Wisconsin Federal Court Denies Insurers’ Attempt to Consolidate Coverage Actions U.S. District Court for the Eastern District of Wisconsin, Oct. 27, 2017

WISCONSIN — A federal judge in Wisconsin denied several insurers’ request that it abstain from hearing claims against them for coverage in asbestos-related related suits against Eaton Corporation. Some of the underlying claims brought against Eaton were based on personal injuries from using products produced by a company Eaton acquired by merger, Cutler-Hammer, Inc. Each of the defendant insurers had, at some time, issued an excess liability insurance policy to Cutler-Hammer. Eaton has coverage actions pending against insurers in both Ohio and Wisconsin. The Ohio action is a state court action dealing with coverage for suits based on asbestos-related personal injuries from Eaton’s own axle-brake business, while the Wisconsin case involves only coverage for suits based on Cutler-Hammer’s business. Motions are pending in the Ohio case that would make all ...
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Pennsylvania Supreme Court to Consider Manufacturer’s Liability for Asbestos-Containing Component Parts Supreme Court of Pennsylvania, October 26, 2017

PENNSYLVANIA — The United States Court of Appeals for the Third Circuit submitted a Petition for Certification of Question Law on the following issues for consideration: (1) Whether, under Pennsylvania law, a manufacturer as a duty to warn about the hazards of asbestos relating to component parts it has neither manufactured or supplied and (2) if such a duty exists, what is the appropriate legal test to determine liability. On October 26, 2017, the Pennsylvania Supreme Court agreed to consider these issues and instructed parties to submit briefs and prepare for oral argument. This appeal stems the Rabovsky decision, which was subject to a prior ACT post on September 28, 2016. Here, the U.S. District Court for the Eastern District of Pennsylvania rejected defendant’s argument that a manufacturer cannot be ...
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Plaintiff’s Status as Independent Contractor Bars Negligence Claim Superior Court of Delaware, October 26, 2017

DELAWARE — Defendant Covestro was the premises owner or successor in interest to one or more prior owners of Mobay Chemical Plant. The plaintiff worked at Mobay for six months in 1979 and was employed by Dravo Corporation, a third party contractor.  The plaintiff testified that he removed insulation from pipes and other equipment; he received instruction and equipment from Dravo supervisors. The plaintiff also worked at Mobay from 1986-88 as a contract engineer for Midwest Tech and testified that he reported to two Mobay employees and removed insulation on valves. The plaintiff was hired full-time by Mobay in 1988 and remained there until 2014. The parties stipulated that any injury sustained after 1988 was barred under West Virginia’s worker-compensation statute. Covestro argued that the plaintiff provided no credible or ...
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Autopsy Ordered Over Plaintiffs’ Objections in Mesothelioma Case U.S. District Court for the Western District of Washington, October 23, 2017

WASHINGTON — Plaintiffs Leslie Jack and her late-husband Patrick Jack brought suit against numerous defendants, including Genuine Parts Company (GPC), alleging that exposure to their products caused Mr. Jack’s mesothelioma. Mr. Jack passed away on October 15, 2017 and defense counsel was notified on October 17, 2017. Counsel for GPC renewed a prior request for an autopsy on the same day. The plaintiffs’ counsel denied the request and informed defense counsel that Mr. Jack’s body would be cremated on October 19, 2017. Counsel for GPC, joined by multiple other defendants, filed an emergency motion pursuant to Federal Rule of Civil Procedure 35 to compel Mrs. Jack to make the remains of Mr. Jack available for an autopsy and to preserve the lungs for later digestion studies. The court issued a ...
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Defendant’s Third-Party Claims Remain Stayed in Federal Court While Plaintiff’s State Law Claims Remanded United States Court of Appeals, Fourth Circuit, October 24, 2017

MARYLAND — The plaintiff filed a complaint in the Circuit Court for Baltimore City, MD alleging state law claims arising from asbestos exposure against defendant/appellant Campbell-McCormick (CMC) and others. CMC subsequently filed a third-party complaint against GE and 12 other co-defendants for contribution. GE removed the case to the District of Maryland, asserting federal contractor defenses. The plaintiff filed a motion to sever and remand, and specifically requested the district court to decline to exercise supplemental jurisdiction of the plaintiff’s state law claims pursuant to 28 USC 1367(c). The district court granted the plaintiff’s motion to sever and remand. However, they also retained jurisdiction over, and stayed CMC’s third-party claims. The court explained in their opinion that a declination is permitted only when the claim “substantially predominates over” the claim that ...
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Plaintiff’s Incomplete Deposition Testimony Deemed Inadmissible; Summary Judgment Granted for Defendant U.S. District Court for the Northern District of Ohio, Eastern Division, October 19, 2017

OHIO — The decedent, Donald French, filed suit as a result of his diagnosis of mesothelioma allegedly caused by occupational exposure from asbestos-containing products through his work at U.S. Steel in Dearborn, Michigan. French provided testimony as to his alleged exposures at a discovery deposition that lasted approximately 18 hours over three days. On the third day, French identified the defendant as a source of exposure. The deposition, however, was not completed. The fourth day of deposition was adjourned due to French’s poor health. French passed away shortly thereafter and the deposition was never completed. The defendant acknowledges, during the relevant time period, that it did manufacturer and sell products that contained asbestos. However, there was no other evidence in this case connecting defendant to French or U.S. Steel. The defendant ...
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Talc Manufacturer’s Summary Judgment Reversed; Question of Fact as to Asbestos content of Product Court of Appeal of California, First Appellate District, Division Three, October 19, 2017

CALIFORNIA — Plaintiff Mary Lyons appealed summary judgment entered against her on her product liability claim against defendant Colgate-Palmolive, which was based on the allegation that she developed mesothelioma from the use of Colgate’s Cashmere Bouquet cosmetic talcum powder. The plaintiff testified at her deposition that she regularly used Cashmere Bouquet after bathing from the early 1950s through the early 197’s. Colgate manufactured Cashmere Bouquet from 1871 until 1985, and continued marketing the product until 1995, which coincided with the United States EPA’s report that the presence of asbestos in talc makes it a human carcinogen. Colgate argued that since the plaintiff was unable to produce any of the tin cans containing Cashmere Bouquet, there “is no evidence of any testing of a Cashmere Bouquet product that Ms. Lyons actually ...
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Reversal of $72 Million Ovarian Cancer/Talc Verdict on Jurisdiction May Lead to Fewer Asbestos Filings in Missouri Missouri Court of Appeals, Eastern District, October 17, 2017

MISSOURI — In a case that could lead to fewer asbestos filings in Missouri, Johnson and Johnson successfully argued that the trial court lacked personal jurisdiction over it after a $72 million dollar plaintiff verdict in an ovarian cancer / talc case. Plaintiff Jacqueline Fox was one of 65 plaintiffs who filed suit against Johnson and Johnson (J and J) and Imerys Talc. J and J is a New Jersey resident and Imerys is a Delaware corporation. Both were sued in Missouri. The plaintiffs alleged they developed ovarian cancer from the use of J and J’s talcum powder. During trial, the defendants filed a motion to dismiss asserting that “their activities in Missouri did not give rise to the claims of the non-residents who purchased Defendants’ products elsewhere.” The trial court ...
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Res Judicata Bars Plaintiff’s Mesothelioma Claim Against Prior Settled Defendant U.S. District Court for the Eastern District of Louisiana, October 13, 2017

LOUISIANA — The decedent filed an asbestosis lawsuit in 1991 against Owens-Illinois and other defendants. Owens-Illinois settled the claim for $4,000 as part of a group settlement. The Release Agreement stated that the decedent agreed to release the defendant from any cause of action arising out of the decedent’s asbestos-related injury, including mesothelioma, cancer, wrongful death and survival claims. Seventeen years after executing the Release Agreement, the decedent was diagnosed with mesothelioma and eventually passed. His wife and children brought a second action against Owens-Illinois in state court seeking survival and wrongful death damages. After removing the case, Owens-Illinois filed a Motion to Re-Urge State Court Exception of Res Judicata. Owens-Illinois argued that the motion should be granted because the Release Agreement clearly and unambiguously released it from future claims, ...
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Personal Jurisdiction Challenges Growing in Madison County; May Lead to Fewer Asbestos Filings Supreme Court of Illinois, September 21, 2017

ILLINOIS — Continuing a national trend following the Bristol Myers Squibb Co. v. Supreme Court of California (2017) and Daimler AG v. Bauman (2014), the Supreme Court of Illinois has issued a personal jurisdiction opinion that will limit the ability of out-of-state plaintiffs to file suit in Illinois against “non-resident” or foreign defendants. In the matter of Aspen American Insurance Company v. Interstate Warehousing, Inc., Eastern Fish Company (Eastern) is a New Jersey-based corporation that sources and imports fish products. In 2013, Eastern contracted with defendant to store some of its fish products in a refrigerated warehouse near Grand Rapids, Michigan. On March 8, 2014, part of the warehouse’s roof collapsed, causing ruptured gas lines and an ammonia leak. The leak contaminated the fish products that were stored in the ...
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