Asbestos Litigation
 Publication of Consolidation Decision
Foster Wheeler LLC v. Superior Court of San Francisco County
No. S158197 California Supreme Court NCLC urged the California Supreme Court to publish the California Court of Appeal’s decision requiring the trial court to vacate its consolidation of two unrelated asbestos cases. In its unpublished opinion, the appellate court adopted a multifactor test—articulated by the federal courts—for analyzing whether the subject cases should be consolidated. In its brief, NCLC argued that publication of the court’s clear rule for case consolidation would provide much-needed guidance to countless trial courts and litigants involved in mass tort cases. Unlike the current practice in federal courts, litigants may not cite to unpublished opinions in California courts. Amicus letter filed 11/20/07.
 Retroactive Application of Judicial PrecedentDicenzo v. A-Best Products Co., Inc.No. 07-1628 Supreme Court of Ohio
Agreeing with NCLC, the Ohio Supreme Court to granted review to consider whether its 1966 decision providing for strict liability for asbestos manufacturers applied—at that point, without development or precedent—to suppliers of asbestos as well. In 1977, the Ohio Supreme Court formally extended strict liability to suppliers and NCLC argued in its brief that 1977, not 1966, should be considered the starting point for such liability. The intermediate appellate court disagreed and thereby placed small and medium sized businesses in Ohio in jeopardy of being sued for conduct that occurred over thirty years ago.
Amicus brief filed 8/29/07. Decision 12/27/07.
Asbestos Litigation in CaliforniaSnyder v. Superior Court
No. B197993 California Court of Appeal, Second Appellate District
The California Court of Appeal agreed with NCLC and upheld a trial court's standing order which requires asbestos plaintiffs, within eight months of filing their complaints, to provide some basic information connecting the plaintiffs' asbestos-related condition to the defendants' conduct. NCLC described the "asbestos litigation crisis" which has led to multiple bankruptcies among asbestos manufacturers and to lawsuits against peripheral industries and actors and contends that the standing order reflects a sound approach to managing the asbestos docket so that meritorious complaints are considered more expeditiously.
Amicus brief filed 7/19/07. Decision 12/18/07.
Reverse Bifurcation of Asbestos Cases
Donoughe, et al. v. Hobart Brothers Co., et al.
Nos. 357 & 488 EDA 2006
Supreme Court of Pennsylvania
NCLC urged the Pennsylvania Supreme Court to reverse the Philadelphia trial court's practice of resolving damages before liability in asbestos cases. This reverse bifurcation procedure requires juries to make damages decisions in a vacuum. Because asbestos litigation has migrated far beyond the asbestos manufacturers themselves and now concerns peripheral defendants, requiring juries to consider first damages increases the likelihood of confusion and prejudice.
Application to join Ford and GM's amicus brief filed 12/10/07.
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Liability for Secondary Exposure to Asbestos
Honer v. Merck & Co., et al.
No. S158472
California Supreme Court
NCLC urged the California Supreme Court to grant review to consider whether California law recognizes a duty on the part of premises owners for secondary exposure to asbestos. The California Court of Appeal vacated the district court's grant of summary judgment without explicitly confronting the issue. Raising the specter of almost limitless liability, NCLC had urged the California appellate court to reject finding liability on the part of employers for secondary exposure to asbestos. Secondary exposure is the new front in the asbestos plaintiffs' bar's assault on American industry. In response, NCLC has filed briefs in courts across the country urging them to maintain traditional understandings of duty and foreseeability in tort law.
Amicus brief filed 12/26/06. Decision 10/15/07. Amicus letter in support of petition for review filed 11/26/07.
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Liability for Secondary Exposure to Asbestos
Satterfield v. Breeding Insulation Co., Inc.
No. E2006-00903
Supreme Court of Tennessee
Raising the specter of almost limitless liability, NCLC urged the Tennessee Supreme Court to follow the majority view and to reject finding liability on the part of employers for secondary exposure to asbestos. Secondary exposure is the new front in the asbestos plaintiffs' bar's assault on American industry. In response, NCLC has filed briefs in courts across the country urging them to maintain traditional understandings of duty and foreseeability in tort law.
Amicus brief filed 10/31/07.
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Adequacy of Federal Forum
Sales, et al. v. Weyerhaeuser Co.
No. 80472-9
Washington Supreme Court
As urged by NCLC, the Washington Supreme Court granted review to consider the court of appeal's determination that the federal forum was inadequate for resolving plaintiff's asbestos claims. In reversing the trial court's dismissal of the case on forum non conveniens grounds, the court of appeals held that the case could only be dismissed if the defendant waived its right to remove the case to federal court. In support of this position, the court of appeals noted that the federal multidistrict litigation panel in charge of asbestos claims had been accused of being dilatory in resolving cases. In its brief, NCLC noted there were no findings of contacts between Washington and the facts of this case, and defended the federal MDL panel as having done a remarkably good job resolving the claims of people actually injured by asbestos exposure.
Amicus brief filed 8/21/07. Decision 10/2/07.
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 Liability for Secondary Exposure to Asbestos
Honer v. Ford Motor Co., et al.
No. B189160
California Court of Appeal, Second Appellate District
The California Court of Appeal vacated the district court's grant of summary judgment without explicitly confronting the issue as to whether California law recognizes a duty on the part of premises owners for secondary exposure to asbestos. Raising the specter of almost limitless liability, NCLC had urged the California appellate court to reject finding liability on the part of employers for secondary exposure to asbestos. Secondary exposure is the new front in the asbestos plaintiffs' bar's assault on American industry. In response, NCLC filed briefs in courts across the country urging them to maintain traditional understandings of duty and foreseeability in tort law.
Amicus brief filed 12/26/06. Decision 10/15/07.
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Constitutionality of Florida's Asbestos Reform Law
Williams, et al. v. American Optical Corp.
No. 99-0583 Florida Fourth District Court of Appeal
A Florida intermediate appellate court is considering the constitutionality of applying Florida's asbestos reform act, which gives priority to those physically impaired by asbestos-related ailments, to pending claims involving exposure to asbestos. In its brief, NCLC offered background to the court so that it can understand the "asbestos litigation crisis" which motivated the Florida legislature and governor to act.
Amicus brief filed 9/6/07.
Constitutionality of Florida's Asbestos Reform LawSpiewak, et al. v. AcandS, Inc., et al.No. 99-1056 Florida Fourth District Court of Appeal A Florida intermediate appellate court is considering the constitutionality of applying Florida's asbestos reform act, which gives priority to those physically impaired by asbestos-related ailments, to pending claims involving exposure to asbestos. In its brief, NCLC offered background to the court so that it can understand the "asbestos litigation crisis" which motivated the Florida legislature and governor to act. Amicus brief filed 9/6/07.
Application of Asbestos Reform Act to Pending ClaimsRobinson v. Crown, Cork & Seal Co.No. 06-0714 Supreme Court of Texas
NCLC urged the Texas Supreme Court to affirm the intermediate appellate court's decision that Texas' effort to rationalize successor liability in the context of asbestos litigation could be applied to cases pending at the time of enactment of the act without violating the Texas constitution. Recognizing the profound unfairness of holding successor companies liable for damages far exceeding the net worth of the company at the time of transfer, the Texas legislature in 2003 enacted limitations on damages awards against successor companies. In its brief, NCLC illustrated the asbestos litigation crisis ongoing in American and particularly Texan courts and described numerous bankruptcies caused by asbestos litigation.
Amicus brief filed 8/2/07.
Secondary Exposure to Asbestos
Miller v. Ford Motor Co. No. 131517 Michigan Supreme Court The Michigan Supreme Court concluded that Michigan law does not permit liability for secondary exposure to asbestos. The plaintiff alleged exposure through her stepfather's clothes. Her stepfather was an independent contractor who relined the interior of blast furnaces at Ford Motor facilities in Michigan. NCLC filed a brief as part of its ongoing effort to ensure that courts do not extend liability for asbestos exposure beyond rational boundaries. Raising the specter of virtually unlimited liability, NCLC canvassed the asbestos litigation crisis and the plaintiffs' bar's never-ending search for a solvent bystander.
Amicus brief filed 4/18/07. Decision 7/25/07. View brief
Post Sale Duty to Warn of Hazards Created by Combining Asbestos with Manufacturer's Product
Braaten v. Buffalo Pumps, Inc., et al.
No. 80251-3 Washington Supreme Court
NCLC filed a brief asking the Washington Supreme Court to grant review to consider whether a product manufacturer can be held liable for failing to warn about hazardous products used by others in combination with its products. In this case, the defendant sold valves which were sold to the Navy to use on their ships. The Navy covered the valves with asbestos insulation. Amazingly, the court of appeals held that the defendant-manufacturer could be held liable for failing to warn about the asbestos put on the product post-sale by the Navy. If this broad duty were upheld, it would not only expand asbestos liability but could expand the duty to warn for others as well. In its brief, NCLC described the asbestos litigation environment and argued that expanding the post-sale duty to warn represented unsound public policy.
Amicus brief filed 6/28/07. View brief Asbestos and the Admission of Expert Testimony
Chapin v. DaimlerChrysler Corp.
No. 257917 Michigan Court of Appeals
The Michigan Supreme Court let stand a lower court's decision to admit expert testimony in an asbestos case even though the expert's conclusions were at variance with fifteen separate epidemiological studies which had found no increased incidence of mesothelioma among brake mechanics. In its brief, NCLC questioned why, in asbestos cases, epidemiological evidence is not relevant whereas in other kinds of cases, epidemiological evidence is routinely employed in resolving cases.
Motion for leave to file 12/30/05. Amicus brief filed 1/11/06. Decision 6/25/07.
Constitutionality of Ohio Asbestos Reform Legislation
Ackison v. Anchor Packing Co., Inc. Nos. 2007-0219; 2007-0415 Supreme Court of Ohio
NCLC urged the Ohio Supreme Court to find that the Ohio asbestos reform act can be constitutionally applied to cases pending at the time of enactment. In its brief, NCLC canvassed the asbestos litigation environment and described how claimants impaired by asbestos-related illnesses were being shuffled to the end of the line to stand behind unimpaired claimants. In enacting its asbestos claim legislation, the Ohio legislature sought to remedy this profound unfairness.
Amicus brief filed 6/8/07. View briefAbusive Discovery Orders in Asbestos Litigation
In re Complex Asbestos LitigationS151439 California Supreme Court
The California Supreme Court declined to grant review to consider the validity of San Francisco Superior Court General Order No. 129. NCLC contended in its supporting amicus letter that the order unfairly places the burden on asbestos defendants to disclose completely irrelevant information stretching back decades. In particular, NCLC contended in its brief that, in addition to violating defendant's statutory and constitutional rights, the order could cost this particular defendant $1 million to comply but would not result in information relevant to the particular plaintiff's case.
Amicus letter filed 4/11/07. Decision 5/9/07. View letter
Forum Non Conveniens and the Adequacy of a Federal Forum
In re General Electric Corporation, et alNo. 01-1095 Texas Supreme Court NCLC filed an amicus brief urging the Texas Supreme Court to dismiss under the doctrine of forum non conveniens an asbestos case brought by a Maine plaintiff who has no contacts with Texas. In what is believed to be the first opinion of its kind, the Texas asbestos multi-district litigation judge said the case should be heard in Texas because the federal court system is an inadequate forum. The state high court recently decided to stay the court proceedings. In its brief, NCLC argued that the high court should grant the defendant's mandamus petition to hear the case, enforce the letter and sprit of the Texas forum non conveniens statute, and dismiss the case. Amicus brief filed 4/10/07. View brief
Constitutionality of Florida's Asbestos Reform Law
Flowserve Corp. v. Bonilla, et al.No. 02-21139 Florida Third District Court of Appeal A Florida intermediate appellate court affirmed the constitutionality of applying Florida's asbestos reform act, which gives priority to those physically impaired by asbestos-related ailments, to pending claims involving exposure to asbestos. In its brief, NCLC offered background to the court so that it can understand the "asbestos litigation crisis" which motivated the Florida legislature and governor to act.
Amicus brief filed 9/7/06. Decision 4/4/07.
Secondary Exposure to Asbestos
Jesensky v. Duquesne Light CompanyNo. 06-3102 United States Court of Appeals for the Third Circuit
Raising the specter of almost limitless liability, NCLC urged the Third Circuit to reject finding liability under Pennsylvania law on the part of employers for secondary exposure to asbestos. In this case, the plaintiff is the daughter of an employee of the defendants who claims that her mesothelioma is due to contact with her father's workclothes. Secondary exposure is the new front in the asbestos plaintiffs' bar's assault on American industry. In response, NCLC has filed briefs in courts across the country to urge them to maintain traditional understandings of duty and foreseeability in tort law.
Michigan Prohibition on Bundling Asbestos Cases
Administrative Order Prohibiting the Bundling of Asbestos-Related Cases ADMNo. 2003-47 Michigan Supreme Court In response to an earlier filing by NCLC, the Michigan Supreme Court prohibited the bundling of asbestos cases together and instead will require that each case be tried individually. Raising again the specter of the "asbestos litigation crisis," NCLC filed this additional comment to apprise the court as to how other courts around the country had handled this sort of procedural requirement.
The Lipke Rule and the Admission of Evidence of Unrelated Exposure to Asbestos
Nolan v. Weil-McClainNo. 103137 Illinois Supreme Court
NCLC requested the Illinois Supreme Court to reject the rule announced by an Illinois intermediate appellate court which prohibits defendants from introducing evidence that unrelated exposure to asbestos caused the plaintiff's condition. NCLC contended that this rule is a per se violation of due process as defendants will likely be held responsible for the conduct of others.
New Wave of Asbestos Litigation and Ordinary Principles of Tort Law and Admission of Expert Testimony
Betz v. Pneumo Abex, et al. No. 1058 WDA 2006 Supreme Court of Pennsylvania NCLC urged the Pennsylvania Supreme Court to apply traditional rules of tort causation and admission of expert testimony to the new wave of asbestos litigation manufactured by the plaintiffs' bar. In the initial wave, asbestos manufacturers themselves were targeted and ordinary limitations on causation and admission of expert testimony were abrogated in light of the difficulty of proof. In its brief, NCLC explained that the plaintiffs' bar have now moved on other industries (after having bankrupted the asbestos manufacturing industry itself), targeting employers who may have had some asbestos onsite and manufactured products which used a less dangerous form of asbestos. In addition, the difficulties of proof that plagued the earlier wave of litigation have been ameliorated by the advances in epidemiology. Therefore, NCLC argued the court now should revisit whether the traditional understandings of tort law, which were lessened during the first wave, should be applied to this new wave of asbestos litigation. Amicus brief filed 1/16/07. View brief
Liability for Secondary Exposure to Asbestos
Honer v. Ford Motor Co., et al.No. B189160 California Court of Appeal, Second Appellate District The California Court of Appeal vacated the district court's grant of summary judgment without explicitly confronting the issue as to whether California law recognizes a duty on the part of premises owners for secondary exposure to asbestos. Raising the specter of almost limitless liability, NCLC had urged the California appellate court to reject finding liability on the part of employers for secondary exposure to asbestos. Secondary exposure is the new front in the asbestos plaintiffs' bar's assault on American industry. In response, NCLC filed briefs in courts across the country urging them to maintain traditional understandings of duty and foreseeability in tort law. Amicus brief filed 12/26/06. Decision 10/15/07.
Asbestos Litigation
Daimler Chrysler Corp. v. FerranteNo. S06A0902 Supreme Court of Georgia
The Georgia Supreme Court has ruled that Georgia's Asbestos Safety Act (ASA) cannot be applied to claims pending at the time of enactment. The state of Georgia passed the Act in 2005 to establish a statute of limitations for filing asbestos claims and a system for giving priority in the courts to plaintiffs with asbestos-related or silica-related impairments so they are not forced to wait behind those who aren't sick. An amicus brief filed by NCLC and others calls on the Supreme Court of Georgia to uphold the constitutionality of the ASA and to dismiss pending and future claims that fail to meet the law's procedural requirements.
Amicus brief filed 2/28/06. Oral argument held 4/10/06. Decision 11/20/06.
Constitutionality of Florida's Asbestos Reform Law
DaimlerChrysler Corp. v. HurstNo. 04-24071 Florida Third District Court of Appeal A Florida intermediate appellate court is considering the constitutionality of applying Florida's asbestos reform act, which gives priority to those physically impaired by asbestos-related ailments, to pending claims involving exposure to asbestos. In its brief, NCLC offers background to the court so that it can understand the "asbestos litigation crisis" which motivated the Florida legislature and governor to act. Amicus brief filed 10/24/06. Decision 2/7/07.
Asbestos Litigation and Plaintiff's Choice of Forum
Fisher Scientific Co. v. Superior CourtNo. S144795 California Supreme Court
NCLC filed an amicus letter in support of the California Supreme Court granting review to consider whether the asbestos litigation should be dismissed on the basis of forum non conveniens. NCLC points out the plaintiff's only connection to California is a one-year fellowship thirty years ago and describes the onslaught of new asbestos claims in California courts filed by plaintiffs with little connection to the state.
Amicus letter filed 8/16/06.
The Lipke Rule and the Admission of Evidence of Unrelated Exposure to Asbestos
Nolan v. Weil-McClainNo. 05-0328 Illinois Appellate Court, Fourth District
The Illinois intermediate appellate court adopted the rule announced by a sister court in Lipke v. Celotex Corp., which prohibits defendants from introducing evidence that unrelated exposure to asbestos caused the plaintiff's medical condition. In its brief, NCLC contended this rule is a per se violation of due process as defendants likely will be held responsible for the conduct of others.
Michigan Inactive Asbestos Docket
In Re Petition for an Administrative Order
ADM File No. 2003-47
Supreme Court of Michigan
Supplementing its 2003 filing in light of the Michigan Supreme Court's proposed plan, NCLC reiterated the importance of creating an efficient system for resolving the state's asbestos injury lawsuits and commented on the various alternatives suggested by the Court. The creation of the so-called "inactive asbestos docket" could help establish a national model to ensure that that suits filed by the sickest asbestos claimants could be heard before cases filed by people who cannot show that they have been physically impaired. The benefits of the so-called "inactive asbestos docket" would preserve assets to compensate the truly sick, stem the recent flood of bankruptcy filings and slow the spread of litigation to small businesses and other remote defendants.
Amicus brief in support of Petition to Establish a Court Rule or Administrative Order filed 8/19/03. Hearing on the Petition held 1/29/04. Supplemental Memorandum filed 5/23/06.
Secondary Exposure to Asbestos
Olivo v. Exxon No. 8,040 New Jersey Supreme Court
Rejecting the position advanced by NCLC, the New Jersey Supreme Court assigned liability to landowners for asbestos exposure that occurs to individuals offsite by reason of secondary exposure. In its brief, after describing the "asbestos litigation crisis" in the courts today, NCLC listed the increasing number of courts which have refused to assign liability to premises owners for exposure to asbestos which occurs offsite because of the specter of almost limitless liability.
Amicus brief filed 12/12/05. Decision 4/24/06.
Ensuring Accuracy in Asbestos Litigation
In re New York Asbestos Litigation [Collura v. Patterson-Kelley]
No. 112742/04
New York Supreme Court, Appellate Division, First Department
After reviewing the briefs filed on appeal (including NCLC's), the plaintiff voluntarily dismissed his claims against Patterson-Kelley. Urging the appellate court to affirm, NCLC reminded the court of the asbestos litigation crisis that serves as the background to this summary judgment appeal. The plaintiff, after having sworn during deposition that he had never used defendant's products (and therefore could not have been harmed by them) and then consequently served with a motion for summary judgment by the defendant, filed an affidavit contradicting that statement. NCLC argued that the court should not veer from its traditional practice of ignoring self-serving affidavits contradicting sworn testimony by plaintiffs.
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Workers' Compensation and Asbestos Litigation
Rehm v. Navistar Int'l Corp.
No. 2005-SC-000242-DGE
Kentucky Supreme Court
The Kentucky Supreme Court has granted review to consider the proper standard governing whether an independent contractor's employee's work is "regular or recurrent" in nature so as to support resolution of a workplace injury claim by the workers' compensation system. In its brief, after describing the "asbestos litigation crisis" in the courts today, NCLC explains the rationale behind the workers' compensation system and the importance to the business community of not upsetting the balance it struck between the employee's need for recovery and the employer's need for predictability.
Motion for leave to join amicus brief filed 1/6/06.
Michigan Inactive Asbestos Docket
In Re Petition for an Administrative Order
No. 124213
Supreme Court of Michigan
NCLC joined a number of business and trade associations in calling on the Michigan Supreme Court to establish by court rule or administrative order a system for resolving the state's asbestos injury lawsuit. The creation of the so-called "inactive asbestos docket" could help establish a national model to ensure that that suits filed by the sickest asbestos claimants could be heard before cases filed by people who cannot show that they have been physically impaired. The benefits of the so-called "inactive asbestos docket" would preserve assets to compensate the truly sick, stem the recent flood of bankruptcy filings and slow the spread of litigation to small businesses and other remote defendants.
Amicus brief in support of Petition to Establish a Court Rule or Administrative Order filed 8/19/03. Hearing on the Petition held 1/29/04.
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