The plaintiff was a police officer for the City of Buffalo from 1968-1995. In 2012, he was diagnosed with mesothelioma and filed this proceeding asking permission to serve a late notice of claim against the city. The plaintiff alleged asbestos exposure during his work at properties owned by the city and by the Board of Education. The city argued that leave should not be given to the plaintiff to file a late notice of claim because New York General Municipal Law Section 207-c provided the …
Continue ReadingAuthor: Lynn A. Lehnert
Special Master Recommendation Upheld Denying Plaintiff’s Discovery Requests
Plaintiff Lori LoGiudice developed mesothelioma and brought suit, alleging her disease was caused by her use of asbestos-containing Cashmere Bouquet talcum powder made by Colgate-Palmolive. The only other defendants were suppliers of asbestos-containing talc to Colgate. After the Special Master denied certain discovery requests made by the plaintiff, the plaintiff moved for relief. The court affirmed the recommendations made by the Special Master.
At issue was one request for production involving conversations between Dr. Marie Capdevielle and individuals interviewed by her in preparation for her …
Continue ReadingPump Manufacturer’s Motion for Summary Judgement Denied Because Burden of Proof Unsatisfied
Plaintiffs Patrick and Joy Demartino brought suit against various defendants after Patrick Demartino developed mesothelioma. Defendant Aurora Pump Company moved for summary judgment, arguing that it did not use or sell external asbestos-containing gaskets. The court denied this motion.
It was undisputed that during the plaintiff’s time of alleged exposure to Aurora pumps while working at Walker-Prismatic from 1975-1986, Aurora used and sold asbestos-containing gaskets. The plaintiff testified that his only source of asbestos exposure from Aurora pumps was from replacement of external flange gaskets. …
Continue ReadingAffidavits Executed by Decedent Containing Product Identification Admissible Under Dying Declaration Hearsay Exception
Decedent John Pisano executed three affidavits regarding Sears products after he was diagnosed with mesothelioma; he died three months after his diagnosis and was never deposed. The affidavits detailed the decedent’s use of floor tile, ceiling tile, and mastic purchased from Sears. Defendant Sears, Roebuck and Co. moved for summary judgment on various bases. The plaintiff presented these three affidavits in opposition to Sears’ summary judgment motion. The court denied the motion for summary judgment.
Sears argued the plaintiff could not demonstrate any causal connection …
Continue ReadingVarious Cases Remanded to State Court After Joinder of Law Firm Alleged to Have Induced Plaintiffs to Accept Artificially Low Settlement Amounts Extinguished Diversity Jurisdiction
Various plaintiffs (Baclaan plaintiffs) filed a motion to remand and/or abstain and a motion for leave to name a new party defendant. Other groups of plaintiffs (Toro plaintiffs and Hopkins plaintiffs) filed similar motions in their respective cases. Defendant Arter & Hadden LLP (A&H) filed a joint memorandum in opposition to all three motions, to which all three groups of plaintiffs replied. The court granted all the motions and remanded all cases to state court.
Baclaan and Toro plaintiffs are class actions and Hopkins is …
Continue ReadingIdentity of Navy Ship Where Plaintiff Served Enough to Trigger Federal Officer Removability Clock
Plaintiff Marvin Smith alleged asbestos exposure while serving as a fireman in the U.S. Navy from 1951-54, and while working as a fireman and warehouseman at various shipyards and warehouses. The plaintiff and his wife sued various defendants in state court after he was diagnosed with pleural mesothelioma. Defendant Crane Co. removed this mesothelioma case to federal court under the federal officer removal statute; the plaintiffs moved to remand, alleging untimely removal, which the court granted.
The plaintiffs argued removability was ascertainable when Smith was …
Continue ReadingFederal Court Suspicious of Plaintiff’s Motion for Leave to Amend to Add Non-Diverse Defendant; Motion Denied
The plaintiffs filed a motion for leave to file an amended complaint to add Taylor-Seidenbach, Inc., a non-diverse defendant, and to reflect additional facts and information. The court denied the plaintiffs’ motion.
This case was originally filed in state court and removed to federal court by defendants Puget Sound Commerce Center, Vigor Industrial LLC, and Vigor Shipyards (“removing defendants”) on the basis of diversity jurisdiction. The plaintiffs alleged asbestos exposure due to plaintiff Nolan Legeaux’s work in construction, industrial plants, and shipyards, and as a …
Continue ReadingGovernment Contractor Defense Applied to Crane Such That Motion to Remand to State Court Denied
The decedent’s family filed a complaint in state court, which was removed to federal court by Crane Co. based upon the federal officer defense. The plaintiffs filed a motion to remand or, in the alternative, to sever all claims other than those against Crane and to remand all other claims. The motion to remand was denied.
The decedent served in the Navy from 1952-56, and was then employed at Bethlehem Steel Sparrows Point Shipyard from 1956-59; from 1959-63, the decedent worked as a laborer at …
Continue ReadingCollateral Estoppel Did Not Bar Petition to Perpetuate Testimony in Federal Court Prior to Filing Suit Due to Key Distinctions Between Federal and Texas Rules of Civil Procedure
The petitioner filed suit against various entities after developing mesothelioma, alleging asbestos exposure while working for Square D in Cedar Rapids, Iowa from 1971-76. Due to her extremely bad and rapidly deteriorating health, the petitioner sought a court order authorizing her oral and videotaped deposition for use in her anticipated lawsuit for either personal injury or wrongful death. The court granted her request to perpetuate testimony.
The court analyzed Federal Rule of Civil Procedure 27(a), which establishes the procedure for obtaining a pre-suit deposition to …
Continue ReadingCertification of Class for Unmanifested Asbestos Claims in Bankruptcy Court Denied
Debtors filed voluntary petitions for relief in the United States Bankruptcy Court; certain debtors’ subsidiaries have potential liability related to former employees’ alleged exposure to asbestos in power plants owned or operated by debtors’ predecessors. The bankruptcy court issued an order setting a bar date for all asbestos claimants, establishing requirements for proofs of claim for manifested and unmanifested asbestos claimants, and notice procedures. Appellants filed a motion seeking to have the court, among other things, certify a class of persons holding unmanifested asbestos claims. …
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