The Eastern District of Pennsylvania in Sullivan v. A. W. Chesterton, Inc., et al., No. 18-3622 (E.D. Pa. June 6, 2019), grappled with the constitutionality of the Pennsylvania statutes, 15 Pa.C.S. § 411 and 42 Pa.C.S. § 5301, (the “PA Statutory Scheme”) requiring out-of-state businesses to register in the state, which in turn functions as consent to general jurisdiction. This issue became salient only in light of the Supreme Court’s ruling in Daimler AG v. Bauman, 571 U.S. 117 (2014) (holding corporation is “at home” only where it is incorporated or maintains its principal place of business). The Eastern District held that the PA Statutory Scheme requiring out-of-state corporations to register before they conduct business in the state and thereby consent to general jurisdiction in Pennsylvania offends the Due Process Clause and is unconstitutional.
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In Thomas-Fish v. Aetna Steel Prod. Corp., plaintiff Helen Thomas-Fish alleged her husband Robert Fish had died from mesothelioma caused by exposure to asbestos through his work at a shipbuilding yard in New Jersey in 1960. No. 17-CV-10648 RMB/KMW, 2019 WL 2354555, at *1 (D.N.J. June 4, 2019).  Plaintiff brought a wrongful death claim against various defendants including Sonic Industries (“Sonic”), an alleged joiner contractor that installed asbestos-containing paneling during shipbuilding. Sonic was incorporated in California in 1966, six years after the alleged exposure in this case. In addition, Sonic maintained its principal place of business in Connecticut. Accordingly, Sonic was not subject to general jurisdiction in the state of New Jersey. Instead, Plaintiff asserted that Sonic was subject to specific jurisdiction in New Jersey through an unnamed predecessor entity under a successor liability theory. Defendant Sonic filed a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).

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On September 5, 2018, the Appellate Court for the Fourth District of Illinois introduced heightened standards for plaintiffs to establish duty and causation in asbestos litigation through its reversal of a McLean County trial court’s decision denying a defendant’s motion for judgment notwithstanding the verdict. McKinney v. Hobart Bros. Co., 2018 IL App (4th) 170333, appeal denied, 116 N.E.3d 948 (Ill. 2019). In McKinney, the plaintiff sued Defendant Hobart Brothers Company (“Hobart”) alleging his eight-month workplace exposure to Hobart’s asbestos-containing welding rods in 1962 and 1963 caused his mesothelioma. The welding rods at issue allegedly contained asbestos fibers that were encapsulated. The plaintiff also alleged exposure to asbestos-containing automotive products that occurred during the course of his forty-year mechanic career. In reversing the trial judgment, the McKinney Court addressed three issues of expert testimony admissibility under Rule 213 and ultimately tightened the reins on exposure claims involving encapsulated asbestos fibers by requiring industry knowledge of harm for the manufacturer’s product at issue before imposing a duty and ushering in the “substantial factor” test for causation.
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The Illinois Supreme Court recently heard oral arguments in Jones v. Pneumo Abex LLC, Nos. 123895, 124002 cons. (Ill. 2019), where Plaintiffs, John and Deborah Jones, sued brake lining company Pneumo Abex (“Abex”) and glass bottle maker Owens-Illinois (“O-I”) for injuries John Jones allegedly suffered due to asbestos exposure during his construction career. Although Jones never worked for Defendants and never used or was exposed to any product of Defendants, Plaintiffs allege that Defendants entered into a civil conspiracy with the asbestos industry at large including Johns-Manville, an insulation and roofing materials manufacturer, to conceal the harmful health effects of asbestos exposure. In their complaint, Plaintiffs relied solely on circumstantial evidence to support their allegations of a conspiratorial agreement, including. (1) an Abex funded study on asbestos dust with Saranac Laboratory (the “Saranac report”) where a mice study revealing tumors was omitted from the published report; (2) a 1953 Sales Agreement between O-I and Owens Corning Fiberglas Corp. (“OCF”) for the sale of Kaylo insulation; (3) “non-toxic” ads that were issued by O-I and later by OCF; (4) O-I’s sharing of two asbestos health articles from 1941, (5) a unilaterally sponsored O-I study of Kaylo insulation involving exposure to lab animals; and (6) overlapping directors and stock ownership of O-I in OCF.
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The First District recently held that the district court had personal jurisdiction over a Texas-based company because of that company’s national advertising scheme and small repeat customer base in Illinois. In Schaefer v. Synergy Flight Center, et al., No. 1-18-1779, Plaintiffs alleged that Defendant RAM Aircraft, L.P., negligently overhauled, repaired, and tested an aircraft’s left engine and other parts, and that the negligent repair caused the aircraft to crash in Illinois, killing its seven passengers. RAM was a Texas-based limited partnership that predominately made its income by overhauling aircraft engines. RAM performed its work in Texas and had no office or property in Illinois. RAM did, however, advertise in a nationally distributed magazine and Illinois customers historically accounted for 1-2.5% of its revenues.  The particular engine in question was overhauled by RAM in Texas, who shipped it to a company in Indiana, who then shipped it to an Illinois flight center for installation.

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On May 17, 2019, Illinois Governor Pritzker signed legislation eliminating the state’s 25-year statute of repose under the Workers’ Compensation Act for latent diseases, overturning the prominent Supreme Court decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015), which established clear precedent that an employee’s exclusive remedy lies under either the Workers’ Compensation or Occupational Diseases Act. Under the old law, an employee did not have a civil tort cause of action against their employer. This new law now creates an exception to the traditional exclusive remedy provision that has been part of the Illinois Workers’ Compensation system for over 80 years.
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Recently, the U.S. District Court for the District of Colorado recognized a defendant’s potential liability based on take-home exposure. In Mestas v. Air & Liquid Systems Corporation et. al., No. 18-cv-01006, Plaintiff alleged direct exposure and take-home exposure. Plaintiff alleged that his father was exposed to asbestos-containing products while working as a plumber and pipefitter, and that his father then carried asbestos home on his clothing which in turn, exposed Plaintiff to asbestos. Defendants filed a motion to dismiss, arguing that they owed no duty to Plaintiff based on take-home exposure.
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Shortly after the inauguration of Illinois Governor J.B. Pritzker, legislation was introduced in both the Illinois House and Senate to essentially override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015). In Folta, the Illinois Supreme Court held that the Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy to Illinois employees who suffered latent injuries such as mesothelioma.
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In its decision Tuesday, the U.S. Supreme Court held, under maritime law, that manufacturers can be held liable for injuries caused by asbestos-containing parts manufactured and added to their products by third parties. The case, Air & Liquid Systems Corp. v. DeVries, involved Navy sailors who were allegedly exposed to asbestos that was used with certain equipment on the Navy vessels to which they were assigned. The sailors claimed this exposure ultimately caused their cancer. The sailors brought suit against the manufacturers of equipment such as pumps, blowers, and turbines, alleging that the manufacturers were negligent in failing to warn them about the dangers of asbestos.

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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 &