Possibility of Successor Liability Enough to Defeat Diversity Jurisdiction U.S. District Court, Eastern District of Pennsylvania, June 28, 2017

The plaintiffs alleged Maynard Herman contracted mesothelioma due to occupational asbestos exposure. Defendants removed on the basis of diversity, and the plaintiffs moved to remand. The court granted the remand. The defendants argued that defendant Ametek, Inc., although a citizen of Pennsylvania, was fraudulently joined to defeat diversity. The plaintiffs argued Ametek was not fraudulently joined because it was the successor for Mr. Herman’s exposure to asbestos products made by Haveg Industries. The plaintiffs acknowledged that when Ametek purchased Haveg, the agreement facially concerned only the purchase of Haveg’s assets. However, the plaintiffs correctly asserted that there were several recognized exceptions that could create successor liability for Ametek. Courts consider four factors in determining whether a transaction was a de facto merger or a mere continuation of the general business ...
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Registered Agents Found Not to be Enough to Establish Personal Jurisdiction U.S. District Court for the Eastern District of Missouri, June 27, 2017

Plaintiff Willie Everett, resident of Missouri, brought suit in the Circuit Court of the City of St. Louis, claiming personal injuries after he allegedly inhaled, ingested, or otherwise absorbed asbestos fibers and/or asbestiform fibers emanating from certain products he was working with and around which were manufactured, sold, distributed, or installed by the defendants. The defendants removed the case to federal court on January 19, 2017. The respective Petition contends the defendants maintained registered agents in the state of Missouri and engaged in business in Missouri. In response, the defendants moved to dismiss arguing lack of personal jurisdiction under the recent Missouri Supreme Court ruling in State ex re. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017 en banc). Here, the defendants argued they did not consent ...
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California Government Claims Act Bars Plaintiffs’ Asbestos Action for Untimely Commencement California Court of Appeals, June 26, 2017

Plaintiffs Sandra Reyes Jauregui and Mario Reyes Jauregui filed a first amended complaint against the City of Pasadena arising from Sandra Jauregui’s mesothelioma. The City demurred to the complaint, arguing that the plaintiffs failed to comply with the Government Claims Act, requiring presentation of the claim to the City within six months of the date of Sandra’s mesothelioma diagnosis. The court agreed and issued a writ sustaining the demurrer. The plaintiffs originally filed a complaint against various defendants due to her father’s asbestos exposure while working as a mechanic at different sites, including the City of Pasadena from 1980-87. One year after filing the original complaint the plaintiffs added the City as a defendant, on October 14, 2016. Under the Government Claims Act (Gov. Code, § 810 et seq.), before ...
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Wrong Standard Applied in Remanding Case against Boiler Manufacturer to State Court; Remand Reversed United States Court of Appeals, Fourth Circuit June 22, 2017

Decedent Joseph Morris worked as a shipbuilder at the Bethlehem Steel Sparrows Point Shipyard from 1948-1970s, and died of mesothelioma in 2015. The plaintiffs commenced this action in Maryland state court, and Foster Wheeler removed pursuant to government contractor immunity. The district court remanded to state court because Foster Wheeler did not make a sufficient showing that it had a colorable federal defense; Foster Wheeler appealed. The Fourth Circuit concluded that the district court applied the wrong standard for determining removability and reversed and remanded the case to the district court to determine whether Foster Wheeler’s removal was timely noticed. The plaintiffs asserted that the decedent was exposed to asbestos while working in the boiler shop. Foster Wheeler removed, stating that it made boilers for the U.S. Navy under the ...
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Pfizer Not an “Apparent Manufacturer” of Refractory Products Used at Shipyard; Summary Judgment Affirmed Court of Appeals of Washington, June 26, 2017

Plaintiff Margaret Rublee appealed the summary judgment dismissal against defendant Pfizer, Inc. The decedent, Vernon Rublee, was a machinist at the Puget Sound Naval Shipyard from 1965-1980 and died of mesothelioma in 2015. The appellate court affirmed summary judgment for Pfizer. While at the shipyard, he worked on steam turbines with asbestos lagging. In replacing the lagging they used two refractory products — Insulag and Panelag. Both the decedent and other workers testified as to seeing “Pfizer” on the bags. Quigley Company made the products, which both contained asbestos until the early 1970s. Although Pfizer acquired Quigley in 1968 as a wholly owned subsidiary, Quigley continued all operations, sales, and distributions of the products. In 2004 Quigley filed for bankruptcy; in 2013 the United States District Court for the Southern ...
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Pennsylvania Supreme Court Reaffirms Betz Decision Rejecting Each and Every Exposure

In December of 2010, a Philadelphia jury awarded a verdict in the amount of $14.5 million to the widow, and executrix of the estate, of James Nelson. Nelson had previously developed mesothelioma and passed away at age 54 in 2009. The defendants appealed the verdict, arguing that the plaintiff failed to meet the sufficient standard of causation under Pennsylvania law. The defendants specifically argued that the trial court improperly allowed plaintiff’s expert to testify that each and every exposure must be considered a substantially contributing factor to the cause of Nelson’s mesothelioma. Before the Appellate Court issued its decision to the defendants’ appeal, the Pennsylvania Supreme Court issued a relevant and applicable ruling in Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27 (2012). Here, the Honorable Thomas ...
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NYCAL Justice Peter Moulton Issues New CMO

On June 20, 2016, NYCAL Justice Peter Moulton issued a new case management order (New CMO) and an accompanying case management decision (the Decision). As the Decision states, the court’s New CMO follows from a 2014 decision from prior NYCAL Justice Heitler as to whether punitive damages should continue to be deferred in NYCAL. After negotiations to craft a new CMO failed, Judge Moulton decided to issue the New CMO without consent of the parties. The Decision acknowledges that many of the new provisions “differ[] from” the rights afforded by New York’s Civil Practice Laws and Rules, but the Court nonetheless determined that consent was not necessary. See Decision, at pp. 16-18 (citing Matter of New York City Asbestos Litig., 2014 WL 10714009, at 6, and § 202.6(c)(2) of the ...
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Federal Court Defines “Other Paper” in Removal Statute § 1446 U.S. District Court for the Middle District of Louisiana, June 21, 2017

The plaintiff filed a petition for damages in the 18th Judicial District Court for the Parish of Iberville on February 23, 2017, and named Avondale, among others, as a defendant. The plaintiff alleged he contracted mesothelioma during his employment with Avondale caused by “dangerously high levels of toxic substances, including asbestos and asbestos containing products, in the normal course of his work.” Defendant Avondale filed a notice of removal to the United States District Court of Louisiana on April 28, 2017 under the federal officer removal statute, 28 U.S.C. § 1442. The plaintiff opposed and argued that Avondale’s notice of removal was filed untimely. The procedure for removal, pursuant to 28 U.S.C. § 1446, states in relevant part: “if the case stated by the initial pleading is not removable, a notice ...
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Denial of Remand Based on Government Directed Actions of Airplane Manufacturing Process United States District Court for the Northern District of California, June 20, 2017

The plaintiff filed a motion to remand for lack of subject matter jurisdiction in the United States District Court in the Northern District of California. The plaintiff, Joseph Thrash, alleged he was diagnosed with mesothelioma in September 2016, and was exposed to asbestos while he worked on B-52, C-141, and C-5 airplanes in the United States Air Force from 1975 through the 1980s and while doing automotive work at various locations. The defendant, The Boeing Company, removed the case to federal court; shortly thereafter, defendants United Technology Corporation, Lockheed Martin Corporation, and The Goodyear Tire & Rubber Company filed notices of joinder in Boeing’s removal notice. The plaintiffs alleged that “Defendants placed their names, logos, and trademarks on asbestos products as well as put out as their own asbestos products ...
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Timely Removed Take-Home Exposure Case Remanded for Failure to Establish Colorable Federal Defense U.S. District Court for the Eastern District of Louisiana, June 19, 2017

The plaintiffs filed suit against several defendants including Avondale alleging that their decedent, Ms. Blouin, contracted mesothelioma after washing the laundry of her husband’s work clothes. Victor Blouin worked as an electrician for Avondale onboard two government vessels from April 1972 until August 1972. The plaintiffs’ claims were brought in negligence and not for strict liability. Avondale removed the case to federal court on March 28, 2017, 26 days after receiving a copy of the deposition transcript. The plaintiffs’ moved to remand. The plaintiffs took the position that the removal was untimely as it was filed more than 30 days from the deposition of Victor Blouin which occurred on February 17 and 20, 2017. The plaintiffs contended that the removal should have been filed within 30 days of the deposition ...
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