Defendants Successfully Argue to Apply More Favorable Tennessee Laws Limiting Damages in Rhode Island Asbestos Case Superior Court of Rhode Island, Providence, March 5, 2015

In this case, the plaintiff worked and lived in the state of Tennessee for his entire life, with the exception of one year living in Maryland while working at Bethlehem Steel. The majority of his asbestos exposure occurred in Tennessee, which is also where he was diagnosed and treated for mesothelioma. The court had previously granted the motions of various defendants to apply Tennessee law. In the instant motion, defendants asked the court to take judicial notice of four areas of the law where that they contended Tennessee should apply: modified comparative fault; statutory cap on damages; “nonparty defense”; and  “innocent retailer statute.” The nonparty defense allows the trier of fact to allocate fault to a nonparty to the suit, including an immune third party or settled party. The innocent retailer statute states that a ...
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Applying Admiralty Law, Court Grants Summary Judgment for Lack of Proof That Product Contained Asbestos U.S. District of Washington, Western District of Washington, March 3, 2015

In this case, the plaintiff claimed that the decedent, Alan McMann, was exposed to asbestos-containing non-skid materials as a bystander that were applied to the deck of the USS Firedrake. Defendant SB Decking, the alleged manufacturer of the non-skid material, moved for summary judgment on the ground that plaintiff did not prove that the non-skid material applied in the decedent’s presence actually contained asbestos. The court initially analyzed the locality and connections tests, concluding that Admiralty Law applied. On the causation issue, the court concluded that while there may have been asbestos-containing non-skid material applied to different parts of the ship, there was no evidence that the decedent was present when that material was applied or that the material actually applied in his presence also contained asbestos. The court reasoned: ...
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Grant of Summary Judgment to Defendant Reversed Under the Jones Act and Maritime Law Superior Court of New Jersey, Appellate Division, March 3, 2015

In this case, the plaintiff claimed that the decedent was exposed to asbestos-containing insulation and winch brakes aboard various dredges and commercial vessels on which he worked over the years. “[P]laintiff asserted a Jones Act negligence claim under 46 U.S.C.A. § 30104 and a general maritime unseaworthiness claim under 28 U.S.C.A. § 1333.” The defendants, Weeks Marine, Inc. and American Atlantic Company, moved for summary judgment on the ground that the plaintiff did not establish that he was exposed to asbestos aboard these vessels. The lower court agreed and granted summary judgment, summarized by the appellate division as follows: “With respect to plaintiff’s negligence claims, the judge found that plaintiff was unable to ‘establish a reasonable inference that asbestos was actually present on the vessels he worked on or that ...
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Under Maritime Law, Expert Opinion on Likelihood of Exposure to Original Asbestos Alone Still Insufficient to Establish Causal Connection U.S. District Court, Western District of Washington, March 2, 2015

In this case, the defendant, Lockheed, moved for reconsideration of the prior decision from the U.S. District Court for the Western District of Washington that there was sufficient evidence establishing a causal link between original asbestos allegedly installed by Lockheed and decedent John McCrossin’s asbestos exposure. In accordance with five decisions out of the Eastern District of Pennsylvania, the court recognized that under maritime law an expert affidavit alone of likely exposure to original asbestos is insufficient to establish a causal connection. However, the court went on to also hold that circumstantial evidence, in addition to an expert affidavit, is sufficient: “Here, the plaintiff relies on more than just Captain Burger’s testimony to show that Mr. McCrossin was exposed to asbestos installed by Lockheed. First, the plaintiff relies also on ...
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Court Remanded Case, Finding No Colorable Federal Contractor Defense U.S. District Court, District of Maryland, February 24, 2015

In this mesothelioma case, the plaintiff brought suit in Maryland State Court claiming exposure to asbestos products while working at a Baltimore shipyard, which then resulted in some of the defendants removing the case to federal court pursuant to 28 U.S.C. 1442(a)(1) alleging a federal contractor defense. The plaintiff moved to remand, claiming that the removing defendants did not meet their burden of meeting the three-prong test for asserting a colorable federal contractor defense. The district court agreed that the defendants did not meet their burden: “Even broadly construing the right of removal under the federal officer removal statute, Kolibash, 872 F.2d at 576, the defendants have not raised a colorable federal defense to the plaintiffs’ failure to warn claims, see McCurdy v. John Crane-Houdaille, Inc., No. CIV. WDQ-07-2681, 2013 WL 3155445, ...
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Possible Exposure to Brake Products Held Insufficient to Defeat Summary Judgment U.S. District Cour, Eastern District of Louisiana, February 24, 2015

In this wrongful death case, the plaintiff alleged that his father, decedent Fredrick Laurent, was exposed to asbestos from several different jobs, including while working for the City of New Orleans’ brake tag station from 1958 to 1986. Various motor vehicle manufacturing defendants moved for summary judgment on two grounds: 1) the plaintiff could only offer the possibility that decedent, who died prior to testifying, was exposed to asbestos from their products; and 2) the plaintiff’s claim fails the Louisiana “substantial factor” test because any exposure to defendants’ products could only constitute a trivial factor in the development of decedent’s disease. In granting defendants summary judgment, the Court held : “Although plaintiff’s opposition insists that ‘the evidence strongly shows the defendants’ vehicles did pass through the brake tag station,’ plaintiff ...
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Superseding Cause, Strict Liability, and Government Contractor Defense Analyzed in Motion for Summary Judgment U.S. District Court for the Western District of Washington, February 23, 2015

The plaintiff in this Washington federal court case alleged that the decedent, John McCrossin, was exposed to asbestos from a variety of products, including boilers, while serving in the Navy.  Defendant Fraser’s, which maintained that it only assembled boilers, moved for summary judgment raising superseding cause, strict liability, and government contractor arguments. The court found an issue of fact on all of the arguments and denied summary judgment. On the superseding cause, defense the court held: “In sum, Fraser’s has presented no evidence that, if uncontroverted at trial, would show that the Navy, in fact, failed to protect Mr. McCrossin from any asbestos dangers. Even if the Navy was negligent, however, a genuine issue of material fact exists as to whether the Navy’s negligence was reasonably foreseeable. To the extent ...
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Dismissal of Asbestos Claims for Lack of Causation Under Connecticut and Maritime Law U.S. District Court for the District of Connecticut, February 19, 2015

In this case, the plaintiff presented an affidavit of decedent attesting to asbestos exposure, a death certificate confirming the mesothelioma, and co-worker depositions showing that the decedent was generally exposed to asbestos at the Groton Connecticut shipyard while overhauling nuclear submarines. Several defendants moved for summary judgment on the ground that while the plaintiff established the decedent’s exposure to asbestos during his career, there was no evidence that causally connected any of that exposure to any of the particular defendants. The court initially ruled that it need not decide whether Connecticut or Maritime law applied because under either standard the plaintiff did not meet the evidentiary burden of linking a specific manufacturer’s product to decedent’s the exposure. The Court stated: “The plaintiffs have not, however, demonstrated that the defendants manufactured ...
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Industrial Hygienist William Dyson’s Dose Reconstruction Methodology for Assessing Levels of Asbestos Exposure Found Scientifically Reliable Under Daubert U.S. District Court for the Eastern District of Louisiana, February 11, 2015

The plaintiff in this Louisiana federal court case alleged that decedent pipefitter was exposed to asbestos while at various locations during his career, including a one-to-two-week period at Union Carbide. Union Carbide offered the expert testimony of industrial hygienist Dr. William Dyson to perform a dose reconstruction assessment of the decedent’s level of asbestos exposure throughout his life and specifically during the one-to-two-week period at Union Carbide. The plaintiff moved to preclude Dr. Dyson’s opinion under Federal Rule of Evidence 702 and Daubert principles. In ruling that Dr. Dyson’s methodology was scientifically reliable and permitting him to testify, the court stated: “Plaintiff generally challenges the reliability of Dr. Dyson’s testimony. After reviewing Union Carbide’s opposition, the Court nevertheless believes dose reconstruction assessment methodologies to be sufficiently established and accepted to withstand the Daubert analysis. ...
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California Applies Higher Texas Standard on Causation and Dismisses Asbestos Case California Court of Appeals, February 10, 2015

In this California state case, the plaintiff, a Texas resident, claimed asbestos exposure in both California and Texas, although the particular claimed exposure against certain defendants was in Texas. These defendants moved for summary judgment, claiming that under Texas law, the plaintiff was unable to meet the legal standard of causation. Both the lower and appellate courts in California, under choice of law principles, ruled that Texas law applied and, under the higher causation standard in Texas, granted summary judgment. With respect to Texas law on causation, the California court stated that “‘in the absence of direct proof of causation, establishing causation in fact against a defendant in an asbestos-related disease case requires scientifically reliable proof that the plaintiff’s exposure to the defendant’s product more than doubled his risk of contracting the ...
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