Case Remanded Based on Dismissal and Settlement of Defendants with Federal Defenses U.S. District Court for the Southern District of Illinois, October 20, 2015

This case was originally filed in the Third Judicial Circuit in Madison County. The defendant, Crane Co., removed based on the Federal Officer Removal Statute 28 U.S.C. 1442(a)(1) and defendant General Electric Company (GE) joined in. The plaintiff moved to remand the case and GE was the only defendant to oppose. Prior to the court rendering a decision, GE was dismissed from the case and Crane settled. CBS Corporation then filed a notice of joinder or removal, which the court found untimely. The court granted the remand holding: “The only basis for federal jurisdiction is the federal defense of two dismissed Defendants. No other defendant has raised the federal officer removal statute as a defense or objected to remand, the remaining claims are governed by state law and Plaintiff’s choice of ...
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Merchant Mariner Plaintiffs’ Allegations Focusing on Vessel Operation — Instead of Vessel Design — Prohibited Removal Under Federal Officer Removal Statute U.S. Court of Appeals for the Fifth Circuit, Louisiana, October 19, 2015

This is a consolidated case in which various plaintiffs alleged asbestos exposure while working as merchant mariners aboard many different vessels and employers. Each plaintiff also served on at least one Navy ship. The plaintiffs sued their former employers in Louisiana state court under the Jones Act and general maritime law. The defendants removed to federal court, and the district court remanded. The 5th Circuit held that remand was proper. The defendants argued for removal under the Federal Officer Removal Statute, in which actions against any officer of the United States may be removed. The plaintiffs alleged primarily failure to warn, failure to train, and failure to adopt procedures for the safe installation and removal of asbestos claims. Although the civilian operators of the Navy-owned vessels (Federal Officer defendants) were ...
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Jury Returns Defense Verdict for John Crane, But Awards $14 million against Celanese

On October 8, 2015, a South Carolina jury found Texas-based materials company Celanese Corp. liable in a lawsuit brought by the family of a maintenance worker who died of cancer after being exposed to asbestos at one of Celanese’s plants in the 1970s. After two weeks of trial, the jury unanimously awarded the family of Dennis Seay $12 million in compensatory damages and $2 million in punitive damages as a result of Celanese’s negligence. John Crane, the second defendant in the case and the maker of some of the asbestos-containing gaskets, was not found liable. Chris Panatier, the Seay family’s attorney, focused his argument on the fact that Celanese had total control of the safety policy on its premises. He further argued that Celanese had an obligation to review the ...
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Experts Deem New Legislation in Oregon Insufficient, Call for Stricter Asbestos Rules

On October 19, 2015, Oregon environmental regulators invited two dozen asbestos experts to a meeting in an effort to determine the best way to implement a new law that would require contractors to investigate for asbestos when demolishing a house. The group, however, went far beyond the scope of this approved legislation, determining that contractors should provide documented proof that they’ve checked for asbestos before a demolition, that asbestos work done by homeowners should no longer be exempt, and that the rule should apply to renovations in addition to demolitions. An analysis by The Oregonian/OregonLive uncovered several weaknesses in the state’s current system for controlling asbestos, leading to this discussion. The analysis provided that contractors in Portland had torn down hundreds of houses with asbestos inside from 2011 to 2014 ...
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California Jury Returns Complete Defense Verdict in Mesothelioma Claim

On October 7, 2015, the Alameda County Superior Court in California found in favor of defendant John Crane Inc. in an asbestos exposure lawsuit. The plaintiff, James Harkin, had asserted that his mesothelioma was caused by exposure to asbestos from valve packing manufactured by John Crane Inc. and brought several asbestos-related product liability claims.  He further argued that his mesothelioma additionally occurred as a result of working in the presence of Oscar E. Erickson employees while they disturbed asbestos containing materials at an oil refinery. While the jury agreed that James Harkin was exposed to asbestos from the packing products manufactured by John Crane Inc., they held that the products were not defective in that they failed to perform as safely as an ordinary consumer would expect when used in ...
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UK Parliamentary Group Declares Final War on Asbestos, Calls for Complete and Accelerated Eradication

In Britain, the All-Party Parliamentary Group on Occupational Safety and Health (“the Group”) is demanding legislation that will work to completely eliminate asbestos from buildings in the UK.  The Group wants to put regulations in place that will require the safe, phased, and planned removal of asbestos in every workplace in Britain.  It also wants asbestos reports included in all home-buyers’ surveys and a national program of asbestos surveys. In its recommendations, the Group wants to require that all commercial, public, and rented domestic premises conduct a survey done by a registered consultant that indicates whether asbestos-containing material is present and, if it is present, where it is and in what condition. It insists the survey registered with the Health and Safety Executive, and it wants this requirement completed by ...
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A Call for an Evidence Based Approach in Asbestos Lung Cancer Cases: Better Late Than Never?

My friend and colleague Laura Kingsley Hong recently authored an article entitled “Controversies Regarding The Role of Asbestos Exposure in the Causation of Lung Cancer: The Need for An Evidence Based Approach,” which appeared in Mealey’s Litigation Report. Ms. Hong’s commentary ties together current medicolegal concepts that are applied in virtually every scientifically-based litigation to longstanding but evolving scientific issues in asbestos litigation. While this is a debate that needs to happen, it raises the interesting question of why now and why not before? In other mass tort and toxic tort cases, the science usually drives the litigation at the outset. For example, in an alleged zinc toxicity MDL litigation in federal court in Miami and in the MTP litigation in Philadelphia, plaintiffs claiming injury through ingestion of zinc from ...
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Federal Court Remands Action Based on Equity Even Though Removal Was Proper on Bankruptcy Issue U.S. District Court for the Northern District of California, October 13, 2015

In this federal court case, the plaintiffs commenced an action against various defendants for the alleged asbestos exposure and development of mesothelioma for decedent, George Fenicle.  Following decedent’s death, plaintiffs amended their complaint to name Boise Cascade Company and OfficeMax (“Defendants”). The defendants subsequently removed the matter to federal court under 28 U.S.C. 1441, for putative federal question jurisdiction, and 28 U.S.C. 1452, as a bankruptcy-related action. The plaintiffs moved to remand, arguing removal was improper since the defendants did not seek approval from all defendants prior to the removal, the matter was not a bankruptcy matter under 28 U.S.C. 1452 and for equitable grounds pursuant to 1452(b). The court granted the remand. On the issue of a federal question, the court applied “the Grable factors: that a federal question ...
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Claim Representatives For Filing Bankruptcy Trust Claims Have No Standing To Sue Bankruptcy Trusts For Suspending Claims U.S. Court of Appeals for the Third Circuit, October 15, 2015

Plaintiff Mandelbrot Law Firm specialized in preparing and filing asbestos personal injury claims  to various bankruptcy trusts. In 2002, one such trust, the Delaware Trusts, suspended all payment of claims from claimants who the plaintiff represented, due to proceedings in California regarding allegedly fraudulent claims filed by the plaintiff.  The plaintiff then filed this declaratory judgment, arguing that this decision was unauthorized and in violation of the Trusts’ distribution procedures, and that he lost fees. The district court granted defendants’ motion to dismiss for lack of subject matter jurisdiction, and the 3rd Circuit affirmed. The 3rd Circuit agreed with the district court that plaintiff lacked standing. Only claimants themselves, not their representatives, have standing to assert claims against the trust. “In other words, ‘no one except a beneficiary or one ...
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The High Court Down Under Allows Earlier Cause of Action Accrual in Lawsuits Claiming Inevitable Onset of Mesothelioma

On October 7, 2015, the High Court of Australia dismissed the appeal of a negligent employer and held that where the contraction of mesothelioma was an inevitable result of asbestos exposure, the cause of action accrues shortly after the initial exposure as opposed to when the symptoms manifest. This ruling came from a case in which the plaintiff inhaled asbestos fibers in the course of his employment. The plaintiff’s mesothelial cells changed quickly after the initial exposure, but the symptoms were not apparent until 2013 or 2014.  In order to bring this cause of action under the Northern Territory Workers Rehabilitation and Compensation Act 1986, the cause of action must have accrued before January 1, 1987. Otherwise, the claim would be statute-barred. In agreeing with the Court of Appeals, the High ...
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