Zadroga Bill Passes, Provides Financial Support for Veterans with Mesothelioma and 9/11 First Responders

Congress has approved two programs that will provide financial support for those who were sickened following the terrorist attacks on 9/11 on the World Trade Center and those veterans who have been diagnosed with mesothelioma as a result exposure to asbestos during their service. The funding bill is valued at $1.1 trillion and has been enacted as the “James Zadroga 9/11 Health and Compensation Reauthorization Act.”  The funding provided by the bill will be available for the next 75 years, giving the illness plenty of time to make itself apparent.    
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Multiple Factors and Causation in Cancer Litigation: Examples from a Coal Tar Pitch Bladder Cancer Case

How many external sources have a role in cancer causation? And to what extent can scientists and lawyers parse these factors in today’s age of molecular investigation of cancers? For purposes of analysis, this post looks at a hypothetical bladder cancer case in which there are assertions regarding smoking, asbestosis, and occupational coal tar pitch exposure in the context of manufacturing of carbon graphite electrodes. Assume that the plaintiff’s industrial hygiene expert asserts that the bladder cancer was caused by polycyclic aromatic hydrocarbons (PAHs) occurring as a vapor and inhaled from the air and re-suspended into the air from settled coal dust. Assume that one PAH in particular (benzol(a)pyrene (BaP)) has been singled out by the plaintiff as causally related to various cancers, including bladder cancer, in humans. Bladder Cancer ...
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After Defendant Files Second Asbestos-Injury Claim, Federal Court Grants Defendant’s Motion to Dismiss Plaintiff CSX’s Declaratory Judgment Action for Lack of Jurisdiction U.S. District Court for the Northern District of West Virginia, December 29, 2015

Plaintiff CSX Transportation asserted a claim for declaratory relief, after the defendant filed an injury claim for lung cancer, which he claimed was asbestos-related. The defendant had settled a claim against CSX for an asbestos-related injury in 2003, and under the 2003 settlement agreement, he allegedly released CSX from future claims involving asbestos and cancer. The agreement included an indemnity provision, which CSX invoked in requesting defendant to indemnify it for the 2015 state court action. The agreement also released CSX from all claims which might form the basis of any action under the Federal Employers’ Liability Act (FELA).  The defendant filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim, which the court granted. Although CSX invoked the Declaratory Judgment Act for ...
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Case Against Crane Remanded to State Court Based on Lack of Evidence of the Exercise of Government Discretion Under the Federal Officer Removal Statute U.S. District Court for the Eastern District of Louisiana, December 23, 2015

In this case, the plaintiff alleged asbestos exposure from various sources, including from his time aboard Naval vessels during the Korean War. Defendant Crane removed the case to federal court pursuant to 28 U.S.C.1442(a)(1), the federal officer removal statute.  The plaintiff moved to remand the case, arguing that Crane did not meet the standard to remove under the statute. In opposition to the remand, Crane submitted a 2011 affidavit from one of its officers stating that “the manufacture of equipment for use on Navy vessels was governed by an extensive set of federal standards and specifications, which would have governed all aspects of design, including materials and warnings.”  However, the officer did not explain the basis for those facts. Crane also submitted the affidavit of a retired Rear Admiral that ...
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Statute of Repose Doesn’t Apply in Reversal of Summary Judgment as Evidence Regarding Work Deemed Insufficient to Show an Improvement to Property Court of Appeals of Wisconsin, District One, December 22, 2015

In this case, the plaintiff, Sandra Brezonick, alleged that the decedent, John Brezonick, was exposed to asbestos at various sites while working as a steamfitter in the Milwaukee area between 1966 and 2000. The plaintiff’s complaint alleged product liability, negligence and safe place statute claims under Wis. Stat. § 101.11 against numerous defendants.  The defendants included property owners Pabst Brewing Company, Miller Brewing Company and Wisconsin Electric Power Company (WEPCO) — where asbestos was allegedly used — and insulation contractor Sprinkmann Sons Corporation, which allegedly used and supplied asbestos-containing materials.  The defendants’ motions for summary judgment were granted by the lower circuit court based on the arguments raised on the construction statute of repose under Wis. Stat. 893.89. The Court of Appeals, in evaluating the motions under the statute of ...
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Turbine Manufacturer Entitled to Summary Judgment Under Both Maritime Law and New Jersey State Law U.S. District Court for the District of New Jersey, December 22, 2015

The plaintiff in this case,  Samuel Feaster, alleged exposure to asbestos while employed at a shipyards in New Jersey and  Pennsylvania. Defendant General Electric Company (GE) moved for summary judgment based on maritime law arguing that there was no evidence that the plaintiff was exposed to asbestos from a product manufactured or supplied by them. The court applied maritime law and granted GE’s motion. The court stated that under maritime law, the plaintiff must show that he was exposed to the defendant’s products and the product was a substantial factor in causing his injury. As the court held: “Here, Plaintiff’s claims against GE fail because there is no evidence in the record establishing that GE manufactured or distributed the asbestos-containing product to which exposure is alleged. Simply put, the record establishes that Plaintiff ...
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Strict Product Liability Claim Reinstated Against Plastering Contractor for Construction Work on Building Complex in 1970s Court of Appeals of California Second Appellate District Division Four, December 22, 2015

In this case, the plaintiff, Joel Hernandezcueva, alleged he was exposed to asbestos while working as a janitor in the Fluor complex in the 1990s. It was alleged that defendant E.F. Brady was a subcontractor doing drywall and plastering work with asbestos-containing materials manufactured by Kaiser and Hamilton during the construction of the complex in the 1970s. During trial and following completion of the plaintiff’s case in chief, Brady’s motion for partial nonsuit dismissing the plaintiff’s claims of strict liability, misrepresentation, and intentional failure to warn was granted. This was based on Brady’s evidence that the uniform building code did not prohibit the use of drywall and joint compound that contained asbestos and testimony that asbestos-containing plastering products were not a raised topic of concern with contractors in California until ...
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New York Federal Court Grants Auto Repair Parts Defendants’ Motion to Transfer Case to Florida Federal Court United States District Court for the Southern District of New York, December 21, 2015

In this federal case, the plaintiff brought an action against defendants BASF Catalysts LLC, Superior Materials, Inc. and Whittaker, Clark & Daniels, Inc. for the asbestos exposure and death of her husband, Pedro Rosado-Rivera. The plaintiff alleges that each defendant sold an asbestos-containing auto body repair filler that the decedent worked with at auto shops in New York, Puerto Rico, and Florida.  The defendants moved to transfer the case to The United States District Court for the Middle District of Florida. The court granted the transfer finding that the action could have been brought in the transferee court at the time of filing and that the transfer would be an appropriate exercise of the court’s discretion. In making its decision, the court looked at several factors: “1) the convenience of ...
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Pump Manufacturers Had a Duty to Warn Even Though Decedent Never Exposed to Original Pump Gaskets and Packing Maryland Court of Appeals, December 18, 2015

The plaintiff, a widow, brought claims against pump manufacturers Air & Liquid Systems, Warren Pumps, and IMO Industries (defendants) for asbestos exposure sustained by her deceased husband while serving in the Navy for 20 years, from 1956 until 1976. The decedent died of mesothelioma. The defendants moved for summary judgment, arguing that they had no duty to warn of asbestos-containing replacement parts that they neither made nor placed in the stream of commerce. The circuit court granted this motion, the Court of Special Appeals affirmed, and the Maryland Court of Appeals reversed. In accordance with Navy specifications these pumps contained asbestos gaskets and packing when the pumps were first delivered to the Navy. The decedent worked in the engine room, and consulted the instruction manuals when servicing equipment; the manuals ...
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Post-Trial Motion for Additur Granted, Increasing Mesothelioma Pain and Suffering Damages Supreme Court of New York, December 18, 2015

The plaintiff’s decedent, Richard Voelker, was diagnosed with and died from mesothelioma. A personal injury action was pursued and resulted in a verdict awarding the Estate various damages, including a pain and suffering award of $250,000. The plaintiff filed a post-trial motion for additur arguing that the jury’s award for pain and suffering was inadequate compensation for Mr. Voelker’s “extraordinarily horrific” suffering. The court granted the motion, increasing the pain and suffering award to $600,000. The court cited to the plaintiff’s video trial testimony and various medical evidence showing that Mr. Voelker had undergone a lengthy, and painful surgery with complications and two chemotherapy treatments both resulting in lengthy hospitalizations for complications. In describing the evidence, the court stated that “this undisputed evidence shows the rapid deterioration of a 65-year-old ...
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