Legislative & Judicial Updates

In Part 1 of our Clean Water Act (CWA) Series, we reported on the circuit split between the Fourth, Sixth, and Ninth Federal Circuit Court of Appeals regarding whether indirect discharges to Waters of the United States (WOTUS) through groundwater required a CWA permit. On February 19, 2019, the Supreme Court agreed to hear arguments regarding “Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” Read more about this case history and the legal arguments on the Emerging Energy Insights blog.

Toxic Tort Monitor

February 20, 2019 | Editor: Jen Dlugosz | Assistant Editor: Natalie Holden
New Developments
Missouri’s Game-Changing Opinion on Venue in Multi-Plaintiff Tort Litigation
By Dominique Savinelli and Tim Larkin

On February 13, 2019, the Supreme Court of Missouri dealt a significant blow against improper forum shopping by plaintiffs in mass tort litigation. The Johnson & Johnson “talc cases” currently venued in St. Louis city involve many plaintiffs whose claimed injuries arose outside that city, but for strategic reasons they prefer that venue. Typically, these cases include a single “local” plaintiff whose injury first occurred in St. Louis city. The remaining plaintiffs (sometimes dozens) are joined pursuant to Rule 52.05 and claim venue solely based on joinder with the “local” plaintiff(s). [Continue Reading]

Supreme Court of Virginia Recognizes Employer Liability for “Take Home” Exposure
By Michael Klebanov

Recently, a divided Supreme Court of Virginia, in a 4-3 decision, recognized an employer’s liability for “take home” exposure. In Quisenberry v. Huntington Ingalls Inc., the Supreme Court held that employers can be liable for their employees unknowingly bringing home asbestos dust and exposing cohabitating family members to asbestos (i.e., “take home” liability). [Continue Reading]

Seventh Circuit Holds Government Contractor only Required to Provide Short and Plain Statement Asserting Basis for Removal
By Kayla Foley

In a recent decision, the Seventh Circuit Court of Appeals held that a defendant’s removal of an asbestos case was valid, even though it did not provide evidence supporting its federal contractor defense. In Betzner v. the A.O. Smith Corporation, the Betzners filed suit in Madison County, Illinois alleging that Bruce Betzner was exposed to asbestos fibers manufactured by Boeing during the course of his employment. Boeing filed a notice of removal under 28 U.S.C. § 1442(a), or the federal officer removal statute. [Continue Reading]

Upcoming Events
DRI – Toxic Torts and Environmental Law
March 14-15, 2019
New Orleans, LA

Several of our toxic tort litigators are attending this DRI seminar; we hope to see you there!

Toxic Tort Monitor Archive
December 2018

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Technology, Manufacturing & Transportation
Toxic Tort Litigation Practice

Companies face increasingly well‐coordinated attacks in jurisdictions across the country. These assaults are becoming more complex and costly as plaintiffs’ counsel pursue novel theories and claims to keep asbestos litigation thriving. Husch Blackwell’s team has experience in numerous jurisdictions throughout 37 states. Our attorneys can help you navigate the intricate web of plaintiffs’ firms, changing laws, evolving science and anti-defendant courts. [More information]

On Monday, the Missouri Supreme Court issued an order sustaining Johnson & Johnson’s (“J&J”) last-minute Petition for writ of prohibition to stay the trial in Vickie Forrest et al. v. Johnson & Johnson et al., Cause No.1522-CC00419-01, pending in the in the Circuit Court of the City of St. Louis, Missouri.  Although the Supreme Court sets forth no reasoning for the stay in its one paragraph en banc order, the trial, which was set to start on January 22, 2019, will not take place until the Court weighs in on J&J’s argument that conducting a single trial of multiple claims from multiple Plaintiffs – most of whom had potentially been improperly joined – is unfair to the defendants and even potentially in violation of J&J’s constitutional due process rights. State ex rel. Johnson & Johnson et al. v. The Honorable Rex M. Burlison, Cause No. SC97637. The Forrest case is one of an onslaught of talc cancer cases brought in the St. Louis City Circuit Court on behalf of multiple plaintiffs against J&J.  Forrest, and twelve other women, are alleging that their different subtypes of ovarian or gynecological cancers were caused by their use of J&J’s talcum powder products, which allegedly contained asbestos. Continue Reading MO Supreme Court Grants J& J’s Writ of Prohibition in Talc Cancer Case

 

Toxic Tort Monitor

December 18, 2018 | Editor: Jen Dlugosz | Assistant Editor: Natalie Holden
New Developments
This will be our final Toxic Tort Monitor for 2018. Thank you for continuing to subscribe to these updates. We wish you all happy holidays. Have a joyful new year!
Cook County Jury Returns a Defense Verdict in Mesothelioma Trial
By Andrew Hahn

On December 14, 2018, a Cook County jury returned a verdict in favor of defendant Welco in a mesothelioma trial. Welco was the only remaining defendant at trial. Plaintiffs argued that decedent, a career member of the drywall trade, worked with Welco products for one month in 1965 in Chicago, Illinois. Plaintiffs further argued that Welco was negligent for its failure to warn its consumers of the dangers of asbestos in its joint compound. [Continue Reading]

Department of Justice Continues to Prioritize Asbestos Trust Fraud
By

Over the last few months, the Department of Justice (DOJ) has signaled that fighting fraud, waste, and abuse in asbestos trusts is a priority. Our previous article on this subject highlighted DOJ’s September 13, 2018 Statement of Interest filed in the bankruptcy case of Kaiser Gypsum Company, which asserted that the proposed trust plans lack adequate safeguards and indicated that DOJ would object unless the final plan better ensures transparency and prevents fraud. Since that filing, DOJ has continued to intervene in asbestos trust proceedings. [Continue Reading]

Toxic Tort Monitor Archive
October/November 2018

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Technology, Manufacturing & Transportation
Toxic Tort Litigation Practice

Companies face increasingly well‐coordinated attacks in jurisdictions across the country. These assaults are becoming more complex and costly as plaintiffs’ counsel pursue novel theories and claims to keep asbestos litigation thriving. Husch Blackwell’s team has experience in numerous jurisdictions throughout 37 states. Our attorneys can help you navigate the intricate web of plaintiffs’ firms, changing laws, evolving science and anti-defendant courts. [More information]

Toxic Tort Monitor

June 18, 2018 | Editor: Jen Dlugosz | Assistant Editor: Natalie Holden
New Developments
New Tool for Non-Resident Defendants Seeking to Challenge Personal Jurisdiction in Illinois
By Dominque Savinelli

If you are a non-resident corporate defendant in Cook County, Illinois, you should become familiar with Campbell v. Acme Insulations, Inc., as it will undoubtedly serve as a useful blueprint for future challenges to the exercise of personal jurisdiction in that state. [Continue Reading]

United States Supreme Court to Consider the Bare Metal Defense
By Andrew Hahn

The United States Supreme Court granted a petition for certiorari in Air and Liquid Systems Corp. et al. v. Devries et al. and is set to wade into the fiercely contested waters surrounding the bare metal defense under maritime law. Generally, the bare metal defense asserts that defendants that manufactured products composed of only metal, and no asbestos components, have no liability regarding asbestos-containing components later utilized in or on their products. The Court will directly address the question: “Can products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute?” [Continue Reading]

Missouri Supreme Court Holds that the Workers Compensation Additional Mesothelioma Benefit Provides Claims-Made Coverage Trigger
By Eric B. Krauss

In Accident Fund Ins. Co. v. Casey, the Missouri Supreme Court affirmed the Missouri Labor and Industrial Relations Commission’s determination that Respondent, the employer’s workers compensation insurer, was liable for Appellant’s claim for enhanced mesothelioma benefits. [Continue Reading]

“Take-Home More than Seashells”: Rhode Island Court Rules that Employer Owes Duty of Care to Protect Third-Party Non-Employees
By Ketajh Brown

The State of Rhode Island and Providence Plantations—contemporarily nicknamed “the Ocean State” is known for famous clear-broth Quahog clam chowder, The Breakers Mansion, the International Tennis Hall of Fame, and its Napatree Point Conservation Area beaches covered in seashells.  While tourists often take home Napatree’s brilliant and pristine shells, a recent Superior Court opinion of first impression addressed whether Rhode Island law imposes duty of care upon employers to protect third-party non-employees from take-home asbestos exposure. [Continue Reading]

Toxic Tort Monitor Archive
May 2018

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Technology, Manufacturing & Transportation
Toxic Tort Litigation Practice

Companies face increasingly well‐coordinated attacks in jurisdictions across the country. These assaults are becoming more complex and costly as plaintiffs’ counsel pursue novel theories and claims to keep asbestos litigation thriving. Husch Blackwell’s team has experience in numerous jurisdictions throughout 37 states. Our attorneys can help you navigate the intricate web of plaintiffs’ firms, changing laws, evolving science and anti-defendant courts. [More information]

Toxic Tort Monitor

 

May 15, 2018 | Editor: Jen Dlugosz | Assistant Editors: Anne McLeod and Natalie Holden
New Developments
Order of Operations: Maryland’s Highest Court Analysis of the Statute of Repose and Discovery Rule’s Applicability to Asbestos Cases
By Soham Desai

On March 28, 2018, the Court of Appeals of Maryland, Maryland’s highest court, was asked to: (1) determine whether the state’s statute of repose was ambiguous as to when an injury and cause of action “arise” within the scope of the statute and, (2) discuss the applicability of the discovery rule in relation to the manifestation of a latent disease. The Court found that, in a case involving a steamfitter’s alleged asbestos exposure, the plaintiff’s claims were not barred as the date of his last exposure to asbestos containing products determined whether the statute of repose applied. [Continue Reading]

Pennsylvania Court Finds That an Employer’s Take-Home Duty Can Extend to Girlfriends of Former Employees
By Sarah Rashid

A Pennsylvania District Court recently denied a defendant’s motion for summary judgment of the issue of duty, finding that that an employer’s take home duty may in certain situations extend to the girlfriend of a former employee. Plaintiff Brenda Schwartz and her husband, Paul Schwartz (“Plaintiffs”), brought a negligence action against Defendant Accuratus Corporation (“Defendant”), alleging that Mrs. Schwartz had contracted chronic beryllium disease (“CBD”) from exposure to beryllium brought home on Mr. Schwartz’s clothes while he was an employee of Defendant. Mrs. Schwartz also claims exposure to beryllium from Mr. Schwartz’s roommate, Gregory Altemose, who was also an employee of Defendant. [Continue Reading]

District Court in Washington Reverses Course on Personal Jurisdiction?
By Jackson Otto

In recent years federal courts have clarified and narrowed the scope of personal jurisdiction as it applies to nonresident defendants, particularly in mass tort and toxic exposure cases. However, a recent decision coming out of Washington appears to buck this trend. In Donald Varney and Maria Varney v. Air & Liquid Systems Corporation, et al., the United States District Court for the Western District of Washington had an opportunity to decide motions brought by Defendants Taco, Inc. and Aurora Pump Company to dismiss for failure to state a claim, for lack of standing, to strike Plaintiffs’ request for pre-judgment interest, and most notably for lack of personal jurisdiction. The Court denied each of the Defendants’ motions. [Continue Reading]

Toxic Tort Monitor Archive
April 2018

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Connect with us: Blog | Twitter | LinkedIn | Instagram | YouTube
Technology, Manufacturing & Transportation
Toxic Tort Litigation Practice

Companies face increasingly well‐coordinated attacks in jurisdictions across the country. These assaults are becoming more complex and costly as plaintiffs’ counsel pursue novel theories and claims to keep asbestos litigation thriving. Husch Blackwell’s team has experience in numerous jurisdictions throughout 37 states. Our attorneys can help you navigate the intricate web of plaintiffs’ firms, changing laws, evolving science and anti-defendant courts. [More information]

Toxic Tort Monitor

 

April 16, 2018 | Editor: Jen Dlugosz | Assistant Editors: Anne McLeod and Natalie Holden
New Developments
Cook County Circuit Court Denies Personal Jurisdiction Motion in Asbestos Case
By Anne McLeod

The Circuit court in Cook County, Illinois has recently clarified one of the limitations on which it applies personal jurisdiction and venue protections to Defendants in asbestos cases. In John C. Clark v. A.W. Chesterton Company, et al., the Court performed personal jurisdictional analyses of general and specific jurisdiction, and also analyzed Defendant’s Motion to Dismiss for forum non conveniens. While the Defendant in this case won the argument on general jurisdiction, it lost the arguments on specific jurisdiction and forum non conveniens. The court reasoned that Plaintiff’s “take-home” exposure to asbestos brought both the Defendant’s actions and the alleged resulting injury into Illinois. [Continue Reading]

“Sue-me State” or “Show-me State”: The Latest Push for Asbestos Exposure Tort Reform in Missouri
By Ketajh Brown and Jen Dlugosz

The stage is set for a heated showdown between GOP leaders and bipartisan critics over implementation of HB 1645. If adopted by the Senate, the bill would alter several provisions related to a plaintiff’s ability to bring asbestos tort claims. The main contention sparked by HB 1645 requires plaintiff-side attorneys to identify and file claims against all potentially liable defendants or bankruptcy trusts at the onset of lawsuits alleging injury from asbestos exposure. The idea behind this segment of the bill is twofold: (1) to embed built-in transparency preconditions allowing asbestos claim resolution with minimal delay; and (2) thwart the practice of “double-dipping” by granting injured plaintiffs compensation from one defendant at a time—before pursuing claims against additional defendants. [Continue Reading]

Another Take on “Take-Home” Exposure in California: Foglia v. Moore Dry Dock Co.
By Theresa Mullineaux

A California appellate court recently upheld the trial court’s granting of summary judgment in a secondary exposure asbestos case where Plaintiffs could offer no admissible evidence that decedent’s father worked around asbestos-containing materials. The trial court excluded plaintiff’s testimony regarding his father’s work because he acknowledged he had no personal knowledge and also sustained defendant’s objections to an affidavit of decedent’s aunt who likewise had no personal knowledge of decedent’s father’s work. [Continue Reading]

Toxic Tort Monitor Archive
March 2018

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Technology, Manufacturing & Transportation
Toxic Tort Litigation PracticeCompanies face increasingly well‐coordinated attacks in jurisdictions across the country. These assaults are becoming more complex and costly as plaintiffs’ counsel pursue novel theories and claims to keep asbestos litigation thriving. Husch Blackwell’s team has experience in numerous jurisdictions throughout 37 states. Our attorneys can help you navigate the intricate web of plaintiffs’ firms, changing laws, evolving science and anti-defendant courts. [More information]

Toxic Tort Monitor

 

March 14, 2018 | Editor: Jen Dlugosz | Assistant Editors: Anne McLeod and Natalie Holden
New Developments
Precluding a Second Bite at the Apple; Federal District Court Grants Summary Judgment on Basis of Doctrine of Collateral Estoppel
By Tierra Jones

In the interest of justice and courtroom efficiency, res judicata aims to prevent parties from re-litigating previously legally resolved issues and claims involving the same or similar parties. Two doctrines – claim preclusion and issue preclusion – are encompassed in res judicata. Issue preclusion, also known as the doctrine of collateral estoppel, is the narrower doctrine of the two. [Continue Reading]

Personal Jurisdiction and LLCs – Does Citizenship Matter?
By Jen Dlugosz

When deciding whether to remove a case when an LLC is a party it is necessary to look at the citizenship of the LLC’s members to determine whether there is diversity for subject matter jurisdiction. However, citizenship of LLC members is not a key component of personal jurisdiction. The tests for subject matter jurisdiction and personal jurisdiction, while sometimes muddled, are in fact distinct. Simply put, just because an LLC is a citizen in the jurisdiction, does not equate to personal jurisdiction over the LLC in that jurisdiction. [Continue Reading]

Eastern District of Missouri Denies Plaintiff’s Motion to Reconsider Personal Jurisdiction Ruling
By Natalie Holden

The United States District Court for the Eastern District of Missouri recently denied an asbestos plaintiff’s motion for reconsideration of the court’s previous grant of defendants’ motion to dismiss for lack of personal jurisdiction. [Continue Reading]

Toxic Tort Monitor Archive
February 2018

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Connect with us: Blog | Twitter | LinkedIn | Instagram | YouTube
Technology, Manufacturing & Transportation
Toxic Tort Litigation Practice

Companies face increasingly well‐coordinated attacks in jurisdictions across the country. These assaults are becoming more complex and costly as plaintiffs’ counsel pursue novel theories and claims to keep asbestos litigation thriving. Husch Blackwell’s team has experience in numerous jurisdictions throughout 37 states. Our attorneys can help you navigate the intricate web of plaintiffs’ firms, changing laws, evolving science and anti-defendant courts. [More information]