Wife’s Testimony on Decedent’s Use of Brake Product and Expert Causation Testimony Held Sufficient to Defeat Summary Judgment U.S. District Court for the Southern District of Illinois, October 2, 2015

In this federal court case, decedent Richard Bell alleged exposure to asbestos while performing car maintenance from 1964 through the late 1970s. Defendant Honeywell, as successor of Bendix, moved for summary judgment, arguing that the decedent’s wife’s deposition testimony that the decedent used Bendix brakes with the word “asbestos” on the packaging was hearsay; that the testimony could not be used against it to oppose summary judgment since it was taken prior to Honeywell becoming a party; and that the plaintiff failed to show the exposure was a substantial factor in causing the decedent’s asbestosis and lung cancer. The court denied the motion. On the hearsay issue, the court held that the decedent’s wife’s testimony “…is not a ‘statement’ as defined by the hearsay rule. Her testimony recounts her memory ...
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Asbestos Firm Ordered to Turn Over Client Information in Garlock RICO Case

U.S. District Judge Graham Mullen affirmed a previous judge’s refusal to quash subpoenas issued by Garlock Sealing Technologies to 29 law firms, including Baron & Budd, Brayton Purcell, and Williams Kherker Hart Boundas. Garlock argued that the client records sought from these firms could help establish a pattern of racketeering by Belluck & Fox.  Though Judge Mullen agreed with Belluck & Fox’s assertion that the discovery requests were broad, he noted, “[y]et, so is the fraud in which Plaintiffs are alleged to have engaged.” In addition to Belluck & Fox, Garlock currently has Racketeer Influenced and Corrupt Organizations (“RICO”) lawsuits against Simon Greenstone of Dallas, Stanley-Iola of Dallas, Shein Law Center of Philadelphia, and Waters & Kraus of Dallas.  These suits were filed just days before a landmark ruling in ...
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Philadelphia Federal Judge Puts Hold on a Dozen Asbestos Claims by Formerly Bankrupt Plaintiffs U.S. District Court for the Eastern District of Pennsylvania, October 6, 2015

On Tuesday, October 6, 2015, U.S. District Judge Eduardo Robreno ordered a stay on a dozen nearly-identical asbestos claims brought by plaintiffs who had previously sought bankruptcy protection. Judge Robreno stated in all of them that the plaintiffs’ trustees must be given the choice of either pursuing or abandoning the claims. In one such case, the plaintiff was a ship worker who had filed an asbestos claim in 2001, followed by a bankruptcy action in 2003. His claim, however, was not included as part of his estate. The ship owner defendant requested that Judge Robreno dismiss the case entirely, arguing that the plaintiff had acted in bad faith by not disclosing his asbestos claim when he filed for bankruptcy. In refusing to dismiss entirely, Judge Robreno explained that the claim ...
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Supreme Court of Pennsylvania Denies Constitutionality Appeal of Asbestos-Related Liability Regulatory Statute Superior Court of Pennsylvania, Philadelphia, September 29, 2015

On September 29, 2015, the Supreme Court of Pennsylvania denied the appeal of the executor of the estate of James Markovsky.  Markovsky, who had argued that a statute regulating asbestos-related liability should be found unconstitutional, had petitioned for appeal after the Superior Court of Pennsylvania affirmed a grant of summary judgment in favor of Crown Cork & Seal Co. Originally, on October 6, 2011, Markovsky filed a complaint against Crown alleging that he contracted mesothelioma as a result of exposure to the asbestos products of Mundet, Crown’s predecessor-in-interest.  More specifically, Markovsky alleged “he was exposed to asbestos fiber or asbestos products manufactured, sold, distributed, or otherwise placed into the stream of commerce by [Crown].” Accordingly, Crown moved for summary judgment under 15 Pa.C.S. § 1929.1, limitations on asbestos-related liabilities relating ...
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Pittsburgh Jury Returns Defense Verdict in Secondary Exposure Friction Case

Plaintiff Larry English commenced this wrongful death mesothelioma case by claiming that his wife, Sherry English, was exposed to asbestos on Mr. English’s clothing. Mr. English, who worked for a variety of Ford dealerships between 1968 and 2011, worked with gaskets, brakes, and clutches. His claim is that the asbestos from these products remained on his clothing when he went home, allegedly exposing Mrs. English to asbestos. The plaintiff also claimed exposure to joint compound in connection with work in the home. Mrs. English was diagnosed with mesothelioma and died in 2012 at the age of 63.  Ford’s primary defense was that exposure to automotive asbestos products did not place Mrs. English at any increased risk of developing mesothelioma. On October 1, 2015, a Pittsburgh jury returned a defense verdict ...
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Federal Court Grants and Denies Various Summary Judgment Motions, Based on Maritime and Civil Law U.S. District Court for the Southern District of Indiana, Indianapolis Division, September 30, 2015

Defendants Crown Cork & Seal, CBS Corporation, General Electric, Crane Co., Gardner Denver, John Crane, Link-Belt Construction Equipment, and Riley Power filed motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. The case had been removed to federal court pursuant to the Federal Officer Removal Statue. The plaintiff alleged he developed pleural mesothelioma due to asbestos exposure during Naval service and while employed by Louisville Gas & Electric. Many other defendants moved for summary judgment on other grounds; this case addressed those filed by the defendants listed above. The court granted the defendants’ summary judgment motions for claims related to the plaintiff’s work at Louisville Gas. The court had different rulings for the plaintiff’s maritime claims. The plaintiff served on the USS Franklin D. Roosevelt, an aircraft ...
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Court Applies Admiralty Jurisdiction to Grant Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction U.S. District Court for the District of Connecticut, September 30, 2015

The plaintiff brought a claim under the Federal Tort Claims Act (FTCA) alleging asbestos exposure while a crew member on two tugboats the Navy leased to his employer, General Dynamics Corporation. The plaintiff also brought a products liability claim under Connecticut law, and his wife brought a loss of consortium claim. The defendant moved to dismiss for lack of jurisdiction under the FTCA, because the lawsuit sounds in admiralty, for which a suit under the Suits in Admiralty Act (SIAA) or the Public Vessels Act is the exclusive civil remedy. The defendant also moved to dismiss under the two year statute of limitations. The court granted the motion to dismiss for lack of subject matter jurisdiction. The case satisfied both tests for application of admiralty jurisdiction over a tort claim. ...
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NYCAL Court Rules a Plumber Dismantling a Sectional Boiler Was a Foreseeable User of That Product Supreme Court of New York, New York County, September 25, 2015

In this NYCAL mesothelioma case, the plaintiff worked as a plumber from 1984-1996, disassembling plumbing equipment including Cleaver Brooks cast iron sectional boilers.  Cleaver Brooks initially moved for summary judgment on the grounds that a plumber such as the plaintiff was not a foreseeable user of the product, which the lower court denied. The Appellate Division then issued a decision in Hockler v William Powell Co., 129 AD3d 463 (1st Dept. 2015), holding that a salvaging and dismantling valve was not a foreseeable use of that product, which prompted Cleaver Brooks to renew its summary judgment motion. NYCAL denied Cleaver Brooks’ motion again, distinguishing the Hockler decision: “Mr. Smith’s work was not so analogous to Mr. Hockler’s work as to make the Hockler decision controlling here. Mr. Smith was a ...
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Court Denies Certification of Interlocutory Appeals on Personal Jurisdictional Grounds in Two Delaware Cases Superior Court of Delaware, New Castle, September 24, 2015

In these two cases from Delaware, the defendants’ motions to dismiss based on personal jurisdiction were denied. Defendants subsequently sought certification of their interlocutory appeals pursuant to Del. Sup. Ct. 42. The court denied defendants’ applications in both cases, pointing to the “substantial issue of material importance” prong of the Rule 42 requirements.  The court stated that the Delaware Supreme Court has repeatedly held that denial of a motion to dismiss for lack of personal jurisdiction does not determine a “substantial issue.” In both cases, the court went on to state “interlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources. This case is not exceptional. And so the Court must refuse to ...
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Applying Maritime Law, Federal Court Grants Summary Judgment, Refusing to Speculate on Decedent’s Exposure to Pump Defendant’s Products While in the Navy U.S. District Court for the District of New Jersey, September 29, 2015

Plaintiff Josephine Fuoco, as executrix of the estate of Joseph Fuoco, alleged that Mr. Fuoco contracted mesothelioma while serving in the U.S. Navy as a machinists’ mate and as a construction worker. Defendant Warren Pumps moved for summary judgment, which the court granted. Warren did not dispute that its circulating pumps were on the USS Ammen, the ship on which Mr. Fuoco served. However, no fact witness offered testimony regarding Mr. Fuoco’s alleged asbestos exposure on board this shop. Warren was added to the case after the plaintiff received documents indicating that Warren pumps were used on board the USS Ammen in connection with Westinghouse turbines. The plaintiff argued Mr. Fuoco was exposed, because her expert report from a U.S. Navy Captain detailed overhaul and maintenance procedures that should have ...
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