Kerryann Cook will be speaking at the Tarnished Justice: Asbestos Litigation after the Silver Scandal presentation during the New York State Federalist Society and the Lawsuit Reform Alliance of New York’s Asbestos Litigation Event on April 23.

 This program will be a one-hour panel discussion about asbestos litigation in New York State. The panel will include attorneys from both the plaintiff and defense side of asbestos litigation, as well as a subject-matter expert in asbestos litigation trends nationwide. It will be moderated by a law professor who has submitted briefs about asbestos litigation to the New York State Court of Appeals. Discussion will include recent NYCAL decisions, examination of the asbestos trust system, how it is regulated and structured under bankruptcy law, as well as discussion of both state and federal legislation to make the asbestos trust system more transparent.

 For more information and registration, please visit: www.lrany.org/

Recently in Connecticut, Judge Bellis, the presiding asbestos docket judge in Bridgeport, issued a decision involving a defendant’s challenge to the court’s personal jurisdiction. Rice v. Am. Talc Co., 2017 Conn. Super. LEXIS 4433 (Conn. Super. 2017). In its motion to dismiss, the defendant, Milwhite, argued that the asbestos-related injuries of the plaintiff’s decedent could not arise out of any transactions by the defendant in Connecticut, because the defendant did not acquire the right to mine the allegedly asbestos-containing talc until three years after the plaintiff’s decedent stopped working at the American Standard plant in Connecticut. The defendant further argued that it never had any offices, employees, or sales agents in the state of Connecticut at any time; it had not made sales to any company in the state since the 1970s, and the few sales that the defendant made in Connecticut comprised less than one-tenth of one percent of its sales in any given year. In opposition, the plaintiff argued that the defendant sought out the Connecticut market and shipped products directly to Connecticut consumers.

After considering these arguments, the court concluded that if a reasonable expectation exists that a foreign corporation’s goods will be used or consumed in the state of Connecticut, then that corporation can expect to be sued in Connecticut. The plaintiff’s evidence showed that the defendant knew a shipment destination was Connecticut when it was selling its product to the distributor, and that it also knew the distributor’s customers included Connecticut consumers.

The court also analyzed the due process requirements of the fourteenth amendment and reasoned that based on the evidence submitted by the plaintiff, the defendant “purposely availed itself of the privilege of conducting activities” in Connecticut. As such, the court concluded, the defendant had sufficient minimum contacts with Connecticut to allow this court to exercise personal jurisdiction over it and denied Milwhite’s motion to dismiss the complaint for lack of personal jurisdiction.

Finally, from an equitable standpoint, the court further concluded it was fair to exercise personal jurisdiction over an out-of-state defendant in this case because: (1) it involved the plaintiff’s single injury, mesothelioma, and (2) for the plaintiff to maintain two or more actions against different parties and in multiple jurisdictions was inefficient and imposed on the plaintiff a much greater burden than the defendant faced by defending itself in Connecticut.

The Rice decision may cause defendants to think twice before challenging personal jurisdiction in Connecticut cases. This is particularly true for out-of-state defendants who have reasonable expectations that their products were used in Connecticut, irrespective of how minimal their sales may have been in the state. Also, Judge Bellis’ stance on encouraging judicial economy and alleviating undue burden on plaintiffs is discouraging from a defense standpoint.

By

Richard E. Fennelly, III

When a party is faced with a motion for summary judgment or a motion to dismiss, sometimes it can be difficult to prepare a compelling objection. In this situation, the nonmoving party may choose to avoid addressing the substance of the motion. Instead, the nonmoving party may argue that discovery is still incomplete and thus it would be premature to consider the motion. In Shirley D’Amico, Executrix for the Estate of Frank D’Amico, et al. v. A.O. Smith Corporation, et al., the Rhode Island Superior Court, Gibney, J., addressed this scenario.

This action was brought by Shirley D’Amico, the wife of the late Frank D’Amico. As the plaintiff alleged, Mr. D’Amico died of mesothelioma “caused by years of occupational exposure to asbestos.” In D’Amico, one of the defendants, Grover S. Wormer Company (“Wormer”), filed a motion to dismiss arguing that the Michigan’s Business Corporation Act barred the plaintiff’s claims for liability.[1] In response, the Plaintiff did not contest the applicability of the Act. Rather, the plaintiff argued that Wormer “had not provided sufficient discovery for [the] Court to resolve whether the Statute of Repose applies.” In addition, the plaintiff argued that Wormer had “sole custody and control” of the information she needed to oppose the motion.

The Court rejected the plaintiff’s argument. In doing so, the Court acknowledged that there are instances when a dispositive motion is premature because there has been insufficient time for discovery. In the instant case, however, the Court noted that the plaintiff had two-and-half years to serve Wormer with discovery. Accordingly, the Court addressed the merits of the motion.

D’Amico has important implications for asbestos litigants because dispositive motions are commonly invoked. D’Amico stands for the proposition that lack of discovery, at times, is a sufficient basis for postponing addressing a dispositive motion. However, the Courts will not allow plaintiffs to postpone such motions when they have had sufficient time to obtain discovery. As such, D’Amico reminds defense counsel challenges to dispositive motions based on lack of discovery are not necessarily fatal.



[1]The Court converted the motion to dismiss to a motion for summary judgment pursuant to Rhode Island’s Superior Court Rule of Civil Procedure 12(b).

Recently in Poce v. O&G Industries, Inc., et al. the Superior Court, Nobel, J., granted  a motion to strike the negligence, recklessness, and premises liability counts of a thirty-count complaint because the plaintiffs failed to allege any "actual injury" which is an element of these causes of action in Connecticut.

In Poce, the plaintiffs, Julian Ponce, Skerdinand Xhelaj, Michael Meredith, Erjon Goxhaj, and Fatjon Rapo, were mason laborers who worked for Connecticut Mason Contractors. During the course their employment with Connecticut Mason Contractors, the plaintiffs allege in their complaint that they were "repeatedly exposed to asbestos" while "working on a project at Wethersfield High School" in Wethersfield, Connecticut. O&G Industries, Inc. ("O&G") was the project manager.

In its memorandum of decision, the Court noted that "each count contains an allegation that the respective plaintiffs were repeatedly exposed to known carcinogens requiring medical evaluations and lifetime medical monitoring; an increased risk of contracting asbestos-related pulmonary disease and/or cancer and will be required in the future to spend sums of money for medical evaluation and medical monitoring in the event that ‘asbestos and/or PCP-related disease becomes active and will be the course of continuing pain, mental and emotional distress."

In granting the motion to strike, the Court held that the plaintiffs failed to allege an "actual injury" that resulted from asbestos exposure. In doing so, that Court reasoned that "the plaintiff has no allegations that any physical manifestation occurred as a result of the exposure. That is, the complaint is devoid of any allegation of scarring to the lungs, implantation of asbestos fiber, pleural thickening or any other physical component following the exposure. The court holds that ‘actual injury’ as an element of negligence requires the pleading and proof of some physical component of injury."

Poce reaffirms the established principle that tort liability in Connecticut, as well as many jurisdictions, is limited to Cases involving physical harm to person or property." Lawrence v. O&G Industries, Inc. 319 Conn. 641, 646 (2015). This principle is an important check on tort litigation. If mere exposure to asbestos containing products rather than "actual injury" were sufficient to properly allege a cause of action sounding in negligence, recklessness, and premises liability, unbridled asbestos litigation would likely ensue and swiftly consume the courts. Fortunately, allegations of this nature remain legally insufficient – hopefully forever.

The bare metal defense essentially protects a manufacturer from liability for harm caused by asbestos products that the manufacturer did not manufacture or distribute, but rather, were installed by others post-sale, and owes no duty to warn of the dangers inherent to those products. Most commonly, the bare metal defense rejects liability for after applied external materials, such as thermal insulation or flange gaskets, placed on metal products by someone other than the defendant manufacturer.

In Connecticut, higher courts have yet to embrace the bare metal defense however the state Superior Court has acceptedthe defense under certain circumstances. Judge Barbara Bellis, the presiding judge of the Connecticut asbestos docket in Bridgeport, granted summary judgment to both Black & Decker and Snap-on Incorporated, defendants who asserted the defense, in the matter of Abate v. AFF-McQuay, Inc., et al., Docket No. CV-10-6006228. Black & Decker manufactured grinding machines and a shop vacuum.  Snap-on manufactured, distributed and sold blow guns. None of these products contained asbestos, but Plaintiffs argued that when the products were used for their intended purposes, they emitted hazardous amounts of asbestos dust into the air exposing Plaintiff-Decedent to this asbestos dust in his automotive garage. Defendants both countered that their products were all-purpose in nature,non-asbestos containing and had a variety of uses. Judge Bellis found that, unlike some products, Defendants’ productswere "not specifically designed for a use that would lead to asbestos exposure when said products were used as intended." Thus, the judge ruled that Defendants had no duty to warn.  Yet, she noted that a manufacturer isnot relieved of its duty to warn if its product, when used as intended, inevitably produces harmful dust (e.g.; brakeshoe grinding machines).

Although Connecticut’s application of the bare metal defense is narrow, it provides some Connecticut defendants with protection from liability.  As the defense is tested further in this jurisdiction, we will provide relevant updates.

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