Defendants’ Motion for Summary Judgment on Judicial Estoppel Grounds Denied Because Plaintiff Did Not Act in Bad Faith When He Failed to Disclose His Asbestos Lawsuit in Subsequent Bankruptcy Filing U.S. District Court for the Eastern District of Pennsylvania, September 4, 2015

The plaintiff claims he developed an asbestos-related illness as a result of exposure to asbestos while working aboard various ships. The plaintiff originally brought his asbestos-related claims against several defendants in 1997. His claims were administratively dismissed in a manner allowing for those claims to be brought at a later time; the claims were reinstated in 2001, but there was no evidence that the plaintiff had been informed that his lawsuit had been reinstated.  Following the reinstatement, the plaintiff filed for bankruptcy under Chapter 7 and failed to list his asbestos-related action as an asset. The bankruptcy case was eventually resolved and the trustee discharged. The defendants learned of the plaintiff’s bankruptcy filing and filed a motion for summary judgment, arguing that the plaintiff’s failure to list the asbestos lawsuit as ...
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Court Rejects Plaintiffs’ Experts’ Opinions Because They Did Not Read Plaintiff’s Deposition Testimony and Grants Summary Judgment Based on Insufficient Product Exposure Court of Appeal of California, September 8, 2015

In this mesothelioma case, plaintiff James Shiffer worked at a power plant for several months in 1969 and 1970, during which time he claimed exposure to a Westinghouse turbine with asbestos-containing components that was present at the plant. Westinghouse moved for summary judgment because “…[t]here is no dispute Shiffer did not repair or maintain any Westinghouse equipment, and did not install or remove any insulation material himself. Nor is there any dispute that no already-installed insulation was removed or disturbed during Shiffer’s time at Ginna.” In opposition to the motion, the plaintiff submitted three expert affidavits, all relying on a declaration signed by the plaintiff, but none of the experts actually reviewed his deposition testimony. The trial court excluded all three experts’ opinions on the ground that they lacked proper ...
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Court Provides Mixed Ruling in Applying Kansas Law and Granting Summary Judgment to One Defendant, but not the Other U.S. District Court for the Western District of Missouri, Western Division, September 3, 2015

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendants Hennessy Industries and Caterpillar Incorporated moved to apply Kansas law and for summary judgment. The court granted in part Hennessy’s motion and dismissed the plaintiff’s complaint. The court found that Kansas law “possesses the most significant relationship to these parties and causes of actions.” In its assessment, the court reviewed four factors: the place of exposure and diagnosis, where the conduct causing the injury occurred, the principal place of business and domicile of the parties, and the focal point of the parties’ relationship. The court found all four factors favored the application of Kansas law and pointed out that the focal point of the parties’ relationship was the most ...
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State of The Art Experts Drs. Markowitz and Rosner Found Qualified to Testify U.S. District Court for the Western District of Missouri, Western Division, September 3, 2015

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendant Caterpillar Incorporated moved to strike the expert state of the art testimony of historians Dr. Gerald Markowitz and Dr. David Rosner, arguing that “…(1) their testimony will not assist the jury in deciding any issue in this case; (2) they fail to qualify as ‘experts’ under Rule 702; (3) their report was written solely for the purposes of litigation; (4) their report is unreliable because it has not been subjected to peer review; and (5) they will impermissibly testify about Caterpillar’s state of mind, thereby deciding this jury issue.” The motion was denied and the court found that the testimony of the experts would assist the jury in determining ...
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Connecticut Appellate Court Affirms Dismissal of Asbestos Action for Failure to Prosecute the Action with Reasonable Diligence Appellate Court of Connecticut, Decided September 2015

The plaintiff’s decedent brought this personal injury action in August 2009, alleging that his mesothelioma was caused by exposure to asbestos from several defendants’ products. The plaintiff’s decedent died a few days after the commencement of this action and before any deposition testimony or product identification evidence was disclosed. The plaintiff was appointed as executrix of the decedent’s estate less than a month after his death. In November 2012, three years after the decedent’s death, the trial court set a trial date. The defendants moved for a continuance on the basis that the decedent’s estate representative had not been substituted as a party, probate had not been resolved, and the defendants had never deposed any product identification witnesses. The court denied the motion for continuance without prejudice and instructed the ...
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Court Refuses to Dismiss Garlock’s RICO Complaints Against Plaintiff Law Firms U.S. District Court for the Western District of North Carolina, Charlotte Division, September 2, 2015

Following the well-publicized decision in the Garlock bankruptcy, Garlock commenced a number of actions in federal court against asbestos plaintiffs’ law firms that allegedly engaged in fraud in the settlement of their clients’ mesothelioma claims against Garlock. In two of these actions, the defendant plaintiffs’ firms moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on a variety of grounds, including that the claims were time-barred. One of the arguments was that Garlock knew of the alleged misrepresentations so long ago that any Statute of Limitations expired. In the action against Shein Law Center, the court held that since it is alleged that Garlock did not become aware of the misrepresentation until 2013, any RICO claim is well within the statute of limitations: “Defendants argue at length ...
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Court Applies Delaware’s Borrowing Statute in Granting Defendants’ Summary Judgment on Statute of Limitations Superior Court of Delaware, New Castle, September 1, 2015

In this case, the plaintiff alleged that his lung cancer was caused by exposure to several defendants’ asbestos-containing products while he was working in Michigan. The plaintiff and his wife filed their claim in Delaware and all defendants moved for summary judgment, arguing that the action was untimely under the Delaware statute of limitations, which they claimed applied pursuant to Delaware’s “Borrowing Statute,”10 Del. C. 8121. The court agreed and granted defendants’ motions for summary judgment. The court pointed out that the parties had agreed that Delaware law would govern procedural issues and Michigan law would govern substantive issues of the case. Regarding the Borrowing Statute, the court held: “Under the Borrowing Statute’s clear and unambiguous terms, the Court must apply to such claims ‘the shorter of the Delaware statute ...
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Plaintiff’s Expert B Reader Found Qualified to Testify on Exposure and Causation U.S. District Court for the Southern District of Illinois, August 31, 2015

In this federal court case, the defendants moved to preclude the testimony of the plaintiff’s expert, Dr. Matthew Vuskovich, arguing that he was not qualified to testify, his testimony was not sufficiently reliable, and his opinions were based on the “every exposure” theory. The court denied the motion, finding Dr. Vuskovich’s credentials as a certified B Reader to be adequate. Regarding the reliability of his testimony and the “every exposure” argument, the court held: “Dr. Vuskovich does state that asbestosis is a cumulative disease, which ‘means that every exposure to asbestos contributes to the interstitial scarring in the lungs, which is asbestosis.’ He also states, ‘it is not possible to say, within a reasonable degree of medical certainty, what the threshold exposure requirement is for asbestosis.’ His opinion, however, takes ...
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Plaintiff’s Expert Found Qualified to Testify and Pump Manufacturer Denied Summary Judgment on Frequency, Regularity, and Proximity Argument U.S. District for the Southern District of Illinois, August 28, 2015

In this federal court case, the plaintiff alleges that he was exposed to asbestos while serving in the Navy from 1954 to 1958 while aboard the USS Roosevelt, USS Bremerton, and USS Intrepid. Several defendants moved to limit the trial testimony of the plaintiff’s proffered expert, Dr. Jerome Spear, arguing that his report and testimony rely on the “every exposure” theory, his opinions are based on unreliable scientific methodology, and his testimony would not assist the jury. The defendant, Ingersoll-Rand Company (“Ingersoll-Rand”), also moved for summary judgment, arguing that plaintiff’s claims are beyond the statute of limitation, the plaintiff failed to provide evidence that Ingersoll-Rand manufactured or distributed pumps with asbestos-containing components used at the plaintiff’s work sites, and the plaintiff’s proof fails to meet the “frequency, regularity, and proximity” ...
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John Crane Inc. Establishes Prima Facie Entitlement to Summary Judgment U.S. District Court for the Western District of North Carolina, Asheville Division, August 21, 2015

In this federal court case, defendant John Crane Inc. moved for summary judgment. The plaintiffs did not oppose the motion, and the court stated that it “may consider the forecast of evidence presented by the movant to be undisputed for the purposes of the present motion. See Fed. R. Civ. P. 56(e)(2).” In granting Crane summary judgment, the court held: “To prove causation in North Carolina, a plaintiff in a personal injury asbestos case ‘must present “evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.”’ Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 716 (4th Cir. 1995) (quoting Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986)). Here, the Defendant has demonstrated that the ...
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