Segal McCambridge Legal Blog

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August 24, 2011

New York court: asbestos defendant loses on change of venue motion

In a recent opinion out of the New York County Supreme Court, Justice Sherry Klein Heitler found that a defendant in an asbestos case, Treadwell Corp., provided insufficient explanation for why it waited for almost a year before seeking a of change venue, nor did it present sufficient evidence to merit such a change.

Plaintiff, Linda A. Hussain, filed suit against numerous companies whose conduct allegedly exposed Joseph C. Lang to asbestos, resulting in his death. Mr. Lang’s alleged exposures occurred outside of New York City during his career as a bricklayer at various steel plants in upstate New York.

As a result of the upstate exposures and lack of connection to New York City, Treadwell moved for a change of venue, arguing that New York County was not the proper venue. Justice Heitler found that the doctrine of laches prevented Treadwell from prevailing on its motion. Justice Heitler said that by April 2010, Treadwell knew the decedent suffered no exposure to asbestos in any of New York’s five boroughs but that it offered no “cogent reason” for the delay in filing the motion until March 2011 in seeking a change of venue.

Posted By:
August 23, 2011

Vermont Supreme Court holds causation evidence insufficient in benzene exposure case

On August 5, 2011, the Vermont Supreme Court affirmed the grant of summary judgment to Goodyear Tire & Rubber Company, holding that the plaintiff’s evidence that exposure to benzene allegedly caused his cancer was insufficient to get to the jury.

Plaintiff was diagnosed with non-Hodgkin’s lymphoma which he attributed to benzene exposure that allegedly occurred between 1968 and 1973 while he was a teenager playing on a baseball field on the grounds of the former Goodyear rubber manufacturing plant. That plant was in aoperation for approximately 50 years (1936-1986) in Windsor, Vermont. Plaintiff sued, alleging that the field itself was polluted and that there was a “gully” in the outfield that transported foul-smelling and oily stormwater discharge away from the manufacturing plant. Plaintiff claimed that the discharge carried benzene from the plant through the field and that his exposure to the benzene caused his cancer. There was no evidence that Goodyear used benzene in the plant's manufacturing process, but the chemical is contained in petroleum products that were used at the plant.

Defendants moved for summary judgment. The lower court concluded that plaintiff was not entitled to present his case to a jury because he had provided insufficient evidence to support an inference that he had been exposed to benzene in any amount, let alone an amount that could have caused his illness, nor sufficient expert testimony sufficient to eliminate other potential causes of his disease. On appeal, plaintiff argued that his circumstantial evidence of causation was sufficient to present his case to the jury.

The Vermont Supreme Court affirmed the grant of summary judgment. Stating in part:

In sum, plaintiff proffered evidence indicating that, as a teenager some thirty-five years earlier, he frequently played on a field adjoining the Goodyear plant. A gully that ran across the field may have contained water contaminated by petroleum products containing benzene. Benzene has been associated with non-Hodgkins lymphoma, a general category of cancer under which plaintiff's subtype falls. Plaintiff's lymphoma was not caused by an immunodeficiency disorder, a known cause of that type of lymphoma.

Assuming that we accept all of this evidence as true, it falls well short of what plaintiff would be required to show in order to prevail in a jury trial. Indeed, if a jury were to find in favor of plaintiff on the evidence relied upon by plaintiff, we would have to overturn the verdict. In the end, plaintiff's suspicion that his cancer was caused by exposure to benzene on the Goodyear ballfield when he was a teenager is purely speculative. As plaintiff's own expert acknowledged, there is no way to know whether any benzene-containing product actually contaminated the ballfield. It is possible, of course. Although benzene itself was not used at the plant, plant operations entailed the use of petroleum products, including gasoline, that contain benzene. But even if we were to assume that benzene-containing products made their way into the gully and through the field, there is no evidence indicating the amount or concentration of benzene that was present. Nor is there any evidence indicating plaintiff's level of exposure to any benzene that may have been present on the field. Nor is plaintiff able to point to studies indicating a risk of cancer posed by exposure to limited amounts of benzene from petroleum products in an outside environment. Putting aside plaintiff's failure to demonstrate the presence of benzene in the field, a jury could only wildly speculate on the level of plaintiff's exposure to any such benzene and on the relationship between any such exposure and plaintiff's disease.

The Vermont Supreme Court also dealt with a side issue of alleged spoliation. Specifically:

Finally, we address the issue of spoliation.  Without citing any case law or pointing to anything in the record to support his vague accusations, plaintiff suggests that Goodyear was obligated to keep records of its release of contaminants from the plant but either failed to do so or destroyed any records that were kept, making it virtually impossible for him to prove his case.  Plaintiff fails to cite a specific legal basis for the obligation he claims Goodyear had to keep records.  Nor does he cite any evidence of spoliation or note any extensive attempt on his part to discover Goodyear's past records.  Under these circumstances, we find unavailing plaintiff's unsupported argument that Goodyear's lack of records should result in an inference "favorable to the plaintiff"—presumably that benzene made its way from the plant to the ballfield at a level of concentration sufficient to cause plaintiff's illness.

The entire opinion can be found online at Blanchard v. Goodyear Tire & Rubber Co., No. 2010-250 (Vt. 8/5/11).

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Class action suit filed against Indiana State Fair for stage collapse

From the Indianapolis Star

Law firm sues State Fair on behalf of all stage collapse victims

By Carrie Ritchie

August 23, 2011

An Indianapolis law firm has filed a class action lawsuit on behalf of all victims of the Indiana State Fair stage collapse. Cohen and Malad claims in the lawsuit, which was filed Monday in Marion Superior Court, that the State of Indiana and companies who were hired to set up the stage were negligent and didn't ensure that the stage was safe. It also claims there were design and manufacturing flaws in parts that held up the stage's roof.

The stage collapsed Aug. 13 before Sugarland was about to perform.

In a press release issued today, the law firm says it will donate its services so more of the damages can go to victims.

Several victims, including the families of three people who died in the accident, have already sued or say they intend to sue.

Posted By:
August 22, 2011

Seventh Circuit affirms denial of certification of class action

From Point of

“A must-read landmark decision from Judge Easterbrook in Aqua Dots Product Liability Litigation. The Chinese manufacturer of the Aqua Dots toy used the wrong adhesive in the product process; when swallowed, the adhesive metabolized into gamma-Hydroxybutyric acid, i.e., GHB, the so-called date-rape drug, with predictably adverse effects for the small children who did so.

The companies involved acted responsibly when they discovered the problem, and recalled the product, offering refunds and replacements.

There are of course legitimate personal injury claims that stem from a defective product like this. But there were also class actions seeking recovery for economic loss. What economic loss when the manufacturer is offering a refund or replacement? Well, that’s a problem, isn’t it, but lawyer-driven class actions often seek to free ride off of and take credit for what the manufacturer is already doing for the sake of justifying a large attorneys’ fee: the attorneys in the similarly free-riding Mattel Lead Paint settlement asked for $12.9 million.

This will not fly in the Seventh Circuit now: “the district court should have relied on the text of Rule 23(a)(4), which says that a court may certify a class action only if ‘the representative parties will fairly and adequately protect the interests of the class.’ Plaintiffs want relief that duplicates a remedy that most buyers already have received, and that remains available to all members of the putative class. A representative who proposes that high transaction costs (notice and attorneys’ fees) be incurred at the class members’ expense to obtain a refund that already is on offer is not adequately protecting the class members’ interests.” It is good to see a court recognize that Rule 23(a)(4)’s adequacy requirement forbids class representatives from incurring socially wasteful litigation costs for the benefit of their attorneys at the expense of the class they represent. This will be an especially important principle in merger-and-acquisition strike suits.”

The Seventh Circuit decision can be found here

Posted By:
August 18, 2011

IBJ: Damage cap limits state’s potential losses from concert tragedy

From the Indianapolis Business Journal

Damage cap limits state’s potential losses from concert tragedy

Scott Olson
August 18, 2011

Total damages the Indiana State Fair could pay victims of last Saturday’s concert tragedy would be capped at $5 million—an amount personal-injury lawyers say is far too low for the injuries and deaths involved.

Because of a state law that limits individual damage claims against the state to $700,000 and overall claims to $5 million per event, several other entities besides the state fair might become targets of negligence lawsuits, legal experts say. They could include the designer and builder of the stage or even the promoter of the concert, according to lawyers.

"I think there will probably be a large number of defendants listed, just because there's a limited pot of money," said local defense lawyer Tom Schultz.

Saturday night's accident happened when a wind gust estimated at 60 to 70 mph toppled the roof of the stage and the metal scaffolding holding lights and other equipment. The stage collapsed onto a crowd of concertgoers awaiting a show by the country act Sugarland at the fair’s grandstand. Five people died and more than four dozen were injured, some critically.

Several people are still hospitalized, including at least two victims with brain injuries.

Litigation arising from the deadly accident is likely as several local attorneys already have been contacted by family members considering their legal options.

Dan Chamberlain, a partner at the Indianapolis personal-injury firm of Doehrman Chamberlain, said his firm could file suit on behalf of one victim within the next week.

"You've got 50 people injured, five who have been killed, and you've got $5 million in coverage," Chamberlain said. "It's nowhere close to fairly and adequately compensating the families."

It remains unclear whether anyone had inspected the concert stage that toppled over, or if anyone was supposed to do so.

Fair officials said they have hired New York engineering firm Thornton Tomasetti Inc. to investigate the accident. The firm was involved in a similar investigation of the 2007 collapse of the Interstate 35 bridge over the Mississippi River in Minneapolis.

Indianapolis lawyer Mark Ladendorf, who expects to represent at least two families of the victims, said most firms will launch their own investigations.

"We're going to have to get answers for our clients," he said. "We succinctly can't rely on what the government is going to tell us and what someone hired by the government will tell us."

Under the Indiana Tort Claims Act, lawyers must notify the state entity they intend to sue within 270 days of the accident.

State fair spokesman Andy Klotz said the fair is self insured against such lawsuits under the Indiana State Tort Claims Act.

He acknowledged to WISH-TV Channel 8 on Wednesday that the fair didn't follow its own severe weather procedures by failing to inform concertgoers that the National Weather Service had issued a severe thunderstorm warning for the area.

Indianapolis meteorologist Paul Poteet told WXIN Fox 59 that fair officials disregarded his warning to delay or cancel the show.

Questions about whether the fair did enough to anticipate a storm have loomed over the event. Some fairs hire their own meteorologists for just such a scenario.

The local law firm of Wilson Kehoe & Winingham LLC has retained a meteorologist and a structural engineering consultant in anticipation of representing family members, firm partner Bruce Kehoe said.

"When you have that type of catastrophe and that kind of loss, it would be unusual for folks not to want to get answers that are difficult to obtain," he said.

Schultz, the defense lawyer who is a former president of the Defense Trial Counsel of Indiana, expects numerous claims will be filed.

"The question is, is there fault somewhere?" he asked. "Right now, we don't know."

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New York City Jury Awards More Than $50 Million in 2 Asbestos Cases

New York City Jury Awards More Than $50 Million in 2 Asbestos Cases, Including $32 Million in Naval Case

A jury hearing arguments in two separate asbestos cases has awarded more than $50 million to the two plaintiffs, including a total of $32 million to a former U.S. Naval worker, Ronald Dummit, who claimed that he was exposed to asbestos-containing products associated with Crane Co. and Elliot Turbomachinery aboard seven U.S. Navy ships over an almost 20 year career. Dummit was awarded $16 million for past pain and suffering and $16 million for future pain and suffering. Crane Co. was allocated 99 percent liability while Elliot Turbomachinery was assigned the remaining 1 percent liability.

The companion case, Konstantin, resulted in a verdict of almost $20 million for mesothelioma of the tunica vaginalis (the serous mebrane which covers the testicles) allegedly resulting from exposure to drywall and joint compounds used at construction sites where the lone remaining defendant, Tishman Liquidating Corp., f/k/a Tishman Realty and Construct Co Inc., was the general contractor at both construction sites. The plaintiff claimed that Tishman had violated Section 200 of the New York Labor Law, which required the Tishman to maintain a safe workplace for construction site workers.

Judge Joan A. Madden presided over the trials of the two cases, which took place before a single jury.

The press release from the Plaintiff’s firm, Jordan and Fox can be found here

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Economist: Alternative law firms – Bargain briefs – Technology offers 50 ways to leave your lawyer

From The Economist and the August 13, 2011 print edition

Alternative law firms – gain briefs – Technology offers 50 ways to leave your lawyer
CONVENTIONAL law firms charge vast hourly fees and then hand the work to underlings while the partners play golf at clubs their clients are too poor to join. At least, that is how it seems to many clients, whose irritation at being overcharged turned to fury during the recession.

Some clients are switching to unconventional law firms, which claim to offer equally good lawyering for much less money. Take Clearspire. The firm's 20 or so lawyers work mostly from home, collaborating on a multi-million-dollar technology platform that mimics a virtual office. A lawyer checking in on a colleague automatically sees a picture of her on the phone when she is, in fact, on the phone. Clients use the platform too, commenting on and even changing their own documents as they are being drawn up. Conventional lawyers are far less open.

It is more than a decade since the internet made book-buying cheaper and more convenient. If technology now helps cut gargantuan legal bills in America and elsewhere, it will be better late than never.

The entire article can be found here

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RAND: Links Between Asbestos Bankruptcy Trusts, Tort Cases Examined

From The Rand Corporation

Thursday August 18, 2011

A new study by the RAND Corporation explores the way that asbestos bankruptcy trusts—created to compensate people injured by the mineral—may be influencing tort cases.

The study finds that the current way that the trusts and the tort cases are linked together may result in payments that are not consistent with the basic principles of the tort liability system.

Researchers say that, in some cases, the trusts may allow some plaintiffs to receive more compensation than if all of the companies involved in asbestos litigation had remained financially solvent. In addition, the study finds that payments by defendants that remain solvent might not be fully adjusted to account for the payments available from the trusts.

“Asbestos-related litigation is expected to continue for some time,” said Lloyd Dixon, lead author of the study and a senior economist with RAND, a nonprofit research organization. “Both plaintiffs and the defendants that remain solvent have a great deal at stake with regard to how payments from trusts enter into the determination of injury awards.”

Asbestos litigation in the United States began in the 1970s and grew rapidly. As payments for injuries mounted, many of the primary asbestos defendants declared bankruptcy, leaving behind personal injury trusts that pay future asbestos claims. During the past three decades, 56 asbestos personal injury trusts have been established; the largest 26 of these paid $10.9 billion to settle 2.4 million claims through 2008.

Over the past 10 years, payments by the asbestos bankruptcy trusts have played an increasing role in compensation for asbestos injuries, but there is no standard system to coordinate payments from trusts and lawsuits. The RAND study examines how the asbestos trusts may influence the tort case and how trust payments may be factored into tort awards in different states.

Researchers selected six states to examine closely, most of them with high numbers of asbestos cases: California, Illinois, New York, Pennsylvania, Texas and West Virginia. The statutory laws and court procedures vary considerably across the states examined.

Dixon, who wrote the study with Geoffrey McGovern, an associate behavioral/social scientist at RAND, said the potential effects of the trusts vary across states, depending on the type of legal principles used to determine liability, as well as court rules and procedures. A state’s liability standard determines who can be sued and for what share of the total harm.

Researchers say the key to determining how trusts affect compensation in asbestos lawsuits is whether evidence is developed about a plaintiff’s exposure to the asbestos produced or used by the bankrupt companies. If this sort of information is developed, then a plaintiff’s compensation will not be inflated and payments made by the solvent defendants will be adjusted to reflect compensation available from the trusts.

When such information is not developed, plaintiffs in some circumstances can recover, in effect, once for their injuries in the tort system and then again from asbestos trusts. Under some circumstances, solvent defendants may be required to pay more than their share of the harm.

“The development of evidence about a plaintiff’s exposure to the products and practices of the bankrupt firms is an important determinant of the effect of the trusts on the total plaintiff compensation and payments by the remaining solvent defendants,” Dixon said. “The creation of the trusts poses a new challenge to the tort system and courts have responded in very different ways.”

Researchers say an increase in total compensation would benefit current plaintiffs, but reduce the trust resources available to future plaintiffs. This reduction in trust resources is particularly of concern to plaintiffs who were exposed only to the products and practices of bankrupt companies, and are thus solely reliant on the trusts for compensation.

The study, “Asbestos Bankruptcy Trusts and Tort Compensation,” can be found at

Research for the study was funded by the RAND Institute for Civil Justice and contributions from the following asbestos defendants, insurers and others: Bondex International; Coalition for Litigation Justice; Crane Company; Dow Chemical Company; E.I. Dupont De Nemours and Company; Exxon Mobil Corporation; Garrison Litigation Management Group; General Electric Company; Georgia-Pacific; The Hartford; Herzfeld & Rubin; Owens-Illinois General; Saint-Gobain Corporation; Swanson, Martin & Bell; and the U.S. Chamber of Commerce.

The RAND Institute for Civil Justice helps make the civil justice system more efficient and equitable by supplying government leaders, private decision-makers and the public with the results of objective, empirically based, analytic research.

Here is a link to the study, “Asbestos Bankruptcy Trusts and Tort Compensation”

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August 17, 2011

InsideCounsel: Cargill faces salmonella lawsuit

Cargill faces salmonella lawsuit 

Meat processor Cargill Inc. is facing the first lawsuit tied to dozens of reported sicknesses from turkey products contaminated with a strain of salmonella that is resistant to many antibiotics.

Cargill has recalled 36 million pounds of fresh and frozen ground turkey products this month. The recall is one of the largest meat recalls in history, according the Los Angeles Times. More than 100 people in 31 states have been infected by the salmonella strain.

The lawsuit, which a family filed Monday in a district court in Oregon, alleges that Cargill is liable for the illness and hospitalization of a 10-month-old girl who ate spaghetti and meatballs made from the company's ground turkey.

Posted By:
August 9, 2011

Segal McCambridge client, TIN, Inc. prevails in Fifth Circuit Court of Appeals in commercial case

Our news release “Major Win on Appeal for Client TIN, Inc. in Commercial Dispute” can be found here

A copy of the opinion can be found here

The audio recording from the oral argument can be found here (Windows Media) has a post on this opinion here has the opinion here

Construction Claims Monthly has a post about the case here