Beyond the Gateway Arch -Talc Litigation Update Nine Months After Mammoth St. Louis City Jury Verdict

  In July 2018 a St. Louis City jury heard one of the first trials involving allegations of the development of ovarian cancer due to talc contaminated with asbestos.[1] In a decision that shocked both the plaintiff and defense bar, the jury awarded $25 million to each of 22 plaintiffs for a total of $550 million in compensatory damages. The jury then spent less than two hours deliberating punitive damages before returning with a total award of $4.14 billion against defendants Johnson & Johnson…
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Court Recommends Granting Five Defendants’ Motions for Summary Judgment Based on Lack of Substantial Factor Causation United States District Court, D. Delaware, May 15, 2019

DELAWARE – The plaintiff Richard Rogers filed suit against multiple defendants in the Superior Court of Delaware, alleging that his exposure to asbestos caused him to develop mesothelioma; he asserted claims for negligence, punitive damages, and conspiracy. The defendant Foster Wheeler removed the case to the district court pursuant to the federal officer removal statute. Rogers was deposed in April 2018 and the plaintiff offered no other fact or product identification witnesses. Warren Pumps, General Electric, Air & Liquid, Wagner, and Asbestos Corp. subsequently filed…
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Fire-Door Manufacturer’s Affidavit Based Only on Personal Knowledge Not Enough to Overcome Plaintiff’s Decedent’s Testimony About Exposure to Their Product Supreme Court, Appellate Division, First Department, New York, May 16, 2019

NEW YORK – The defendant Algoma Hardwoods, Inc. filed a motion for summary judgment in the instant matter, contending via an affidavit signed by its principal that it did not sell or distribute asbestos-core fire doors in the New York metropolitan area where the plaintiff’s decedent worked during the relevant time period and therefore he could not have been exposed to their product. The affidavit was based on the principal’s personal knowledge, but was unaccompanied by documentation such as sales records substantiating the averments. The…
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Statute of Repose Applied and Summary Judgment Granted U.S.D.C. for the District of Massachusetts, May 14, 2019

MASSACHUSETTS – On March 30, 2018, the U.S.D.C. for the District of Massachusetts held that Massachusetts’ statute of repose did not apply to asbestos exposure claims and denied the motion for summary judgment of General Electric (GE). The question was without controlling precedent, and was therefore certified to the Massachusetts Supreme Judicial Court. On Mach 1, 2019, the court ruled that the statute of repose “completely eliminates all tort claims arising out of any deficiency or neglect in the design, planning, construction, or general administration…
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Summary Judgment Granted for Multiple Defendants in Naval Case Based on Failure of Specific Product Identification U.S. District Court, D. Delaware, May 14, 2019

DELAWARE – The plaintiff brought suit against several defendants alleging he developed lung cancer from exposure to asbestos while serving onboard the USS Shangri La and USS Edmonds. The plaintiff passed away prior to giving any deposition testimony. The case was removed to federal court by Crane Co. The defendants moved for summary judgment. The plaintiff’s sole fact witness, John Poggenburg, testified that he worked with the plaintiff onboard the USS Edmonds from October 1961 until July 1962. Poggenburg recalled the plaintiff starting as a…
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Plaintiffs Not Entitled to Jury Instruction on General Negligence Due to Lack of Specific Evidence Court of Appeals, Second District, Division 4, California, May 14, 2019

CALIFORNIA – Philip and Febi Mettias, husband and wife, both died of complications caused by mesothelioma. The decedents’ children (plaintiffs) filed suit against various defendants. As part of their allegations, the plaintiffs alleged Philip Mettias performed as many as 24 brake repairs with Bendix brakes, made by Honeywell and purchased at Pep Boys. The jury returned a special verdict in favor of Honeywell and Pep Boys; the plaintiffs appealed on two contentions:
  1. The trial court erred in not giving general negligence instructions in addition to
…
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Plaintiff’s Failure to Establish Causation Against Pump Defendant Leads to Grant of Summary Judgment U.D. District Court Washington W.D., May 14, 2019

WASHINGTON – The plaintiffs filed suit against several defendants alleging their decedent, Mr. Klopman-Baerselman developed mesothelioma as a result of exposure to asbestos for which the defendants were liable. The case was removed to federal court. Viking Pump (Viking) moved for summary judgment arguing that the plaintiff could not establish the necessary element of causation. Specifically, Viking argued that the plaintiff had no evidence that he was exposed to a Viking product and therefore he could not prove that Viking’s products were a substantial factor…
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Summary Judgment Granted for Multiple Defendants in W.D. Washington When Plaintiff’s Affidavit Ruled Inadmissible U.S. District Court for the District of Washington, May 6, 2019

WASHINGTON — The plaintiff, Donald Varney, filed suit against numerous defendants alleging exposure to asbestos while working as a marine machinist at shipyards in Washington caused his mesothelioma. The complaint was removed to federal court. One day before he passed, plaintiff signed an affidavit stating that he worked with various defendants’ products or products supplied by the defendants, including those of defendants Crosby Valves, Goodyear Tire and Rubber, Foster Wheeler, Air and Liquid Systems, Weir Valves and John Crane, Inc. The plaintiff was not deposed…
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Washington’s Statute of Repose Determined to Not Apply to Premises Owners Court of Appeals of Washington, Division 1, May 13, 2019

WASHINGTON – For approximately seven months in 1971, Gary Cameron worked as a boilermaker at the Centralia Steam Plant in Washington State during its construction, which was completed in 1972. Asbestos-containing thermal insulation was used in building the plant, and Cameron’s estate alleged that his fatal mesothelioma was caused in part by exposures during his time at Centralia. They sued appellee PacifiCorp, who was among those responsible for constructing the plant, and who maintained an ownership interest until 2000, bringing claims against them as both…
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Sale Transaction Documents Obviate Need for Policy Interpretation Oregon Court of Appeals, May 8, 2019

OREGON – The plaintiff Allianz Global Risks US Ins. Co. defended and indemnified its insured, Daimler Trucks North America LLC, as successor to Freightliner, in three CERCLA cases and more than 1,500 asbestos personal injury cases. It then brought suit seeking contribution against several insurance companies that had issued insurance policies to Con-way, Inc., the former parent company of Freightliner, for policy years that were implicated in the underlying asbestos actions. The trial court ruled in favor of the defendants on several policy interpretation issues,…
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J&J’s Emergency Motion for Provisional Transfer Deemed Unwarranted, Denied United States District Court, D. Delaware, April 9, 2019

DELAWARE — Non-debtors Johnson & Johnson and Johnson & Johnson Consumer Inc. (J&J) filed an emergency motion for provisional transfer, seeking entry of an order directing provisional transfer of approximately 2,400 federal and state personal injury and wrongful death actions, pending the court’s decision on J&J’s motion to fix venue for claims. The motions relate to the chapter 11 cases of Imerys Talc America, Inc. and certain affiliates (debtors), which were filed on February 13, 2019. The plaintiffs in the approximately 2,400 federal and state…
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