LATEST INSIGHTS

Asbestos Litigation Analysis / Science
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First Asbestos Genetic Susceptibility (BAP1) Trial Now in the Books

Asbestos litigation has now entered the modern era. Namely, the first case involving testimony related to BAP1 mutations has gone to trial in California: the Ortwein case. The trial involved a 50-year-old woman with pleural mesothelioma, represented by the Kazan firm. The defendant at trial was CertainTeed, a building manufacturer, and the case settled shortly before it would have gone to the jury.

But does the Ortwein trial matter when it is only one case out of thousands filed every year? We believe it does …

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Case Decisions / Louisiana
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Inherent Difficulties with Discovery In Latent Disease Cases Key to Allowing Plaintiffs to Amend Pleadings After Scheduling Order Deadline

The decedent was a career aircraft mechanic at Belle Chasse Air Force Base, and died of mesothelioma. The decedent’s heirs sued nine defendants in state court for asbestos exposure; defendant Boeing Company removed to federal court. After the deadline to amend pleadings, the plaintiffs filed an unopposed motion to continue the trial date so that they could add the manufacturers of additional aircrafts, and to establish a new scheduling order and trial date. The court declined to continue the trial date, but allowed the plaintiffs …

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California / Case Decisions / Remand/Removal
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Case Remanded to State Court Despite Defendant’s Claim Plaintiffs Acted in Bad Faith with Claims Against Non-Diverse Defendant

In this case, Asbestos Corporation, Ltd. (ACL) removed the action to federal court on the ground of diversity. The plaintiffs moved to remand, arguing that ACL removed the action past the one year deadline to do so. ACL responded that the missing of the deadline to remove is excused since the plaintiffs acted in bad faith by maintaining a claim against a non-diverse defendant, J.T. Thrope & Sons, Inc. (JTTS), to prevent removal. The plaintiffs responded that they were active in prosecuting those claims in …

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Case Decisions / New York / Summary Judgment
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NYCAL Judge Denies Defendant’s Motion for Summary Judgment on Product Identification and Other Grounds

In a February 22, 2016 decision, the Honorable Peter H. Moulton, J.S.C. of the Supreme Court of the State of New York, New York County denied the defendant’s motion for summary judgment in a case where the plaintiff-decedent was allegedly exposed to asbestos during a lengthy career as a longshoreman on at certain New York City piers. During the pertinent period, the moving defendant was alleged to be the manufacturer of two asbestos-containing products (i.e., a pelletized product and a phenolic molding compound). The plaintiff …

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California / Case Decisions / Expert Challenges / Summary Judgment
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Expert Opinion on Asbestos Content of Insulation — Based in Part on Non-Party Witness Declaration — Sufficient to Create Question of Fact to Overcome Summary Judgment

In this case, it was claimed that the decedent, Michael O’Leary, was exposed to asbestos while working as a rigger at the Tosco Refinery in the 1970s to late 1980s near employees from the defendant, Dillingham Construction N.A., Inc., who were sweeping up insulation off the floor in his vicinity. The trial court precluded the opinion that the insulation contained asbestos as being speculative from the plaintiff’s expert, Charles Ay, and granted summary judgment to Dillingham.

On appeal, the court found the expert’s opinion to …

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Case Decisions / Expert Challenges / Summary Judgment / Wisconsin
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Mixed Rulings on Daubert Challenges and Motions for Summary Judgment by Employer on Employees’ Non-Occupational Asbestos Exposure Claims

In this decision, there were eight separate actions against Weyerhaeuser Company involving private and public nuisance claims brought by, or on the behalf of, former employees of Weyerhaeuser for asbestos-related injuries based on non-occupational exposure. Weyerhaeuser used asbestos in its mineral core plant to manufacture a door core. The plaintiffs non-occupational exposure claims were based on their living, or being, in close proximity to the plant. Weyerhaeuser “moved to strike plaintiffs’ experts and for summary judgment, arguing that plaintiffs are unable to prove injuries beyond …

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Case Decisions / New York / Pleadings Challenge
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Airplane Manufacturer Granted Dismissal in N.Y. Federal Court Action for Lack of Jurisdiction Even Though Registered to do Business and Appointed an Agent for Service of Process

In this federal court case, it was alleged that the decedent, Walter Brown, was exposed to asbestos while serving as an airplane mechanic in the U.S. Air force from 1950-1970. During that time, he worked at various bases in Europe and in the U.S. in Alabama, Delaware, Georgia, Illinois, New Mexico, and Michigan. Prior to his passing, the decedent, who was living in Alabama, sued 14 companies, including Lockheed Martin Corporation in the United States District Court for the Southern District of Alabama. A motion …

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Case Decisions / Discovery / Illinois
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Southern District of Illinois Strikes Portions of Pre-Trial Disclosures Containing Vague, Boilerplate Language; Parties Have No Right to Reserve Use of Un-Named Discovery

In four different rulings in the same case, the Southern District of Illinois struck portions of pre-trial disclosures filed by the plaintiff and various defendants. In their pre-trial disclosures, defendants Ingersoll-Rand, Viking Pumps, and Excelsior identified no witnesses and reserved the right to call numerous un-named witnesses at trial. The plaintiff also reserved the right to call numerous un-named witnesses at trial.

The court cited Rule 26: “Under Rule 26(a)(3), pretrial disclosures must (emphasis added) include: ‘(i) the name and, if not previously provided, the …

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California / Case Decisions / Expert Challenges
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Daubert Challenge of Plaintiff’s Experts Denied in Career Boilermaker Case

The plaintiff in this case alleged that the decedent, Michael Walashek, was exposed to asbestos from various products while working as a boilermaker between 1967 and 1986 on various naval, commercial, and industrial vessels. The defendant, Foster Wheeler LLC, filed a motion to preclude the testimony of the plaintiff’s experts Dr. Edwin Holstein ad Dr. Michael Claude Fishbein on the grounds that their opinions do not satisfy the requirements of Fed. R. Evid. 702 and Daubert.

The court denied the motion. Regarding Dr. Fishbein, …

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California / Case Decisions / Remand/Removal
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Federal Court Remands Case to State Court Based on Plaintiff’s Waiver of Federal Claims Against Removing Defendant

On June 15, 2015, plaintiffs Charles Ford and Carol Ford filed an action in the Alameda County Superior Court alleging state law claims for Mr. Ford’s exposure to asbestos from numerous defendants. Defendant Foster Wheeler Energy removed the matter to federal court in November 2015 following Mr. Ford’s testimony that he worked aboard the USS Oklahoma City while working for the Bethlehem Shipyards in the late 1960s. In December 2015, the laintiffs filed a notice of waiver, which stated that they waive any claims against …

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