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. …
Continue ReadingAuthor: Susan E. Van Gelder
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 …
Continue ReadingBrake 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 …
Continue ReadingLouisiana 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 …
Continue ReadingWisconsin 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 …
Continue ReadingCourt 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 …
Continue ReadingDefendants’ 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 …
Continue ReadingCourt 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.” …
Continue ReadingCourt 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 …
Continue ReadingState 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 …
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