The plaintiff was an industrial and commercial electrician diagnosed with malignant pleural mesothelioma. He and his wife filed a complaint alleging negligence against various defendants. The plaintiffs argued defendants were vicariously liable for the acts of their independent contractor employees (non-delegable duty doctrine), those of their own employees (respondeat superior), and as premises owners. Defendants Bremen Casting and Mastic Home Exteriors moved for summary judgment, which was partially granted on the negligence of independent contractor and premises liability claims. All parties moved for interlocutory appeal. …
Continue ReadingAuthor: Lynn A. Lehnert
Beware Drafters of Purchase Agreements — Unambiguous Terms in Stock Purchase Agreement Assigns Asbestos Liabilities to Purchasers
Plaintiff Cooper Industries brought a declaratory judgment against Precision Castparts Corp. and Wyman-Gordon Company, for defense and indemnification costs for personal injury asbestos lawsuits, pursuant to a stock purchase agreement between Cooper and Wyman. The plaintiff and defendants both filed summary judgments; the plaintiff’s summary judgment was granted in part, and the defendants’ summary judgment was denied.
Cooper acquired Cameron Iron Works in 1989; in 1994 Wyman purchased the Forged Products business unit from Cooper pursuant to a Stock Purchase Agreement (SPA). In 1995, Cooper …
Continue ReadingMagistrate Judge Recommends Various Rulings on Five Summary Judgment Motions Filed by Defendants
The United States Magistrate Judge recommended disposition on five summary judgment motions filed by various defendants in this mesothelioma case wherein plaintiffs alleged asbestos exposure during plaintiff Mark Hillyer’s employment with the U.S. Navy from 1967-1997. The only product identification witness was plaintiff Mark Hillyer, who testified that he was exposed to asbestos through his maintenance work on reactor plant systems, steam plant systems, engines, and turbine generators. In deciding these motions, the court applied maritime law such that plaintiff must show that (1) he …
Continue ReadingJury Returns Defense Verdict on Failure to Warn and Design Defect Claims Involving Contaminated Talc and Kent Cigarettes
In a case involving a variety of alleged asbestos exposures, trial proceeded against three defendants – Lorillard Tobacco, H&V, and Whittaker Clark – for asbestos exposures through allegedly contaminated talc and Kent cigarettes with micronite filters. The jury found that plaintiff did not prove by a preponderance of the evidence its failure to warn claims against all three defendants. Design defect claims were alleged against Lorillard and H&V; again, the jury found that plaintiff did not prove by a preponderance of the evidence that both …
Continue ReadingPlaintiff’s Own Allegations Fail to Establish Personal Jurisdiction Against Defendant Federal-Mogul
In the same case reported on today, the court also determined whether personal jurisdiction existed for defendant Federal-Mogul Asbestos Injury Trust, as successor to the former Vellumoid Division of Federal-Mogul and as successor to Felt-Products Manufacturing Co. (Federal-Mogul). The plaintiff failed to respond to Federal-Mogul’s personal jurisdiction motion. The complaint listed 78 defendants, and alleged that all defendants were amenable to suit in Missouri by reason of having sold, distributed and/or installed asbestos-containing products in Missouri or by reason of having placed the same …
Continue ReadingPlaintiff’s Attempt to Avoid Federal Subject Matter Jurisdiction by Disclaiming Federal Officer Claims Unsuccessful
The plaintiff asserted various claims against 78 defendants due to mesothelioma developed from alleged asbestos exposure incurred during his civilian work in the Navy from 1958-64, Kambien from 1966-69, and Polaroid from 1969-97. The plaintiff attempted to make the action un-removable by disclaiming any relief for injuries sustained upon a federal enclave or as a result of malfeasance of persons acting as federal officers. However, the plaintiff’s deposition testimony triggered defendant Crane’s right to remove. Crane timely removed and the plaintiff moved to remand, which …
Continue Reading$3.5 Million Verdict Against National Grid Generation, LLC Upheld
On August 4, 2016, the Supreme Court of New York affirmed the jury’s award of $3.5 million against defendant National Grid Generation, LLC. The evidence showed that LILCO, National Grid’s predecessor in interest, issued detailed specifications directing contractors on how to mix and apply asbestos-containing concrete and insulation at a power plant. This supported the jury’s finding of a violation of Labor Law § 200. The fact that LILCO ensured that its directives were followed by supervising the superintendents, rather than by directly supervising the …
Continue ReadingArgument That Plaintiff’s Counsel Misrepresented Return of Privileged Memo Unavailing; Defendant’s Own Actions Waived Privilege
Defendant J-M Manufacturing Company, Inc. moved to vacate the Recommendation of the Special Master finding that J-M waived privilege. In so doing, the defendant argued the Special Master erroneously applied New York law instead of California law in determining that the defendant waived the attorney-client privilege attached to the redacted and unredacted versions of a 1983 memo from the defendant’s in-house counsel to its president. The plaintiff opposed the motion.
In its motion to vacate, J-M argued the memo was first inadvertently produced in a …
Continue ReadingMeeting Agendas Between Non-Party Consultant and Counsel for Asbestos Friction Clients Not Privileged
The plaintiffs’ law firm of Maune Raichle Hartley French & Mudd, LLC (Maune) subpoenaed documents from Exponent, Inc., a non-party in Maune’s asbestos litigation pending in Madison County, Illinois. At the request of Exponent, the circuit court held Exponent in friendly civil contempt for refusing to provide an unredacted version of certain documents requested in Maune’s subpoena. Exponent appealed this contempt order as well as the underlying discovery order. Exponent argued that the circuit court abused its discretion in requiring production of these documents, because …
Continue ReadingPlaintiff Could Not Side-Step Manville Trust by Directly Suing Defendant Where Claim was a Pre-Petition Claim Subject to Discharge by Bankruptcy
The plaintiff, Lynda Berry, filed an asbestos lawsuit in Louisiana against Graphic Packaging International for mesothelioma due secondary exposure from her husband’s work at the Manville Forest Products (MFP) mill from 1961-2010. The plaintiff’s petition included claims against Manville for asbestos it produced, and claims against Graphic for negligently maintaining the premises. Graphic filed an emergency motion for enforcement of the bankruptcy confirmation orders of the Johns-Manville Corporation and MFP. Graphic argued it was a successor of MFP, and as such, the plaintiff must first …
Continue Reading