New Jersey Court Finds Plaintiff’s Certification Speculative and Grants Defendant’s Summary Judgment Motion

Plaintiff John Burton filed suit in the Superior Court of New Jersey, Middlesex County, against various defendants, including Ingersoll Rand, alleging he developed mesothelioma from occupational exposure to asbestos during his work at a New Jersey facility that manufactured aluminum cans. During his discovery deposition, Burton testified that the production of aluminum cans required a washing system to which the facility had two “washing machines” that incorporated washing and decorating the cans. Burton recalled these washing machines had 12 pumps and testified generally that Ingersoll …

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Kentucky Appellate Court Rejects “Any Exposure” Causation Theory

In September of 2012, William Stallings filed suit in Kentucky state court against Georgia Pacific and other manufacturers of the asbestos containing products he had been exposed to decades earlier, seeking punitive damages under theories of strict liability and negligence. Specifically, Stallings was diagnosed with mesothelioma allegedly caused by his four years of Naval Service, where he helped operate and maintain boilers aboard the USS Waller. After leaving the Navy, Stallings worked as a drywall finisher, where he alleged exposure from mixing and installing drywall. …

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Federal Court Denies Defendants’ Motion to Dismiss on Jurisdiction Without Prejudice

On September 26, 2016, Plaintiff Marc Killam filed suit in the Thirteenth Judicial Circuit in and for Hilsborough County, Florida against various defendants after learning of his asbestosis diagnosis. Killam alleged he was exposed to asbestos through his Naval Service, from 1973-77 aboard the USS McCandless while at sea and in the Philadelphia Navy Yard. Here, Killam claims a number of defendants manufactured, sold, distributed, installed, or promoted the asbestos products with which he came into contact. He also alleged, that from 1978-80, as an …

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Motion to Dismiss on Lack of Jurisdiction Denied as Limited Discovery is Required

On October 28, 2015, the plaintiff, Estelle Grimes, widow of plaintiff-decedent Thomas Grimes, brought suit against the defendants and numerous other corporations who also allegedly mined, sold, or distributed asbestos in New Jersey state court. On December 1, 2015, the case was removed from state to federal court. The plaintiff amended the complaint on August 1, 2016. The defendants ACL and Bell filed mirror-image motions to dismiss for lack of personal jurisdiction on August 4, 2016 before the U.S. District Court for the District of …

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Appellate Court Reverses Trial Court’s Directed Verdict in NYCAL

On August 29, 2014, Judge Barbara Jaffe entered an order granting defendant Consolidated Edison’s (Con Edison) post-trial motion to set aside a verdict against it and direct that judgment be entered in its favor. Upon appeal, the Supreme Court of New York, Appellate Division, First Department, issued an a decision on January 10, 2017. The crux of this case revolves around the plaintiff’s exposure to asbestos while working for a subcontractor at Con Edison’s power plant.

The Appellate Division found the trial court improperly set …

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No Error in Recommendation of Summary Judgment Where Plaintiffs Failed to Establish Causation

Summary Judgment was recommended by the magistrate for the plaintiffs’ failure to establish causation in this case. The plaintiff appealed and contended that his asbestos related disease was a result of exposure to asbestos from Foster Wheeler boilers while working onboard the USS Gridley.

The court noted that the standard of review of a magistrate’s report and recommendation is de novo. In this case, no party objected to the application of maritime law. Accordingly, the plaintiff had the burden to show: 1) The plaintiff …

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Crane Asserted a Colorable Federal Defense to Establish Jurisdiction Under Federal Officer Removal Statute

The plaintiff sued various defendants for negligence, strict liability, and fraudulent inducement. Crane removed to federal court under the federal officer removal statute, and plaintiff moved to remand. The court denied this motion.

To remove under Section 1442(a)(1) the defendant must qualify as a “person” under the federal officer removal statute, must act under the direction of a federal officer at the time the defendant engaged in the allegedly tortious act, and must advance a “colorable federal defense.” Also, a causal connection must appear between …

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Various Rulings in NYCAL Case Regarding Defendants’ Motion in Limine to Preclude Certain Evidence

The plaintiff alleged asbestos exposure through his work as a roofer, maintenance man, and carpenter. The defendants submitted a joint motion in limine to preclude certain evidence. The court issued various rulings, summarized below.

First, the defendants asserted that Dr. Jacqueline Moline would offer a scientifically unsupportable causation opinion that every occupational exposure was a substantial factor in causing the plaintiff’s mesothelioma. This was also known, among other things, as the “each and every exposure” or “cumulative exposure” theory. At the outset the court noted …

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National Forum on Asbestos Claims and Litigation

On Thursday, January 12, 2017, Joseph J. Welter, partner and chair of Goldberg Segalla’s Toxic Tort and Environmental Practice Group, will be speaking at ACI’s Asbestos Claims and Litigation Conference in Philadelphia. This is ACI’s 22nd National Forum on Asbestos Claims and Litigation and will feature several topics, including:

  • Insurer-counsel-insured relationships: strategy between client, carrier, national counsel, and local counsel
  • Fallout surrounding bankruptcy trust transparency
  • Lung cancer and asbestos and a closer look at the science behind it

Joe will be part of the …

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Death of Statutory Beneficiary During Pendency of Jones Act Claim Did Not Extinguish Jones Act Claims; Estate Could Recover Benefit

Defendant Thompson Hine filed a motion for summary judgment, arguing that the plaintiff’s Jones Act survival claims abated due to no statutory beneficiary. The court denied the motion.

The plaintiff alleged that the decedent, Joseph Braun, was exposed to asbestos during his work aboard ships owned by the defendants and died from an asbestos-related disease. This case was originally filed in 1989 and asserted claims under the Jones Act and general maritime common law. In April 2011, the case was transferred to MDL 875 as …

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