Unavailability Exception in Asbestos Coverage Dispute Affirmed by New Jersey Supreme Court New Jersey Supreme Court, June 27, 2018

NEW JERSEY — The decision involved questions about the insurance coverage available to defendant Honeywell International, Inc. (Honeywell), a New Jersey based corporation, for thousands of bodily-injury claims premised on exposure to brake and clutch pads (friction products) containing asbestos.  The court first considered whether the law of New Jersey or Michigan (the headquarters location of Honeywell’s predecessor when the disputed excess insurance policies were issued) should control in the allocation of insurance liability among insurers for nationwide products-liability claims. Second, the court addressed whether to require the policyholder, Honeywell, to contribute in the allocation of insurance liability based on the time after which the relevant coverage became unavailable in the marketplace (that is, since 1987). On the choice of law question, the court held that New Jersey law applied.  ...
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Delaware Take-Home Summary Judgment Reversed for Paper Manufacturers Supreme Court of Delaware, June 27, 2018

DELAWARE — Decedent Dorothy Ramsey’s husband Robert Ramsey worked as a maintenance worker at Haveg Industries, Inc. from 1967 to 1992, and allegedly handled asbestos products manufactured by defendants Herty and Hollingsworth and Vose (together, the manufacturers) on a regular basis. The plaintiff alleged that Mrs. Ramsey developed her fatal lung cancer from regularly laundering Mr. Ramsey’s clothes which were contaminated with asbestos dust emanating from his use of the manufacturers’ products, among others. The trial court had granted the manufacturers’ summary judgment motions, finding that they had no duty to warn Decedent of the dangers of asbestos pursuant to prior Delaware authority. This court reversed and remanded the grant of summary judgment. The court reasoned that the risk of harm from washing asbestos-covered work clothing was foreseeable, and that ...
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Defendant’s Joinder Denied; Parallel Suits Allowed in Federal and State Court United States District Court, S.D.N.Y, June 21, 2018

NEW YORK — On October 3, 2017, the plaintiffs filed two lawsuits in New York state court against two different groups of defendants. One lawsuit was filed against 83 defendants, not including Crane Co. (Crane), alleging that John Grimes developed mesothelioma as a result of exposure to defendants’ asbestos-containing products. At present, that matter remains pending in state court. The second action—the instant action—was filed against four other defendants, including Crane. The plaintiffs similarly alleged that Mr. Grimes developed mesothelioma as a result of exposure to defendants’ asbestos-containing products. On October 30, 2017, defendants Foster Wheeler LLC and General Electric Company, two of the four defendants in the instant action, removed the case to federal court. Crane moved for joinder of the necessary parties under Rule 19 and requested that ...
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Recent NYCAL Trends in the 2017 & 2018 Accelerated Clusters

The current state of asbestos litigation in New York City (NYCAL) continues to evolve as both the plaintiffs’ bar and defense bar deal with a revised Case Management Order (CMO) and judicial turnover. For a better understanding of the types of claims that are actually being litigated in NYCAL, and what firms are filing these claims, we can look at the current filing trends under the “cluster” procedure that is used in this jurisdiction. The CMO explains there are three dockets used in NYCAL: (1) Accelerated (or In Extremis) Docket. These are typically the more litigated cases comprised of actions brought by plaintiffs who are terminally ill from an asbestos-related disease with a life expectancy of less than one year or who have a diagnosis of mesothelioma; (2) Active (or ...
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Concrete Factual Information Starts the 30-Day Removal Clock United States District Court, N.D. Illinois, Eastern Division., June 22, 2018

ILLINOIS — In September 2016, the plaintiff was diagnosed with mesothelioma, and in September 2017, he filed suit against a defendant, and a number of other parties, alleging his illness was caused by exposure to asbestos. The plaintiff claimed that his exposure occurred between 1970 and 2004 while he was serving in the United States Air Force, working as a commercial airline mechanic, and/or engaging in home remodeling and other activities. The defendant was served with the plaintiff’s complaint on September 21, 2017 and filed an answer on October 30, 2017, including an affirmative defense that the defendant was immune from liability as a government contractor who manufactured the products to which the plaintiff claims exposure from. In October 2017, the plaintiff executed an authorization for release of his military ...
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Illinois Appellate Court Affirms Summary Judgment on Conspiracy Claims Appellate Court of Illinois, June 19, 2018

ILLINOIS — The plaintiff, James Johnson, was diagnosed with asbestosis after working with insulation products in the construction industry, beginning in 1965. He filed suit against numerous defendants, and included a claim that Pneumo Abex LLC, Owens-Illinois, Inc., Metropolitan Life Insurance Company and Honeywell International, Inc. were involved in a civil conspiracy to conceal the dangers of asbestos. The trial court thoroughly reviewed the evidence obtained during discovery and presented at hearings, including the Saranac Study, and determined there was not clear and convincing evidence to demonstrate the existence of an agreement between Pneumo Abex, Owens-Illinois and the other alleged conspirators. Accordingly, the trial court granted those two parties’ summary judgment motions. On appeal, the Appellate Court of Illinois reviewed the evidence and affirmed the finding that the plaintiff failed ...
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Remand Denied Upon Plaintiff’s Failure to Properly Disclaim Federal Officer Removal United States District Court, S.D. Illinois. June 19, 2018

ILLINOIS – The plaintiff Janice Reinbold filed suit against several defendants alleging her decedent, Gerald Reinbold, developed lung cancer from occupational exposure to asbestos while working as a shipfitter at the Puget Sound Naval Shipyard, amongst other sources. Defendant Crane Company (Crane) removed the case to federal court asserting Federal Officer Removal. The plaintiff moved to remand. The court reminded the parties of the standard for Federal Officer Removal, and stated that the statute allows removal when “action is brought against the United States or an agency thereof of any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under the color of office.” First, the court analyzed the plaintiff’s disclaimer. Here, ...
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Denial of Worker’s Compensation Benefits Affirmed Upon Plaintiff Failure to Meet Statutory Requirements Court of Appeals of North Carolina, June 19, 2018

NORTH CAROLINA – The plaintiff Edmund Preslar filed for Workers’ Compensation Benefits claiming that he was entitled to compensation under the statute for his development of asbestosis attributed to his work at the Johns Manville Marchville facility from 1967-1968. The commission denied his claim stating that he had not worked long enough to be eligible for benefits under the statute. The plaintiff appealed and his representative was substituted after he passed away from a non-asbestos cause. On appeal, the court noted the standard for commission appeals required that “1) whether the findings of fact are supported by competent evidence, and 2) whether the conclusions of law are justified by these findings. The plaintiff relied on his co-worker who testified that the plaintiff worked approximately 6 months at the facility. However, the commission ...
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Federal Officer Removal Statute Found Inapplicable in Negligence Claim Against Shipyard Defendant; Remand Granted United States District Court E.D. Louisiana, June 12, 2018

LOUISIANA – The plaintiff, Gregory Brown brought this action against several defendants including Avondale Shipyard (Avondale) claiming that he developed lung cancer from exposure to asbestos while working for Avondale at its shipyard on and off from 1967-1971. Specifically, Mr. Brown worked as a cleanup man, tacker, and insulator helper. He also claimed exposure to asbestos from his employment for other employers from 1965- 1978. The plaintiff was deposed and gave testimony regarding his work on ships while at Avondale but did not state that the ships were owned by the United States Navy or United States Coast Guard. Of note, the plaintiff sued Avondale on a negligence theory but did not assert a claim for strict liability. Avondale removed the matter to the United States District Court pursuant to Federal ...
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Summary Judgment Affirmed in Railroad Case Upon Plaintiff’s Failure to Preserve Issue for Appeal Superior Court of Pennsylvania, June 12, 2018

PENNSYLVANIA – The plaintiff, Michael Eorio filed suit against multiple defendants including CBS and General Electric (GE) alleging he contracted lung cancer while working as a railroad employee from 1972-2010. The plaintiff and one co-worker alleged Mr. Eorio had been exposed to asbestos containing products for which CBS and GE were liable. The plaintiff passed away prior to trial and a substitution of the plaintiff was entered. CBS and GE moved for summary judgment. The trial court granted summary judgment as to both defendants and the plaintiff appealed. On appeal, the plaintiff took exception that the trial court found him not qualified to testify about his exposure to asbestos products. However, the court quickly noted that the plaintiff had not raised that issue in his appeal and therefore waived that issued. Secondly, ...
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