New Behrens Article Proposes Legislation to Promote Bankruptcy Trust Transparency & Fairness to All Parties

In most cases asserting asbestos-related injuries resulting from alleged exposure, the plaintiffs will also file proof of claims (POCs) with asbestos bankruptcy trusts. These trusts are set up when companies that mined or supplied asbestos or manufactured asbestos-containing products can no longer afford to defend a barrage of costly asbestos-exposure lawsuits and, accordingly, file for bankruptcy. The primary goals of the trusts are to compensate plaintiffs for exposure to products for which insolvent entitles are liable in a less costly and more efficient manner and…
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On Reversal, Aircraft Manufacturer Successfully Obtains Removal on Federal Officer Grounds United States Court of Appeals, Seventh Circuit, December 14, 2018

ILLINOIS – The plaintiffs Bruce and Barbara Betzner (plaintiffs) commenced a lawsuit in Illinois State Court (Madison County) against, among other defendants, Boeing Company (Boeing), alleging that, during the course of the plaintiff Bruce Betzner’s (Mr. Betzner) employment, he was exposed to asbestos-containing products, resulting in his mesothelioma diagnosis. With particular regard to Boeing, the plaintiffs allege that Mr. Betzner’s assembly of heavy bomber aircraft for the United State Air Force, which involved the installation of Boeing components, exposed him to asbestos. Boeing filed a…
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Plaintiff’s Experts Satisfy Daubert, Allowed to Testify in Brake Dust Exposure Case United States District Court, E.D. Arkansas, Western Division, December 11, 2018

ARKANSAS — Ronald Thomas worked as a brake mechanic and manager at auto repair shops for approximately twelve years. In March of 2017, he was diagnosed with mesothelioma and subsequently passed away later that year. His estate brought product liability claims against multiple defendants for negligence and strict liability, alleging that exposure to asbestos in brake pads caused Thomas’s mesothelioma. The plaintiff brought forth two experts, Dr. Arnold Brody and Dr. Edwin Holstein, to support his theory.  Dr. Brody is a professor emeritus of pathology…
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Plant Walkthroughs Insufficient to Establish Causation against Construction and Insulation Defendants United States District Court M.D. North Carolina, December 11, 2018

NORTH CAROLINA — In granting summary judgment for Daniel International Corporation and Covil Corporation, a district court judge in North Carolina determined that the plaintiff’s causation evidence was insufficient to meet the frequency, regularity, and proximity standards of the jurisdiction. In 1965, Daniel constructed a polyester production facility for Fiber Industries, a/k/a Hoechst Celanese, in Salisbury North Carolina, and kept workers on site for maintenance following completion of the construction.  Covil supplied asbestos-containing insulation for the facility. Decedent Charles Connor worked at the site from…
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Set Aside of Default Judgment Against Insurer Affirmed on Grounds of Equity Court of Appeal, First District, Division 5, California, December 11, 2018

CALIFORNIA — Several plaintiffs consolidated suit against multiple defendants including Associated Insulation of California (Associated) alleging exposure to asbestos for which the defendants were liable. Associated did not file a response to the complaint. Accordingly, the plaintiffs moved for default judgments in 2013 and again in 2015. The default judgments varied in amounts from $350,000 to $1,960,458. A notice of default had been served upon Associated but not its insurer, Fireman’s Fund (Fireman). Fireman shortly thereafter located policies indicating potential coverage and moved to set…
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Manufacturer’s Argument that Asbestos Not Present in Its Baby Powder Fails Due to Conflicting Expert Reports Supreme Court of New York, New York County, November 30, 2018

NEW YORK — The plaintiff Anna Zoas sued Johnson & Johnson (J&J) alleging that her mesothelioma was caused by asbestos  present in J&J Baby Powder. She allegedly used the product daily from 1945 to 1948 and regularly from 1948 to 1956. The plaintiff’s complaint was filed on May 12, 2017, and was amended on July 4, 2017. J&J then moved for summary judgment to dismiss the plaintiff’s claims. To prevail on a summary judgment motion in New York, a defendant must make a prima facie…
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Ninth Circuit Reverses District Court’s Decision to Remand Ninth Circuit Court of Appeals, December 10, 2018

CALIFORNIA — Westinghouse appealed the decision of the District Court for the Central District of California, which remanded the matter due to the lack of a colorable federal defense.The district court concluded that the asbestos insulation in a nuclear propulsion system was not military equipment and therefore Westinghouse failed to present a colorable military contractor defense. The district court found that Westinghouse had met the other elements required for federal officer removal. The Ninth Circuit noted that several of its cases framed the issue more…
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Market-Share Cause of Action Against Automotive Parts Manufacturer Dismissed Without Prejudice to Amend Complaint United States District Court, For the Northern District of California. December 6, 2018

The laintiff Gary Farris, brought suit against multiple product manufacturers and distributors alleging that his diagnoses of lung cancer and asbestosis were causally related to asbestos exposure he sustained while 1) working on brakes and clutches in an automotive shop during the summers from 1960 to 1964 and shadetree automotive repairs from the 1960s to 1980s; 2) serving in the United States Navy from 1964 to 1967; and 3) servicing photocopiers from 1967 to 1989. In support of his claims, Farris raised a fifth cause…
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Prescriptive Statute of Limitation Period Leads to Grant of Summary Judgment in Favor of Shipyard Defendant

LOUISIANA –The plaintiff filed suit against several defendants including Huntington Ingalls (Avondale) and Kaiser Gypsum (Kaiser) alleging her mother, Dolores Punch, developed and passed from mesothelioma as a result of exposure to asbestos for which the defendants were liable. Specifically, the plaintiff alleged that her decedent was exposed to asbestos fibers from washing the laundry of her husband who had worked as a pipe fitter at Avondale from 1948-1960. The plaintiff later amended her complaint to include exposure from the work clothes of her son…
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New York’s Highest Court Upholds Defense Judgment as a Matter of Law Based on Lack of Sufficient Scientific Evidence New York State Court of Appeals, November 27, 2018

NEW YORK — New York’s highest Court issued its first decision addressing causation standards in an asbestos case, and upheld the trial and intermediate appellate court decisions granting Ford Motor Company judgment as a matter of law in Juni v. A.O. Smith Water Products Co. et al.. ACT has previously reported on the Juni matter here and here. The majority found that “[v]iewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish…
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