Mixed Ruling on Brake Defendant’s Motion in Limine on Expert Testimony Regarding Corporate Conduct U.S. District Court for the Eastern District of North Carolina, May 29, 2015

In this federal court action, it is alleged that the plaintiff, Graham Yates, was exposed to asbestos brake products while working as a gas station attendant from 1956-1957, as a parts salesman and delivery driver for a Ford dealership in the 1960s, as a clerk in an automobile parts warehouse from 1961-1962, and from working on his own vehicles in the 1950s and 1960s. The defendant, Ford, brought a motion in limine to exclude expert testimony regarding corporate conduct. The court provided a lengthy analysis on each issue challenged on the expected testimony of the plaintiffs’ expert witnesses, pathologist Eugene Mark, M.D., and engineer and industrial hygienist Steve Hays. The court allowed the experts to offer testimony as to the state of medical and scientific knowledge about asbestos hazards and prevention of ...
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Several Automotive Parts Manufacturers and Tractor Manufacturer Granted Summary Judgment on Various Grounds U.S. District Court for the Western District of Louisiana, Lake Charles Division, May 28, 2015

The plaintiffs in this federal court case alleged that the decedent, Douglas Hayes, died from mesothelioma as a result of his exposure to asbestos “while living on the family farm in the following ways: (1) secondary exposure from father’s clothing from birth to the late 1960s, (2) while working on three Case [CNH] tractors, (3) and by being exposed to asbestos containing products such as gaskets, packing, valves and pumps. Mr. Hayes also alleges that he was exposed to asbestos from other products either manufactured or supplied by co-defendants, Ford Motor Company, Toyota Motor Sales and Honeywell International (successor-in-interest to Bendix Corporation) while working as a salesman at the Bubba Oustalet Dealership (‘dealership’) from 1993 through early 2000.” In multiple decisions, the motions for summary judgment by the defendants Ford ...
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Federal Court Remands Two Cases with Nexus to Naval Asbestos Exposure to State Court U.S. District Court for the Eastern District of Louisiana, May 20-21, 2015

In both of the following cases, the federal court remanded the actions back to state court. In the first action, the plaintiffs, the adult children of the decedent, alleged their father was exposed to asbestos while serving in the Navy as a boiler technician from 1960 to 1988. Several defendants moved to remove the case to federal court at the same time that the plaintiffs moved to amend their complaint, seeking to disclaim any claim regarding design-defect or strict-liability where defendants’ actions were compelled by, or at the direction, of a federal officer. The court did not agree with the defendants’ argument that the plaintiffs’ disclaimer was ineffective because it was not in the petition at the time of removal. The court relied on the decision in Sheppard v. Northrop Grumman ...
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Granting of Summary Judgment to Defendant Shipping Companies Overturned in Maritime Action, Based on Negligence Standard in Jones Act Superior Court of Pennsylvania, May 18, 2015

In this case brought under the Jones Act, 46 U.S.C.A. 30104, the decedent, Earl Criswell, was allegedly exposed to asbestos during his time as a Merchant Marine aboard various defendants’ vessels. The appellees, Atlantic Richfield Company and Sunoco, Inc. were both granted summary judgment. The plaintiff appealed, arguing that the lower court failed to view the evidence in the light most favorable to the non-moving party and applied the wrong standard for negligence under the Jones Act. The appellate court agreed with the plaintiff’s arguments and overturned the granting of summary judgment to both defendants. Before ruling on the issues at hand, the superior court set forth how the commonwealth has concurrent jurisdiction with federal courts to try actions brought under the Jones Act. The appellate court then went on to disagree ...
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NYCAL Court Reduces $20 Million Verdict to $6 Million Against Boiler Manufacturer, But Denies Other Post-Trial Motions NYCAL, May 15, 2015

In this NYCAL case, the plaintiff’s decedent, Charles Hillyer, allegedly developed mesothelioma from asbestos exposure during his work as a steamfitter between 1960 and 1983. At the time of trial, there were three remaining defendants: Burnham; Cleaver Brooks, Inc.; and William Powell Company. Cleaver Brooks settled during the trial and William Powell obtained a voluntary discontinuance from the plaintiff prior to jury deliberations. After trial, the jury rendered a verdict against Burnham in the amount of $20 million for past pain and suffering and allocated 30 percent liability to Burnham, 30 percent to Cleaver Brooks, and 40 percent to William Powell. The jury also found Burnham reckless in its failure to warn. Post-trial, Burnham made multiple arguments that it was entitled to a directed verdict or a new trial since (1) the plaintiff failed ...
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In Wisconsin: Single Fiber Theory on Causation Held Scientifically Unreliable; Longo Precluded; Castleman Opinion Partially Precluded U.S. District Court for the Western District of Wisconsin, May 14, 2015

In two asbestos cases, Owens Illinois, Inc. sought to exclude an opinion by the plaintiffs’ experts that “any exposure to asbestos, no matter how slight, remote or insignificant, is a cause or substantial contributing factor in causing Plaintiffs’ diseases.” The company also sought to exclude the testimony and testing of William Longo under FRE 702. The plaintiffs did not substantively oppose these motions and the court granted them without opposition. With respect to the plaintiffs’ “state of the art expert,”  Barry Castleman, Owens Illinois sought to exclude him on the grounds he is not qualified to discuss certain historical literature. The plaintiffs agreed to narrow Castleman’s testimony to be consistent with a recent decision, which states as follows: “Dr. Castleman will be permitted to testify as a ‘state of the art’ ...
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In an Extensive Decision, Court Excludes Many Post-Exposure Pieces of Evidence Against Brake Defendants U.S. District Court for the Eastern District of North Carolina, Western Division May 11, 2015

The plaintiff commenced this action alleging exposure to asbestos as a brake mechanic at various locations, with his last claimed exposure to Ford brakes in 1960 and Bendix brakes in 1962. In a pretrial motion in limine, defendants Ford and Honeywell sought to exclude all different types of post-exposure evidence the plaintiff sought to introduce at trial. The court issued a lengthy decision addressing many different issues. Here are some of the highlights: As to whether post-exposure evidence generally is relevant under FRE 401 and 402, the court held that this evidence may be relevant on four grounds: “1) showing what defendants knew or should have known regarding the dangers of their products (as limited to knowledge prior to plaintiff Graham Yates’s exposures); 2) showing the feasibility of precautionary measures; 3) impeaching defendants’ contentions regarding ...
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NYCAL Court Consolidates Nine Cases Into Three Groups Based on Malcolm Factors and Common Questions of Law and Fact NYCAL, April 29, 2015

In this NYCAL case, the plaintiff brought a motion to consolidate nine asbestos actions for joint trial, claiming that there are common questions of law and fact. The court relied on the factors set forth in Malcolm v. National Gypsum Co., 995 F.2d 346, 350-351 (2d Cir. 1993): common worksite;  similar occupation;  similar time of exposure; type of disease; whether plaintiffs were living or deceased; status of discovery in each case;  whether all plaintiffs were represented by the same counsel; and type of cancer alleged. The court granted the plaintiff’s application and divided the cases into three separate groups. As the court held: “[T]his court finds that the trials in each of the groups involve common questions of law and fact and that consolidation of these cases into the three groups ...
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Question of Fact Found Regarding if Asbestos Insulation Supplied by Company Was for Improvement of Real Property as Required Under Wisconsin Statute of Repose Court of Appeals of Wisconsin, District One, April 28, 2015

In this case, the plaintiff, Robin Sorenson, filed strict product liability and negligence claims on behalf of herself and the estate of the decedent who worked as an insulator from 1955 to 1997 and died of lung cancer in 2009. One of the defendants, Building Services Industrial Sales, Inc. (BSIS), a supplier of asbestos insulation to the decedent’s employers, moved for — and was granted — summary judgment on the Wisconsin statute of repose, WIS. STAT. § 893.89(2) (2013-14). The plaintiff appealed, arguing that material issues of fact existed regarding whether BSIS was “involved in the improvement of real property” as required under the statute. After reviewing the record, the court granted the plaintiff’s appeal, stating: “We remand this case back to the circuit court for trial on Sorenson’s claims related ...
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Federal Procedural Law Applied Over State Law in Summary Judgment Motions Brought by Manufacturers of Safety Mask and Aircraft Component Parts in Naval Exposure Case U.S. District Court for the Middle District of Florida, Jacksonville Division, April 27, 2015

In this federal court case that was removed from Florida state court, the plaintiff, Darryl Dugas, and his wife filed a second amended complaint alleging four causes of action regarding their claim that Mr. Dugas developed mesothelioma from his work as an aircraft structural mechanic with the U.S. Navy between 1967 and 1971. The four causes of action were: negligence, strict liability, fraudulent concealment, and loss of consortium. Several defendants moved to dismiss all or a portion of the amended complaint, arguing it failed to state a claim upon which relief can be granted, and failed to plead the fraudulent concealment claim with the required amount of specificity. The federal court applied federal procedure law over the conflicting Florida state statute requiring heighted pleading requirements. As held by the court: “Florida’s heightened pleading requirement ...
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