Supreme Court Accepts Review of Bare-Metal Defense Under Maritime Law U.S. Supreme Court, May 14, 2018

On May 14, 2018, the U.S. Supreme Court accepted the petition of Air & Liquid Systems, CBS Corporation and Foster Wheeler to resolve a split among circuits regarding the viability of the bare metal defense under maritime law. Specifically, the parties appealed the Third Circuit’s ruling in October 2017 that the bare metal defense is inapplicable to negligence claims under maritime law. That opinion was previously analyzed by this blog post. The Supreme Court will resolve a split on the issue between the Third and Sixth Circuits. The exact issued to be reviewed by the Supreme Court is “Can products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute?”
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Turbine Manufacturer’s Choice of Law Motion Granted Based on Location of Asbestos Exposure and Diagnosis U.S. District Court for the District of Massachusetts, May 9, 2018

MASSACHUSETTS — Plaintiff Ruth Burleigh, the widow of the plaintiff’s decedent Ernest Burleigh, filed suit in the U.S. District Court for the District of Massachusetts against numerous defendants alleging that decedent developed mesothelioma as a result of exposure to asbestos while working as a mechanic at the Portsmouth Naval Shipyard (the shipyard) from 1960-1981. The shipyard is located in Kittery, Maine, approximately 20 miles from the Massachusetts border. The plaintiff’s decedent alleged exposure to asbestos in Maine only, was a resident of Maine for the entirety of his alleged exposure, and was diagnosed in Maine. Defendant GE filed an answer to the original complaint, asserting that it “adopts the master cross claim (sic) against all defendants,” therefore they also asserted a crossclaim for contribution against codefendants as joint tortfeasors with ...
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Summary Judgment Reversed on Application of “All Sums” Approach United States District Court, E.D. Missouri, Eastern District

MISSOURI—This suit involves multiple insurance policies covering the same dates of exposure.  The spouse of an Anheuser-Busch (AB) employee developed mesothelioma from asbestos exposure acquired while laundering the clothes of her husband, who worked for AB from 1971-1996.  Suit was filed in 2008, and AB tendered its defense to Zurich American Insurance Company (Zurich), which had issued personal injury and excess coverage policies to AB for two periods covering 1967-72 and 1972-1980.  Zurich defended under a reservation of rights, paid all defense costs, and settled the matter in 2014 for $1.5 million. Zurich then brought the instant matter for equitable contribution, subrogation, and unjust enrichment against its insured AB, and their subsequent insurer Insurance Company of North America (INA), which had issued a policy to AB covering 1980-1997.  Finding conflicting ...
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Lack of Causal Nexus Leads to Grant of Remand Against Shipyard Defendant U.S. District Court for the Eastern District of Louisiana, May 4, 2018

LOUISIANA — The plaintiff filed suit against several Defendants including Avondale Shipyards. James Latiolais allegedly developed mesothelioma from his work as a machinist onboard the USS Tappahannock. Avondale removed the case after the plaintiff’s deposition concluded. The removal was made pursuant to Federal Officer Removal Statute, 28 U.S.C. § 1442 (a)(1). The plaintiff moved to remand. The court began its analysis by discussing the elements associated with Federal Officer Removal. First, the defendant must meet the criteria of being a “person” which includes corporations like Avondale, according to the court. Second, the causal nexus requires a showing that the defendant’s conduct was directed by the federal government and whether that conduct “caused the plaintiff’s injuries.” Avondale easily met the first element of being a person as defined by the statute. ...
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Failure to Adopt Safety Measures is Private Conduct That Implicates No Federal Interest U.S. Court of Appeals, Fifth Circuit, May 1, 2018

LOUISIANA — Several former employees of Huntington Ingalls, including Robert Templet, brought suit in Louisiana state court, alleging that the company failed to warn them of the risks of asbestos exposure and failed to implement proper safety procedures for handling asbestos.  Templet worked for Huntington Ingalls from 1968 to 2002 and alleged his handling of asbestos-containing materials at various worksites from 1968-79 caused him to contract mesothelioma. Huntington Ingalls removed the case to the U.S. District Court for the Eastern District of Louisiana under the federal officer removal statute, 28 U.S.C. Section 1442(a)(1), alleging that the company used asbestos to construct vessels under government-mandated contract specifications. The Eastern Destruct remanded the case back to state court, and Huntington Ingalls appealed to the U.S. Court of Appeals, Fifth Circuit. The Appeals ...
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Frustrated Court Denies Plaintiffs’ Motion to Reconsider Exclusion of Kenneth Garza Due to Lack of Authority U.S. District Court for the Eastern District of Wisconsin, May 2, 2018

WISCONSIN — In this case set for trial on June 4, 2018, the plaintiffs filed eleven motions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and various motions in limine. After hearing and argument, the court granted defendant Pabst Brewing Company’s motion to bar, under Daubert, Kenneth Garza’s reports, opinions, and testimony, and granted the Daubert motion of defendants Sprinkmann, Employers Insurance Company and WEPCO’s to exclude Garza’s testimony. The court found that although Garza’s training and background gave him the knowledge and expertise to qualify as an expert in the area of industrial hygiene, the plaintiffs had not demonstrated that his methods were reliable, especially since his general report contained nothing specific to the facts of this case. The plaintiffs filed a motion to reconsider, which the ...
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Employer and its Insurer Granted Summary Judgment Due to Longshore and Harbor Workers’ Compensation Act Exclusivity U.S. District Court for the Eastern District of Louisiana, April 30, 2018

LOUISIANA — The plaintiff sued his employer and its insurance company alleging that he developed lung cancer as a result of exposure to asbestos while working as a pipefitter for Huntington Ingalls at the Avondale Shipyard. Defendants moved for summary judgment arguing that plaintiff’s claims against them are subject to the exclusivity of the Longshore and Harbor Workers’ Compensation Act (LHWCA). The plaintiff did not substantively oppose this motion, and affirmatively indicated his intention to pursue LHWCA claims against these defendants. The plaintiff filed his own motion to voluntarily dismiss the defendants without prejudice. The court granted summary judgment for the defendants and ruled the plaintiff’s motion to dismiss was moot. “Dismissal without prejudice is not justified when a request for voluntary dismissal is ‘intended to avoid an imminent adverse ...
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Expert and Fact Witness Evidence Establishes Last Day of Exposure for UPS Worker in Workers’ Compensation Commission Award Court of Appeals of North Carolina, May 1, 2018

NORTH CAROLINA — The plaintiff filed an action under North Carolina Workers’ Compensation for alleged development of mesothelioma by her decedent. Mr. Penager worked as a driver for United Parcel Services (UPS) from approximately 1967-98. It was alleged by the plaintiff that Mr. Penegar drove tractor trailers each day and would walk through the mechanic shop after his shift where workers were using compressed air to clean out dust from brake jobs. The Commission found that the plaintiff’s last date of injury from asbestos occurred while working for UPS. The Commission awarded the plaintiff “compensation for all of Decedent’s medical expenses associated with the diagnosis of his mesothelioma, total disability compensation, burial expenses and death benefits.” The defendant filed an appeal and took the position that the evidence did not ...
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Insufficient Evidence to Show Chrysotile Flooring Products Caused Plaintiff’s Peritoneal Mesothelioma Supreme Court, State of New York, Nassau County, April 18, 2018

NEW YORK — The court granted summary judgment for two flooring manufacturers in this peritoneal bystander mesothelioma matter. Plaintiff Victoria Pistone alleged that she was exposed to asbestos from vinyl floor covering manufactured by Mannington Mills, and tile manufactured by American Biltrite, while she accompanied her father to work, and in their home from his clothing. The court cited prior New York law in noting that a plaintiff must use a causation expert to establish that the plaintiff was exposed to sufficient levels of asbestos from the products in question to have caused her disease. The court first determined that the defendants met their burden of demonstrating that their respective products could not have contributed to the causation of the plaintiff’s peritoneal mesothelioma through the affidavits of certified industrial hygienists ...
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Expert’s Asbestos-Location Map Admissible Only For Plaintiffs With Exposures Within Entire Date Range Depicted by Map Superior Court of the Virgin Islands, Division of St. Croix, April 24, 2018

U.S. VIRGIN ISLANDS — Defendant Hess Oil Virgin Island Corporation (HOVIC) filed a motion in limine to exclude a map prepared by the plaintiffs’ expert Martin D. Barrie, Ph.D. in this matter that consolidates the lawsuits of 123 individuals alleging expose to asbestos while working at a HOVIC operated refinery on the island of St. Croix. The map in question condensed 23 pages of data produced in discovery by HOVIC, and depicted all places that asbestos was found at the St. Croix refinery based on sample testing that occurred from 1982 to 1999. HOVIC argued that the map was unduly prejudicial, that it was a compilation of more than 20 years of data, and that it failed to show subsequent remediation efforts that occurred at the refinery during the same time ...
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