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Legal Updates for Toxic Torts Litigation

June 21, 2018
Presented by the Asbestos and Mass Tort Litigation Practice Group

Edited by Timothy D. Rau, Esq.

Delaware Jury Awards $40 Million to Asbestos Plaintiff

By Ana McCann 

In Estate of Knecht v. Ford Motor Co., C.A. No. N14C-08-164ASB, a Delaware jury held Ford Motor Co. liable, based on a failure to warn theory, for the asbestos that led to Larry Knecht’s fatal mesothelioma and awarded his estate $40.625 million. One million dollars in punitive damages was also awarded. In a case tried under New Mexico law, the jury found Ford 20% liable, Mr. Knecht 30% liable, and various bankrupt entities shared in the remainder of liability.

Mr. Knecht was a career auto mechanic and eventually owned his own automotive business, which he had for over 25 years. He died seven months after his diagnosis at the age of 71. The trial was held at the Leonard L. Williams Justice Center, in Wilmington, New Castle County, Delaware and presided over by the Honorable Ferris W. Wharton.

Judge Wharton permitted plaintiffs’ counsel to submit all Ford corporate documents into evidence. In addition, various medical asbestos articles were introduced, which Delaware judges typically have not permitted in the past. There were no boardable medical specials submitted in this case, and the jury was described as young and educated, with most jurors being under the age of 40.

At trial, the plaintiffs called Mark Ellis Ginsburg, M.D., a thoracic surgeon from New York, and Barry Castleman, a state-of-the-art expert from Baltimore.

Ford called Herman Gibb, Ph.D., M.P.H., an epidemiologist from Virginia; Mary Beth Beasley, an expert in pathology from Mount Sinai Hospital in New York; and Brent Finley, Ph.D., DABT, a toxicologist from New York.

Ipek Kurul Medford of Dalton & Associates in Wilmington, DE and Danny R. Kraft, Jr. of Weitz & Luxenberg in New York, NY represent the plaintiffs. Rochelle Gumapac of White & Williams in Wilmington, DE; Robert F. Redmond, Jr. of McGuire Woods in Richmond, VA; Robert Palumbos of Duane Morris in Philadelphia, PA; and Terrance Zic of Whiteford Taylor Preston in Bethesda, MD represent Ford.

We will continue to follow this case because an appeal by the defense is likely.

For more information on the verdict, contact Ana McCann of our Wilmington office.

 

Pennsylvania Business Registration Statute Declared Unconstitutional

By Timothy Rau

In a matter currently on appeal to the Pennsylvania Superior Court, Judge Arnold New issued an opinion in which he holds that Pennsylvania’s business registration statute, requiring companies who register to do business in the Commonwealth, to consent to personal jurisdiction.

In the case of Robert Mallory v. Norfolk Southern Rwy. Co., 1709-1961, the plaintiff, a Virginia resident, filed his case in Philadelphia seeking recovery under the Federal Employers Liability Act (FELA) for the development of colon cancer, which he alleged developed as a result of exposures to carcinogens when he was employed by the defendant as a railroad carman in Ohio and Virginia from 1988-2005. Norfolk Southern, a Virginia Corporation with its principal place of business in Virginia, filed Preliminary Objections that sought to dismiss the complaint based on the lack of personal jurisdiction. Judge New sustained the Objections and dismissed the complaint.

In opposition to the Preliminary Objections, the plaintiff asserted that the defendant consented to personal jurisdiction when it registered to do business in Pennsylvania under 42 PA. C.S. Sec 5301. Judge New examined the requirement that corporations register to do business in Pennsylvania and interpreted the statutes to give companies the choice of either consent to personal jurisdiction or not doing business in Pennsylvania. As a result of the choice, Judge New examined whether the statute violated the Due Process clause of the Fourteenth Amendment of the U.S. Constitution.

In citing the Supreme Court’s opinions in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2017), Judge New acknowledged the role that federalism plays in an analysis of whether general personal jurisdiction exists. Judge New reviewed the Supreme Court’s decisions of Daimler, Goodyear, and Tyrell and concluded that Pennsylvania’s statute requiring foreign corporations to consent to general jurisdiction or be prohibited from doing business in the state violated Supreme Court precedent on the issue. He ruled that such a requirement by a state violated these decisions on the issue.

This case will be scheduled for oral argument, and an opinion from the Superior Court should be issued by the end of the year.

For more information on the Mallory case, feel free to contact Tim Rau in our Philadelphia office.

 

 

The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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Timothy D. Rau
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tdrau@mdwcg.com
Ana M. McCann
Special Counsel
(302) 552-4322
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