Key 2020 Rulings on the “Every Exposure” Causation Theory and Anticipated Rulings for 2021

Due to court closures and stays placed in cases as a result of the COVID-19 pandemic, there was a significant downturn in the advancement of motions throughout the second and third quarters of 2020. However, the Asbestos Case Tracker has reported on recent motions in limine and causation-based motions for summary judgment involving these issues, which provides some guidance into the anticipated rulings going forward.

In mid-September 2020, the U.S. District Court for the Eastern District of Louisiana issued several decisions on motions in limine …

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Federal Court Holds Underlying Policies Exhausted by Settlement; Grants Summary Judgment to Insurer on Excess Policy Reinsurance Claim

U.S. District Court for the Southern District of New York, October 19, 2020

An insurer and its reinsurer were involved in a dispute over the reinsurer’s liability to reimburse a portion of a settlement that the insured had allocated to an excess liability policy subject to a contract of reinsurance. The insurer had issued three excess liability insurance policies to Asarco Inc., as part of a “coverage tower,” sequential layers of insurance Asarco purchased as part of its annual insurance program. The reinsurer reinsured the …

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Federal Workers’ Compensation Statute Preempts Plaintiff’s Negligence Claims; Shipyard Defendants Win Summary Judgment

U.S. District Court for the Eastern District of Louisiana, October 14, 2020

This case arises out of plaintiff William Hulin, Sr.’s exposure to asbestos when he worked as a ship fitter, laborer, and tacker for Avondale from January 1954 to May 1973. In July 2019, the plaintiff was diagnosed with lung cancer. He sued a number of defendants, including the Avondale Interests, in state court on November 12, 2019. The case was removed to district court on March 17, 2020. The plaintiff alleged only negligence …

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Control Manufacturer’s Motion to Exclude Plaintiffs’ Psychiatrist Denied After Daubert Hearing

U.S. District Court for the Northern District of Indiana, South Bend Division

In the present action, defendant Johnson Controls, filed a motion to exclude a psychiatrist’s opinions about three plaintiffs’ mental health. By way of background, the plaintiffs retained Dr. Zachary Torry to evaluate whether those three plaintiffs suffered a psychiatric injury as a result of being exposed to asbestos and chlorinated chemicals and, if so, whether a reasonable person under similar circumstances would experience a psychiatric injury. To form his opinions, Dr. Torry met …

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Judgment Modified, Declaration Vacated as Court Erred in Granting Motion for Partial Summary Judgment

Supreme Court of New York, Appellate Division, Fourth Department

The plaintiffs, Carrier Corporation and Elliott Company, filed a declaratory judgment and breach of contract action, wherein they sought declarations of the rights and obligations of the parties under liability insurance policies issued by various insurers, including the Fireman’s Fund Insurance Company (defendant). Carrier Corporation and Elliott Company are once-related entities who face lawsuits alleging personal injuries from asbestos exposure relating to their products. In November 2018, the court granted five motions for partial summary judgment …

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Post-Trial Motions from Plaintiffs and Valve Defendant Denied Following 2019 Verdict

New York

On April 25, 2019, as previously reported by the Asbestos Case Tracker, the Supreme Court of Erie County rendered a plaintiffs’ verdict, finding that decedent James Stock was exposed to asbestos by products made by the valve manufacturer, the defendant failed to exercise reasonable care by not providing warnings about the hazards of exposure to asbestos from its products, and that its failure to warn was a substantial contributing factor in causing the decedent’s injuries. The verdict was appealed by the defendant and …

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Motion to Exclude Testimony of Witnesses Denied; No Duty to Remind of Witnesses Existence

U.S. District Court for the Western District of Washington

Defendant Auburn Technology Inc. filed a motion to exclude testimony of three witnesses who were shipmates of the plaintiff’s decedent. Several other defendants joined in on the motion. The defendants argued that the witnesses were not properly disclosed until the very end of discovery and should therefore be excluded under Fed. R. Civ. P. 37. 

By way of background, in the summer of 2019, the plaintiffs made their initial disclosures, identifying the muster rolls for the …

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Plaintiff’s Motion for Partial Summary Judgment Re-Affirmed as to Defendants’ Affirmative Defenses

Court of Appeals of Georgia, Fourth Division

Defendants Pneumo Abex, LLC and Genuine Parts Company appeal the trial court’s partial grant of summary judgment to Sheila Long, individually and as personal representative of her late husband’s estate. Long alleged that her husband Ron died from lung cancer as a result of exposure to asbestos contained in certain products. Long sought summary judgment on affirmative defenses that she anticipated the appellants might pursue. Now, the appellants argue that the trial court erred in granting summary judgment to …

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Plaintiffs Successfully Disclaim Naval Exposure, Divesting Federal Court of Subject Matter Jurisdiction

U.S. District Court for the Western District of Pennsylvania, October 1, 2020

Plaintiffs David Martincic and Merl Williams alleged that Mr. Martincic was diagnosed with mesothelioma as a result of his exposure to asbestos brought home on the clothing, body, and person of several family members who worked at American Cyanamid in Bridgeville, Pennsylvania from 1946 through the 1970s. The plaintiffs filed suit against 173 defendants, including Foster Wheeler, LLC in the Court of Common Pleas of Allegheny County, Pennsylvania. In June 2020, Foster Wheeler …

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Plaintiff’s Motion for New Trial Granted as Jury Verdict Not Supported by Fair Interpretation of the Evidence

Court of Appeal of Louisiana, Fourth Circuit, September 23, 2020

By way of background, the plaintiffs argued that the court erred in entering a judgment following the trial in November 2018. Notably, the plaintiffs set forth that the jury’s verdict was based on inconsistent answers to interrogatories. In February 2019, the court denied the plaintiffs’ motion for a judgment notwithstanding verdict, or in the alternative, motion for new trial. In December 2019, the court found that the jury’s decisions were reasonable based on the evidence …

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