Bill Proposed in Pennsylvania House Seeks to Add Fairness and Transparency to Asbestos Actions

On June 30, 2015, Rep. Warren Kampf introduced a bill in the Pennsylvania House of Representatives titled as the “Fairness in Claims and Transparency (FaCT) Act.” The purposes are listed as providing transparency of claims made against bankruptcy trusts and in the tort system, to facilitate fair and appropriate compensation to plaintiffs while rationally allocating responsibility, to preserve the resources of defendants involved to help promote adequate recoveries for deserving plaintiffs, and to ensure that liabilities properly borne by bankruptcy trusts are not imposed upon defendants in the tort system. Section 4 primarily establishes the apportionment of responsibility, stating that an apportionment nonparty shall be apportioned responsibility, for liability purposes, in an asbestos action.  According to this section, a defendant in an asbestos action may, at any time, move to ...
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Plaintiff’s Expert Industrial Hygienist Found to Be Qualified to Offer Testimony on Non-Specific Levels of Asbestos Exposure U.S. District Court for the Eastern District of Louisiana, June 25, 2015

In this federal court case, the decedent, Sally Gros Vedros, is alleged to have been exposed to asbestos from laundering her father’s work clothes during the time he worked as a welder at the Avondale shipyard from 1943 to 1976 and from her own work at Avondale in the purchasing department from 1960 to 1963. The defendant, Bayer CropScience, Inc., which was the successor to several companies that formerly were known as Amchem Company, moved to preclude plaintiff’s industrial hygienist, Frank Parker, III, from testifying, on the basis that his testimony was both unreliable and unduly speculative. Amchem made numerous products containing asbestos, including coatings, sealants, and mastics. It is specifically alleged that the decedent was exposed to an Amchem adhesive called 81-27. Regarding Parker’s qualifications, Amchem argued that he ...
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Court Denies Plaintiff’s Motion to Amend Complaint to Reflect Only Remaining Parties U.S. District Court for the Eastern District of North Carolina, Western Division, June 26, 2015

In this federal court case, the plaintiff alleged exposure to asbestos while serving in the Navy from 1957 to 1960 aboard the USS Jonas Ingram and the USS Clarence Bronson, as well as from “other sites of asbestos exposure from approximately 1956 to 1970.” In November 2013, eight defendants moved for summary judgment, and the plaintiff only opposed the motions by Ford Motor Company and Honeywell International, Inc. Following the granting of summary judgment to all of the defendants with unopposed motions, the plaintiff moved to amend the complaint to only reflect the existing claims against Ford and Honeywell that survived summary judgment. The court denied the motion as untimely, since the unopposed motions were granted in January 2014. The court also denied the motions as unduly prejudicial against the defendants ...
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California Court Rejects Plaintiffs’ Expert Opinion and Grants Railroad Summary Judgment Under FELA on Lack of Causation Court of Appeal of California, Second Appellate District, Division Four, June 24, 2015

In this California case, the decedent was allegedly exposed to asbestos while working for a railroad as a switchman, conductor, and brakeman, later developing mesothelioma. Specifically, the decedent claimed exposure was from changing railcar brake shoes, being in the vicinity of insulation removal from refrigerator cars, and staying in a boarding house run by the railroad that had insulation-covered pipes in the room where he slept. The defendant railroad moved for summary judgment, arguing “that plaintiffs were required but failed to prove negligence under FELA, that plaintiffs did not have and could not provide evidence to establish Thoms’ exposure to asbestos while employed by BNSF, and that plaintiffs’ claims were preempted by the Locomotive Boiler Inspection Act and the Safety Appliance Act.” In support of the motion, the railroad relied on ...
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General Electric Granted Summary Judgment on the Bare Metal Defense Under Maritime Law U.S. District Court for the District of New Jersey, June 24, 2015

The plaintiff commenced this action by claiming he was exposed to insulation on General Electric products while in the U.S. Navy. GE moved for summary judgment on three grounds: the government contractor defense, the bare metal defense under maritime law, and on no evidence of GE actually furnishing the component parts. The court ruled that maritime law — rather than New Jersey law — governed the case. The court only addressed the bare metal defense, ruling that GE was entitled to summary judgment: “The Court is persuaded by the thorough and thoughtful analysis set forth in Conner and finds that, under maritime law, GE is entitled to summary judgment pursuant to the “bare metal” defense. There is no evidence in the record to suggest that GE manufactured or distributed any asbestos containing products ...
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California Appellate Court Reverses Dismissal of Two Cases Where Equipment Was Used in Connection With Asbestos Brake Linings California Court of Appeals, June 18, 2015

In the first California case, the plaintiff was diagnosed with mesothelioma in 2014. He had previously worked as an auto mechanic in New York City and Los Angeles, during which he purchased an AMMCO machine equipped with a dust collection system. This machine was “an ‘arcing’ machine designed to grind drum brake linings for cars and light passenger trucks with standard sized brake shoes. From the early 1950’s to the 1980’s, the great majority of such drum brake linings contained asbestos. Because the AMMCO machines created dust when used, AMMCO equipped them with a dust collection system to collect dust from the linings being abraded. Asbestos-containing brake linings were so prevalent that in 1973, AMMCO began using a system that it called an ‘asbestos dust collector.’” In the second case, ...
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Valve Manufacturer’s Appeal on Summary Judgment Denied on Foreseeable Use of Asbestos-Containing Component Parts Supreme Court of New York, Appellate Division, Fourth Department, June 12, 2015

In this case, it is alleged that the decedent was exposed to asbestos gaskets and packing in valves manufactured by Crane Co., while working at an industrial plant from 1956 to 1982. Crane appealed from the lower court’s denial of its motion for summary judgment and the Fourth Department affirmed the decision. In its appeal, Crane alleged that it could not be liable for failure to warn of the dangers associated with asbestos, since it did not produce or sell the asbestos-containing component parts. The lower court disagreed and held: “It is well established that ‘a plaintiff may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product ….A manufacturer has a duty to warn against latent dangers resulting ...
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Federal Court Exercises Supplemental Jurisdiction in Denying Plaintiff’s Request to Remand U.S. District Court for the Eastern District of Pennsylvania, June 10, 2015

In this federal court case, the plaintiffs sought to remand the case back to state court after settling with federal defendants GE and CBS Corporation, who originally removed the case pursuant to the federal officer removal statute, 28 U.S.C 1442(a)(1). The plaintiffs sought removal, asking the court to decline to exercise supplemental jurisdiction over the remaining claims against John Crane. The plaintiffs also reasserted their challenges to the court’s original jurisdiction, but since those issues had already been addressed, only the new argument was considered by the court. Even though John Crane had not asserted the government contractor defense, the court denied plaintiffs’ motion, stating, “The dismissal of the removing defendants does not eliminate the Court’s subject matter jurisdiction over the remaining claims.” As the court held: “Despite the fact that ...
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Plaintiff Granted Remand of Shipyard’s Removal to Federal Court

In this federal court case, the plaintiff alleged that he had been exposed to asbestos while he was an employee of Huntington Ingalls, Inc. (previously known as Avondale shipyards) in various positions from 1948 through 1996. The defendants removed the case, claiming the federal court had jurisdiction pursuant to the Federal Officer Removal Statute, 28 U.S.C. 1442. The defendants specifically claimed that federal inspectors from military agencies maintained a constant presence at the shipyard during the construction of vessels for the Navy and Coast Guard and had complete control over the materials, including asbestos-containing materials, used during construction. It was also alleged that the federal inspectors maintained the safety regulations to be implemented by Avondale related to this construction. The plaintiff subsequently sought to remand the action back to state ...
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Valve Manufacturer Granted Summary Judgment on Appeal Because Salvage/Demolition Not Foreseeable Use of Product NYCAL, June 9, 2015

In this NYCAL case, the plaintiff alleged that his development of peritoneal mesothelioma was a result of his exposure to asbestos in the 1980s from dismantling and salvaging scrap metal from steam systems in vacant buildings. The lower court denied the motion for summary judgment by the defendant, valve manufacturer Powell Company. On appeal, the appellate division addressed whether dismantling constitutes a reasonably foreseeable use of a product and reversed the lower court’s decision. In its ruling, the court looked at rulings in other jurisdictions and held: “We find these decisions persuasive. To recover for injuries caused by a defective product, the defect must have been a substantial factor in causing the injury, and ‘the product must have been used for the purpose and in the manner normally intended or ...
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