Similar Summary Judgment Standards Yield Different Results Based on Jurisdiction

Over the past six months, the Asbestos Case Tracker has reported on numerous summary judgment decisions throughout the country. The most active jurisdictions included New York, Pennsylvania, California, Texas, Illinois, Delaware, Mississippi and Washington. On review of the decisions we have discussed, Texas, Illinois, Mississippi, Washington and Pennsylvania appear to be the most defendant-friendly jurisdictions, with the courts granting all the summary judgment motions coming before them. New York continues to be the least defendant-friendly jurisdiction when it comes to summary judgment. Of the eight …

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Jury Verdict Overturned: “Mere Possibility” of Exposure to a Product Insufficient to Meet Plaintiff’s Burden

Court of Appeal of California, First Appellate District, Division One, November 30, 2021

The plaintiff, Amos Webb, was diagnosed with mesothelioma in 2018, and filed suit againstnumerous defendants, including General Cable Corporation, alleging that he was exposed to asbestos while working as an electrician for various employers throughout his career. Specifically, during his discovery deposition, Mr. Webb testified that he worked “quite frequently” with a product known as “Romex wire.” Romex was a popular brand of cable used for interior wiring, and General Cable acquired …

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Plaintiff’s Expert Opinions on Causation, Historical Literature, and “Cumulative Exposure Theory” Precluded

U.S. District Court for the Northern District of Illinois, Eastern Division, November 23, 2021

The plaintiff alleged that her late husband, Bruce Johnson, was exposed to asbestos between 1971 and 1984 while working with ceramics for different companies and schools. Mr. Johnson was diagnosed with mesothelioma in 2017 and died in 2020. The plaintiff filed suit against Vanderbilt, inter alia, alleging that Vanderbilt was liable under a negligent products liability theory for manufacturing, distributing, or selling asbestos-containing products used in the production of ceramics. …

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Removal to Federal Court Timely as a Lack of Specificity in Plaintiff’s Complaint Failed to Trigger 30-Day Deadline

U.S. District Court for the Eastern District of Louisiana, November 23, 2021

The plaintiff was an employee of Huntington Ingalls, Inc., intermittently from 1972 to 1975, running a cherry picker at Avondale shipyards. He alleged that he was exposed to asbestos dust through this employment and was later diagnosed with mesothelioma.

On July 16, 2021, the plaintiff filed suit in the Civil District Court for the Parish of Orleans, Louisiana, and on October 26, 2021, the defendants removed the case to federal court pursuant to …

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Motion to Remand Granted as Plaintiff Did Not Voluntarily Abandon Claim During Closing Arguments

U.S. District Court for the Eastern District of Louisiana, November 18, 2021

In this asbestos action, the plaintiff Willard Masters commenced an action in Louisiana state court alleging negligence claims against several defendants following his development of mesothelioma. While the defendant Taylor-Seidenbach, Inc. is not diverse from Masters, the defendant Graybar Electric Company, Inc. is a New York corporation with its principal place of business in Missouri. Trial commenced and counsel for all three above-referenced parties gave closing statements to the jury.

The day after …

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Talc Bankruptcy Case Transferred from North Carolina to New Jersey

U.S. Bankruptcy Court for the Western District of North Carolina, Charlotte Division, November 16, 2021

Debtor LTL Management LLC (LTL) was created through a corporate restructuring before the filing of the instant Chapter 11 case. Johnson & Johnson Consumer Inc. (Old JJCI), a subsidiary of Johnson & Johnson (J&J), was replaced with two new corporate entities: (1) LTL, a Texas limited liability company that converted into a North Carolina limited liability company, and (2) a Texas limited liability company that was merged into J&J and …

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First Department Affirms NYCAL Consolidation Decision

Supreme Court of New York, Appellate Division, First Department, November 16, 2021

In this asbestos action, the Supreme Court of New York, Appellate Division, First Department, affirmed a September 2020 New York City Asbestos Litigation (NYCAL) decision to consolidate two asbestos exposure actions. The court noted that each exposure action involves common questions of law and fact, and that the defendants have not established that they will be prejudiced by a joint trial of the actions.

In reaching its decision, the court cited the following …

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Boiler Manufacturer Denied Summary Judgment Due to Undetermined Exposure Location

Supreme Court of New York, New York County, November 5, 2021

In this asbestos action, the plaintiff Ferris O. Tyron alleged exposure to asbestos from Foster Wheeler products. In response, Foster Wheeler moved for summary judgment, asserting that New Jersey law is proper for this action, and, as such, the New Jersey Statute of Repose bars any alleged exposure attributable to Foster Wheeler products.

In support of their motion for summary judgment, Foster Wheeler asserted that the majority of the plaintiff’s employment locations were in …

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Various Manufacturers Denied Summary Judgment on Causation and Product Identification Grounds

Supreme Court of New York, Nassau County, November 17, 2021

In this asbestos action, plaintiff Frank Randazzo alleged exposure to asbestos from the following: (1) personally working on Rockwell brakes, (2) breathing in dust on his father’s clothing when his father worked with Cleaver-Brooks boilers and burners, and (3) from Perkins gaskets. Each of the aforementioned defendants moved for summary judgment, alleging that Randazzo could not have been exposed to their products.

To establish causation, a plaintiff must establish that a toxin is capable of …

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Railroad Employer’s Summary Judgment Motion Denied as Plaintiff’s FELA Claim Not Precluded

U.S. District Court for the Western District of Louisiana, November 10, 2021

In this asbestos action, plaintiff Dennis Bouck alleged that he developed mesothelioma as a result of repairing locomotives and locomotive parts while working for Kansas City Southern Railway Company (KCSR) from 1964 to 2007.

The plaintiff commenced an action against KCSR, as well as various product manufacturers. The court previously found that the Locomotive Inspection Act (LIA) preempted the plaintiff’s defective design and failure to warn state law claims against the product manufacturers. …

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Summary Judgment Granted to Three Defendants in Friction Exposure Case

U.S. District Court for the Middle District of North Carolina, November 9, 2021

In this matter, the plaintiff alleged that the decedent, Robie Walls, was exposed to asbestos during his career as a tractor-trailer fleet mechanic from 1960 to 2002. Mr. Walls was diagnosed with mesothelioma in September 2019 and passed away on October 15, 2020.

Three defendants filed motions for summary judgment, and the court consolidated its decision on all three. Defendants DCo LLC and Eaton Corp. filed motions for summary judgment on all …

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