Pennsylvania Superior Court Rules, Inter Alia, No Right to Offset for Bankruptcy Trust Claims Superior Court of Pennsylvania, April 17, 2015

The Superior Court of Pennsylvania recently reviewed on appeal a variety of post-trial issues in two mesothelioma cases that went to trial in the Philadelphia Court of Common Pleas. Of particular interest is the court’s refusal to permit defendants to offset payments received from settling non-party tort feasors, which included bankruptcy claim payments. The basis for the court’s decision is that the jury did not find that the other parties were joint tort feasors. The court described a defendants’ burden on this issue as follows: “Here, Crane failed to (1) join other settling tortfeasors into the action or (2) submit evidence to establish that the non-parties were joint tortfeasors. Therefore, Crane is not entitled to a reduction of the jury verdict for non-parties to the litigation who settled with the ...
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Southern District of Illinois Denies Motion to Remand Alleged Aircraft Engine Asbestos Exposure Based on Federal Contractor Defense U.S. District Court for the Southern District of Illinois, April 14, 2015

After the plaintiff commenced an action alleging asbestos exposure in connection with Air Force aircraft engines, the defendants removed the action to federal court under 28 U.S.C. 1442(a)(1), which permits removal “by federal officers or any persons acting under a federal officer for any act under color of such office where such person asserts a colorable defense.” The plaintiff moved to remand the case, claiming the defendants could not establish a colorable defense in accordance with the U.S. Supreme Court decision in Boyle, which requires “a government contractor defendant to establish three required elements for a colorable defense on a use-of-asbestos claim — namely, (1) that the United States approved reasonably precise specifications, (2) that the equipment conformed to those specifications, and (3) that the supplier warned the United States about ...
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NYCAL Issues Bombshell Decision, Ruling Exposure to Friction Products Is Incapable of Causing Mesothelioma and Rejecting the Cumulative Exposure Theory NYCAL, April 13, 2015

In a decision that could change the landscape of NYCAL asbestos litigation in New York, Justice Barbara Jaffe issued a post-trial decision following an $11 million verdict against Ford, essentially precluding Drs. Steven Markowitz and Jacqueline Moline on Frye grounds because there is no established scientific connection between exposure to friction products and mesothelioma. Additionally, Justice Jaffe ruled that the plaintiff’s theory of cumulative exposure without quantifiable exposure is insufficient to establish legally sufficient asbestos exposure. Justice Jaffe determined that the testimony of the plaintiff’s experts, Drs. Markowitz and Moline, failed to establish both general and specific causation between the plaintiff’s mesothelioma and friction products under the standards articulated by the New York Court of Appeals in Parker and Cornell. The court distinguishedLusternring, an earlier trial court decision that upheld a verdict against a gasket/packing ...
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Federal Court Precludes Plaintiff Aircraft Expert Under Daubert and Grants Summary Judgment U.S. District Court Central District of California April 2, 2015

In this case, the plaintiffs pursued an action claiming that the  decedent, while working as an aircraft electrician for the U.S. Air Force between 1952 and 1961, was exposed to various electrical component parts. Several electrical component part defendants moved for summary judgment claiming that the plaintiffs did not meet the threshold exposure standard under California law. In opposing the motion, the plaintiffs relied on the expert testimony of Mark Thomson, an experienced pilot and civilian aviation mechanic and custodian of one of the world’s largest aviation libraries in the United States. Generally, Mr. Thomson offered testimony in part that claimed the decedent was exposed to asbestos during the plane’s operation through vibration and abrasion of asbestos components. The court ruled that Mr. Thomson was not a qualified expert: “Upon review ...
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Lack of Evidence of Exposure to Asbestos-Containing Products Leads to Multiple Defendants Obtaining Summary Judgment Under New Jersey and Maritime Law U.S. District Court for the District of New Jersey, April 9, 2015

The plaintiff’s decedent, Harold Thomasson, had mesothelioma that was alleged to be a result of his service in the U.S. Navy between 1952 and 1954, and his work as a maintenance man/pipefitter for various employers between 1954 and 1985. The decedent died prior to testifying and 19 defendants moved for summary judgment, arguing that there was no evidence that the decedent was exposed to asbestos from any products manufactured or supplied by them. Prior to oral argument, four defendants obtained voluntary dismissals. The remaining 15 motions were unopposed and were granted. Even though the motions were unopposed, the court reviewed the record and noted that Goulds and Bechtel were the only defendants for which there was any evidence of possible exposure, based on the testimony of two non-party witnesses. The ...
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New Arizona Law Adds Significant Hurdles for Victims of Asbestos Exposure

On April 9, 2015, Governor Doug Ducey signed a bill into Arizona state law that places new requirements on victims of asbestos exposure. Pursuant to the new law, asbestos victims must submit a sworn statement that identifies each personal injury claim that the victim has filed and each claim that the victim reasonably anticipates filing against an asbestos company.  Furthermore, the new law permits the asbestos companies being sued to request a delay in the proceedings if they believe that the victim may be eligible for compensation from any of the asbestos-injury trusts. Read the full bill here.
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Under Georgia Law, Appellate Court Rejects Defendant’s Daubert Challenge to Dr. Abraham and Allows Punitive Damage Claim Court of Appeals of Georgia, March 30, 2015

In this case, the plaintiff and his wife, Roy and Milva Knight, sued Scapa Dryer Fabrics, Inc., alleging that Roy’s mesothelioma was caused from exposure to asbestos while he was working as an independent sheet metal contractor at Scapa’s facility. It was alleged that Scapa used asbestos fibers in its manufacturing process and there was asbestos insulation on pipes and boilers. The plaintiffs also sued Union Carbide Corp., claiming that it supplied asbestos to non-party Georgia Pacific, which made joint compound that Roy used on his house. During the trial, the jury heard other evidence of 29 additional non-party entities associated with products that may have also exposed Roy to asbestos. The jury found against Scapa and Union Carbide, and apportioned liability as follows: 40 percent Scapa; 40 percent Union Carbide; ...
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Appeals Court Rules on Several Evidentiary Issues in Talc-Asbestos Exposure Case, Ultimately Upholding $1.6 Million Verdict Superior Court of New Jersey, Appellate Division, March 27, 2015

In this case, the Plaintiff, Steven Kaenzig, and his wife sued multiple defendants, including talc supplier Whittaker, Clark & Daniels, Inc., for his contracting mesothelioma as a result of his exposure to the talc on his father’s work clothes. The defendant was the primary supplier of talc where plaintiff’s father worked. The case was tried and a verdict of $1.6 million was rendered in favor of the plaintiffs. On appeal, the defendant challenged several pretrial and evidentiary rulings and the denial of its motion for judgment notwithstanding the verdict. The defendant appealed the denial of its motion to compel the plaintiffs to produce the raw data and reports performed on vintage samples of the talc by plaintiff’s non-testifying consulting expert. Pursuant to New Jersey law, discovery of the opinions of ...
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Federal Court Refuses to Remand State Law Asbestos Case Where Discovery Was Completed and Dispositive Motions Decided District of Maryland, March 24, 2015

In this case, the plaintiff commenced an action in Maryland state court and alleged the decedent’s exposure to asbestos while working at a Coast Guard yard, as a floor tile salesman, and in connection with residential work. The case was originally removed to federal court under federal question jurisdiction, based on the claimed exposure at the Coast Guard yard. After the case proceeded through discovery, all the defendants associated with the claimed shipyard exposure were either dismissed or settled, leaving Union Carbide as the remaining defendant (Owens Illinois was on the verge of settling). The plaintiff moved to remand because only state law claims remained, which Union Carbide opposed, urging the court to exercise supplemental jurisdiction under the circumstances. Since the case had proceeded through discovery and the plaintiff delayed ...
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Statute of Limitation in Wrongful Death Action Held to Have Commenced at Time of Decedent’s Diagnosis Superior Court of Pennsylvania, March 19, 2015

The administratrix of the decedent’s estate appealed the lower court’s time-barred dismissal of the wrongful death action she commenced on behalf of the decedent, who was diagnosed with mesothelioma on June 17, 2011 and died on July 9, 2012. The action was commenced on January 9, 2014, which was more than two years after the mesothelioma diagnosis, but less than two years after the decedent’s death. The court, in its analysis of the subject Pennsylvania statute of limitations, found that the time to file an action began to run at the time of the decedent’s diagnosis, as opposed to her death, and held: “With respect to asbestos-related wrongful death actions, the passage of 42 Pa.C.S. § 5524(8) changed prior law. Before the enactment of § 5524(8), asbestos-related wrongful death actions ...
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