Articles Posted in Mesothelioma/Asbestos

architect-architecture-blueprint-build-271667-1024x678Sometimes, whether your case takes place in federal court or state court may be out of your hands entirely. Other times, it may be possible for the case to take place in either court. In such situations, it is important to understand possible differences and advantages between state and federal court. When one party wants the case in federal court and the other wants it in state court, things can get tricky, as a 2017 case from the United States Court of Appeals for the Fifth Circuit shows.

Plaintiff Howard Zeringue claimed he was exposed to asbestos in 1952 when he was deployed with the United States Navy. Though he did not provide a time period, he also alleged that he was exposed to asbestos when he worked a job selling insurance in Avondale Shipyard. He filed a lawsuit against Crane Company (“Crane”) and twenty others in state court in Louisiana. Zeringue alleged all were liable for asbestos-causing injuries based on claims of strict liability, negligence, and failure to warn; but specifically stated that Crane and twelve out of the twenty-one defendants were responsible for handling and sending the asbestos-containing products to the places he was exposed.

Crane removed the case to the Eastern District of Louisiana in accordance with the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane claimed that the products it provided for or made for the Navy were subject to the Navy’s requirements and federal officers had discretion about whether the product had asbestos and if it needed a warning label. With its removal petition, Crane supplied affidavits and sample military specifications to show that all asbestos-containing products could not be used in Navy ships without the Navy Machinery Inspectors determining they met the specifications.

clinic-doctor-explaining-2182972-1024x683When an employee is injured on the job, workers’ compensation insurance often delivers more expediently than going through the courts. Unfortunately for the employee, it is also often less money than an injured employee could be awarded by suing the employer. As a Baton Rouge man recently learned, your type of employer can determine whether or not you’re able to sue your employer for work-related injuries. 

J.E. Merit, a contractor, employed Mr. James Fletcher at a Baton Rouge Exxon refinery from 1988 to 1999. Mr. Fletcher claimed that, during this time, Exxon exposed him to asbestos, and that this exposure was the direct cause of his pleural mesothelioma. To recover for this injury, Mr. Fletcher filed a lawsuit against Exxon in the Orleans Parish Civil District Court. The District Court found that, while Mr. Fletcher did work for J.E. Merit, he was also a statutory employee of Exxon. Therefore, the District Court ruled that workers’ compensation, rather than the court process, was the means of recovery for Mr. Fletcher. 

The type of employee-employer relationship makes a difference on whom one can sue. Under La. R.S.23:1032, workers’ compensation is the “exclusive remedy” for injuries sustained by direct employees. This statute protects companies while ensuring an expedient, albeit less compensatory, path for employees. Sometimes, however, the line is not perfectly clear between a direct employee and someone unrelated to an employer. When an employee falls in this gray area, he or she may be classified as a “statutory employee.” 

adult-bed-care-1498927-683x1024In personal injury cases, the plaintiff can only successfully prove the defendant’s negligence if a legal duty of care exists. Where there is no duty of care as a matter of law, a trial court can dismiss the lawsuit by summary judgment. So, when a defendant files a petition for summary judgment claiming that no duty exists, he is saying that even if all of the facts alleged by the plaintiff are true, there still is no duty of care owed by the defendant to the plaintiff. 

For several years in the late 1960s and early 1970s, Huey Chustz worked as an electrician’s helper at the Alma Plantation, a sugar mill in Point Coupee Parish, Louisiana. Chustz would routinely become covered in asbestos dust while working at the mill. He would return home in the evenings where his wife, Elizabeth Sutherland, would launder his clothing, a process which sent the dust into the air. In 2012, Sutherland was diagnosed with malignant pleural mesothelioma. 

Based on her diagnosis, Sutherland filed a claim for damages against Alma Plantation. She died in 2013, after which her children were substituted as Plaintiffs. Alma filed a motion for summary judgment, arguing that it did not owe Sutherland a duty because her injuries were not foreseeable. The trial court granted Alma’s motion for summary judgment, which the Plaintiffs appealed the Louisiana’s Fourth Circuit Court of Appeal.

pollution-1-1235575-1024x851A common tactic of defendants is to attempt to remove a case from state court to Federal Court if there is the slightest indication that such removal might be proper.  Depending on the case, however, it may be more advantageous to a plaintiff to keep the case in state court.  Without even concerning the merits of the case, a battle ensues costing time and money.  In any case, where the Federal Government is even remotely involved, removal will likely be an issue.   How can a plaintiff successfully keep their lawsuit in state court when the Federal Government is involved?  Recent Louisiana asbestos litigation provides at least one way.   

Silas B. Bishop, Joseph L. Dennis, and Lawrence R. Craig worked for many years on different ships as merchant mariners. At least one of the ships that the Plaintiffs worked on was owned by the United States Navy.  United States Naval Ships are operated by civilian contractors who hire merchant mariners such as the Plaintiffs.  The Plaintiffs alleged that they were each exposed to asbestos while on board the various ships and suffered serious injuries and/or death as a result.   At the time of the lawsuit, Mr. Bishop and Mr. Dennis were deceased and their estates were represented by William E. Bartel, who is named as the Plaintiff-Appellee in the case before the United States Court of Appeals for the Fifth Circuit. Plaintiffs filed a lawsuit in Louisiana State Court under the Jones Act and general maritime law.  Plaintiffs sued multiple parties, including “Federal Officer Defendants” who were companies operating the Navy Vessels where Plaintiffs worked.  The Plaintiffs claimed that the injuries they suffered were due to their employers’ failure to warn them about the dangers of asbestos; failure to provide training about using products that contained asbestos; and the failure of their employers to adopt procedures to safely install and remove asbestos.  The Defendants moved to remove the case to Federal Court based on the Federal Officer Removal Statute.   

Pursuant to Federal Officer Removal Statute at  28 U.S.C. § 1442(a)(1), “a lawsuit against or directed to … any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court.  Defendants must show that they are “persons” as defined in the statute; that they acted under the direction of a person working for the federal government; and that there is a relationship between the defendant’s actions and what the plaintiff claims. See Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998). The issue, in this case, was whether there was a causal nexus, or connection, between the Plaintiff’s claims and the Defendant’s actions.   

asbestos-1483119-1024x768It  seems that asbestos can be toxic not only to people, but also to companies as well. Anco sold, distributed, repaired, and installed insulation materials containing toxic asbestos that can cause mesothelioma and cancer from 1972 until the early 1980’s. The company based in Louisiana conducted business in Louisiana, Mississippi and Texas during that time. As a result, it has faced upwards of 2700 lawsuits across the three states.

In 1987 Anco took out a general liability insurance policy with the National Union. This policy failed to include an exclusion of asbestos coverage. Beginning in April 2009 Anco forwarded all pending asbestos related lawsuits to National Union. When National Union failed to pay claims made by Anco, Anco launched suit against the insurer claiming that National Union should be held liable for the defense costs incurred by Anco. However, the court granted summary judgment to many of the claims made by Anco. This meant the trial court found for National Union and dismissed many of Anco’s allegations.

Anco appealed the partial summary judgment found by the trial court. In particular, Anco attempted to appeal the dismissal of the duty of National Union to pay legal costs. Anco cited three main reasons for their appeal. “(1)a genuine dispute of material fact exists as to the date that Anco first tendered claims under the Policy; (2) even if Anco’s tender of the claims was untimely, the district court erred in not excusing Anco’s tardiness; and, (3) the court erred in concluding that Anco’s failure to tender claims timely under the terms of the Policy relieved National Union of its defense obligations because National Union did not claim that it was prejudiced by Anco’s late tender.”

asbestos-1522143-1-1024x768Insurance agreements often include a provision stating that the insurance company will defend their client or absorb the cost of defending if the client is sued. Eagle Incorporated – a New Orleans based provider of drywall, insulation, plaster, and other building materials – was previously insured by OneBeacon Insurance Company (OneBeacon) and United States Fidelity and Guaranty Company (USFG). Both of the insurance companies issued policies covering legal defense costs. That insurance paid off for Eagle when an employee sued for injury sustained from prolonged exposure to asbestos over his twenty-one years of employment.

When the injury alleged arrises over the course of many years and several insurance companies had polices with the defendant over that time, the insurance companies will split the cost to defend. In this case, USFG was the provider for three of the twenty-one year injury period so they would typically pay for that proportion of defense costs. When the employee brought the lawsuit, OneBeacon was the only listed insurance company set to defend Eagle. OneBeacon then asked the court to join USFG so they could split the cost to defend. However, USFG and Eagle had been parties of a prior lawsuit wherein they reached a settlement agreement stating that USFG would pay Eagle an undisclosed amount and in exchange their insurance policy would be altered to free them of the obligation to pay for past, present, or future defense costs. USFG brought this agreement to the court’s attention as a reason why they should not be liable for the present case.

OneBeacon did not want to shoulder the entire cost of defending so it asked the court for a summary judgment voiding the effects of the settlement agreement and ordering USFG to participate. USFG then asked for their own summary judgment validating the settlement agreement and freeing them from defense costs. The trial court sided with OneBeacon, finding that Louisiana disfavors insurance contract alteration when it will prejudice an injured third party and that allowing the settlement agreement alteration to stand would surely affect the other parties.  An appeal of the Louisiana Fourth Circuit Court of Appeal followed.

gdansk-shipyard-6-1503135-1-1024x679Sometimes a party feels that he, she, or it will fare better in a federal court rather than in the state court. At least for defendants, there is a process, known as removal.  This can be accomplished for several reasons, one of them being that the person or entity being sued is the federal government, an officer of the government, or someone acting under the orders of such an officer. This is governed by 28 U.S.C. 1442   However it can be returned to the state court by the plaintiff by asking the federal court to remand it, should the case not meet the standards to be heard in the federal court.  In response, the defendant party might appeal and ask that the remand  be stayed, or essentially halted.  They must, however, meet certain conditions, including that the appellate court find that the party has a likelihood of succeeding in its objective. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410

The federal Fifth Circuit Court of Appeals (which governs Louisiana) recently ruled, reshowing the standard for keeping a lawsuit in the federal court, or taking it back to the state court. In 2013, Mary Wilde was diagnosed with terminal mesothelioma.  She believed this was due to indirect exposure to asbestos through her father who had worked at a shipyard in the 1940s. As such she brought lawsuit against the current owner of that shipyard.  There was evidence that during the  time that her father had been employed for the shipyard, that yard had been used for the construction of ships for the federal government.  Upon this knowledge, the company, Huntington, filed to remove the case to the federal district court, on the basis that the shipyard in question had acted under the order of a federal agent.  Ms. Wilde filed a motion to remand and the district court agreed.  In response, Huntington appealed to stay, or stop for a time, the remand order.

The case went to the Fifth Circuit Court of Appeals in order to determine whether this lawsuit could have indeed been properly removed to federal court.  In order to allow this, Huntington would have to prove that it or its predecessors had acted in the past upon federal orders and that these actions were what caused a plaintiff injury. The Fifth Circuit found that  the shipyard had constructed ships for the federal government and so could be said to have acted under order from a federal agent.  However, the company would have to prove the causation.  Under Winters v. Diamond Shamrock Chemical Company, causation exists when toxic materials are used where the federal government both directs construction, including the use of materials that turn out to be toxic and provides these materials to be used in building.  Winters v. Diamond Shamrock Chemical Co., 149 F. 3d 387 – Court of Appeals, 5th Circuit 1998.

pipes-1197632-1024x768Throughout the last century asbestos was used in many products as an insulator from heat.  Countless workers in the 1940s, 50s, 60s and beyond were exposed to asbestos fibers as part of their daily work.  Those fibers can lie dormant for decades prior to forming mesothelioma cancer that then can metastasis throughout the body.  Once mesothelioma is discovered typically a lawsuit follows in which every possible workplace in which the person was exposed is included as a defendant.  However not all defendants will remain in the lawsuit until trial.  Some will get out by filing motions in which they argue the facts do not support their inclusion in the proceedings.  The following mesothelioma lawsuit out of Shreveport shows what happens when the facts of a case do not support the Plaintiff’s allegations as to certain parties fault.

An employee of Parish Caddo sued his employer after being diagnosed with Mesothelioma in 2013 due to asbestos exposure. William H. Jordan alleged that his employer, R. F. Zimmerman & Company, Inc., was negligent or strictly liable for withholding knowledge of the dangers of asbestos exposure, failing to provide a safe work environment, and failing to protect him from the unreasonably dangerous conditions created by the asbestos on its premises and within its care, custody, or control.

Jordan also joined Progressive Care Center (“PCC”), A/K/A Virginia Hall Nursing Home, among others, as one of the defendants on whose premises he did jobs for. Jordan subsequently died a mere month after he filed his lawsuit. His immediate family was substituted as plaintiffs and asserted survival and wrongful death actions against the defendants. Prior to his premature death, Jordan alleged in a deposition that he worked part-time for Zimmerman during the 1950s and early 1960s, helping his friend James Yates with asbestos installation jobs. The work at the then Virginia Hall Nursing Home involved covering water lines during the construction of the building. The pipes were wrapped with a one-piece asbestos covering that was slit down the middle so it could be fitted around the pipes. Jordan further stated that the materials were already there when he began the job and that he did not see any Virginia Hall employees or take directions from anyone while installing the pipes.

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Mesothelioma has been called “the working man’s disease” as it tends to effect a high percentage of blue collar workers who were exposed to asbestos in various construction trades decades ago. A diagnosis of mesothelioma can be devastating and often leads to many legal questions that the best mesothelioma lawyers in Louisiana can quickly answer. Those questions largely revolve around finding out who the responsible parties are who might owe compensation to the claimant and ultimately what financial award could be paid in mesothelioma cases.  The following asbestos case out of Jefferson Parish Louisiana provides some insight into the what a mesothelioma claimant and his family might receive if the case goes to trial.

William Oddo jr. was a handyman of sorts for over 30 years working with automobiles ships, and appliances. He raised a family on the Westbank of Jefferson Parish and lived to be 81, until he passed away from mesothelioma as a result of exposure to asbestos. Asbestos is a fibrous mineral which used to be common in building materials and automobile brake pads due to its properties of heat resistance. Over the course of his lifetime Mr. Oddo worked and lived with and around asbestos which is said to have given rise to his death.

On June 3, 2011, just one month before his death, Mr. Oddo filed a lawsuit against multiple defendants who allegedly contributed to his contraction of mesothelioma due to his exposure to asbestos. After his passing Mr. Oddo’s wife and two sons, hereafter referred to as the “Oddo family,” converted his case to a survival/ wrongful death action focused on two defendants from the defendant pool; Ford and Sud- Chemie Inc., formally known as and hereafter referred to as “Southern Talc.” The Otto family argued that Ford significantly contributed to Mr. Otto’s contact with asbestos by producing asbestos brake pads that Mr. Otto regularly serviced when he worked for the Jefferson Parish Sheriff’s Office. Additionally, the Otto family contended that Southern Talc was also responsible for Mr. Oddo’s death due to mesothelioma because Southern Talc manufactured fill that was used for Mr. Oddo’s driveway that allegedly contained asbestos.

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.