Category: New York

Case Decisions / New York / Summary Judgment
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Even Applying Relaxed Product Identification Standards of New York Law, Plaintiff Fails to Establish Exposure to Five of Six Defendants Moving for Summary Judgment

The decedent, a lifetime electrician, passed away in 2014 of lung cancer. Prior to passing, he filed a lawsuit for asbestos exposure against numerous manufacturers.  Six defendants filed motions for summary judgment arguing lack of exposure — Rockwell Automation (Allen-Bradley); BW/IP International (Byron Jackson); Air & Liquid Systems (Buffalo); Gardner Denver; Schneider Electric (Square D); and Warren Pumps.  The court granted all motions, except that of Allen-Bradley.

The decedent claimed exposure to Warren pumps while serving as a civilian employee on board the U.S.S. Constellation.  …

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Case Decisions / Consolidation / New York
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Plaintiffs’ Motion for Joint Trial Denied Since Individual Issues Between Plaintiffs Predominated Over Any Common Questions of Law and Fact

The plaintiffs, who had the same attorneys, commenced personal injuries actions in Nassau County Supreme Court, alleging personal injuries as a result of exposures to asbestos.  In support of the motion, it was noted that each plaintiff was still alive and suffering from lung cancer, were exposed to the same or similar materials during a similar time frame, that common defendants existed, and that the non-parties would overlap.  The defendants opposed on several grounds, including that the distinctions between the individual plaintiffs made joinder inappropriate …

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Bankruptcy / Case Decisions / New York
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Although Plaintiff’s Claims Within 1986 Manville Settlement Order, Case Remanded to Bankruptcy Court to Determine If Plaintiff Received Due Process

The plaintiff, Salvador J. Parra, Jr., developed asbestosis after working as an insulator and sued Marsh USA, Inc., an insurance broker, and others. Marsh filed a motion in the bankruptcy cases of Johns-Manville, arguing it was relieved of liability for the plaintiff’s claims. The bankruptcy court granted the motion, and the plaintiff appealed. The district court affirmed in part, reversed in part, and remanded the case to the bankruptcy court for further proceedings.

Marsh was Manville’s primary insurance broker from 1944-1982. Manville had sued Marsh, …

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Case Decisions / New York / Summary Judgment
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NYCAL Judge Denies Defendant’s Motion for Summary Judgment on Product Identification and Other Grounds

In a February 22, 2016 decision, the Honorable Peter H. Moulton, J.S.C. of the Supreme Court of the State of New York, New York County denied the defendant’s motion for summary judgment in a case where the plaintiff-decedent was allegedly exposed to asbestos during a lengthy career as a longshoreman on at certain New York City piers. During the pertinent period, the moving defendant was alleged to be the manufacturer of two asbestos-containing products (i.e., a pelletized product and a phenolic molding compound). The plaintiff …

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Case Decisions / New York / Pleadings Challenge
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Airplane Manufacturer Granted Dismissal in N.Y. Federal Court Action for Lack of Jurisdiction Even Though Registered to do Business and Appointed an Agent for Service of Process

In this federal court case, it was alleged that the decedent, Walter Brown, was exposed to asbestos while serving as an airplane mechanic in the U.S. Air force from 1950-1970. During that time, he worked at various bases in Europe and in the U.S. in Alabama, Delaware, Georgia, Illinois, New Mexico, and Michigan. Prior to his passing, the decedent, who was living in Alabama, sued 14 companies, including Lockheed Martin Corporation in the United States District Court for the Southern District of Alabama. A motion …

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Case Decisions / New York / Pleadings Challenge
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Defendants, Miners and Suppliers of Talc, Granted Motions to Dismiss Plaintiff’s Claim of Market Share Liability as Manufacturer of the Product was Identifiable

In this case, it is alleged that the plaintiff, Keri Logiudice, contracted mesothelioma from her use of Cashmere Bouquet cosmetic talcum powder. The defendants, Cyprus Amax Minerals and Imerys Talc America Inc., mined and supplied talc to Colgate, the manufacturer of Cashmere Bouquet, and moved to dismiss the plaintiff’s sixth cause of action for market share liability.

In its decision, the court explained: “In a products liability action, identification of the exact defendant whose product injured the plaintiff is generally required (see Hymowitz v Eli …

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Case Decisions / New York / Summary Judgment
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Several Defendants Not Named in Plaintiffs’ Interrogatory Answers Move for Summary Judgment With Various Results

In this case, the plaintiff, Mark Denison, claimed exposure to asbestos from numerous products while working at his father’s hardware store from 1964-65 to 1969, Dunkirk Radiator from 1972 to 1987, and from his own automotive repair business from 1980 to the early 1990s.  Defendants Bird, Inc., Euclid-Hitachi Heavy Equipment, Inc., F.E. Myers, Oshkosh Corporation, and WT/HRC Corporation all moved for summary judgment.

In its ruling, the court highlighted that none of the moving defendants were identified in the plaintiffs’ answers to interrogatories. The court …

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Case Decisions / New York / Summary Judgment
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Summary Judgment Awarded to Pump Manufacturer for Alleged Exposure to Pump Component Parts Manufactured by Third-Parties

In Holzworth v. Alfa Laval, et al. 12-CV-06088 (S.D.N.Y. Jan. 21, 2016), Southern District of New York Judge John Keenan granted defendant Ingersoll-Rand’s summary judgment motion arising out of the plaintiff’s alleged exposure to asbestos aboard the U.S.S. Sheldrake. The plaintiff’s decedent had testified that he was exposed to pumps aboard the ship as a bystander and by cleaning them. He did not specifically describe their pumps’ composition, but claimed that he scraped asbestos-containing packing from the jackets. He further testified that many of the …

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Case Decisions / Consolidation / New York
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NYCAL Court Permits Discovery of Non-Party Co-Author of Article Analyzing Verdicts in Association with Consolidated Trials

In this NYCAL case, Justice Peter Moulton denied the defendants’ motion seeking to quash a subpoena served by Weitz & Luxenberg P.C. upon Mr. Marc Scarcella of Bates, White LLC, an economic consulting firm. Mr. Scarcella co-authored an article entitled, “The Consolidation Effect:  New York City Asbestos Verdicts, Due Process and Judicial Economy.” In summary, the article analyzed verdicts in association with consolidated trials in NYCAL.

In denying the motion to quash, the court began its opinion by noting that the Defendants “concede[d] that [the …

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Case Decisions / FELA / Maritime/Admiralty Law / New York
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Prior Release Found Inadequate to Dismiss Future Jones Act/FELA Claims Based on Development of Mesothelioma

In this NYCAL case, the Maritime Asbestos Legal Clinic originally filed a suit in 1997 on behalf of the decedent, Mason South, in the Northern District of Ohio. The decedent served in the Merchant Marines from 1945 to 1982. Less than two months later the case settled, with Texaco Inc. being one of the settled defendants. In 2014, the decedent was diagnosed with and died from complications related to mesothelioma. In 2015, the decedent’s wife commenced another action under the Jones Act arising from her …

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