Author: David E. Rutkowski

Other Asbestos News
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New York First Department, Appellate Division, Affirms NYCAL CMO

New York — On June 20, 2017, former NYCAL Justice Peter Moulton issued a new case management order (New CMO) in NYCAL and an accompanying decision with respect to same. The NYCAL defendants did not consent to the New CMO. ACT’s prior post on the New CMO is available here. NYCAL defendants subsequently appealed.

On March 22, 2018, the Appellate Division, First Department, determined that the New CMO did not do not deprive defendants of due process and Justice Moulton, pursuant to certain court …

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Other Asbestos News
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Third Party Negligence Found as New Proximate Cause in a Mesothelioma Claim

Plaintiff Erik Ross Phillips filed suit against a number of defendants after contracting mesothelioma allegedly caused by occupational exposure to asbestos in brake linings used in a machine at the facilities of his employer. The defendants, among others, included the manufacturers and distributors of the brake linings.

At trial, Phillips pursued a negligent failure-to-warn theory under North Carolina law against both defendants. As a defense, the distributor and manufacturer argued that even if they were negligent, they are not liable because of the intervening negligence …

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California / Case Decisions / Significant Verdicts
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Los Angeles Jury Concludes Mesothelioma Not Caused By Asbestos

CALIFORNIA — The estate of Velma Searcy (plaintiffs) filed suit in the Superior Court of Los Angeles for the personal injuries and subsequent death of Velma Searcy at age 51. The plaintiffs argued that Searcy’s mesothelioma diagnosis and death was caused from occupational exposure to asbestos through Searcy’s work as an electrician in the aerospace industry. The plaintiffs’ claims also included allegations of take-home asbestos exposure as a child watching her father perform brake changes on various vehicles. Most of the defendants either settled with …

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Bare Metal/Component Parts / Case Decisions / Pennsylvania
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Pennsylvania Supreme Court to Consider Manufacturer’s Liability for Asbestos-Containing Component Parts

PENNSYLVANIA — The United States Court of Appeals for the Third Circuit submitted a Petition for Certification of Question Law on the following issues for consideration: (1) Whether, under Pennsylvania law, a manufacturer as a duty to warn about the hazards of asbestos relating to component parts it has neither manufactured or supplied and (2) if such a duty exists, what is the appropriate legal test to determine liability.

On October 26, 2017, the Pennsylvania Supreme Court agreed to consider these issues and instructed parties …

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Case Decisions / Ohio / Summary Judgment
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Plaintiff’s Incomplete Deposition Testimony Deemed Inadmissible; Summary Judgment Granted for Defendant

OHIO — The decedent, Donald French, filed suit as a result of his diagnosis of mesothelioma allegedly caused by occupational exposure from asbestos-containing products through his work at U.S. Steel in Dearborn, Michigan. French provided testimony as to his alleged exposures at a discovery deposition that lasted approximately 18 hours over three days. On the third day, French identified the defendant as a source of exposure. The deposition, however, was not completed. The fourth day of deposition was adjourned due to French’s poor health. French …

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Illinois / Other Asbestos News
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Personal Jurisdiction Challenges Growing in Madison County; May Lead to Fewer Asbestos Filings

ILLINOIS — Continuing a national trend following the Bristol Myers Squibb Co. v. Supreme Court of California (2017) and Daimler AG v. Bauman (2014), the Supreme Court of Illinois has issued a personal jurisdiction opinion that will limit the ability of out-of-state plaintiffs to file suit in Illinois against “non-resident” or foreign defendants.

In the matter of Aspen American Insurance Company v. Interstate Warehousing, Inc., Eastern Fish Company (Eastern) is a New Jersey-based corporation that sources and imports fish products. In 2013, Eastern contracted with …

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Case Decisions / New York / Personal Jurisdiction
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Massachusetts Corporation Granted Dismissal for Lack of Personal Jurisdiction

Plaintiffs Sean Snowdale and Ryan Snowdale as Co-Executors of the Estate of Donald Kenneth Snowdale initially filed this asbestos-related suit against a number of defendants, including Barnes & Jones, Incorporated on July 6, 2015 in the Supreme Court of New York, New York County (NYCAL). Barnes & Jones answered and asserted the affirmative defense that NYCAL lacked personal jurisdiction over Barnes & Jones as to each and every count in the complaint.

On July 20, 2017, Barnes & Jones moved to dismiss based on lack …

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Case Decisions / Expert Challenges / Florida / Significant Verdicts
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$8.5 Million Verdict Affirmed Against Premises Defendant

Plaintiffs Dennis Britt and Rosa-Maria Britt filed suit after Dennis Britt was diagnosed with mesothelioma. Britt ultimately passed away from the disease and Rosa-Marie Britt continued as personal representative of his estate and added a wrongful death claim.

Britt was an employee benefits advisor from 1978-1997 where he visited various commercial and industrial facilities to speak with, and enroll, employees of these facilities, some of which were owned and operated by the defendant. Prior to his death, Britt testified that during the course of his …

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Case Decisions / Delaware / Personal Jurisdiction
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Car Manufacturer Obtains Dismissal Based on Lack of Personal Jurisdiction

Plaintiffs Harold and Judy Haynes filed suit in Delaware Superior Court on June 3, 2016 alleging that Harold Haynes’ lung cancer diagnosis was caused by asbestos exposure. The plaintiffs specifically alleged that Harold Haynes was exposed to asbestos-containing products as a career auto mechanic for Volkswagen dealerships in Washington and Oregon between 1964 and 1980. On July 15, 2016, the case was removed to the United States District Court for the District of Delaware. Defendant Volkswagen filed a motion to dismiss based on personal jurisdiction …

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Case Decisions / Delaware / Summary Judgment
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Summary Judgment Upheld for Georgia Pacific Because Proof Didn’t Distinguish Between Asbestos and Non-Asbestos Product

Defendant Georgia Pacific was granted partial summary judgment, in that all claims against the defendant “pre-1973” were barred. The plaintiff filed a motion for reconsideration arguing that the court overlooked the fact that the defendant stopped distributing asbestos joint compound in September 1973.

In response to the plaintiff’s motion, the defendant argued that the court properly granted partial summary judgment relating to the plaintiff’s pre-1973 claims as the decision was based on a Stigliano analysis, which states “ when the record reveals that a defendant …

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