Motion to Dismiss Archives - Asbestos Case Tracker

November 19, 2024 Motion to Dismiss / Pennsylvania

Court Rules Pro Se Plaintiff’s Deliberate Indifference Claim Actionable

Jurisdiction: United States District Court for the Middle District of Pennsylvania

This is a prisoner civil-rights case filed pursuant to 42 U.S.C. § 1983, regarding the conditions of confinement in Huntingdon State Correctional Institution (SCI-Huntingdon). The case was originally filed as a putative class action by three individual pro-se plaintiffs on behalf of a class of Huntingdon State Correctional Institution inmates. The court dismissed the class complaint and granted the remaining individual plaintiffs, Bobby Kenneth Williamson and Antonio Bundy, leave to amend their individual claims. They filed two …

Posted by: Anthony I. Perchiacca

Defendants’ Motion to Dismiss Based upon Statute of Limitations Denied

Jurisdiction: Supreme Court of New York, New York County

On July 22, 2021, plaintiffs filed a complaint alleging asbestos exposure. Plaintiffs’ complaint specifically claims that asbestos exposure caused plaintiff Victoria Pawlowski to be diagnosed with peritoneal malignant mesothelioma after undergoing laparoscopic surgery, resulting in a nodule to be removed from her peritoneum.

Defendants filed a motion to dismiss plaintiffs’ complaint based upon the governing statute of limitations pursuant to CPLR § 3211(a)(5). Plaintiffs opposed this dispositive motion.

CPLR § 214-c(2) provides a three-year limitations period for …

September 10, 2024 Motion to Dismiss / Settlement Trust

Posted by: Nicole Caspers

Defendant Granted Motion to Dismiss Claim against Settlement Trust for Untimeliness

Superior Court of Delaware, New Castle

In the asbestos action Burhenn v. Celotex Asbestos Settlement Trust, the court granted defendant Celotex’s motion to dismiss on the grounds that the complaint was untimely filed. In 1990, the Celotex filed for bankruptcy. Subsequently, a settlement trust was created to pay claims of persons who had pending asbestos claims and any future victims who were exposed to the defendant’s asbestos-containing products. Pursuant to the terms of the Trust’s plan, all claims must be asserted against the Trust …

September 4, 2024 Causation / Expert Testimony / Motion to Dismiss

Posted by: Kerry L. Jones

Pump Manufacturers’ Motion to Exclude Expert Causation Testimony Granted In-Part

Court: United States District Court for the Middle District of Florida, Tampa Division

In this asbestos action, defendants Atwood & Morrill Co. Inc. and Warren Pumps LLC filed a Daubert motion to exclude, or limit, certain causation testimony and opinions of plaintiff’s expert, David Zhang, MD.

Plaintiff Arnold Edmonds served aboard the USS Saratoga from 1962-1964. While on the ship, he was allegedly exposed to asbestos, which allegedly caused him to develop non-small cell lung carcinoma. Plaintiff filed suit against more than 20 companies and …

August 28, 2024 Causation / Motion to Dismiss / New York / Summary Judgment

Posted by: Kerry L. Jones

Putty Manufacturer and Talc Disturber’s Motion to Dismiss on Causation Grounds Denied

Court: Supreme Court of New York, New York County (NYCAL)

In this asbestos action, plaintiff Jennifer Peganis alleged take-home exposure to asbestos from laundering her husband’s work clothing. Defendant Donald Durham Company moved to dismiss the action on the basis that plaintiff failed to establish causation. Defendant Vanderbilt Minerals LLC jointed Durham’s motion to dismiss, arguing that Vanderbilt’s only connection to the action is due to its talc being a component ingredient in Durham’s water putty.

The moving defendants relied upon three experts: (1) Brittani …

August 15, 2024 Motion to Dismiss

Posted by: Jessica N. Reich

New York Law Applied for Service Standard in Case Where Wisconsin Law Applied in Part

In the recent Agnew decision, the court had to decide on National Tinsel’s motion to dismiss. National Tinsel is an artificial snow company incorporated in Wisconsin which was being sued in New York. National Tinsel filed for corporate dissolution, which began in June 2021 when it was published for state-wide circulation. Per Wisconsin statute, this publication began the running of a 2-year period in which all claims must be filed, which would close on June 26, 2023. Plaintiffs in the New York action filed their …

August 14, 2024 Motion to Dismiss / Talc

Posted by: Kerry L. Jones

Talc Manufacturer’s Motion to Dismiss for Failure to State a Claim Granted

U.S. District Court for the Eastern District of Missouri, Eastern Division

Decedent Carole Zicklin passed away from mesothelioma in September 2021. The decedent’s daughters subsequently filed a wrongful death lawsuit against a number of defendants, including PTI Union, LLC. The lawsuit alleged that the decedent was exposed to asbestos from talcum powder products that she “wore and used on a daily basis throughout her life in New York City” and during the course of her employment “at the locations mentioned above” from “large amounts of …

May 31, 2024 Motion to Dismiss

Posted by: Susan R. Allen-Robbins

Defendant’s Motion to Dismiss Plaintiffs’ Complaint Granted in Part

U.S. District Court for the Northern District of California

Plaintiffs James and Lucretia Sarjeant brought suit in California state court following Mr. Sarjeant’s diagnosis of malignant mesothelioma. He alleged exposure from asbestos-containing products through his employment at the Todd Shipyards, on the RMS Queen Mary, automotive work, and home renovation projectsfrom the 1960s to 1990s. The plaintiffs alleged multiple products liability and fraudulent concealment claims against the various defendants.

After removal to federal court, defendant Honeywell International, Inc. f/k/a AlliedSignal Inc., successor-in-interest to The Bendix …

May 23, 2024 Florida / Motion to Dismiss

Posted by: Asbestos Case Tracker

Chemical Company’s Renewed Motion to Dismiss Amended Complaint Granted

Jurisdiction: United States District Court for the Southern District of Florida

Plaintiff Douglas S. Johnson, one of the surviving children and personal representative of the estate of decedent French E. Johnson, filed an amended complaint against 50 defendants, including The Dow Chemical Company. The amended complaint alleged that decedent developed mesothelioma due to his exposure to asbestos while serving in the United States Navy, during his employment with NASA at the Kennedy Space Center, and in connection with non-occupational automotive maintenance and repairs.

In response …

Business and lawyers discussing contract papers with brass scale on desk

March 20, 2024 Failure to State a Claim / Motion to Dismiss

Posted by: Kerry L. Jones

Premises Defendant’s Motion to Dismiss for Failure to State a Claim Granted

Plaintiff Marvin Evans was diagnosed with lung cancer in September 2022. Subsequently, the plaintiff sued a number of defendants in the Civil District Court for Orleans Parish, alleging that his lung cancer was caused by exposure to asbestos during his employment as a boilermaker with various companies between 1969 and 1980. The case was eventually removed to the Eastern District of Louisiana.

In the instant motion, one of the defendants, Georgia-Pacific Consumer Products LP, alleged that the plaintiff failed to state a claim against it. …