Timothy C. Connor

All articles by Timothy C. Connor

 

Talc Defendant Entitled to Costs after Favorable Verdict

CALIFORNIA — In 2016, a Los Angeles jury ruled in favor of defendant Colgate-Palmolive Company (Colgate), and against Plaintiff Elizabeth Alfaro, who alleged that her mesothelioma was caused by exposure to asbestos from talcum powder products. The jury returned a verdict in favor of Colgate on the exposure claims; this verdict was affirmed on appeal. Colgate then appealed the trial court’s denial of its request for $300,000 in costs and expert witness fees. This request was made pursuant to the California statutory law scheme which…  

Application of Statute of Repose Upheld for Material Supplier

WISCONSIN — The plaintiff Thomas Mohn alleged that he developed lung cancer from exposure to asbestos while working with insulated turbine blankets supplied by defendant Sprinkmann during the construction of the Genoa power plant in the 1960s. Sprinkman filed a motion for summary judgment on statue of repose grounds, which the trial court granted. The plaintiff appealed, and the Wisconsin Appellate Court affirmed. Wisconsin’s statute of repose imposed a time limit of ten years for bringing claims related to the improvement of real property. The…  

Case Remanded to State Court as Shipyard Defendant Fails to Show Causal

LOUISIANA — The plaintiff Terry Brady alleged that his lung cancer was caused by exposure to asbestos while working aboard U.S. Navy vessels from 1968-1989. During the plaintiff’s time aboard the USS Robert A. Owens, the ship docked at a shipyard operated by defendant Avondale Shipyards. The plaintiff filed this matter in state court, alleging that the defendants failed to warn of the hazards of asbestos, failed to provide a safe environment, and failed to employ safe procedures for handling asbestos. Avondale removed the case…  

Clutch Manufacturer Cannot File Successive Summary Judgment Motions Based on New, Broader Expert Opinion

ALABAMA — The plaintiffs Ray and Donna Franklin alleged that Mr. Franklin’s death from asbestosis-related respiratory failure arose from his work with clutches manufactured by defendant Dana Corporation. The action, originally filed in Calhoun County Alabama, was removed to federal court, and was transferred to the MDL in the Eastern District of Pennsylvania. While in the MDL, Dana timely moved for summary judgment, arguing that there was insufficient evidence that Mr. Franklin had ever been exposed to asbestos from a Dana product, or that a…  

Joint Compound Defendant Dismissed for Lack of Personal Jurisdiction on Appeal

FLORIDA — The plaintiff Steven Bolin alleged that he developed mesothelioma from exposure to asbestos from his work with various products in Florida from 1969 to 1981. Specific to the appellant, Bolin’s amended complaint alleged that he used Southern Wall Products’ (SWP) joint compound while working as a laborer and/or construction worker in Florida in 1975-1977. SWP moved to dismiss the complaint for lack of personal jurisdiction, and in support, supplied an affidavit averring that SWP and its predecessor Ruco never had an office in…  

Delaware Take-Home Summary Judgment Reversed for Paper Manufacturers

DELAWARE — Decedent Dorothy Ramsey’s husband Robert Ramsey worked as a maintenance worker at Haveg Industries, Inc. from 1967 to 1992, and allegedly handled asbestos products manufactured by defendants Herty and Hollingsworth and Vose (together, the manufacturers) on a regular basis. The plaintiff alleged that Mrs. Ramsey developed her fatal lung cancer from regularly laundering Mr. Ramsey’s clothes which were contaminated with asbestos dust emanating from his use of the manufacturers’ products, among others. The trial court had granted the manufacturers’ summary judgment motions, finding…  

Mill Defendant’s Summary Judgment Motions Granted in Community Exposure/Take-Home Case

WISCONSIN –Weyerhauser operated a manufacturing facility in Marshfield, Wisconsin from 1960 to 2000. Among other wood products manufactured at the mill, Weyerhauser produced asbestos-core doors in Marshfield from 1971 to 1978. The plaintiffs’ decedents Elvira Kilty and Herbert Spatz each worked at the Marshfield Weyerhauser mill. Due to the Wisconsin Workers’ Compensation bar, they alleged that their mesothelioma was caused by community exposures and/or household exposures emanating from the clothing of their children and father, respectively, all of whom also worked for Weyerhauser. Weyerhauser moved…  

Talc Defendant Strikes Plaintiff’s Expert and Avoids Spoliation Sanctions

NORTH CAROLINA — The plaintiff Ann Finch’s decedent Franklin Finch worked at a Firestone tire factory in Wilson, North Carolina from 1975-1995 and alleged that he was exposed to asbestos during his time there, causing his mesothelioma. Among other allegations of exposure, the plaintiff alleged that the decedent was exposed to talc-contaminated asbestos at Firestone, allegedly supplied by defendant Pfizer and others. In support of this allegation, the plaintiff offered an expert report from Sean Fitzgerald, who tested an identification badge worn by Decedent, and…  

Valve Manufacturer Granted Summary Judgment as Court Finds No Evidence of Conspiracy

DELAWARE — Plaintiff Marguerite MacQueen filed claims in the Superior Court of Delaware against defendant Crane Co., among others, for manufacturing products that exposed her late husband David MacQueen to asbestos during his time aboard the USS Randolph and USS Independence in the United States Navy from 1956 to 1960, and during his time as a salesman for the Union Carbide Corporation from 1963 to 1980.  Crane subsequently removed the matter to federal court on federal officer jurisdiction. Crane moved for summary judgment on the…  

Brake Lining Manufacturer’s Summary Judgment Affirmed in Part in Second Filing in Different Counties

OHIO — Plaintiff Margie Taylor, the executor of the estate of her father Russell Young, originally filed claims against Goodyear Tire & Rubber Company in the Cuyahoga County Court of Common Pleas, alleging that Young was exposed to asbestos from work on aircraft brake linings during his employment with Goodyear Aerospace Corporation. Goodyear filed a motion for summary judgment on premises liability, negligent undertaking, and intentional tort claims, which was granted by the court in an entry on the electronic “File & Serve” docket, and…  

Allegations of “Information and Belief” Interrogatory Answers Insufficient to Overcome Summary Judgment

NEW YORK — The decedent Julia Sgarlata’s estate brought suit against various companies alleging that she was exposed to asbestos while employed as an inspector, and as a shipping and receiving manager at Diemolding Corporation in New York State from 1955 to 1990, causing her peritoneal mesothelioma. The court issued a written decision on its April 19, 2018 grant of summary judgment for defendant Cytec Engineering, f/k/a American Cyanamid as successor to Fiberite (Fiberite), finding no evidence that the decedent was ever in the presence…  

Court Grants Summary Judgment to Some Pump Manufacturers, while denying it to others in Maritime Action

PENNSYLVANIA — The court issued rulings on summary judgment motions from the five remaining defendants in this lung cancer case, where the plaintiff Robert Hedrick alleged exposure to asbestos while serving in the United States Navy from 1953-1957.  the plaintiff claimed that his lung cancer was caused by alleged work with asbestos products in the boiler rooms and engine rooms of four naval vessels.  Of the five product manufacturer defendants, the plaintiff only identified one by name at deposition.  Instead, he relied on the combination…  

$21.7 Million Compensatory Verdict and $4 Million Punitive Awards in California Asbestos-Talc Case

CALIFORNIA — Sixty-eight year old Plaintiff Joanne Anderson sued Johnson & Johnson (J & J) and other defendants in state court in Los Angeles in 2017, alleging that her mesothelioma was caused in part by use of talcum powder that was contaminated with asbestos.  On Wednesday, May 23, 2018, a California jury returned a $21.7 million compensatory verdict for the plaintiff, assigning 67 percent to J & J.  The jury is still deliberating on whether to award punitive damages. Today, the jury awarded $4 million…  

Court Hears Motions to Overturn Verdict in $117 Million New Jersey Talc Case

NEW JERSEY — In April of this year, a New Jersey jury awarded $37 million in compensatory damages and $80 million in punitive damages to plaintiff Stephen Lanzo, who alleged that he developed mesothelioma from years of use of defendants’ talcum powder, which the plaintiff claimed was contaminated with asbestos. On Wednesday, May 23, 2018, the court heard arguments on Imerys Talc America, Inc.’s motions to overturn the verdict. In asking the court to overturn the verdict, Imerys argued the plaintiff had presented no competent…  

Talc Case Remanded as Defendant Fails to Establish Improper Joinder

LOUISIANA — The plaintiff, Marilyn Rousseau, sued defendants Johnson & Johnson (J&J) and K&B Louisiana Corporation (d/b/a Rite Aid Corporation), among others, claiming that her mesothelioma was caused in part by her use of their allegedly asbestos-contaminated talc products.  Plaintiff, who was a Louisiana citizen, originally brought the suit in state court in Orleans Parish.  J&J removed the case to federal court, claiming diversity jurisdiction and contending that K&B Louisiana, the only non-diverse defendant entity, was improperly joined. Noting that the improper joinder doctrine constituted…  

Summary Judgment Reversed on Application of “All Sums” Approach

MISSOURI—This suit involves multiple insurance policies covering the same dates of exposure.  The spouse of an Anheuser-Busch (AB) employee developed mesothelioma from asbestos exposure acquired while laundering the clothes of her husband, who worked for AB from 1971-1996.  Suit was filed in 2008, and AB tendered its defense to Zurich American Insurance Company (Zurich), which had issued personal injury and excess coverage policies to AB for two periods covering 1967-72 and 1972-1980.  Zurich defended under a reservation of rights, paid all defense costs, and settled…  

Employer and its Insurer Granted Summary Judgment Due to Longshore and Harbor Workers’ Compensation Act Exclusivity

LOUISIANA — The plaintiff sued his employer and its insurance company alleging that he developed lung cancer as a result of exposure to asbestos while working as a pipefitter for Huntington Ingalls at the Avondale Shipyard. Defendants moved for summary judgment arguing that plaintiff’s claims against them are subject to the exclusivity of the Longshore and Harbor Workers’ Compensation Act (LHWCA). The plaintiff did not substantively oppose this motion, and affirmatively indicated his intention to pursue LHWCA claims against these defendants. The plaintiff filed his…  

Insufficient Evidence to Show Chrysotile Flooring Products Caused Plaintiff’s Peritoneal Mesothelioma

NEW YORK — The court granted summary judgment for two flooring manufacturers in this peritoneal bystander mesothelioma matter. Plaintiff Victoria Pistone alleged that she was exposed to asbestos from vinyl floor covering manufactured by Mannington Mills, and tile manufactured by American Biltrite, while she accompanied her father to work, and in their home from his clothing. The court cited prior New York law in noting that a plaintiff must use a causation expert to establish that the plaintiff was exposed to sufficient levels of asbestos…  

Expert’s Asbestos-Location Map Admissible Only For Plaintiffs With Exposures Within Entire Date Range Depicted by Map

U.S. VIRGIN ISLANDS — Defendant Hess Oil Virgin Island Corporation (HOVIC) filed a motion in limine to exclude a map prepared by the plaintiffs’ expert Martin D. Barrie, Ph.D. in this matter that consolidates the lawsuits of 123 individuals alleging expose to asbestos while working at a HOVIC operated refinery on the island of St. Croix. The map in question condensed 23 pages of data produced in discovery by HOVIC, and depicted all places that asbestos was found at the St. Croix refinery based on…  

Community Exposure Claims by Former Employees Not Barred by Wisconsin Workers’ Compensation Act

WISCONSIN — Two deceased Weyerhauser employees brought claims against their former employer for common law negligence, negligent nuisance, and intentional nuisance. In an effort to avoid the exclusivity provisions of Wisconsin’s Workers’ Compensation Act (WCA), both plaintiffs alleged that the defendant Weyerhauser’s activities exposed them to asbestos in the community, not during the course of their employment with the defendant, causing their mesothelioma. Weyerhauser challenged the pleadings on several bases, and the court granted and denied their motion in part. The court denied Weyerhauser’s motion…  

Cases Remanded After Court Determines Defendant Shipbuilder Controlled Safety Procedures

LOUISIANA — The Eastern District of Louisiana granted motions to remand in two separate mesothelioma cases arising out of alleged exposure to asbestos through work for defendant Avondale Industries, Inc., a shipbuilder for the United States Navy. Each plaintiff originally filed their actions in state court, alleging that Avondale failed to warn of the hazards of asbestos and failed to implement proper safety procedures for the handling of asbestos. Avondale removed the matter to federal court on federal officer jurisdiction. In remanding, the court focused…  

$80 Million Punitive Award in Asbestos-Talc Case

NEW JERSEY — Following up on a prior ACT post  regarding a compensatory damages verdict of $37 million dollars against Johnson & Johnson and Imerys Talc America, Inc., the same New Jersey jury awarded a total of $80 million in punitive damages. This case involved allegations that plaintiff Stephen Lanzo developed mesothelioma after years of use of talcum powder that plaintiff claimed was contaminated with asbestos.  Of the total punitive damages sum, $55 million was awarded against Johnson & Johnson and $25 million against Imerys.…  

Federal Court Denies Summary Judgment Under Massachusetts Statute of Repose, But Grants Defendants’ Motions on Other Grounds

MASSACHUSETTS — The plaintiffs allege that the decedent, Wayne Oliver, developed mesothelioma from bystander exposure to asbestos during his work as a pipe inspector on the construction of two power plants in the 1970s. Defendant General Electric Company (GE) specified and produced steam turbine-generators for the power plants, and supervised their installation. Defendant NSTAR, formerly known as Boston Edison Company (NSTAR/BECO), owned one of the power plants during the time of the decedent’s work. The decedent worked for non-party Bechtel Corporation, who acted as the…  

Limited Access to Exhibits Filed in Asbestos-Related Bankruptcy Cases was Proper Under Bankruptcy Code Section 107

DELAWARE — Appellants Honeywell and Ford filed a request seeking unlimited access to thousands of exhibits (2019 Exhibits) filed in nine Delaware bankruptcy cases commenced in connection with the debtors’ asbestos-related liabilities (Consolidated Cases). All but one of the nine Consolidated Cases was closed. The appellants argued they were entitled to indefinite access to the 2019 Exhibits, including investigating potential fraud in the claims process and advancing the appellants’ legislative and lobbying activities. The appellees (various Trust Advisory Committees and Future Claimants Representatives) opposed the…  

Personal Jurisdiction Motion Denied as Court Focuses on State-Related Contact

WASHINGTON — Decedent Donald Varney alleged that he developed mesothelioma from ambient exposure to defendants’ products while working in various positions at Puget Sound Naval Shipyard in Bremerton, WA, and at Hunters Point Naval Shipyard in San Francisco, CA. Defendants Taco, Inc. and Aurora Pump Company filed identical Motions to Strike and Motions to Dismiss, which the court denied. The defendants’ Motion to Strike pre-judgment interest argued that Washington law made prejudgment interest unavailable for claims of unliquidated damages, and that the plaintiffs’ damages were…  

Jury Finds Pipe Manufacturer Did Not Have a Duty to Warn

PENNSYLVANIA — Decedent Ernest Schrader alleged that he developed mesothelioma from exposure to asbestos from dozens of products during 40 years of working in a DuPont facility in Delaware. Pipe manufacturer Ameron International Corporation was the lone defendant at a two week trial in state court in Philadelphia. Earlier this week, the jury determined that the decedent was exposed to asbestos from Ameron. However, the jury did not find that Ameron was negligent, evidently accepting evidence that the company complied with OSHA standards at the…  

District Court Denies Sheldon Silver’s Motion to Dismiss Following Remand

NEW YORK — The saga of former New York Assemblyman Sheldon Silver continues as the U.S. District Court for the Southern District of New York denied Silver’s Motion to Dismiss charges against him. Among other contentions, the government’s indictment against Silver includes allegations that Silver received more than $3 million dollars in referral fees from the Weitz & Luxenberg firm for clients sent to it by Dr. Taub, a physician specializing in the treatment of mesothelioma. The indictment further alleges that Silver disbursed state funds…  

Plaintiffs’ Experts Permitted to Testify Regarding Conspiracy Claims

Defendant Crane Company filed motions to strike the plaintiff’s expert reports from James A. Bruce, M.D., Barry Castleman Sc.D, and Captain Francis J. Burger as violating Federal Rules of Evidence 402 and 702 in this lung cancer case that was removed to Federal Court. The plaintiff alleged asbestos exposure through his work on two ships in the United States Navy, and through his work as a salesman. Only one count remained from the plaintiff’s Fourth Amended Complaint following Crane’s summary judgment motion, and it alleged…  

Plaintiff Can Serve Jurisdictional Disclosure Demands Regarding Potential Successor Liability in Talc Case

NEW YORK — Plaintiff Richard Arazosa alleged that he was injured as a result of exposure to asbestos-containing cosmetic talcum powder products.  Defendant Imerys SA filed a pre-answer motion to dismiss claims against it, arguing a lack of jurisdiction given its existence as a French holding company with no assets or presence in the United States.  The plaintiff asked the Special Master for permission to serve jurisdictional disclosure demands on Imerys SA with the intent of proving that Imerys SA was the successor to Talco…  

Jury Finds Asbestos-Cement Pipe Supplier Was Not a Substantial Contributing Factor to Plaintiff’s Lung Cancer

LOUISIANA — After a three-week trial, a jury reached a defense verdict in this lung cancer case in favor of lone defendant Ferguson Enterprises and its alleged predecessor Louisiana Utilities Supply Co. (LUSCO), a supplier of asbestos-containing cement pipe.  Plaintiff Thomas Handy claimed that he cut asbestos cement pipe supplied by LUSCO while working as a laborer and pipefitter, and that this exposure among others, caused his lung cancer.  Defendant Ferguson argued that it was not a successor corporation to LUSCO under Louisiana law, that…  

Plaintiff’s “Every Exposure” and “Cumulative Exposure” Theories Unreliable; Various Plaintiff’s Experts Excluded

WASHINGTON — Defendant Scapa Dryer Fabrics, Inc. filed motions to exclude the plaintiff’s exposure and causation experts in this mesothelioma death matter. The Ninth Circuit remanded this matter for a new trial after finding that the District Court failed to make appropriate determinations under Daubert and Federal Rule of Evidence 702 in allowing expert testimony. The plaintiff alleged asbestos exposures during work at the Crown-Zellerbach Pulp and Paper Mill in Camas, WA. The plaintiff worked with dryer felts, among other products, in his time at…  

Four Cases Improperly Removed Due to Citizenship of Managing Agent of Defendant

MONTANA — Four plaintiffs originally filed suit in the Eighth Judicial District of Cascade County Montana alleging exposure to asbestos in Libby, Montana. Defendant BNSF removed the case to federal court on diversity of citizenship grounds, and alleged that BNSF’s managing agent John Swing was fraudulently joined. The court reviewed the Magistrate Judge’s Findings and Recommendations following a November 2017 hearing, and remanded all four cases to state court. Each of the four plaintiffs named 80-year-old Montana resident John Swing in their complaints, and gave…  

Federal Court Collaterally Estops Claims in Separate Disease Case

MISSOURI — Over a period of six years, plaintiff Berj Hovsepian filed two separate actions for two separate diseases, asbestosis and mesothelioma, arising out of his work with various products as a civilian employee of the United States Navy in Boston from 1958-1964. The current action sits in federal court, having been removed from a December 2015 case filed in state court in Missouri. The court granted defendant Ingersoll-Rand’s summary judgment motion on collateral estoppel for the reasons discussed below. In December of 2009, Hovsepian…  

Jury Verdict Against Construction Company Reversed in Premise Liability Case

FLORIDA — Appellant/defendant Bechtel appealed the trial court’s final judgment after a Florida jury found that plaintiff Richard Batchelor’s mesothelioma was caused in part by exposure to asbestos at Florida Power and Light (FPL) during the years 1974 to 1980. Bechtel built the plant at issue, and was responsible for ongoing maintenance services throughout the plaintiff’s six years at FPL, providing over a million contracted man hours during that time period, and having trailers on site for office space and storage. A three judge panel…  

Summary Judgment Granted for Ford on Strict Liability, Punitives, and Conspiracy Claims

DELAWARE — Asbestosis plaintiff Gerald Hickman alleged take home, bystander, and direct exposure to asbestos from, among others, defendant Ford Motor Company. Ford moved for summary judgment, which was granted in part and denied in part. The plaintiff alleged exposure to Ford products during his work around others in garages and gas stations, from his father’s work in the family service station, and from his own repair work on his wife’s new Ford Mustang. Applying Delaware law, the court denied summary judgment as to the…  

No Reasonable Inference that Union Carbide Supplied Asbestos to Joint Compound Manufacturers; Summary Judgment Granted

DELAWARE — Plaintiff Larry Sturgill, who died of mesothelioma, worked in home remodeling and construction for three years, using joint compound manufactured by three companies. Defendant Union Carbide moved for summary judgment, which the court granted. U.S. Gypsum and National Gypsum, were allegedly supplied with Calidria asbestos for their joint compound products by Union Carbide. Virginia substantive law governed the case. Union Carbide argued that 1) the plaintiff could not establish that he worked with any joint compound containing Calidria, 2) that a bulk supplier…  

California Jury Finds Against Asbestos/Talc Defendants for $22.17 Million

CALIFORNIA — Earlier this week, an Alameda County, California jury awarded plaintiffs $22.17 million dollars, comprised of $17.6 million in compensatory damages and $4.6 million in punitive damages.  Defendants Imerys Talc America Inc. (40 percent) and Vanderbilt Minerals LLC (60 percent) were found liable.  Vanderbilt Minerals reportedly settled the case after the compensatory verdict.  The plaintiffs alleged that the 72-year-old decedent developed mesothelioma after working with paint made with talc that was contaminated with asbestos.  According to the plaintiffs’ closing arguments, the defendants had denied…  

Amended Complaint Deleting Federal Claims Does Not Destroy Jurisdiction Over a Validly Removed Case

LOUISIANA — This decision arises out of the court’s review of the plaintiffs’ motion to remand, and appellant’s motion for review of an order granting plaintiffs leave to amend their complaint. The shipyard worker plaintiff originally filed an action in state court naming numerous defendants. The initial petition included failure to warn and negligence claims against the appellant, among other causes of action, and strict products liability and failure to warn claims against a boiler defendant, who also opposed the motion to remand. Approximately three…  

A Look Back at the Bare Metal Defense in 2017

In the past year, the bare metal defense continued to see some variance from jurisdiction to jurisdiction, with at least one federal appellate court taking up an issue for further clarification late in the year. The bare metal or component parts defense essentially provides that a manufacturer is not liable for harm caused by asbestos products that the manufacturer did not manufacture or distribute, and owes no duty to warn of the hazards inherent to those products. It is viewed in some jurisdictions in the…  

Johnson & Johnson Found Not Liable in California Talcum Trial

After almost three days of deliberation following a four week trial, a Los Angeles area jury reached a defense verdict in a mesothelioma case against Johnson & Johnson and its supplier Imerys Talc America, Inc. In closing arguments, the plaintiff urged the jury to consider evidence that allegedly documented Johnson & Johnson’s long awareness of asbestos contamination in its talc mines in attributing the plaintiff’s disease to the defendants. Defense arguments focused on a lack of asbestos markers in the plaintiff’s lungs, and pointed to…  

Defendant’s Third-Party Claims Remain Stayed in Federal Court While Plaintiff’s State Law Claims Remanded

MARYLAND — The plaintiff filed a complaint in the Circuit Court for Baltimore City, MD alleging state law claims arising from asbestos exposure against defendant/appellant Campbell-McCormick (CMC) and others. CMC subsequently filed a third-party complaint against GE and 12 other co-defendants for contribution. GE removed the case to the District of Maryland, asserting federal contractor defenses. The plaintiff filed a motion to sever and remand, and specifically requested the district court to decline to exercise supplemental jurisdiction of the plaintiff’s state law claims pursuant to…  

Fraudulent Joinder Determination Turns Only on Factual and Legal Basis, Not Intent

MISSOURI — Kansas resident plaintiffs filed an action in the Circuit Court of Jackson County, Missouri, alleging mesothelioma and asbestosis arising out of work first performed in the state of Missouri. Two defendants named in the state court petition were also residents of Kansas, and the rest were from various states. Defendant Athene Annuity & Life Assurance Company removed the case on the basis of diversity. In response to the plaintiffs’ motion to remand, Athene alleged that the plaintiffs had no intention of prosecuting claims…