In this federal court case, three appeals regarding the constitutionality of the Indiana product liability act statute of repose were consolidated for review. Several defendants moved for summary judgment based on the statute of repose in each of the cases with various results. The plaintiffs now argue that section 2 of the statute draws a constitutional impermissible distinction between asbestos plaintiffs who have claims against defendants who both mined and sold raw asbestos and asbestos and those asbestos plaintiffs that have claims against defendants that …
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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 ReadingCase 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 ReadingExpert Opinion on Asbestos Content of Insulation — Based in Part on Non-Party Witness Declaration — Sufficient to Create Question of Fact to Overcome Summary Judgment
In this case, it was claimed that the decedent, Michael O’Leary, was exposed to asbestos while working as a rigger at the Tosco Refinery in the 1970s to late 1980s near employees from the defendant, Dillingham Construction N.A., Inc., who were sweeping up insulation off the floor in his vicinity. The trial court precluded the opinion that the insulation contained asbestos as being speculative from the plaintiff’s expert, Charles Ay, and granted summary judgment to Dillingham.
On appeal, the court found the expert’s opinion to …
Continue ReadingSouthern District of Illinois Strikes Portions of Pre-Trial Disclosures Containing Vague, Boilerplate Language; Parties Have No Right to Reserve Use of Un-Named Discovery
In four different rulings in the same case, the Southern District of Illinois struck portions of pre-trial disclosures filed by the plaintiff and various defendants. In their pre-trial disclosures, defendants Ingersoll-Rand, Viking Pumps, and Excelsior identified no witnesses and reserved the right to call numerous un-named witnesses at trial. The plaintiff also reserved the right to call numerous un-named witnesses at trial.
The court cited Rule 26: “Under Rule 26(a)(3), pretrial disclosures must (emphasis added) include: ‘(i) the name and, if not previously provided, the …
Continue ReadingDaubert Challenge of Plaintiff’s Experts Denied in Career Boilermaker Case
The plaintiff in this case alleged that the decedent, Michael Walashek, was exposed to asbestos from various products while working as a boilermaker between 1967 and 1986 on various naval, commercial, and industrial vessels. The defendant, Foster Wheeler LLC, filed a motion to preclude the testimony of the plaintiff’s experts Dr. Edwin Holstein ad Dr. Michael Claude Fishbein on the grounds that their opinions do not satisfy the requirements of Fed. R. Evid. 702 and Daubert.
The court denied the motion. Regarding Dr. Fishbein, …
Continue ReadingFederal Court Remands Case to State Court Based on Plaintiff’s Waiver of Federal Claims Against Removing Defendant
On June 15, 2015, plaintiffs Charles Ford and Carol Ford filed an action in the Alameda County Superior Court alleging state law claims for Mr. Ford’s exposure to asbestos from numerous defendants. Defendant Foster Wheeler Energy removed the matter to federal court in November 2015 following Mr. Ford’s testimony that he worked aboard the USS Oklahoma City while working for the Bethlehem Shipyards in the late 1960s. In December 2015, the laintiffs filed a notice of waiver, which stated that they waive any claims against …
Continue ReadingBankruptcy Stay Lifted Against Defendant/Debtor to Allow Plaintiffs to Pursue State Law Claims
In this case, the defendant that used asbestos in some of its production while in business filed chapter 11. There remained 123 claims against the defendant and the defendant’s proposed chapter 11 plan stated that the “liability issues will pass through the bankruptcy and be tried in non-bankruptcy courts having jurisdiction.” The defendant objected to the Asbestos Committee’s motion to lift the automatic stay, arguing the stay should remain in place pending plan confirmation.
In its analysis, the court applied the Fernstrom three-part balancing test …
Continue ReadingIn Fact-Intensive Unpublished Opinion, California Appeals Court Reverses Grant of Summary Judgment to Three of Four Automotive Defendants
In this unpublished opinion, the plaintiffs appealed after the trial court granted summary judgment to defendants Ford, Navistar, Gibbs International, and Kelsey-Hayes. The plaintiffs also filed motions for a new trial as to all four defendants, which the trial court denied. The decedent was a civilian employee at the Naval Construction Battalion Center; while he was not a mechanic, his visited the Construction Equipment Division (CED) where all vehicle repair work was performed. He died of mesothelioma. The appellate court reversed the summary judgments as …
Continue ReadingOn Remand, Federal Court Again Grants Summary Judgment on Plaintiff’s Maritime and State Law Claims
In this federal court case, the court’s jurisdiction was based solely on the plaintiff’s assertion of maritime jurisdiction as set forth in in his fourth amended complaint. The plaintiff brought claims against 54 defendants that manufactured asbestos-containing products that the decedent, Christopher Curtis, was allegedly exposed to in three different situations: From 1955-58 while he served in the Navy, while employed as an electrician for 40 years, and while performing maintenance on his automobiles. The plaintiff settled against many of the 54 defendants, and other …
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