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
Continue Reading Defense Verdict in the Northwest – Jury Rejects Plaintiff’s Asbestos Related Claims in Western District of Washington

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.


Continue Reading Summary and Perspectives: Summerlin v. Philip Morris USA, et al.

On June 29, 2018, a New Jersey state appeals court ruled that a superior court improperly allowed a jury to consider evidence, not represented at trial, in allocating damages among nine defendants in an asbestos case. The state appeals court ordered a new trial in Rowe v. Bell & Gossett Company to address the issue of re-apportioning the $1,500,000.00 jury verdict.

Throughout Ronald Rowe’s thirty-plus year career working as an automobile mechanic, and repairing and servicing boilers, Rowe claims he was exposed to asbestos from a variety of sources. On April 27, 2015, a jury found that Rowe’s exposure to hardened cement manufactured by Universal Engineering Co., Inc. (Universal), was a substantial factor causing Rowe’s mesothelioma. The jury also found Rowe’s exposure to asbestos from the products of the eight defendants that previously settled the case to be a substantial factor causing his mesothelioma. The jury allocated twenty percent of the damages to Universal and apportioned the remaining eighty percent among the eight defendants that had previously resolved the case.

Donna Rowe appealed the April 27, 2015 jury verdict on behalf of her husband who died of mesothelioma on April 8, 2015. In one of several points raised on appeal, Donna Rowe argued that Universal relied on improperly admitted evidence in proving its apportionment claim. At trial, the court allowed Universal to admit settled defendants’ answers to interrogatories. The trial court reasoned that because Universal asserted cross-claims against the settled defendants, the answers to interrogatories were admissible, even if those interrogatory answers were served in an unrelated matter, outside New Jersey. The judge also allowed Universal to read sections of depositions of corporate representatives of the settled defendants, to help substantiate Universal’s apportionment claim. The trial judge relied on Universal’s representation that the representatives of the eight settling defendants were outside the jurisdiction of the court and unavailable for trial.


Continue Reading New Jersey Appeals Court Rules on Admissibility of Evidence in Proving Apportionment Claim

Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)

The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.


Continue Reading A Healthy Reminder of Burden Shifting

Ramsey v. Georgia Southern University Advanced Development Center, et al., No. 305, 2017, C.A. No. N14C-01-287 ASB (Del. June 27, 2018).

On June 27, 2018, the Supreme Court of the State of Delaware issued a fifty-seven-page opinion in the above-mentioned case, creating new precedent for Delaware employer liability in secondary or “take-home” asbestos cases. Below is a summary of both the relevant factual and procedural background, as well as Chief Justice Strine’s opinion.

The plaintiff’s spouse, Robert Ramsey, worked for Haveg Industries, Inc. at its industrial plant for twenty-four years. From 1967 to 1979, Mr. Ramsey regularly handled asbestos-containing products manufactured by Georgia Southern University Advanced Development Center and Hollingsworth and Vose Company as part of his job as a maintenance worker at Haveg. Throughout this period his wife, Plaintiff, Dorothy Ramsey, washed Mr. Ramsey’s asbestos-covered clothing. Mrs. Ramsey eventually developed lung cancer, from which she subsequently died in 2015. Her estate sued the manufacturers of the asbestos products, alleging that the cancer was caused by Mrs. Ramsey’s exposure to her husband’s asbestos-riddled clothing. In granting the appellee manufacturers’ motions for summary judgment and dismissing the claims, the Delaware Superior Court relied primarily on two previous Delaware Supreme Court cases, Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009), and Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011), in which the Delaware Supreme Court held that an employer owed no duty to non-employees, including their spouses, for failure to adequately warn of the dangers of handling clothing exposed to asbestos, minus a special relationship between the employer and the non-employee, because the failure to warn was nonfeasance rather than misfeasance. Mrs. Ramsey appealed, arguing that in distinguishing an employer from a manufacturer: 1) a manufacturer of asbestos products creates the danger of asbestos-related harm and therefore commits misfeasance by failing to warn foreseeable victims; and 2) to the extent the holdings in Riedel and Price would block recovery on take-home claims against manufacturers, those holdings should be overruled. The appellant defendants argued that Riedel and Price controlled, and prevented Mrs. Ramsey from recovering from manufacturers because they are even further removed from an employer’s spouse than the employer itself. Additionally, they argued that allowing such claims would impose upon manufacturers an essentially limitless duty to warn that would be both impractical and unfair.

The Supreme Court acknowledged the compelling arguments on each side, but ultimately agreed with Mrs. Ramsey. First, the Court held that manufacturers owe a duty to warn to reasonably foreseeable users of their products, stating that “[b]ecause the risk of harm from take-home asbestos exposure when laundering asbestos-covered clothing is reasonably foreseeable, a plaintiff in Mrs. Ramsey’s position has a viable claim against a manufacturer . . . . Ramsey. at p. 44 of 57. However, the Court limited this duty by stating that the “sophisticated purchaser” defense would cut off a manufacturer’s liability to ultimate end users once the manufacturer has warned the
Continue Reading Delaware Supreme Court Finds Duty To Warn For Product Manufacturers And Employer Defendants In Take Home Exposure Case