Category: Motion to Dismiss

Louisiana / Motion to Dismiss
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Louisiana District Court Permits Negligence Claim Against Premises Owner in Third-Party Exposure Case

U.S. District Court for the Eastern District of Louisiana, May 8, 2020

The plaintiff, Jesse Hernandez, alleged he was exposed to asbestos from, among other things, working at a family grocery store and deli from 1957 to 1966. Specifically, Mr. Hernandez alleged that plant workers from a nearby Allied Chemical plant came into the grocery store and deli for lunch with asbestos on their clothing, and he frequently had to clean surfaces where they ate lunch. Defendant Honeywell International, Inc. sued as the successor to …

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Motion to Dismiss
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Louisiana District Court Denies Defendant’s Multiple Motions to Dismiss

United States District Court, E.D. Louisiana, March 31, 2020.

Plaintiff, Harry F. Marsh, was diagnosed with mesothelioma allegedly as a result of his exposure to asbestos during his time as a seaman. He filed a Complaint in state court against several defendants on January 18, 2019.  Shortly thereafter, Defendant and Cross-Claim Plaintiff, Huntington Ingalls removed the matter to federal court.  Defendant, International Paper, filed three motions to dismiss, which were opposed by Huntington Ingalls.

International Paper filed a Motion to Dismiss based upon lack of …

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Kansas / Motion to Dismiss
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Court Grants Third-Party Defendant’s Motion to Dismiss

In Jack Papineau and Holly Papineau v. Brake Supply Company, Inc., et al., the Court recently granted a third-party defendant’s motion to dismiss a third-party complaint. Plaintiff Jack Papineau (“Papineau”) alleged that he developed malignant mesothelioma from exposure to asbestos from his employment at Smith Coal, and sued four defendants. After the action was filed, one defendant filed a third-party action against Rudd Equipment for common law indemnity and apportionment under K.R.S. Section 411.182. In its motion to dismiss the third-party complaint, Rudd Equipment …

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Expert Challenges / Motion to Dismiss / North Carolina / Summary Judgment
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Plaintiff’s Experts Stricken for Failure to Comply with Scheduling Order

U.S. District Court, E.D. North Carolina, Northern Division, February 26, 2020

NORTH CAROLINA – On December 21, 2017, the plaintiff, Karen Cahoon  filed a complaint alleging state law claims of negligence, breach of an implied warranty, failure to warn and punitive damages against, among others, the defendant, Edward Orton, Jr. Ceramic Foundation. A scheduling order was issued by the court on May 11, 2018.  After multiple joint requests on behalf of  Cahoon and the defendant, on Jan. 8, 2019, the court issued new deadlines for …

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Louisiana / Motion to Dismiss
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Public University Dismissed from Asbestos Case Under Eleventh Amendment Immunity

LOUISIANA – The United States District Court for the Eastern District of Louisiana has granted a public university’s motion to dismiss a mesothelioma case pursuant to immunity provided by the Eleventh Amendment to the United States Constitution. The plaintiff, Carey Gomez, alleged that he was exposed to asbestos from several sources throughout his lifetime, including take-home exposure from his father, who was employed at a shipyard in the 1960s, and direct exposure from his own work as a plumber from 1988 to 2011. The plaintiff …

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Louisiana / Motion to Dismiss
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Motions to Dismiss Denied in Consolidated Cases Brought by Two Groups of Beneficiaries

LOUISIANA – The plaintiff, Federico Lopez, filed a lawsuit in June 2017 in Louisiana state court alleging his malignant mesothelioma was caused by his exposure to asbestos at unidentified facilities. He passed during the pendency of the lawsuit, and his surviving spouse and child maintained the case (the Lopez action), and asserted a wrongful death claim.

On November 8, 2018, the plaintiffs, Jessica and Alfred Soliz, filed suit in Louisiana state court (the Soliz action), asserting strict liability and negligence claims on behalf of Lopez …

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Louisiana / Motion to Dismiss / Personal Jurisdiction
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Unclear Testimony Regarding Location of Exposure Leads to Dismissal Due to Lack of Personal Jurisdiction

LOUISIANA – The plaintiff, Terry BonDurant, alleged that he was exposed to asbestos while working as an electrician at various refineries in Louisiana, Texas and Florida from 1964 to 1979, and that he contracted mesothelioma from that exposure. He filed suit against numerous defendants, including Gould Electronics. However, at his deposition, the plaintiff did not provide any testimony with regard to exposure from a Gould product. Gould is incorporated in Arizona and maintains its principal place of business there. Gould filed a motion to dismiss …

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Louisiana / Motion to Dismiss / Personal Jurisdiction
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Plaintiff’s Failure to Show General and Specific Jurisdiction Results in Premises Defendant’s Dismissal

LOUISIANA – The plaintiff, Terry Bondurant, alleged exposure to asbestos while working as an electrician at various chemical plants in Texas and Louisiana, including a plant located in Texas that belonged to the defendant, Eastman Kodak. . Kodak, however, was incorporated in New Jersey and has its principal place of business in New York. Kodak moved to dismiss under Rule 12(b)(2), on personal jurisdiction grounds, asserting that the court lacked general jurisdiction, as well as specific jurisdiction.

Kodak claimed that because neither its state of …

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California / Motion to Dismiss / Personal Jurisdiction / Pleadings Challenge
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Specific Jurisdiction Established Under “Stream of Commerce Plus” Theory

CALIFORNIA – The plaintiff Thomas Toy alleged that his mesothelioma diagnosis was a result of asbestos exposure that incurred in multiple Navy shipyards to a variety of products throughout his machinist career. He claimed he was exposed to friction products in his role as a mechanic for the Army while stationed in Germany, Korea, and other U.S. locations and to construction products he used during home renovations. The defendant Viking Pump, Inc. moved to dismiss pursuant to Federal Rule 12(b)(6), arguing that the plaintiff failed …

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California / Motion to Dismiss
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Plaintiff’s Claim Under Market Share Liability Dismissed Against Brake Manufacturer

CALIFORNIA — The plaintiff, Gary Farris, alleged that his lung cancer was caused by performing brake and clutch changes at an automotive shop in San Jose, California from 1960 to 1964, and while performing personal automotive work from the 1960s to the 1980s. He named several manufactures of automotive brakes. His theory of liability against those defendants was premised on a claim of market share liability. Honeywell moved to dismiss that count in the initial complaint and the motion was granted.

Upon amendment of the …

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