On January 3, 2020, in Mary Ellerbrock, Individually, and as Special Administrator of the Estate of Alex Kaszynski, Deceased, v. A.O. Smith Corp., et. al. (case No. 18-L-1434), the Third Judicial Circuit Court in Madison County, IL, denied defendant PW Power Systems’ (“PW”) motion to transfer based on forum non conveniens. In this asbestos case, premises Defendant PW sought to have the case moved from Madison County, IL to LaSalle County, IL. In denying PW’s motion, the Court referenced the Supreme Court’s decision in Fennell v. Illinois Central R.R. Co., emphasizing “[t]he defendant must show that the plaintiff’s chosen forum is inconvenient to the defendant and that another forum is more convenient to all parties.” 2012 IL 113812, ¶ 6. The Court’s reliance on Fennell for support that all defendants must join the motion is misplaced given that Fennell involved only one defendant.

Continue Reading Toxic Tort Monitor: Madison County Court Denies Intrastate Motion to Transfer Based on <I>Forum Non Conveniens</I>

On December 19, 2019, the First District issued its opinion in Daniels v. Arvinmeritor, Inc., affirming a $6 million verdict for the estate of Patrick O’Reilly, a union pipefitter from 1957 to 1998 who passed away from mesothelioma in April of 2017. 2019 IL App (1st) 190170 (formerly Daniels v. John Crane, Inc.). John Crane was the only defendant left when the jury verdict was reached, subjecting it to a nearly $5 million liability after set-offs were subtracted. After its motion for a new trial was denied, John Crane appealed arguing the trial erred in denying its post-trial motion because the  court: (1) allowed Plaintiff’s medical expert, Dr. Abraham, to testify that the cumulative dose of Plaintiff’s exposure to all products caused his injury; (2) provided inaccurate jury instructions regarding proximate cause and the state of the art defense in asbestos cases; (3) failed to include four settled defendants on the jury form; and (4) did not properly analyze certain settlement agreements prior to making good faith findings. The appellate court ultimately affirmed the judgment of the circuit court. Below is a brief analysis on each of the issues on appeal.

Continue Reading Toxic Tort Monitor: $6 Million Verdict Affirmed by Illinois Appellate Court in Mesothelioma Case

Recently, three asbestos cases, Lege, Chabaud, and Gaddy, have produced significant verdicts in Louisiana. Interestingly, Chabaud, a case of disputed asbestosis, produced the largest reported award for an asbestos personal injury claim in Louisiana history. Below is a brief summary of each of these matters.

Continue Reading Toxic Tort Monitor: Three Louisiana Juries Award Significant Verdicts in Asbestos Exposure Cases

The United States Supreme Court recently amended Federal Rule of Evidence Rule 807, the residual exception to the hearsay rule. These amendments significantly broaden the scope of the exception, which may lead to the admission of more hearsay statements under this rule.

Rule 807 provides for the admission of certain hearsay statements that are not admissible under the enumerated exceptions found in Rules 803 and 804. The previous version of the rule allowed for the admission of an otherwise inadmissible hearsay statement when the proponent could demonstrate that the statement was trustworthy, material, and more probative on the point for which it was offered than any other evidence the proponent could obtain through reasonable efforts, and that the admission of the statement was in the interests of justice.

Continue Reading Toxic Tort Monitor: Changes to Federal Rules of Evidence Broaden Hearsay Exception

On November 26, 2019, in Eileen Riebel, et al. v. 3M Company, et al. (Case No. 2015-L-002124), Cook County Judge Clare E. McWilliams granted a premises defendant’s personal jurisdiction motion in an asbestos matter finding that a contractual relationship between an out-of-state premises defendant and a decedent’s Illinois-based employer, by itself, was not sufficient to establish specific personal jurisdiction over the out-of-state defendant and did not meet the requisite minimum contacts with the state.

Continue Reading Toxic Tort Monitor: Cook County Court Finds Asbestos Plaintiff Failed to Establish Specific Personal Jurisdiction Over Out-of-State Premises Defendant

In Kardos v. Armstrong Pumps Inc. et al., 2019 PA Super 324, the Superior Court of Pennsylvania recently ruled that where a party is given the opportunity to cross-examine a witness who later becomes unavailable due to his death, such testimony meets the hearsay exception and is admissible evidence.

Decedent Nicholas Kardos was diagnosed with mesothelioma in January 2016. On March 10, 2016, Mr. Kardos filed a lawsuit against numerous manufacturers, suppliers, and users of asbestos products. In September 2016, Mr. Kardos executed an affidavit related to his work history and exposures to asbestos, after a site visit of a prior worksite. In October 2016, Mr. Kardos was deposed over three days, including cross-examination by defendants regarding his work history and exposures to asbestos containing products. Mr. Kardos passed away on November 3, 2016, before any party re-noticed the deposition.

Continue Reading Toxic Tort Monitor: Consider This When Afforded the Opportunity to Cross-Examine

In a consolidated appeal, the Georgia Court of Appeals recently looked at the proximate cause standard for asbestos cases in Davis v. John Crane. 2019 WL 5558711 (Ga. Ct. App. Oct. 29, 2019). In so doing, the appellate court declined to extend the U.S. Supreme Court’s recent decision in Air and Liquid Systems Corp. v. Devries to cases outside of a maritime tort context. While the Davis Court is not the first to analyze the DeVries decision, it is one of the first to hold that the case is exclusively limited to maritime torts.

Continue Reading Toxic Tort Monitor: Georgia Appellate Court Limits <i>DeVries</i> Application to Maritime Tort Cases

Recently, a Missouri Court of Appeals vacated a trial court’s award of $110 million in an ovarian cancer talc case, Slemp v. Johnson & Johnson, ED 106190 (Mo. Ct. App. Oct. 15, 2019). This is the third talc verdict handed down by a St. Louis jury overturned on appeal based on lack of personal jurisdiction in light of the United States Supreme Court’s ruling in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017) (“BMS”).

Continue Reading Toxic Tort Monitor: Missouri Court of Appeals Vacates $110 Million Ovarian Cancer Talc Verdict

In August of 2019, following a seven-week bench trial, Judge Thad Balkman of Oklahoma’s Cleveland County District Court found biotech and healthcare company Johnson & Johnson responsible for sparking the state’s opioid epidemic through use of “disingenuous marketing schemes” used to drive the sale of its prescription painkillers. This ruling, which ordered Johnson & Johnson to pay the state of Oklahoma $572 million dollars in damages, resulted in the first ever successful lawsuit brought by the state against a defendant drug manufacturer stemming from a sole cause of action: public nuisance.

Continue Reading Toxic Tort Monitor: The Rising Trend of Public Nuisance in Large Scale Litigation

Recently, the Missouri legislature passed Senate Bill 224 outlining a brand new set of discovery rules for Missouri state-court cases. These new rules represent a comprehensive revision to the existing rules and make the Missouri rules align significantly with those of the Federal Rules of Civil Procedure. Under the Missouri constitution, the statute took effect on August 28, 2019 overriding the existing rules. However, the Missouri Supreme Court cannot promulgate a new rule with less than six months’ notice, which means that the new rule would not formally be in effect before March or April of 2020. Furthermore, the Supreme Court’s Rules Committee was recently advised that the Supreme Court has not updated its website to reflect the changes made in SB 224.

Continue Reading Toxic Tort Monitor: New Missouri Discovery Rules