“Insufficient evidence as a matter of law.” This language, contained in a brief one paragraph opinion in which New York’s highest court affirmed an appellate decision to set aside a jury verdict in favor of plaintiffs, describes the court’s rationale for determining that the plaintiff failed to prove her claims under the state’s jurisprudence. In Juni v. A.O. Smith Water Prods. Co., et al., Mary Juni pursued claims on behalf of her deceased husband, Arthur Juni, who was diagnosed with mesothelioma. Mr. Juni spent over 25 years working as a mechanic on automobiles manufactured by defendant Ford Motor Company, including work with brakes and clutches (“friction products”).

The plaintiff introduced evidence at trial that the chrysotile asbestos-containing automotive component parts utilized by Mr. Juni during the course of his automotive work was the cause of his mesothelioma. Ford, while not disputing the presence of chrysotile asbestos in its parts, submitted expert testimony that demonstrated the chrysotile asbestos contained in the friction products would have undergone a chemical transformation while subjected to high temperatures during the manufacture and use in vehicles, thus converting the asbestos into a benign substance called forsterite, which does not cause mesothelioma.

The jury found in favor of Mrs. Juni, but the trial court set aside the verdict against Ford, reasoning that the evidence was legally insufficient to support the verdict because plaintiff’s experts failed to refute testimony provided by Ford’s experts that chrysotile asbestos in friction products is converted to forsterite and rendered non-toxic.
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In a 6-3 ruling on March 19, 2019, the United States Supreme Court held that, under maritime law, a product manufacturer has a duty to warn when its “bare metal” product requires incorporation of a part the manufacturer knows or has reason to know is likely to be dangerous, such as asbestos-containing components.

In Air & Liquid Systems Corp., et al. v. DeVries, No. 17-1104, 586 U.S. ___ (2019), the Supreme Court examined the scope of a manufacturer’s duty to warn of the dangers of asbestos when its own bare metal products are later combined with asbestos-containing parts that the manufacturer did not make or sell. Plaintiffs Kenneth McAfee and John DeVries (“Plaintiffs”) filed suit in state court against a number of product manufacturers alleging that they developed cancer as a result of exposure to asbestos-containing equipment, including pumps, blowers, and turbines manufactured by the defendants, while serving on U.S. Navy vessels.[1] Plaintiffs asserted, inter alia, that defendants were negligent in failing to adequately warn of the dangers associated with the use of their equipment, even though the defendant-manufacturers of the equipment at issue did not always incorporate asbestos into their products and instead delivered much of the equipment to the Navy without asbestos, in a condition known as “bare metal.” Defendants removed to federal district court under maritime jurisdiction and subsequently moved for summary judgment based on the “bare-metal defense.” The District Court granted the motions for summary judgment, and Plaintiffs appealed. The United States Court of Appeals for the Third Circuit vacated and remanded, holding that “a manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials” if the manufacturer could foresee that its product would be used with later-added asbestos-containing parts. In re Asbestos. Prods. Litig., 873 F.3d 232, 240 (3d Cir. 2017). The United States Supreme Court granted certiorari to resolve inconsistency among the Courts of Appeals regarding the validity and application of the bare-metal defense under maritime law.
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Synopsis: The six year statute of repose barring negligent construction and design claims applies even in cases involving damages arising from diseases with extended latency periods such as mesothelioma. A recent decision from the Massachusetts Supreme Judicial Court (“SJC”) affirms the legislative intent and comprehensive reach of the statute of repose, G.L. c. 260, § 2B (“§ 2B”). The decision highlights the importance and need for certain defendants entrenched in personal injury asbestos litigation within Massachusetts to evaluate their potential standing under the statute.

Overview: In Stearns v. Metropolitan Life Ins. Co, SJC-12544 (March 1, 2018), the SJC was tasked with answering a certified question for the United States District Court for the District of Massachusetts. The federal district court initially denied a defendant’s motion for summary judgment based on the statute of repose in a sweeping opinion that sought to address a matter of first impression under state law. Following a motion for reconsideration and a request for certification pursuant to 28 U.S.C. § 1292(b), the federal district court appropriately yielded to the Commonwealth’s highest court and certified the question of whether § 2B “can be applied to bar personal injury claims arising from diseases with extended latency periods, such as those associated with asbestos exposure, where defendants had knowing control of the instrumentality of injury at the time of exposure.” Stearns v. Metropolitan Life Ins. Co., No. 15-13490 RWZ, 2018 WL 2227991 (D. Mass. May 12, 2018).

In response, the SJC issued a well-reasoned opinion drawing from past precedent and legislative intent of § 2B in concluding that the plain and unambiguous statutory language means what it says. Although the SJC recognized “the regrettable effect of barring all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits,” the SJC nonetheless upheld the viability of § 2B in finding that the statute “completely eliminates all tort claims arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property after the established time period has run, even if the cause of action arises from a disease with an extended latency period and even if a defendant had knowing control of the instrumentality of injury at the time of exposure.”
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Defendants DCo, LLC (formerly known as Dana Companies) and Ford Motor Company (collectively “Defendants”) recently obtained a defense verdict in an asbestos personal injury matter following a nine day trial that took place in the Western District of Washington. Plaintiffs alleged the decedent, Patrick Jack, developed mesothelioma as a result of exposure to asbestos from products manufactured or supplied by the Defendants. Plaintiff passed away at the age of 81. Specifically, Plaintiffs claim that Mr. Jack was exposed to asbestos: (1) during his childhood and teenage years through his father’s work at Union Pacific; (2) through his own work as a machinist and piping inspector during his service in the U.S. Navy from 1955 to 1962 and 1967 to 1973; and (3) through his own work as an automotive mechanic from 1955 to 2001. Plaintiffs* claimed Mr. Jack was exposed to asbestos through his father’s work clothing. Mr. Jack testified at his deposition that after finishing a day’s work, his father returned home dirty and was routinely greeted by Mr. Jack. Further, Mr. Jack testified at his deposition that he remembered being present as his grandmother shook out his father’s clothes before washing them. On occasion, Mr. Jack accompanied his father to work at Union Pacific and recalled witnessing individuals cut cement pipe and handle insulation. Through his own work, Mr. Jack alleged exposure to asbestos from work with automotive clutches and brakes manufactured by Ford, among others, and automotive gaskets manufactured by Victor (a brand associated with DCo, LLC formerly Dana Companies), among other manufacturers. In April 2017, Plaintiffs brought both common law negligence claims and statutory strict liability claims as enumerated in WASH. REV. CODE 7.72 et seq., in which they alleged defective design and failure to warn against a number of entities, in addition to the Defendants, predominantly associated with Naval vessel equipment. However, because Mr. Jack’s alleged exposure predated the 1986 Washington Tort Reform Act, which established proportionate several liability, the Defendants were subject to the pre-existing law which imposes joint and several liability.

The defendant-equipment manufacturers associated with Mr. Jack’s Naval service were no longer in the case at the time of trial. At trial, Plaintiffs relied on expert testimony of Dr. Carl Brodkin (occupational medicine); Dr. Arnold Brody (cell biology), Dr. Ronald Gordon (pathology; lung fiber burden), and Sean Fitzgerald (geology expert who tested Victor gaskets found in Mr. Jack’s garage). As stated above, because the Plaintiffs’ claims were subject to Washington’s pre-Tort Reform law, mandating joint and several liability with set-offs for prior settlements, only Dana and Ford could be included on the verdict slip. The trial began on October 1, 2018 and both Plaintiffs and Defendants were limited to 24 hours each on the record. After both sides presented their respective cases, the jury began deliberations on October 11, and returned with a verdict the next day. The jury found that neither defendant was strictly liable for allegedly manufacturing and or selling a defective product. However, the jury was not able
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In Summerlin v. Philip Morris USA, et al., 1581-cv-5255, following a five-week trial before Judge Heidi Brieger, the jury returned a verdict in favor of the plaintiff amounting to $43,100,000. Three defendants remained through verdict; however, the jury found that only R.J. Reynolds was liable. The jury found that defendants, Hampden Automotive and Philip Morris USA, breached the implied warranty of merchantability for selling a defectively designed product, but neither were found to be a substantial contributing cause of Mr. Summerlin’s lung cancer. Plaintiff’s award was allocated as follows: $5,300,000 for pain and suffering; $3,500,000 for loss of consortium; $2,500,000 for loss of services to Joanna Summerlin (Spouse); $1,800,000 for loss of services to Christopher Summerlin (Son); and $30,000,000 in punitive damages.

Plaintiff was represented by Michael Shepard of the Shepard Law Firm, Boston, MA and Jerome Block of Levy Konigsberg, New York, NY. Philip Morris USA was represented by Bill Geraghty of Shook Hardy Bacon, Miami, FL; R.J. Reynolds was represented by Mark Belasic and Kaitlin Kline of Jones Day, Cleveland, OH; and Hampden Automotive was represented by David Governo and Vincent DePalo of Smith Duggan, Boston, MA.


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