Friable Thoughts

Asbestos Defendants Win Insurance Coverage Case

2009-02-03T11:53:00.000-08:00

While plaintiff's lawyers love to rail against corporate America, the actual entities that pay most of the settlements and verdicts in asbestos cases are the insurance companies that insure corporate America. So, there's been quite a bit of litigation between asbestos defendants and their insurance companies on just how much coverage is available.

One of the disputes is the meaning of the word "occurrence" in insurance policies. Many policies will limit the amount of coverage per "occurrence". If a corporate entity manufactured asbestos-containing products, they could get sued quite a few times. The issue in Wisconsin was whether an occurrence happens each time a company got sued by a new plaintiff or if the occurrence was the decision to use asbestos in their product and all the subsequent lawsuits derive from that one decision. The Wisconsin Supreme Court held that each time a plaintiff sues is a separate occurrence and thus, the insurance company is on the hook a bit longer than it wanted.

Plastics Eng'g. Co. v. Liberty Mut. Ins. Co.

Still Filing in Madison County

2009-01-23T13:39:00.000-08:00

This article looks into why filings in Madison County have gone up recently. As other states have passed tort reform, it would seem a no-brainer to have cases for out of state plaintiff's moved out of Madison County. The only real theory advanced was the presence of Illinois-based defendant John Crane. But, despite the fact that Madison County has improved its reputation as a plaintiff friendly venue, at the end of the day, it still is a plaintiff friendly venue.

Concord family wins $1.3 million in asbestos death lawsuit

2009-01-13T12:42:00.000-08:00

Plaintiff's side wins a few cases in San Francisco. All of the plaintiff's were pipe fitters that worked at industrial sites in the San Francisco Bay Area and the defendant was an insulation contractor.

Ohio Medical Criteria Applies Retroactively (again)

2009-01-06T21:56:00.000-08:00

NEAL v. A-BEST PRODS. CO. holds that the medical criteria to file an asbestos lawsuit (RC 2307.91, et. seq.) may apply retroactively without violating the Ohio state constitution's prohibition against retroactive laws. Not the first time an appellate court in Ohio has held this but also not the first time an Ohio trial court struck it down as violating the retroactivity rule.

So, you actually have to be sick to file in Ohio.

Doctor with cancer wins $24.2M jury award

2008-05-06T19:37:00.000-07:00

A doctor nails Bendix with Florida's largest verdict. Just goes to show juries don't buy the chrysotile defense to mesothelioma. This one also didn't buy the no substantial exposure to brake work either. Of course, defense lawyers rarely send press releases when they get defense verdict and the newspapers don't report defense verdicts as often so who knows what the real batting average is for these defenses.

Anti-asbestos drug could prevent harmful effects

2008-04-14T20:17:00.000-07:00

There may be a treatment to prevent an asbestos illness. It appears asbestosis creates a protein similar to the one related to gout. The theory is that a treatment for gout that inhibits that protein may work to protect folks from asbestosis. The proposed treatment won't cure an asbestos-related illness but might might prevent someone exposed from getting ill. As with many new drugs, the jury's still out but it might be worth asking about if you worked around asbestos containing materials.

Identifying an Asbestos-Containing Product for Summary Judgment

2008-04-09T12:51:00.000-07:00

Since most instances of asbestos exposure occurred many years ago, it's almost impossible to test the actual material a plaintiff was exposed to in order to determine if it had asbestos. Thus, it falls to the plaintiff's own testimony and those of co-workers. So, to what extent can a lay witness testify that a product he saw actually had asbestos?

KOERPER v. BRAND INSULATIONS, INC., out of the Pennsylvania Court of Common Pleas limits how much a witness in the construction trade can do just that. Here, a plumber testified he believed the pipe insulation he encountered contained asbestos because of the age, appearance and application. However, since he wasn't trained to spot asbestos-containing insulation, that wasn't good enough to raise a triable issue to survive a summary judgment.

Suffice to say, if the plaintiff testified about plumbing products, it probably would have been admissible and survived summary judgment. I suspect it would be simple to retain an expert to review such testimony and render an opinion sufficient to survive a speculation objection at least for summary judgment.

Sophisticated User Defense Applies to Product Liability Claims in California

2008-04-07T13:50:00.000-07:00

The California Supreme Court put a possible crimp into the plaintiff's bar with the JOHNSON v. AM. STANDARD, INC., last week, holding that a sophisticated user defense applies to product liability actions. While Johnson is not an asbestos case, the potential application could remove the lowest hanging fruit in asbestos cases. If, for example, insulators are sophisticated users of insulation, then they would have a hard time recovering against an insulation manufacturer or supplier.

Of course, the real test is how lower courts in California will interpret and apply Johnson.
Given that plaintiff's lawyers tend to file cases in venues they find favorable, the lower courts will probably interpret Johnson narrowly until someone files an appeal.

Products Still Need to Contain Asbestos...

2008-04-02T20:33:00.000-07:00

...to have an asbestos-related product liability claim. Plaintiff's lawyers have pushed a failure to warn theory to make manufacturers liable for another defendant's asbestos-containing products especially if that other defendant's asbestos-containing product is a replacement part. The claim is also popular if someone insulates a defendant's otherwise asbestos free product. However, you still need to show there was some asbestos-containing product used in, on, or next to a product. Something the plaintiff's were unable to show in IANNUCCI v. CLEAVER-BROOKS, INC., out in Pennsylvania. What a strange concept, at least to some plaintiff's lawyers.

Raw Asbestos Fiber (Still) a Product for Product Liability Actions...

2008-03-31T12:14:00.000-07:00

...at least in the state of California. GARZA v. ASBESTOS CORP. LTD.
reaffirms this somewhat unremarkable holding. Looking at the opinion, one wonders why it was published as the defendant asbestos fiber supplier raised all the same arguments that they had lost in previous decisions.

For the plaintiff's lawyers, identifying a raw asbestos supplier is hard because it's not that easy to identify whose fibers are in a finished product when the lawsuit is filed decades after the exposure. Even if you can identify the product manufacturer, figuring out who supplied them the fiber for a particular product is hard since manufacturers often used multiple fiber suppliers. Now, if someone is handing raw fiber, it's much easier but most of the time, the fiber is incorporated into a finished product.

Down and Out in Indiana

2007-09-03T15:22:00.000-07:00

The plaintiff's bar took it on the chin in the Hoosier state with a trio of opinions that knocked out any hope of a product liability claim for asbestos cases. DAP, INC. v. AKAIWA, held the asbestos miner exception to the 10 year statute of limitations for product liability actions does not apply to a defendant that merely used asbestos fibers in its product. TH AGRICULTURE AND NUTRITION, LLC v. AKAIWA held that a distributor of raw asbestos fiber also does not fall into the asbestos miner exception. And finally, ASBESTOS CORP. LTD. v. AKAIWA put the nail in the coffin, holding that a plaintiff's admission that he did not see dust when working with an asbestos containing product is sufficient to show no exposure to the fibers in the product.

Of the three, DAP was a no-brainer given prior precedent from the state supreme court. TH-Agriculture was close given it sold raw fiber and Asbestos Corporation seemed to be the plaintiff's best shot, although the issue there was whether there was substantial exposure.

Even if the plaintiff's bar wins at the state supreme court on the second and third of these cases, wouldn't it make sense to file in another state (assuming you could)? DAP limits the number of potential settling defendants to asbestos mines and, possibly, distributors of raw fiber. The only other defendants are premises and contractor defendants and you need to prove negligence, rather than strict liability, for those defendants.

Duty to Warn Expands for Equipment Makers

2007-02-12T20:34:00.000-08:00

The plaintiffs' bar won two decisions in Washington state on whether equipment makers must warn about asbestos containing components used with their equipment or on their equipment even if they did not make the asbestos containing components.

BRAATEN v. UNION CARBIDE CORP.

SIMONETTA v. VIAD CORPORATION

Ohio Judge Finds Calif. Firm Submitted Fraudulent Asbestos Claim Forms

2007-01-18T21:08:00.000-08:00

The Brayton firm got to withdraw from the Kananian case but the judge gave them a very stern tongue lashing and a not-so-subtle hint to never come back. If that's the worse that happens to the Brayton Purcell firm, they should consider themselves very lucky. It's not every day you make the tobacco lawyers look like the good guys. I doubt Hollywood will make a movie about this one.

The seamy underside of asbestos litigation

2006-12-05T11:45:00.000-08:00

A Wall Street Journal editorial casts a not-so-favorable light on the antics of the plaintiffs' bar. While us defense lawyers may complain too much about plaintiffs' lawyers pulling dirty tricks, they usually aren't caught this badly. It's especially unflattering when you make the tobacco defense lawyers wear the white hats. Sadly, probably won't affect asbestos litigation now that almost all jurisdictions allow discovery of trust fund applications, but sometimes it's nice to catch the other side with its pants down.

3rd Circuit Revives Case Against Asbestos Class Action Lawyers

2006-10-31T21:19:00.000-08:00

It must be a cold day somewhere down below when asbestos plaintiff's sue their former lawyers claiming they got ripped off to pad the settlements of other plaintiffs. The irony is rich as the initial class action was dismissed because the plaintiff's could not prove "causation" or "actual injury" from any alleged breach of fiduciary duty. It was reversed on appeal because under Texas law, you don't need to show causation or actual injury...just like an asbestos cause of action at times.

Perhaps I shouldn't gloat too much but it is amusing to see plaintiff's and their lawyers fighting over money. After all, isn't this about justice?

Baron & Budd Wins One in Los Angeles

2006-09-25T12:26:00.000-07:00

Another Texas firm has success in California. Baron & Budd gets a verdict against Crane Co. for a former Navy gunner's mate with mesothelioma. Sounds like the chrysotile and no substantial exposure defenses didn't work this time. The press release doesn't mention how much fault the jury allocated to Crane versus, oh, pipe insulation and who knows what Crane may have offered in settlement. But, it's usually better to win than to lose.

Asbestos Bankruptcy Trusts

2006-08-27T09:13:00.000-07:00

This story on how plaintiff's lawyers are filing claims with asbestos bankruptcy trusts shouldn't come as a big surprise to many defense lawyers. With the settlement amounts confidential and claims records hard to get, who wouldn't have expected plaintiff's lawyers to make exposure claims that were inconsistent with claims they would make in litigation against non-bankrupt defendants? Now, however, with some information subject to discovery, perhaps they'll be less double dipping though you'd have to be very naive to think it would stop completely.

Victims' advocate sues asbestos attorneys for gypping her

2006-07-17T16:48:00.000-07:00

Who would've thought that a plaintiff's lawyer would rip off their clients by settling with defendants for less than they could've gotten? According to a "victims' rights" advocate, a firm that files in Madison County did just that and now she's alleging malpractice.

Now, plaintiff's firms do settle with defendants for less than what they could possibly get at trial because trials can be expensive and risky, let alone the delay in getting money after a favorable verdict. That's true in all kinds of litigation, not just asbestos.

Plus, it's really hard to believe that a plaintiff's lawyer, usually on a contingency fee, would let defendants go for substantially less than what he or she could squeeze out of them. At first glance, it looks like the plaintiff will have a tough road ahead though discovering how plaintiff's lawyers settle and value cases might make it worth watching.

Asbestos still killing people

2006-06-26T15:14:00.000-07:00

Canadians ponder whether they should continue to export chrysotile asbestos fibers. Of course, it's a no-no here in the US although some defendants still use the defense that certain asbestos fibers don't cause mesothelioma. So, it might behoove a defense lawyer to see if certain plaintiffs lived and worked out of the country for substantial periods of time.

Two-Disease Rule Applied Retroactively in Pa. Asbestos Case

2006-06-22T10:47:00.000-07:00

Asbestos can cause multiple diseases, not all of which manifest at the same time. So, if you sue for one disease in Pennsylvania when it was a "one disease" state but get a second disease after the courts change the law to a "two disease" state, can you sue for the second disease? This recent opinion says "yes". More on the opinion here.

Cancer Of Larynx, Others Linked To Asbestos

2006-06-06T15:16:00.000-07:00

So says the Institute of Medicine. On the other hand, they say the evidence is insufficient to link asbestos to cancer of the esophagus. If you want to pay some money, you can get the report here.

Asbestos Trust Plan Is Changed to Win Support in U.S. Senate

2006-05-26T16:02:00.000-07:00

Senator Specter is back with a revised trust fund bill. This time, he claims he's tightened up the medical criteria to prevent a fund from going under although getting a physician to state in an affidavit that someone's illness was caused by asbestos doesn't seem all that "tightened up". Additionally, the bill redistributes the contributions between big and small companies so it looks less like a bailout for big companies. But, let's see how the opponents react and if they can get the few votes needed.

Court: Exxon responsible for death of worker's spouse

2006-04-27T12:43:00.000-07:00

Kind of a misleading headline as the New Jersey Supreme Court ruled that to the extent a premises defendant breached a duty to an employee of a contractor working on the premises, it would also breach a duty to that employee's spouse for any asbestos fibers he may have carried home. So, for a para-occupational exposure, New Jersey holds that the premises owner owes the same duty to the spouse of a contractor employee as the employee. The case is here.

Sequential Chemotherapy for Pleural Mesothelioma Promising

2006-04-18T21:18:00.000-07:00

The latest on the medical front. The new regimen still isn't a cure but a mesothelioma victim might live a little longer.

Miss. high court tosses out 18 asbestos claims

2006-04-17T09:51:00.000-07:00

No more forum shopping in Mississippi. The news here is that Mississippi is finally coming into the mainstream and will shed its reputation of being a venue whore for asbestos cases. What a concept! Plaintiffs actually have to show some connection to the state like work history, exposure and residence. The case is here.