Brendan H. Fitzpatrick

All articles by Brendan H. Fitzpatrick

 

Remand Denied Under Federal Officer Jurisdiction Analysis for Plaintiff Alleging Asbestos Exposure in U.S. Navy

Plaintiff Marc Killiam served in the U.S. Navy from 1973 to 1977 aboard the USS McCandless while at sea and in the Philadelphia Navy Yard. He alleges that as a boiler tender he removed and replaced various asbestos containing products and that exposure to asbestos from those products caused his asbestosis. He filed suit in Hillsborough County, Florida on September 26, 2016 against various defendants, including Crane Co. Crane removed the case to the U.S. District Court on October 13, 2016 pursuant to 28 U.S.C.…  

Defense Judgment Affirmed Under Consumer Expectation Test

David Baeza and Vana Baeza filed suit against defendants including Special Electric Company, a distributor of raw crocidolite asbestos fibers called ML-6 following his diagnosis with mesothelioma. Special Electric had supplied ML-6 raw asbestos fibers to Johns-Manville beginning in the mid-1970s. David Baeza’s father had worked at a Johns-Manville plant in Long Beach, California, and David was exposed as a child to asbestos dust that clung to his father’s shoes, clothes, hair, and skin. At the time of trial, the only causes of action that…  

Summary Judgment for Brake Manufacturer Reversed as Circumstantial Evidence of Exposure Sufficient to Show Triable Issue of Fact

The plaintiffs, wife and sons of Henry Linsowe, filed a complaint in 2011 alleging causes of action for negligence, strict liability, and loss of consortium. In their complaint, the plaintiffs alleged that Linsowe worked as a brake mechanic at Downey Ford from 1969 to 1986 and that he was exposed to asbestos “during various activities, including handling, beveling, removing, cutting, scoring, grinding, shaping, drilling, and installing of asbestos-containing brake pads and shoes, and the use of compressed air to clean and remove asbestos dust from…  

Federal Court Denies Remand on Outer Continental Shelf Lands Act Jurisdiction and Dismisses Fraud Counts of Complaint

The U.S. District Court for the Eastern District of Louisiana issued two opinions in the matter of Sheppard v. Liberty Mut. Ins. Co., et al. which denied the plaintiffs’ motion to remand and dismissed the plaintiffs’ fraud cause of action against the defendants. Plaintiff Jesse Frank Sheppard originally filed in the Civil District Court for the Parish of Orleans. Sheppard alleged that he developed lung cancer and/or mesothelioma as a result of exposure to asbestos while working for Freeport Sulphur Company. The plaintiff sued…  

Third Circuit Reverses Summary Judgment for Switchgear Manufacturer and Remands

Carol J. Zellner, on behalf of the estate of Clifford R. Zellner, appealed the U.S. District Court for the Eastern District of Pennsylvania’s order granting summary judgment in favor of CBS Corporation to the U.S. Court of Appeals for the Third Circuit, arguing that the district court erred in finding that she failed to establish a genuine dispute about whether Westinghouse Electric Corporation (predecessor to CBS Corporation) switchgear had deteriorated and exposed her now deceased husband to asbestos-containing dust. The Court of Appeals agreed, and…  

Court Upholds Verdict in FELA Matter in Face of Limitations Argument But Vacates Damages Award and Remands

In this negligence actions brought under the Federal Employers’ Liability Act (FELA), the Appellate Court of Illinois, Fourth District, affirmed the jury’s verdict against defendant Illinois Central Railroad Company (Central) but vacated the award of damages and remanded for a new damages hearing. In 2003, Paul McGowan was diagnosed with lung cancer and died. In December 2008, his estate filed a 13-count complaint seeking damages from various defendants as a result of Mr. McGowan’s lung cancer and death. Count IV of the complaint was for…  

Court Rejects Appeals of Crane Co. in Three NYCAL Matters

The Appellate Division of the Supreme Court of New York issued three decisions rejecting appeals of Crane Co. arising from verdicts for Plaintiffs in three separate trials out of New York County. In Peraica v. A.O. Smith, et al., a jury on December 3, 2013 awarded the plaintiffs $9,900,000 for past pain and suffering against defendant Crane Co., with an order to vacate the award and order new trial as to such damages unless the plaintiffs stipulated to a reduced award of $4.25…  

Trial Court’s Reaffirmation of Judgment Notwithstanding the Verdict in Favor of Defendants Reversed

Larry Smith worked on various drilling rigs from the mid-1960s until the early 1990s. He was also a heavy smoker. He was diagnosed with lung cancer and died shortly thereafter. His widow and other heirs filed a wrongful death action against several defendants in 2006. At trial, only Union Carbide Corporation, Montello, Inc., and Chevron Phillips Chemical Co. remained. The plaintiffs brought a strict liability claim under a products liability design-defect theory and claimed that Mr. Smith’s exposure to the defendant’s asbestos-containing products on the…  

Supplier of Asbestos for Joint Compound Denied Summary Judgment

The U.S. District Court for the Eastern District of North Carolina denied the motion for summary judgment of defendant Union Carbide Corporation in a case involving alleged exposure to raw asbestos fiber allegedly in joint compound. James Lee was a painter in North Carolina from the late 1960s into the 2000s, and during that time the plaintiffs allege that Lee applied and sanded asbestos-containing joint compound to finish drywall, as well as sanded and swept joint compound. Sanding joint compound created a dust, which would…  

Case Remanded on Basis of Failure of Removing Party to Meet Burden of Proof on Improper Joinder

Plaintiff William Bozeman brought suit alleging exposure to asbestos and asbestos-containing products caused him to contract mesothelioma. Mr. Bozeman, a Louisiana resident, worked for Arizona Chemical Company, later known as International Paper Company, from 1975 to 1981 and 1981 to 1999 in Louisiana and claims he was exposed while on the job. He filed suit in the Civil District Court for Orleans Parish. On September 9, 2016 defendant Wyeth Holding Corp., formerly known as American Cyanamid Company removed the case to the U.S. District Court…  

Breakdown of $21 Million Verdict in Miami, Florida

On August 30, 2016, a Miami, Florida jury awarded nearly $21.4 million in damages to Richard Batchelor and his wife, Regina, in a case where the plaintiffs alleged that Bechtel Corporation caused his mesothelioma. The case proceeded only against the defendants Bechtel Corporation and Foster Wheeler Energy Corporation, as Foster Wheeler settled the day before the verdict. The verdict sheet demonstrates that, after the jury found that negligence on the part of Bechtel was a legal cause of the plaintiff’s damages, the jury turned to…  

Summary Judgment Denied Where Defendant Merely Pointed to Gaps in Evidence and Asked Court to Weigh Credibility of Witness

In this case, the plaintiff Gaspar Hernandez-Vega alleges that he developed mesothelioma as a result of his alleged exposure to asbestos-containing products while working as a pipefitter. At his deposition, Hernandez-Vega testified interchangeably to work with “Edward valves,” “Vogt valves,” and “Edward-Vogt valves” that exposed him to asbestos through his changing of the packing and gaskets applied to those valves. The defendant Flowserve is the successor in interest for Edward Valves, Inc., the Vogt Valve Company, and Edward-Vogt (created following a merger of the two…  

California High Court Declines to Review Appellate Reversal of Trial Court’s Grant of Summary Judgment

On August 25, 2016, the California Supreme Court, without a written opinion, declined to hear a petition to review an appellate panel’s decision to overturn a trial court’s grant of summary judgment to Hennessy Industries Inc. In this case, the plaintiff claimed that the decedent, Frank Rondon, worked as a mechanic using defendant Hennessy’s (Ammco Tools) brake arcing machines designed to grind asbestos brake shoes. Hennessy moved for summary judgment arguing that the brake grinders did not contain asbestos and plaintiffs could not establish that…  

Summary Judgment for Crane Manufacturer Based on Affidavit of Company Vice President

Plaintif Katherine Filosi, individually and as executor of the estate of Donald Filosi, filed a complaint against multiple defendants, including American Crane & Equipment Corporation (ACECO).  The plaintiff alleged that the decedent Donald Filosi was exposed to asbestos while employed by Boat Corporation (Electric Boat) as a rigger from 1961 to 1998 and, as a result of that exposure, he developed lung cancer and died. Defendant ACECO moved for summary judgment, arguing that the plaintiff produced no evidence from which a jury could conclude that…  

Court Refuses to Consolidate Four In Extremis Cases for Joint Trial

The plaintiffs moved pursuant to CPLR 602 for an order consolidating four in extremis cases for a joint trial: Herman Anderson, Mercedes Abreu, Patrick Demartino, and Mario Scalera. Defendant Ford opposed consolidation in all four cases. Ingersoll Rand Co. and Aurora Pump Co. also opposed in the Demartino case, Weil-McClain opposed in the Abreu case, Genuine Parts Co. and ArvinMeritor, Inc. opposed in Anderson, and Pneumo Abex Corp. and Maremont Corp. opposed in Anderson and Demartino. In denying the plaintiffs motion to consolidate,…  

Summary Judgment Denied to Talc Defendant on Statute of Limitations, Burden of Proof, and Causation Issues

In this asbestos personal injury action the plaintiffs allege that Arlene Feinberg contracted mesothelioma because of exposure to asbestos-contaminated talc from defendant Colgate-Palmolive Company’s Cashmere Bouquet. Colgate moved for summary judgment, arguing 1) the plaintiffs’ action is barred by the statute of limitations; 2) the plaintiffs failed to exclude other potential causes of Ms. Feinberg’s mesothelioma; 3) the plaintiffs failed to prove that Cashmere Bouquet caused the mesothelioma; and 4) that there is no evidence of general or specific causation. The plaintiffs opposed summary judgment,…  

Ninth Circuit Reverses Summary Judgment for Pump Defendants on Evidence of Supply of Asbestos Containing Gaskets and Packing to U.S. Navy

John H. Boyd, III, as the representative of the plaintiff and appellant Captain John H. Boyd, Jr. (deceased), appealed to the Ninth Circuit the District Court for the Central District of California’s granting of summary judgment in favor of Warren Pumps, LLC, and Air and Liquid Systems Corporation (successor in interest to Buffalo Pumps, Inc.) in this diversity products liability action. In this case, it was alleged that exposure to asbestos from the appellees’ products during Captain Boyd’s service on board the U.S. Navy’s USS…  

Court Declines to Address Causation Standard In Upholding Summary Judgment on Trial Court’s Less Burdensome Standard

Plaintiff Patricia Grant and the Estate of Edward Grant appealed from summary judgments entered against them on their complaint for damages for Edward Grant’s lung cancer and death based on negligence, failure to warn of defective, unreasonably dangerous goods, and loss of consortium. Summary judgment was granted on the motions of New England Insulation Company (NEI); Foster Wheeler, LLC; Warren Pumps, LLC; and IMO Industries, Inc. The plaintiff’s decedent Edward Grant worked for Beth Iron Works from 1964 to 1970 and again from 1978 to…  

Boiler Manufacturers Obtain Summary Judgment Based on Statute of Repose

In this case, the decedent, Ralph Vitale, alleged exposure to asbestos from the installation of Burnham and Weil-McLain residential boilers during the course of his work through his own HVAC and plumbing business between 1966 and 1979.  Defendants Burnham, LLC and Weil-McLain, a division of the Marley-Wylain Company, moved for summary judgment  on the basis that no cause of action accrued against them pursuant to Maryland’s statute of repose, codified at Sec. 5-108 of the Maryland Code, Courts and Judicial Proceedings article. Maryland’s statute of…  

Fourth Circuit Upholds Summary Judgment on Substantial Factor Causation and Affirms Denial of Remand Based on Federal Officer Jurisdiction

The U.S. Court of Appeals for the Fourth Circuit issued an opinion in two consolidated appeals upholding the granting of summary judgment to defendants CBS Corporation, General Electric Corporation (GE), MCIC (local insulation contractor), Paramount Packing & Rubber Company, Phelps Packing & Rubber Company, SB Decking, Inc., Wallace & Gale Asbestos Settlement Trust (local insulation contractor), and Foster-Wheeler Energy Corporation. The two consolidated cases involved alleged exposures to dust asbestos-containing products manufactured, supplied, or installed by the defendants at Baltimore, Maryland area shipyards. On appeal,…  

Court of Appeals of Ohio Finds Reversible Error in Refusal of Daubert Hearing On Basis of Opinions of Drs. Strauchen and Frank

In this case it is alleged that the decedent, Glenn Watkins, was exposed to chrysotile asbestos dust from the sanding of Bendix brakes while working as a manager at various Auto Shack and AutoZone retail stores between 1985 and 2006 and that this exposure was a substantial cause of his pleural mesothelioma and death. Prior to trial, all defendants other than Honeywell International Inc. settled or were dismissed. The issue at trial was whether Watkins’ handling of Bendix brakes was a cause-in-fact of his mesothelioma,…  

U.S. District Court of Connecticut Denies Motion to Dismiss Punitive Damages Count Based on Sufficiency of Pleading

In this case pending in the U.S. District Court for the District of Connecticut, the plaintiffs’ third count of their complaint alleges reckless conduct by the defendants and seeks punitive damages. Defendant Aurora Pump Company moved to dismiss this count, arguing that the plaintiff failed to assert specific allegations of recklessness. The court noted, however, that the plaintiff alleges that the defendants manufactured, distributed, sold or otherwise placed into the stream of commerce products which contained asbestos and that the defendants intentionally and fraudulently concealed…  

New York Judge Vacates Award of Past and Future Pain and Suffering to Plaintiff Against Brake Grinder Manufacturer and Orders New Trial on Damages Unless Plaintiff Stipulates to Reduced Awards

The plaintiff, Walter Miller, filed suit against a number of defendants alleging that his mesothelioma was caused by exposure to asbestos through his use of a brake grinding machine manufactured by Ammco. At trial, the jury rendered a verdict in favor of the plaintiff and against the sole defendant remaining at trial, Hennessy Industries, Inc. (Ammco), in the amount of $25 million, consisting of $10 million for past pain and suffering and $15 million for future pain and suffering. A summary of that verdict can…