Industrial Hygienist William Dyson’s Dose Reconstruction Methodology for Assessing Levels of Asbestos Exposure Found Scientifically Reliable Under Daubert U.S. District Court for the Eastern District of Louisiana, February 11, 2015

The plaintiff in this Louisiana federal court case alleged that decedent pipefitter was exposed to asbestos while at various locations during his career, including a one-to-two-week period at Union Carbide. Union Carbide offered the expert testimony of industrial hygienist Dr. William Dyson to perform a dose reconstruction assessment of the decedent’s level of asbestos exposure throughout his life and specifically during the one-to-two-week period at Union Carbide. The plaintiff moved to preclude Dr. Dyson’s opinion under Federal Rule of Evidence 702 and Daubert principles. In ruling that Dr. Dyson’s methodology was scientifically reliable and permitting him to testify, the court stated: “Plaintiff generally challenges the reliability of Dr. Dyson’s testimony. After reviewing Union Carbide’s opposition, the Court nevertheless believes dose reconstruction assessment methodologies to be sufficiently established and accepted to withstand the Daubert analysis. ...
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California Applies Higher Texas Standard on Causation and Dismisses Asbestos Case California Court of Appeals, February 10, 2015

In this California state case, the plaintiff, a Texas resident, claimed asbestos exposure in both California and Texas, although the particular claimed exposure against certain defendants was in Texas. These defendants moved for summary judgment, claiming that under Texas law, the plaintiff was unable to meet the legal standard of causation. Both the lower and appellate courts in California, under choice of law principles, ruled that Texas law applied and, under the higher causation standard in Texas, granted summary judgment. With respect to Texas law on causation, the California court stated that “‘in the absence of direct proof of causation, establishing causation in fact against a defendant in an asbestos-related disease case requires scientifically reliable proof that the plaintiff’s exposure to the defendant’s product more than doubled his risk of contracting the ...
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Court Avoids Statute of Repose While Dismissing Plaintiff’s Claims on Lack of Causation Wisconsin Court of Appeals, February 10, 2015

Plaintiff Todd  Alexander commenced a wrongful death action claiming decedent Richard Alexander was exposed to asbestos in connection with his sheet metal, heating, and plumbing business. Defendants Auer and Milwaukee Stove moved for summary judgment under Wisconsin’s Statute of Repose and, in the alternative, along with defendant CertainTeed, on lack of causation. The lower court granted Auer’s and Milwaukee Stove’s motion based on the Statute of Repose and CertainTeed’s motion based on causation. On appeal, the Wisconsin Court of Appeals avoided ruling on the Statute of Repose issue but instead affirmed the lower court’s decision for all three defendants on the basis of causation. With respect to Auer and Milwaukee Stove, the court stated: “Because we agree with Milwaukee Stove that Alexander has not set forth sufficient facts to show causation ...
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$190 Million Verdict Reduced to Under $30 Million New York Supreme Court, New York County

Following the highly publicized $190 million verdict in NYCAL in five consolidated asbestos cases, the defendants were successful in reducing the collective award to just under $30 million on a post-trial motion. While the trial court rejected the defendants’ arguments on certain evidentiary issues, causation, apportionment, consolidation, and recklessness, it recognized that the verdicts materially deviated from what would be reasonable compensation. The court applied the reasoning from the recent appellate court ruling in the Dummit case where the First Department assessed reasonable compensation based on the duration and nature of the pain and suffering sustained by the plaintiffs.  In these consolidated cases, the trial court did the same. For example, in one of the cases, the court stated: “The jury awarded Mr. Serna $30 million for past and $30 million for ...
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Mesothelioma Claim Barred Based on Issue Preclusion Federal Court, Eastern District Wisconsin, February 3, 2015

In this MDL asbestos case, plaintiff brought an action claiming he had asbestosis. CBS and General Electric moved for summary judgment in the Eastern District of Pennsylvania, which motion was unopposed. At the time the motion was brought, plaintiff had been diagnosed with mesothelioma but such claim had not yet been added to the lawsuit (although disclosed in discovery responses). After the summary judgment motion was granted, plaintiff’s estate commenced another lawsuit in which his estate sought to pursue the mesothelioma claim. The Federal Court for the Eastern District of Wisconsin dismissed the claim based on issue preclusion, stating: “In the final analysis, the underlying policies weigh in favor of preclusion. The purpose of claim preclusion ‘provides an effective and useful means to ‘relieve parties of the cost and vexation ...
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Wrongful Death Damages Limited, Riggs v. Georgia-Pacific, LLC Supreme Court of Utah February 2, 2015

The Supreme Court of Utah ruled that a recovery by an asbestos plaintiff in a personal injury lawsuit does not bar a subsequent wrongful death claim brought by his heirs, but there cannot be any double recovery. The plaintiff, who had peritoneal mesothelioma, went to trial against Georgia-Pacific and Union Carbide and was awarded a substantial recovery. Following his death, the plaintiff’s heirs brought a wrongful death and survival claim against Georgia-Pacific, Union Carbide, and others seeking recovery under Utah’s wrongful death statute, which specifically stated such a claim was an independent cause of action. The Supreme Court of Utah, in this case of first impression, ruled that under the plain language of the statute the heirs could pursue a wrongful death claim, but strongly cautioned the lower court that ...
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