Subjective Generalization Regarding Frequency of Exposure Held Legally Insufficient to Support Jury Verdict

As recently reported on March 28, 2019 on the Asbestos Case Tracker, the First Department of the New York Supreme Court issued a significant causation decision. In Joanne Corazza as Executrix of the Estate of George Cooney v. Amchem Products Inc., et al, the plaintiff sued multiple asbestos related defendants, alleging they were all the cause of Mr. Cooney’s lung cancer. Notably, Mr. Cooney was a two-and-a-half pack-per-day smoker of 52 years prior to his death. The case was tried to verdict over…
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Court Calls For Supplemental Briefing For Summary Judgment Motion Following DeVries Decision United States District Court, W.D. Washington, April 18, 2019

WASHINGTON — A federal court in Washington state called for supplemental briefing prior to ruling on summary judgment motions in two similarly situated cases involving maritime exposures. Donald Yaw worked as a shipfitter, structural planner, and estimator at the Puget Sound Naval Shipyard (PSNS) in Bremerton, Washington from 1964 to 2001. Thomas Deem worked as an outside machinist at PSNS from 1974 to 1981. The plaintiffs alleged that Mr. Yaw and Mr. Deem’s fatal mesotheliomas were caused by both the use of asbestos-containing products and…
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Summary Judgment Granted in Secondary Exposure Case United States District Court, E.D. Louisiana., April 18, 2019

LOUISIANA – The plaintiffs, the children of Theresa Rodrigue (Ms. Rodrigue), allege their mother was secondarily exposure to asbestos contained in products manufactured by multiple product manufacturers (defendants) who moved for summary judgment, respectively, when Ms. Rodrigue washed the clothing of her brother, a rigger in a shipyard. The court granted the defendants summary judgment on the basis that the evidence in the record was insufficient with respect to an essential element of the plaintiffs’ claims. Consequently, since no genuine factual dispute existed, summary judgment…
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Railroad Defendant’s Motion for Summary Judgment Based on Standing Denied United States District Court, D. Nebraska, April 19, 2019

NEBRASKA — In Bettisworth v. BNSF Railway Company, the court denied a defendant’s motion for summary judgment, which argued that the plaintiff was not the properly appointed representative for his late wife’s estate. The plaintiff’s wife was employed by the defendant from 1979 to 2012 as a laborer/hostler at the defendant’s yard in Alliance, Nebraska. During her employment, she was exposed to various toxic and carcinogenic substances, including various solvents, diesel fuel, benzene, creosote, silica dust, and asbestos insulation. The plaintiff alleged that the cumulative…
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Verdict on Non-Economic Damages Reversed and Remanded with Finding of Joint/Several Liability Against Pipe Manufacturer Court of Appeal, First District, Division 4, California. April 15, 2019

CALIFORNIA — In an update to Asbestos Case Tracker’s previous post, the court reversed and remanded this matter ordering a new entry of judgment holding the plaintiffs’ economic and noneconomic damages jointly and severally liable against CertainTeed Corporation (defendant). At the trial level, a jury previously returned a verdict on economic damages in the amount of $776,201 against defendant. The verdict also included $9.25 million in noneconomic damages which was apportioned to defendant at 62 percent with the remaining to other joint tortfeasors. The…
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Turbine Manufacturer’s Removal Deemed Timely Due to Plaintiffs’ Vague Initial Pleadings and Answers to Interrogatories United States District Court, D. Maryland, April 12, 2019

MARYLAND — The plaintiffs filed suit in the Circuit Court for Baltimore City on April 4, 2018, against Westinghouse and thirty other the defendants. In the original complaint, the plaintiffs provided no time frame during which the plaintiff’s decedent, Vincent James Barrett, may have been exposed to asbestos, nor did it provide any specifics as to which he was exposed to or identify ships on which he may have worked. On December 18, 2018, Westinghouse removed the case to the District Court of Maryland “within…
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Supplemental Depositions from Unrelated Actions Insufficient as Only Evidence of Exposure Supreme Court of New York, April 12, 2019

NEW YORK — The plaintiff John Spicijaric (decedent) was diagnosed with lung cancer in June 2014, and died one week later. Prior to his lung cancer diagnosis, The decedent was also diagnosed with asbestosis. The decedent was deposed in his asbestosis case in 1985, but was never deposed in the present action. The decedent was a member of the Local 12 Asbestos Workers Union, and remained a member through the early 1990s. The defendant Electrolux Home Products (Electrolux) moved for summary judgment, claiming that plaintiff…
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Summary Judgment Granted to Floor Tile Defendant in Esophageal Cancer Case Due to Insufficient Causation Evidence Supreme Court of New York, April 12, 2019

New York — The plaintiff was diagnosed with esophageal cancer in October 2013 and filed suit in 2014. The plaintiff identified ten projects where he worked with vinyl asbestos floor tile. In addition to defendant American Biltrite’s (ABI) tile, the plaintiff identified seven other brands of tiles he used throughout his career. The plaintiff could not state which specific tiles were used on any of the ten jobs he described. With regards to ABI, the plaintiff testified that he used their brand of tiles on…
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Summary Judgment Granted For Muffler Manufacturer Where Inference of Exposure Not Permitted Superior Court of Delaware, April 10, 2019

DELAWARE — The plaintiff, Jimmy Crawford, sued Tenneco Automotive Operating Company Inc. (Tenneco), among other defendants, alleging that his lung cancer was caused by asbestos present in Walker automotive mufflers. Prior to his death, the plaintiff testified that he worked at two automotive stations from 1963 to 1965, where he worked with Walker mufflers. He believed he was exposed to asbestos from the mufflers because he was potentially told by his father that the mufflers contained asbestos due to their high heat application. Tenneco moved…
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Orders Dismissing Merchant Mariners’ Claims for Lack of Personal Jurisdiction Reversed After Finding of Waiver United States Court of Appeals, Third Circuit, April 9, 2019

OHIO — The appeals for this matter stem from the dismissal of claims filed in the Northern District of Ohio. In 1989 several ship owner defendants moved to dismiss a multitude of merchant mariner claims suits for lack of personal jurisdiction. In sum, the defendants argued that the merchant mariners’ claims for nationwide jurisdiction were invalid. The court found a lack of personal jurisdiction but denied the motions to dismiss and indicated that the court would transfer the cases to the Eastern District of Pennsylvania…
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Estate’s Claims of Exposure from Steam Pipes That Were Not Connected to a Locomotive Survive Preemption Challenge U.S. District Court for the Eastern District of Pennsylvania, April 5, 2019

PENNSYLVANIA — The plaintiff’s decedent worked in Texas as an electrician from 1945 until 1989, and alleged exposure to asbestos from insulation that was incorporated into passenger railcars manufactured by Defendants from 1945 until the mid to late 1970s. Specifically, the plaintiff alleged that asbestos exposure from pipe insulation and “arc chute” insulation in the passenger cars manufactured by the defendants was a cause of decedent’s mesothelioma and subsequent death. The railroad manufacturing defendants moved for summary judgement under the theory that the plaintiff’s claims…
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