Utah’s Supreme Court recently issued an opinion which dramatically expands premise owners’ liability for asbestos-related injuries. On August 5, 2021, the Court reversed Utah’s Court of Appeals and held that a lawsuit could proceed against two premises owners on the theory that asbestos dust from their facilities was brought home on the clothing of a non-employee contractor, causing his spouse to develop mesothelioma. For the first time, premises owners or operators may be liable for injuries alleged by anyone living under the same roof as one of their former contractors.

Background

In Boynton v. Kennecott Utah Copper, et al., Larry Boynton alleged Continue Reading Utah Expands Premise-Owner Liability To Take-Home Asbestos Plaintiffs

On July 7, 2021, U.S. District Court Judge Eduardo C. Robreno, who oversees the asbestos multi district litigation (MDL 875) in the Eastern District of Pennsylvania, applied a new standard set forth by the U.S. Supreme Court in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019) in granting summary judgment for two turbine defendants accused of causing the decedent’s asbestos-related disease. Defendants General Electric (GE) and CBS Corporation (CBS) allegedly incorporated asbestos-containing components on their products to which the decedent was later exposed. Judge Robreno concluded that, even under the Supreme Court’s new maritime bare metal test, plaintiffs failed to show that the turbines supplied by defendants required the incorporation of asbestos insulation and that the defendants therefore had no duty to warn of any alleged hazards. Whether a defendant’s product “required” the incorporation of an asbestos-containing component is a threshold factor in determining if the defendant can be liable for causing or contributing to an asbestos-related disease under the Supreme Court’s new standard. Devries, et al., v. General Electric Co., et al., Case No. 5:13-cv-00474. Continue Reading Pennsylvania Court Applies Maritime Bare Metal Test in Favor of Defendants

On June 1, 2021, the United States Supreme Court announced it would not accept Johnson & Johnson’s petition for certiorari seeking to overturn a $2.12 billion dollar damages award rendered in Missouri to twenty-two Missouri women who alleged their ovarian cancer was caused from microscopic asbestos fibers in the company’s baby powder and other talc products.

Recently, Johnson & Johnson paid their damages award, including the accrued interest, to the Missouri Tort Victims’ Compensation Fund (“the fund”), a contribution of more than $480 million. Under Missouri state law, once a case reaches final disposition, 50 percent of any punitive damages award, minus attorneys’ fees and expenses, must be deposited into the fund.

The Tort Victims’ Compensation Fund Start

The Missouri legislature established the Tort Victims’ Compensation Fund in 1987 to help compensate tort victims who have been unable to obtain full compensation for their injuries because the party at fault had little or no insurance, or had filed for bankruptcy. Mo. Rev. Stat. § 537.675 (2002). In 2001, the Missouri General Assembly enacted legislation authorizing claims to be made against the fund, giving the Division of Workers’ Compensation the duty to evaluate those claims, and set up criteria for the evaluation of those claims.

Requirements

Those eligible for compensation from the fund must file an application within two years after the judgment becomes final and all appeals are final. Mo. Rev. Stat. Section § 537.684.2 (2002). If there is no judgment, claims must be filed within time limits prescribed pursuant to Mo. Rev. Stat. § 516.120 (1939), except for cases resulting in death, in which case claims must be filed within time limits prescribed pursuant to Mo. Rev. Stat. § 537.100 (2018).

The claim is then evaluated by the Missouri Division of Workers’ Compensation based upon the law and the information the claimant provides. After a claim is evaluated, the Division of Workers’ Compensation will issue an Administrative Determination either denying compensation from the fund, or awarding compensation in a certain dollar amount, not to exceed $300,000. If the claimant is unhappy with their results, they may appeal the Administrative Determination to an Administrative Law Judge or they may appeal the judge’s decision with the Labor and Industrial Relations Commission. Once the value of the claim has been determined, the claimant is entitled to money from the Fund, but not immediately.

The Numbers

According to the Missouri State Treasurer’s Office, the fund totaled $2.9 million as of May 28, 2021. Actual contributions to the victims’ fund are uncommon because most cases settle prior to final disposition. Between August 28, 2001 and December 31, 2010, over 740 claims were filed against the fund. Over $11.3 million has been paid out to the successful claimants. At this time, Missouri states there are no funds to pay claims filed after January 1, 2011. Even though there is currently insufficient money to pay claims filed after January 1, 2011, claimants are still required to file their claim during the applicable statute of limitations period as provided in Mo. Rev. Stat. Section § 537.684.2 (2002). All claims filed are file-stamped and maintained for future review by the state.

Those who are injured outside of the state of Missouri (and are not Missouri residents) are not eligible to make a claim against the fund for the injury. Furthermore, corporations, partnerships, and commercial entities are not eligible to make claims against the fund.

For more information from Husch Blackwell’s Toxic Tort Monitor, visit:

A Scientific Update: Ovarian Cancer and “Tainted Talc”

Summary of 2019 Talc Verdicts

Missouri Court of Appeals Vacates $110 Million Ovarian Cancer Talc Verdict

Talc Cases May Signal Next Wave of Asbestos Claims

The Public Readiness and Emergency Preparedness Act (PREP Act) may provide immunity to product manufacturers and premises owners who face liability from their administration or use of antivirals, drugs, biologics, diagnostics, devices, or vaccines used to treat, diagnose, cure, prevent, or mitigate COVID-19. Continue Reading PREP Act Offers Immunity to Product Manufacturers and Premises Owners from COVID-19 Liability

Last year, we highlighted Iowa’s groundbreaking law to end over-naming of defendants in asbestos and silica litigation. Now, just a year later, three more states have followed suit: North Dakota, Tennessee, and West Virginia. All three states enacted their own versions of legislation aiming to reduce and prevent the over-naming of defendants in asbestos cases. While all three of the bills share similarities, North Dakota’s bill is the most expansive of the three. Continue Reading Three More States Seek to End Over-Naming of Defendants in Asbestos and Silica Litigation

A New Jersey appeals court recently overturned talc verdicts totaling $117 million in damages against Johnson & Johnson Consumer Inc. (JJCI) and Imerys Talc America, Inc. (Imerys) after finding expert testimony was Daubert-less, thus improper and warranted new trials. Continue Reading New Jersey Talc Verdicts Overturned on Appeal for <i>Daubert</i>-Less Expert Opinions

The Iowa Court of Appeals recently affirmed summary judgment for both a premises owner and an installer of asbestos products pursuant to Iowa Code 686B.7(5) (2017), which provides that a defendant in an asbestos action “shall not be liable for exposures from a product or component part made or sold by a third party.”  Beverage v. Alcoa, Inc., No. 19-1852, slip op. (Iowa Ct. App. March 17, 2021).  The Plaintiffs brought suit on behalf of Mr. Beverage, who worked as an independent contractor at an Alcoa aluminum plant around asbestos-containing insulation installed by IITI.  Alcoa and IITI, the only two defendants, filed motions for summary judgment claiming that Section 686B.7(5) provided them with immunity from Plaintiffs’ lawsuit.  The district court granted both Alcoa and IITI’s motions for summary judgment.  On appeal, Plaintiffs argued that the district court erred in granting immunity to Alcoa and IITI by incorrectly interpreting Section 686B.7(5). Continue Reading Iowa Court of Appeals Affirms Summary Judgment in Asbestos Litigation

The Eighth Circuit recently held that a motion to dismiss based on forum non conveniens filed 18 months after the start of litigation was untimely. According to the decision, if the forum was truly inconvenient, the defendants should have filed a motion to dismiss earlier than 18 months after the complaint was filed and before the end of discovery. Continue Reading Eighth Circuit Reverses Dismissal Based on <i>Forum Non Conveniens</i> Motion

Illinois Governor Pritzker signed into law Senate Bill 72 (SB 72), which includes prejudgment interest and amends the Illinois Interest on Judgment Act 735 ILCS 2-1303 (Act). The amendment imposes six-percent prejudgment interest on economic and noneconomic damages in personal injury and wrongful death cases. Prior to SB 72’s passing, Illinois generally only recognized post-judgment interest at nine-percent per annum, running from when the judgment was made to the time it was satisfied. Personal injury plaintiffs generally could not recover losses incurred before judgment, but will be able to following SB 72’s effective date on July 1, 2021. Continue Reading Illinois Governor Signs Law Imposing Six-Percent Prejudgment Interest

The Dallas Court of Appeals sitting en banc recently denied review of a panel decision that reversed an $8.8 million dollar asbestos verdict and rendered a take-nothing judgment in favor of an employer in Bell Helicopter Textron, Inc. v. Dickson. The Court found missing any evidence that the employer knew in the 1960s that the millboards at issue contained asbestos. Because there was no evidence the employer had actual, subjective knowledge of any asbestos exposure risk, the employer could not be held liable under Texas law. Continue Reading Texas Appellate Court Divided On Reversal Of Jury Verdict In Favor Of Mesothelioma Plaintiffs