Boiler Manufacturers Obtain Summary Judgment Based on Statute of Repose

In this case, the decedent, Ralph Vitale, alleged exposure to asbestos from the installation of Burnham and Weil-McLain residential boilers during the course of his work through his own HVAC and plumbing business between 1966 and 1979.  Defendants Burnham, LLC and Weil-McLain, a division of the Marley-Wylain Company, moved for summary judgment  on the basis that no cause of action accrued against them pursuant to Maryland’s statute of repose, codified at Sec. 5-108 of the Maryland Code, Courts and Judicial Proceedings article. Maryland’s statute of …

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Summary Judgment Granted to Various Defendants For Lack of Product Identification Despite Inclusion in Interrogatory Responses in Take-Home Exposure Case

In this case, it was alleged that the decedent was exposed to asbestos from laundering her husband, Eugene Blamowski’s, work clothes. Mr. Blamowski worked as a laborer at Bethlehem Steel from 1955-84, with the exception of his Army service from 1958-62. He and the decedent were married in 1965 and the decedent had laundered his clothes since that time. Several defendants, including Frontier Insulation Contractors, Beazer East, Riley Power, Inc., and Buffalo Pumps, Inc., moved for summary judgment based on lack of product identification and …

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Lack of Evidence of Asbestos Replacement Parts Supplied by Crane for Use in Crane Valves Key to Granting of Summary Judgment

The decedent died of mesothelioma; prior to his passing he filed a lawsuit in state court alleging exposure to asbestos while a production shift supervisor during his employment at a paper mill in Georgia. One defendant removed, and the action was transferred to MDL 875. Defendant Crane Co. filed for summary judgment, which was granted in part by the MDL court; however, it remanded to the Northern District of Georgia to determine whether the bare metal defense was available under Georgia law. Crane then moved …

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Applying Factors Outlined by the Second Circuit, New York Court Refuses to Consolidate Three Asbestos Cases for Trial

The plaintiffs moved to consolidate three cases for trial. Defendants American Biltrite and Kaiser Gypsum opposed. The court denied the plaintiffs’ motion to consolidate.

Courts consider six factors outlined by the Second Circuit in determining whether or not to consolidate individual plaintiffs’ cases for a joint trial where asbestos exposure is alleged: “(1) whether the plaintiffs worked at a common or similar worksite; (2) whether the plaintiffs had similar occupations, as a ‘worker’s exposure to asbestos must depend mainly on his occupation,’ such as those …

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Diversity Jurisdiction Not Established Where Volkswagen Failed to Prove Fraudulent Joinder of Missouri Defendant

Nebraska plaintiffs filed an action in Missouri state court after the decedent died of mesothelioma.  After five defendants remained, defendant Volkswagen filed for removal based upon diversity jurisdiction, and alleged that the defendant, J.P. Bushnell Packing Supply Company, a Missouri corporation, was fraudulently joined.  This matter was before the court sua sponte to determine whether jurisdiction existed.  Finding no jurisdiction, the court remanded.

Any doubts about the propriety of removal are resolved in favor of remand.  In diversity jurisdiction, complete diversity exists where no defendant …

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Summary Judgment Granted to Cleaver Brooks Because Vague Witness Testimony Not Enough to Establish Exposure

The decedent in this case, Michael Walashek, alleged exposure to asbestos from various products, including Cleaver-Brooks boilers, during the course of his work for various entities between 1967 and 1986. The exposure allegedly caused him to “suffer severe and permanent injury and ultimately death.” The plaintiff, Gail Walashek, subsequently filed a lawsuit against the defendant Cleaver-Brooks, Inc. and other entities alleging claims of negligence and strict liability in the U.S. District Court for the Southern District of California. Following discovery, the defendant moved for summary …

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MDL 875 Clarifies That Absent Sufficient Exposure, Bare Metal Defense Applied in Maritime Law Bars Negligence and Strict Product Liability Claims

In January 2013, this case was removed on the basis of federal question jurisdiction and assigned to MDL 875. The plaintiffs alleged asbestos exposure while serving in the Navy. Applying maritime law, the court granted summary judgments filed by Buffalo Pumps, CBS Corporation, Foster Wheeler, General Electric, IMO Industries, and Warren Pumps, based upon the bare metal defense. The plaintiffs appealed and the Third Circuit remanded the case to the MDL court to clarify whether it: (1) considered the negligence theory of liability; (2) concluded …

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Cause Remanded to State Court After Federal Officer Defendants Dismissed

The plaintiff filed an asbestos suit in Missouri; defendant Crane Co. removed to federal court based on federal officer jurisdiction, in which Warren Pumps and CBS Corporation joined.  All three defendants were dismissed and the plaintiff moved to remand, which the court granted.  “…[I]f the federal party is eliminated from the suit after removal…the district court does not lose its…jurisdiction over the state law claims against the remaining non-federal parties…Instead, the district court retains the power either to adjudicate the underlying state law claims or …

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Special Electric’s Judgment Notwithstanding the Verdict Overturned on Appeal Despite Sale of Raw Asbestos Was to Sophisticated User Johns Manville

Plaintiff William Webb brought a claim against multiple defendants for his alleged development of mesothelioma as a result of his occupational exposure to crocidolite while working for Pyramid Pipe as a warehouseman and truck driver.

A supplier of raw asbestos, defendant Special Electric, was found liable for failure to warn and negligence. Special Electric supplied the Johns Manville Corporation with raw crocidolite asbestos to be used in the manufacturer of multiple Johns Manville products. The court noted that Johns Manville was a vast manufacturer with …

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Dismissal of Third-Party Complaint Brought by City of Phoenix Against Contractors and Developers Upheld on Appeal Based Upon Statute of Repose

In 2013, Carlos Tarazon filed a lawsuit against the City of Phoenix, alleging that he developed mesothelioma as a result of asbestos exposure while performing pipe installation and other repairs for the city on projects that took place between 1968 and 1993. The city, in turn, filed a third-party complaint against the developers and contractors responsible for the planning, design and construction of the projects, seeking defense and indemnification pursuant to the construction contracts at issue and city ordinances incorporated within other development permits.

The …

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