New York’s Highest Court Set to Hear First Asbestos Causation Challenge New York Court of Appeals, October 16, 2018

NEW YORK — The New York Court of Appeals has set oral argument for October 16th, 2018 in Matter of NYC Asbestos Litig. (Juni v A.O. Smith). Since 2006, the Court of Appeals has weighed in three times[i] on the applicable causation standards in toxic tort cases, but Juni is the first asbestos related appeal to reach the high court. In this article, we provide a primer on the case and share a few thoughts about what to look for when…
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Mass Action Remanded to Montana State Court Based Upon Local Controversy Exception U.S.D.C. for the District of Montana, October 15, 2018

MONTANA — Nearly two hundred plaintiffs filed a lawsuit in Montana state court against BNSF Railway Company (BNSF) and its managing agent, John Swing. BNSF removed the cases as a mass action, as they all arose out of exposure from W.R. Grace’s operations in Libby, Montana. The plaintiffs were all Montana residents and argued the case was improperly removed because Mr. Swing was also a resident of the state. Magistrate Judge John Johnston entered Findings and Recommendations in the matter on January 23, 2018. Both…
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NYCAL Judge Rejects Causation Challenge; Reduces $75 Million Verdict to $17,250,000 Supreme Court of the State of New York, New York County, October 11, 2018

NEW YORK — Late Thursday night, NYCAL Justice Joan Madden issued a long awaited post-trial motion decision in Robaey v. Air and Liquid Systems, et al, NYCAL Index No. 190276/13, previously reported by ACT here. In January of 2017, a New York City jury returned a record setting $75 Million verdict, comprising $50 Million for plaintiff, Ms. Marlena F. Robaey ($40 Million in Past Pain and Suffering and $10 Million in Future Pain and Suffering), and $25 Million for derivative plaintiff, Mr. Edward…
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Welding Contractor Must Indemnify Premises Owner for Exposures to its Own Employee United States District Court, Eastern District Louisiana, October 10, 2018

LOUISIANA — Wayne Bourgeois worked as a welder from 1989 to 1994 at Chevron Chemical (Chevron) in Belle Chasse, Louisiana. His employer was J.E. Merit, a predecessor to Defendant Jacobs Field Services North America, Inc. (Jacobs). As part of their contract to provide maintenance for the Chevron plant, including welders, Jacobs agreed to indemnify Chevron against loss, damage, injury or death connected with their work under the contract. Bourgeois developed mesothelioma and sued Chevron, who tendered the defense to Jacobs who declined to defend. Chevron…
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Applying Washington Law to Summary Judgment Based on Government Contractor Defense for Pump Manufacturer Results in Denial of Motion United States District Court, Western District of Washington, October 9, 2018

WASHINGTON –The court ruled on competing motions for summary judgment from the plaintiff Alice Mikelsen and the defendant Warren Pumps in this case involving allegations that Arthur Mikelsen developed mesothelioma from working around Warren Pumps in the machine shop at Puget Sound Naval Shipyard from 1942 to 1980.  The plaintiff challenged six of Warren Pumps’ affirmative defenses; the court granted five of the six, eliminating the defenses of failure to mitigate, contributory negligence, assumption of risk, sophisticated purchaser, and intervening/superseding cause.  The court denied summary…
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Summary of Supreme Court Oral Argument on the Bare Metal Defense U.S. Supreme Court, October 10, 2018

On October 10, 2018, oral argument was conducted in Air and Liquid Systems Corp. v. DeVries, a case involving application of the bare metal defense in asbestos cases under maritime law, as previously reported. Petitioners were represented by Shay Dvoretzky of Jones Day and argued first. His first comment was that under long-standing tort law, manufacturers should not be liable for harm caused by third-party goods. Justice Ginsburg then immediately questioned whether the products at issue were of any use without the addition…
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Johnson & Johnson Secures Defense Verdict in Asbestos Talc Case Superior Court of New Jersey, County of Middlesex, October 11, 2018

NEW JERSEY — Today, a central New Jersey jury determined that Johnson & Johnson (J&J) was not liable for the mesothelioma of the plaintiff Rosalind Henry, who alleged that she developed the disease in part from use of J&J’s baby powder. In closing arguments, counsel for J&J told jurors that Ms. Henry had told her doctors that she was exposed to asbestos while working for a company that serviced Naval vessels, and that Ms. Henry only used J&J’s talc product for a small number of…
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Lack of Personal Jurisdiction Leads to Dismissal for Industrial Supply Defendant U.S. Supreme Court, New York County, September 29, 2018

NEW YORK — The plaintiff filed suit in New York against Grainger Inc. (Grainger) alleging her decedent, Myron Miller, passed from mesothelioma as a result of exposure to asbestos for which Grainger was liable. Specifically, Mr. Miller was alleged to have been exposed to packing and gaskets while refurbishing and selling used equipment he bought from liquidation sales from 1980-1987. Mr. Miller resided in Georgia from 1973 but would travel to New York later to purchase used parts. Grainger, an Illinois corporation, moved to dismiss…
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Business Registration in Pennsylvania Confers General Personal Jurisdiction Over Talc Supplier Philadelphia Court of Common Pleas, October 1, 2018

PENNSYLVANIA The plaintiff Ellen Kleiner filed suit in the Philadelphia Court of Common Pleas, alleging that she developed ovarian cancer through her use of Johnson & Johnson’s baby powder and Shower to Shower products. She named Johnson & Johnson and the talc supplier, Imerys Talc America, among other defendants. The case was originally removed based upon the fraudulent joinder of a non-diverse party, but the Eastern District of Pennsylvania remanded the case in October 2017. Imerys then filed preliminary objections to the complaint, arguing that…
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U.S. Supreme Court Set to Hear Bare Metal Defense Argument U.S. Supreme Court E.D Pennsylvania, October 9, 2018

PENNSYLVANIA — On October 10, 2018, the United States Supreme Court will hear argument in Air and Liquid Systems Corp. v. DeVries, a case involving the bare metal defense under maritime law. The case was originally filed in the Philadelphia Court of Common Pleas in December 2012. It was then removed to the Eastern District of Pennsylvania based upon the federal officer removal statute, due to the decedent’s work on Navy ships. Several defendants’ motions for summary judgment were granted on plaintiff’s negligence claims, based…
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Chanel Obtains Defense Verdict from Oregon Jury in Living Mesothelioma Claim

OREGON — An Oregon jury delivered a defense verdict for defendant Chanel on September 17, 2018 after a four-week trial in a living pleural mesothelioma claim. Chanel asserted an spontaneous etiology defense and the jury unanimously found that (i) Chanel was not negligent and (ii) was no defect in the Chanel cosmetic talc product allegedly used by plaintiff in this case.…
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