Car Manufacturer Obtains Dismissal Based on Lack of Personal Jurisdiction U.S. District Court for the District of Delaware, August 22, 2017

Plaintiffs Harold and Judy Haynes filed suit in Delaware Superior Court on June 3, 2016 alleging that Harold Haynes’ lung cancer diagnosis was caused by asbestos exposure. The plaintiffs specifically alleged that Harold Haynes was exposed to asbestos-containing products as a career auto mechanic for Volkswagen dealerships in Washington and Oregon between 1964 and 1980. On July 15, 2016, the case was removed to the United States District Court for the District of Delaware. Defendant Volkswagen filed a motion to dismiss based on personal jurisdiction on February 17, 2017. In reviewing defendant’s motion, the court looked to the Daimler opinion and emphasized that the “paradigm all-purpose forums for general jurisdiction are a corporation’s place of incorporation and principal place of business.” Daimler AG v. Bauman, 134 S. Ct. 746, 749 ...
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Insulation Used On Nuclear Prototype “Ordinary Consumer Product” and Not Subject to Military Contractor Defense U.S. District Court, Central District of California, August 21, 2017

Plaintiffs Wayne and Tina Yocum filed a renewed motion to remand which defendant CBS Corporation (Westinghouse) opposed. Wayne Yocum was diagnosed with mesothelioma and died on February 5, 2017. Without oral argument, the court granted the plaintiffs’ renewed motion to remand. Wayne Yocum served in the Navy from 1965-75. Westinghouse supplied the asbestos-containing insulation that was used in his presence during his naval training on the A1W, a working prototype of a nuclear propulsion system. The plaintiffs originally filed this action in California, and only alleged strict products liability/design defect and loss of consortium against Westinghouse. Four days after Mr. Yocum’s death, Westinghouse filed for removal based on federal officer jurisdiction. The plaintiff filed a motion to remand, which the court denied, based upon untimely procedural attacks and proper subject ...
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New York Appellate Court Won’t Take Insured’s Word in Asbestos Coverage Case New York Supreme Court, Appellate Division, Second Department, August 23, 2017

Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machine Corporation have been named as defendants in hundreds of lawsuits throughout the country in which the plaintiffs seek to recover damages for injuries allegedly sustained as result of exposure to asbestos contained in products manufactured and/or distributed by Duro Dyne. One of Duro Dyne’s insurers, North River, filed a lawsuit seeking a declaration that it had no duty to defend or indemnify Duro Dyne in the underlying lawsuits. Duro Dyne moved for summary judgment, arguing that the North River policy had no exclusion for asbestos-related liability and therefore provided coverage. Duro Dyne relied on an affidavit to that effect from its president. The court rejected Duro Dyne’s argument, hold that the affidavit of Duro Dyne’s president was insufficient because ...
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Summary Judgment Recommended for Naval Boiler Manufacturer on Issues of Product Identification and Bare Metal Defense

The plaintiff filed suit alleging Mr. Tallman developed mesothelioma while serving in the U.S. Navy from 1947-67. Foster Wheeler removed the case to the United States District Court. Mr. Tallman served on board the USS Caloosahatchee as a boiler tender from 1948-56. Specifically, the plaintiff contended that Mr. Tallman’s mesothelioma developed as a result of exposure to asbestos for which Foster Wheeler was responsible. Two fact witnesses were offered for deposition. Mr. Nealon testified that he served on board the USS Caloosahatchee from 1951-54. He recalled Mr. Tallman making asbestos insulation that went around steam valves. However, Mr. Nealon was unable to recall the name or brand of the boilers he and the plaintiff cleaned. The second fact witness, Mr. Schaufele, testified that he did not recall repair or maintenance ...
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Summary Judgment Upheld for Georgia Pacific Because Proof Didn’t Distinguish Between Asbestos and Non-Asbestos Product Superior Court of Delaware, August 18, 2017

Defendant Georgia Pacific was granted partial summary judgment, in that all claims against the defendant “pre-1973” were barred. The plaintiff filed a motion for reconsideration arguing that the court overlooked the fact that the defendant stopped distributing asbestos joint compound in September 1973. In response to the plaintiff’s motion, the defendant argued that the court properly granted partial summary judgment relating to the plaintiff’s pre-1973 claims as the decision was based on a Stigliano analysis, which states “ when the record reveals that a defendant manufactured both asbestos-containing and non-asbestos containing versions of a product during the time period of alleged exposure, in the absence of evidence directly or circumstantially linking the plaintiff to the asbestos-containing product, the Court cannot draw the inference of exposure and summary judgment on product ...
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Summary Judgment Granted For Plaintiff’s Failure to File Complaint Within the Statute of Limitations Superior Court of Delaware, August 18, 2017

Ms. Bagwell filed suit against several defendants, alleging her husband developed lung cancer from asbestos related to Borg Warner clutches. The plaintiff’s brother was the sole fact witness who recalled his brother performing clutch work starting in 1965 through the 1980s approximately one time per week. The plaintiff’s expert report stated that the plaintiff was exposed to asbestos containing products including exposure to asbestos from the clutches. Mr. Bagwell was diagnosed in May of 2009 and passed away on January 28, 2010. The plaintiff’s complaint was not filed until June of 2014. Accordingly, the defendant argued the plaintiff’s complaint was barred under South Carolina law based on the applicable statute of limitations. The court noted that Delaware rule prohibited bringing an action arising outside of the state when that state’s ...
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Pump Manufacturer Obtains Summary Judgment Based on Lack of Maintenance History and Identification of Replacement Parts Superior Court of Delaware, August 18, 2017

Plaintiff Jill Dudley alleged that her husband Frank worked on pumps from 1966-67 while employed at Cam Chemical Company in Detroit, Michigan. Defendant FMC moved for summary judgment, which the court granted. Frank Dudley testified that at least ten pumps were made by Chicago Pump; he broke down these pumps and repaired the gaskets. The court applied Michigan law, which required proof that the injured plaintiff was exposed to an asbestos-containing product for which a defendant was responsible. Michigan law also applied the substantial factor test for causation, such that exposure was significant in terms of intensity, when viewed in the scope of the entire work history, and the number and extent of other contributing factors. Here, the plaintiff did not offer evidence, beyond speculation, that Mr. Dudley worked with ...
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New York Jury Awards $4.6M to Welder with Mesothelioma Supreme Court of New York, New York County, August 18, 2017

The plaintiff, 75-year-old Thomas McGlynn, contracted mesothelioma on or about May 16, 2016 and filed suit in NYCAL on August 1, 2016 under Index No. 190219/16. The complaint alleged that McGlynn was exposed to asbestos while working as a shipfitter, laborer, and maintenance laborer at various locations in and around New York City. The plaintiff further alleged that McGlynn’s mesothelioma was caused by his occupational exposure to asbestos from work done on asbestos-containing valves manufactured by the defendant. Specifically, McGlynn testified that these valves were comprised of asbestos-containing gaskets, packing and insulation that he handled through his welding work in servicing and/or repairing boiler rooms on ships in and around New York City in the 1970s and 1980s. On July 24, 2017, this case proceeded to trial, under Justice Martin ...
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California Jury Awards $13 Million in Wrongful Death Action Against Sugar Plant

The decedent, Mark Lopez, died from mesothelioma in July 2015. His family brought suit against Hillshire Brands Co., now Tyson Foods, for the decedent’s exposure to asbestos from the now derelict Union Sugar plant. The plant had several owners and closed for good in 1993. The decedent’s family alleged that the small town of Betteravia, where the plant was located and the decedent’s family lived, was contaminated with asbestos from the plant’s operations. The decedent’s grandfather and father worked at the plant. Additionally, as a young boy, the decedent played in a dump site where asbestos was taken after it was removed from the plant during bi-annual maintenance. After three weeks of testimony, the jury found the defendant negligent for the operations of the plant in the 1950’s and as ...
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Shipyard Fails to Show Nexus Required for Federal Jurisdiction U.S. District Court for the Eastern District of Louisiana, August 15, 2017

Plaintiff George K. Mayeaux alleged he suffered exposure to asbestos and asbestos-containing products that were manufactured, sold, installed, distributed, and/or supplied by a number of defendant companies while employed by defendant Avondale Industries, Inc. This matter was removed to the United States District Court for the Eastern District of Louisiana. The plaintiff filed a Motion to Remand back to the Civil District Court for the Parish of Orleans in Louisiana. The plaintiff alleged that he was employed by Avondale from 1963 to 2009. During that time, he claimed he handled asbestos and asbestos-containing products “aboard U.S. Destroyer Escorts, Lykes, and other vessels,” which caused him “to inhale asbestos dust and fibers, which led to his development of malignant mesothelioma and resultant injuries, damages, and losses.” The plaintiff brought Louisiana state ...
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