Category: New York

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New York / Personal Jurisdiction
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Motion to Dismiss for Lack of Personal Jurisdiction Granted to Oven Manufacturer

Supreme Court of the State of New York, New York County

The plaintiff alleged that the decedent, Harvey A. Fitzwater, who was allegedly diagnosed with mesothelioma on October 10, 2016, was exposed to asbestos from using ovens manufactured by defendant Baker Perkins from 1965-67 at several locations in Alaska and Washington State. Baker Perkins moved to dismiss the plaintiff’s complaint, which was filed in the New York City Asbestos Litigation (New York County, New York), for lack of personal jurisdiction.

As to general jurisdiction, Baker …

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New York / Summary Judgment
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NYCAL Judge Grants Car Manufacturer Motion for Summary Judgment Based on Supporting Affidavit

Supreme Court of the State of New York, New York County, January 6, 2021

The within matter was filed on behalf of the decedent, Patrick O’Sullivan, based on his alleged exposure to asbestos over the course of his career as a mechanic at various service stations throughout the 1970s. In 2012, the decedent died as a result of lung cancer allegedly caused by his exposure to asbestos. At his deposition, the decedent testified that he worked on Nissan branded vehicles in the 1970s, but he …

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New York / Summary Judgment
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Floor Tile Defendant’s Motion for Summary Judgment Denied Due to Conflicting Expert Reports

Supreme Court of New York, New York County

In this action, defendant American Biltrite Inc. filed a motion for summary judgment, arguing that the plaintiff has failed to establish general or specific causation for the plaintiff’s lung cancer in relation to American Biltrite’s products. The deceased plaintiff had alleged that his fatal lung cancer was caused by his exposure to asbestos over the course of his career as an electrician at three worksites, and the plaintiff had testified that floor tile made by American Biltrite …

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New York / Punitive Damages
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New Trial on Damages Directed in Talc Case Unless Plaintiffs Stipulate to Verdict Reduction

Supreme Court of New York, New York County

In June 2019, we reported on the jury verdict in the Olson matter. Following the verdict, Defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (J&J) moved to set aside the verdict and award under CPLR 4404(a). In the alternative, J&J moved for a new trial on liability and damages.

The court rejected J&J challenges to the award of compensatory damages as the jury’s verdict as to liability was supported by legally sufficient evidence. The jury …

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Insurance Coverage / New York
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Federal Court Holds Underlying Policies Exhausted by Settlement; Grants Summary Judgment to Insurer on Excess Policy Reinsurance Claim

U.S. District Court for the Southern District of New York, October 19, 2020

An insurer and its reinsurer were involved in a dispute over the reinsurer’s liability to reimburse a portion of a settlement that the insured had allocated to an excess liability policy subject to a contract of reinsurance. The insurer had issued three excess liability insurance policies to Asarco Inc., as part of a “coverage tower,” sequential layers of insurance Asarco purchased as part of its annual insurance program. The reinsurer reinsured the …

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Insurance Coverage / New York
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Judgment Modified, Declaration Vacated as Court Erred in Granting Motion for Partial Summary Judgment

Supreme Court of New York, Appellate Division, Fourth Department

The plaintiffs, Carrier Corporation and Elliott Company, filed a declaratory judgment and breach of contract action, wherein they sought declarations of the rights and obligations of the parties under liability insurance policies issued by various insurers, including the Fireman’s Fund Insurance Company (defendant). Carrier Corporation and Elliott Company are once-related entities who face lawsuits alleging personal injuries from asbestos exposure relating to their products. In November 2018, the court granted five motions for partial summary judgment …

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Consolidation / New York
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Motion to Consolidate Granted Joining Two NYCAL Cases Against Same Defendant

The plaintiffs in two asbestos product liability actions, represented by the same attorneys, moved to consolidate for purposes of a joint trial pursuant to CPLR § 602(a). Defendant Kaiser Gypsum Company, Inc. is the single remaining defendant in both actions. In NYCAL, the plaintiffs must show that joinder is appropriate pursuant to the Malcolm v. National Gypsum Co. factors. Notably, the plaintiffs must not meet every Malcolm factor to show that joinder is appropriate. Instead, a joint trial is appropriate when “individual issues do not …

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Appeal / New York
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Jury Deviated From Reasonable Compensation in $13M Award, New York Appeals Court Rules

Supreme Court, Appellate Division, First Department, New York, August 6, 2020

The Appellate Division of the First Department of New York vacated a $13 million award in a mesothelioma case, stating that the award deviated from what would be “reasonable compensation” for the claims. During the initial trial, the jury awarded $4 million for future pain and suffering, $250,000 for future loss of consortium, $5.5 million for past pain and suffering, and $650,000 for past loss and suffering.

The appellate division upheld the $4 million …

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Motion to Dismiss / New York
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Plaintiffs Agree to Defendant’s Dismissal After Motion to Dismiss Filed in Talc Case

U.S. District Court for the Western District of New York, July 29, 2020

On February 28, 2019, plaintiffs John Castro and Joyce Castro commenced this products liability action in state court against defendants, including CVS Pharmacy, alleging that Mr. Castro was diagnosed with mesothelioma as a result of his exposure to asbestos from his use of asbestos-contaminated talc products.

On March 1, 2019, this matter was removed to federal court on motion by the defendants.  The plaintiffs filed a motion to remand. On June 2, 2020, the court accepted …

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New York
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Talc Manufacturer’s Motion to Dismiss on Forum Non Conveniens Denied

Supreme Court of New York, New York County, July 1, 2020

Glynnis Gale DeKlerk (the decedent) was born in South Africa in 1951 and lived there until 2017, when she and her husband moved to the United Kingdom. She was diagnosed with malignant mesothelioma in February of 2018 and died on January 20, 2019. The plaintiff commenced this action in New York on July 27, 2018 seeking to recover for injuries sustained by the decedent resulting from her alleged exposure to asbestos from talc and …

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