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

November 12, 2018 | Editor: Jen Dlugosz | Assistant Editor: Natalie Holden
New Developments
Federal Court in Washington Holds Risks of Take-Home Asbestos Exposure Were Not Foreseeable Prior to 1955
By Paul Cranley

In a recent decision of the U.S. District Court for the Western District of Washington, the court held that the dangers of secondary asbestos exposure were not foreseeable in and before 1955. In particular, the Court held that the evidence presented by the plaintiffs in favor or their “take-home exposure” theory was insufficient to allow a jury to find that prior to 1955, defendant Union Pacific “knew or should have known of the risk that secondary asbestos exposure posed to its employees’ family members.” [Continue Reading]

Cook County Jury Awards $6M in Plaintiff’s Verdict
By Jen Dlugosz

In October, a Cook County jury awarded a $6 million dollars to the family of a deceased pipefitter in a mesothelioma trial. John Crane, Inc. was the only remaining defendant at trial. Plaintiff alleged that the decedent, a union pipefitter, worked with and around John Crane products. John Crane argued at trial that the decedent did not testify that any of the defendant’s gaskets or packings contained asbestos. [Continue Reading]

Department of Justice Acts to Fight Asbestos Trust Fraud
By

On September 13, 2018, the Department of Justice (DOJ) filed its first ever Statement of Interest in the bankruptcy of an asbestos company, signaling that DOJ intends to prioritize fraud and mismanagement relating to asbestos trusts. The Statement, filed in the U.S. Bankruptcy Court for the Western District of North Carolina in the Chapter 11 proceedings for Kaiser Gypsum Company, asserts that the proposed trust plans lack adequate safeguards and indicates that DOJ will object unless the final plan better ensures transparency and prevents fraud. [Continue Reading]

Toxic Tort Monitor Archive
August/September 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

September 26, 2018 | Editor: Jen Dlugosz | Assistant Editor: Natalie Holden
New Developments
Fifth District Finds Personal Jurisdiction Lacking Over Ford in Long-Awaited Jeffs Decision
By Andrew Hahn

The Fifth District Appellate Court issued its long-awaited decision in Jeffs v. Ford Motor Company recently finding that Ford Motor Company was not “at home” in Illinois and ordering the Madison County trial court to dismiss Plaintiff’s claims against Ford.. [Continue Reading]

Missouri’s Recent Take on the Cumulative Expert Standard
By Dominique Savinelli and Jennifer Cecil

Recently, the Missouri Supreme Court in Shallow v. Follwell affirmed its permissive view of cumulative standard for experts. Put simply, a Missouri court will not exclude multiple experts who opine on a key issue based on cumulativeness alone. [Continue Reading]

Third Circuit Holds That Buyer’s Remorse is Insufficient to Establish Economic Injury
By Natalie Holden

This month the Third Circuit issued a decision shedding light on an issue facing many courts today: does an individual have standing to sue on the grounds that she purchased a product that, in other contexts has been found to potentially cause cancer, when the plaintiff has not actually suffered any injury other than an alleged economic injury of purchase regret? [Continue Reading]

Toxic Tort Monitor Archive
July 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]

As we previously reported, major changes are going into effect tomorrow concerning California’s Safe Drinking Water and Toxic Enforcement Act, known as Proposition 65. This law requires businesses to notify Californians about significant amounts of chemicals in products in their homes or workplaces, that are released into the environment, or that are present at certain public locations. On August 30, new regulations go into effect that impact the obligations of businesses in order to comply with this law. For more details, see our prior post on this topic, and do not hesitate to reach out to us to help guide you through the Prop 65 changes and how they impact your business.

Toxic Tort Monitor

July 25, 2018 | Editor: Jen Dlugosz | Assistant Editor: Natalie Holden
New Developments
Delaware Supreme Court holds that Both Manufacturers and Employers can be Liable for Take-Home Exposure
By Jackson Otto

In Ramsey v. Georgia Southern University Advanced Development Center, et al., C.A. No. N14C-01-287 ASB, Delaware’s Supreme Court reversed the decision of the Superior Court granting summary judgment to manufacturers of asbestos-containing products in a take-home exposure case. Plaintiffs alleged that Elizabeth Ramsey, wife of Robert Ramsey, was the person who did the family’s laundry and regularly washed her husband’s asbestos covered uniform. Mrs. Ramsey died from lung cancer in 2015. [Continue Reading]

Arizona Affirms that Employers Owe No Duty of Care to Nonemployees
By Natalie Holden and Anna Choi

In its recent decision, the Arizona Supreme Court affirmed the trial court’s grant of summary judgment for defendant Reynolds Metal Company (“Reynolds”), holding that under the State’s laws an employer owed no duty of care to protect an employee’s family from secondary asbestos exposure. [Continue Reading]

Toxic Tort Monitor Archive
June 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

 

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

February 12, 2018 | Editor: Jen Dlugosz | Assistant Editors: Anne McLeod and Natalie Holden
New Developments
Which Came First: Subject Matter or Personal Jurisdiction?
By Mary Kate Mullen

Two recent Eastern District of Missouri cases examined the same issue, yet the court reached opposite results. In Lewis v. Johnson & Johnson and Jinright v. Johnson & Johnson, the court considered whether subject matter jurisdiction or personal jurisdiction should be decided first. [Continue Reading]

Fifth Circuit Sets Bright Line Rule for Timing Requirement Under Federal Officer Removal Statute
By Tierra Jones

In January 2018, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit vacated a district court’s remand of an asbestos case to state court for being untimely, based on a federal officer removal statute, 28 U.S.C § 1442 (“Statute”). The Court of Appeals found that the Statute allows for removal of a case within 30 days after the date a defendant received the transcript of an oral deposition providing a basis for removal, as opposed to the date on which the relevant deposition testimony was taken. [Continue Reading]

An Analysis of the Pennsylvania Fair Share Act and its Application to Asbestos Litigation, in Light of the Recent Ruling in Roverano v. John Crane, Inc.
By Theresa Mullineaux

In December, the Pennsylvania Superior Court ruled that the Fair Share Act applies to asbestos litigation, meaning that defendants are only responsible for the percent they are found liable. Prior to the enactment of the Fair Share Act, a defendant found liable could be on the hook for the entire verdict. [Continue Reading]

Upcoming Events
DRI – Toxic Torts and Environmental Law
March 1-2, 2018
Nashville, TN

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

Toxic Tort Monitor Archive
January 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]

environment chemicalsOn December 6 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice indicating the approval of amendments to Proposition 65’s “clear and reasonable warnings” regulations. OEHHA issued these amendments to clarify and correct certain sections of the significant new regulations going into effect August 30, 2018 that will change how parties in the supply chain for consumer products must warn their customers.

Under the Proposition 65 regulations, a manufacturer, distributor, or retailer of a consumer product sold in California must label the product with a clear and reasonable warning if the product contains one or more chemicals identified by OEHHA as causing cancer, or birth defects or other reproductive harm. Parties in the chain of distribution who fail to provide such warnings may become targets of State enforcement, or private lawsuits for penalties, injunctive relief, and attorneys’ fees. OEHHA has provided “safe harbor” warning language to be used in labeling.

Continue Reading on Husch Blackwell’s Food & Ag Law Insights.

Product Liability Monitor

June 9, 2017
New Developments
Lung Cancer Without Asbestosis? The Effects of Smoking
By Mark Zellmer

In the medical and scientific literature, a finding of asbestosis is clear evidence that asbestos at least contributed to cause a person’s lung cancer. Many medical experts regard a finding of asbestosis as essential to any finding that asbestos caused any lung cancer. Other experts look for sufficient exposure to cause asbestosis, even if not evident from radiology or pathology. Still others take a position contrary to both views. [Continue Reading]

Defend Trade Secrets Act: Protecting Product Manufacturers and Sellers’ Confidential Information
By Dan Jaffe

Manufacturers and sellers of products can use the Defend Trade Secrets Act (“DTSA”) to effectively protect their trade secrets. The DTSA was enacted on May 11, 2016, extending the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831, et seq.). DTSA creates a federal civil cause of action for trade secret misappropriation whereby “[a]n owner of a trade secret that is misappropriated may bring a civil action . . . if the trade secret is related to a product or service used in or intended for use in, interstate or foreign commerce.” [Continue Reading]

Protective Orders in Product Cases
By Alan Hoffman

Discovery in product liability cases often involves inquiry into and disclosure of a firm’s confidential internal product information and documents not available to competitors or the public that it has a legitimate interest in protecting. Plaintiffs frequently serve broad brush stroke discovery in an effort to avoid in missing documents, information and witnesses that might prove relevant to prosecuting their claims. Defense counsel must act quickly and effectively to defend their clients’ valid interests, and seek to limit the scope of discovery as much as possible to avoid costly and burdensome discovery disruptive to their clients’ normal course of business. [Continue Reading]

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Technology, Manufacturing & Transportation
Product Liability Practice

Manufacturers work hard to develop material goods and product designs that are high-quality, safe and durable. We understand your commitment to excellence and commit ourselves to defending you against product liability allegations. Husch Blackwell’s Product Liability team has insight into your industry-specific challenges. [More information]

Product Liability Monitor Archive
May 2017