Same Facts = Same Ruling? Nope! Baltimore Issues Grant and Denial of Summary Judgment In Two Groups of Smoking Lung Cancer Cases

Two opposing decisions were rendered by two different judges in two factually and legally similar groups of smoking lung cancer cases. In Harrell et al. and Boston et al., asbestos defendants filed nearly identical motions for summary judgment, arguing that the plaintiffs could not recover because (1) the plaintiffs knew the hazards of smoking and assumed the risk, and (2) were contributorily negligent. Summary judgment was granted in one group (Harrell et al.) and denied in the other (Boston et al

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Identity of Navy Ship Where Plaintiff Served Enough to Trigger Federal Officer Removability Clock

Plaintiff Marvin Smith alleged asbestos exposure while serving as a fireman in the U.S. Navy from 1951-54, and while working as a fireman and warehouseman at various shipyards and warehouses. The plaintiff and his wife sued various defendants in state court after he was diagnosed with pleural mesothelioma. Defendant Crane Co. removed this mesothelioma case to federal court under the federal officer removal statute; the plaintiffs moved to remand, alleging untimely removal, which the court granted.

The plaintiffs argued removability was ascertainable when Smith was …

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Government Contractor Defense Applied to Crane Such That Motion to Remand to State Court Denied

The decedent’s family filed a complaint in state court, which was removed to federal court by Crane Co. based upon the federal officer defense. The plaintiffs filed a motion to remand or, in the alternative, to sever all claims other than those against Crane and to remand all other claims. The motion to remand was denied.

The decedent served in the Navy from 1952-56, and was then employed at Bethlehem Steel Sparrows Point Shipyard from 1956-59; from 1959-63, the decedent worked as a laborer at …

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Federal Court Grants Summary Judgment to Defendants for Plaintiffs’ Failure to Establish Substantial Factor but Denies It as to Joint Compound and Outside Contractor Defendants

Plaintiffs Charles Arbogast and Barbara Arbogast brought this action against multiple defendants for Mr. Arbogast’s alleged development of mesothelioma as a result of his occupational exposure at Bethlehem Steel Sparrows Point Steel Mill, amongst other sites.

Several defendants moved for summary judgment, including Eaton Corporation (Cutler Hammer), Foster Wheeler, MCIC, Georgia Pacific (GP), Schneider Electric (Square D), Union Carbide (UCC), and Crane Co. The court began its analysis by reciting the standard for summary judgment, which is appropriate when “the movant shows there is no …

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Court of Appeals Denies Plaintiff’s Request of Joinder for Claims Against Both Asbestos Tobacco Defendants

In an asbestos matter, 15 months after filing suit—after most of the deadlines for discovery and naming of witnesses had passed—the plaintiffs filed an amended complaint joining several tobacco companies on a theory of synergy. The plaintiff’s argued that their lung cancer was caused both by smoking and exposure to asbestos. The Circuit Court dismissed them as being improperly joined on the special asbestos docket but with leave to refile the case on the general civil docket. Sixteen months later, after all claims against the …

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Plaintiff’s Expert Testimony Precluded and Summary Judgment Granted Where Expert Opinion Did Not Rely Upon Sufficient Facts or Data

Plaintiffs Charles Lemuel Arbogast, Jr., et al. filed suit against a number of companies, including defendant CBS Corporation of Delaware (Westinghouse), that allegedly manufactured and/or distributed products containing asbestos to which the plaintiff was exposed, thereby causing his mesothelioma.

The plaintiff offered Dr. Robert Leonard Vance as an expert in matters involving industrial hygiene and asbestos exposures.  Dr. Vance’s written opinion as to Westinghouse focused on two products:  asbestos “socks” and Micarta.  The plaintiff later conceded that that no liability existed as to the asbestos …

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Court Denies Plaintiff’s Motion for Reconsideration on Grant for Summary Judgment in Determination That Defendant Did Not Qualify as “Apparent Manufacturer”

The plaintiff, Harriette Stein, personal representative of the Estate of Carl Stein, filed an amended complaint with claims against defendant Pfizer under the theory that the decedent’s exposure to an asbestos-containing refractory cement, called “Insulag,” which was supplied to the decedent’s employer, Bethlehem Steel, by Pfizer’s subsidiary, Quigley Company, Inc., was a substantial factor in the decedent’s illness and eventual death from mesothelioma. The plaintiff alleged that Pfizer was the “apparent manufacturer” of this product because Quigley’s invoices and marketing materials bore Pfizer’s trademarks, as …

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Boiler Manufacturers Obtain Summary Judgment Based on Statute of Repose

In this case, the decedent, Ralph Vitale, alleged exposure to asbestos from the installation of Burnham and Weil-McLain residential boilers during the course of his work through his own HVAC and plumbing business between 1966 and 1979.  Defendants Burnham, LLC and Weil-McLain, a division of the Marley-Wylain Company, moved for summary judgment  on the basis that no cause of action accrued against them pursuant to Maryland’s statute of repose, codified at Sec. 5-108 of the Maryland Code, Courts and Judicial Proceedings article. Maryland’s statute of …

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Plaintiff’s Expert’s Testimony Precluded and Summary Judgment Granted Where Expert Disclosure Was Untimely, the Expert Opinion Lacked Sufficient Factual Basis, and Plaintiff’s Claims Were Legally Insufficient on Causation

In this case, the plaintiff sued numerous manufacturers and distributors of products allegedly containing asbestos, including Defendant General Electric Company (GE), following his diagnosis of mesothelioma.

The plaintiff designated Dr. Robert Vance, an industrial hygienist, to testify regarding the sources of the plaintiff’s asbestos exposure. As to GE, Dr. Vance noted in his report that the plaintiff claimed to have worked with GE generators and asbestos-braided wiring at various job sites. Dr. Vance did not offer an opinion in his report regarding the plaintiff’s alleged …

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Defendant’s Failure to Warn Boilermaker Employees in the Shipyard Itself Prohibited Federal Contractor Defense

The decedent in this case died of mesothelioma and his representatives filed an action in state court. Defendant Foster Wheeler removed this case to federal court under the officer removal statute. The plaintiff moved to remand, which the court granted.

The plaintiffs alleged exposure during the decedent’s work at Bethlehem Steel Sparrows Point Shipyard, while working as a boiler maker from 1948-1970s. Foster Wheeler removed on the basis that it was acting under an officer or agency of the United States, because it made boilers …

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