Mealey's Asbestos
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April 19, 2019
New York Justice Says Leftover Product Keeps Roofing Company In Asbestos Case
NEW YORK — An affidavit stating that CertainTeed Corp. didn’t manufacturer asbestos-containing products during the times of a man’s alleged use is unsupported and ignores that the man potentially alleges exposure to leftover product, a New York justice held April 9 (Veronica Jackson, et al. v. 3M Co., et al., No. 190063/2017, N.Y. Sup., New York Co., 2019 N.Y. Misc. LEXIS 1691).
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April 19, 2019
Evidence Established Employer’s Asbestos Liability, Plaintiffs Tell Texas Court
AUSTIN, Texas — A mesothelioma plaintiff’s own estimates demonstrate that the minuscule risk asbestos exposure posed to an employee could not constitute gross negligence and that punitive damages are not warranted, an employer told the Texas Supreme Court March 29 (The Goodyear Tire & Rubber Co. v. Vicki Lynn Rogers, et al., No. 18-0056, Texas Sup.).
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April 19, 2019
New York Justice Admits Asbestos-Talc Testing Report, Denies Summary Judgment
NEW YORK — A hospital’s failure to turn over pathology evidence until after the close of discovery warrants the late admission of an expert’s testing results in a woman’s asbestos-talc case, a New York justice held March 26 (Jenny Shulman, et al. v. Brenntag North America Inc., et al., No. 190025/2017, N.Y. Sup., New York Co., 2019 N.Y. Misc. LEXIS 1293).
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April 19, 2019
Shipbuilder Asks 5th Circuit For En Banc Review Of Remand Standard
NEW ORLEANS — The en banc Fifth Circuit U.S. Court of Appeals should re-evaluate precedent analyzing 2011 amendments permitting removal of claims “relating to” conduct occurring at the direction of a federal officer and bring it in line with other courts, an asbestos-defendant shipbuilder told the court on March 27 (James A. Latiolais v. Huntington Ingalls Inc., et al., No. 18-30652, 5th Cir.).
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April 19, 2019
Delaware Top Court Rejects Sufficiency Of Asbestos Work, ‘Vast Majority’ Testimony
WILMINGTON, Del. — The Delaware Supreme Court on April 4 affirmed summary judgment in an asbestos case, turning aside the plaintiffs’ claim that work history and the defendant’s concession that the “vast majority” of gaskets contained asbestos sufficed (In re: Asbestos Litigation, Philip Lavelle, et al. v. Federal-Mogul Asbestos Personal Injury Trust, et al., No. N16C-03-079 ASB, Del. Sup.).
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April 19, 2019
Specific Causation Issues Free Floor Tile Maker From New York Asbestos Case
NEW YORK — A plaintiff’s expert’s specific causation testimony fails to make a distinction between exposures to products of a moving defendant and other potential exposures, a New York justice held April 17 in granting a floor tile manufacturer summary judgment (John B. Conklin, et al. v. American Biltrite Inc., et al., No. 190287/2014, N.Y. Sup., New York Co.).
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April 19, 2019
Johnson & Johnson Seeks To Consolidate Cancer Cases Against Debtor Talc Supplier
WILMINGTON, Del. — Roughly 2,300 claims alleging that cosmetic talcum powder caused cancer in women should be transferred from state courts across the country to Delaware federal court, where talc supplier Imerys Talc America Inc. has filed for bankruptcy protection to rid itself of the claims by establishing a trust to pay them, leading talc maker Johnson & Johnson says in an April 18 motion seeking to consolidate the cases (In re: Imerys Talc America, Inc., et al., No. 1:19-mc-00103, D. Del.).
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April 18, 2019
Justice: Unrelated Depositions Can’t Keep Company In Asbestos Action
NEW YORK — Depositions from unrelated asbestos actions are not sufficient by themselves to overcome a defendant’s motion for summary judgment in a lung cancer case, a New York justice held in an opinion posted April 17 (John C. Spicijaric, et al. v. A.O. Smith Water Products Co., et al., No. 190014/2016, N.Y. Sup., New York Co.).
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April 18, 2019
Service On Forum Defendants Defeats Incomplete Removal, Federal Judge Says
NEW YORK — A removing defendant must complete all three steps of the process prior to service on a forum defendant for diversity of citizenship to exist, a federal judge in New York held April 17 in remanding an asbestos-talc case (Betsey P. Hardman, et al. v. Bristol-Myers Squibb Co., et al., No. 18-11223, S.D. N.Y.).
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April 17, 2019
J&J Says Nothing Wrong With Preservice Removal Of Asbestos-Talc Case
BUFFALO, N.Y. — Preservice removal is a completely legitimate procedure, and later service of nondiverse defendants does not destroy federal jurisdiction, Johnson & Johnson tells a New York federal magistrate judge in an April 12 brief opposing remand of an asbestos-talc case (John Castro, et al. v. Colgate-Palmolive Co., et al., No. 19-279, W.D. N.Y.).
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April 17, 2019
Court Affirms $10M Verdict, Finds Noneconomic Asbestos Damages Improperly Apportioned
OAKLAND, Calif. — Sufficient evidence supports the conclusion that an asbestos-pipe manufacturer fraudulently concealed the dangers of its product, but the court improperly apportioned the noneconomic damages according to the jury’s liability apportionment, a California appeals court held April 15 (Michael B. Burch, et al. v. CertainTeed Corp, et al., Nos. A151644, A152252, Calif. App., 1st Dist., 2019 Cal. App. LEXIS 346).
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April 16, 2019
Montana Top Court Won’t Review Asbestos Court’s Common-Law Bad Faith Ruling
HELENA, Mont. — The specialized asbestos court’s ruling rejecting common-law bad faith claims against W.R. Grace’s insurer on the grounds that the plaintiff had not filed a workers’ compensation claim does not require a supervisory writ, the Montana Supreme Court said March 20 (Ralph V. Hutt v. The Asbestos Claims Court, et al., No. OP 19-0146, Mont. Sup.).
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April 15, 2019
‘Onerous’ Asbestos Standard, Delaware Deadline Ruling Doomed Case, Widow Says
WILMINGTON, Del. — A superior court’s inflexible retention of deadlines constituted an abuse of discretion that left a widow unable to meet Texas’ “onerous” asbestos standard and acted as a de facto dismissal, a widow told the Delaware Supreme Court on April 12 (Shad C. Shaw, et al. v. American Friction Inc., et al., No. 86, 2019, Del. Sup.).
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April 15, 2019
Muffler Company Escapes Delaware Asbestos Action, Judge Says
WILMINGTON, Del. — Interrogatory responses that some internal muffler parts contained asbestos and a memo indicating that the manufacturer identified an asbestos-free alternative are not sufficient to overcome summary judgment, a Delaware judge held April 10 (Frieda Crawford v. A.O. Smith Corp., et al., No. N15C-03-053 ASB, Del. Super., New Castle Co., 2019 Del. Super. LEXIS 189).
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April 12, 2019
New York Justice: Experts, Deposition Keep Asbestos Case Alive
NEW YORK — Conflicting expert opinions and deposition testimony in which the plaintiff appears to identify the defendant’s asbestos-containing flooring product are enough to meet the standard for overcoming summary judgment, a New York justice held in an opinion posted April 10 (Robert Albin, et al. A.O. Smith Water Products Co., No. 190007/2017, N.Y. Sup., New York Co.).
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April 10, 2019
Judge: Non-Locomotive Asbestos Claims Survive Preemption
PHILADELPHIA — Claims involving insulation on pipes that do not originate with the locomotive are not preempted by federal law, but claims involving pipes originating with the locomotive and claims involving brake products are preempted, a federal judge in Pennsylvania held April 5 (Peggy Hassell, et al. v. The Budd Co., et al., No. 09-90863, E.D. Pa.).
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April 10, 2019
3rd Circuit: Jurisdiction Exists In Decades-Old Merchant Marine Asbestos Cases
PHILADELPHIA — Ship owners implicitly waived jurisdictional defenses decades ago in merchant marine asbestos cases by not clearly voicing their arguments, a divided Third Circuit U.S. Court of Appeals panel held April 9 (William D. Schroeder, et al. v. Charles Kurz & Co. Inc., No. 17-3471, 3rd Cir.).
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April 10, 2019
Expert’s Wind Estimates Don’t Support Environmental Asbestos Case, Judge Says
WILMINGTON, Del. — A meteorologist’s description of wind direction and conditions does not establish that asbestos escaped the facility in question and was blown to a nearby residence, let alone that asbestos in a manufacturer’s product in use at the facility did so, a Delaware judge held April 5 (Werner Rath v. 3M Co., et al., No. N17C-08-228 ASB, Del. Super., New Castle Co.).
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April 10, 2019
Justice: Flooring Maker’s Expert Testimony Doesn’t Warrant Summary Judgment
NEW YORK — A floor manufacturer’s expert witnesses at most create questions about whether the toxicity of asbestos in its products and whether a woman’s exposure as a project manager sufficed to cause her mesothelioma, a New York justice held in an opinion posted April 5 (Allison Linsky v. Algoma Door Inc., et al., No. 190149/2016, N.Y. Sup., New York Co.).
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April 9, 2019
Plaintiffs Can’t Link Asbestos Boiler Maker, Greenhouses, New York Justice Says
NEW YORK — Testimony that a greenhouse manufacturer included a boiler in its product is not enough to keep the alleged manufacturer of that boiler in an asbestos action, a New York justice held March 20 (Dona Fischer, et al. v. American Biltrite Inc., et al., No. 190271/2016, N.Y. Sup., New York Co.).