In the 1970s, the plaintiff’s decedent, Dave John Konstantin, worked as a carpenter at two Manhattan construction sites where defendant Tishman Liquidating Corporation (TLC) was the general contractor. The decedent died of mesothelioma in 2012. This case was assigned with nine other cases to an in extremis trial calendar; all 10 plaintiffs were represented by the same firm and requested a joint trial, which the defendants opposed. Seven of the 10 cases (all with mesothelioma) were ordered to be tried together, and the remaining three …
Continue ReadingAuthor: Lynn A. Lehnert
Distinction Between Physical Harm and Physical Injury Key in Reversal of Trial Court’s Denial of Directed Verdict
The plaintiffs sued defendant Tremco, Inc. alleging asbestos exposure from tape used in the plaintiff’s profession as a plasterer. The plaintiffs alleged the development of pleural plaques and interstitial fibrosis. The jury found in favor of the plaintiffs, and Tremco appealed. The appellate court reversed the trial court’s judgment, finding that the court should have granted Tremco’s motion for directed verdict because the plaintiff did not suffer any physical harm.
At trial plaintiff testified that he worked as a plasterer from 1957-1983, and used Tremco …
Continue ReadingMagistrate Judge Recommends Remand to State Court; Removal was Timely, but Defendant Failed to Establish Two of Four Elements of Federal Officer Statute
The plaintiffs filed this personal injury suit in Delaware after the plaintiff Donnie Wines was diagnosed with mesothelioma. Both plaintiffs died before the suit was completed, and their personal representative was substituted. Defendant Rockwell Automation Inc. removed to federal court. The plaintiff filed a motion to remand, arguing: (1) that the notice of removal was untimely, and (2) Rockwell did not meet the requirements of the federal officer removal statute. The magistrate judge recommended that the court grant the plaintiff’s motion.
The plaintiff claimed exposure …
Continue ReadingLack of Evidence of Asbestos Replacement Parts Supplied by Crane for Use in Crane Valves Key to Granting of Summary Judgment
The decedent died of mesothelioma; prior to his passing he filed a lawsuit in state court alleging exposure to asbestos while a production shift supervisor during his employment at a paper mill in Georgia. One defendant removed, and the action was transferred to MDL 875. Defendant Crane Co. filed for summary judgment, which was granted in part by the MDL court; however, it remanded to the Northern District of Georgia to determine whether the bare metal defense was available under Georgia law. Crane then moved …
Continue ReadingApplying Factors Outlined by the Second Circuit, New York Court Refuses to Consolidate Three Asbestos Cases for Trial
The plaintiffs moved to consolidate three cases for trial. Defendants American Biltrite and Kaiser Gypsum opposed. The court denied the plaintiffs’ motion to consolidate.
Courts consider six factors outlined by the Second Circuit in determining whether or not to consolidate individual plaintiffs’ cases for a joint trial where asbestos exposure is alleged: “(1) whether the plaintiffs worked at a common or similar worksite; (2) whether the plaintiffs had similar occupations, as a ‘worker’s exposure to asbestos must depend mainly on his occupation,’ such as those …
Continue ReadingDiversity Jurisdiction Not Established Where Volkswagen Failed to Prove Fraudulent Joinder of Missouri Defendant
Nebraska plaintiffs filed an action in Missouri state court after the decedent died of mesothelioma. After five defendants remained, defendant Volkswagen filed for removal based upon diversity jurisdiction, and alleged that the defendant, J.P. Bushnell Packing Supply Company, a Missouri corporation, was fraudulently joined. This matter was before the court sua sponte to determine whether jurisdiction existed. Finding no jurisdiction, the court remanded.
Any doubts about the propriety of removal are resolved in favor of remand. In diversity jurisdiction, complete diversity exists where no defendant …
Continue ReadingMDL 875 Clarifies That Absent Sufficient Exposure, Bare Metal Defense Applied in Maritime Law Bars Negligence and Strict Product Liability Claims
In January 2013, this case was removed on the basis of federal question jurisdiction and assigned to MDL 875. The plaintiffs alleged asbestos exposure while serving in the Navy. Applying maritime law, the court granted summary judgments filed by Buffalo Pumps, CBS Corporation, Foster Wheeler, General Electric, IMO Industries, and Warren Pumps, based upon the bare metal defense. The plaintiffs appealed and the Third Circuit remanded the case to the MDL court to clarify whether it: (1) considered the negligence theory of liability; (2) concluded …
Continue ReadingCause Remanded to State Court After Federal Officer Defendants Dismissed
The plaintiff filed an asbestos suit in Missouri; defendant Crane Co. removed to federal court based on federal officer jurisdiction, in which Warren Pumps and CBS Corporation joined. All three defendants were dismissed and the plaintiff moved to remand, which the court granted. “…[I]f the federal party is eliminated from the suit after removal…the district court does not lose its…jurisdiction over the state law claims against the remaining non-federal parties…Instead, the district court retains the power either to adjudicate the underlying state law claims or …
Continue ReadingApplying Connecticut Law, Court Finds Existence of Duty in Asbestos Claim Against Sporting Goods Properties, Inc.
Surviving spouse and personal representative of the decedent filed a three-count complaint against multiple defendants, alleging failure to warn, loss of consortium, and conspiracy due to damages from alleged asbestos exposure. Defendant Sporting Goods Properties, Inc. filed a motion to strike all three counts for failure to state a claim, which plaintiff opposed. The court denied the defendant’s motion to strike as to counts one and two, but granted as to count three.
Sporting Goods argued a clear disconnect between the duty to warn of …
Continue ReadingOregon Jury Finds Against Gasket Manufacturer, Awarding Plaintiff $5 Million
The plaintiff in this case, who was diagnosed with mesothelioma, maintained dry kilns and boilers with asbestos gaskets sold by Mar-Dustrial, which denied selling products to the mill where the plaintiff worked from 1969-2000. The jury disagreed with Mar-Dustrial, and awarded the plaintiff $3.25 million for pain and suffering and $1.75 million for loss of consortium. Mar-Dustrial was the only defendant left at trial, and was assigned 22 percent of liability. The plaintiff called Dr. Carl A. Brodkin as an expert; no experts testified on …
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