Articles Posted in Asbestos Litigation

The 4th District of the Illinois Appellate Court in the case of a former railroad employee, James Smith, reversed the jury’s verdict finding that the trial judge had been wrong in preventing the defendant from presenting evidence regarding the plaintiff’s prior work history.

Smith was a former railroad employee of the Illinois Central Railroad who sued it for breach of duty to provide employees with a safe place to work under the Federal Employers’ Liability Act.

Smith was exposed to dust as a result of the use of asbestos products at the railroad yard, which included exposure to dust from the neighboring facility that made asbestos insulation. Smith had worked three months at the neighboring asbestos plant before he came to work for Illinois Central Railroad. He left that job because he said it was dirty.

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John Blommer worked as an apprentice carman repairing railroad cars for Great Northern Railway, which was the predecessor to BNSF Railway Co. He started working at the railroad in 1953 and worked for several months before joining the U.S. Army. He returned to the railroad after his military service and then left his employment in 1956 to work at the U.S. Postal Service. In all, Blommer worked for the railroad for a total of nearly 26 months. During that time, he was exposed daily to asbestos from various products he handled. Asbestos was found to be included in pipe wrapping, insulation, raw asbestos fibers and other asbestos-containing products.

In 2010, Blommer, then age 78, was diagnosed with mesothelioma. He underwent chemotherapy treatments and talc pleurodesis, which is a procedure in which fluid is drained from the lining of the lungs; then the ribcage and lining are scraped and filled with a talc product to glue the lungs to the ribcage. The purpose is to prevent the fluid from returning. After about two years, the fluid did return and Blommer underwent additional chemotherapy until the treatments were no longer effective.

Blommer sued BNSF under the Federal Employers’ Liability Act (FELA) claiming that the railroad chose not to provide a safe workplace by protecting employees from asbestos exposure.

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Carl Rogers had been working at a tire plant owned by Kelly-Springfield Tire Co., which is a Goodyear Tire & Rubber Co. subsidiary. He started working at the plant in 1969 and left employment after just one year. He returned to work there in 1975, and he continued working through the mid-1980s. Rogers worked with various tire-building machines but also used asbestos-containing brake assemblies.

He was exposed to asbestos during his ongoing repair and replacement of asbestos pipe installation at the Goodyear plant.

In August 2008, he was diagnosed with mesothelioma as a result of being exposed to asbestos. He died the next year at the age of 60 survived by his wife and two adult daughters. His paid medical expenses stipulated at the jury trial were $170,000.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has reversed the decision of a U.S. District Court judge wherein an agreement between the parties, Hennessy Industries Inc. and National Union Fire Insurance Co. of Pittsburgh, required arbitration of any dispute that mandated an interpretation of the agreement. In this case, Hennessy Industries manufactured car parts. Since the 1980s, Hennessy has been the named defendant in many lawsuits for asbestos-related personal-injury cases. Hennessy has been looking to National Union Fire Insurance Co. of Pittsburgh for insurance coverage for these claims. The two companies entered into a cost-sharing agreement in 2008.

When the lawsuits for asbestos-related injuries started coming in, Hennessy requested that National Union indemnify it for settlement and defense costs as provided for in their agreement. The two parties, however, could not come to an agreement as to what was owed. Hennessy demanded arbitration in line with the agreement, which provided for arbitration of disputes between the parties.

Hennessy filed suit in 2013 under 215 ILCS 5/155(1), maintaining that National Union’s delays in granting coverage of the asbestos claims had been vexatious and unreasonable.

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In a case that has been labeled one of first impression, the wife of a victim of mesothelioma has prevailed after the defendant, Tennessee Valley Authority, moved to dismiss the case. The case was heard in the U.S. District Court for the Northern District of Alabama.

Barbara Bobo brought this lawsuit against nine defendants, eight of whom were dismissed pursuant to stipulation for dismissal leaving only her claim against the Tennessee Valley Authority (TVA). The plaintiffs were the co-personal representatives of the estate of Barbara Bobo who maintained a variety of claims against the TVA based on her contraction of pleural mesothelioma from washing her husband’s work clothes. It was alleged that the work clothes contained asbestos dust originating from his job duties at TVA’s Browns Ferry Nuclear Power General Facility in Limestone County, Ala.

In this case, the principle issue was the causation of her contraction of mesothelioma. Before the court was a motion to exclude specific causation opinions of doctors. The motion to exclude the specific causation opinion was found to be moot and the motion to exclude specific causation opinion of another doctor was denied.

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Hennessy Industries was a car part manufacturer. It was sued frequently for asbestos-related personal injury claims. Hennessy sought insurance coverage for these claims from National Union Fire Insurance Co. The companies entered into a cost-sharing agreement in 2008. However, as the lawsuits and claims came in, Hennessy asked National Union to indemnify its settlements and defense costs. To resolve their differences about what was owed, Hennessy demanded arbitration under the agreement. Illinois law would be applied.

Hennessy filed a lawsuit against National Union under the Illinois Insurance Code, 215 ILCS 5/155(1), which provides that, in cases involving vexatious and unreasonable delay, the court may award reasonable attorney fees, other costs, plus an additional amount.

Hennessy claimed that National Union’s delays in providing coverage were vexatious and unreasonable. The federal district court judge in Chicago declined to dismiss the case, acknowledging a provision that “the arbitrator shall not be empowered or have jurisdiction to award punitive damages, fines or penalties,” but held that Hennessy’s claim arose under statutory law rather than under the cost-sharing agreement.

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James Folta had stopped working at Ferro Engineering 41 years before he was diagnosed with peritoneal mesothelioma. He claimed that while working for Ferro Engineering he was exposed to “tremendous amounts of airborne asbestos fibers.” According to the lawsuit, Folta knew that exposure to asbestos dust was dangerous, but Ferro Engineering did not warn him and did not provide respiratory safety equipment.

By the time Folta received the fatal diagnosis, the statutes of repose had expired for claims under the Illinois Workers’ Compensation Act (the statute is 25 years) and the Workers’ Occupational Diseases Act (the statute is 3 years after the claimant stopped working for the employer).

As Folta had no other available course of action, he filed a lawsuit in the Circuit Court of Cook County claiming that his mesothelioma was caused by the negligence of Ferro Engineering. Because of the exclusive-remedy provisions found in the Workers’ Compensation and Occupational Diseases statutes, the lawsuit was dismissed. Continue reading

In a case decided in the Eastern District of Pennsylvania, Perry v. A.W. Chesterton Inc., it was determined that brakes located onto a rail car are a “part or appurtenance” to a locomotive and therefore the plaintiff’s state law asbestos claims were pre-empted by the federal Locomotive Inspection Act (LIA).  

Alice Perry brought this lawsuit on behalf of her husband, who died of asbestos-related injuries after installing and removing Railroad Friction Products Corp. brake shoes on rail cars.The locomotive is at the front of the train, which pulls the rail cars that carry the cargo of passengers or products.

Perry argued that the specific brakes and brake materials that her husband was exposed to were found only in rail cars and not locomotives. She maintained that her claim was not pre-empted by the LIA, which governs only locomotives.

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