Illinois Appellate Court Reverses Verdict Based on Defendant Being Precluded from Introducing Alternative Exposure Evidence Appellate Court of Illinois, Fourth District, July 30, 2015

In this Illinois case, the plaintiff claimed at that he was exposed to asbestos at property owned by the defendant. At trial, the defendant sought to introduce into evidence other substantial asbestos exposure at a different unrelated facility. The defendant’s argument was that the other, more substantial exposure was the sole proximate cause of the plaintiff’s asbestosis, not the minimal asbestos exposure at defendant’s facility. After a lengthy discussion of Illinois’ case law on proximate cause and burden, the appellate court decided the trial court erred in precluding the evidence of this alternative exposure, stating: “Based on our supreme court’s opinions in Leonardi and Nolan, defendant in this case did not have to prove anything. We find plaintiff’s argument defendant had no-proximate-cause defense because he had no expert witnesses disclosed ...
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Plaintiffs’ Replacement Expert’s Testimony Limited in Scope to That of Originally Disclosed Expert U.S. District Court for the Eastern District of Louisiana, July 29, 2015

In this case, the plaintiffs timely disclosed the expert report of Dr. Samuel Hammar in accordance with the case scheduling order. Subsequently, Dr. Hammar was unable to provide trial testimony due to health issues and the plaintiffs sought to replace Dr. Hammar’s report with reports from either Dr. Kraus or Dr. Kradin. The defendants did not generally oppose the request to replace Dr. Hammar, but did oppose the replacement of one expert with two and argued that the new expert’s testimony should not go outside the scope of Dr. Hammar’s review and opinions. The court agreed with the defendants and only allowed one replacement expert. The court also agreed that the replacement expert should limit the scope of the replacement testimony to that of Dr. Hammar’s report as much as ...
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Defendants Unsuccessful in Removal Effort Based on Diversity U.S. District Court for the District of New Jersey, July 28, 2015

In this New Jersey case, two defendants moved for summary judgment, motions for which were not opposed by the plaintiff. Following the dismissal of the two defendants, those remaining removed the case under 28 U.S.C. 1441(a) and 1446(b)(3) based on diversity of citizenship.  Under these sections, if a plaintiff voluntarily dismisses non-diverse parties — creating diversity of citizenship for the remaining parties — the case can be removed to federal court. In response to the plaintiff’s motion to remand, the remaining defendants argued that the decision not to oppose the two defendants’ summary judgment motions was the equivalent of a voluntary dismissal under section 1441(a). The district court disagreed and remanded the case, stating: “Plaintiff’s failure to oppose Ingersoll-Rand’s and Abex’s summary judgment motions was not a voluntary dismissal of ...
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Willful and Wanton Claim Dismissed in Asbestos Case U.S. District Court for the Eastern District of North Carolina, Western Division, July 27, 2015

In this case, the plaintiff worked as an auto mechanic and performed brake work in the 1960s and 1970s.  Defendant Genuine Auto Parts moved for summary judgment, seeking to dismiss the plaintiff’s claim for willful and wanton conduct. The plaintiff opposed the motion, essentially pointing to the general state of knowledge as to the hazards of asbestos, but failed to offer any evidence that Genuine Auto Parts consciously made a decision to sell asbestos-containing products with knowledge of the decision. The dismissal of the claim is important because it also eliminates the potential for punitive damages. The court rejected the plaintiff’s argument and offered proof, concluding that it was insufficient to establish willful and wonton conduct: “While the evidence offered may tend to show that defendant Genuine Parts was negligent, ...
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Brake Manufacturer Obtains Dismissal of Claims of Willful and Wanton Conduct U.S. District Court for the Eastern District of North Carolina, Western Division, July 27, 2015

In this federal court case, the plaintiffs alleged exposure to asbestos from a variety of automotive parts while working as mechanics’ helper, maintenance laborer, inspector, construction worker, and salesman, in addition to automotive maintenance work performed on his own personal vehicles and those of his family. The defendant, brake manufacturer Genuine Parts, moved for summary judgment to dismiss the plaintiffs’ claims that it committed false representation and fraud regarding the dangers of asbestos exposure. The plaintiffs opposed, offering among other things historical documents, an expert report, and OSHA regulations. In ruling in favor of Genuine Parts, the court held: “Here, plaintiffs have failed to introduce evidence permitting a reasonable inference that defendant Genuine Parts performed an act ‘purposely and with knowledge that such is a breach of duty to others,’ so ...
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Brake Manufacturer Obtains Dismissal of Claims of Willful and Wanton Conduct U.S. District Court for the Eastern District of North Carolina, Western Division, July 27, 2015

In this federal court case, the plaintiffs alleged exposure to asbestos from a variety of automotive parts while working as mechanics’ helper, maintenance laborer, inspector, construction worker, and salesman, in addition to automotive maintenance work performed on his own personal vehicles and those of his family. The defendant, brake manufacturer Genuine Parts, moved for summary judgment to dismiss the plaintiffs’ claims that it committed false representation and fraud regarding the dangers of asbestos exposure. The plaintiffs opposed, offering among other things historical documents, an expert report, and OSHA regulations. In ruling in favor of Genuine Parts, the court held: “Here, plaintiffs have failed to introduce evidence permitting a reasonable inference that defendant Genuine Parts performed an act ‘purposely and with knowledge that such is a breach of duty to others,’ so ...
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NYCAL Court Consolidates Some Cases But Not Others Supreme Court of New York, New York County, July 25, 2015

In this NYCAL decision, the court assessed the consolidation of five remaining cases and ended up grouping two cases into Trial Group 1, two cases into Trial Group 2, and left one case to be tried on its own. The court’s reasoning for the decision is the following: “Applying the Malcolm factors, I conclude the cases are properly consolidated into Trial Group 1 and Trial Group 2, with the Valensi case to be tried separately. Valensi is distinguishable from the other cases, as it is the only case in which take home exposure and bystander exposure from friction products are alleged. Specifically, it is alleged that Ms. Valensi was exposed to asbestos while laundering her mother’s work clothing, and while visiting her mother at her place of work, where Ms. ...
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NYCAL Court Denies Post-Verdict Disclosure of Settlement Amounts and Agreements Supreme Court of New York, New York County, July 24, 2015

In this NYCAL case, defendants Cleaver Brooks, Inc. and Burnham LLC brought post-verdict motions on a variety of issues, including disclosure of settlements for the purpose of molding the judgment. By the time the motion was heard, the remaining issues were if “plaintiffs failed to disclose settlements in a timely fashion, and, if so, whether such failure affected defendants ability to present evidence with respect to Article 16 entities, and whether defendants are entitled to disclosure of the settlement agreements, including the amounts of settlement with individual companies and bankruptcy trusts.” The court held that the defendants’ argument that the plaintiffs failed to provide them with disclosures as to claims and settlements was without merit. The court found that, with the exception to Owens-Illinois, all non-bankrupt entities were disclosed through ...
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Crane Co. Granted Summary Judgment in Two California Federal Court Cases U.S. District Court for the Southern District of California, July 23, 2015 and U.S. District Court for the Central District of California, July 21, 2015

In two separate decisions, Crane Co. was granted summary judgment on different grounds in two federal court cases. In the first, a Southern District case, Crane moved on the grounds that the plaintiffs could not show that the decedent, Michael Walashek, was exposed to asbestos from any of its products. In support of its motion, Crane relied on the plaintiffs’ interrogatory responses where they failed to identify any specific documents supporting the claimed exposure against Crane. In granting the motion, the court held that Crane had “satisfied its initial burden of production on summary judgment by showing that Plaintiffs have insufficient evidence of an essential element of their case — i.e., that Mr. Walashek was exposed to Crane Co.’s asbestos-containing product. Therefore, the burden shifts to Plaintiffs, who must produce enough ...
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Rhode Island Superior Court, Applying Ohio Law, Dismisses Claims Based on Bare Metal Defense and Statute of Repose Superior Court of Rhode Island, Providence, July 22, 2015

This case involves an interesting discussion regarding the conflict between Ohio and Rhode Island law on the bare metal defense, the sophisticated user doctrine, state of the art, the open and obvious defense, the statue of repose, joint and several liability, compensatory damages, and punitive damages. The Rhode Island court ruled that Ohio law applied to this case on those issues and proceeded to consider the defendants’ summary judgment motions under Ohio law. On the bare metal defense, the court granted summary judgment to the valve, strainer, and pumps defendants, but denied the motions of the boiler manufacturers because the insulation may have been originally supplied with the boilers. The court also ruled that the valve, strain, and pumps defendants were entitled to summary judgment based on lack of substantial ...
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