbestos in their talc.
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Amended Complaint Deleting Federal Claims Does Not Destroy Jurisdiction Over a Validly Removed Case U.S. District Court for the Eastern District of Louisiana, December 6, 2017

LOUISIANA — This decision arises out of the court’s review of the plaintiffs’ motion to remand, and appellant’s motion for review of an order granting plaintiffs leave to amend their complaint. The shipyard worker plaintiff originally filed an action in state court naming numerous defendants. The initial petition included failure to warn and negligence claims against the appellant, among other causes of action, and strict products liability and failure to warn claims against a boiler defendant, who also opposed the motion to remand. Approximately three months after the first pleading, the plaintiffs filed an amended petition adding a defendant, and asserting strict liability claims as to the appellant and the new defendant. Following a witness deposition that connected the plaintiff’s injuries to work on U.S. Navy ships, the appellant filed ...
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Contempt Order Vacated Against Boiler Defendant; Discovery Order Stands Appellate Court of Illinois, Fourth District, December 5, 2017

ILLINOIS — Cleaver Brooks filed an appeal of the trial court’s ruling of a “friendly contempt” order against it. By way of background, the plaintiff filed suit against multiple defendants arguing that he sustained injuries from working with and around asbestos containing parts associated with boilers. At issue were thousands of index cards specific to Cleaver Brooks’ products. The plaintiff sought those index cards through discovery requests. Cleaver Brooks eventually produced certain index cards after multiple discovery hearings at the trial court level. However, Cleaver Brooks objected and sought a confidentiality order restricting the use of roughly 5000 of 90,0000 cards inspected by the plaintiffs. At hearing, Cleaver Brooks sought a “friendly contempt order” be entered against it. A $1.00 fine was imposed by the court against Cleaver Brooks. The defendant ...
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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 products, he stated that “depending on the pump, if it was Gould or, you know, Warren or some of the names that I mentioned before, it would have been those.” The court found the plaintiff’s general testimony about replacement parts insufficient to withstand summary judgment ...
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