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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Court Rules on Personal Jurisdiction Issues Involving Dana Corporation Superior Court of Rhode Island, July 16, 2015

In this Rhode Island case, the court granted the plaintiff limited discovery to determine whether certain Dana companies were subject to jurisdiction in Rhode Island: “This Court finds that limited jurisdictional discovery is appropriate as to any ‘substantial’ or ‘continuous and systematic’ business contacts Dana Corporation may have had with Rhode Island. However, no additional discovery is necessary regarding Dana Holding or Dana Companies.” Read the full decision here.
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Georgia Court Dismisses Negligent Failure to Warn Claim Against Local Vendor, But Not Manufacturer Court of Appeals of Georgia, July 16, 2015

In this case, the plaintiff claimed she was exposed to asbestos through laundering her father’s clothing. There was testimony that her father worked with insulated piping manufactured by CertainTeed Corp. and supplied by a local vendor, Davis Meter and Supply Company. The lower court granted summary judgment to CertainTeed and Water Applications Distribution Group, the successor to Davis Meter and Supply, claiming that there was no duty to warn. On appeal, the Court of Appeals of Georgia held that there were factual issues regarding CertainTeed’s level of knowledge that warranted denial of its summary judgment motion: “Applying this law to the facts of [*17] this case, we conclude that whether CertainTeed had a duty to warn of the risks of its asbestos-containing water pipe remains a question for the jury ...
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North Carolina Federal Court Grants Summary Judgment U.S. District Court for the Eastern District of North Carolina, July 16, 2015

In this case, “plaintiffs allege that his condition resulted from exposure to asbestos during his employment 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 court granted JMM’s motion for summary judgment to the extent that plaintiffs alleged exposure prior to 1983 but denied with respect to any claimed exposure after 1983. This was based on JMM’S acquisition of assets of one of the Johns Manville entities with respect to the PVC pipe business. With respect to defendant Formosa, the court scrutinized a variety of theories to hold the company responsible for Johns Manville products and rejected each theory for different reasons.  This included alter ego, joint enterprise, concerted action and ...
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California Appellate Court Upholds Rejection of Lay and Expert Witness and Grants Zenith Summary Judgment in Radio Tube Asbestos Case Court of Appeal of California, Second Appellate District, July 16, 2015

The California Court of Appeal affirmed the rejection of lay witness testimony as to asbestos content: “As a lay witness, Darby could testify to his observations about the texture of the material, but not to his conclusion that it contained asbestos since a lay witness may not opine about matters not within common knowledge or experience. (Cf. McAlpin, supra, 53 Cal.3d at p. 1308 [lifeguards who recovered body from water were not qualified to express medical opinion on cause of death].) According to Savic, ‘fibrous shields, insulators and barriers made of cardboard, duroid, nomex’ and other materials that did not contain asbestos were used in Zenith products. Appellants have cited no authority for the proposition that asbestos content in materials may be identified by sight and touch alone, or that ...
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California Appellate Court Reverses $32.5 Million Punitive Damage Award Against BorgWarner, Among Other Rulings Court of Appeal of California, July 15, 2015

  In this wrongful death lawsuit, the decedent was allegedly exposed to asbestos from BorgWarner clutches while working as a security guard at a General Motors assembly plant. The case went to trial and the jury awarded various economic and noneconomic damages to the family of the decedent. During the punitive damages phase of the trial, the plaintiff’s expert testified as to the financial condition of BorgWarner over objections that he improperly considered the financial condition of other separate corporate entities. The jury unanimously awarded punitive damages of $32.5 million. On appeal, BorgWarner contended “that the $32.5 million punitive damages award to Medina’s estate cannot stand because it is unsupported by the evidentiary record.” The Court of Appeal of California agreed, stating: “In order for the jury (and the reviewing ...
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District Court Denies Plaintiffs’ Motion to Remand Case Against Airplane Manufacturer U.S. District Court for the Eastern District of Louisiana, July 14, 2015

In this federal court case, the plaintiffs allege that the decedent was exposed to asbestos while working as a civilian flight mechanic at the Belle Chasse Air Force Base from the early 1950s through 1979. The Boeing Company removed the case to federal court. The plaintiffs then moved to remand the case back to state court, arguing that the federal court lacks subject matter jurisdiction over the case since defendants do not meet the removal requirements set forth in 28 U.S.C. 1442 (a)(1). In the alternative, the plaintiffs requested that their state law claims against the other defendants be severed and remanded. The court, in denying the remand, stated, “The ‘federal officer’ should be able to have a federal court make a determination on the existence of federal subject matter ...
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