New Jersey Legislation Proposing to Change Statute of Limitations for Mesothelioma Cases

On September 24, 2015, legislation was introduced in New Jersey that would create new Statute of Limitations for civil actions for personal injury and wrongful death caused by mesothelioma. First, the bill would amend New Jersey statute § 2A:14-2, actions for injury caused by wrongful act, appointment of guardian ad litem.  It would add a subsection stating that an action for damages for damages for personal injury from mesothelioma related to exposure to asbestos may be commenced at any time, and that such action shall…
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NYCAL Jury Returns $25 Million Verdict in Mesothelioma Case Supreme Court, New York County, September 28, 2015

A NYCAL jury returned a $25 million verdict in a living mesothelioma case in favor of a 64-year-old mechanic, who worked at a variety of dealerships and gas stations in Colorado and Virginia, among other places, over the years. Defendant Ammco was a manufacturer of brake grinders and was found liable on a failure to warn theory. While the jury also apportioned responsibility to nine of the 10 other companies on the verdict sheet, it found Ammco 86 percent responsible, which in New York makes…
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Federal Court Bench Trial Renders Verdict in Favor of Plaintiff in Take-Home Exposure Case and Awards Full Medical Expenses U.S. District Court for the Northern District of Alabama, Northeastern Division, September 29, 2015

In this federal court case, it was alleged that the decedent, Barbara Bobo, had secondary take-home exposure to asbestos from laundering her husband’s work clothes. Her husband worked at the Browns Ferry Nuclear Plant, operated by Tennessee Valley Authority (TVA) from 1975-1997. Following denial of TVA’s motion for summary judgment, the case went to bench trial, where the court’s findings of fact supported that Mr. Bobo was exposed to asbestos at the plant from items such as insulation, roofing cement, gaskets, and pump packing. In…
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Defendant Establishes Colorable Defense Under Federal Law, Plaintiff’s Motion to Remand Denied U.S. District Court for the Southern District of Illinois, September 28, 2015

The plaintiff filed this action in Madison County, Illinois, alleging injury due to asbestos exposure. The defendants, CBS and General Electric, removed the action to federal court under federal officer removal statute 28 U.S.C. 1442. The plaintiff filed a motion to remand, which the court denied. The court cited the United States Supreme Court in listing the three elements required to establish a colorable defense to the use-of-asbestos claim: (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; (3)…
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The Science Will Drive the Future of Asbestos Litigation. What Do You Think?

What do you think is the single most important factor that will dictate the direction of asbestos litigation across the country, now and in the future? Intelligent minds may differ and we welcome your views. Having practiced in this area for over twenty years, for me the single most important area that will drive this litigation into the future is the science. As the nature of asbestos exposure and diseases continues to evolve after 35-plus years of litigation, the science is more interesting today than…
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Applying Maritime Law, Defendants’ Summary Judgment Motions Denied in Case Alleging U.S. Navy Exposure U.S. District Court for the Southern District of Illinois, September 23, 2015

The plaintiff alleged he developed severe asbestosis as a result of inhaling asbestos while serving in the United States Navy. Three defendants — John Crane, General Electric, and Ingersoll-Rand — moved for summary judgment. In deciding the motion, the court determined whether maritime or Illinois law applied. A plaintiff’s exposure in a products liability claim must meet both a locality test and a connection test in order to apply maritime law. The locality test analyzes whether the tort occurred on navigable water, or, if the…
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Missouri Court, Applying Maryland Law, Upholds $4 Million Verdict, Rejecting Arguments on Expert Challenges, Offsets, and Defective Damages Verdict Court of Appeals of Missouri, Eastern District, Division Four, September 22, 2015

In this case, the plaintiff worked as a steamfitter between 1958 and 1983 at a variety of industrial and commercial sites. Of the original 57 defendants, only valve manufacturer Nibco, Inc. went to trial, which resulted in a $4 million plaintiff’s verdict with the trial court applying Maryland law. On appeal, Nibco raised four issues: it should have been granted a directed verdict; the plaintiff’s experts were allowed to offer opinions based on facts not in evidence; the lower court improperly denied setoff rights; and…
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Brake Defendant’s Motion to Preclude Causation Expert Under Daubert Denied U.S. District Court for the Southern District of New York, September 22, 2015

The plaintiff commenced this wrongful death action alleging that the decedent developed mesothelioma caused by prolonged exposure to brake dust from brake pads manufactured by Bendix while working as a part-time bookkeeper at an auto repair shop from 1984-1990.  Defendant moved in limine to preclude testimony from the plaintiff’s expert, Dr. Jill Ohar, with respect to any testimony that brake dust causes mesothelioma and any testimony based on the every exposure theory. The defendant also sought to preclude any testimony that asbestos or chrysotile causes…
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Joint Compound Manufacturer’s Summary Judgment Overturned on Appeal Based on Issue of Fact of Plaintiff’s Contradictory Testimony Court of Appeals of Missouri, Eastern District, Division One, September 22, 2015

In this case, the plaintiff,  David Bergstrom, claimed exposure to asbestos while working as a contractor installing drywall for various companies between 1962 and 2011. The trial court granted the defendant, joint compound manufacturer Welco, summary judgment based on the plaintiff’s testimony that he did not have any exposure to joint compound after 1979 and was not exposed to Welco’s product, Welco, prior to 1979. In opposition to the motion, the plaintiff alleged that he did not make such a clear admission, that his testimony…
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Defendants’ Motion in Limine To Exclude Expert Testimony on “Each and Every Exposure” Opinion Denied Based on Federal and Illinois Law U.S. District Court for the Southern District of Illinois, September 21, 2015

Various defendants filed a motion in limine to exclude the testimony of Matthew A. Vuskovich, M.D., M.S.P.H., arguing that he does not satisfy the requirements for expert testimony outlined in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Specifically, defendants sought to exclude his opinions based on the “every exposure” theory, because it is not accepted by the scientific community or the courts. The court denied the motion, as Federal Rule of Evidence 702 allowed for the theoretical basis for Dr. Vuskovich’s…
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