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Matt is a partner in the Providence, Rhode Island office, and a member of the firm’s Complex Litigation Practice Group. He focuses his practice in the areas of products liability defense, mass torts, and other complex tort litigation as well as employment law, general liability insurance defense, and maritime law. Matt’s work experience includes representing corporate clients in all phases of civil litigation. He routinely defends clients against claims arising in negligence, breach of contract, breach of warranty, wrongful death, and failure to warn. Matt serves as Regional Counsel for a leading aeronautics company. In this role, he is responsible for the coordination and management of the client’s litigation throughout the Mid-Atlantic and South. Additionally, Matt handles a variety of employment-related discrimination cases and premise liability actions.

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On Friday, April 28, 2017, the United States District Court for the Southern District of New York dismissed, in its entirety, John and Michele Clark’s asbestos personal injury action based on the doctrine of judicial estoppel. In short, the Court ruled that the Plaintiffs’ lawsuit could not proceed without damaging the integrity and proper functioning of the judicial system. The reason: Plaintiffs did not disclose their personal injury claims before receiving their Chapter 13 Bankruptcy discharge.

The background of Plaintiffs’ personal injury lawsuit is entwined with two other actions. First, Plaintiffs filed for a Chapter 13 bankruptcy petition in Connecticut in February 2010. A Bankruptcy Plan was confirmed approximately five months later, in July 2010. In March 2016, Plaintiffs declared that they had made all their payments as prescribed by their bankruptcy plan and requested that the bankruptcy court issue an order discharging their debts. The bankruptcy court entered such an order in August 2016.

Second, in August 2015—a year before the Chapter 13 petition was discharged—Plaintiffs filed an asbestos-related personal injury action in Illinois state court. The Illinois suit came about one month after Mr. Clark was diagnosed with mesothelioma. Plaintiffs alleged that Mr. Clark’s illness was caused by exposure to asbestos during his service in the United States Air Force as well as his employment with an aircraft manufacturer. Plaintiffs, however, did not inform the bankruptcy court of their asbestos claims, as bankruptcy law requires. Indeed, in a Chapter 13 bankruptcy, petitioners have an ongoing obligation to disclose any asset that accrues between the initiation and closing of their bankruptcy case as “[e]very conceivable interest of the debtor, future, nonpossessory, contingent, speculative, and derivative, is within the reach of [the bankruptcy estate].” Chartschlaa v. Nationwide Mut. Ins. Co., 538 F.3d 116, 122 (2d Cir. 2008). Thus, by not amending their Chapter 13 schedules, Plaintiffs, in effect, were concealing an asset that rightfully belonged in their bankruptcy trustee’s care. Accordingly, after a defendant informed Plaintiffs of its intention to file a motion to dismiss based on judicial estoppel owing to their failure to disclose the existence of their Illinois action, Plaintiffs’ voluntarily dismissed the Illinois lawsuit.

Then, in July 2016—again, while Plaintiffs’ bankruptcy case was still open—Plaintiffs filed a second asbestos personal injury suit raising the same claims as those raised in Illinois, but this time in New York state court. Shortly thereafter, the defendants in the New York action removed the case to the Southern District and Plaintiffs’ bankruptcy case closed, without Plaintiffs ever amending their Chapter 13 schedules. The New York defendants then promptly filed their motion to dismiss based on judicial estoppel.

The defendants argued that Plaintiffs’ claims had to be judicially estopped as a matter of law because Plaintiffs took inconsistent positions before the Bankruptcy Court and the Southern District. On the one hand, Plaintiffs, by not fulfilling their statutory obligation to amend their schedule of assets in the bankruptcy case, declared that they had no foreseeable assets owing to them. On the other
Continue Reading S.D.N.Y. Tells Plaintiffs: “Stop! You Cannot Sue, You Changed Your Story”

battleshipIt is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to parties.  Further, the Federal Rules of Evidence tend to be more stringent, as are requirements for expert witnesses.  These, and the notion that federal courts tend to grant motions to dismiss and motions for summary judgment more frequently and award lower verdicts, means that plaintiffs would often rather file their cases in state court and conversely, defendants often prefer to litigate these cases in federal court. Consequently, when possible, defendants often will remove a case filed in state court to the applicable U.S. District Court where the state action was pending. One such method of removal is found in 28 U.S.C. § 1442(a)(1), the federal-officer removal statute. Specifically, § 1442(a)(1) allows a defendant that acted under any United States agency or officer to remove a plaintiff’s suit to federal court if any of the alleged claims or defenses relate to “any act under color of such office.” This is a frequently used tool of military contractors to get their government contractor defense heard by a federal court.

Government contractor immunity is a recognized federal defense based on public policy (See Boyle v. United Technologies Corp., 487 U.S. 500 (1988)). It is an offshoot of the governmental immunity doctrine codified in 28 U.S.C. § 2680, which insulates the federal government from suit in relation to the performance of its discretionary actions. Military contractors may be extended the benefits of §2680 in a product liability action if they can demonstrate that: (1) the government “approved reasonably precise specifications” for their product; (2) the product conformed to those specifications; and (3) the contractor warned the government about the dangers in the use of the product that were known to it but not to the government.”  Boyle, 487 U.S. at 512.

Military contractors of all stripes expressed a collective sigh of relief on January 20, 2017, when the Fifth Circuit Court of Appeals fortified the federal officer removal statute in Zeringue v. Crane Co., 2017 WL 279496 (5th Cir. 2017), a decision which overturned the Eastern District of Louisiana’s remand of an asbestos plaintiff’s suit to Orleans Parish District Court. In Zeringue, the Plaintiff filed suit in Louisiana state court alleging that he first was exposed to asbestos while serving aboard U.S. Navy ships during the 1950s. Crane, one of more than twenty defendants in the case, was a major supplier of asbestos-containing valves, among other equipment, to the Navy. Accordingly, Crane invoked the federal officer removal statute so that it could litigate the case in federal district court. It argued that removal was proper because “any product [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings
Continue Reading Recent Fifth Circuit Ruling a Relief to United States Government Equipment Suppliers

craft beer 2Following a five-week trial, a Providence jury found Twin River Casino, a Providence liquor store, and a teenage drunk driver liable in a dram shop case where the plaintiff, Alissa Moulton, sustained serious spinal injuries following an April 24, 2010 motor vehicle accident. Specifically, Moulton was paralyzed from the chest down when she and her friend, Cristina Sianpi, were ejected from the back seat of a 1997 Toyota Camry.  The car’s driver, 18 year-old defendant Alexander Arango, was Moulton’s boyfriend and the father of their child. According to reports, Arango lost control of the Camry, which struck a median barrier, crossed the two right lanes of the highway, rolled over, and collided—rear end first—with a tree on the highway’s grass shoulder.

Although historically known as “conservative” in terms of verdict awards, it took this particular jury less than two days of deliberation before awarding Moulton $23 million in damages, plus interest. Additionally, the jury assigned 70 percent responsibility to the underage driver, 20 percent to Twin River Casino, and 10 percent to Royal Liquors, a Providence liquor store that allegedly sold alcohol to Arango. Under Rhode Island law, each defendant is jointly and severally liable for the entire amount of damages regardless of the percentage of responsibility. (R.I.G.L. § 10-6-2.)  The defendants against whom a money judgment is entered are also, however, entitled to a set-off in the amount of either: (1) the total amount paid by each settled defendant; or (2) the percentage of fault assigned to each of those settled defendants by the trier of fact, whichever is greater.  (R.I.G.L. § 10-6-7.)

At trial, Moulton, who is now confined to a wheelchair, was represented by Providence personal injury firm of Mandell Schwartz & Boisclair.  Her lawyers argued before Judge William E. Carnes, Jr., that Twin River was negligent in serving alcohol to a visibly intoxicated Arango, and that Twin River violated the Rhode Island Liquor Liability Act (R.I.G.L § 3-14-1 et. seq.) by negligently serving the underage driver.

For his part, Arango, was sentenced to two years in prison after pleading guilty in June 2010 to two counts of driving to endanger resulting in serious bodily injury, and one count of driving under the influence.

A spokesperson for Twin River has suggested that the casino may seek to appeal the decision, as it is “inconsistent” with evidence put on by the defense.

About the Authors

Kenneth R. Costa is a partner with Manion Gaynor & Manning. He is a member of the multi-state Products Liability Litigation Team, with a primary focus in insurance defense, products liability, asbestos-related and toxic torts cases in Rhode Island, Massachusetts, and Connecticut.

Matthew Giardina is an associate in Manion Gaynor & Manning’s Providence office, and a member of the firm’s Products Liability and Complex Tort Litigation Group. He focuses his practice in the areas of products liability defense, mass torts, and other complex tort litigation.
Continue Reading Rhode Island Jury Returns a $23 Million Dram Shop Verdict

Talc!For the third time this year, a St. Louis, Missouri jury found Johnson & Johnson liable in a case where plaintiff alleged that her ovarian cancer was caused by her use of talcum powder products. At trial, Deborah Giannecchini, a 62 year-old California woman, claimed that her decades-long use of Johnson & Johnson talcum powder caused her to develop ovarian cancer in 2013. After a month-long trial, the jury awarded her more than $70 million in damages, approximately $65 million of which were comprised of punitive damages.

At trial, Giannecchini’s lawyers argued that Johnson & Johnson:  (1) was aware for more than 30 years that use of talc-based products increases the risk of ovarian cancer; and (2) did not warn the public of the potential health hazards associated with the product.

In the two prior St. Louis cases which reached a verdict against Johnson & Johnson, juries found in favor of plaintiffs and awarded $72 million and $55 million, respectively, in damages. While Johnson & Johnson has seen limited success before juries, the company hopes that each of the three St. Louis verdicts will be overturned on appeal. Specifically, Johnson & Johnson’s appellate arguments will focus on the lack of scientific proof to support the recent jury awards. Indeed, Johnson & Johnson successfully used this approach in New Jersey, where a state court dismissed two talc-based actions after ruling that plaintiffs’ scientific experts were unable to provide sufficient evidence that the use of talcum powder causes ovarian cancer.

Johnson & Johnson is currently defending more than 1,500 cases nationwide.  In each of these cases, plaintiffs allege that the company failed to warn consumers of the potential health risks associated with the use of talc products.
Continue Reading Johnson & Johnson Found Liable in Latest Talc Product Trial

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Arguably the two most significant challenges for any employer involve hiring and terminating employees. In both processes, employers are faced with substantive and administrative concerns.  On the substantive level, employers routinely ask themselves questions such as: Will the applicant be a good fit with office culture? Did the employee meet core competencies? Likewise—and perhaps more daunting—are the employer’s administrative tasks, which range from submitting completed I-9 Forms and setting up email accounts to providing COBRA notices and collecting company issued devices. To be sure, a great deal of employment litigation stems from the way in which employers tend to administrative affairs upon an employee’s separation.

In a case of first impression for Rhode Island, the state’s Superior Court recently addressed the legal ramifications associated with an employer’s continued maintenance of a website profile and photographs of a former employee. The plaintiff in Rompf v. Intern. Tennis Hall of Fame, Inc., was employed by the International Tennis Hall of Fame as its Head Tennis Professional. 2016 WL 4534211 (R.I. Super. Ct., Stone, J., 2016). In that role, Rompf oversaw the organization’s educational and instructional programs until the Hall of Fame dismissed her on November 6, 2014. Id. at *1. After Rompf’s termination, the Hall of Fame allegedly “continued to identify Rompf in her previous role and used photographs of her on its website until the middle of May 2015.” Id. Subsequently, Rompf sued her former employer. The plaintiff asserted, in part, that the Hall of Fame misappropriated her “name and likeness for its own purposes and benefit without her permission or approval” to achieve a commercial advantage while simultaneously violating her right to privacy pursuant to Rhode Island General Law § 9-1-28.1. Id.

The Hall of Fame returned Rompf’s serve by filing summary judgment. The organization argued that “Rompf had no expectation of privacy in her name and likeness because it was used in conjunction with her employment.” Id. at *2. That is, the Hall of Fame maintained that Rompf’s suit was meritless because one cannot have a privacy interest in activities that relate to one’s employment. Id. at *4. The court found, however, that the Hall of Fame failed to hit a winner in its summary judgment motion. It reasoned that Rompf would advance to the next set because: (1) Rompf’s Complaint established that she did not consent to the use of her name and image following termination; (2) there was a question of fact as to whether the Hall of Fame used her image in a false light by publishing the existence of a relationship that no longer existed; and (3) a jury would need to determine whether the Hall of Fame used Rompf’s image to “entice individuals to utilize the services she offered as the Head Tennis Professional.” Id.

Although Rompf’s legal match is far from over, the results of the court’s summary judgment ruling are profound for those supervisors and human resource professionals charged with navigating an employee’s separation. In addition to calculating final paychecks, conducting exit
Continue Reading Picture Worth More Than a Thousand Words to Plaintiff in Rhode Island Case