U.S. District Court for Northern California Grants Plaintiff’s Motion to Remand Case Based on Untimely Diversity Jurisdiction Removal

The plaintiff brought an action for alleged development of mesothelioma as a result of asbestos exposure on April 15, 2014. After the plaintiff passed on July 7, 2015, his wife filed a second amended complaint, adding a wrongful death and survival claim on October 28, 2015. The defendant removed the case based on diversity jurisdiction and the plaintiff’s moved to remand as untimely.

Although the removal statute requires removal within 30 days from date of service of the complaint, the defendant relied upon two arguments …

Continue Reading

Plaintiffs’ Evidence in Response to Two Defendants’ Summary Judgment Motions Insufficient to Infer Exposure to Lifetime Boilermaker

The plaintiffs filed a wrongful death and survival action in state court; shortly thereafter defendants removed to federal court. The plaintiffs asserted negligence and strict liability claims from the death of their father/husband from malignant mesothelioma; the decedent was a career boilermaker. Defendants Lamons Gasket Company and Parker-Hannifin Corporation moved for summary judgment; both were granted.

The plaintiffs alleged asbestos exposure during the decedent’s work on boilers and other equipment installed on naval, industrial, and commercial vessels. Lamons and Parker argued lack of exposure. In …

Continue Reading

Summary Judgment Granted in Favor of Defendant Company Pursuant to California’s Workers’ Compensation Act in Matter Involving 44 Years of Alleged On-The-Job Asbestos Exposure

The plaintiff filed a lawsuit in state court alleging that from 1956 to 1990, he was employed by the defendant and “spent a significant portion of that time ‘dealing with asbestos, fiber glass products and other hazardous products.’” The three causes of action were for: (1) premises liability; (2) negligence; and (3) negligent infliction of emotional distress. The defendant removed the case to the Northern District of California and then moved to dismiss it on the grounds that California’s Workers’ Compensation Act provided the exclusive …

Continue Reading

Summary Judgment Affirmed Where Plaintiff Failed to Produce Sufficient Evidence of Asbestos Exposure

In this case, the plaintiff Melvin Desin, an electrician, alleged that he was exposed to asbestos while working at various job sites in the 1960s and early 1970s, including on seven or eight occasions in the vicinity of painters employed by defendant Zelinsky, a painting contractor. At his deposition, the plaintiff testified that he worked in close proximity to the Zelinsky workers, who patched and sanded walls and joint compound in his presence. However, the plaintiff could not identify the brand name, manufacturer, or supplier …

Continue Reading

Summary Judgment Affirmed as Evidence of Asbestos Impurities in Auto Body Filler Only Equated to a Possibility of Asbestos Exposure

In this case, it was alleged that the plaintiff, John DePree, was exposed to asbestos from various products, including the use of Bondo auto body filler in the 1970s to repair dents in his cars.  BASF Catalysts, LLC moved for, and was granted, summary judgment based on its argument that the plaintiffs could not offer more than a mere possibility of exposure to asbestos from a BASF product since any asbestos in the Bondo talc was an impurity and not an intended ingredient. The plaintiffs …

Continue Reading

Summary Judgment Overturned on Triable Issue as to Medical Monitoring of Plaintiff’s Asbestos-Related Pleural Plaques

In this federal court case, the plaintiff, Robert Hanson, filed a complaint in 2010 against various defendants, including “Doe” defendants, alleging asbestos exposure caused his asbestosis. In 2012, the plaintiff substituted Collins Electrical Company for one of the Doe defendants. In 2013, Collins moved for summary judgment, arguing that the plaintiff did not have any evidence of asbestosis or any asbestos-related injury. While the motion was pending, the plaintiff was allowed to file a first amended complaint, which removed any reference to asbestosis and claimed …

Continue Reading

Case Remanded to State Court to Hear Defendant’s Motion to Dismiss on Personal Jurisdiction as State Court Issues Predominate Case

In this case, the decedent Oscar Villanueva, is alleged to have been exposed to asbestos from various products while working at Glendale Auto Radio Stereo from 1969 to 1990. Defendant FCA US LLC removed the case to federal court since any judgment would have an impact on its bankruptcy estate. Defendant Dr. Ing. H.C.F. Porsche moved to dismiss arguing improper service of process and lack of personal jurisdiction. The plaintiff subsequently dismissed the claim against FCA and moved to remand for lack of subject matter …

Continue Reading

California Appellate Court Allows Expert Opinion Testimony on “Every Exposure” Theory

The plaintiff presented expert testimonial evidence at trial that her father’s exposure to asbestos from Bendix brake linings was a substantial factor in contributing to his risk of developing mesothelioma. The jury found in favor of the plaintiff; defendant Honeywell International appealed on two grounds: (1) the “every exposure” theory should have been excluded under California law, and (2) the trial court erred in refusing to give a supplemental jury instruction regarding factors relevant to the substantial factor determination. The court found no error.

For …

Continue Reading

Plaintiff’s Motion to Remand Granted and Attorneys’ Fees Awarded to Plaintiff; Defendant’s Notice of Removal Both Substantively and Procedurally Improper

The plaintiff filed an action in California state court against various defendants after being diagnosed with malignant mesothelioma. Defendant O’Reilly Auto Enterprises removed to federal court after it was the only remaining defendant on the basis of diversity. The plaintiff filed a motion to remand and for attorneys’ fees. The court granted the plaintiff’s motion.

O’Reilly’s notice of removal was both substantively and procedurally improper. A complaint that is not initially removable due to non-diversity may become removable where diversity arises due to a plaintiff’s …

Continue Reading

Case Remanded to State Court Despite Defendant’s Claim Plaintiffs Acted in Bad Faith with Claims Against Non-Diverse Defendant

In this case, Asbestos Corporation, Ltd. (ACL) removed the action to federal court on the ground of diversity. The plaintiffs moved to remand, arguing that ACL removed the action past the one year deadline to do so. ACL responded that the missing of the deadline to remove is excused since the plaintiffs acted in bad faith by maintaining a claim against a non-diverse defendant, J.T. Thrope & Sons, Inc. (JTTS), to prevent removal. The plaintiffs responded that they were active in prosecuting those claims in …

Continue Reading