California Appellate Court Upholds Rejection of Lay and Expert Witness and Grants Zenith Summary Judgment in Radio Tube Asbestos Case

The California Court of Appeal affirmed the rejection of lay witness testimony as to asbestos content: “As a lay witness, Darby could testify to his observations about the texture of the material, but not to his conclusion that it contained asbestos since a lay witness may not opine about matters not within common knowledge or experience. (Cf. McAlpin, supra, 53 Cal.3d at p. 1308 [lifeguards who recovered body from water were not qualified to express medical opinion on cause of death].) According to Savic, ‘fibrous …

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Railroad Companies Awarded Dismissals for Plaintiffs’ Failure to Properly Plead Successor-In-Interest Liability

In these actions, plaintiffs Dennis Franco and James Nelson claimed exposure to asbestos while working, respectively, as a track repairman for the Reading Company and as a machinist for Consolidated Rail Corporation (Conrail). Defendants CSX Transportation and Norfolk Southern Railway are successor-in-interest to Reading and Conrail and moved to dismiss several of the plaintiffs’ claims, including common-law negligence and premises liability, arguing that the Federal Employers’ Liability Act (FELA) provides the exclusive remedy to railroad carrier employees who suffer work-related injuries resulting from the employer’s …

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NYCAL Court Reduces $20 Million Verdict to $6 Million Against Boiler Manufacturer, But Denies Other Post-Trial Motions

In this NYCAL case, the plaintiff’s decedent, Charles Hillyer, allegedly developed mesothelioma from asbestos exposure during his work as a steamfitter between 1960 and 1983. At the time of trial, there were three remaining defendants: Burnham; Cleaver Brooks, Inc.; and William Powell Company. Cleaver Brooks settled during the trial and William Powell obtained a voluntary discontinuance from the plaintiff prior to jury deliberations. After trial, the jury rendered a verdict against Burnham in the amount of $20 million for past pain and suffering and allocated …

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California Applies Higher Texas Standard on Causation and Dismisses Asbestos Case

In this California state case, the plaintiff, a Texas resident, claimed asbestos exposure in both California and Texas, although the particular claimed exposure against certain defendants was in Texas. These defendants moved for summary judgment, claiming that under Texas law, the plaintiff was unable to meet the legal standard of causation. Both the lower and appellate courts in California, under choice of law principles, ruled that Texas law applied and, under the higher causation standard in Texas, granted summary judgment. With respect to Texas law …

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Court Avoids Statute of Repose While Dismissing Plaintiff’s Claims on Lack of Causation

Plaintiff Todd  Alexander commenced a wrongful death action claiming decedent Richard Alexander was exposed to asbestos in connection with his sheet metal, heating, and plumbing business. Defendants Auer and Milwaukee Stove moved for summary judgment under Wisconsin’s Statute of Repose and, in the alternative, along with defendant CertainTeed, on lack of causation. The lower court granted Auer’s and Milwaukee Stove’s motion based on the Statute of Repose and CertainTeed’s motion based on causation.

On appeal, the Wisconsin Court of Appeals avoided ruling on the Statute …

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$190 Million Verdict Reduced to Under $30 Million

Following the highly publicized $190 million verdict in NYCAL in five consolidated asbestos cases, the defendants were successful in reducing the collective award to just under $30 million on a post-trial motion. While the trial court rejected the defendants’ arguments on certain evidentiary issues, causation, apportionment, consolidation, and recklessness, it recognized that the verdicts materially deviated from what would be reasonable compensation.

The court applied the reasoning from the recent appellate court ruling in the Dummit case where the First Department assessed reasonable compensation based …

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