LATEST INSIGHTS

Delaware / Summary Judgment
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Meteorologist’s Opinion Insufficient to Support Environmental Claim to Asbestos; Summary Judgment Granted Superior Court of Delaware

DELAWARE — In Werner Rath v. 3M Company, et al., the court ruled on a defendant Oyj Partek Ab’s (Partek) motion for summary judgment. The plaintiff alleged occupational exposure to asbestos while working as a union carpenter at a number of industrial sites in Delaware and New Jersey. One week before the plaintiff’s deposition was scheduled to take place, the plaintiff’s counsel filed a motion for leave to amend to file an amended complaint joining additional defendants, including Partek. Partek was one, non-exclusive supplier …

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Asbestos Litigation Analysis
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Subjective Generalization Regarding Frequency of Exposure Held Legally Insufficient to Support Jury Verdict

As recently reported on March 28, 2019 on the Asbestos Case Tracker, the First Department of the New York Supreme Court issued a significant causation decision. In Joanne Corazza as Executrix of the Estate of George Cooney v. Amchem Products Inc., et al, the plaintiff sued multiple asbestos related defendants, alleging they were all the cause of Mr. Cooney’s lung cancer. Notably, Mr. Cooney was a two-and-a-half pack-per-day smoker of 52 years prior to his death. The case was tried to verdict over …

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Case Decisions / Pleadings Challenge / Wisconsin
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Workers’ Compensation Exclusivity Provision Leads to Dismissal of Construction Worker’s Complaint

WISCONSIN — Plaintiff Johnson Carter filed suit against Henry Carlson’s Construction Company (HCCC) alleging he suffered “a variety of severe medical symptoms” after exposure to asbestos while working for HCCC as a temporary construction worker. Specifically, he claimed that he was exposed to asbestos during a demolition of a hospital in the late 1980s. He could not recall the name of the temporary agency or hospital, but stated that he was provided a dust mask for the tear-out work. HCCC moved to dismiss the complaint …

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Appeal / New York
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Jury Instructions Confused Non-Party’s Role as Employer and Manufacturer, Leading to Incorrect Attribution of Liability

NEW YORK — The sole issue on appeal “is the attribution of liability as between Con Ed and non-party Robert A. Keasbey, Co., (Keasbey).” For three months in 1958, the plaintiff’s decedent worked in close proximity to Keasbey employees, who used asbestos-containing concrete products, including Rex and Rakco concrete manufactured by Keasbey.  From the winter of 1964 to the spring of 1965, the plaintiff’s decedent worked for Keasbey as an asbestos installer at a Con Ed plant in Ravenswood, Queens and used Rex and Rakco. …

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Appeal / Expert Challenges / New York / Verdict
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NYCAL Verdict Tossed on Basis that “a lot” of Asbestos Exposure is Insufficient to Establish Causation

NEW YORK – The defendant Caterpillar, Inc. (Caterpillar) appealed a verdict in the aggregate amount of $1.8 million issued by a jury in the New York City Asbestos Litigation (NYCAL) following a trial over which the Honorable Martin Shulman presided. This verdict was unanimously reversed by the First Department, one of which justices is the Honorable Peter Moulton, who previously presided over NYCAL as administrative judge.

The First Department based its reversal on the plaintiff Joanne Corazza’s (plaintiff) failure to establish causation as it related …

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New Jersey / Other Asbestos News / Verdict
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Defense Verdict for Johnson & Johnson in New Jersey Talc Meso Case

NEW JERSEY — March 27, 2019, a New Brunswick New Jersey jury found that Johnson & Johnson Consumer Inc. (J&J) was not liable in causing the mesothelioma of 58-year-old plaintiff Ricardo Rimondi.  Rimondi alleged decades of use of J&J’s baby powder, which the plaintiff alleged contained talc that was contaminated with asbestos. J&J attorneys highlighted the fact that the plaintiff’s experts failed to acknowledge that the plaintiff grew up and lived in close proximity to an asbestos cement factory.…

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Montana / Statute of Limitations
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Several Claims in Consolidated Action Dismissed Based Upon Statute of Limitations

Following W.R. Grace’s filing for bankruptcy in April 2001, a series of cases were filed against Maryland Casualty, which was the company’s primary general liability insurer from 1962 to 1973. Specifically, the twenty-nine plaintiffs in this matter filed a lawsuit relating to their diagnosis of asbestosis, in the District Court of Montana in November 2001. The plaintiffs originally named the State of Montana only. Maryland Casualty was named in March 2002. Additionally, seven of the twenty-nine plaintiffs had previously filed suit against Maryland Casualty, in …

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New York
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Prior Depositions of Non-Party Asbestos Supplier Representative Ruled Inadmissible on Appeal

NEW YORK — In 2014, decedent, Kimberlee Billok, was diagnosed with mesothelioma and died three months later at the age of 42. She claimed to have been exposed to Georgia-Pacific joint compound as an infant, and sued Union Carbide based upon it having supplied asbestos to Georgia-Pacific. Prior to trial in 2017, Union Carbide filed a motion in limine to preclude depositions of Georgia-Pacific’s corporate representative taken in 2001 and 2003, or in the alternative, to permit introduction of a 2007 deposition of the same …

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Appeal / Case Decisions
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Fifth Circuit Affirms Preemption of Claims Under Longshore and Harbor Workers’ Compensation Act

In a per curiam opinion, the U.S. Court of Appeals for the Fifth Circuit addressed the appeal of pro se appellant, Johnny Kirkland. He alleged suffering injuries as a result of asbestos exposure while working for Huntington Ingalls in the 1970s. The district court found that plaintiff’s claims related exclusively to his work for Huntington Ingalls in the field of ship construction and repair, and were therefore governed by the Longshore and Harbor Workers’ Compensation Act (LHWCA). The plaintiff did not dispute that the Huntington …

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Maritime/Admiralty Law
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Duty to Warn Recognized in Maritime Tort Context

In a case extensively covered by the Asbestos Case Tracker blog the US. Supreme Court examined a multi-district asbestos product liability action. In the claim, widows of deceased veterans brought negligence and strict liability action against several defendants, including manufacturers of engines and other equipment installed on Navy ships, alleging veterans developed cancer due to exposure to asbestos on board Navy ships. Following remand from the court of appeals, the U.S. District Court for the Eastern District of Pennsylvania granted manufacturers’ motions for summary judgment. …

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