On May 31, 2012, Judge John Parkins, Jr. of the New Castle County, Delaware Superior Court, granted a Motion for Summary Judgment filed by Defendant Superior Lidgerwood Mundy, as successor to M.T. Davidson, in the matter of Jon T. Wolz v. Aerco International, Inc. C.A. N10C-09-211 ASB. Superior Lidgerwood Mundy was represented by M&K counsel Paul Sunshine and Frank Friestedt.


The Plaintiff had alleged that its decedent, Thomas Milstead, was exposed to asbestos emanating from two M.T. Davidson pumps while serving aboard the USS Independence from 1965 to 1969. Through the use of Naval records and the expert testimony of Merchant Marine Captain William Lowell (Retired), Plaintiff successfully established that two circulating pumps manufactured by the Defendant were located in the machinery space where Mr. Milstead was stationed. Additionally, a shipmate testified that part of Mr. Milstead’s duties generally included servicing and maintaining all of the pumps in the area in which the pumps operated. Citing the rationale contained in the recent Maryland Court of Appeals decision in Reiter v. Pneumo Abex, LLC. 8 A.3d 725, 732 (Md. 2010), this evidence was deemed sufficient for a reasonable jury to find, as a matter of fact, that Mr. Milstead worked with or around the two M.T. Davidson pumps.


In its Motion for Summary Judgment, however, in addition to arguing that the product nexus was not met, Defendant argued that Plaintiff had not established that any asbestos containing component parts utilized in the pumps were supplied or manufactured by the Defendant and, as such, under Maryland law it owed no duty to Mr. Milstead for any exposure he may have experienced. As evidence, Defendant showed that Plaintiff’s expert, Captain Lowell, testified that it was more likely than not that all original asbestos containing component parts which may have been originally supplied with the pumps would have been removed by the time Mr. Milstead came into contact with them. And, pursuant to Maryland law, the substantive law applicable to the facts in this case, Defendant could not be found liable for any damages associated with the asbestos exposure.


The Defendant argued that the Maryland Court of Special Appeals decision in Ford Motor Co. v. Wood, 703 A.2d 1315 (Md. Ct. Spec. App. 1998) controlled the outcome in the present case. In Wood, the Court found that Ford could not be held responsible for the latent dangers of asbestos emanating from automotive component parts that Ford did not manufacture or place in the stream of commerce. Applying the same rationale in the Wolz case, the Court found that Superior Lidgerwood Mundy could not be held responsible for the asbestos containing component parts installed in its pumps after those pumps left the control of the manufacturer.


Following oral argument and supplemental briefing by both parties, the Court issued a nine page written decision in which it ruled that Defendant owed no duty to Plaintiff for asbestos containing component parts it neither manufactured nor placed into the stream of commerce. Further, determining that there existed no duty to warn, it found that Maryland’s application of strict liability precluded liability on behalf of Superior Lidgerwood Mundy because the component parts which purportedly exposed Mr. Milstead to asbestos were not manufactured or placed into the stream of commerce by it.


This case will have wide ranging effects on future cases brought in Delaware. This is especially true in Naval cases where it is often argued that Plaintiffs are exposed to asbestos from gaskets and packing utilized in various pieces of equipment. Typically, the Plaintiff is not aware of the maintenance history of any given piece of equipment once he comes into contact with it. As such, it is nearly impossible to prove that the component parts are original to the equipment, which they virtually never are, or whether the equipment manufacturer supplied the replacement parts, which it typically does not. We look forward to reliance upon this decision to obtain similar verdicts for our clients going forward.   
 

Michael Lunga has been selected as among The Top 1% of Trial Counsel for Medical Malpractice Defendant Attorneys for 2012 in New Jersey. A designation as one of The Top Trial Counsel is a prestigious award for which candidates are selected from the leading professionals in their state based on a rigorous 6-point scoring system designed by MedicalMalpracticeLawyers.org. Selected on the basis of peer reviews and individual medical malpractice trial performance in the previous 24 months, this designation indicates that Mr. Lunga is among the elite medical malpractice professionals in New Jersey.

MedicalMalpracticeLawyers.org
 is a leading independent publication dedicated to educating the public about their rights and role in medical malpractice litigation. It annually publishes The Top 1% Trial Counsel for Medical Malpractice ratings, which is an objective multi-phase plaintiff, defense attorney and expert witness rating system.

The New Jersey Supreme Court, on January 18, 2012, released their opinion in the case of Polzo v. County of Essex.

M&K partner Jeffrey B. Beacham had petitioned the New Jersey Supreme Court on behalf of his client, the County of Essex, to hear the case after his summary judgment was overturned by the Appellate Division. The Appellate Division had also ruled that the County of Essex created a dangerous condition by having no routine inspection program in place to discover road surface defects.

Mr. Beacham argued before the New Jersey Supreme Court on September 26, 2011 and the New Jersey Supreme Court reversed the Appellate Division and reinstated the dismissal of the plaintiff’s complaint. The Court ruled that even if the County had notice that the depression was a dangerous condition, a reasonable jury could not find that the failure to repair it was “palpably unreasonable” under the New Jersey Tort Claims Act.

The Court ruled that the County could not be found to have “created” a dangerous condition by having no routine inspection program in place to discover road surface defects.

The plaintiff, Mathi Polzo had been riding her bicycle on the shoulder of Parsonage Hill Road in Millburn when she rode over a depression on the shoulder, lost control and fell.  She died from her injuries 26 days later.  The plaintiff argued that the County of Essex should have inspected the roadway and found the depression and repaired the depression.

The Court ruled that even if the County had notice that the depression was a dangerous condition, a reasonable jury could not find that the failure to repair it was “palpably unreasonable.” Essex County is responsible for an extensive network of roads and there were no prior complaints or reports of injuries from the depression on the shoulder of Parsonage Hill Road.

Covenant House is one of the largest privately funded agencies in the world providing shelter, food, crisis care, and many other services to homeless and runaway youth. In addition to meeting basic needs, Covenant House provides support services and care designed to help homeless youth aged 16–21 transition into an independent adulthood, one that has minimal risk of future homelessness.

This was the third year that McGivney & Kluger, PC in conjunction with the Marquette Council 588 of the Knights of Columbus had sponsored a Christmas party at Covenant House, Newark, NJ. McGivney & Kluger employees, in conjunction with the Knights, spent the evening with Covenant House residents while preparing and serving them a Christmas dinner and provding them with gifts consisting of basic necessity items.

Gary Intoccia obtained a no cause of action on behalf of his client in a matter tried in the United States District Court, Camden Vicinage, New Jersey. Mr. Intoccia represented a WaveRunner rental facility in New Jersey that rented the WaveRunners. Plaintiff was a passenger on a Waverunner involved in a collision with another WaveRunner rented by the same establishment. Plaintiff filed suit against both operators and the rental facility. Both operators were uninsured and in default.    

Plaintiff alleged that Mr. Intoccia’s client negligently instructed and supervised the operators and caused the accident. As a result of the accident, plaintiff, who was 16 years old at the time, sustained a serious leg injury requiring several surgeries and permanent hardware and scarring. After a full trial, the court found that plaintiff had not met his burden in proving that the rental facility was negligent by either providing deficient instructions or supervision of the WaveRunner renters. Rather, the court found the uninsured codefendants negligent and the ultimate cause of the accident.

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