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Science
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New Considerations in Defending Against Lung Cancer Cases Part 1: HPV Status

For some time now, we have been writing, discussing, and suggesting that there is great value in thinking about genetic and other “omic” data when defending toxic tort or product liability cases involving disease allegations of any kind. But these “omic” data are especially critical in cases involving allegations of cancer causation.

On this note, we were intrigued when we saw a recent post reporting that defense experts and lawyers in asbestos litigation spent some time thinking about the Human Papilloma Virus (HPV) as a …

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Case Decisions / Delaware / Summary Judgment
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Defendants Granted Summary Judgment Where Plaintiff Failed to Satisfy Frequency, Proximity, Regularity Standard

Plaintiff Robert Lee Winhauer filed an asbestos action in the Delaware Superior Court against multiple defendants, asserting personal injury claims relating to a mesothelioma diagnosis proximately caused by alleged exposure to asbestos. The defendants removed the action to the U.S. District Court for the District of Delaware. After Winhauer’s death, the complaint was amended to substitute a representative of the estate and add a wrongful death claim. The defendants Honeywell (successor in interest to Bendix) and Ingersoll Rand both filed motions for summary judgment, which …

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Insurance Coverage / New York
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Court Rules Summary Judgment Not Appropriate Due to Ambiguity on How Non-Cumulation Clause Operated

Liberty Mutual Insurance Company issued successive annual insurance policies to the Fairbanks Company from January 1, 1974 to January 1, 1982. Liberty issued both comprehensive general liability and umbrella policies. Multiple lawsuits were filed in several jurisdictions against Fairbanks, alleging injuries due to exposure to asbestos, and this coverage litigation resulted.

On March 21, 2016, the court ruled on Liberty’s motion for summary judgment, concluding that the policies were subject to pro rata allocation such that Liberty was only liable to indemnify Fairbanks for the …

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Case Decisions / Missouri
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Plaintiff’s Own Allegations Fail to Establish Personal Jurisdiction Against Defendant Federal-Mogul

In the same case reported on today, the court also determined whether personal jurisdiction existed for defendant Federal-Mogul Asbestos Injury Trust, as successor to the former Vellumoid Division of Federal-Mogul and as successor to Felt-Products Manufacturing Co. (Federal-Mogul). The plaintiff failed to respond to Federal-Mogul’s personal jurisdiction motion. The complaint listed 78 defendants, and alleged that all defendants were amenable to suit in Missouri by reason of having sold, distributed and/or installed asbestos-containing products in Missouri or by reason of having placed the same …

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Case Decisions / Missouri / Remand/Removal
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Plaintiff’s Attempt to Avoid Federal Subject Matter Jurisdiction by Disclaiming Federal Officer Claims Unsuccessful

The plaintiff asserted various claims against 78 defendants due to mesothelioma developed from alleged asbestos exposure incurred during his civilian work in the Navy from 1958-64, Kambien from 1966-69, and Polaroid from 1969-97.  The plaintiff attempted to make the action un-removable by disclaiming any relief for injuries sustained upon a federal enclave or as a result of malfeasance of persons acting as federal officers. However, the plaintiff’s deposition testimony triggered defendant Crane’s right to remove.  Crane timely removed and the plaintiff moved to remand, which …

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Case Decisions / New York
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$3.5 Million Verdict Against National Grid Generation, LLC Upheld

On August 4, 2016, the Supreme Court of New York affirmed the jury’s award of $3.5 million against defendant National Grid Generation, LLC. The evidence showed that LILCO, National Grid’s predecessor in interest, issued detailed specifications directing contractors on how to mix and apply asbestos-containing concrete and insulation at a power plant. This supported the jury’s finding of a violation of Labor Law § 200. The fact that LILCO ensured that its directives were followed by supervising the superintendents, rather than by directly supervising the …

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Case Decisions / Pennsylvania / Punitive Damages / Summary Judgment
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Court Provides Mixed Ruling on Motions for Summary Judgment on Punitive Damages Brought by Boiler Manufacturers

The Court of Common Pleas of Lackawanna County in Pennsylvania recently ruled on partial motions for summary judgment with respect to punitive damages asserted by the paintiffs, Robert Horst, Jr. and Diane Horst. Defendants filing said motions included Burnham, LLC , Lennox Industries, Inc., and Weil-McLain.

The court stated that, in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that …

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California / Case Decisions / Summary Judgment
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Motion for Reconsideration of Summary Judgment of Defendants Electric Boat and General Dynamics Denied for Failure to Establish Material Difference in Fact or Law

The plaintiffs’ filed suit in the Superior Court for the County of Los Angeles, alleging her decedent developed mesothelioma as a result of occupational exposure to asbestos while he worked as a machinist on various U.S. Navy ships manufactured by the defendants.

The case was removed to federal court and Electric Boat and General Dynamics moved for summary judgment on all of the plaintiffs’ claims. The court denied the motions. The defendants’ included in their motions the argument that strict liability claims could not be …

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Case Decisions / Connecticut / Summary Judgment
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Summary Judgment Recommended Where Plaintiff Fails to Establish Substantial Factor Causation Against Multiple Defendants

Plaintiff Mark Hillyer sued multiple defendants, alleging that he developed mesothelioma as a result of exposure to asbestos-containing products while serving in the Navy from 1967 to 1997. His claims were based in negligence, strict liability and loss of consortium. In discovery, the plaintiff was deposed on two occasions but did not produce any other fact or product identification witnesses. The plaintiff testified that, while on the USS George Washington Carver, he conducted preventative maintenance to main engines and turbine generators as well as corrective …

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California / Case Decisions / Expert Challenges / Summary Judgment
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Appellate Court Allows Industrial Hygienist’s Reliance on Hearsay Evidence in Overturning Summary Judgment in Favor of Defendant Lumber Company

The plaintiff, Jerry Charlifue, sued Goodman Lumber Company after he was diagnosed with mesothelioma. He worked as a taper and painter for U.S. Taping Company between 1972 and 1978. His duties involved applying joint compound and smoothing out walls and ceilings where drywall had been hung. The plaintiff worked with dry joint compound for the first three to four years of the job, which produced respirable dust.

Goodman moved for summary judgment on the basis that the plaintiff could not prove that he was exposed …

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