Baltimore $5 Million-plus Verdict Overturned for New Trial

MARYLAND — On May 11, 2018, defendants Mack Trucks, Inc. and Ford Motor Co. (collectively as defendants) won a new trial with a decision that overturned a $5 million-plus verdict issued by a Baltimore City jury.

The Court of Special Appeals of Maryland found that the trial court provided improper instructions to the jury on the issue of negligence, which was prejudicial to the defendants. Accordingly, the judgments were reversed and remanded for further proceedings on the negligence claims against them not inconsistent with the …

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Turbine Manufacturer’s Choice of Law Motion Granted Based on Location of Asbestos Exposure and Diagnosis

MASSACHUSETTS — Plaintiff Ruth Burleigh, the widow of the plaintiff’s decedent Ernest Burleigh, filed suit in the U.S. District Court for the District of Massachusetts against numerous defendants alleging that decedent developed mesothelioma as a result of exposure to asbestos while working as a mechanic at the Portsmouth Naval Shipyard (the shipyard) from 1960-1981. The shipyard is located in Kittery, Maine, approximately 20 miles from the Massachusetts border. The plaintiff’s decedent alleged exposure to asbestos in Maine only, was a resident of Maine for the …

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Lack of Causal Nexus Leads to Grant of Remand Against Shipyard Defendant

LOUISIANA — The plaintiff filed suit against several Defendants including Avondale Shipyards. James Latiolais allegedly developed mesothelioma from his work as a machinist onboard the USS Tappahannock. Avondale removed the case after the plaintiff’s deposition concluded. The removal was made pursuant to Federal Officer Removal Statute, 28 U.S.C. § 1442 (a)(1). The plaintiff moved to remand.

The court began its analysis by discussing the elements associated with Federal Officer Removal. First, the defendant must meet the criteria of being a “person” which includes corporations like …

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Failure to Adopt Safety Measures is Private Conduct That Implicates No Federal Interest

LOUISIANA — Several former employees of Huntington Ingalls, including Robert Templet, brought suit in Louisiana state court, alleging that the company failed to warn them of the risks of asbestos exposure and failed to implement proper safety procedures for handling asbestos.  Templet worked for Huntington Ingalls from 1968 to 2002 and alleged his handling of asbestos-containing materials at various worksites from 1968-79 caused him to contract mesothelioma.

Huntington Ingalls removed the case to the U.S. District Court for the Eastern District of Louisiana under the …

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Frustrated Court Denies Plaintiffs’ Motion to Reconsider Exclusion of Kenneth Garza Due to Lack of Authority

WISCONSIN — In this case set for trial on June 4, 2018, the plaintiffs filed eleven motions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and various motions in limine. After hearing and argument, the court granted defendant Pabst Brewing Company’s motion to bar, under Daubert, Kenneth Garza’s reports, opinions, and testimony, and granted the Daubert motion of defendants Sprinkmann, Employers Insurance Company and WEPCO’s to exclude Garza’s testimony. The court found that although Garza’s training and background gave him the …

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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 …

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Expert and Fact Witness Evidence Establishes Last Day of Exposure for UPS Worker in Workers’ Compensation Commission Award

NORTH CAROLINA — The plaintiff filed an action under North Carolina Workers’ Compensation for alleged development of mesothelioma by her decedent. Mr. Penager worked as a driver for United Parcel Services (UPS) from approximately 1967-98. It was alleged by the plaintiff that Mr. Penegar drove tractor trailers each day and would walk through the mechanic shop after his shift where workers were using compressed air to clean out dust from brake jobs. The Commission found that the plaintiff’s last date of injury from asbestos occurred …

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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 …

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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 …

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Summary Judgment Affirmed For Railroad After Plaintiff Settles and Files Subsequent Suit for Lung Cancer

PENNSYLVANIA — The plaintiff filed a claim for Federal Employer’s Liability Act (FELA) against Conrail for the development of alleged asbestosis in 1997. The parties settled in 2004 and executed an agreement that contemplated a release for “all known and unknown…injuries for any and all forms of cancer…” Years later, the plaintiff developed lung cancer and filed suit alleging the injury was a result of exposure to asbestos for which Conrail was liable. Conrail moved for summary judgment arguing that the claim was barred by …

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