NORTH CAROLINA — American International Industries (AII) was sued by plaintiff Lloyd Bell. The plaintiff claimed his decedent had developed mesothelioma from her use of talcum powder during her work as a hairdresser and her education during beauty school. AII moved to dismiss the plaintiff’s claims for willful and wanton conduct, malice, conspiracy, and punitive damages. The court began its review with the standard for a motion to dismiss. According to the court, “a complaint must contain sufficient factual matter, accepted as true, to state …
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Expert and Fact Witness Evidence Establishes Last Day of Exposure for UPS Worker in Workers’ Compensation Commission Award
NORTH CAROLINA — The plaintiff filed an action under North Carolina Workers’ Compensation for alleged development of mesothelioma by her decedent. Mr. Penager worked as a driver for United Parcel Services (UPS) from approximately 1967-98. It was alleged by the plaintiff that Mr. Penegar drove tractor trailers each day and would walk through the mechanic shop after his shift where workers were using compressed air to clean out dust from brake jobs. The Commission found that the plaintiff’s last date of injury from asbestos occurred …
Continue ReadingAfter Close of Discovery Motion for Release of Pathology Materials Granted
NORTH CAROLINA — Defendant John Crane filed a motion for an order governing the release of pathology materials following the close of discovery. Although pathology materials had been requested from the plaintiff’s counsel nearly a year and a half prior to the discovery end date, they were not produced until eight days after that deadline had passed. John Crane then learned that there were additional pathology materials in the possession of Duke University Hospital System (DHUS). John Crane requested the additional slides in April 2017, …
Continue ReadingSummary Judgment Granted Where Worker’s Compensation Act Bars Plaintiff’s Claims
NORTH CAROLINA — Plaintiffs filed suit against Alcatel Lucent, as successor in interest to Western Electric and Bell Labs (Alcatel), alleging Mr. Moore developed mesothelioma as a result of his work as a cable puller from 1965-95. Alcatel moved for summary judgment, arguing that the North Carolina Worker’s Compensation Act (Act) prohibited the plaintiffs’ claims. The plaintiffs opposed summary judgment and took the position that the exception laid down by the court in Woodson applied.
The court’s analysis began with the standard for summary judgment. …
Continue ReadingLoss of Consortium Claim Dismissed Where Wrongful Death Statute Controls
The plaintiff filed suit against multiple defendants, alleging her decedent developed mesothelioma as a result of exposure to asbestos containing products. Within the complaint, Ms. Stewart added a count for loss of consortium. The defendant moved to dismiss the loss of consortium count pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff filed no response.
The court quickly analyzed its review of a case while sitting in diversity. The court noted that “if state substantive law has denied a plaintiff a remedy for his …
Continue ReadingSupplier of Asbestos for Joint Compound Denied Summary Judgment
The U.S. District Court for the Eastern District of North Carolina denied the motion for summary judgment of defendant Union Carbide Corporation in a case involving alleged exposure to raw asbestos fiber allegedly in joint compound. James Lee was a painter in North Carolina from the late 1960s into the 2000s, and during that time the plaintiffs allege that Lee applied and sanded asbestos-containing joint compound to finish drywall, as well as sanded and swept joint compound. Sanding joint compound created a dust, which would …
Continue ReadingPunitive Damages Not Allowed Against Bendix; Memos Showed a Corporation Struggling With Evolving Science on Asbestos and Mesothelioma
The plaintiff alleged that her husband was exposed to asbestos from brakes, and as a result died from mesothelioma. She sued Honeywell International, as successor-in-interest to Bendix, alleging negligence, breach of implied warranty, fraud, failure to warn, and wrongful death, and asked for actual and punitive damages. Bendix moved for summary judgment on the breach of implied warranty, fraud, and failure to warn claims, and punitive damages claims. The court denied summary judgment as to the breach of implied warranty and products liability claims, but …
Continue ReadingReliance of Dr. Eugene Mark on MSDS Sheets Not Enough to Overcome Court’s Exclusion of His Testimony Based on Daubert
The court excluded the testimony of the plaintiff’s expert, Dr. Eugene Mark, on the basis of Daubert. After this order, defendant Ford filed a motion for summary judgment and a motion to dismiss, and defendant Honeywell filed a motion to reconsider the court’s summary judgment order; both were made pursuant to the court’s order excluding Dr. Mark. The plaintiff then moved to continue the trial to find a different causation expert and to file a motion for reconsideration. The court denied the motion to …
Continue ReadingJohn Crane Inc. Establishes Prima Facie Entitlement to Summary Judgment
In this federal court case, defendant John Crane Inc. moved for summary judgment. The plaintiffs did not oppose the motion, and the court stated that it “may consider the forecast of evidence presented by the movant to be undisputed for the purposes of the present motion. See Fed. R. Civ. P. 56(e)(2).”
In granting Crane summary judgment, the court held: “To prove causation in North Carolina, a plaintiff in a personal injury asbestos case ‘must present “evidence of exposure to a specific product on a …
Continue ReadingNorth Carolina Federal Court Grants Summary Judgment
In this case, “plaintiffs allege that his condition resulted from exposure to asbestos during his employment as mechanics’ helper, maintenance laborer, inspector, construction worker, and salesman, in addition to automotive maintenance work performed on his own personal vehicles and those of his family.” The court granted JMM’s motion for summary judgment to the extent that plaintiffs alleged exposure prior to 1983 but denied with respect to any claimed exposure after 1983. This was based on JMM’S acquisition of assets of one of the Johns Manville …
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