Segal McCambridge Legal Blog

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June 28, 2012

Segal McCambridge Achieves Two Defense Verdicts In Two Different States In One Week

Segal McCambridge Achieves Two Wrongful Death Defense Verdicts In One Week

Two unrelated cases, in two different states, in different areas of the law, both involving charges of wrongful death, recently ended within days of each other with the same result: the jury siding completely with the defense. In both cases, the Segal McCambridge team led its clients through to victory.

The first of the two cases was tried in Illinois. This case involved issues of professional liability in the medical malpractice area. A 76-year-old patient underwent hip revision surgery (replacement of a previously installed artificial hip) at Chicago’s Weiss Memorial Hospital. The patient passed away approximately 48 hours after the surgery was complete. His family brought suit against the Certified Registered Nurse Anesthetist (CRNA) and the hospital, on the theory that the CRNA was an apparent agent of the hospital. The plaintiffs sought $10.6M.

Trial began June 8, 2012, in the courtroom of Judge Thomas Hogan, and concluded June 20. Robert O’Malley and Kimberly Kayiwa of Segal McCambridge represented Weiss Memorial Hospital. The jury delivered a defense verdict after deliberating for less than two hours.

“It is always a difficult road to bring a matter of this complexity to verdict in Cook County,” says Mr. O’Malley. “I attribute our success to the dedication of our trial team, the clarity of our defense message and the good fortune of empaneling an attentive and thoughtful jury.”

The second case was tried in Texas. This case involved products liability issues in the death of a young man who died retrieving golf balls from a water hazard. He worked for a company that removes golf balls from water hazards and re-sells them as used equipment. To retrieve the balls, he used a mechanical breathing device, called a “hookah.” Our client, Gardner Denver, manufactured a compressor that was a component of the device (although almost certainly not an original component).

On a June day in 2009, the young man was found dead in the water. A medical examination concluded that his death was caused by an elevated level of carbon monoxide in his body.

His survivors sued, alleging that the component parts were defective and that each of the three product manufacturers, Gardner Denver and two other companies, had failed to warn. They sought nearly $13M, $6.7M of which represented punitive damages.

But there were other issues with the hookah. It had been heavily used, and parts had worn out and been replaced. As stated before, the Gardner Denver compressor was almost certainly not original. The Honda motor had been replaced shortly before the accident and had been installed improperly. The botched configuration shot exhaust into the compressor.

After a lightning-paced four-and-a-half days of trial in Dallas, the case went to the jury. In their verdict, announced June 25, they found the company’s boss, Dickie Seeders of A Plus Golf Ball Retrieval, 77% responsible and the decedent 23% responsible. No fault was assigned to any of the three manufacturers.

Our team for Gardner Denver consisted of attorneys Timothy Krippner, John LaBoon, Christina Denmark and J.R. Skrabanek, and paralegal April Mitchell.

“We are extremely pleased that the jury confirmed our view that Gardner Denver bore no responsibility for Mr. Logan’s tragic death,” says Mr. Krippner. “We wish the best for the Logan family.”

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June 25, 2012

University of Pennsylvania surgeon makes headway against a rare lung cancer

Penn surgeon makes headway against a rare lung cancer
June 24, 2012|By Marie McCullough, Inquirer Staff Writer

During a grueling operation early last year, when the intractable five-pound tumor seemed to mock his skills, thoracic surgeon Joseph S. Friedberg felt buoyed by what he and his scrub-suited crew had already achieved.

The University of Pennsylvania team battles pleural mesothelioma, a rare, ferocious, incurable type of lung cancer.

Typically, patients die within a year of diagnosis. Yet more than two years after treatment at Penn, 27 out of 38 patients – 71 percent – were still alive, including four who had marked five years. These were advanced-stage cases, ostensibly hopeless, and they were defying the odds.

Friedberg, who was about to submit a study on those results for publication, knew there would be skepticism. The number of patients was small. And the treatment was almost as formidable as the disease. He spent up to 14 hours stripping out the cancer while preserving the patient’s lung; then residual malignant cells were zapped with laser light therapy.

He was disappointed, but not surprised, when the Annals of Thoracic Surgery demurred at publishing the study. “The reviewers said the follow-up time was too short and we were overestimating” the projected survival time, he recalled.

The only way to address that concern was to let more time elapse.

Last month, with a fuller picture, the journal published the results, which are impressive.

This story is about those results, and how the 25 members of Penn’s pleural and mesothelioma program are making remarkable progress against a dreadful disease.

It’s also about the heartbreaking inadequacy of that progress.

“I don’t particularly consider it a victory,” said Friedberg, co-director of the program. ” ‘Good’ for me would be 10 years. Every time these patients’ cancer recurs, it kills me.”

Caused by asbestos
Pleural mesothelioma is caused by exposure to asbestos, a once-ubiquitous building material. Decades after exposure, renegade cells arise in the mesothelium, a cellophane-thin membrane that lines the chest cavity, lungs, heart, and diaphragm.

By the time the classic symptom of breathlessness shows up, the cancer usually has a stranglehold, invading all surfaces and organs in the cavity.

Conventional treatments – chemotherapy, radiation, and surgery – have dismal outcomes. In the pivotal study of the only chemotherapy specifically approved for mesothelioma, 60 percent of patients did not respond. For the rest, it extended median survival just 13 weeks, to 12.1 months.

Mesothelioma has become a big specialty for liability lawyers, but with 3,000 new cases a year in the United States, it is hardly a hot research field.

Nonetheless, for more than two decades, Penn scientists have been doggedly pursuing innovations. They are combining conventional treatments with gene therapy, T-cell therapy, and the laser technology, called photodynamic therapy.

Patients come thousands of miles to Penn after exploring their options – or lack thereof.

William J. McQueen, 63, an ear-nose-and-throat doctor from San Antonio, Texas, is one of them. Because his cancer encased one lung – the typical pattern – and because he was in good overall health, specialists at several top hospitals recommended an “extrapleural pneumonectomy.”

The harrowing surgery involves removing the lung, the lining of the chest, the heart’s sac, and the diaphragm muscle, which controls breathing, then reconstructing certain tissues with high-tech fabric.

Up to 10 percent of pneumonectomy patients die of complications. The rest die of the cancer, which invariably comes roaring back, typically within months.

McQueen asked about preserving his lung but was told that would depend on the extent of his cancer – something that would be assessed on the operating table.

“I got the impression they would not take the time to strip the tumor out,” he said. “They’d go in and take the lung out. That’s what most surgeons do.”

Sparing the lung
That’s what Friedberg used to do.

Theoretically, taking the lung left minimal cancer for conventional therapies to mop up, thus lowering the chance of relapse. In reality, he could see it didn’t work. It was like uprooting a garden to get rid of weeds, only to have the weeds grow back worse than ever.

In the late 1990s, Friedberg teamed with Penn radiation oncologist Stephen Hahn, an expert in photodynamic therapy, to try it for mesothelioma.

It requires injecting the patient with a drug, a photosensitizer, that makes cancer cells ultra-sensitive to visible light. When the drug is exposed to red light, it sets off a chemical reaction that destroys the cells, damages blood vessels that feed the tumor, and activates the immune system.

The cell-killing effect only works near the surface, because red light penetrates only half an inch or less.
Regulators have approved photodynamic therapy for several cancers, but evidence that it works for mesothelioma is mixed. In the most rigorous study, published in 1997, it did not improve survival or time to recurrence.

But surgeons in that study were allowed to leave a thin layer of tumor – too much, Friedberg speculated, for the laser light to reliably penetrate.

Still, he knew that even if he cut out every speck of detectable tumor, preserving the lung would leave behind more microscopic disease than removing the organ would. So beginning in 2004, the team performed a modified pneumonectomy – removing the lung but preserving the heart sac and the diaphragm – followed by the light therapy

Then came a patient in her 80s. Taking her lung would be too risky, agreed the physicians – Friedberg, Hahn, Daniel Sterman, Keith Cengel, and Steven Albelda.

To their shock, she was back on the golf course not many months after Friedberg preserved her lung. So he preserved the next patient’s lung. And the next. With perseverance and ingenuity, he found he could save the lung no matter the extent of the tumor.

By 2008, it was clear the lung-sparing strategy was superior. The 14 patients whose lungs were removed had a median survival of only 8.4 months. But most of the 14 who kept their lungs were alive after more than two years – at least twice as long as other studies had reported for such advanced disease.

Though those with two lungs were physically better able to cope with a relapse, Friedberg believed the light therapy was playing a big role, somehow priming the immune system to keep resurgent cancer under control. “The cancer comes back more like a house cat than a tiger,” he said.

To try to prove it, the team decided to treat 24 more patients – 38 in all.

On April 19, 2011, Bill McQueen was rolled into the operating suite, a three-ring medical circus of physicians, nurses, anesthetists, laser physicists, and technicians.

Some of the photosensitizer, given intravenously two days in advance, had migrated into his healthy cells, as expected. To protect them from burning, the team covered the operating room lamps with protective filters, sewed blue surgical towels to the edges of his skin incision, and clipped the oxygen monitor to a different finger every 15 minutes. Even the tiny red light in that device could activate the sensitizer and burn his nail bed.

Friedberg spent 111/2 hours cutting out the cancer. Though it had not penetrated into the airways of the lung – it typically does not – it formed a thick, reddish rind around the organ, and mottled the chest cavity with nodules and plaques.

The volume of McQueen’s cancer, about a pint, was comparatively small. Some patients have a quart or two.

But Friedberg also had to remove a rib, two nerves, parts of the diaphragm and heart sac, and lymph nodes.

The thing that best prepared him for the arduous marathons, said the lanky 53-year-old, was being on the crew team at Penn.

“You just keep going no matter how much it hurts or how tired you are. You just have to make the commitment that you’re not going to fail [patients] that way.”

After the cancer was out, Friedberg sewed seven light detectors in strategic locations in McQueen’s chest cavity. These were connected to a computerized “dosimetry” system, enabling real-time calculations of the laser light dosage. Too little and the chemical reaction would not kill the cancer. Too much and a vital organ could be perforated, causing a fatal hemorrhage.

Next, radiation oncologist Keith Cengel took over, looking a bit sinister in black goggles and protective garb.

He poured a warmed liquid containing fat particles into McQueen’s chest while moving a fiber-optic laser around the cavity. The fat particles reflected the light, dispersing it into the recesses of the chest – and creating an eerie red glow that made McQueen’s torso seem like a magic cauldron.

Despite the care and precision, McQueen had complications. Lymphatic fluid leaked from a thoracic duct, requiring eight more hours of surgery the next day. A small stroke temporarily impaired his vision.

“But I came through it,” he said.

Indeed, within four weeks, he was playing the tourist, wandering Reading Terminal Market with his wife, Karen.

A windfall of days
In the harsh calculus of cancer, “median survival” – the point at which half the patients are still alive – is a crucial number.

The median survival for the 38 patients Friedberg’s team treated from 2004 through 2010 was 31.7 months – more than 21/2 years – even though the cancer came back in a median time of 9.6 months.

That’s a windfall of birthdays, holidays, time with loved ones.

The researchers still can’t say for sure why the treatment combination failed to delay the return of cancer, yet made it “less imminently lethal.”

Friedman points to the well-documented immune effects of photodynamic therapy. Debris from dead cancer cells signals the immune system to send scavenger cells to clean up the mess.

He believes that may act like a vaccine, preparing the immune system to strike when cancer reappears, thus curbing the explosive growth usually seen when mesothelial cancer recurs. The cancer, he says, becomes “more indolent.”

Photodynamic therapy pioneer Harvey Pass is not convinced. The New York University thoracic oncologist led several mesothelioma studies that found light therapy didn’t help.

“There may be an immune effect, but I don’t know about a more indolent form,” Pass said. “But I think Joe has the right idea. I think we ought to be saving lungs on these people. The patients are in better shape, and they can get more therapy” to fight relapses.

McQueen is now waging that fight with chemotherapy and, in a few months, radiation. He needs narcotics to manage his pain.

But he recently went hunting with his daughter, and he and his wife will soon fly cross-country for a wedding. “I’m going to do the best I can for as long as I can,” he said.

That could be the Penn team’s mantra. Researchers are now working to parse the immune effects at a molecular level, to find better photosensitizers, and to develop minimally invasive ways to deliver the laser light energy.

“I’d be happy to turn this into a chronic disease, like diabetes,” Friedberg said. “My goal for my career is to make it truly better for these patients. That’s what I want to do with the rest of my life.”

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Indiana Supreme Court reverses grant of summary judgment in asbestos case

As reported in the June 25, 2012 Indiana Lawyer

As of June 25th, 2012, a copy of the Indiana Supreme Court opinion can be found here

Indiana justices outline ‘˜improvement to real property’

For the first time, the Indiana Supreme Court addressed what constitutes an improvement to real property’? as mentioned in the construction statute of repose. In doing so, the justices reversed the trial court’s grant of a contractor’s motion for summary judgment in a wrongful death claim.

In 2007, Sharon Gill filed a complaint in Marion Superior Court against Evansville Sheet Metal Works and 18 other defendants asserting wrongful death claims. As to ESMW, she sought damages on theories of products liability and contractor negligence. Her husband worked at Aluminum Company of America in Newburgh and was allegedly exposed to and inhaled asbestos fibers during the course of his employment. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer in 2005.

ESMW allegedly worked as a contractor for Alcoa at a common worksite with Gill’s husband.

The Marion Superior Court placed the complaint on its Mass Tort Asbestos Litigation Docket and eventually granted ESMW’s motions for summary judgment on the grounds that Gill’s product liability and contractor negligence claims were barred by the product liability statute of repose and construction statute of repose, respectively. At issue Monday was only whether the construction statute of repose applied.

The Court of Appeals affirmed, finding Gill brought her claim outside the 10-year period stipulated in the statute, so her claim was barred.

Indiana courts have yet to define the meaning of improvement to real property’? as used in Indiana Code 32-30-1-5 (2004). The justices cited the statute in effect at the time of Gill’s complaint even though the statute was amended in 2005. Justice Frank Sullivan noted the court perceived no substantive difference between the former version and the current one.

Looking at how other states have handled this issue, the justices decided to take the commonsense’? approach that looks to the ordinary or plain meaning of the phrase. Whether something is an improvement to real property under the commonsense approach is a question of law, but its resolution is grounded in fact, Sullivan wrote in Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc., 49S05-1111-CV-672.

The high court held that an improvement to real property’? is an addition to or betterment of real property, that is permanent, that enhances the real property’s capital value, that involves the expenditure of labor or money, that is designed to make the property more useful or valuable, and that is not an ordinary repair.

In applying this commonsense definition, judges and lawyers should focus on these individual criteria but they should not lose sight of the fact that this is a definition grounded in commonsense,’? he wrote. The fact that a purported improvement satisfies each of these individual criteria may not be sufficient for it to be an improvement within the meaning of the CSoR if it would do violence to the plain and ordinary meaning of the term as used in the construction context.’?

In this case, ESMW failed to make a prima facie showing that its work at Alcoa constituted an improvement to real property. The justices remanded for further proceedings.

The justices also addressed the COA’s criticism of that Marion County court following its local rule allowing pre-discovery motions for summary judgment. They agreed with the COA judges that whether something is an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases, but disagreed with the conclusion that Local Rule 714 can’t be applied in this context.

Posted By:
June 7, 2012

Pennsylvania Supreme Court shoots down ‘any-exposure’ asbestos theory

From and its May 24, 2012 edition

Pa. SC shoots down ‘any-exposure’ asbestos theory


PITTSBURGH (Legal Newsline) – The Pennsylvania Supreme Court on Wednesday rejected the “any-fiber” theory of asbestos causation.

The Court, in its 53-page ruling, sided with Allegheny County Common Pleas Court Judge Robert J. Colville.

“In the present case, Judge Colville was right to be circumspect about the scientific methodology underlying the any-exposure opinion,” the state’s high court said.

“Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.”

The lawsuit underlying the appeal was selected as a test case for the admissibility of expert opinion evidence to the effect that “each and every fiber” of inhaled asbestos is a substantial contributing factor to any asbestos-related disease, including mesothelioma, a type of cancer.

In February 2005, plaintiff Charles Simikian filed a product liability action against defendants Allied Signal Inc. and Ford Motor Company, and others, alleging that his exposure to asbestos-containing friction products, such as brake linings, caused his mesothelioma.

Simikian had worked for 44 years as an automotive mechanic.

After Simikian’s death, his wife, Diana Betz, was substituted as the plaintiff.

The lawsuit was among a number of similar ones pending in the common pleas court.

Allied and Ford anticipated that the plaintiffs would rely on expert opinion that each and every exposure to asbestos — no matter how small — contributes substantially to the development of asbestos-related diseases.

This opinion often is referred to as the “any-exposure,” “any-breath” or “any-fiber” theory of legal causation.

Seeking to preclude such opinion testimony, the defendants filed global motions challenging its admissibility under the litmus of general acceptance in the relevant scientific community applicable to novel scientific evidence.

They referenced a litany of techniques used for various purposes in science, arguing that none of these — alone or in combination — supports the any-exposure theory.

More specifically, the defendants contended that the methodology underlying the any-exposure theory is “novel” and “scientifically invalid.”

Thus, they urged that the theory be deemed inadmissible at all trials of asbestos cases against them.

In its May 2006 ruling, the common pleas court — while it did not discount that a single fiber may possibly increase the risk of developing a disease — did not accept that an unquantified increase in risk could serve as proof that a defendant’s product was a substantial cause of a plaintiff’s or decedent’s disease.

In an April 2010 ruling, the state’s Superior Court ruled otherwise.

The majority regarded Colville’s review of the mechanics of Dr. John C. Maddox’s methodology, and the judge’s decision not to address the epidemiological studies, as “inapt.”

Maddox, a pathologist, was brought in by the plaintiffs as their primary causation expert.

The intermediate court also concluded that Colville had abused his discretion in ruling for the defendants.

According to the majority, the judge’s approach violated the tenet that judges are to be guided by the scientists in assessing the reliability of a scientific method, not the reverse.

As a result, the superior court sided with the plaintiffs.

Allied and Ford appealed to the state’s high court. A number of business groups and organizations, including the U.S. Chamber of Commerce, filed amicus briefs on their behalf.

Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.

Allied and Ford argued that the superior court “simply ignored” the extensive evidence, as well as the “strong logic” supporting Colville’s ruling, and “improperly substituted” its judgment for his.

On appeal, they maintained that the any-exposure opinion remains a hypothesis, or assumption.

In a 6-0 ruling, the state’s high court agreed.

“Colville spent considerable time listening to the attorneys’ arguments but was unable to discern a coherent methodology supporting the notion that every single fiber from among, potentially, millions is substantially causative of disease. Moreover, he appreciated the considerable tension between the any-exposure opinion and the axiom (manifested in myriad ways both in science and daily human experience) that the dose makes the poison,” Justice Thomas G. Saylor wrote.

“Contrary to the perspective of the superior court majority, Judge Colville was not misguided in his desire to probe how Dr. Maddox could simultaneously maintain that mesothelioma is dose-responsive and that each and every fiber among millions is substantially causative.”

Saylor continued, “Given both the controversial nature of the any-exposure opinion and its potency in asbestos litigation, Judge Colville pursued the sensible course of permitting evidentiary development so that he could make an informed assessment.”

The Court disagreed that the defendants could not address Maddox’s methodology through the testimony of risk assessors, toxicologists and epidemiologists.

“Dr. Maddox identified himself as a community hospital pathologist ‘try[ing] to present the medical literature as I understand it.’ He did not indicate, however, that his opinion was based on a particular clinical diagnosis; indeed, he expressed no familiarity whatsoever with Mr. Simikian’s individual circumstances,” Saylor wrote.

“Instead, Dr. Maddox offered a broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber above background exposure levels. In doing so, he took it upon himself to address (and discount) the range of the scientific literature, including pertinent epidemiological studies.”

The Court said Maddox’s any-exposure opinion was not “couched” in terms of a methodology or standard peculiar to the field of pathology.

“Indeed, the pathologist acknowledged that the rendition of a broad and generally applicable opinion concerning specific causation was outside the range of his usual professional activities,” Saylor wrote.

While the superior court was correct that Colville did not “embellish” his opinion with specific citations to the record, the judge’s findings and conclusions are “amply supported,” the Court said.

The Court reversed the superior court order and remanded the case “for consideration of whether there were remaining, preserved issues on appeal which were obviated by the intermediate court’s approach to the common pleas court’s ruling.”

Justice Joan Orie Melvin — who has since been suspended from the Court in the wake of charges that she allegedly used her staff to perform campaign work — did not participate in the decision.

From Legal Newsline: Reach Jessica Karmasek by email at

Posted By:
June 3, 2012

Connecticut family wins $2.4M verdict in asbestos case against the Tile Council of North America

Family wins $2.4M verdict in asbestos case

Daniel Tepfer
Updated 07:49 p.m., Wednesday, May 23, 2012
BRIDGEPORT — The family of a New Haven tile setter, who died after contracting an asbestos-related cancer, was awarded $2.4 million.

A Superior Court jury deliberated about three hours Tuesday before finding the Tile Council of North America liable in the death of Hannibal “Scottie” Saldibar and awarding his family $1.6 million. Judge Dale Radcliffe then ordered the association to pay an additional $800,000 in punitive damages.

“The jury made an informed decision based on the facts of the case,” said the Saldibar’s lawyer, Brian Kenney.

A spokesperson for the tile association couldn’t be reached for comment.

The 84-year-old Saldibar, who worked as a tile setter for 30 years, died in January 2010, nine months after being diagnosed with mesothelioma, a form of cancer connected to asbestos contact.

Although it is a trade association, Kenney said Tile Council of North America developed the asbestos-containing mortar used by tile setters for many years.

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May 23, 2012 Delaware judge disgusted with bankruptcy trust secrecy

Del. judge disgusted with bankruptcy trust secrecy

WILMINGTON, Del. (Legal Newsline) – Texas attorney Brent Coon submitted 20 claims to asbestos bankruptcy trusts on behalf of a Florida woman’s estate without the client’s new lawyers knowing, court records in Delaware show.

Those claims also painted a different picture as to how June Montgomery was exposed to asbestos. Her lawsuit, filed in Delaware against 22 companies, said her husband Arthur brought the material home from work on his clothes.

In one of her bankruptcy trust submissions, however, she claimed exposure through her employment at Samuel Ward Manufacturing in Boston. Florida law, which governed the Delaware case, allows juries to apportion percentages of liability to non-defendants.

Judge Peggy Ableman, of the New Castle County Superior Court, showed disgust during a November hearing after the claims were brought to light by Scott Barnes, an attorney with Florida firm Levin Papantonio. June’s son Brian, who represented her estate after her April 2010 death, mentioned two bankruptcy settlements to Barnes on Nov. 5, the Saturday before a trial was to begin.

“This is dishonesty at its highest level,” Ableman said. “This is a guy who got checks and never reported those to you. It affected their discovery.”

Foster Wheeler Energy Corp. had filed a motion Oct. 27 seeking disclosure of pre-trial settlements, but Barnes replied that there were none. Ableman denied the motion as moot.

More than 60 bankruptcy trusts have been created to allow former asbestos defendants pay out claims. The trust system acts independently of the civil justice system, where solvent companies are sued.

“This is really seriously egregiously bad behavior,” she said. “This is misrepresenting. This is trying to defraud.

“I don’t like that in this litigation, and it happens a lot. And I’m trying to put an end to it. This is an example of the games that are played.”

Coon’s firm had referred the Montgomerys to the Levin firm. At a deposition the day after Barnes’ email brought the bankruptcy claims to light, Brian Montgomery testified that he did not attempt to make the Levin firm and its co-counsel aware of the claims.

He also said that he had no plans to ask Coon about the status of other claims. Foster Wheeler wrote in a motion to dismiss the case that Brian Montgomery would not definitively say if Coon was still acting on behalf of the estate with his consent.

At the time of the motion, Montgomery’s estate had settled with the bankruptcy trusts of Keene, Celotex and Johns Manville. Another 17 remained pending.

Two bankruptcy claim forms indicated that June Montgomery died on April 3, 2010. The company argued that proves someone with the family had contacted Coon’s firm after the firm referred it to Levin Papantonio.

“In other words, if Brian Montgomery did not have further contact with the attorneys at Brent Coon & Associates (except, of course, to accept checks from them and deposit the same), someone representing his family or the estate must have contacted the lawyers at Brent Coon’s office to advise them that Mrs. Montgomery had died,” the motion says.

“Although it is not clear from this record who that person was, it seems reasonable to suspect that the individual worked for one of the other three law firms that have been representing the Montgomery family and estate in this litigation.”

Another inconsistency pointed out by the company involved drywall work conducted by Arthur Montgomery.

He had associated Georgia Pacific with his drywall work, but claims were submitted by Coon to United States Gypsum and National Gypsum – companies whose primary products were drywall-related, the company said.

“In other words, the representations to the bankruptcy trusts paint a much broader allegation of exposure to asbestos than either Plaintiff or Plaintiff’s counsel let on during the course of the litigation in Delaware,” the motion says.

“In an effort to obtain money from 20 other entities, Plaintiff admitted that Mrs. Montgomery was exposed to asbestos from their products. Yet Plaintiff did not share that information with Plaintiff’s own experts, likely because Dr. Legier would say that all of those exposures were substantial factors in causing Mrs. Montgomery’s disease, thereby severely undermining the claimed ‘bystander’ exposure from work Mr. Montgomery did as an electrician.”

After a February hearing before Judge John Parkins, the two sides agreed to dismiss the case. Had the plaintiff wanted to proceed, the defense would have been allowed to conduct new discovery paid for by the plaintiff.

Foster Wheeler was the lone remaining defendant that had not settled. Coon could not immediately be reached for comment.

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California Appellate court upholds summary judgment in asbestos component parts case

As of May 23, 2012 the California Court of Appeals opinion in Barker et al. v. Hennessy Industries, Inccan be found here

From the opinion:

The trial court granted summary judgment in favor of defendant and respondent Hennessy Industries, Inc. (Hennessy) on the asbestos-related wrongful death complaint filed by plaintiffs and appellants Fern Barker, James Barker, Carmen Barker and Tamara Worthen (appellants), the widow and surviving children of decedent Richard Barker (Barker). Hennessy manufactured machines Barker had used in his work. The trial court ruled that Hennessy could not be held liable for Barker's death under the theories of strict liability or negligence because the undisputed evidence showed that any harm was caused by products containing asbestos and not Hennessy's machines. We affirm. The undisputed evidence showed that Hennessy's machines did not contain asbestos and could be operated independently without asbestos-containing

Posted By:
May 22, 2012

California court rules against woman exposed to asbestos while doing laundry

As of May 22, 2012, the opinion from the California Court of Appeals Second District can be found here

A report from is below
Calif. court rules against woman exposed to asbestos while doing laundry
LOS ANGELES (Legal Newsline) – An appeals court in California has ruled that Ford Motor Company had no duty to protect a woman from asbestos brought home on the clothing of her brother and father.

The Monday decision of the Second Appellate District overturned a judgment from Los Angeles County Superior Court that placed 5 percent of the blame for Eileen Honer’s mesothelioma on Ford. A jury ordered the company to pay $40,000.

“While the overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible, the policy question is ‘whether that consideration is outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability,” Judge Fred Woods wrote.

Woods was citing the 2011 decision of the state Supreme Court in Cabral v. Ralph’s Grocery Company. In that case, a truck driver working for Ralph’s Grocery stopped his tractor-trailer on the side of a highway, and Adelelmo Cabral collided with it and died.

A jury found Ralph’s at fault for 10 percent of the damages, and the Supreme Court agreed with the finding in that case.

Other factors considered, and decided in Ford’s favor, included the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered and the moral blame attached to the defendant’s conduct. Those issues were outlined in a 1968 decision by the Second District.

The court also pointed at a Michigan Supreme Court decision in 2007. It said, “imposing a duty on a landowner to anybody who comes into contact with somebody who has been on the landowner’s property” (and secondarily exposed to asbestos as a result) “would create a potentially limitless pool of plaintiffs.”

Honer said she washed the clothes of her brother and father, who worked as insulators at Ford’s Lincoln-Mercury plant in Metuchen, N.J. She was diagnosed with mesothelioma in 2004.

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May 21, 2012

Louisiana asbestos litigation bill to be heard

From the Louisiana Record

BATON ROUGE – A bill that would change the discovery process in asbestos litigation is scheduled to be heard in a state Senate committee tomorrow.

House Bill 477, an asbestos bankruptcy trust bill, would require plaintiffs in asbestos exposure lawsuits to provide a list of all potential defendants during the discovery process.

Proponents of the change say it will keep plaintiffs from recovering twice for the same injury.

“One of the trends we have seen in asbestos litigation all over the country is plaintiff’s attorneys who are abusing the system because of a lack of transparency between these bankruptcy trusts and our court systems,” said Melissa Landry, executive director of Louisiana Lawsuit Abuse Watch.

The issue lies in the distinction between lawsuits and claims against bankruptcy trusts. Former asbestos producers who were forced out of business due to the proliferation of asbestos-related suits were liquidated and their remaining assets put into trusts that regularly pay out damages to those suffering from asbestosis and mesthelioma.

Mark Behrens, an attorney and expert in asbestos litigation with Shook, Hardy and Bacon in Washington, D.C., said there is no communication between trusts and the torts system. Behrens said the change would help give juries a better picture of damage recovery.

“When you can’t tell what claims are being made you can’t tell whether the plaintiff is making a false claim or an exaggerated claim,” said Behrens. “So there is a problem there in the lack of transparency that would allow an unscrupulous plaintiff to file a false claim knowing that they probably can’t get caught in a lie. Also, in the tort system, what plaintiff’s lawyers do is game the system by filing their torts claims first and then wait until the torts case is resolved before they file those trusts claims.”

Deb Kuchler, who provides defense in asbestos cases for New Orleans-based Kuchler, Polk, Schell, Weiner and Richeson, said the change would provide a better picture of how claims are being paid out and whether those claims are being paid out proportionately.

“A defendant who might be 1 percent at fault might have to pay 20 percent of the verdict because there may be only five defendants left,” Kulcher said. “So we’d like to give the jury a more complete picture of what the real exposure was.”

In the end Kulcher said the change would likely tighten up the way damages are awarded in asbestos cases.

“One of the goals is to try and prevent multiple recoveries for the same claim,” Kulcher said. “The second goal is to have full disclosure of the underlying facts of exposure.”

HB477 passed the House unanimously. If it passes the Senate and is signed by the governor it would be the first legislation of its kind in the country.

Posted By:
May 13, 2012

Business Insurance: OPINION: Asbestos trusts need transparency to end fraud

The original article can be found here

OPINION: Asbestos trusts need transparency to end fraud

THE SYSTEM of asbestos bankruptcy trusts created by Congress nearly 20 years ago was designed to make sure people injured by exposure to asbestos could be compensated.

But over the years, concerns have arisen that the current system can be gamed. There’s a concern that claimants can seek multiple recoveries from different funds, or tap funds and the tort system. That’s why we welcome the introduction of the Furthering Asbestos Claims Transparency Act.

As we report on page 4, the act would require asbestos trust funds to make quarterly reports about claims and exposure allegations. The measure also would provide protection for claimants’ identities and personal medical information. These are hardly radical ideas, but such disclosures could help deter duplicate claims.

A report issued by the Government Accountability Office last September said that between 2000 and 2011, the number of asbestos personal injury trusts increased from 16 to 60. The trusts’ collective assets increased from a little over $4 billion to nearly $37 billion during the same period. That’s a significant amount of money.

But one of the major problems is that the 60 trusts operate independently of each other, and there’s no central clearinghouse for claims data and other information.

In addition, there’s no linkage between the trusts—which represent the assets and liabilities of companies that sought bankruptcy protection because of asbestos claims—and the tort system, where solvent companies must defend asbestos claims.

No one knows how much fraud is involved in the system. But given the amount of money involved, greater transparency strikes us as a worthy—and imperative—goal.

It’s a matter of fairness, and not just for those who are paying the claims, be they trusts, insurers or companies that are defending themselves in the tort system.

It’s a matter of fairness for the claimants themselves. The purpose of the trusts is to compensate the injured. As we noted, there’s an impressive amount of money involved, but it’s not unlimited. Curbing even potential double-dipping and other fraudulent acts will help ensure there are adequate funds to compensate the truly ill.