LATEST INSIGHTS

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Failure to State a Claim / Motion to Dismiss
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Boiler Manufacturer’s Motion to Dismiss Denied

Court: Supreme Court of New York, New York County (NYCAL)

In this asbestos action, boiler defendant Burnham LLC was sued for a variety of claims, including failure to warn, loss of consortium, and punitive damages. Burnham moved to dismiss the claims, arguing the plaintiff failed to plead with particularity.

A motion to dismiss for failure to state a claim “will generally depend upon whether or not there was substantial compliance with CPLR 3013”; that is, if the allegations are not “sufficiently particular to give the …

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New York
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Defendant’s Attempt to Obtain Tissue Sample for Digestion Testing Denied

Court: Supreme Court of New York, New York County

In this asbestos action, plaintiff Almando Rodney underwent a pleurectomy. Defendant Mercedez-Benz USA LLC (MBUSA) moved to seek an out-of-state subpoena in order to retrieve a portion of Rodney’s tissue sample from a Florida hospital. MBUSA also moved to permit its expert to perform digestion studies on the tissue block.

The plaintiff opposed on two grounds. Plaintiff noted that the Note of Issue had been filed. In addition, the plaintiff submitted an affidavit from Rodney’s treating …

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The law concept background.
Punitive Damages / Summary Judgment
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Water Heater Defendant Obtained Partial Summary Judgment

Superior Court of California, County of Los Angeles

In this asbestos action, defendant Rheem Manufacturing Company filed a motion for summary judgment, and alternatively summary adjudication, arguing that the plaintiffs do not have evidence that the relevant plaintiff was exposed to asbestos from Rheem products.

To show that a plaintiff cannot establish an element of a cause of action, a defendant must make the initial showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. A plaintiff’s deposition testimony that he has …

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Punitive Damages / Summary Judgment
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Supplier Defendant Succeeds in Opposing Punitive Damages

Superior Court of California, County of Los Angeles

In this asbestos action, the court considered various defense motions.

Defendant Western Auto Supply company filed a request opposing punitive damages, arguing that the plaintiffs cannot prove that it acted with oppression, malice or fraud. Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.

For a corporate defendant, the oppression, fraud or …

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New York / Summary Judgment
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Judge Finds Question of Fact Regarding Boiler Manufacturer’s Warnings; Denies Motion for Summary Judgment as to Punitive Damages

Jurisdiction: Supreme Court of New York, New York County

In this asbestos-related lawsuit, the plaintiff alleged he was exposed to asbestos while working with, and around, boilers manufactured by defendant, Burnham, from 1961 to 1999.

Burnham filed a motion for partial summary judgment as to punitive damages, arguing the plaintiff failed to establish that Burnham’s conduct rose to the level of egregious and morally culpable conduct necessary for an award of punitive damages. According to Burnham, any exposure to asbestos by plaintiff through Burnham boilers were below …

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Asbestos Litigation Analysis
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Mid-Year Asbestos Filing Update for 2023

On Thursday, KCIC posted their 2023 Mid-Year Asbestos Filings Update. This update is compiled using information collected through July 31. Here are some highlights from the update:

Asbestos-Related Lawsuits Increase After Last Year’s Decrease

The number of asbestos-related lawsuits decreased from 2021 (1,972) to 2022 (1,922). However, 2023 shows an increase in the number of filings over the same span (1,963). In addition, the number of filings in 2023 is down from the high point of the last five years in 2019 (2,191).  …

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Florida / Summary Judgment
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Grant of Summary Judgment to Brake Manufacturer Reversed on Appeal

Court: Court of Appeal of Florida, First District 

The decedent, Joan Smith, died from mesothelioma allegedly caused by secondary exposure to asbestos through laundering her husband’s work clothing. From 1969 through 1993, Mr. Smith was employed as a mechanic and performed brake work on Mack heavy trucks. Mack did not manufacture its own brakes but rather purchased them from third-party suppliers, including Carlisle Industrial Brake & Friction. 

Carlisle acknowledged that it sold asbestos-containing brake linings to Mack from 1974 to 1979.  Mack, however, was only …

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New York / Summary Judgment
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Power Companies’ Motion for Summary Judgment Denied

Court: Supreme Court of New York, New York County

Long Island Lighting Company (LILCO) is a subsidiary of Long Island Power Authority (LIPA). LIPA was created “to remedy LILCO’s conduct as a private electric provider” by closing LILCO’s Shoreham Nuclear Power Station — where the plaintiff-decedent was allegedly exposed to asbestos — and saving LILCO customers money by reducing utility costs. 

LIPA and LILCO moved for summary judgment on that basis that the plaintiff failed to (1) bring their claims within the statute of limitations …

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Justice.
Louisiana / Summary Judgment
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Shipyard Defendant Obtains Summary Judgment Due to Prior Release

Court: United States District Court for the Eastern District of Louisiana

In this asbestos action, Felton Robichaux worked as an insulator and carpenter at Avondale Shipyard from 1961 to 1979, and alleges he was exposed to asbestos through his work, as well as through his contact with other employees at Avondale Shipyard. In 1991, Robichaux and thousands of other plaintiffs sued a number of defendants for asbestos-related injuries in In re Asbestos Plaintiffs v. Borden, which was filed in Orleans Parish Civil District Court (the …

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The law concept background.
New York / Summary Judgment
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Supplier’s Motion for Summary Judgment on Causation Denied

Court: Supreme Court of New York, New York County

In this asbestos action, defendant Dykes Lumber moved for summary judgment, arguing it established a prima facie case for lack of causation under Nemeth v. Brenntag. Plaintiff Raphael Sason opposed the motion.

First, the court set forth the summary judgment standard, including that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact …

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