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.

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The Illinois Supreme Court recently reversed and remanded the appellate court’s ruling in Jones v. Pneumo Abex LLC, Nos. 123895, 124002 cons. (Ill. 2019), holding the Fifth District failed to follow long-standing Illinois precedent rejecting identical civil conspiracy claims. The Supreme Court held the appellate court erred by distinguishing the present case, decided on summary judgment, from McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102 (1999), a case decided on a motion for judgment notwithstanding the verdict. The Court stated that, as under the current facts, “[i]f all relevant evidence is before the court and upon such evidence there would be nothing left to go to a jury so that the court would be required to enter a directed verdict, denying summary judgment to permit further proceedings to take place would serve no purpose.”

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On the heels of Johnson & Johnson’s latest defense verdict in a talc ovarian cancer case in St. Louis City in December 2019 – the fourth consecutive verdict in its favor – comes another study that supports Johnson & Johnson’s long held position. Published in the Journal of the American Medical Association, the article entitled Association of Powder Use in the Genital Area With Risk of Ovarian Cancer found no statistically significant association between the use of powder in the genital area and incident ovarian cancer.

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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.

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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.

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Last year, a St. Louis city jury sent shock waves across the world, awarding 22 plaintiffs nearly $5 billion in compensatory and punitive damages in a lawsuit against Johnson & Johnson over claims its asbestos-contaminated talcum powder caused ovarian cancer in women who used the company’s product for years in the case of Ingham v. Johnson & Johnson, No. 1522-CC10417 (Mo. Cir. Ct. St. Louis City July 12, 2018). Prior to trial, Imerys Talc America Inc., a co-defendant supplier of talc to Johnson & Johnson, settled plaintiffs’ claims for at least $5 million.[1]

While previous ovarian cancer trials hinged on arguments that talc itself is carcinogenic, plaintiffs in Ingham argued their cancer was caused by asbestos particles mixed in with the talc. The impact of this verdict and similar previous decisions across the country has been damaging enough to prompt talc supplier Imerys Talc America Inc., to file for Chapter 11 bankruptcy, citing a lack of financial clout to defend lawsuits alleging that Imerys’ talc caused ovarian cancer or asbestos-related mesothelioma.[2]
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A former laboratory technician at a biopharmaceutical company and his wife were awarded close to $70 million by a Florida state jury over claims he developed mesothelioma resulting from exposure to asbestos-containing products at work. At the end of the two-week trial, the jury found against GEA Mechanical Equipment (“GEA”), an equipment company, for its negligence in distributing the alleged asbestos-containing products and failing to adequately warn plaintiff of the related health hazards.
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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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