District Court Relies on Plain Language of Forum-Defendant Rule in Denying Plaintiff’s Emergency Motion to Remand

The plaintiff filed an asbestos-related lawsuit in Louisiana state court. Defendant Honeywell filed a notice of removal on the basis of diversity, without knowing that its registered agent in Louisiana was personally served one day before filing the removal. At the time of removal, no other defendant had been served. The plaintiff filed a motion to remand, arguing that Honeywell could not remove because one of the defendants (Burmaster) was a resident of Louisiana. The plaintiff also argued Honeywell “jumped the gun” by removing before …

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Inherent Difficulties with Discovery In Latent Disease Cases Key to Allowing Plaintiffs to Amend Pleadings After Scheduling Order Deadline

The decedent was a career aircraft mechanic at Belle Chasse Air Force Base, and died of mesothelioma. The decedent’s heirs sued nine defendants in state court for asbestos exposure; defendant Boeing Company removed to federal court. After the deadline to amend pleadings, the plaintiffs filed an unopposed motion to continue the trial date so that they could add the manufacturers of additional aircrafts, and to establish a new scheduling order and trial date. The court declined to continue the trial date, but allowed the plaintiffs …

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Case Against Crane Remanded to State Court Based on Lack of Evidence of the Exercise of Government Discretion Under the Federal Officer Removal Statute

In this case, the plaintiff alleged asbestos exposure from various sources, including from his time aboard Naval vessels during the Korean War. Defendant Crane removed the case to federal court pursuant to 28 U.S.C.1442(a)(1), the federal officer removal statute.  The plaintiff moved to remand the case, arguing that Crane did not meet the standard to remove under the statute.

In opposition to the remand, Crane submitted a 2011 affidavit from one of its officers stating that “the manufacture of equipment for use on Navy vessels …

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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 …

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Merchant Mariner Plaintiffs’ Allegations Focusing on Vessel Operation — Instead of Vessel Design — Prohibited Removal Under Federal Officer Removal Statute

This is a consolidated case in which various plaintiffs alleged asbestos exposure while working as merchant mariners aboard many different vessels and employers. Each plaintiff also served on at least one Navy ship. The plaintiffs sued their former employers in Louisiana state court under the Jones Act and general maritime law. The defendants removed to federal court, and the district court remanded. The 5th Circuit held that remand was proper.

The defendants argued for removal under the Federal Officer Removal Statute, in which actions …

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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 …

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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 …

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Another Jurisdictional Battle Results in Transfer of Venue from Tennessee to Louisiana In Asbestos Case

In this case, the plaintiff filed the lawsuit in United States District Court for the Middle District of Tennessee, Nashville Division, based on his residence. Seven of the defendants moved to dismiss for lack of personal jurisdiction, which caused the plaintiff to move for a transfer of venue to Louisiana. The court found that Louisiana had a sufficient connection to the claimed exposure: “The Western District of Louisiana is the judicial district in which a substantial part of the events or omissions giving rise to …

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Plaintiffs’ Replacement Expert’s Testimony Limited in Scope to That of Originally Disclosed Expert

In this case, the plaintiffs timely disclosed the expert report of Dr. Samuel Hammar in accordance with the case scheduling order. Subsequently, Dr. Hammar was unable to provide trial testimony due to health issues and the plaintiffs sought to replace Dr. Hammar’s report with reports from either Dr. Kraus or Dr. Kradin. The defendants did not generally oppose the request to replace Dr. Hammar, but did oppose the replacement of one expert with two and argued that the new expert’s testimony should not go outside …

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Plaintiff’s Expert Industrial Hygienist Found to Be Qualified to Offer Testimony on Non-Specific Levels of Asbestos Exposure

In this federal court case, the decedent, Sally Gros Vedros, is alleged to have been exposed to asbestos from laundering her father’s work clothes during the time he worked as a welder at the Avondale shipyard from 1943 to 1976 and from her own work at Avondale in the purchasing department from 1960 to 1963. The defendant, Bayer CropScience, Inc., which was the successor to several companies that formerly were known as Amchem Company, moved to preclude plaintiff’s industrial hygienist, Frank Parker, III, from testifying, …

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