Personal Jurisdiction Motion Denied as Court Focuses on State-Related Contact U.S. District Court for the Western District of Washington, March 28, 2018

WASHINGTON — Decedent Donald Varney alleged that he developed mesothelioma from ambient exposure to defendants’ products while working in various positions at Puget Sound Naval Shipyard in Bremerton, WA, and at Hunters Point Naval Shipyard in San Francisco, CA. Defendants Taco, Inc. and Aurora Pump Company filed identical Motions to Strike and Motions to Dismiss, which the court denied. The defendants’ Motion to Strike pre-judgment interest argued that Washington law made prejudgment interest unavailable for claims of unliquidated damages, and that the plaintiffs’ damages were unliquidated because they could not be determined before a verdict. The court found that the plaintiffs’ requests were in line with Washington law, and that awardable interest could accrue from the date of a jury verdict, through appeal and remand, until final judgment.  The court ...
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Jury Finds Pipe Manufacturer Did Not Have a Duty to Warn Philadelphia County Court of Common Pleas, March 23, 2018

PENNSYLVANIA — Decedent Ernest Schrader alleged that he developed mesothelioma from exposure to asbestos from dozens of products during 40 years of working in a DuPont facility in Delaware. Pipe manufacturer Ameron International Corporation was the lone defendant at a two week trial in state court in Philadelphia. Earlier this week, the jury determined that the decedent was exposed to asbestos from Ameron. However, the jury did not find that Ameron was negligent, evidently accepting evidence that the company complied with OSHA standards at the time that did not require warnings on products that contained asbestos, but did not release fibers above permissible exposure levels. Read the full decision here.
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U.S. Supreme Court Denies Certiorari for Appeal of Punitive Damages Award U.S. Supreme Court, March 26, 2018

MISSOURI — In the matter of Jeannette G. Poage vs. Crane Co., Docket No. 17-900, the Missouri Court of Appeals, Eastern District, Crane Co. affirmed, among other things, the lower’s court punitive damages award in favor of plaintiff. Crane Co. appealed to the Supreme Court, requesting the high court address two key issues:  (1) Whether the due process clause requires appellate review that considers factors undermining the reasonableness of the punitive damages award; and (2) whether the due process clause prohibits a punitive damages award that is more than ten times a substantial compensatory damages award against a defendant who faces multiple suits arising from a single course of conduct. On March 26, 2018, the Supreme Court denied certiorari to Crane Co. in its appeal of a punitive damage award ...
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Asbestos Claims Related to Operations Ceasing Prior to Coverage Dates of Insurance Policy Deplete Aggregate Limits U.S. Court of Appeals for the Fourth Circuit, March 26, 2018

The Walter E. Campbell Company (WECCO) was a company that handled, sold, installed, and removed insulation materials containing asbestos. Since the mid-80s, WECCO was subjected to numerous lawsuits from individuals alleging damages due to asbestos exposure. WECCO is now defunct. Although many claims against WECCO remained pending, its insurers contended that they were no longer contractually obligated to defend or indemnify WECCO because their aggregate limits had been exhausted. WECCO responded by arguing that the insurers improperly allocated operations claims as completed operations claims. Unlike completed-operations claims, operations claims are subject only to per-occurrence limit. That is, no aggregate limit applies to operations claims. WECCO argued that the completed-operations hazard applied only to injuries that started after WECCO’s operations completed. Thus, according to WECCO, the insurers’ aggregate limits had not ...
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Louisiana Statute of Limitations Bars Wrongful Death Claim Filed in Delaware Superior Court of Delaware, March 26, 2018

DELAWARE — The plaintiff, Sandra Kivell, filed a wrongful death and survival claim alleging her husband’s death was caused by mesothelioma. He passed on September 5, 2015, and the new claims were filed on September 30, 2016. The plaintiff’s decedent had originally filed a complaint before his death. Georgia-Pacific filed a motion for judgment on the pleadings, arguing that the claims were filed beyond Louisiana’s one year statute of limitations for wrongful death and survival claims. The plaintiff did not contend that the Louisiana statute of limitations did not apply. Rather, she countered that the claims related back to the original complaint, thereby circumventing the statute of limitations. The court applied Delaware law because the issue was procedural. The court analyzed whether the new claims were amended or supplemental pleadings. ...
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Court Finds Jurisdictional Discovery Relevant to Specific Jurisdiction Inquiry U.S. District Court for the Eastern District of Louisiana, March 23, 2018

LOUISIANA — In this case, the plaintiff filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana, alleging the Decedent William Leech was diagnosed with mesothelioma on January 11, 2016 and passed away on January 14, 2016. The plaintiff further alleges the decedent was a construction engineer who worked with and was exposed to asbestos at numerous job sites in Louisiana, California, Arizona, Virginia, and other states from approximately 1965 through 1992, including the Morton Salty facility in Weeks Island, Louisiana. The plaintiff filed suit on January 10, 2017, bringing wrongful death and survival claims against a number of defendants. The case was removed to the United States District Court, Eastern District of Louisiana on January 19, 2017. The defendant filed a motion to dismiss ...
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New York First Department, Appellate Division, Affirms NYCAL CMO Supreme Court, Appellate Division, First Department, New York, March 22, 2018

New York — On June 20, 2017, former NYCAL Justice Peter Moulton issued a new case management order (New CMO) in NYCAL and an accompanying decision with respect to same. The NYCAL defendants did not consent to the New CMO. ACT’s prior post on the New CMO is available here. NYCAL defendants subsequently appealed. On March 22, 2018, the Appellate Division, First Department, determined that the New CMO did not do not deprive defendants of due process and Justice Moulton, pursuant to certain court rules, had the authority to promulgate the CMO without consent of the defendants even though a number of protocols and procedures did not conform to New York’s procedural statutes. Read the full decision here.
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District Court Denies Sheldon Silver’s Motion to Dismiss Following Remand U.S. District Court for the Southern District New York, March 20, 2018

NEW YORK — The saga of former New York Assemblyman Sheldon Silver continues as the U.S. District Court for the Southern District of New York denied Silver’s Motion to Dismiss charges against him. Among other contentions, the government’s indictment against Silver includes allegations that Silver received more than $3 million dollars in referral fees from the Weitz & Luxenberg firm for clients sent to it by Dr. Taub, a physician specializing in the treatment of mesothelioma. The indictment further alleges that Silver disbursed state funds to a research center run by Dr. Taub. This matter finds itself back in District Court after appeal, and following remand from the Second Circuit, who overturned a November 30, 2015 jury verdict, finding that jury instructions were improper given the Supreme Court’s ruling in ...
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Plaintiff’s Age and Medical Condition Proper Criteria under Statute to Set Trial Preference California Court of Appeal, First Appellate District, March 20, 2018

CALIFORNIA — The Foxes brought this action against several defendants for Ms. Fox’s development of lung cancer and asbestosis from alleged exposure to asbestos containing products from 1954-63. The plaintiffs moved for trial preference pursuant to Code 36 as Ms. Fox was 81 and suffered from declining health. Ms. Fox had also undergone chemotherapy, which had caused side effects according to the plaintiff’s attorney. Of the 18 defendants, only Metalclad Insulation and Sequoia Ventures opposed the motion. The trial court denied the motion to set trial preference. On appeal, the court noted that the trial court was not obligated to give its reasoning as the issue was reviewable for abuse of discretion. However, the choice of the applicable legal standard was to be reviewed de novo. The court noted that ...
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Asbestos Cleanup Costs Covered Under Premise Pollution Liability Policy U.S. District Court for the Western District of Missouri, March 16, 2018

MISSOURI — A federal district court in Missouri held that Illinois Union Insurance Company was obligated to defend and indemnify its insured, Sunflower Redevelopment, LLC, with regard to requests from a state environmental agency to investigate the possibility of contamination by asbestos and other pollutants at a site that Sunflower was remediating. Sunflower and the U.S. Army were subject to a consent order from the Kansas Department of Health and Environment (KDHE) requiring them to remediate contamination at a former army ammunition plant. In compliance with the consent order, Sunflower obtained custom insurance from Illinois Union Insurance Company (ILU) for its work at the plant. In 2008, KDHE sent a letter to Sunflower requesting that Sunflower submit a work plan to investigate the possible presence of several contaminants, including asbestos, ...
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