Susan E. Van Gelder

All articles by Susan E. Van Gelder

 

Court Lacks Specific Jurisdiction Where Complaint is Devoid of Allegations that Injury Arose Out of Defendants’ Contacts with State

The plaintiffs’ complaint alleged that John Clark was exposed to asbestos from the defendants’ products while serving in the U.S. Air Force and during his employment at McDonald Douglas and Boeing. Multiple defendants made motions to dismiss, arguing that the District Court lacked jurisdiction over them. The plaintiffs failed to file timely responses to any of the motions and the court used it is discretion to construe the plaintiffs’ failure to do so as an admission of the merits of the motion. In granting the…  

Post-Trial Motion for Additur Granted, Increasing Mesothelioma Pain and Suffering Damages

The plaintiff’s decedent, Richard Voelker, was diagnosed with and died from mesothelioma. A personal injury action was pursued and resulted in a verdict awarding the Estate various damages, including a pain and suffering award of $250,000. The plaintiff filed a post-trial motion for additur arguing that the jury’s award for pain and suffering was inadequate compensation for Mr. Voelker’s “extraordinarily horrific” suffering. The court granted the motion, increasing the pain and suffering award to $600,000. The court cited to the plaintiff’s video trial testimony and…  

Plaintiff’s Failure to Accurately Identify Brand Name of Insulation Product During Deposition Results in Summary Judgment for Manufacturer

The plaintiff alleges he contracted mesothelioma as a result of his exposure to asbestos-containing products while working as a cleaner at New York Shipbuilding and Drydock Company in Camden, New Jersey, and as a rigger at Sun Ship Yard in Chester, Pennsylvania. The plaintiff testified that he was exposed to asbestos-containing insulation and the only insulation manufacturers identified by the plaintiff were Owens-Corning Fiberglass Corporation and Johns-Manville. During his deposition, the plaintiff was shown the Owens-Illinois “Kaylo” insulation label and testified that he did not…  

Former NY Assemblyman Sheldon Silver Convicted On All Seven Corruption Charges

Following a five week trial and after two jurors asked to be excused during jury deliberations, former New York Assemblyman Sheldon Silver was convicted on all seven corruption charges arising from two deals that netted him approximately $4 million in kickbacks. One deal involved the transfer of $500,000 in State funds to Silver’s friend, Dr. Robert Taub at Columbia University for cancer research. In exchange for these funds, Dr. Taub referred mesothelioma patients to Weitz & Luxenberg, who in turn paid Mr. Silver for the…  

Plaintiff’s Reliance on Precluded Expert Report Results in Dismissal of Action

The plaintiff brought this case alleging that his asbestosis and mesothelioma was caused by asbestos exposure during his employment with United States Navy. Several defendants were dismissed from the action, leaving electrical component manufacturer, Westinghouse as the sole remaining defendant, against whom plaintiff claimed exposure to asbestos from arc chutes contained in Westinghouse electrical products. Prior to the current motion for summary judgment, Westinghouse served several motions seeking to preclude certain portions of plaintiff’s proof, including the expert report and opinion of the plaintiff’s causation…  

Sheldon Silver Corruption Trial Ongoing with Testimony from Weitz & Luxenberg Attorneys

Jury selection has been completed and trial testimony is ongoing in the corruption trial against State Assembly Speaker Sheldon Silver. Prosecutors allege, among other things, that Silver, who had previously been on the payroll at Weitz & Luxenberg, funneled state funds to Dr. Robert Taub of Columbia University for cancer research in exchange for referrals of mesothelioma patients to Weitz & Luxenberg, which then paid Silver for the patient referrals. Jury selection started in early November and the panel originally consisted of nine women and…  

Co-Defendant’s Bankruptcy Filing Did Not Result In A “Certain and Final Dismissal” For Purposes Of Removal Under Diversity Jurisdiction

The plaintiff and his wife commenced this action in Louisiana state court, alleging that his mesothelioma was caused by his exposure to several asbestos-containing products, including products supplied by various Louisiana companies. At the time of commencement, diversity jurisdiction did not exist and the action was therefore not removable to federal court. Several defendants settled, leaving defendants Foster Wheeler and Eagle as the only remaining defendants.  oster Wheeler is a diverse company for purposes of removal, Eagle is not. Eagle filed for bankruptcy during the…  

Federal Court Grants Summary Judgment, Holding a Shipbuilder is a Service Provider, Not a Seller of a Product

The plaintiffs alleged that Glenn Hassebrock was exposed to asbestos while working as a union pipefitter at various shipyards.  The defendant shipbuilding company moved for partial summary judgment, seeking dismissal of the products liability claims on the grounds that the company acted predominantly as a service provider, rather than a distributor of asbestos-containing products.  The court agreed, finding that the shipbuilding company “was not in the chain of manufacturing and selling asbestos related products, rather it was providing the service of producing Navy vessels.  The…  

After Supplier Defaulted Through Nonappearance, Court Awarded Damages In Unopposed Proceeding

An Erie County, New York court has issued a decision on damages in a default action where damages and liability were uncontested following a two-day bench trial in an asbestos case involving Joseph Muir, a 58-year-old man living with mesothelioma.  Defendant Hedman Resources, Ltd. was the only remaining defendant. Hedman had been served with  the summons and complaint pursuant to alternative service granted by the court two years earlier. Hedman never appeared in the action and was in default at the time of the trial.…  

Motion to Consolidate Trials Granted

The plaintiffs brought a motion to consolidate separate actions into three separate groups for joint trial.  The court noted that as to the three groups, all of the plaintiffs are represented by the same law firm, are in the same phase of discovery, and the plaintiffs allege the same type of cancer. The court granted the motion, finding “…that the trials in each of the groups involve common questions of law and fact and that consolidation of these cases into the three groups will not…  

Brake Defendant’s Motion to Preclude Causation Expert Under Daubert Denied

The plaintiff commenced this wrongful death action alleging that the decedent developed mesothelioma caused by prolonged exposure to brake dust from brake pads manufactured by Bendix while working as a part-time bookkeeper at an auto repair shop from 1984-1990.  Defendant moved in limine to preclude testimony from the plaintiff’s expert, Dr. Jill Ohar, with respect to any testimony that brake dust causes mesothelioma and any testimony based on the every exposure theory. The defendant also sought to preclude any testimony that asbestos or chrysotile causes…  

Louisiana Federal Court Grants Three Defendants’ Summary Judgment Motions Due to Lack of Exposure

The plaintiff commenced this wrongful death mesothelioma case, alleging in part that his father was exposed to asbestos-containing products while in the U.S. Naval Reserve in the 1950s and 1960s. The defendants, GE, CBS, and Foster Wheeler, moved for summary judgment, arguing that the plaintiff’s evidence was insufficient to establish the decedent’s exposure to their products. The plaintiff opposed the motion with an expert affidavit, described by the court as follows: “Plaintiff relies on the expert report of Laurence Durio, who opined that Mr. Laurent…  

Wisconsin Federal Court Refuses to Enforce Settlement and Ruled Defendant Waived Defenses of Standing, Mootness, and Issue Preclusion

The plaintiff sued the defendant, Owens-Illinois, for injuries caused to the decedent by asbestos exposure, which proceeded in multidistrict litigation for many years and was transferred back to the District Court of Wisconsin in 2014. A settlement agreement had apparently been reached, which the plaintiff’s estate representative claimed was not authorized. After the district court refused to enforce the settlement, Owens-Corning moved to dismiss the case on three grounds: the plaintiff lacked standing as the estate representative; the plaintiff’s action is moot because she failed…  

Court of Appeals Upholds Lower Court’s Rulings Denying Caterpillar’s Motions for Summary Judgment, a New Trial, and to Vacate Jury Award

In this case, it was alleged that the decedent, Edwin Estenson, was exposed to asbestos while in the Navy from 1948 to 1952 and while working on Caterpillar equipment for three contractors between 1955 and the late 1960s. Prior to trial, Caterpillar’s  motion for summary judgment was denied.  Following trial, where Caterpillar was the only defendant, the jury awarded the plaintiff a verdict of approximately $4.5 million. Caterpillar subsequently appealed the court’s denial of its motion for summary judgment, motion for a new trial, and…  

Defendants’ Motion for Summary Judgment on Judicial Estoppel Grounds Denied Because Plaintiff Did Not Act in Bad Faith When He Failed to Disclose His Asbestos Lawsuit in Subsequent Bankruptcy Filing

The plaintiff claims he developed an asbestos-related illness as a result of exposure to asbestos while working aboard various ships. The plaintiff originally brought his asbestos-related claims against several defendants in 1997. His claims were administratively dismissed in a manner allowing for those claims to be brought at a later time; the claims were reinstated in 2001, but there was no evidence that the plaintiff had been informed that his lawsuit had been reinstated.  Following the reinstatement, the plaintiff filed for bankruptcy under Chapter 7…  

Court Rejects Plaintiffs’ Experts’ Opinions Because They Did Not Read Plaintiff’s Deposition Testimony and Grants Summary Judgment Based on Insufficient Product Exposure

In this mesothelioma case, plaintiff James Shiffer worked at a power plant for several months in 1969 and 1970, during which time he claimed exposure to a Westinghouse turbine with asbestos-containing components that was present at the plant. Westinghouse moved for summary judgment because “…[t]here is no dispute Shiffer did not repair or maintain any Westinghouse equipment, and did not install or remove any insulation material himself. Nor is there any dispute that no already-installed insulation was removed or disturbed during Shiffer’s time at Ginna.”…  

Court Provides Mixed Ruling in Applying Kansas Law and Granting Summary Judgment to One Defendant, but not the Other

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendants Hennessy Industries and Caterpillar Incorporated moved to apply Kansas law and for summary judgment. The court granted in part Hennessy’s motion and dismissed the plaintiff’s complaint. The court found that Kansas law “possesses the most significant relationship to these parties and causes of actions.” In its assessment, the court reviewed four factors: the place of exposure and diagnosis, where the conduct causing the injury…  

State of The Art Experts Drs. Markowitz and Rosner Found Qualified to Testify

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendant Caterpillar Incorporated moved to strike the expert state of the art testimony of historians Dr. Gerald Markowitz and Dr. David Rosner, arguing that “…(1) their testimony will not assist the jury in deciding any issue in this case; (2) they fail to qualify as ‘experts’ under Rule 702; (3) their report was written solely for the purposes of litigation; (4) their report is unreliable…  

Connecticut Appellate Court Affirms Dismissal of Asbestos Action for Failure to Prosecute the Action with Reasonable Diligence

The plaintiff’s decedent brought this personal injury action in August 2009, alleging that his mesothelioma was caused by exposure to asbestos from several defendants’ products. The plaintiff’s decedent died a few days after the commencement of this action and before any deposition testimony or product identification evidence was disclosed. The plaintiff was appointed as executrix of the decedent’s estate less than a month after his death. In November 2012, three years after the decedent’s death, the trial court set a trial date. The defendants moved…  

Court Refuses to Dismiss Garlock’s RICO Complaints Against Plaintiff Law Firms

Following the well-publicized decision in the Garlock bankruptcy, Garlock commenced a number of actions in federal court against asbestos plaintiffs’ law firms that allegedly engaged in fraud in the settlement of their clients’ mesothelioma claims against Garlock. In two of these actions, the defendant plaintiffs’ firms moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on a variety of grounds, including that the claims were time-barred. One of the arguments was that Garlock knew of the alleged misrepresentations so long ago that…  

Court Applies Delaware’s Borrowing Statute in Granting Defendants’ Summary Judgment on Statute of Limitations

In this case, the plaintiff alleged that his lung cancer was caused by exposure to several defendants’ asbestos-containing products while he was working in Michigan. The plaintiff and his wife filed their claim in Delaware and all defendants moved for summary judgment, arguing that the action was untimely under the Delaware statute of limitations, which they claimed applied pursuant to Delaware’s “Borrowing Statute,”10 Del. C. 8121. The court agreed and granted defendants’ motions for summary judgment. The court pointed out that the parties had agreed…  

Plaintiff’s Expert B Reader Found Qualified to Testify on Exposure and Causation

In this federal court case, the defendants moved to preclude the testimony of the plaintiff’s expert, Dr. Matthew Vuskovich, arguing that he was not qualified to testify, his testimony was not sufficiently reliable, and his opinions were based on the “every exposure” theory. The court denied the motion, finding Dr. Vuskovich’s credentials as a certified B Reader to be adequate. Regarding the reliability of his testimony and the “every exposure” argument, the court held: “Dr. Vuskovich does state that asbestosis is a cumulative disease, which…  

Plaintiff’s Expert Found Qualified to Testify and Pump Manufacturer Denied Summary Judgment on Frequency, Regularity, and Proximity Argument

In this federal court case, the plaintiff alleges that he was exposed to asbestos while serving in the Navy from 1954 to 1958 while aboard the USS Roosevelt, USS Bremerton, and USS Intrepid. Several defendants moved to limit the trial testimony of the plaintiff’s proffered expert, Dr. Jerome Spear, arguing that his report and testimony rely on the “every exposure” theory, his opinions are based on unreliable scientific methodology, and his testimony would not assist the jury. The defendant, Ingersoll-Rand Company (“Ingersoll-Rand”), also moved for…  

John Crane Inc. Establishes Prima Facie Entitlement to Summary Judgment

In this federal court case, defendant John Crane Inc. moved for summary judgment. The plaintiffs did not oppose the motion, and the court stated that it “may consider the forecast of evidence presented by the movant to be undisputed for the purposes of the present motion. See Fed. R. Civ. P. 56(e)(2).” In granting Crane summary judgment, the court held: “To prove causation in North Carolina, a plaintiff in a personal injury asbestos case ‘must present “evidence of exposure to a specific product on a…  

Preclusion of Plaintiff’s Expert Witness and Defendant’s Investigation of Juror Do Not Warrant New Trial

In this federal case, the plaintiff, Charles Krik, sued Owens-Illinois and ExxonMobil and claimed they negligently exposed him to asbestos, causing his lung cancer. The case went to trial and a verdict was returned in favor of the defendants as the jury found that the plaintiff’s smoking was the sole cause of his lung cancer. The plaintiff subsequently moved for a new trial, arguing that the exclusion of his expert was in error and prejudicial and that Mobil’s investigation of contact between the plaintiff and…  

Federal Court Refuses to Maintain Supplemental Jurisdiction After Plaintiff Amends Complaint

In this federal court case, the decedent, Thomas Maguire alleged exposure to asbestos while he served as a metalsmith in the Navy between 1958 and 1961, and then again while working as a steamfitter aboard Navy ships between 1962 and 1963. The defendant, Crane Co. removed the case to federal court based on the federal officer statute 28 U.S.C. 1442(a)(1). The plaintiff’s original motion to remand was denied, but they were granted leave to amend the complaint to remove all federal claims and defenses. The…  

National Grid Successfully Opposes Co-Defendant’s Motion to Dismiss Cross-Claims

In this NYCAL action, the plaintiff, Michael Koulermos claimed he developed mesothelioma from working near employees of Treadwell Corp. while he was employed at the Northport Power Station. The plaintiff subsequently agreed to a no-opposition summary judgment motion on behalf of Treadwell. However, the co-defendant, National Grid, opposed the motion’s requested dismissal of any cross-claims. The court agreed with National Grid and held: “Treadwell has failed to establish a prima facie case that National Grid’s cross-claims have no merit. Treadwell makes no specific argument as…  

Court Grants Non-Party Expert’s Motion to Quash Subpoena Even Though Items Sought Deemed Relevant

In this federal court motion, Dr. Arthur Frank moved to quash the subpoena served on him by Honeywell International Inc. as a defendant in a pending Eastern District of North Carolina asbestos case, Yates v. Ford Motor Co., et al.  Honeywell subpoenaed Dr. Frank, a prolific plaintiff’s expert in asbestos cases and a non-party to the North Carolina action, concerning his successful lobby of the National Cancer Institute (NCI) to change language on its website and in its “Fact Sheets” regarding cancer risks to…  

California Appellate Court Holds No Duty for Vessel Owner Based on No Active Control

In this mesothelioma case, the decedent worked for a vessel repair company and performed repair work on a vessel involving pipe insulation possibly containing asbestos. His estate sued the vessel owner under “both the Longshore & Harbor Workers’ Compensation Act, 33 United States Code section 905(b) (the Act, or section 905(b)) and state law.” The vessel owner moved for summary judgment on a number of  grounds, including that it did not actively control the area where the alleged exposure occurred. The lower court granted the…  

Plaintiffs’ Concession to Not Pursue Navy Exposure Results in Remand Under Federal Officer Removal Statute

In this case, the plaintiffs claimed that the decedent was exposed to asbestos in connection with force draft blowers manufactured by Carrier Corporation and another defendant while in the Navy on board the USS Edson. The plaintiffs moved to remand after Carrier removed the case based on federal officer jurisdiction under 28 U.S.C. 1442(a)(1). In granting the motion to remand, the court accepted the plaintiffs’ argument that despite the exposure, they expressly disclaimed any intention to pursue damages in connection with any Navy exposure: “In…  

Outside Contractor Granted Summary Judgment Under Frequency, Proximity, and Regularity Proximate Cause Analysis

In this Maryland case, the plaintiff’s decedent was exposed to asbestos while aboard various Naval vessels. He claimed to have walked by outside contractors installing bulkhead Marinite panels and insulation while heading to and from the engine rooms. Defendant Hopeman moved for summary judgment based on product identification grounds.  Applying Maryland law, the court denied Hopeman’s motion on product identification grounds, even though that portion of the motion was unopposed, finding that the defendant had failed to meet its burden of proof that the work…