Segal McCambridge Legal Blog

In NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, ET AL, v. STANDARD FUSEE CORPORATION, (No. 49S04-1006-CV-318, December 29, 2010), a unanimous Indiana Supreme Court found in favor of several insurance companies in a choice of law issue involving an environmental coverage matter. Specifically, the Court held:

Insurance companies question whether they have a duty to defend an insured in environmental remediation proceedings under policies alleged to cover risks in Indiana and California. Predicate to answering that question is determining whether the law governing the policies‟ interpretation is "site-specific" (whereby Indiana law governs the policies‟ interpretation with respect to the Indiana site and California law with respect to the California site) as held by the Court of Appeals or "uniform" (whereby a single state‟s law governs) as argued by both parties. But while agreeing that the interpretation should be uniform, the insurance companies argue that Maryland law applies; the insured argues for Indiana law.

The uniform approach has long been Indiana law and we reaffirm it here. Under that approach, we find that Maryland is the state with the most intimate contacts to the facts and that its law should therefore be applied to resolve this dispute.

As of December 29, 2010, the Indiana Supreme Court opinion can be found here

On December 9, 2010, the Eighth Circuit Court of Appeals upheld summary judgment in favor of 2 defendants.

As stated by the Eighth Circuit:

Rene Junk brought this action in state court on behalf of her son, Tyler (T.J.) Junk, against Terminix International Company (Terminix), Dow Chemical Company and Dow AgroSciences LLC (collectively Dow), and Terminix employee Jim Breneman. Junk alleged that T.J.’s multiple medical conditions were caused by exposure to Dursban, an insecticide manufactured by Dow, distributed by Terminix, and applied to the Junk household by Breneman and other Terminix employees. After Dow removed the case to federal district court, Junk moved to remand for lack of diversity since Junk and defendant Breneman were both citizens of Iowa. The district court denied the motion after concluding that Breneman had been fraudulently joined to evade diversity. Junk’s claims against Breneman were subsequently dismissed, and summary judgment was entered for Dow and Terminix. Junk appeals. We affirm the judgment in favor of Dow and Terminix but reverse in respect to the claim against Breneman.

The Eighth Circuit’s opinion can be found here

On December 9, 2010, the Mississippi Supreme Court overturned a $1.86 million Copiah County, Mississippi jury verdict in favor of a welder who claimed welding rods manufactured by The Lincoln Electric Co. and ESAB Group Inc. caused his magnesium-related neurological disease

As stated by the Mississippi Supreme Court:
This case involves a welder's claim of product liability and failure to warn against Lincoln Electric Company (Lincoln) and the ESAB Group, Inc. (ESAB), manufacturers of welding rods ("Defendants"), for exposure to harmful welding fumes that resulted in his eventual diagnosis of manganism, a neurological disease caused by high exposure to manganese. The plaintiff, Stanley McLemore, alleged that he had used the Defendants' rods, which contained manganese, to weld materials together.
McLemore filed a complaint in the Circuit Court of Copiah County on November 14, 2005. An amended complaint followed on March 3, 2006. In April 2007, the Defendants filed a motion for summary judgment, claiming that McLemore had filed suit outside the three-year statute of limitations. The trial court denied the motion for summary judgment. The Defendants also filed a motion to exclude the expert testimony of Dr. Michael Swash, which the trial court denied.
The matter proceeded to trial on November 6, 2008. A jury returned a verdict in favor of McLemore finding the Defendants liable and awarding McLemore $1,855,000. The Defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. Following the trial court's denial of the motions, the Defendants filed a notice of appeal raising three issues:
I. Whether the trial court improperly admitted McLemore's medical expert's diagnosis.
II. Whether McLemore proved that each Defendant's products were a substantial factor in causing his injury.
III. Whether McLemore's claims were barred by the statute of limitations, and whether the form of the verdict misstated the relevant question on the issue of statute of limitations.

Finding the issue of the statute of limitations to be dispositive, this Court reverses and renders the trial court judgment enforcing the verdict of the jury.

The Mississippi Supreme Court decision of 12/9/10 can be found here

From the Madison/St.Clair Record

The Madison Record reports “ATRA: Madison County and St. Clair counties’ asbestos dockets earn spot on ‘Watch List’” and “Madison County inching closer to ‘Hellhole’ status ”

From the articles:

The number of asbestos trial slots in Madison County has climbed from 424 in 2009, to 490 in 2010, and to 520 in 2011. Madison County is on pace to have more than 800 asbestos cases filings this year alone. As of Oct. 27, the number of asbestos case filings had already reached 650 in Madison County. Only about 11 percent of the asbestos cases have any connection to Madison County.

In 2009, there were four asbestos cases filed in St. Clair County. As of Dec. 1, there were 53 new asbestos suits filed in St. Clair. A 1200% increase in filings.

In a case involving the interpretation of the Indiana Construction Statute of Repose (Indiana Code section 32-30-1-5(d), aka “CSOR”) and the impact of Marion County, Indiana’s Mass Tort Local Rules, the Indiana Court of Appeals affirmed summary judgment to a contractor, holding that Plaintiff’s claim was barred by the CSOR.

In affirming the grant of summary judgment, the Court of Appeals analyzed the Marion County Mass Tort Rules at length and their “uniqueness” in Indiana litigation.

The GILL vs. EVANSVILLE SHEET METAL WORKS, INC., No. 49A05-0912-CV-699 decision can be found here

The Center for Disease Control and Prevention (CDC) estimates that each year roughly 1 out of 6 Americans (or 48 million people) gets sick, 128,000 are hospitalized, and 3,000 die from foodborne disease

The CDC warns nearly fifty million Americans are sickened from food-borne illnesses.

NBC News reports experts estimate one in six Americans gets sick from a food-borne illness, and 3,000 die, every year. 128,000 are hospitalized from food-borne illnesses annually.

Norovirus is behind a majority of illnesses when there is a known cause, but nearly eighty percent of bugs stem from unknown causes. Salmonella and e-coli are also very common.

The researchers did not look at how people got sick — whether it was poor food preparation or tainted meat or vegetables.

A bill to overhaul the food safety system is before Congress right now. Experts at the Food and Drug Administration say the new legislation would give them the tools they need to modernize the food safety program.

For more information visit: www.cdc.gov/foodborneburden.

From CNN.com
Boston, MA – A Boston jury, which earlier in the week awarded $71 million in compensatory damages against the manufacturer of Newport cigarettes in a wrongful death case, ordered that the defendant, Lorillard, Inc. (“Lorillard”), must pay $81 million in punitive damages. The Estate of Marie Evans, a 40 year smoker who died in 2002 at age 54 after suffering from small cell lung cancer. Jurors listened to a video deposition from Evans recorded three weeks before her death in 2002 in which she described receiving free cigarettes from Lorillard when she was a child.

During the punitive damages hearing, Lorillard argued that it had rectified any issues related to its previous marketing of Newport cigarettes. Furthermore, Lorillard assured the jurors that it no longer advertises its product on the radio or television and acknowledged that cigarettes do, in fact, cause cancer. Lorillard asserted that it should not be punished for moving in the right direction. The Plaintiff contended that punitive damages were necessary to ensure that the reprehensible marketing strategy previously employed by Lorillard never occurs again. The jury had deliberated for approximately two hours, after listening to expert financial and forensic testimony, and determined that Lorillard’s practices were wanton and reckless, and awarded Plaintiff $81 million in punitive damages.

This is one of the largest ever individual punitive damages awards in the United States. Additionally, the $81 million in punitive damages, in conjunction with the $71 million in compensatory damages previously awarded, makes this one of the largest individual verdicts ever in the United States against a tobacco company.

The CNN.com article can be found here

The Blog post from December 15, 2010 is below
From the Boston Globe:

In a groundbreaking decision, a Suffolk Superior Court jury yesterday found a tobacco company liable for the death of a Roxbury woman who said that, at age 9, she received free samples of Newport cigarettes in a targeted marketing campaign.

The jury awarded a judgment of $50 million to the estate of Marie Evans, who, before she died of lung cancer in 2002, testified that she first received free Newports as a child, while living in the Orchard Park housing development in Boston. She smoked until her death at age 54.

Her only son was awarded $21 million.

Lorillard, which denied it targeted youth with free cigarettes, plans to appeal.

Legal specialists describe the verdict as the first time a jury has found a cigarette maker liable for marketing its product by handing out free samples.

The verdict sets up a second phase of deliberations in which the jury could also award Evans's estate and family punitive damages, which often are a multiple of the amounts awarded in the compensatory phase.

The ruling came after six days of deliberations during which the 14-member jury said it had hit an impasse. After resuming deliberations the jury found Lorillard liable on several related accusations, including that the company was negligent in marketing Newports to children such as Evans and failing to warn her of the health risks; that it breached its warranty by distributing a dangerous product; and acted in a malicious, willful, wanton manner.

The jury put 70 percent of the blame for her death on Lorillard, and 30 percent on her. That determination could play a role in Lorillard's appeal.

The entire Boston Globe story is online as of 12/15/10 here

Effective January 1, 2011 and applicable to cases filed after that date, courts in Illinois will be allowed to consider the testimony of a party given at a “discovery” deposition rather than preserved at an “evidence” deposition.

As the Committee Comments state:

The Committee was prompted to examine this issue by the decision in Berry v. American Standard, Inc., 382 Ill. App. 3d 895 (5th Dist. 2008). The Committee believes that a trial court should have the discretion under subparagraph (a)(5) to permit the use of a party's discovery deposition at trial. It appears that there may be rare, but compelling, circumstances under which a party's discovery deposition should be permitted to be used. In the Committee's view, Berry presents such circumstances. Given that in most cases counsel will have the opportunity to preserve a party's testimony via an evidence deposition, it is expected that the circumstances that would justify use of a discovery deposition would be extremely limited. This amendment applies to cases filed on or after the effective date.

The amended rule 212 can be found here

The Berry Appellate decision can be found here

The Madison County Record reports that Madison County, Illinois Chief Judge Ann Callis responds to the ATRA report putting Madison County on the “Watch List”. The entire article can be found here

LegalNewsline.com reports that Philly is No. 1 ‘judicial hellhole,’ group says

The Southeast Texas Record reports Texas Gulf Coast courts tough place for defendants, ‘Hellhole’ report claims

The West Virginia Record article on its own third place in the report can be found here Reaction in West Virginia can be found here

From LegalNewsline.com

PHILADELPHIA (Legal Newsline) – Local law firms seem to make up the majority of Philadelphia’s asbestos docket at the Complex Litigation Center, but some regional and national firms also have a presence in the city.

A list of all trials scheduled for 2011 shows only 10 different law firms will be trying cases in Philadelphia, where a process called “reverse bifurcation” is used. A jury decides damages in the first phase of the trial, and then determines if the defendant is liable in the second part.

Among the big-name law firms who have trials scheduled next year are the Law Offices of Peter Angelos, Baron & Budd and Weitz & Luxenberg.

Forty-three trials are set to take place. In Philadelphia, plaintiffs are grouped for trial by their law firm and their alleged illnesses.

“It’s usually pretty much the same attorneys,” said Stanley Thompson, executive director of the CLC. “It’s the same players.”

As of Oct. 3, there were 631 active asbestos cases at the CLC, which was designed to solve a backlog of more than 7,000 cases. Thompson says the amount of lawsuits filed by these attorneys stays steady at 200-250 every year.

The full LegalNewsline.com article can be found here

The Southeast Texas Record article can be found here