Summary Judgment Motions Denied for Four Defendants in Two Maritime Cases Filed by Same Plaintiff

PENNSYLVANIA — Shortly before his death, Obediah Walker, Jr., filed an action in Pennsylvania state court alleging he was exposed to asbestos while serving on the USS Plymouth Rock while enlisted in the Navy from 1969 to 1971. He served as an electrician onboard the Plymouth Rock and was later diagnosed with lung cancer. He was deposed six days after filing suit and was only cross-examined by one defendant before he passed. The defendants Ingersoll-Rand, Warren Pumps and Blackmer Pumps did not cross-examine Walker. Obediah …

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Preclusion of Plaintiff Experts Leads to Defense Win in First Philly Talc Trial

PENNSYLVANIA – The plaintiff Charles Brandt (plaintiff), on behalf of the decedent Sally Brandt (decedent), commenced an asbestos-related action against, among other defendants, Colgate-Palmolive Company (Colgate), alleging that the decedent’s use of Colgate’s Cashmere Bouquet talcum powder exposed the decedent to asbestos, resulting in her mesothelioma diagnosis.

Following a Frye hearing, the Philadelphia County Court of Common Pleas precluded the expert opinions of the plaintiff’s geologist and pathologist, finding numerous methodological flaws in their research claiming asbestos was found in Cashmere Bouquet talcum powder. Colgate …

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In Talc case, Motion to Dismiss Denied Based on Business Registration; Case Not Remanded to State Court

PENNSYLVANIA -The plaintiffs filed suit in the Philadelphia Court of Common Pleas against Imerys and Johnson & Johnson, alleging that the plaintiff Carrie Youse’s use of cosmetic talcum powder caused her to develop mesothelioma. Imerys filed a notice of removal, including within the notice J&J’s consent. Soon thereafter, Imerys filed a Motion to Dismiss for lack of jurisdiction which was rendered moot by the plaintiffs filing an amended complaint. In the amended complaint, the plaintiffs added a claim against Walmart. The plaintiffs subsequently moved to …

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Insured’s Asbestos Claims Considered Multiple Occurrences But With Aggregate Limits

PENNSYLVANIA – The plaintiff Ohio Valley Insulating Company (OVI) filed a motion for partial summary judgment and the defendants Continental Insurance Company, Zurich American Insurance Company, and Granite State Insurance Company (collectively, Insurers) cross-moved for summary judgment. The court granted and denied in part both motions.

With regard to the first legal issue addressed by the Western District of Pennsylvania, OVI sought a declaration that various asbestos-related suits filed against it were based on multiple occurrences related to OVI’s “operations” (installation and removal of asbestos-containing …

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Pennsylvania Superior Court Refuses to Extend Statute of Limitations for Employee’s Exposure Claims

PENNSYLVANIA — The Pennsylvania Superior Court, in an unpublished opinion, recently declined to extend the statute of limitations for workplace exposure claims brought by employees. Since the Tooey case was decided in 2013, Pennsylvania law has allowed employees to bring lawsuits against their employers if the diagnosis of an occupational disease occurred more than 300 weeks after the date of last exposure to the hazardous substance. However, the new case law did not alter the statute of limitations for brining such claims.

In Moeller v.

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Business Registration in Pennsylvania Confers General Personal Jurisdiction Over Talc Supplier

PENNSYLVANIA The plaintiff Ellen Kleiner filed suit in the Philadelphia Court of Common Pleas, alleging that she developed ovarian cancer through her use of Johnson & Johnson’s baby powder and Shower to Shower products. She named Johnson & Johnson and the talc supplier, Imerys Talc America, among other defendants. The case was originally removed based upon the fraudulent joinder of a non-diverse party, but the Eastern District of Pennsylvania remanded the case in October 2017. Imerys then filed preliminary objections to the complaint, arguing that …

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U.S. Supreme Court Set to Hear Bare Metal Defense Argument

PENNSYLVANIA — On October 10, 2018, the United States Supreme Court will hear argument in Air and Liquid Systems Corp. v. DeVries, a case involving the bare metal defense under maritime law. The case was originally filed in the Philadelphia Court of Common Pleas in December 2012. It was then removed to the Eastern District of Pennsylvania based upon the federal officer removal statute, due to the decedent’s work on Navy ships. Several defendants’ motions for summary judgment were granted on plaintiff’s negligence claims, based …

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Channeling Injunction Protects Insurer Against Industrial Hygiene Claims

The United States Court of Appeals for the Third Circuit held that a channeling injunction entered in the Chapter 11 bankruptcy proceeding of W.R. Grace & Co. (Grace) protected one of its insurers, Continental Casualty Company and Transportation Insurance Company (CNA), from claims that CNA was independently liable for asbestos-related injuries because it was negligent in providing industrial hygiene services in conjunction with worker’s compensation and employer’s liability policies it issued to Grace.

Mass-tort liability drove Grace into Chapter 11 bankruptcy reorganization. The Bankruptcy Code …

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PA Supreme Court to Determine Whether Fair Share Act Applies to Asbestos Cases

On July 31, 2018, the Pennsylvania Supreme Court granted William Roverano’s petition for allowance of appeal from the Superior Court’s December 2017 ruling that the Pennsylvania Fair Share Act applied to asbestos strict liability claims. Specifically, the court accepted review of two issues:

1) Whether, under this issue of first impression, the Superior Court misinterpreted the Fair Share Act 42 Pa.C.S. 7102 in holding that the Act requires the jury to apportion liability on a percentage basis as opposed to a per capita basis in …

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PA Superior Court Affirms Entry of Summary Judgment for Three Friction Defendants

PENNSYLVANIA — The plaintiff, Sharon Gilbert, filed suit as the executive of the estate of her husband, Guy Gilbert, and in her own right, alleging decedent was exposed to asbestos while working as an auto mechanic at Alray Tire in Pittsburgh, PA from 1975 to 1985.  The plaintiff alleged that such exposure caused decedent’s mesothelioma.  The decedent was not deposed before his death.  Two witnesses, decedent’s co-worker and manager at Alray, were deposed.  The manager testified that Alray purchased replacement parts from several automotive suppliers, …

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