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NJ Appellate Division Affirms $1.6 Million Asbestos VerdictApril 3, 2015

In a per curium opinion, the New Jersey Appellate Division affirmed an $1.6 million jury award for damages based upon exposure to cosmetic talc. Steven Kaenzig and his wife filed a lawsuit against, among others, Whittaker Clark & Daniels (“Defendant,” all other defendants were dismissed or settled) for negligence and products liability for its failure to warn that its talc contained asbestos.  The Defendant supplied raw talc to Shulton, Inc., the company that owned the facility where asbestos contaminated talcum powder was produced.  Mr. Kaenzig’s father worked at the facility from the time Mr. Kaenzig was born until 1975, when the facility was moved to Tennessee.  Mr. Kaenzig claimed exposure when his father would come home and play with him prior to showering and because his father’s clothes were cleaned in their home.  He testified that he was not exposed to asbestos at any point after his father stopped working at the facility.  

During the trial, the Defendant made several evidentiary motions.  In addition, the Defendant sought to exclude the testimony of the Kaenzigs’ expert as a “net opinion.”  Following the trial, the Defendant sought a judgment for the Kaenzigs’ failure to prove their case.  The trial judge denied Defendants’ motions and the Defendant appealed.  The Appellate Division upheld the contested trial judge’s rulings, finding that the jury instructions were acceptable to handle the evidentiary issues and that there was no abuse of discretion as to the plaintiffs’ expert’s testimony.

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The Second Circuit Orders New Trial For Defendants in Asbestos Abatement CaseJune 13, 2014

On June 10, 2010 a federal grand jury in the Northern District of New York returned an indictment against Certified Environmental Services, Inc. (“CES”), Nicole Copeland, a former CES Technical Services Manager (“Copeland”) and Elisa Dunn, a former CES air monitor and field supervisor (“Dunn”). The indictment charged the defendants with impeding the regulatory functions of the United States Environmental Protection Agency (“EPA”) and the Occupational Health and Safety Administration (“OSHA”), violation of the Clean Air Act, the Toxic Substances Control Act (“TSCA”) and the mail fraud statute.  Substantively, the government charged the defendants with aiding two asbestos companies with performing illegal asbestos removals.  The asbestos companies engaged in “rip and run” removals, in which asbestos is stripped and removed dry, often without the safeguards needed to ensure that the surrounding area is not contaminated.  These removals are cheaper to perform, but require an abatement contractor to obtain clearance of its air monitoring results from a company like CES. 

At trial, the jury found CES, Copeland and Dunn guilty of all of the counts against them.  The defendants appealed the convictions and sought a new trial based upon (1) improper “bolstering”of Government witnesses based upon those witnesses’ cooperation agreements; (2) the exclusion of evidence related to the defendants’ good faith; (3) the Government’s belated production of certain discovery material in violation of Brady v. Maryland; and (4) improper remarks in the Government’s rebuttal summation.

On appeal, the Circuit Court found that the Government, despite warnings by the trial judge, improperly attempted to bolster the credibility of key witnesses by referring to provisions of their cooperation agreements, in the absence of any attack on their credibility by the defense. The Court further held that the district court abused its discretion in several evidentiary rulings, and that the prosecutor made improper comments in his rebuttal summation, including personally vouching for an expert witness .  With regard to the Brady material, the Court found that “the district court’s ruling here reduced any prejudice to a minimum.”  The Court noted that it was disappointed by the Government’s failure to disclose evidence in a timely fashion, but that it was not grounds for a new trial.

The Court acknowledged that it “would hesitate to vacate and remand this case for a new trial based on any one of the errors . . . or perhaps even any one category of those errors.  But considering the record as a whole, [it was] compelled to conclude a new trial is warranted.”  The Court continued ”to conclude that the totality of the Government’s misconduct in this case, combined with the district court’s erroneous exclusion of evidence favorable to the defense, denied the defendants a right to a fair trial.”  The Court ordered a new trial for CES, Copeland and Dunn.  Allen previously entered into a plea agreement.

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Virginia's New "Multiple Sufficient Causes" Test Daunting to Asbestos PlaintiffsMay 30, 2013

The Virginia Supreme Court, in Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013) recently adopted the "Multiple Sufficient Causes" test over the more commonly used "Substantial Contributing Factor" test, creating a more difficult path to recovery for asbestos plaintiffs in the State. In order to meet the more stringent standard for causation, an asbestos plaintiff must establish the specific level of exposure sufficient to cause him or her to get mesothelioma, and also whether that level of exposure caused by a particular defendant.

In Wannall v. Honeywell International Inc., D.D.C., No. 10-351, 5/14/13, the District Court applying Virginia's newly adopted standard, held that the estate of a man exposed the asbestos from several sources failed to prove that exposure to Bendix brake shoes was a sufficient cause of his mesothelioma. The Federal Court reversed the Multidistrict Litigation Court's previous denial of summary judgment to Honeywell in light of the recently adopted standard, decided a few months after the prior MDL Court's opinion.

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$9.4 Million Asbestos Judgment Vacated Because Trial Judge Failed to Properly Assess Expert TestimonyDecember 3, 2012

In Barabin v. AstenJohnson Inc., 9th Cir., No. 10-36142, 11/16/12, the Ninth Circuit vacated a $9.4 Million jury verdict because the District Court judge failed to properly assess proffered expert testimony related to asbestos exposure at a paper mill. The Court of Appeals determined that both the relevance and reliability of the expert testimony were not properly scrutinized by the District Court in its role as "gatekeeper" of such evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

Henry Barabin worked at a paper mill from 1968 to 2001. The plant used dryer felts in the papermaking process. The dryer felts contained asbestos, which Barabin alleges exposure to through 1984. Barabin was later diagnosed with mesothelioma. Barabin proposed to offer expert testimony of an industrial hygienist to testify about the circulation of asbestos fibers in the plant, and that no level of asbestos exposure is safe. At trial, the defendants challenged the expert's qualifications and questioned the reliability and relevance of his opinions. The District Court originally ruled to bar the evidence, but later changed its decision based on the expert's prior expert testimony in numerous courts. At the conclusion of the trial, the jury awarded Barabin $10.2 million in damages, which was reduced to $9,373,152.12.

The Court of Appeals disagreed with the District Court, and held the appropriate admissibility hearing pursuant to Daubert should have been conducted prior to determining whether the expert testimony was admissible. "Unfortunately," the Court of Appeals stated, "because no Daubert hearing was conducted as requested, the District Court failed to assess the scientific methodologies, reasoning, or principals [the expert] applied. The Court of Appeals concluded the judgment must be vacated, and remanded the case to the District Court for a new trial."

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