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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Railroad Companies Awarded Dismissals for Plaintiffs’ Failure to Properly Plead Successor-In-Interest Liability Superior Court of Delaware, New Castle, July 13, 2015

In these actions, plaintiffs Dennis Franco and James Nelson claimed exposure to asbestos while working, respectively, as a track repairman for the Reading Company and as a machinist for Consolidated Rail Corporation (Conrail). Defendants CSX Transportation and Norfolk Southern Railway are successor-in-interest to Reading and Conrail and moved to dismiss several of the plaintiffs’ claims, including common-law negligence and premises liability, arguing that the Federal Employers’ Liability Act (FELA) provides the exclusive remedy to railroad carrier employees who suffer work-related injuries resulting from the employer’s negligence. The defendants also moved to dismiss the remaining claims, arguing that the plaintiffs failed to properly plead that they had liability for the prior companies’ acts. The court dismissed several claims based on defendants’ FELA argument — which were unopposed by the plaintiffs — ...
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Court Analyzes Damages Under FELA Supreme Court of Tennessee, at Knoxville, July 1, 2015

In this case, a railroad worker who was diagnosed with lung cancer filed suit under the Federal Employer’s Liability Act (FELA) alleging the railroad had exposed him to asbestos as well as other hazardous materials. The jury awarded $8.6 million, finding the railroad negligent and negligent per se, but it also found the decedent was 62 percent at fault due to his smoking history. Following the return of the verdict, the trial court instructed the jury that because of its finding that the railroad had violated safety regulations, FELA did not allow for a damages reduction based upon the employee’s contributory fault. The jury deliberated again and then returned a verdict of $3.2 million. After a rather convoluted course, which can be read in the below decision, several issues ended up before ...
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Bill Proposed in Pennsylvania House Seeks to Add Fairness and Transparency to Asbestos Actions

On June 30, 2015, Rep. Warren Kampf introduced a bill in the Pennsylvania House of Representatives titled as the “Fairness in Claims and Transparency (FaCT) Act.” The purposes are listed as providing transparency of claims made against bankruptcy trusts and in the tort system, to facilitate fair and appropriate compensation to plaintiffs while rationally allocating responsibility, to preserve the resources of defendants involved to help promote adequate recoveries for deserving plaintiffs, and to ensure that liabilities properly borne by bankruptcy trusts are not imposed upon defendants in the tort system. Section 4 primarily establishes the apportionment of responsibility, stating that an apportionment nonparty shall be apportioned responsibility, for liability purposes, in an asbestos action.  According to this section, a defendant in an asbestos action may, at any time, move to ...
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Plaintiff’s Expert Industrial Hygienist Found to Be Qualified to Offer Testimony on Non-Specific Levels of Asbestos Exposure U.S. District Court for the Eastern District of Louisiana, June 25, 2015

In this federal court case, the decedent, Sally Gros Vedros, is alleged to have been exposed to asbestos from laundering her father’s work clothes during the time he worked as a welder at the Avondale shipyard from 1943 to 1976 and from her own work at Avondale in the purchasing department from 1960 to 1963. The defendant, Bayer CropScience, Inc., which was the successor to several companies that formerly were known as Amchem Company, moved to preclude plaintiff’s industrial hygienist, Frank Parker, III, from testifying, on the basis that his testimony was both unreliable and unduly speculative. Amchem made numerous products containing asbestos, including coatings, sealants, and mastics. It is specifically alleged that the decedent was exposed to an Amchem adhesive called 81-27. Regarding Parker’s qualifications, Amchem argued that he ...
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Court Denies Plaintiff’s Motion to Amend Complaint to Reflect Only Remaining Parties U.S. District Court for the Eastern District of North Carolina, Western Division, June 26, 2015

In this federal court case, the plaintiff alleged exposure to asbestos while serving in the Navy from 1957 to 1960 aboard the USS Jonas Ingram and the USS Clarence Bronson, as well as from “other sites of asbestos exposure from approximately 1956 to 1970.” In November 2013, eight defendants moved for summary judgment, and the plaintiff only opposed the motions by Ford Motor Company and Honeywell International, Inc. Following the granting of summary judgment to all of the defendants with unopposed motions, the plaintiff moved to amend the complaint to only reflect the existing claims against Ford and Honeywell that survived summary judgment. The court denied the motion as untimely, since the unopposed motions were granted in January 2014. The court also denied the motions as unduly prejudicial against the defendants ...
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