March 4, 2011
Federal judge grants stay in ‘take-home’ asbestos exposure case
March 4 (Westlaw Journals) – A California federal court case brought by a man who claimed he was exposed to asbestos on his father's work clothes has been stayed pending transfer to the asbestos multidistrict litigation.
U.S. District Judge Jeffrey White of the Northern District of California granted defendant McDonnell Douglas Corp.'s motion to stay because the same issues have been addressed in other cases in the MDL in the Eastern District of Pennsylvania.
The judge refused to consider the plaintiff's emergency motion for remand to state court.
Timothy Vest says he was exposed to asbestos when his father, employed by World Airways Inc., brought it home on his work clothes. He also says some exposure occurred when he visited his father on the job.
Some McDonnell Douglas aircraft were serviced in World Airways' hangars, the complaint says.
Vest says he developed localized malignant mesothelioma from his exposure to asbestos.
He sued McDonnell Douglas and others in the Alameda County Superior Court in December 2009.
McDonnell Douglas removed the case to the federal court in January based on federal officer jurisdiction. The company said federal jurisdiction was proper because some of its military aircraft were serviced at World Airways hangars.
The company also filed a notice of a tag-along action, in which it argued that Vest's lawsuit should be transferred to the asbestos MDL, In re Asbestos Products Liability Litigation, MDL No. 875 (E.D. Pa.). A tag-along action refers to a civil action pending in a federal district court involving common questions of fact with actions previously transferred to the MDL.
McDonnell Douglas also moved to stay the proceedings pending transfer to the MDL. In December the Judicial Panel on Multidistrict Litigation issued a conditional transfer order. The company said that only in "extremely rare" circumstances has the panel declined to transfer an asbestos case to the MDL.
Vest immediately filed an emergency motion to remand, arguing that McDonnell Douglas failed to establish that it has a military contractor defense against his design-defect and failure-to-warn claims.
Even if the court finds that the company has a colorable federal defense, Vest said, he would agree to limit his claims to exposure to asbestos in non-military aircraft.
Judge White granted McDonnell Douglas' motion to stay and declined to consider Vest's motion to remand.
After giving the remand motion a preliminary assessment, the judge said he could not find that removal was improper.
"In deciding whether to rule on the motion to remand, courts should consider whether the motion raises issues likely to arise in other actions pending in the MDL transferee court," the judge said, citing Conroy v. Fresh Del Monte Produce, 325 F. Supp. 2d 1049 (N.D. Cal. 2004).
Judge White said the jurisdictional issue is both factually and legally difficult and has been raised in the MDL proceeding.
He said that if the MDL proceedings regarding the transfer become unreasonably protracted or if Vest's medical circumstances change, Vest could move to lift the stay.
Vest et al. v. Allied Packing & Supply Inc. et al., No. C 11-00061, 2011 WL 333241 (N.D. Cal. Jan. 31, 2011).