Summary Judgment Affirmed For Railroad After Plaintiff Settles and Files Subsequent Suit for Lung Cancer Court of Common Pleas of Philadelphia County, April 24, 2018

PENNSYLVANIA — The plaintiff filed a claim for Federal Employer’s Liability Act (FELA) against Conrail for the development of alleged asbestosis in 1997. The parties settled in 2004 and executed an agreement that contemplated a release for “all known and unknown…injuries for any and all forms of cancer…” Years later, the plaintiff developed lung cancer and filed suit alleging the injury was a result of exposure to asbestos for which Conrail was liable. Conrail moved for summary judgment arguing that the claim was barred by the prior settlement. The court granted Conrail’s motion for summary judgment and the plaintiff appealed. The plaintiff took the position that the release was invalid under FELA as the scope of the settlement did not contemplate claims for malignancy. In short, the plaintiff argued that the ...
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Claims Against Insulation Supplier Barred By Government Contractor Defense Court of Appeal of California, First District, Division 4, April 19,2018

CALIFORNIA — Plaintiffs Paula Tarjani, Phyllis Newman, and Patsy Rojo, daughters of the plaintiff’s decedent John Ball, brought claims against numerous defendants, alleging that the plaintiff’s decedent was exposed to asbestos while working as a joiner and shipwright from 1965 to 1972.  The plaintiff’s decedent worked at Mare Island aboard the USS Guitarro, USS Hawkbill, USS Pintado, and USS Drum. Defendant Metalclad brokered Unibestos to the United States Navy, and filed a Motion for Summary Judgment, stating that the plaintiffs’ claims were precluded under the government contractor defense which shields military contractors from state tort law liability for defects in military equipment supplied to the United States.  Specifically, Metalclad argued that it met the three elements of the government contractor defense: 1) the United States approved reasonably precise specifications; 2) ...
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Community Exposure Claims by Former Employees Not Barred by Wisconsin Workers’ Compensation Act U.S. District Court for the Western District of Wisconsin, April 17, 2018

WISCONSIN — Two deceased Weyerhauser employees brought claims against their former employer for common law negligence, negligent nuisance, and intentional nuisance. In an effort to avoid the exclusivity provisions of Wisconsin’s Workers’ Compensation Act (WCA), both plaintiffs alleged that the defendant Weyerhauser’s activities exposed them to asbestos in the community, not during the course of their employment with the defendant, causing their mesothelioma. Weyerhauser challenged the pleadings on several bases, and the court granted and denied their motion in part. The court denied Weyerhauser’s motion to dismiss based on exclusivity of the WCA. Weyerhauser argued that the plaintiffs’ exposure to asbestos still arose out of their employment, and that prior authority supported the bar of these types of community claims. The court was unpersuaded, finding that prior decisions both within ...
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Plaintiff Survives Motion to Dismiss Upon Adding Additional Allegations in Amended Complaint U.S. District Court for the Western District of Wisconsin, April 17, 2018

WISCONSIN — The plaintiff filed suit against Weyerhauser and its insurer for alleged emissions of asbestos into the Marshfield, Wisconsin community. Plaintiff Michael Kappel moved to add additional allegations to his complaint. Weyerhauser moved to dismiss. The plaintiffs were substituted upon Mr. Kappel’s passing. Weyerhauser sought dismissal on two separate grounds. First, the defendant argued the plaintiffs did not allege Mr. Kappel’s exposure from work at Weyerhauser in an effort to circumvent the exclusivity rules in the local worker’s compensation statute. The court disagreed as the complaint alleged exposure from “community or environmental” exposure only. Relying on its previous decisions in the Kilty/Spatz cases, the court noted the plaintiffs were not required to allege exposure from employment. Moreover, Mr. Kappel did not work at Weyerhauser during the time of the ...
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Summary Judgment Granted and Request for Continuance Denied Based Upon Lack of Evidence U.S. District Court for the Northern District of California, April 16, 2018

CALIFORNIA — Defendant, Rohr, Inc., filed a motion for summary judgment based upon a lack of evidence demonstrating the plaintiff was exposed to a Rohr product. The plaintiffs opposed the motion, but failed to present any such evidence in support of their opposition. The plaintiffs also filed a motion to continue, pursuant to Federal Rule of Civil Procedure 56(d), for additional time to conduct discovery. To succeed on such a motion, the moving party must show: 1) an affidavit setting forth the specific facts to be elicited from further discovery; 2) the facts sought exist; and 3) the sought-after facts are essential to oppose summary judgment. For the second requirement, the plaintiffs argued that “if Rohr were to actually search their records … they would uncover the components used to ...
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Case Remanded Based Upon Lack of Fraudulent Joinder U.S. District Court for the District of South Carolina, April 16, 2018

SOUTH CAROLINA — The plaintiff filed a lawsuit in the Court of Common Pleas for Darlington County, South Carolina, alleging that Bertila Boyd-Bostic suffered from mesothelioma due to asbestos exposure in the 1980s. On March 2, 2018, a Third Amended Complaint was filed, alleging that Johnson & Johnson, Imerys Talc America, Rite Aid of South Carolina and others were liable for Ms. Boyd-Bostic’s mesothelioma, based upon her use of baby powder. The recently-joined defendants removed the case on April 6, 2018. The plaintiff filed an emergency motion to remand, arguing that there was incomplete diversity between the parties due to Rite Aid of South Carolina’s citizenship in that state. Removing the defendants countered by arguing that Rite Aid of South Carolina was improperly named, and that the correct entity was ...
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Cases Remanded After Court Determines Defendant Shipbuilder Controlled Safety Procedures U.S. District Court for the Eastern District of Louisiana, April 11, 2018

LOUISIANA — The Eastern District of Louisiana granted motions to remand in two separate mesothelioma cases arising out of alleged exposure to asbestos through work for defendant Avondale Industries, Inc., a shipbuilder for the United States Navy. Each plaintiff originally filed their actions in state court, alleging that Avondale failed to warn of the hazards of asbestos and failed to implement proper safety procedures for the handling of asbestos. Avondale removed the matter to federal court on federal officer jurisdiction. In remanding, the court focused on evidence that the federal government had no control over Avondale’s application of safety measures, despite the fact that the government did specify Avondale’s use of asbestos in building the ships. The court cited testimony from two Avondale supervisors and a federal ship inspector, who ...
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$80 Million Punitive Award in Asbestos-Talc Case

NEW JERSEY — Following up on a prior ACT post  regarding a compensatory damages verdict of $37 million dollars against Johnson & Johnson and Imerys Talc America, Inc., the same New Jersey jury awarded a total of $80 million in punitive damages. This case involved allegations that plaintiff Stephen Lanzo developed mesothelioma after years of use of talcum powder that plaintiff claimed was contaminated with asbestos.  Of the total punitive damages sum, $55 million was awarded against Johnson & Johnson and $25 million against Imerys. Both defendants are expected to appeal.  
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Motion for Reconsideration Based Upon Change in Law Denied as Untimely U.S. District Court for the District of Delaware, April 9, 2018

DELAWARE — Plaintiffs Icom and Johanna Evans filed a lawsuit on June 11, 2015 in Delaware Superior Court relating to Mr. Evans’ alleged asbestos exposure. Foster Wheeler removed the matter to federal court on August 4, 2015, pursuant to the federal officer removal statute. Defendants Foster Wheeler and Warren Pumps filed motions for summary judgment in October 2016. Both motions were opposed. The district court issued a Report and Recommendation (R&R) on August 30, 2017, recommending that the motions be granted pursuant to maritime law, based upon the lack of substantial factor causation and the bare metal defense. The plaintiffs did not oppose the R&R, and Judge Robreno adopted the court’s recommendation and granted the motions on September 26, 2017. In a separate case, on October 3, 2017, the Third Circuit ...
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Maryland’s Court of Appeals Rules on Applicability of Statute of Repose

MARYLAND — The Maryland Court of Appeals reversed the decision of the Court of Special Appeals in the matter of Duffy v. CBS Corporation, making two holdings relating to Maryland’s Statute of Repose. First, the court held that an injury related to asbestos exposure that underlies a cause of action for personal injury or wrongful death arises at the time of exposure. The court held that the “exposure approach,” as adopted by the Court in John Crane Inc. v. Scribner, 369 Md. 369, 383, 800 A.2d 727, 735 (2002), was applicable to determine if a party’s injuries or cause of action arose prior to the enactment of the statute of repose. Second, the court held that the estate’s causes of action were not barred by the statute of repose because the ...
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