Most lawyers begin learning about torts by reading the Palsgraf case. Palsgraf established the principle of foreseeability as the basis for imposing a duty. But are the principles from Palsgraf still relevant today? Continue Reading The (Mobile) Hazards of Employer Take-Home Liability
On November 29, EPA announced that it will review the hazard and exposure risks caused by asbestos. Asbestos will be one of the first ten substances to be evaluated under the TSCA amendments commonly referred to as the Lautenberg Act. As we have discussed elsewhere, TSCA now requires EPA to produce a risk evaluation work plan for these substances by June 2017 and complete its evaluation within three years following. If EPA determines any of these substances pose unreasonable risks, then EPA must take further action to mitigate any risks. Continue Reading TSCA and Asbestos—a New Approach or One That Reveals the Same Old Problems?
On June 28, 2016, the Court of Appeals decided the following question: Does a manufacturer have a duty to warn about asbestos-containing parts made by someone else but used with its non-asbestos product? The Court answered, “Sometimes,” under a relatively narrow set of circumstances.
The plaintiff in Dummitt v. Crane Co., a Navy boiler technician from 1960-1977, alleged that he developed mesothelioma from exposure to asbestos insulation used with Crane Co.’s high-temperature steam valves. Crane Co. didn’t make the insulation, and its valves did not contain any asbestos. Continue Reading New York Court of Appeals Addresses the Duty to Warn
Earlier this week, the Seventh Circuit issued a ruling in Lu Junhong v. Boeing Co. that defendants can remove cases to federal court under admiralty jurisdiction alone. The ruling may very well change the dynamics of mass tort filings in so-called “magnet jurisdictions” like Madison County and Cook County.
Junhong involved a group of Cook County cases from Asiana Airlines Flight 214. Two years ago, that Boeing 777 crashed into the seawall at San Francisco International Airport. The plane’s tail broke off, 49 persons suffered serious injuries, and three of the passengers died (the other 255 passengers and crew aboard suffered only minor or no injuries). Passengers sued Boeing in Illinois state court, alleging the plane’s systems were defective and contributed to the pilots’ errors. Boeing then removed the lawsuits to federal court, asserting two sources of jurisdiction: federal officer under § 1442 and general admiralty under § 1333. Continue Reading Potential Game Changer: Admiralty Jurisdiction Serves As A Basis For Removal
Pennsylvania employers are raising arguments that may circumvent the effect of the Pennsylvania Supreme Court’s decision stripping them of the protections of the Pennsylvania Workers’ Compensation Act (WCA) for latent occupational diseases. In the November 2013 decision in Tooey v. AK Steel Corp. (see the related post here), the Pennsylvania Supreme Court allowed former employees with occupational diseases, like mesothelioma, to sue their employers directly for diseases that manifest more than 300 weeks after employment ends. In the wake of Tooey, employers have focused on the Pennsylvania Occupational Disease Act (ODA) arguing that it still provides administrative remedies that must be exhausted before a former employee can sue for a latent occupational disease. Continue Reading PA Employers Craft Arguments To Navigate Around Tooey
On Friday afternoon, a jury in the Northern District of Illinois returned a verdict for defendants Owens-Illinois, Inc. and ExxonMobil, rejecting plaintiff Charles Krik’s claim that his lung cancer developed as a result of a “synergistic effect” between his alleged asbestos exposure and his cigarette smoking. The jury found, as argued by the defendants, that the sole proximate cause of plaintiff’s lung cancer was cigarette smoking. The jury’s finding on sole proximate cause made it unnecessary to reach the questions of whether the defendants were negligent or whether Mr. Krik was contributorily negligent. It was also unnecessary for the jury to reach Owens-Illinois’s government contractor and maritime defenses, in light of the defense verdict on causation.
On Tuesday, a Los Angeles jury found that Colgate-Palmolive Company’s Cashmere Bouquet talcum powder caused plaintiff Judith Winkel’s mesothelioma. The jury awarded Mr. and Mrs. Winkel $13 million in damages, finding for plaintiffs on design defect, manufacturing defect, failure to warn, and negligence liability theories. Following the verdict, the parties reached a settlement before the trial’s punitive damages phase began. Continue Reading Colgate-Palmolive Company Smacked with $13M Talc Verdict
Most recent news items about mesothelioma focus on asbestos litigation and lawyer advertising for clients to file cases, bankruptcy trust claims, or both. A recent news story, however, focuses on a potential treatment option for patients with mesothelioma. The U.S. Food and Drug Administration (FDA) recently granted a drug in development to treat malignant pleural mesothelioma “orphan drug” designation. The FDA’s Office of Orphan Products Development grants “orphan drug” designation to some new drugs that may be effective at treating diseases that affect fewer than 200,000 Americans. Orphan drug status provides incentives to companies to develop drugs that might otherwise be unprofitable, and a company can use the exclusivity to develop drugs that anyone else might develop but do not have a large affected population. The FDA’s designation gives drug creators grant funding, tax credits for certain research, a waiver of the Biologics License Application user fee, and the potential for marketing exclusivity in the United States for seven years. Continue Reading New Mesothelioma Drug Shows Promising Results
The Los Angeles County Superior Court denied a request to apply Iranian law in an asbestos wrongful death action in August, 2014. We have previously discussed that decision on this blog and explained that the court was concerned that the application of Iranian law would not be permissible because mullahs administer the law, and Shi’ite Islamic law may be used to decide the case. The court invited appellate review of thedecision, acknowledging that the question of whether to apply Iranian law is a controlling question of law as to which there are substantial grounds for difference of opinion. Recently, five California law professors wrote an amici curie letter brief to the Second District Court of Appeal arguing the Superior Court failed to conduct the appropriate choice of law inquiry.
Professors Eugene Volokh of UCLA, Alan Brownstein of UC Davis, Michael Helfand of Pepperdine University, Clyde Spillenger of UCLA and Jonathan Varat of UCLA, urged the Appellate Court to take one of the following two steps: either conduct the choice of law inquiry without categorically rejecting the possibility of applying Iranian law, or issue a writ of mandate, disapproving of the Superior Court’s categorical rejection of Iranian law and requiring the Superior Court to conduct the conventional California choice of law inquiry. Continue Reading Law Professors Claim L.A. Trial Court Failed to Conduct Appropriate Choice Of Law Analysis
California courts play host to hundreds of asbestos personal injury cases that involve diverse claims that arise from alleged exposures in different states, and even different countries. The resolution of choice-of-law disputes has significant implications for California litigants – – what law will apply, to which claims? The answers to those questions has a profound impact on the potential liability and risk at stake.
In August 2014, Judge Emilie H. Elias of the Los Angeles County Superior Court denied a request to apply Iranian law in an asbestos wrongful death action. The case was brought by the heirs and estate of Galin Keshavarzi, who allegedly died of mesothelioma caused by exposures to asbestos at an oil refinery in Iran from 1950 to 1979. Defendants UOP LLC, Chevron U.S.A. Inc., and Texaco Inc. urged the application of Iranian law because, under California’s “governmental interest” approach to choice of law, Iran has a greater interest than California in having its law applied to the case. Continue Reading California Court Struggles with the Application of Iranian Law to Asbestos Case