Mid-2019 Asbestos Litigation Trends

KCIC recently issued 2019 Midyear Asbestos Litigation Trends , which compiled statistics through June 30, 2019, and assessed them in comparison with the data from its previous Asbestos Litigation: 2018 Year In Review. The overall takeaways from the update, each assessed at greater length below, are:
  1. While non-malignant and “other” cancer filings continued trending downward this year, as in 2018, 2019 is on track to see an increase in total filings
  2. The percentage of filings by the top 10 plaintiffs’ firms has decreased slightly

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Defendant’s Motion for Summary Judgment Granted Due to Lack of Causation U.S. District Court for the Western District of Washington, September 19, 2019

In a case extensively covered by Asbestos Case Tracker, the Western District of Washington considered another defendant, Henry Company LLC’s, motion for summary judgment. The seminal products liability case in Washington, Lockwood v. AC & S, Inc., enumerates seven factors to consider when “determining if there is sufficient evidence for a jury to find that causation has been established:”
  1. The plaintiff’s proximity to an asbestos product when the exposure occurred;
  2. The expanse of the work site where asbestos fibers were released;
  3. The extent

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Indemnitor Cannot Replace Insurer as Party in Asbestos Coverage Suits, Court Rules United States District Court, E.D. Wisconsin, Sept. 13, 2019

WISCONSIN – In an asbestos coverage suit brought by Eaton Corporation against its insurers, Eaton Corporation sought to substitute itself for First State Insurance Company in third-party indemnity and contribution claims brought against First State by other defendant insurers. Eaton and First State had entered into a settlement agreement in which Eaton agreed to defend and indemnify First State in such contribution claims, and First State granted Eaton the right to control First State’s defense in such claims. Eaton argued that because of the settlement…
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Summary Judgment Affirmed Due to Insufficient Service and Statue of Limitations Court of Appeals of Minnesota, September 16, 2019

MINNESOTA – The plaintiff’s decedent passed away from mesothelioma allegedly caused by his exposure to his father’s work clothes and Bendix (Honeywell) brakes. The decedent’s father was an insulator for Walker Jamar and A.W. Kuettel. The decedent also worked for four months in 1974 as a janitor at an Oldsmobile dealership. He was diagnosed with mesothelioma in December 2011. The decedent originally filed suit in North Dakota in 2013, naming Walker Jamar but not Honeywell. Walker Jamar was dismissed from the North Dakota action on…
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Talc Defendant’s Appeal of Personal Jurisdiction Denial Dismissed Superior Court of New Jersey, Appellate Division, September 11, 2019

NEW JERSEY – After a lengthy discussion of corporate successor liability and the histories of the companies at bar, a New Jersey appellate court ultimately determined that the factual record was too incomplete to resolve questions regarding jurisdiction, and dismissed an appeal of the trial court’s order denying talc defendant Cyprus Amax Minerals Company (Cyprus) personal jurisdiction motion. Ohio resident Linda Huff had sued two Delaware corporations, Imerys Talc America, Inc. and Cyprus in New Jersey state court, alleging that their talc was incorporated into…
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Interrogatory Answers and Deposition Testimony Admissible To Prove Fault of Settled Defendants In New Jersey Supreme Court of New Jersey, September 11, 2019

NEW JERSEY – The New Jersey Supreme Court held that disputed excerpts from a settled defendant’s interrogatory answers and corporate representative depositions were admissible as statements against interest under N.J.R.E. 803(c)(25). As such, when presented at trial with other evidence, those statements gave rise to a prima facie showing that the settled defendants bore fault, and a jury could properly consider whether to allocate some percentage of fault to them. The defendant, Universal Engineering Co., Inc., a manufacturer of asbestos-containing dry cement, was the sole…
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Allegation in Complaint of Exposure at Shipyard Renders Defendant’s Removal Untimely United States District Court, E.D. Louisiana, September 11, 2019

LOUISIANA – The plaintiff, Charles Merlin Parfait, Sr., alleged that he contracted mesothelioma from exposure to asbestos during his work at the Avondale Shipyards from 1968 to 1978, and sued various defendants in state court in Orleans Parish Louisiana. The plaintiff alleged strict liability claims in his state court petition, but specifically disclaimed strict liability claims against Avondale Shipyards’ successor, Huntington Ingalls Incorporated.  Less than 30 days after the plaintiff’s deposition, Huntington Ingalls removed the case to federal court and claimed that the plaintiff’s deposition…
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New Jersey Jury Renders $37.3 Million Dollar Verdict Against Johnson and Johnson in Consolidated Talc Cases Superior Court of New Jersey, County of Middlesex, September 11, 2019

NEW JERSEY – A New Jersey jury returned a verdict in the amount of $37.3 million dollars against Johnson and Johnson for combined compensatory damages brought by four mesothelioma claimants. The verdict came after three days of deliberations in a trial that lasted almost two months. The jury was tasked with determining whether Johnson and Johnson’s talc products contained asbestos and whether the plaintiffs’ exposures were a substantial contributing factor in causing their peritoneal mesothelioma. The jury also heard testimony over differing positions regarding asbestos…
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Limitations Challenge on Railroad Worker’s FELA Claim Denied U.S. District Court for Northern District of Illinois, September 9, 2019

ILLINOIS — The plaintiff Theresa Romcoe filed suit under the Federal Employers’ Liability Act (FELA) against the defendants, Illinois Central Railroad Company and Northeast Illinois Regional Commuter Railroad Corporation dba Metra Rail, alleging that her husband had passed away from esophageal cancer as a result of exposure to asbestos during the course of his employment. Specifically, the decedent had worked in several positions, including as a switchman to conductor from 1974-1984.  The decedent was diagnosed with cancer on September 5, 2013 and passed on November…
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Plaintiffs’ Failure to Establish Causal Connection Upheld in Consolidated Workers’ Compensation Claims Court of Appeals of North Carolina, September 3, 2019

NORTH CAROLINA – The Court of Appeals of North Carolina recently upheld the Worker’s Compensation Commission decisions and findings in 144 consolidated cases. Numerous plaintiffs, including Walter Hinson, Charles Wilson, Douglas Epps, and Bobby James Newell, sought compensation under the worker’s compensation statute for alleged asbestos related illnesses for their work at Continental Tire in Charlotte, North Carolina from 1967-1999. The court focused on the Hinson case and analyzed the commission’s findings, which it later applied to the remaining cases. Hearings began in 2011. At…
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