/raid1/www/Hosts/bankrupt/CAR_Public/131213.mbx
C L A S S A C T I O N R E P O R T E R
Friday, December 13, 2013, Vol. 15, No. 247
Headlines
AK STEEL: "Patrick" Suit Settlement Wins Final Court Approval
ALLTEL CORP: August 2014 Trial Set for Arkansas Class Action
APPLE INC: Wins Judgment in Suit Over Apps That Spy on Users
AT&T INC: "Nwabueze" Suit Settlement Gets Final Court Okay
AU OPTRONICS: Two LCD Execs Released on Bail in Antitrust Suit
BRISTOL-MYERS: Benefitted From Employee's Death, Widow Claims
BRITISH COLUMBIA UNIV: Has Until Dec. 24 to Destroy Sperm Samples
BTB EVENTS: Wins Partial Summary Judgment Ruling in Maldonado Suit
CAESARS ENTERTAINMENT: Still Fights "Birthday Cash" Class Action
CAPITAL ONE: 9th Cir. Vacates Remand Order in "Mondragon" Suit
CHILLICOTHE CORRECTIONAL: Judge Recommends "Payne" Suit Dismissal
CHIPOTLE MEXICAN: Class Certification in False Ad Suit Denied
CITIBANK NA: "LBBW" Suit Consolidated With CDS MDL in New York
COSTA INC: Being Sold to Essilor for Too Little, Class Suit Says
DYNACARE LABORATORIES: Faces Class Suit Over Stolen Flash Drive
GABBY INVESTMENTS: Accused of Sending Fax Blasts to Class Members
GENERAL MILLS: Faces Class Action Over Dangerous Vapors
HEALTH & HUMAN SERVICES: Medicare Doughnut Hole Grew, Class Says
IKEA: Recalls Millions of Children's Lamps Over Choke Injuries
JP MORGAN: Dist. Court Ruling in MCPA Violation Suit Reversed
LIGHTINTHEBOX HOLDING: Youhua Zheng Appointed as Lead Plaintiff
LUMBER LIQUIDATORS: Faces Second Class Action Over Flooring
MAMASO INC: Obtains Favorable Ruling in "Thomas" Case
MITSUBISHI: Sued for Selling Overpriced Defective LaserVue TVs
NATIONAL COLLEGIATE: Media Groups Root for NCAA in High Court
NATIONAL COLLEGIATE: Two Ex-Football Players File Class Action
NATIONAL COLLEGIATE: Head-Trauma Lawsuits Defy Easy Grouping
NEW YORK: Bid for Judgment on Pleadings in TCPA Suit Denied
NIPPON YUSEN: "Senior" Suit Moved to Vehicle Carrier Services MDL
NOVA SCOTIA, CANADA: Class Members Mull Appeal of Court Ruling
NYK LINE: "Davis" Suit Moved to Vehicle Carrier Services MDL
NYK LINE: "Jackson" Suit Moved to Vehicle Carrier Services MDL
PATTON STATE: "Kelso" Suit Dismissed Without Leave to Amend
PHOTOMEDEX INC: Jan. 27 Class Action Lead Plaintiff Deadline Set
PRIME HEALTHCARE: Accused of Charging Inflated Chargemaster Rates
PVR PARTNERS: Being Sold to Regency for Too Little, Suit Says
REGIONAL TITLE: Faces Class Action Over Excessive Closing Fees
SAMSUNG TELECOMS: Court Denies Motion for Class Action Arbitration
ST. JUDE MEDICAL: Court Tosses Bid to Dismiss "O'Neil" Suit
TJ MAXX: Sued Over Use of Theft Contributory Database
TRUMP UNIVERSITY: 9th Circuit Refused to Review Anti-SLAPP Suit
UC LIVERMORE: Lab Retirees to Pursue Legal Class Action
UNILIFE CORP: Faces Securities Suit for Misleading Investors
VAPOR CORP: Defrauds Shoppers Over Free Starter Kit, Suit Claims
WAL-MART: Agrees to Contribute $25MM to Settle Gas Can Lawsuits
WHIRLPOOL CORP: Suit Claimants Seek Recall of Dishwashers
* Bennett Jones Discusses Five Class Action Cost Decisions
Asbestos Litigation
ASBESTOS UPDATE: AMETEK Inc. Continues to Defend Fibro Suits
ASBESTOS UPDATE: ConEdison Has $10-Mil. PI Liability at Sept. 30
ASBESTOS UPDATE: Noble Corp. Has 33 Suits Pending as of Sept. 30
ASBESTOS UPDATE: Alleghany Reports $550.2-Mil LAE Gross Reserves
ASBESTOS UPDATE: Standard Motor Has 2,250 Cases Pending
ASBESTOS UPDATE: FirstEnergy Continues to Defend PI Suits
ASBESTOS UPDATE: Crane Co. Had 53,822 Pending Claims at Sept. 30
ASBESTOS UPDATE: "Nelson" Suit v. Crane Co. Remains Pending
ASBESTOS UPDATE: Crane Co. Awaits Decision in "Dummit" Appeal
ASBESTOS UPDATE: Crane Co. Awaits Decision in "Paulus" Appeal
ASBESTOS UPDATE: Crane Co.'s Appeal in "Suttner" Suit is Pending
ASBESTOS UPDATE: "Hellam" Suit v. Crane Co. Remains Pending
ASBESTOS UPDATE: Crane Co.'s Appeals in 2 Pa. Suits Are Pending
ASBESTOS UPDATE: "Peraica" Suit v. Crane Co. Remains Pending
ASBESTOS UPDATE: Crane Co. Continues to Defend "Holdsworth" Suit
ASBESTOS UPDATE: "Garvin" Suit v. Crane Co. Remains Pending
ASBESTOS UPDATE: Crane Co. Continues to Defend "DeLisle" Suit
ASBESTOS UPDATE: Albany Int'l. Continues to Defend PI Claims
ASBESTOS UPDATE: Albany Int'l. Unit Continues to Defend PI Suits
ASBESTOS UPDATE: "Addison" PI Suit Remanded to State Court
ASBESTOS UPDATE: Bid for Rehearing in "Pfeifer" Suit Denied
ASBESTOS UPDATE: Ohio Appeals Court Affirms "Fisher" Ruling
ASBESTOS UPDATE: Summary Judgment Bids in "Cabasug" Suit Denied
ASBESTOS UPDATE: Mass. Court Won't Rule on Summary Judgment Bid
ASBESTOS UPDATE: Wash. Court Issues Ruling in "Turner" Suit
ASBESTOS UPDATE: Pa. Court Affirms Ruling in "Wilson" Suit
ASBESTOS UPDATE: N.C. Court Affirms Ruling in "Wise" Suit
ASBESTOS UPDATE: La. Court Denies Bid to Remand "Smith" Suit
ASBESTOS UPDATE: 'Ray of Hope' for Mesothelioma Sufferers
ASBESTOS UPDATE: 9/11 Fibro Crews Fear Health Coverage Running Out
ASBESTOS UPDATE: Charlie Chaplin Museum Delayed Due to Fibro Find
ASBESTOS UPDATE: John Lewis Sued for GBP150,000 by Lung Cancer Man
ASBESTOS UPDATE: Victoria Group Continues to Fight Against Fibro
ASBESTOS UPDATE: Plan Would Eliminate Deadly Dust on South Wallace
ASBESTOS UPDATE: Sydney Water Manages Fibro and Lead Contamination
ASBESTOS UPDATE: Group Fears Rising Fibro-Related Deaths
ASBESTOS UPDATE: Inquest Finds No Clear Cause of Worker's Death
ASBESTOS UPDATE: Wisconsin Mine Scales Back Sampling Plans
ASBESTOS UPDATE: Fibro Death Sparks Widow's Plea for Justice
ASBESTOS UPDATE: Fibro Law Experts in Plea to Government
ASBESTOS UPDATE: Fibro Law Could Net Wales NHS GBP1MM Yearly
ASBESTOS UPDATE: Fletcher Spends NZD4MM on Fibro Cleanup
ASBESTOS UPDATE: Weston Carpenter Killed by Fibro Exposure
ASBESTOS UPDATE: Mum Raises Concern Over Deadly Dust
ASBESTOS UPDATE: Fire at Garage Containing Fibro in Longton
ASBESTOS UPDATE: Two New Lung Cancer Suits Filed in Ill. Court
ASBESTOS UPDATE: MPs Speak Out Over Fibro Payout Curbs
ASBESTOS UPDATE: Driving Instructor Killed by Fibro Exposure
ASBESTOS UPDATE: Texas County Inks Fibro Deal for Agri Bldg.
ASBESTOS UPDATE: High Dose Radiaton May Control Mesothelioma
ASBESTOS UPDATE: "Environmental Terrorists" Dumped Toxic Dust
ASBESTOS UPDATE: Scientists, Groups Condemn India's Fibro Use
ASBESTOS UPDATE: La. Court Keeps Jurisdiction Over Fibro Claims
ASBESTOS UPDATE: Fibro Issues to Impact Wakefield Project's Costs
ASBESTOS UPDATE: Fibro Regulators & Researchers Meet in Canterbury
ASBESTOS UPDATE: Dale Alcock Bids to Nail Mesothelioma
ASBESTOS UPDATE: Organization Launches Fibro Mobile App
ASBESTOS UPDATE: Toxic Dust Found in 2 New York Schools
ASBESTOS UPDATE: Fibro Bill Could Threaten Quick Access to Money
ASBESTOS UPDATE: Christchurch Workers Warned on Deadly Dust
ASBESTOS UPDATE: Land of "Mr Fluffy" Fibro House Sold at Auction
ASBESTOS UPDATE: Stoner Closes Road Through Barraba's Fibro Mine
ASBESTOS UPDATE: NY Probe at Exposure Incident in School Continues
ASBESTOS UPDATE: Canterbury Can't Be Left With Fibro Legacy
ASBESTOS UPDATE: Mesothelioma Lawsuit to Stay in La. Court
ASBESTOS UPDATE: Pa. Judge Affirms $2.3MM Plaintiff's Verdict
ASBESTOS UPDATE: Anger Over Dumping of "Highly Toxic" Fibro
ASBESTOS UPDATE: MDL Ct. Says LIA Preempts Railcar Exposure Claims
ASBESTOS UPDATE: General Contractor Denied Summary Judgment
ASBESTOS UPDATE: Nussbaumer Joins Williams Venker Fibro Team
ASBESTOS UPDATE: Koos Environmental Cited for Improper Cleanup
ASBESTOS UPDATE: Fibro Delays Work at Old County Hospital
ASBESTOS UPDATE: Waterloo School Board to OK Fibro Removal Plan
ASBESTOS UPDATE: Jane Hutt Welcomes Fibro Bill
ASBESTOS UPDATE: Australia Warned of 80% Surge in Mesothelioma
*********
AK STEEL: "Patrick" Suit Settlement Wins Final Court Approval
-------------------------------------------------------------
District Judge Michael R. Barrett granted final approval to a
class action settlement in JUDITH A. PATRICK, et al., Plaintiffs,
v. AK STEEL CORPORATION, et al., Defendants, CASE NO. 1:05CV00681,
(S.D. Ohio.).
The Defendant will pay $1,700,000.00 in accordance with the terms
and conditions set forth in the Settlement Agreement.
Class Counsel is awarded attorneys' fees and reimbursement of
their disbursements and expenses in the total amount of $800,000
to be paid by the Defendant.
A copy of the District Court's November 22, 2013 Final Order is
available at http://is.gd/7uo7wTfrom Leagle.com.
ALLTEL CORP: August 2014 Trial Set for Arkansas Class Action
------------------------------------------------------------
Emerson Poynter LLP, a national law firm with offices in Little
Rock, Arkansas and Houston, Texas, on Dec. 4 disclosed that
Arkansans who were charged or paid a $200.00 Early Disconnect
Penalty (which Alltel later renamed its Early Termination Fee) to
Alltel Corporation will soon have their day in Court. Recently,
the Honorable Judge Grisham Phillips of the Circuit Court of
Saline County, Arkansas, set the class action case for trial over
Alltel's objection. The class action claims brought on behalf of
Arkansans will begin on August 13, 2014, and nine days have been
reserved for the trial. Verizon acquired Alltel in 2009.
The Class includes all Arkansas residents who were charged or paid
Alltel's Early Disconnect Penalty or Early Termination Fee on or
after February 16, 2001. Excluded from the Class are employees,
officers, directors and agents of Alltel, and any member of the
Class that decides to exclude themselves. Presently, Alltel has
appealed Judge Grisham's decision denying Alltel's motion to
compel a portion of the Class to arbitration. If you are a member
of the Class and your claims arose while you were an Alltel
customer after May 1, 2004, your claims are the subject of
Alltel's appeal. If the appeal is not heard by August 13, 2014,
your claims will not be tried at the August 2014 trial setting.
Instead, the August 2014 trial will involve the claims of
Mr. Rosenow and all members of the Class with Early Disconnect
Penalty or Early Termination Fee claims prior to May 1, 2004.
The case is styled Peter Rosenow v. Alltel Corporation and Alltel
Communications, Inc., Circuit Court of Saline County, Arkansas,
Third Division, Case No. CV 2006-182-3. Counsel for Mr. Rosenow
and the Class are Scott Poynter of Emerson Poynter LLP in Little
Rock, Arkansas and Todd Turner of Arnold, Batson, Turner & Turner
of Arkadelphia, Arkansas.
Please visit www.allteletfclassaction.com for more information, or
contact Mr. Poynter at the telephone number or email address
below.
CONTACT: Scott E. Poynter, Esq.
Emerson Poynter LLP
1301 Scott St.
Little Rock, AR 72202
Tel: 501.907.2555 or 800.663.9817
E-mail: allteletf@emersonpoynter.com
Web site: http://www.allteletfclassaction.com
APPLE INC: Wins Judgment in Suit Over Apps That Spy on Users
------------------------------------------------------------
Users whose iPhone and iPad apps allegedly tracked their habits
and sold their information to advertisers cannot prove they relied
on Apple's privacy policy, reports Lorraine Bailey at Courthouse
News Service, citing a federal court ruling.
Jonathan Lalo led the first class action in 2010 that claimed
Apple had approved apps for the iPhones and iPads that intercepted
personal information and trackedusers' habits without
authorization.
"Apple claims to review each application before offering it to its
users, purports to have implemented app privacy standards, and
claims to have created 'strong privacy protections' for its
customers," the complaint stated.
Lalo said Apple also claimed that "it does not allow apps to
transmit data about a user without consent."
The class action identified apps such as Dictionary.com, Pandora,
the Weather Channel and Backflip -- creator of the "Paper Toss
app" -- as those that collected and passed along confidential
data, including users' geographic location, age, gender, income,
ethnicity, sexual orientation and political affiliations, to
third-party ad networks.
Eighteen other class actions were ultimately consolidated with
Lalo's case in multidistrict litigation in the Northern District
of California.
U.S. District Judge Lucy Koh granted Apple summary judgment on the
case Monday, November 25, 2013, finding that users cannot show
they relied on Apple's alleged misrepresentations and were harmed
by them.
"Critically, none of the plaintiffs presents evidence that he or
she even saw, let alone read and relied upon, the alleged
misrepresentations contained in the Apple Privacy Policies, SLAs
[Software License Agreements], or App Store Terms and Conditions,
either prior to purchasing his or her iPhone, or at any time
thereafter," Koh wrote (italics in original).
While numerous plaintiffs testified that privacy protection was an
important factor in their decision to buy an iPhone, these claims
lack the specificity to support a fraud claim, the judge found.
"Plaintiffs each allude to a vague 'understanding' regarding
Apple's privacy policies without providing any evidence whatsoever
concerning the basis for this understanding," the 30-page judgment
states. "But a vague 'understanding' about Apple's privacy
policies is not enough. To survive summary judgment, plaintiffs
are required to set forth 'specific facts' in support of
standing."
That each of the plaintiffs had an iTunes account, requiring them
agree to Apple's privacy policy, also does not indicate reliance.
"The mere fact that plaintiffs had to scroll through a screen and
click on a box stating that they agreed with the Apple Privacy
Policy in July 2010 does not establish, standing alone, that
plaintiffs actually read the alleged misrepresentations contained
in that privacy policy, let alone that these misrepresentations
subsequently formed the basis for plaintiffs' 'understanding'
regarding Apple's privacy practices," Koh said.
In a previous ruling, Koh blocked the plaintiffs from seeking
damages for the collection of personal information itself because
they did not show that the collection caused concrete harm.
The plaintiffs had still sought economic damages, arguing that
they overpaid for their iPhones given the decreased battery life
and bandwidth caused by the apps' data collection practices.
But without "some evidence that [plaintiffs] saw one or more of
Apple's alleged misrepresentations, that they actually relied on
those misrepresentations, and that they were harmed thereby," the
plaintiffs have no case, Koh concluded (italics in original).
The Plaintiffs are represented by:
Avi Melech Kreitenberg, Esq.
KAMBERLAW, LLP
1180 South Beverly Drive, Suite 601
Los Angeles, CA 90035
Telephone: (310) 400-1052
Facsimile: (310) 400-1056
E-mail: akreitenberg@kamberlaw.com
- and -
Deborah Kravitz, Esq.
KAMBERLAW LLP
141 North Street
Healdsburg, CA 95448
Telephone: 202-285-2560
E-mail: dkravitz@kamberlaw.com
- and -
David A. Stampley, Esq.
KAMBERLAW, LLC
100 Wall Street, 23rd Floor
New York, NY 10005
Telephone: (212) 920-3072
Facsimile: (212) 920-3081
E-mail: dstampley@kamberlaw.com
- and -
Scott A. Kamber, Esq.
KAMBERLAW, LLC
11 Broadway, 22nd Floor
New York, NY 10004
Telephone: (212) 920-3072
Facsimile: (212) 920-3081
E-mail: skamber@kamberlaw.com
- and -
David Christopher Parisi, Esq.
PARISI & HAVENS LLP
15233 Valleyheart Drive
Sherman Oaks, CA 91403
Telephone: (818) 990-1299
Facsimile: (818) 501-7852
E-mail: dcparisi@parisihavens.com
- and -
Richard A. Lockridge, Esq.
Karen Hanson Riebel, Esq.
Robert K. Shelquist, Esq.
LOCKRIDGE GRINDAL NAUEN LLP
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: ralockridge@locklaw.com
khriebel@locklaw.com
rkshelquist@locklaw.com
- and -
Melissa Ryan Clark, Esq.
Anne Marie Vu, Esq.
Leigh Smith, Esq.
Peter E. Seidman, Esq.
MILBERG LLP
One Pennsylvania Plaza, 49th Floor
New York, NY 10119
Telephone: (212) 946-9344
E-mail: mclark@milberg.com
avu@milberg.com
lsmith@milberg.com
pseidman@milberg.com
- and -
David E. Azar, Esq.
MILBERG LLP
300 South Grand Avenue, Suite 3900
Los Angeles, CA 90071
Telephone: (213) 617-1200
Facsimile: (213) 624-0643
E-mail: dazar@milberg.com
- and -
Sabrina S. Kim, Esq.
MILBERG LLP
PO Box 5000
Rancho Santa Fe, CA 92067
E-mail: skim@milberg.com
- and -
William M. Audet, Esq.
Jonas Palmer Mann, Esq.
Michael Andrew McShane, Esq.
AUDET & PARTNERS, LLP
221 Main Street, Suite 1460
San Francisco, CA 94105
Telephone: (415) 568-2555
Facsimile: (415) 568-2556
E-mail: waudet@audetlaw.com
jmann@audetlaw.com
mmcshane@audetlaw.com
- and -
Jeremy Reade Wilson, Esq.
WILSON TROSCLAIR & LOVINS
302 N. Market St., Suite 501
Dallas, TX 75202
Telephone: (214) 430-1930
Facsimile: (214) 276-1475
E-mail: jeremy@wtlfirm.com
- and -
Nabil Majed Nachawati, II, Esq.
FEARS NACHAWATI LAW FIRM
4925 Greenville Avenue, Suite 715
Dallas, TX 75206
Telephone: (214) 890-0711
Facsimile: (214) 890-0712
E-mail: mn@fnlawfirm.com
- and -
Joseph H. Malley, Esq.
LAW OFFICE OF JOSEPH H. MALLEY, PC
1045 North Zang Boulevard
Dallas, TX 75208
Telephone: (214) 943-6100
E-mail: malleylaw@gmail.com
- and -
Donald Chidi Amamgbo, Esq.
AMAMGBO & ASSOCIATES
7901 Oakport Street, Suite 4900
Oakland, CA 94621
Telephone: (510) 615-6000
Facsimile: (510) 615-6025
E-mail: donald@amamgbolaw.com
- and -
Reginald Von Terrell, Esq.
THE TERRELL LAW GROUP
Post Office Box 13315, PMB #148
Oakland, CA 94661
Telephone: (510) 237-9700
Facsimile: (510) 237-4616
E-mail: reggiet2@aol.com
- and -
Daniel E. Becnel, Jr., Esq.
BECNEL LAW FIRM, L.L.C.
106 West Seventh Street
P.O. Drawer H
Reserve, LA 70084-2095
Telephone: (985) 536-1186
Facsimile: (985) 536-6445
E-mail: dbecnel@becnellaw.com
- and -
John F. Nevares, Esq.
JOHN F. NEVARES & ASSOC. PSC
P.O. Box 13667
San Juan, PR 00908-3667
Telephone: (787) 722-9333
Facsimile: (787) 721-8820
E-mail: jfnevares@nevareslaw.com
- and -
Fred Robert Rosenthal, Esq.
PARKER WAICHMAN & ALONSO, LLP
6 Harbor Park Drive
Port Washington, NY 11050
Telephone: (516) 466-6500
Facsimile: (516) 466-6665
E-mail: frosenthal@yourlawyer.com
- and -
Jerrold S. Parker, Esq.
PARKER & WAICHMAN, LLC
111 Great Neck Road, 1st Floor
Great Neck, NY 11021
Telephone: (516) 466-6500
Facsimile: (516) 466-6665
E-mail: Jerry@yourlawyer.com
- and -
Alan M. Mansfield, Esq.
THE CONSUMER LAW GROUP
10200 Willow Creek Road, Suite 160
San Diego, CA 92131
Telephone: (619) 308-5034
Facsimile: (888) 341-5048
E-mail: alan@clgca.com
- and -
E. Kirk Wood, Esq.
WOOD LAW FIRM LLC
P.O. Box 382434
2001 Park Place North, Suite 1000
Birmingham, AL 35238
Telephone: (205) 612-0243
Facsimile: (205) 705-1223
E-mail: ekirkwood1@bellsouth.net
- and -
Joe R. Whatley, Jr., Esq.
WHATLEY DRAKE & KALLAS LLC
2001 Park Place North, Suite 1000
P. O. Box 10647
Birmingham, AL 35202-0647
Telephone: (205) 328-9576
Facsimile: (205) 328-9669
E-mail: jwhatley@wdklaw.com
- and -
Thomas Dominic Mauriello, Esq.
MAURIELLO LAW FIRM, APC
350 Sansome Street, Suite 400
San Francisco, CA 94104
Telephone: (415) 677-1238
Facsimile: (949) 606-9690
E-mail: tomm@maurlaw.com
- and -
Aaron C. Mayer, Esq.
MAYER LAW GROUP
18 Carolina Street, Suite B
Charleston, SC 29403
Telephone: (843) 376-4929
Facsimile: (888) 446-3963
E-mail: aaron@mayerlawgroup.com
- and -
Brian William Smith, Esq.
SMITH & VANTURE, LLP
1615 Forum Place
West Palm Beach, FL 33401
Telephone: (561) 684-6330
Facsimile: (561) 688-0630
E-mail: bws@smithvanture.com
- and -
Howard Weil Rubinstein, Esq.
LAW OFFICES OF HOWARD W. RUBINSTEIN
1615 Forum Place, Suite 4C
West Palm Beach, FL 33401
Telephone: (832) 715-2788
Facsimile: (561) 688-0630
- and -
Monica R. Kelly, Esq.
RIBBECK LAW CHARTERED
505 North Lake Shore Drive, Suite 102
Chicago, IL 60611
Telephone: (312) 822-9999
E-mail: monicakelly@ribbecklaw.com
- and -
Eric M. Quetglas-Jordan, Esq.
QUETGLAS LAW OFFICE
PO Box 16606
San Juan, PR 00908-6606
Telephone: (787) 722-7745
Facsimile: (787) 725-3970
E-mail: eric@quetglaslaw.com
- and -
Corina MacCarin, Esq.
Gillian Leigh Wade, Esq.
Sara Dawn Avila, Esq.
MILSTEIN ADELMAN LLP
2800 Donald Douglas Loop North
Santa Monica, CA 90405
Telephone: (310) 396-9600
Facsimile: (310) 396-9635
E-mail: gwade@milsteinadelman.com
savila@milsteinadelman.com
- and -
Richard Alan Proaps, Esq.
8150 Greenback Lane, Building 200
Fair Oaks, CA 95628
Telephone: (916) 722-1665
Facsimile: (916) 722-4881
E-mail: rproaps@aol.com
- and -
William Charles Gray, Esq.
1926 N. Lincoln Park West #2D
Chicago, IL 60614
Telephone: (312) 925-8880
E-mail: williamcgray@gmail.com
- and -
Christian G. Montroy, Esq.
MONTROY LAW OFFICES
412 Missouri Avenue
East St. Louis, IL 62201
Telephone: (800) 333-5297
Facsimile: (618) 274-8369
E-mail: CMontroy@MontroyLaw.com
- and -
Judy L. Cates, Esq.
CATES LAW FIRM-SWANSEA
216 West Pointe Drive, Suite A
Swansea, IL 62226
Telephone: (618) 277-3644
Facsimile: (618) 277-7882
E-mail: jcates@cateslaw.com
The Defendants are represented by:
Gail E. Lees, Esq.
GIBSON DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
E-mail: glees@gibsondunn.com
- and -
Joshua Aaron Jessen, Esq.
GIBSON DUNN & CRUTCHER LLP
3161 Michelson Drive, Suite 1200
Irvine, CA 92612
Telephone: (949) 451-3800
Facsimile: (949) 451-4220
E-mail: jjessen@gibsondunn.com
- and -
Barbara Ann Izzo, Esq.
FLURRY, INC.
282 2nd Street, Suite 202
San Francisco, CA 94105
Telephone: (415) 659-9095
E-mail: barb@flurry.com
- and -
Matthew Dean Brown, Esq.
Michael Graham Rhodes, Esq.
COOLEY LLP
101 California St., Floor 5
San Francisco, CA 94111-5800
Telephone: (415) 693-2000
Facsimile: (415) 693-2222
E-mail: brownmd@cooley.com
rhodesmg@cooley.com
- and -
Genevieve Patricia Rosloff, Esq.
Joseph Charles Gratz, Esq.
Michael Henry Page, Esq.
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: (415) 362-6666
Facsimile: (415) 236-6300
E-mail: grosloff@durietangri.com
jgratz@durietangri.com
mpage@durietangri.com
- and -
David Alan Bateman, Esq.
KIRKPATRICK & LOCKHART PRESTON GATES & ELLIS LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-1158
Telephone: (206) 623-7580
Facsimile: (206) 623-7022
E-mail: david.bateman@klgates.com
- and -
Rachel R. Davidson, Esq.
K&L GATES LLP
Four Embarcadero Center, Suite 1200
San Francisco, CA 94111
Telephone: (415) 882-8200
Facsimile: (415) 882-8220
E-mail: rachel.davidson@klgates.com
- and -
Seth Alan Gold, Esq.
K&L GATES LLP
10100 Santa Monica Blvd., 7th Floor
Los Angeles, CA 90067
Telephone: (310) 552-5000
E-mail: seth.gold@klgates.com
- and -
Jonathan David Moss, Esq.
Sascha Von Mende Henry, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
333 South Hope Street, 43rd Floor
Los Angeles, CA 90071-1422
Telephone: (213) 620-1780
Facsimile: (213) 620-1398
E-mail: jmoss@sheppardmullin.com
shenry@sheppardmullin.com
- and -
Laurence F. Pulgram, Esq.
Tyler Griffin Newby, Esq.
FENWICK & WEST LLP
555 California Street, Suite 1200
San Francisco, CA 94104
Telephone: (415) 875-2300
Facsimile: (415) 281-1350
E-mail: lpulgram@fenwick.com
tnewby@fenwick.com
- and -
Mali Beck Friedman, Esq.
Simon J. Frankel, Esq.
COVINGTON & BURLING
One Front Street, 35th Floor
San Francisco, CA 94111
Telephone: (415) 591-7059
Facsimile: (415) 955-6559
E-mail: mfriedman@cov.com
sfrankel@cov.com
- and -
Jennifer Stisa Granick, Esq.
350 Townsend Street, Suite 612
San Francisco, CA 94107
Telephone: (415) 684-8111
Facsimile: (424) 298-8589
E-mail: granicklaw@granick.com
- and -
James Donato, Esq.
Jiyoun Chung, Esq.
SHEARMAN & STERLING LLP
Four Embarcadero Center, Suite 3800
San Francisco, CA 94111
Telephone: (415) 616-1100
Facsimile: (415) 616-1199
E-mail: jdonato@shearman.com
jiyoun.chung@shearman.com
The case is In Re: iPhone/iPad Application Consumer Privacy
Litigation, Case No. 5:11-md-02250-LHK, in the U.S. District Court
for the Northern District of California (San Jose).
AT&T INC: "Nwabueze" Suit Settlement Gets Final Court Okay
----------------------------------------------------------
District Judge Susan Illston granted final approval of a class
settlement in the case captioned JOY NWABUEZE, individually and on
behalf of a class of similarly situated individuals, Plaintiffs,
v. AT&T INC., et al., Defendants, NO. C 09-01529 SI, (N.D. Cal.).
The terms of the Settlement Agreement as modified by the parties
are approved and all objections to the Settlement are overruled,
Judge Illston held.
The Class Representatives are each awarded $5,000 as an incentive
award.
However, the Court deferred ruling on the attorneys' fees and
expenses and ordered the Class Counsel to provide the Court with
more detailed information regarding the tasks performed by each
attorney and the expenses each firm incurred, to aid the Court in
accurately calculating fair and reasonable attorneys' fees and
expenses.
These supplemental materials must be filed no later than
December 13, 2013, Judge Illston said.
A copy of the District Court's November 27, 2013 Order is
available at http://is.gd/zDcJScfrom Leagle.com.
AU OPTRONICS: Two LCD Execs Released on Bail in Antitrust Suit
--------------------------------------------------------------
Scott Graham, writing for The Recorder, reports that two Taiwanese
LCD executives have been ordered released on bail following oral
arguments in their antitrust case before the Ninth Circuit.
While not a decision on the merits of the appeal, last week's
order in United States v. Chiung appears to roll storm clouds over
the government's high-profile win -- including a $500 million
fine -- in its prosecution of an international price-fixing scheme
in the market for liquid crystal display screens.
Judges Sidney Thomas, M. Margaret McKeown and Virginia Kendall
ordered Hsuan Bin Chen and Hui Hsiung -- the former president and
executive vice president, respectively, of AU Optronics --
released on bail on Dec. 5, freeing them at least temporarily from
their three-year prison sentences.
"We conclude that the defendants have raised substantial questions
of law or fact, which, if decided in their favor are likely to
result in reversal of the convictions," the Ninth Circuit panel
wrote in a brief, unsigned order.
A Ninth Circuit motions panel made up of different judges had
previously denied bail pending appeal. But that was before
briefing and an October argument in which Judges McKeown and
Thomas suggested that Ninth Circuit case law does not recognize a
per se violation of the Sherman Act for price fixing that occurs
overseas. That was the theory under which U.S. District
Judge Susan Illston of the Northern District had instructed the
jury.
"To adopt your position," Judge McKeown told Kristen Limarzi of
the Justice Department's antitrust division, "we would have to
basically read Metro Industries [v. Sammi] as somehow in the end
shying away from the statement that any foreign conduct has to be
judged by the rule of reason."
Judge Thomas also suggested that some elements of the crime may
not have been presented to the grand jury.
Following the argument, Hsiung and Chen's attorneys at Cooley,
Hogan Lovells and Riordan & Horgan renewed their bail motion.
They argued there was no contention that Chen and Hsiung posed a
flight risk or any threat of violence. That left only the issue
of whether they had raised "substantial questions" about their
convictions.
DOJ had opposed, with Ms. Limarzi writing that the motion "is
based solely on the court's decision to hold oral argument and
pose questions to government counsel during that argument."
But the court agreed with Chen and Hsiung.
"In making this determination, we express no opinion on the
ultimate merits or outcome of the appeal," the Ninth Circuit panel
stated in its unsigned order. "We simply determine that the
defendants have raised at least one 'fairly debatable, or fairly
doubtful' question of law or fact."
Chen and Hsiung have so far served about nine months of their
sentences. Riordan & Horgan's Dennis Riordan said a hearing on
bail conditions has been set for today, December 13, before
Judge Illston.
BRISTOL-MYERS: Benefitted From Employee's Death, Widow Claims
-------------------------------------------------------------
After her husband died, Bristol-Myers Squibb slipped up and
accidentally informed his widow that it had taken out a $6 million
life insurance policy on the rank-and-file worker, without an
insurable interest in him and without telling him or his family
about it, the widow claims in court, according to Lorraine Bailey
at Courthouse News Service.
Gigi Simmons, administrator of her late husband's estate, filed a
class action against Bristol-Myers Squibb and an "as-yet unknown
insurance company," in Federal Court.
After Bruce Simmons died in 2012, his widow sought financing for
his funeral, and provided a third-party financier documents
detailing the life-insurance policy Bruce had purchased through
his former employer, Bristol-Myers Squibb.
"Bristol-Myers' benefits department would not verify the coverage
when it was contacted by the third-party financier," the widow
says in the complaint.
But when funeral home owner Sam Rawls contacted the drug company,
"an employee of the Bristol-Myers' benefits department told Mr.
Rawls that there was a $6,000,000 policy on Mr. Simmons' life,"
the lawsuit states. "Astonished at the amount of the coverage,
Mr. Rawls began to question the Bristol-Myers employee about the
policy. The employee refused to give Mr. Rawls any additional
information and said she probably 'was not supposed to have said
anything about it.'
"The employee's statement that Mr. Simmons was covered by a
$6,000,000 policy was astonishing because it was many times
greater than any policy Mr. Simmons had ever purchased. Based on
the statement of the Bristol-Myers Squibb employee that Mr.
Simmons was covered by a $6,000,000 life insurance policy, Gigi
Simmons believes, and therefore alleges, that Bristol-Myers bought
a policy of 'corporate-owned life insurance' to insure her
husband's life and named Bristol-Myers, or some entity that
benefited Bristol-Myers, as the policy beneficiary.
"Bruce Simmons was not an officer of Bristol-Myers. He was not a
member of the company's board of directors and was not a key
employee. He was not indebted to the company and was not related
to Bristol-Myers by blood or marriage. Mr. Simmons was a rank-
and-file employee of the company. He was never informed about any
policy of corporate-owned life insurance that insured his life and
he never consented to such a policy."
Since Bristol-Myers has no insurable interest in Bruce Simmons'
life, the unknown insurance company that issued the policy must
hold the money in trust for his estate, the complaint states.
Simmons seeks a court order awarding class members all policy
benefits Bristol-Myers received from the deaths of rank-and-file
employees, with interest.
The Plaintiff is represented by:
Julie Marie Goodwin, Esq.
Michael I. Kanovitz, Esq.
LOEVY & LOEVY
312 North May Street, Suite 100
Chicago, IL 60607
Telephone: (312) 243-5900
E-mail: julie@loevy.com
mike@loevy.com
The case is Gigi Simmons, as the Administrator of the Estate of
Bruce Simmons, deceased, on behalf of herself and a class of
others similarly situated v. Bristol-Myers Squibb Company, et al.,
Case No. 1:13-cv-08531, in the United States District Court for
the Northern District of Illinois.
BRITISH COLUMBIA UNIV: Has Until Dec. 24 to Destroy Sperm Samples
-----------------------------------------------------------------
Vivian Luk, writing for The Canadian Press, reports that more than
1,200 people who have sperm and embryo samples stored at a B.C.
fertility clinic may see those specimens destroyed in a few weeks'
time. The group includes hundreds of men involved in a class-
action lawsuit against the University of British Columbia.
A B.C. Supreme Court judge has said he will give a clinic at the
B.C. Women's Centre for Reproductive Health permission to destroy
and dispose of the specimens if clients don't let the clinic know
by Dec. 24 that they want the samples transferred to another
facility.
The clinic, run by the Children's and Women's Health Centre of
B.C. branch, has been storing sperm specimens for more than 400
class-action members since 2010, when those samples were
transferred from a lab run by UBC.
The group, led by lead plaintiff Howard Lam, is suing the
university after a power failure in 2002 destroyed hundreds of
sperm samples. But the fertility clinic also stores sperm and
embryo samples for about 850 other people, and it applied in
October for a B.C. Supreme Court order to dispose of all
specimens.
The clinic stopped operating last year, none of its clients are
paying for storage, and it doesn't have the money to keep storing
the specimens, say court documents posted online last week.
Lawyer Arthur Grant, who is representing the plaintiffs in the
lawsuit, had argued against the order, as it could "negatively
impact the rights of the plaintiff and class members in the class
action."
But Justice Bruce Butler said in his ruling that the order is
warranted because the clinic has done its due diligence.
"The applicant has gone through an extensive process in an attempt
to contact all individuals who have stored their specimens at the
fertility clinic," he said in his decision.
The class members, many of whom were cancer patients about to
undergo medical treatments, had their sperm preserved for an
annual fee in a freezer at the UBC Andrology Lab. The freezer was
set at temperatures below -130 Celsius, but it experienced a power
failure and the sperm samples were damaged.
BTB EVENTS: Wins Partial Summary Judgment Ruling in Maldonado Suit
------------------------------------------------------------------
ARTURO MALDONADO, et al., Plaintiffs, v. BTB EVENTS &
CELEBRATIONS, INC., et al., Defendants, NO. 12 CIV. 5968 (PAE),
(S.D. N.Y.), asserts claims, under federal and state law, that a
catering company underpaid its food-delivery workers.
Defendants BTB Events & Celebrations, Inc., Between the Bread II,
Ltd., and Cookie Panache by Between the Bread, Ltd. are companies
that together form a New York catering and event planning business
that operates under the name "Between the Bread." Plaintiffs are
current or former employees whose work involved making food and
related deliveries in connection with Between the Bread's catering
and banquet lines of business.
The lawsuit centers on a mandatory charge that Between the Bread
imposed in connection with delivery orders placed over the phone.
For those orders, Between the Bread added a mandatory surcharge to
customer invoices amounting to 11% of the total food and drink
bill (the 11% surcharge). However, it did not treat the 11%
surcharge as a tip or gratuity owed to delivery personnel.
Plaintiffs sue under the Fair Labor Standards Act, 29 U.S.C.
Sections 201 et seq., the New York Labor Law, Sections 190 et seq.
& Sections 650 et seq., and regulations promulgated under the NYLL
by the New York State Department of Labor, see N.Y. Comp. Codes R.
& Regs. tit. 12, Sections 137-1.1 et seq., claiming that under the
FLSA and NYLL, the 11% surcharge was a tip or gratuity, and that
Between the Bread was not entitled to withhold a portion of the
charge from them.
Defendants defend these practices on the ground, inter alia, that
the 11% surcharge added to delivery invoices was not a gratuity
under federal or state law, and that the proceeds from this charge
may be used to satisfy their statutory minimum-wage obligations.
The parties cross-move for partial summary judgment, solely on the
issue of whether the 11% surcharge constituted a gratuity under
the FLSA or the NYLL.
In a November 22, 2013 Opinion & Order available at
http://is.gd/HFUvLTfrom Leagle.com, District Judge Paul A.
Engelmayer ruled that (1) as to the FLSA, the Defendants' motion
for partial summary judgment is granted, and the Plaintiffs'
motion is denied; and (2) as to the NYLL, for the period through
and including December 31, 2010, the Defendants' motion for
partial summary judgment is granted, and the Plaintiff's motion is
denied, whereas for the period from January 1, 2011, through
September 26, 2012, the final date covered by the case, the
Plaintiffs' motion for partial summary judgment is granted and the
Defendants' motion is denied.
CAESARS ENTERTAINMENT: Still Fights "Birthday Cash" Class Action
----------------------------------------------------------------
Wayne Parry, writing for Associated Press, reports that more than
10 years after a promotion offering $15 in "birthday cash" to
patrons resulted in a class-action lawsuit, a casino company is
still fighting a multi-million dollar payout it was ordered to
make.
Caesars Entertainment lost a court ruling three years ago stemming
from the August 2003 promotion, under which a Middlesex County
woman tried unsuccessfully to redeem her voucher at Harrah's
Resort Atlantic City.
It all started on Saturday, Aug. 9, 2003, when Debra Smerling went
to Harrah's Resort Atlantic City clutching a voucher she had
received offering $15 for her birthday as part of the casino's
"Total Rewards" customer loyalty program. The card was good on
Sunday, Aug. 10, although Ms. Smerling's actual birthday is
Aug. 8.
At 12:30 a.m. Sunday, she tried to redeem the voucher. But the
casino refused, saying the offer was not good until 8:00 a.m.
Refusing to wait 7 1/2 hours to claim $15, she left and filed a
class-action lawsuit.
The voucher did say it must be presented at the Total Rewards
Center, then listed the center's hours of operation as 8:00 a.m.
to midnight Sunday through Friday, and 8 a.m. until 2:00 a.m.
Saturday.
In 2010, a state Superior Court judge in Middlesex County ruled
that Harrah's had violated New Jersey's truth-in-advertising laws.
The court awarded $5.2 million to thousands of plaintiffs, each of
whom stands to get $100.
In a filing on Dec. 4 with the U.S. Securities and Exchange
Commission, Caesars said a New Jersey Supreme Court case decided
since then has clarified two aspects of the New Jersey Truth in
Consumer Contract, Warranty and Notice Act. The company said the
rulings "support our contention that the existing judgment against
us should be vacated and the case dismissed in our favor."
In the securities filing, Caesars said it plans to file an appeal
as soon as a lower court formally enters a ruling it made last
month denying both sides' request for a reconsideration of the
case. Caesars spokesman Gary Thompson declined to comment beyond
what was in the filing because the case remains in litigation.
Andrew Wolf, Ms. Smerling's attorney, said he is not surprised the
casino giant is continuing its fight.
"They've made it clear for years that they're going to appeal," he
said. "We believe the court got it right in finding violations of
New Jersey consumer protection regulations."
Subsequent rulings have whittled down the size of Caesars'
potential liability in the case from nearly $8 million to the
current $5.2 million.
CAPITAL ONE: 9th Cir. Vacates Remand Order in "Mondragon" Suit
--------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit vacated a
remand order issued by the United States District Court for the
Southern District of California in the class action lawsuit
captioned Jose Mondragon, individually and on behalf of all others
similarly situated v. Capital One Auto Finance, a Division of
Capital One, N.A. The Ninth Circuit remanded the case with
instructions to allow Mr. Mondragon an opportunity, if he so
chooses, to renew his motion to remand and to gather evidence to
prove that more than two-thirds of putative class members are
citizens of California.
The Plaintiff-Appellee is represented by:
Christopher P. Barry, Esq.
Lacee B. Smith, Esq.
ROSNER BARRY AND BABBITT LLP
10085 Carroll Canyon Road, Suite 100
San Diego, CA 92131
Telephone: (858) 348-1005
The Defendants are represented by:
Hunter Eley, Esq.
William H. Edmonson, Esq.
Johari N. Townes, Esq.
DOLL AMIR & ELEY LLP
1888 Century Park East
Los Angeles, CA 90067
Telephone: (310) 557-9100
E-mail: heley@dollamir.com
wedmonson@dollamir.com
jtownes@dollamir.com
- and -
David Neal Anthony, Esq.
Nicholas Richard Klaiber, Esq.
Alan Durrum Wingfield, Esq.
TROUTMAN SANDERS LLP
1001 Haxall Point
Richmond, VA 23219
Telephone: (804) 697-5410
E-mail: david.anthony@troutmansanders.com
nicholas.klaiber@troutmansanders.com
alan.wingfield@troutmansanders.com
The appellate case is Jose Mondragon v. Capital One Auto Finance,
et al., Case No. 13-56699, in the United States Court of Appeals
for the Ninth Circuit. The original case is Jose Mondragon v.
Capital One Auto Finance, et al., Case No. 3:13-cv-00363-H-RBB, in
the United States District Court for the Southern District of
California.
CHILLICOTHE CORRECTIONAL: Judge Recommends "Payne" Suit Dismissal
-----------------------------------------------------------------
Lowell N. Payne, Jr., an inmate at the Chillicothe Correctional
Institution, brought a prisoner civil rights action under
42 U.S.C. Section 1983 alleging that defendants prevented him from
providing legal assistance to other inmates. Mr. Payne sought to
maintain this lawsuit as a class action with himself representing
the class. The matter is before the Magistrate Judge for a Report
and Recommendation on initial screening of the complaint pursuant
to 28 U.S.C. Section 1915A(a) and (b)1 and 42 U.S.C. Section
1997e(c) to identify cognizable claims, and to dismiss the
complaint, or any portion of it, which is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.
In a November 22, 2013 Initial Screening Report and Recommendation
available at http://is.gd/u6cK2mfrom Leagle.com, Magistrate Judge
Mark R. Abel finds that the complaint fails to state a claim upon
which relief may be granted and, therefore, recommends dismissal
of the complaint.
The case is Lowell N. Payne, Jr. Plaintiff v. Cathy Pummill, et
al., Defendants, CIVIL ACTION NO. 2:13-CV-1172, (S.D. Ohio.).
CHIPOTLE MEXICAN: Class Certification in False Ad Suit Denied
-------------------------------------------------------------
Venable LLP's David D. Conway -- ddconway@Venable.com -- and
Edward P. Boyle -- epboyle@Venable.com -- writing for Law360,
report that purveyors of mass-retail food products may have a new
reason to rejoice this holiday season.
On Dec. 2, the U.S. District Court for the Central District of
California, in Hernandez v. Chipotle Mexican Grill Inc., quietly
issued a three-page in-chambers order denying class certification
in a false advertising action challenging Chipotle's claim that
its products contain "naturally raised" meat.
The class certification denial alone is notable given California's
famously broad consumer protection laws. Even more significant is
the court's reasoning, which seems to stem from the growing trend
among federal courts of barring class certification on
ascertainability grounds.
The Chipotle decision is the latest instance of an emerging
obstacle for consumer class action plaintiffs: How to confront the
often insurmountable task of reliably identifying disparate
members of a proposed class where few, if any members, have
documentary proof of their purchases.
Earlier this year, the Third Circuit in Carrera v. Bayer Corp.
held that in consumer fraud class actions, class certification
should be precluded on ascertainability grounds where members of
the proposed class are unlikely to have documentary proof of
purchase (e.g., packaging or receipts) and no record of specific
retail sales exists.
As the Third Circuit explained, ascertainability is "an essential
prerequisite" of class certification that requires the class
plaintiff to establish, by preponderance of the evidence, a
reliable and administratively feasible method for objectively
identifying persons belonging to the proposed class.
In the context of mass-marketed retail products, a class plaintiff
cannot establish ascertainability simply by relying on affidavits
of absent class members or on retail records that fail to link
individual purchasers to specific purchases. Where
"individualized fact-finding or minitrials will be required to
prove class membership," the proposed class is not
"administratively feasible" and class treatment is inappropriate.
The Third Circuit noted that ascertainability is a threshold
inquiry that the court must consider before it even reaches the
Rule 23 factors. The Carrera decision was preceded by two other
Third Circuit opinions -- Hayes and Marcus -- applying similar
logic.
In Chipotle, the Central District of California applied similar
reasoning but different legal principles to reach the same
outcome. Because of supply shortages between 2008 and the
present, Chipotle allegedly substituted "conventional" meat for
"naturally raised" meat at certain restaurants, on certain dates,
and in certain products.
Based on these facts, the court denied class treatment on
predominance and superiority grounds, rather than relying on the
Third Circuit's ascertainability analysis. However, in doing so,
the court based its reasoning on the absence of a reliable method
for identifying legitimate class members.
First, the court determined that class treatment was improper
because individual issues predominated regarding when class
members ate at Chipotle, which Chipotle locations they patronized,
and which meat-containing Chipotle products (if any) they
purchased during their visits.
As the court explained, these types of individual issues may not
exist in cases where class members "could be expected to have
records of the purchase . . . or to have retained the purchased
item."
By contrast, where "the dispute concerns a very low-price
transaction that neither the class members nor Chipotle maintain
any specific record of" and where the alleged misconduct varies
among products, locations and time frames, the defendant must be
allowed "some mechanism" for confirming or contesting the veracity
of class members' claims. Credit card records, the court noted,
would not be sufficient to identify which meat products a class
member purchased in any given transaction.
Second, the court ruled that the class action mechanism would not
be "fair and efficient" to class members or Chipotle for many of
the same reasons. As the court explained, class members could not
reliably list "every time they ate at Chipotle," including the
date, specific location and specific item purchased, during the
preceding five-year class period.
As a result, claimants would be forced to lie, guess or not bother
submitting a claim, which would harm both legitimate class members
and Chipotle because class funds would be given out "basically at
random to people."
The Chipotle decision is an important development for companies
selling high-volume, low-priced products that are frequently
targeted by the plaintiffs' bar. Combined with the Third
Circuit's ascertainability analysis, three new methods now exist
for companies to defend themselves when faced with this type of
attack.
Perhaps even more importantly, this precedent serves as much-
needed negotiating leverage for businesses attempting to reach
prelitigation resolutions to threatened class action lawsuits.
With courts in highly trafficked class action jurisdictions like
the Third Circuit and Central District of California having
weighed in on the issue, this new class action obstacle appears to
be a growing trend.
CITIBANK NA: "LBBW" Suit Consolidated With CDS MDL in New York
--------------------------------------------------------------
The class action lawsuit styled LBBW Asset Management
Investmentgesellschaft mbH v. Citibank, N.A., et al., Docket No.
1:13-cv-05413, in the U.S. District Court for the Northern
District of Illinois, was consolidated as related with the
multidistrict litigation captioned In Re Credit Default Swaps
Antitrust Litigation, MDL No. 1:13-md-02476-DLC.
The lawsuit in New York is titled LBBW Asset Management
Investmentgesellschaft mbH v. Citibank, N.A., et al., Case No.
1:13-cv-07752-DLC, in the U.S. District Court for the Southern
District of New York (Foley Square).
The antitrust litigation alleges that the Defendants, which are
mostly banks and financial institutions, conspired to keep new
participants from entering the credit default swaps market.
The Plaintiff is represented by:
Christopher Lovell, Esq.
LOVELL STEWART HALEBIAN JACOBSON LLP
61 Broadway, Suite 501
New York, NY 10006
Telephone: (212) 608-1900
Facsimile: (212) 719-4677
E-mail: clovell@lshllp.com
- and -
Marvin Alan Miller, Esq.
Matthew E. Van Tine, Esq.
MILLER LAW, LLC
115 S. LaSalle Street, Suite 2910
Chicago, IL 60603
Telephone: (312) 332-3400
Facsimile: (312) 676-2676
E-mail: mmiller@millerlawllc.com
mvantine@millerlawllc.com
- and -
Michael M. Buchman, Esq.
MOTLEY RICE LLC
275 Seventh Ave., 2nd Floor
New York, NY 10001
Telephone: (212) 577-0040
Facsimile: (212) 577-0054
E-mail: mbuchman@motleyrice.com
- and -
William H. Narwold, Esq.
MOTLEY RICE LLC (CT)
One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
Telephone: (860) 882-1676
Facsimile: (860) 882-1682
E-mail: bnarwold@motleyrice.com
Movant Essex Regional Retirement System is represented by:
Gregory Asciolla, Esq.
LABATON SUCHAROW LLP-NY
140 Broadway, 33rd Floor
New York, NY 10005
Telephone: (212) 907-0827
Facsimile: (212) 883-7527
E-mail: gasciolla@labaton.com
The Defendants are represented by:
Eamon Paul Joyce, Esq.
SIDLEY AUSTIN LLP (NY)
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 839-8555
Facsimile: (212) 839-5599
E-mail: ejoyce@sidley.com
- and -
Robert Y. Sperling, Esq.
Thomas Lee Kirsch, II, Esq.
WINSTON & STRAWN LLP (IL)
35 West Wacker Drive
Chicago, IL 60601
Telephone: (312) 558-7941
Facsimile: (312) 558-5700
E-mail: rsperling@winston.com
tkirsch@winston.com
- and -
Elizabeth P. Papez, Esq.
WINSTON & STRAWN LLP
1700 K Street N.W.
Washington, DC 20006
Telephone: (202) 282-5678
E-mail: epapez@winston.com
- and -
Michael Svetkey Feldberg, Esq.
Todd Steven Fishman, Esq.
ALLEN & OVERY
1221 Avenue of Americas
New York, NY 10020
Telephone: (212) 610-6360
Facsimile: (212) 610-6399
E-mail: michael.feldberg@newyork.allenovery.com
todd.fishman@newyork.allenovery.com
- and -
M. Elaine Johnston, Esq.
WHITE & CASE LLP (NY)
1155 Avenue of the Americas
New York, NY 10036
Telephone: (212) 819-8200
Facsimile: (212) 354-8113
E-mail: elaine.johnston@allenovery.com
- and -
David Charles Bohan, Esq.
James Joseph Calder, Esq.
KATTEN MUCHIN ROSENMAN,LLP (NYC)
575 Madison Avenue
New York, NY 10022
Telephone: (312) 902-5200
Facsimile: (312) 577-4734
E-mail: david.bohan@kattenlaw.com
james.calder@kattenlaw.com
- and -
Colin Ryle Kass, Esq.
KIRKLAND & ELLIS LLP (WASHINGTON)
655 Fifteenth Street NW, Suite 1200
Washington, DC 20005
Telephone: (202) 879-5172
Facsimile: (202) 879-5200
E-mail: ckass@proskauer.com
- and -
Jonathan Peter Shaub, Esq.
Alan R. Kusinitz, Esq.
PROSKAUER ROSE LLP (NY)
11 Times Square
New York, NY 10036
Telephone: (212) 969-3171
Facsimile: (212) 969-2900
E-mail: jshaub@proskauer.com
akusinitz@proskauer.com
- and -
Colin R. Kass, Esq.
Scott Michael Abeles, Esq.
PROSKAUER ROSE LLP
1001 Pennsylvania Ave., N.W.
Washington, DC 20004
Telephone: (202) 416-6890
E-mail: ckass@proskauer.com
sabeles@proskauer.com
- and -
Michael Frederik Derksen, Esq.
Steven Ross Gilford, Esq.
PROSKAUER ROSE LLP (70W)
70 West Madison, Suite 3800
Chicago, IL 60602-4342
Telephone: (312) 962-3562
E-mail: mderksen@proskauer.com
sgilford@proskauer.com
- and -
Matthew J. Reilly, Esq.
SIMPSON THACHER & BARTLETT LLP
1155 F St., N.W.
Washington, DC 20004
Telephone: (202) 636-5566
E-mail: matt.reilly@stblaw.com
- and -
Brian D. Roche, Esq.
REED SMITH LLP
10 South Wacker Drive, 40th Floor
Chicago, IL 60606
Telephone: (312) 207-1000
E-mail: broche@reedsmith.com
- and -
Daniel Slifkin, Esq.
Evan R. Chesler, Esq.
Michael A. Paskin, Esq.
Vanessa Allen Lavely, Esq.
CRAVATH, SWAINE & MOORE LLP
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
E-mail: dslifkin@cravath.com
echesler@cravath.com
mpaskin@cravath.com
vlavely@cravath.com
COSTA INC: Being Sold to Essilor for Too Little, Class Suit Says
----------------------------------------------------------------
Courthouse News Service reports that directors are selling Costa
Inc. (sunglasses) too cheaply through an unfair process to GWH
Acquisition Sub, Inc. (Essilor International, S.A.), for $21.50 a
share or $270 million, shareholders claim in Rhode Island Superior
Court.
DYNACARE LABORATORIES: Faces Class Suit Over Stolen Flash Drive
---------------------------------------------------------------
Courthouse News Service reports that Dynacare Laboratories
compromised the personal information of 6,000 Milwaukee city
employees when a computer and flash drive were stolen, a class
action claims in Milwaukee County Court.
GABBY INVESTMENTS: Accused of Sending Fax Blasts to Class Members
-----------------------------------------------------------------
Absolute Architecture P.C., an Illinois corporation, individually
and on behalf of all others similarly situated v. Gabby
Investments, LLC, a Delaware limited liability company, 50.com
Inc., a New Jersey corporation, and Richard Gabriel, Jean Gabriel
a/k/a 50.com, and Ashley Gabriel, individuals, Case No. 1:13-cv-
07865 (N.D. Ill., November 1, 2013) alleges that the Defendants
sent unsolicited junk faxes in bulk -- "fax blasts" -- to
unwilling recipients with deficient opt-out notices.
Absolute contends that fax advertising shifts the cost of the
marketing promotion from the marketer -- the sender of the fax --
to the unwilling recipient, and is expressly prohibited by the
Telephone Consumer Protection Act. Absolute insists that it never
consented, authorized, desired or permitted the Defendants to send
faxes.
Gabby Investments is a Delaware limited liability company
headquartered in Mahwah, New Jersey. Gabby Investments provides
venture capital services and trades predominantly in Internet
domain names and real estate. 50.com Inc. is a Delaware
corporation.
The Plaintiff is represented by:
Joseph J. Siprut, Esq.
Gregg M. Barbakoff, Esq.
SIPRUT PC
17 North State Street, Suite 1600
Chicago, IL 60602
Telephone: (312) 236-0000
Facsimile: (312) 948-9196
E-mail: jsiprut@siprut.com
gbarbakoff@siprut.com
The Defendants are represented by:
Dan K. Webb, Esq.
Christopher Joseph Letkewicz, Esq.
Sean Gerald Wieber, Esq.
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, IL 60601-9703
Telephone: (312) 558-5600
E-mail: dwebb@winston.com
cletkewicz@winston.com
swieber@winston.com
GENERAL MILLS: Faces Class Action Over Dangerous Vapors
-------------------------------------------------------
Cassie Hart, writing for KSTP TV, reports that neighbors in
southeast Minneapolis, whose homes tested positive for dangerous
vapors, filed a class action lawsuit against General Mills.
The Minneapolis-based law firm, Zimmerman Reed, is representing
the Como neighborhood residents.
The lawsuit alleges that the TCE chemical, which was dumped years
ago at an old General Mills research facility, puts their health
at risk and lowers property values.
Seventeen homes tested positive for the vapors.
General Mills has offered to install and pay for ventilation
systems.
A judge will decide if this will move forward as a class action
lawsuit.
HEALTH & HUMAN SERVICES: Medicare Doughnut Hole Grew, Class Says
----------------------------------------------------------------
Writing for Courthouse News Service, Matt Reynolds reports that in
a federal class action, Medicare Part D recipients claim the Obama
administration let insurers reduce the threshold of the "coverage
gap" to make enrollees pay more out of pocket for their
prescriptions.
Lead plaintiff Stanley Epstein wants Health and Human Services
Secretary Kathleen Sebelius enjoined from implementing the policy
known as the Medicare doughnut hole. Epstein claims the policy is
"invalid" and was concealed from enrollees.
Congress enacted Part D of the Medicare Act -- the Medicare
Prescription Drug Program -- in 2003. It required the Department
of Health and Human Services to expand coverage to include a
variety of previously uncovered prescription drugs.
Under Part D, private insurance companies entered into agreements
with the department's Centers of Medicare and Medicaid Services to
sponsor prescription drug plans for Medicare participants.
The so-called doughnut hole is between the initial coverage stage,
in which insurers share the cost of benefits with enrollees, and
the catastrophic coverage stage.
When enrollees enter the doughnut hole, they must pay the full
cost of their prescription drugs until they reach the catastrophic
coverage threshold.
At issue the policy of denying benefits to enrollees who submit
what are known as "straddle claims." Insurers process hundreds of
thousands, if not millions, of these claims each year, according
to Epstein.
"The cost of a drug may fall within the initial coverage stage and
the coverage gap for a single transaction," the lawsuit states.
"For example, if an enrollee's 2010 cumulative drug costs were
$2,820 ($10 below the coverage gap threshold of $2,830) and the
enrollee purchased a $20 covered drug, the first $10 falls within
the initial coverage stage, but the $10 balance falls within the
coverage gap. This is known as a 'straddle claim.'"
Under Sebelius' straddle claim policy, Epstein says, insurers may
"manipulate the co-payment scheme in the initial coverage stage,
allowing sponsors to evade their obligation to pay their proper
share of covered prescription drug costs."
"Such manipulation impermissibly acts to artificially lower the
coverage gap threshold."
Epstein claims this "hidden policy" allows insurers to co-insure
enrollees' benefits for less than is stated in the insurers'
explanation of benefits, and avoid the federally mandated amount
for claims that straddle the initial coverage stage and the
coverage gap.
In Epstein's case, he says, his insurer Humana in 2010 co-insured
the gross sum of his benefits under the program for a total of
$2,746.67 rather than the required coverage gap threshold of
$2,830.
"Consequently, the coverage gap threshold was impermissibly
lowered from $2,830 to $2,746.67. Humana's policy (and that of
other sponsors) has deprived, and continues to deprive, enrollees
of a portion of their contractual and congressionally mandated
Part D benefits while unjustly enriching Humana (and such other
sponsors) in violation of its EOB [explanation of benefits] and
Part D statutory provisions," the lawsuit states. (Parentheses,
but not brackets, in complaint.)
Epstein claims the policy of denying benefits in straddle claims
is "procedurally invalid and unenforceable," violates the
Administrative Procedure Act, and was hidden from enrollees.
He seeks class certification and retroactive Part D benefit
payments backdated to before Sebelius' policy took effect.
The Plaintiff is represented by:
Eric J. Benink, Esq.
Vincent D. Slavens, Esq.
KRAUSE KALFAYAN BENINK AND SLAVENS LLP
550 West C Street Suite 530
San Diego, CA 92101
Telephone: (619) 232-0331
Facsimile: (619) 232-4019
E-mail: ebenink@kkbs-law.com
vslavens@kkbs-law.com
- and -
Gregory P. Daniels, Esq.
DANIELS HEALTH LAW APC
Liberty Station
2468 Historic Decatur Road Suite 140
San Diego, CA 92106
Telephone: (619) 246-6337
Facsimile: (619) 546-0370
E-mail: greg@danielshealthlaw.com
The case is Stanley H. Epstein v. Kathleen Sebelius, Case No.
2:13-cv-08728-GHK-CW, in the United States District Court for the
Central District of California.
IKEA: Recalls Millions of Children's Lamps Over Choke Injuries
--------------------------------------------------------------
The Associated Press reports that IKEA is recalling millions of
children's lamps following the death of a child who choked on the
lamp's cord. Another child was injured.
The "SMILA" series wall-mounted children's lamps were sold at IKEA
from 1999 through May 2013 for $10 to $13. The recalled lamps are
about 11 inches high and 11 inches wide and were sold in eight
designs: A blue star, yellow moon, pink flower, white flower, red
heart, green bug, blue seashell and orange seahorse.
There were 2.9 million of the recalled lamps sold in the U.S., the
U.S. Consumer Product Safety Commission said on Dec. 11. About
1.1 million lamps sold in Canada are also being recalled by IKEA.
Some 23 million of the lamps were sold worldwide.
Consumers should stop using the lamp and contact IKEA for a free
repair kit to attach the cord to the wall. A 16-month-old child
died after getting entangled in the lamp's cord and a 15-month-old
child became entangled in the lamp's cord and nearly strangled.
In both cases, which occurred in Europe, the infants pulled the
lamp cord into their cribs.
To determine if their lamp was involved in the recall, consumers
can find the model name printed on a label on the inside back of
the lamp near the light bulb.
JP MORGAN: Dist. Court Ruling in MCPA Violation Suit Reversed
-------------------------------------------------------------
The Attorney General of Mississippi (the State) filed six in
parens patriae complaints in the Mississippi Chancery Court
alleging six credit card companies violated the Mississippi
Consumer Protection Act (MCPA) by charging consumers for products
they did not want or need. The Defendants removed, arguing that
there is federal subject matter jurisdiction both because this is
a Class Action Fairness Act of 2005 (CAFA) mass action and because
the State's MCPA claims were preempted by the federal National
Banking Act (NBA). The district court agreed, and denied the
State's motions to remand. The State then filed two interlocutory
appeals, one under CAFA's appeal provision, 28 U.S.C. Section
1453(c), and another under 28 U.S.C. Section 1292(b) to review two
questions certified by the district court on the preemption issue.
The United States Court of Appeals, Fifth Circuit granted both
appeals in the consolidated case, and concluded that neither CAFA
nor complete preemption by the NBA provides the basis for subject
matter jurisdiction. Accordingly, the Fifth Circuit reversed the
district court ruling and remanded the case for further
proceedings.
The consolidated case is JIM HOOD, Attorney General of the State
of Mississippi, ex rel. The State of Mississippi; STATE OF
MISSISSIPPI, Plaintiffs-Appellants,
v.
JP MORGAN CHASE & COMPANY; CHASE BANK USA, N.A, Defendants-
Appellees.
JIM HOOD, Attorney General of the State of Mississippi, ex rel.
The State of Mississippi, Plaintiff-Appellant,
v.
HSBC BANK NEVADA, N.A.; HSBC CARD SERVICES, INCORPORATED; HSBC
BANK USA, INCORPORATED, Defendants-Appellees.
JIM HOOD, Attorney General of the State of Mississippi, ex rel.
The State of Mississippi; THE STATE OF MISSISSIPPI, Plaintiffs-
Appellants,
v.
CITIGROUP, INCORPORATED; CITIBANK, N.A.; DEPARTMENT STORES
NATIONAL BANK, Defendants-Appellees.
JIM HOOD, Attorney General of the State of Mississippi, ex rel.
The State of Mississippi, Plaintiff-Appellant,
v.
DISCOVER FINANCIAL SERVICES, INCORPORATED; DISCOVER BANK; DFS
SERVICES, L.L.C.; AMERICAN BANKERS MANAGEMENT COMPANY,
INCORPORATED, Defendants-Appellees.
JIM HOOD, Attorney General of the State of Mississippi, ex rel.
The State of Mississippi, Plaintiff-Appellant,
v.
BANK OF AMERICA CORPORATION; FIA CARD SERVICES, N.A., Defendants-
Appellees.
JIM HOOD, Attorney General of the State of Mississippi, ex rel.
The State of Mississippi, Plaintiff-Appellant,
v.
CAPITAL ONE BANK USA, N.A.; CAPITAL ONE SERVICES, L.L.C.,
Defendants-Appellees, NO. 13-60686, C/W NO. 13-60687.
A copy of the Appeals Court's December 2, 2013 Opinion is
available at http://is.gd/oj0fXXfrom Leagle.com.
LIGHTINTHEBOX HOLDING: Youhua Zheng Appointed as Lead Plaintiff
---------------------------------------------------------------
Before the Court in In re LIGHTINTHEBOX HOLDING CO., LTD.
SECURITIES LITIGATION, NO. 13 CIV. 6016 (PKC), (S.D. N.Y.) are
five motions to appoint lead plaintiff and to consolidate three
putative class actions brought under the federal securities laws
by shareholders of LightInTheBox Holding Co., Ltd. (LITB). Bai v.
LightInTheBox Holding Co., Ltd. Case No. 13 Civ. 6016 (PKC);
Pearlman v. LightInTheBox Holding Co., Ltd. Case No. 13 Civ. 6929
(PKC); Sabile v. LightInTheBox Holding Co., Ltd. Case No: 13 Civ.
7310 (PKC).
District Judge P. Kevin Castel granted the motion of plaintiff
Youhua Zheng, to the extent that Mr. Zheng is appointed as lead
plaintiff and his retention of The Rosen Law Firm, P.A. is
approved. The motions of Anpu Zhu, Lawrence Bernard, and both
LightInTheBox Investor Groups are denied. Leave to file a
consolidated amended class action complaint is granted provided it
is filed on or before January 10, 2014. Any premotion letter by
defendants is due January 24, 2014. A conference will be held
February 14, 2014, at 12:15 p.m.
Judge Castel directed the Clerk of Court to administratively close
13 Civ. 6929 (PKC) and 13 Civ. 7310 (PKC).
A copy of the District Court's November 21, 2013 Memorandum and
Order is available at http://is.gd/TafgACfrom Leagle.com.
LUMBER LIQUIDATORS: Faces Second Class Action Over Flooring
-----------------------------------------------------------
Nick Ochsner, writing for 13News Now, reports that a second
federal, class action lawsuit has been filed against Toano-based
Lumber Liquidators, alleging the company broke a number of federal
laws in importing and selling wood flooring from China.
The most recent lawsuit claims Lumber Liquidators knowingly sold
wood flooring that contained more than three times the legal limit
of formaldehyde.
The lawsuit was filed on Dec. 5 by Jason Leviton --
jason@blockesq.com -- and his law firm, Block & Leviton.
Mr. Leviton said in an exclusive interview with 13News Now on
Dec. 5 that the lawsuit is the result of a six-month long
investigation into the company's sourcing practices.
Mr. Leviton said the investigation began when customers became
suspicious of the product after installing it in their homes.
"When we really started investigating and started looking around
and talking to consumers, what became inevitably true over and
over was that people were experiencing real problems after their
Lumber Liquidators flooring was put into place," Mr. Leviton said.
"Things like toxic fumes, burning of the nostrils, throat,
coughing, things like that. Those are all side-effects of
formaldehyde."
The lawsuit also claims the company knowingly purchased wood
flooring from a China-based manufacturer that was illegally
cutting down trees in Russia.
Mr. Leviton said the lawsuit seeks compensation for clients who
would not have bought the flooring, or would have paid
significantly less, had they known about the alleged issues.
The lawsuit comes on the heels of a suit filed on behalf of the
company's investors, which claims shareholders lost money because
the company sold allegedly tainted flooring products.
Both lawsuits contain claims thought to be currently under
investigation by federal authorities.
Investigators with Homeland Security Investigations, US Fish &
Wildlife and the Department of Justice raided the company's Toano
headquarters in September. That investigation is ongoing.
A spokesman for Lumber Liquidators told 13News Now on Dec. 5 the
company cannot comment on pending litigation.
MAMASO INC: Obtains Favorable Ruling in "Thomas" Case
-----------------------------------------------------
The United States Court of Appeals, Fifth Circuit affirmed a
district court judgment in the case, DONALD W. THOMAS Plaintiff-
Appellant, v. MAMASO, INCORPORATED, doing business as Maso's
Texaco, Defendant-Appellee, NO. 12-41161.
Donald Thomas filed his suit on May 3, 2010, under the Electronic
Funds Transfer Act against Appellee Mamaso, Incorporated in the
United States District Court for the Eastern District of Texas.
His original complaint alleged that an ATM located in a gas
station owned by Mamaso charged him a $2.00 service fee while
lacking the then-required on-machine notice. The complaint also
alleged that Mamaso was the "operator" of the ATM under 12 C.F.R.
Section 205.16(a). Mr. Thomas asserted an EFTA claim individually
and on behalf of a purported class of consumers who had used the
ATM. Mr. Thomas amended his complaint to name the company that
serviced the ATM, Cash Technologies of America, Inc., as the
defendant. Mr.Thomas then settled with CTA for $10,000.
After executing the settlement agreement with CTA, Mr. Thomas
amended his complaint again to "re-name" Mamaso as the defendant.
Mamaso moved for summary judgment, asserting that because Mr.
Thomas had already received a full recovery from CTA on his EFTA
claim, Mr. Thomas's individual and class-action claims against
Mamaso were moot.
The district court agreed and granted Mamaso's motion for summary
judgment. Mr. Thomas appealed.
No class had been certified at the time of the CTA settlement. In
fact, Mr. Thomas did not move for class certification until well
after Mamaso filed its motion for summary judgment. Nonetheless,
Mr. Thomas argues that under the relation back doctrine, his
settlement with CTA did not render his class action claim moot.
According to the Fifth Circuit, the relation back doctrine
generally provides that a defendant to a purported class action
cannot "pick off" the named plaintiff early in the case by
offering to satisfy his individual claims and thereby moot the
class action before the plaintiff has the opportunity to obtain
class certification. While the precise contours of the relation
back doctrine remain ill-defined, courts applying the doctrine
have distinguished between situations where the defendant attempts
to force mootness by offering to settle with the named plaintiff
for the full amount of his claim before the time for moving for
class certification has expired and those where the named
plaintiff voluntarily accepts a full settlement offer before
filing a motion for class certification. Because Mr. Thomas's
voluntary settlement with CTA falls into the latter category, the
district court correctly held that the relation back doctrine did
not apply and that Mr. Thomas's settlement with CTA, therefore,
mooted his EFTA action.
A copy of the Appeals Court's December 2, 2013 Opinion is
available at http://is.gd/mEbdeTfrom Leagle.com.
MITSUBISHI: Sued for Selling Overpriced Defective LaserVue TVs
--------------------------------------------------------------
Mitsubishi sold defective LaserVue TVs for $5,000 a pop and
refused to honor its warranty, offering only to buy them back for
$700, Courthouse News Service reports, citing a class action filed
in Stanislaus County Court, California.
NATIONAL COLLEGIATE: Media Groups Root for NCAA in High Court
-------------------------------------------------------------
Several media organizations want the Supreme Court to make it more
difficult for athletes and celebrities to sue over the use of
their names and images, reports Annie Youderian, writing for
Courthouse News Service.
The Associated Press, A&E Television Networks, National Public
Radio, Bloomberg and others asked the high court for permission to
file a brief in support of the National Collegiate Athletic
Association, which seeks to intervene in a legal battle between
former college athletes and video game maker Electronic Arts.
In the first of two underlying lawsuits, former Arizona State
quarterback Sam Keller and other student-athletes claimed in 2009
that EA should pay them for using their likenesses in its NCAA
Football and NCAA Basketball video games.
A divided 9th Circuit panel disagreed, ruling that the games did
not contain enough "transformative" elements to qualify for First
Amendment protection and copyright law's "fair use" defense.
Electronic Arts appealed the decision to the Supreme Court in late
September. It settled three days later, but the NCAA now seeks to
intervene in order to "continue to press the important First
Amendment arguments," according to its petition.
Backing that petition are the media organizations and the
Reporters Committee for Freedom of the Press, who added to the
NCAA's arguments in their friend-of-the-court brief.
They say the 9th Circuit made the "fundamental error" of linking
publicity rights to copyright law. By borrowing the so-called
"transformative test" from copyright law and applying it to
publicity rights claims, the court "severely undervalues the First
Amendment interests of content producers," the groups argue.
The transformative test "is so inherently vague that it provides
little guidance to content creators and invites judges to impose
their own subjective aesthetic preferences," they claim.
They say a 2001 California Supreme Court ruling illustrates this
very point, as the court held that images of the Three Stooges on
T-shirts weren't transformative, but an Andy Warhol silkscreen
using those same images would be.
"But the art critics who once viewed Warhol as the quintessential
knock-off artist would vigorously dispute that conclusion," the
media groups argue. "The test is therefore ill-suited to be an
effective substitute for normal First Amendment scrutiny."
Instead, they advocate for a two-fold test: First determine if an
expressive work effectively renders the original superfluous, such
as using a digital replica of Sean Connery in James Bond movies
rather than actually hiring him. Then decide if the work is
merely an ad in disguise, meant to promote a product or unrelated
work.
"This approach would appropriately balance the right of publicity
and the First Amendment," they say.
But the approach taken by the 9th Circuit in Keller and by the 3rd
Circuit in Hart v. Electronic Arts -- a "virtually identical" case
-- "sows even more confusion in the law and wholly fails to
satisfy First Amendment standards," the groups add.
"The state interest in protecting the general public from consumer
confusion is surely far more compelling than the interest in
maximizing the economic rewards of individual celebrity," the
petition states. "Yet the logic of Keller and Hart is that the
First Amendment guarantees more freedom to engage in speech that
deceives consumers than it does to create expressive works that
relate to celebrities."
They urged the high court to grant the NCAA's motion to intervene,
since the NCAA did not participate in the 9th Circuit appeal.
The association's licensing arm, Collegiate Licensing Co., joined
EA in settling the antitrust class action led by former UCLA
basketball star Edward O'Bannon.
The Amici are represented by:
Nathan E. Siegel, Esq.
Shaina Jones Ward, Esq.
LEVINE SULLIVAN KOCH & SCHULZ, LLP
1899 L Street NW, Suite 200
Washington, DC 20036
Telephone: (202) 508-1100
E-mail: nsiegel@lskslaw.com
sward@lskslaw.com
A&E Television Networks, LLC is represented by:
Darci J. Bailey, Esq.
A&E TELEVISION NETWORKS
235 East 45th Street
New York, NY 10017
The Associated Press is represented by:
Laura Malone, Esq.
Karen Kaiser, Esq.
THE ASSOCIATED PRESS
450 West 33rd Street
New York, NY 10001
Bloomberg L.P. is represented by:
Randy L. Shapiro, Esq.
BLOOMBERG L.P.
731 Lexington Avenue
New York, NY 10022
Discovery Communications, LLC is represented by:
Savalle Sims, Esq.
DISCOVERY COMMUNICATIONS, LLC
One Discovery Place
Silver Spring, MD 20910
Dow Jones & Company, Inc. is represented by:
Mark H. Jackson, Esq.
Jason P. Conti, Esq.
Jacob P. Goldstein, Esq.
DOW JONES & COMPANY, INC.
1211 Avenue of the Americas, 7th Floor
New York, NY 10036
ESPN, Inc. is represented by:
David Pahl, Esq.
Eleanor Devane, Esq.
ESPN, INC.
ESPN Plaza
Bristol, CT 06011
The Hearst Corporation is represented by:
Eve Burton, Esq.
Jonathan Donnellan, Esq.
THE HEARST CORPORATION
300 West 57th Street
New York, NY 10019
Radio Television Digital News Association is represented by:
Kathleen Kirby, Esq.
WILEY REIN LLP
1776 K Street NW
Washington, DC 20006
E-mail: kkirby@wileyrein.com
News Corporation is represented by:
Mark H. Jackson, Esq.
Eugenie C. Gavenchak, Esq.
NEWS CORPORATION
1211 Avenue of the Americas
New York, NY 10036
National Public Radio, Inc. is represented by:
Denise Leary, Esq.
Ashley Messenger, Esq.
NATIONAL PUBLIC RADIO, INC.
1111 N. Capitol Street NE
Washington, DC 20002
Reporters Committee for Freedom of the Press is represented by:
Bruce Brown, Esq.
Gregg P. Leslie, Esq.
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
1101 Wilson Blvd., Suite 1100
Arlington, VA 22209
NATIONAL COLLEGIATE: Two Ex-Football Players File Class Action
--------------------------------------------------------------
The Kansas City Star reports that two former Missouri football
players who say they suffered head injuries during games and
practices have filed a class-action lawsuit against the NCAA.
Tony VanZant and Sharron Washington filed the suit on Dec. 3 in
U.S. District Court for the Eastern District of Missouri. They
are seeking the creation of a court-appointed fund to provide
medical monitoring for all former NCAA football players living in
the United States who did not play in the NFL.
Mr. VanZant, a running back from Hazelwood Central High in
Florissant, Mo., played for Mizzou during 1987-91 after missing
the 1986 season following a knee injury suffered in a high school
all-star game.
In the suit, he claims to have suffered "repeated traumatic head
injuries" as a MU player during practice and games during the 1987
and 1988 seasons. After college, the suit says, Mr. VanZant
suffered medical problems including headaches, dizziness and
depression. He is currently the running-backs coach at Lincoln
University in Jefferson City.
Washington, a defensive back, played at MU during 1987-91. The
suit claims he suffered a hard hit in a game against Baylor in
1990 that caused him to bite through his mouthpiece but returned
to the game after one defensive series without a concussion test.
The suit says Washington has no recollection of the game after the
hit. The suit says Washington also suffered health problems
including headaches and depression after his college football
career.
NATIONAL COLLEGIATE: Head-Trauma Lawsuits Defy Easy Grouping
------------------------------------------------------------
Andrew Harris, writing for Bloomberg News, reports that
ex-football players' head-trauma lawsuits against the National
Collegiate Athletic Association, unlike National Football League
cases consolidated by federal judges and later settled for $765
million, defy easy grouping.
Former student athletes have filed 10 class-action suits -- two of
them last week -- accusing the NCAA of failing to protect them
from concussions and, in the first of the cases, seeking to
represent all current and former students who participated in
contact sports. One case includes two football helmet makers as
defendants.
Elizabeth Fegan, an attorney for one-time Eastern Illinois
University football team captain Adrian Arrington who filed the
first class action against the association two years ago, argued
before a panel of judges on Dec. 5 that the later-filed cases
should be consolidated with hers for pretrial proceedings in
Chicago.
"We have expended nearly 8,000 hours conducting discovery,"
including review of evidence and taking depositions, Ms. Fegan
told the Judicial Panel on Multidistrict Litigation at a hearing
on Dec. 5 in federal court in Las Vegas.
The most-recent version of the complaint filed by Mr. Arrington,
who played strong safety, already incorporates claims from a
second lawsuit filed in Chicago. A request to certify two classes
of plaintiffs has already been filed with U.S. District Judge
John Z. Lee there, she said.
NCAA Support
Ms. Fegan's consolidation request was supported on Dec. 5 by an
attorney for the Indianapolis-based NCAA. Lawyers for other
student athletes opposed grouping the cases in Chicago, as did
lawyers for the football-helmet makers named as co-defendants with
the NCAA in an Indianapolis case.
Combining lawsuits as multidistrict litigation increases the
efficiency of evidence exchanges before trial in cases with
similar claims filed in multiple districts. Multidistrict cases
have included claims against BP Plc over the 2010 Gulf of Mexico
oil spill and lawsuits against Toyota Motor Corp. related to
alleged sudden unintended acceleration of some vehicles.
The lawsuits seek findings that the NCAA was negligent in its
handling of player concussions leading to brain trauma that now
requires medical monitoring.
Similar allegations lodged by pro football players against the NFL
resulted in a $765 million settlement in August, which included a
medical monitoring program.
Hockey Players
Ten former National Hockey League players sued that organization
last month, accusing it of concealing the risk of severe brain
injuries. That complaint, filed in federal court in Washington,
seeks medical monitoring plus unspecified money damages.
The NCAA, in an answer filed to the Mr. Arrington complaint on
March 21, denied allegations it failed to implement regulations
that would "properly protect student athletes from the risks
associated with concussions" or manage risks and consequences
associated with repeated concussions.
In the same filing, the NCAA said it had about $749.8 million in
revenue in 2009-2010 school year.
"The association has specifically addressed the issue of head
injuries through a combination of playing rules, equipment
requirements, and medical best practices," Stacey Osburn, an NCAA
spokeswoman, said on Dec. 4 in an e-mail. "We continue to believe
our policies and rules address student-athlete safety, and do not
believe the individual or proposed class action allegations are
appropriate."
Helmet Makers
Lawyers for the college athletes who also sued the helmet makers
Riddell Inc. and and Kranos Corp., which does business as
Schutt Sports in addition to the athletic association, oppose the
combining of their case with the Chicago proceeding.
That group is led by one-time University of Oregon and University
of Washington quarterback John DuRocher.
"Our case is a little different," David Franco, a lawyer for
Mr. DuRocher, told the six judges appearing on the panel on
Dec. 5.
"Although each action relates to concussive injuries of NCAA
athletes, each action involves different classes across different
states bringing different claims involving different sports
against different sets of defendants," lawyers for that group said
in a court filing.
The DuRocher complaint proposes a class of all former NCAA
football players who suffered concussion-like symptoms while
playing football at an NCAA school and later developed symptoms
including chronic headaches, dizziness, dementia or Alzheimer's
disease.
Core Issues
Arrington's attorneys, in an Oct. 16 filing with the panel, said
their proposed "core issues" class of claimants included "all
present or former students listed on a college team roster at any
NCAA institution during the period 2004 through the present who
participated in the contact sports of football, wrestling,
basketball, field hockey, ice hockey, lacrosse or soccer."
Attorneys for the helmet makers said the case involving claims
against them should be handled separately.
"You'll have to build another highway" for the helmet litigation,
said Paul Cereghini, a lawyer for Riddell.
Judge John G. Heyburn, chairman of the MDL panel, told
Mr. Cereghini that if that body votes to consolidate the cases,
the judge who receives them will look at all the claims.
NEW YORK: Bid for Judgment on Pleadings in TCPA Suit Denied
-----------------------------------------------------------
King Broadcasting Company's filed a Motion for Judgment on the
Pleadings in the class action lawsuit captioned KEVIN MUNRO, et
al., Plaintiffs, v. KING BROADCASTING COMPANY, Defendant, CASE NO.
C13-1308JLR, (W.D. Wash.) brought under the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. Section 227. Mr. King asked the
court to dismiss the case in its entirety, claiming that the
Plaintiffs' Complaint requests relief that is unavailable under
the TCPA.
District Judge James L. Robart denied the motion, saying it is
overly aggressive, not well grounded in law.
The Court further denied as moot Mr. King's Motion for Protective
Order, granted in part Mr. Munro's Motion to Compel Discovery, and
denied the Motion to Compel Discovery in all other respects.
A copy of the District Court's November 26, 2013 Order is
available at http://is.gd/y8wWCWfrom Leagle.com.
NIPPON YUSEN: "Senior" Suit Moved to Vehicle Carrier Services MDL
-----------------------------------------------------------------
The United States Judicial Panel on Multidistrict Litigation
conditionally transferred the class action lawsuit captioned
Senior, et al. v. Nippon Yusen Kabushiki Kaisha Ltd., et al., Case
No. 3:13-cv-03448, from the U.S. District Court for the Northern
District of California to the U.S. District Court for the District
of New Jersey to be part of an antitrust multidistrict litigation.
The "Senior" case is transferred for coordinated or consolidated
pretrial proceedings in the case known as In Re Vehicle Carrier
Services Antitrust Litigation, MDL No. 2471. The case in New
Jersey is now styled Senior, et al. v. Nippon Yusen Kabushiki
Kaisha Ltd., et al., Case No. 2:13-cv-06620-ES-JAD (D.N.J.,
November 1, 2013).
The "Senior" case is one of several related antitrust litigations
filed against companies that provide Vehicle Carrier Services to
original equipment manufacturers for the purpose of shipping cars,
trucks, or other four wheeled vehicles across international
waterways. "Vehicle Carrier Services" refers to the business of
providing ocean transportation of vehicles -- like cars, trucks,
or other four wheeled vehicles -- by use of large Vehicle Carriers
known as Roll On/Roll Off vessels, or "RoRos."
The Plaintiffs are represented by:
Christopher Thomas Micheletti, Esq.
Patrick Bradford Clayton, Esq.
Francis Onofrei Scarpulla, Esq.
Jubilee Dawn Menzies, Esq.
Qianwei Fu, Esq.
ZELLE HOFMANN VOELBEL & MASON LLP
44 Montgomery Street, Suite 3400
San Francisco, CA 94104
Telephone: (415) 693-0700
Facsimile: (415) 693-0770
E-mail: cmicheletti@zelle.com
pclayton@zelle.com
fscarpulla@zelle.com
jmenzies@zelle.com
qfu@zelle.com
The Defendants are represented by:
Megan Dixon, Esq.
HOGAN LOVELLS US LLP
3 Embarcadero Center, Suite 1500
San Francisco, CA 94111
Telephone: (415) 374-2300
Facsimile: (415) 374-2499
E-mail: megan.dixon@hoganlovells.com
NOVA SCOTIA, CANADA: Class Members Mull Appeal of Court Ruling
--------------------------------------------------------------
Cape Breton Post reports that Neila MacQueen says she never smoked
a cigarette in her life. Yet, 14 years ago she underwent lung
cancer surgery.
She blames her illness on the contamination she was exposed to by
living near the site of the Sydney steel plant.
For that reason, she says she's disappointed for the people of
Sydney that the Nova Scotia Court of Appeal last week threw out
the certification of a class-action lawsuit brought against the
provincial and federal governments for which she was one of four
representative claimants. She believes the lawsuit, first filed
in 2004, is the only way of holding anyone to account for the
contamination spewed into the environment by a century of
steelmaking and the impact it has had on the health and properties
of the people who lived nearby. About 400 people to date have
signed on to the lawsuit.
"Large companies and government can come into a community and
contaminate the environment and not be held accountable," said
Ms. MacQueen, who has lived on Dorchester Street in the north end
for decades, about 200 feet from the edge of the steel plant site.
The appeals court overturned the certification by a Nova Scotia
Supreme Court justice in 2011, ruling that there are too few
common issues uniting the plaintiffs.
"There are too many differences among the class members to make
the certified common issues common to all of the class members,"
the appeals court panel wrote. "There is no reason to believe any
contaminants emitted by the appellants were distributed evenly
across the geographical area, or during the time period specified
in the action."
"We were upset about it," Ms. MacQueen said. "People I spoke to
on the street they seemed to be upset -- one man was really cross
about it."
She said that, over the years, soil samples taken from her
property indicated levels of arsenic and lead were eight to 10
times higher than the limits set by the Canadian Council of
Ministers of the Environment.
"They're the worst contaminants known to mankind that they used
over there at the steel plant," Ms. MacQueen said. "The dismissal
is too many variables, but my golly, we all had bad soil, we all
had the same ailments."
Ms. MacQueen said she also had to endure the psychological impact
of seeing samples taken from her property and she was advised by
an environmental group not to allow children to play in her
backyard.
Ray Wagner, the lead lawyer on the file, said the appeal court's
ruling went beyond what he thought could remotely be possible.
"We knew some aspects of it were at risk but we never thought that
it would go this far," he said.
In the coming days, Mr. Wagner said they will take time to digest
the decision, meet with class members and consider whether there
are grounds to seek leave to appeal it to the Supreme Court of
Canada.
Mr. Wagner said he believes that they have either 60 or 90 days to
file an appeal.
"It's difficult to get into the Supreme Court of Canada -- not all
cases that are appealed from appellant courts get there -- but we
feel that this is a case of national significance, obviously
important for people in Sydney and Cape Breton and Nova Scotia,
but it's also a very important decision for people across the
country insofar as environmental class actions are concerned,"
Mr. Wagner said.
He said he was disappointed for the people of Sydney, noting those
involved with the class action can't afford to bring individual
actions and assume the costs involved with them. He noted there
has been a great deal of time and effort invested in the lawsuit
since it was first filed in 2004.
Out-of-pocket expenses to date are approaching C$1 million,
Mr. Wagner said. It would simply be too expensive for members of
the class to pursue individual lawsuits, Ms. MacQueen said.
"This is just a poor community and they cannot afford to go
individually, the treatment we got, delaying, deliberately
prolonging the case for eight or nine years, it's totally
ridiculous," she said.
If this suit can't proceed, Mr. Wagner said it's difficult to
foresee any circumstances under which an environmental class-
action suit could proceed in Canada.
The plaintiffs are seeking compensation and a medical monitoring
fund for contamination resulting from the operation of the steel
plant between 1967 and 2000. There is no demand for personal
injury compensation.
In his decision in January, Justice John Murphy also approved the
proposed boundaries for the neighborhoods of Whitney Pier, Ashby
and north-end Sydney.
None of the plaintiff's claims have yet been proven in court.
It was only the second contested certification approved under
Nova Scotia's Class Proceedings Act, and is the first
environmental class action certified in the province.
NYK LINE: "Davis" Suit Moved to Vehicle Carrier Services MDL
------------------------------------------------------------
The United States Judicial Panel on Multidistrict Litigation
conditionally transferred the class action lawsuit styled Davis v.
NYK Line (North America) Inc., et al., Case No. 3:13-cv-03582,,
from the U.S. District Court for the Northern District of
California to the U.S. District Court for the District of New
Jersey to be part of an antitrust multidistrict litigation. The
"Davis" case is transferred for coordinated or consolidated
pretrial proceedings in the case known as In Re Vehicle Carrier
Services Antitrust Litigation, MDL No. 2471. The case in New
Jersey is now styled Davis v. NYK Line (North America) Inc., et
al., Case No. 2:13-cv-06608-ES-JAD (D.N.J., November 1, 2013).
The "Davis" case is one of several related antitrust litigations
filed against companies that provide Vehicle Carrier Services to
original equipment manufacturers for the purpose of shipping cars,
trucks, or other four wheeled vehicles across international
waterways. "Vehicle Carrier Services" refers to the business of
providing ocean transportation of vehicles -- like cars, trucks,
or other four wheeled vehicles -- by use of large Vehicle Carriers
known as Roll On/Roll Off vessels, or "RoRos."
The Plaintiff is represented by:
Richard Alexander Saveri, Esq.
Guido Saveri, Esq.
Travis Luke Manfredi, Esq.
SAVERI & SAVERI, INC.
706 Sansome Street
San Francisco, CA 94111-5619
Telephone: (415) 217-6810
Facsimile: (415) 217-6813
E-mail: rick@saveri.com
guido@saveri.com
NYK LINE: "Jackson" Suit Moved to Vehicle Carrier Services MDL
--------------------------------------------------------------
The United States Judicial Panel on Multidistrict Litigation
conditionally transferred the class action lawsuit styled Jackson
v. NYK Line (North America) Inc., et al., Case No. 3:13-cv-03890,
from the U.S. District Court for the Northern District of
California to the U.S. District Court for the District of New
Jersey to be part of an antitrust multidistrict litigation. The
"Jackson" case is transferred for coordinated or consolidated
pretrial proceedings in the case known as In Re Vehicle Carrier
Services Antitrust Litigation, MDL No. 2471. The case in New
Jersey is now styled Jackson v. NYK Line (North America) Inc., et
al., Case No. 2:13-cv-06623-ES-JAD (D.N.J., November 1, 2013).
The "Jackson" case is one of several related antitrust litigations
filed against companies that provide Vehicle Carrier Services to
original equipment manufacturers for the purpose of shipping cars,
trucks, or other four wheeled vehicles across international
waterways. "Vehicle Carrier Services" refers to the business of
providing ocean transportation of vehicles -- like cars, trucks,
or other four wheeled vehicles -- by use of large Vehicle Carriers
known as Roll On/Roll Off vessels, or "RoRos."
The Plaintiff is represented by:
Francis Onofrei Scarpulla, Esq.
ZELLE HOFMANN VOELBEL & MASON LLP
44 Montgomery Street, Suite 3400
San Francisco, CA 94104
Telephone: (415) 693-0700
Facsimile: (415) 693-0770
E-mail: fscarpulla@zelle.com
- and -
Christopher Lovell, Esq.
LOVELL & STEWART, LLP
500 Fifth Avenue, Suite 5800
New York, NY 10110
Telephone: (212) 608-1900
- and -
Craig Essenmacher, Esq.
Keith Essenmacher, Esq.
LOVELL STEWART HALEBIAN LLP
61 Broadway, Suite 501
New York, NY 10006
Telephone: (212) 608-1900
Facsimile: (212) 719-4775
E-mail: essenma2@yahoo.com
The Defendants are represented by:
Megan Dixon, Esq.
HOGAN LOVELLS US LLP
3 Embarcadero Center, Suite 1500
San Francisco, CA 94111
Telephone: (415) 374-2300
Facsimile: (415) 374-2499
E-mail: megan.dixon@hoganlovells.com
- and -
Steven M. Edwards
HOGAN LOVELLS US LLP
875 Third Avenue, Suite 2600
New York, NY 10012
Telephone: (212) 918-3000
Facsimile: (212) 918-3100
E-mail: steven.edwards@hoganlovells.com
PATTON STATE: "Kelso" Suit Dismissed Without Leave to Amend
-----------------------------------------------------------
The plaintiff in JOHN DONALD KELSO, Plaintiff, v. WENDY GETTY, et
al., Defendants, NO. 2:13-CV-0504 AC P., (E.D. Cal.), is a civilly
committed mentally disordered offender (MDO) currently confined at
Patton State Hospital. Mr. Kelso proceeds pro se and in forma
pauperis in this action pursuant to 42 U.S.C. Section 1983.
On September 6, 2013, the court screened the Plaintiff's first
amended complaint, and dismissed it with leave to amend only with
respect to an access to courts claim and/or a conditions of
confinement claim under the Fourteenth Amendment. The Plaintiff
has filed a second amended complaint.
Magistrate Judge Allison Claire finds that the second amended
complaint does not cure the deficiencies raised in the court's
September 6, 2013 order. Accordingly, the Court will dismiss the
second amended complaint, without leave to amend, for failure to
state a claim upon which relief can be granted, Judge Claire says.
A copy of the District Court's November 26, 2013 Order is
available at http://is.gd/VhqlwMfrom Leagle.com.
PHOTOMEDEX INC: Jan. 27 Class Action Lead Plaintiff Deadline Set
----------------------------------------------------------------
Wites & Kapetan on Dec. 6 disclosed that on November 6, 2013,
PhotoMedex, Inc. issued a press release reporting PhotoMedex's
third quarter 2013 financial and operating results and confirmed
allegations that the Company had overstated its prospects for the
Company's key product, the no!no! device, in the Japanese market.
Specifically, PhotoMedex stated that there were "no consumer sales
to the Company's distributor in Japan." Following this news,
PhotoMedex shares fell $1.13 per share, or 8.84%, from a close of
$12.78 per share on November 5, 2013 to a close of $11.65 per
share on November 6, 2013.
A complaint has been filed in the United States District Court for
the Eastern District of Pennsylvania on behalf of all persons who
purchased or otherwise acquired shares of PhotoMedex common stock
between November 7, 2012 and November 14, 2013. The action has
been brought against PhotoMedex and certain Company officers
alleging that throughout the Class Period, defendants made false
and misleading statements and/or failed to disclose that (i) the
effectiveness of the Company's key product, the no!no! device,
rested on flimsy, weak studies; (ii) a more credible study raised
serious doubts as to the touted effectiveness of the Company's key
product, and in fact showed that no!no! works no better than
shaving; (iii) the Company materially overstated the prospects for
the no!no! device in the Japanese market; and (iv) as a result,
the Company's financial statements, assurances and expectations
with regard to the Company's growth, operations and business
prospects were false and misleading at all relevant times.
If you are an investor who purchased PhotoMedex stock you may have
a legal claim against the Company and could serve as the lead
plaintiff in a class action lawsuit. The deadline to move for
appointment as a lead plaintiff is January 27, 2014. If you are
interested in being the lead plaintiff, or would like to speak
with an attorney about your legal rights, contact the attorneys at
Wites & Kapetan, P.A. by email at info@wklawyers.com or toll-free
at 1 (866) 277-8631.
Wites & Kapetan, P.A. -- http://www.wklawyers.com-- is a law firm
with offices in Oakland, California and Lighthouse Point, Florida,
with expertise in the representation of investors in securities
fraud and investor litigation claims.
PRIME HEALTHCARE: Accused of Charging Inflated Chargemaster Rates
-----------------------------------------------------------------
A class action accuses Prime Healthcare Services of charging
uninsured emergency room patients "grossly inflated 'Chargemaster'
rates" without notifying them of it.
Lead plaintiff Gene Moran sued Prime Healthcare and a slew of
affiliates in Orange County Court. Defendants include Prime
Healthcare Huntington Beach dba Huntington Beach Hospital.
Moran accuses Prime Healthcare of "unreasonable, unconscionable
and unlawful pricing, billing and collection practices for
emergency care with respect to plaintiff and other similarly
situated self-pay patients."
It's not an unusual complaint. Many hospitals have been sued by
uninsured patients who claim the hospitals systematically give
discounts to insurers but not to uninsured patients.
Moran accused the defendants of forcing ER patients "to sign a
form, adhesive intake agreement drafted by defendants (hereinafter
'contract') which contains a vague, ambiguous, nondescript, and
indeterminate financial liability provision with respect to
emergency treatment/services rendered by defendants; (2) failing
to inform self-pay emergency care patients that they will be
billed and required to pay for emergency care at defendants'
artificially inflated and grossly excessive 'Chargemaster' rates;
(3) failing to inform self-pay emergency care patients that they
will be billed and required to pay at rates substantially higher
than reimbursement rates paid by other
patients signing the same contract and receiving the same level of
treatment and services; and (4) billing and seeking to enforce
collection of defendants' unreasonable, unfair, and grossly
excessive Chargemaster rates from their self-pay patients. This
conduct is particularly egregious because emergency self-pay
patients are under substantial duress when seeking emergency
treatment/services and are typically the least able to afford
defendants' artificially inflated prices."
Moran claims these excessive Chargemaster rates are not mentioned
in the contract, and that they are "several times the
reimbursement rates for essentially all of defendants' other
emergency care patients signing the same contract and receiving
the same treatment/services."
He seeks class certification, an injunction, restitution,
disgorgement, costs and damages for breach of contract, breach of
faith, deceptive trade and consumer law violations.
The Plaintiff is represented by:
Barry L. Kramer, Esq.
LAW OFFICE OF BARRY KRAMER
9550 S. Eastern Ave., Suite 253
Las Vegas, NV 89123
Telephone: (702) 778-6090
E-mail: Kramerlaw@aol.com
- and -
Brian R. Strange, Esq.
Gretchen Carpenter, Bar No. 180525
STRANGE & CARPENTER
12100 Wilshire Blvd., Suite 1900
Los Angeles, CA 90025
Telephone: (310) 207-5055
Facsimile: (310) 826-3210
E-mail: lacounsel@earthlink.net
gcarpenter@strangeandcarpenter.com
The case is Gene Moran v. Prime Healthcare Management, Inc., Case
No. 30-2013-00689394-CU-BC-CXC, in the Superior Court of
California, Orange County.
PVR PARTNERS: Being Sold to Regency for Too Little, Suit Says
-------------------------------------------------------------
Stephen Bushansky alleges that PVR Partners, L.P., is being sold
for too little to Regency Energy Partners LP.
On October 10, 2013, Regency and the Partnership announced that,
along with certain of affiliates, they had entered into a
definitive agreement and plan of merger dated October 9, 2013,
under which Regency, through Merger Sub, will acquire all of the
outstanding units of PVR in a mixed cash and unit transaction.
The Proposed Transaction is valued at approximately $5.6 billion,
including the assumption of net debt of $1.8 billion.
PVR is a publicly traded Delaware limited partnership
headquartered in Radnor, Pennsylvania. The Partnership owns and
operates a network of natural gas midstream pipelines and
processing plants, and owns and manages coal and natural resource
properties in the United States. PVR GP, a Delaware limited
liability company, is the general partner of the Partnership. The
Partnership is managed by PVR GP's directors and officers. The
Individual Defendants are directors and officers of the
Partnership.
Regency is a Delaware limited partnership headquartered in Dallas,
Texas. Regency specializes in the gathering and processing,
contract compression, treating and transportation of natural gas,
and the transportation, fractionation and storage of natural gas
and natural gas liquids. Regency GP is a Delaware limited
liability company and the general partner of Regency. Merger Sub
is a Delaware limited liability company wholly owned by Regency
and was created for the purposes of effectuating the Proposed
Transaction.
The Plaintiff is represented by:
Evan J. Smith
Marc Ackerman, Esq.
BRODSKY & SMITH, LLC
Two Bala Plaza, Suite 602
Bala Cynwyd, PA 19004
Telephone: (610) 667-6200
E-mail: esmith@brodsky-smith.com
mackerman@brodsky-smith.com
- and -
Richard A. Acocelli, Esq.
Michael A. Rogovin, Esq.
Kelly C. Keenan, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
E-mail: racocelli@weisslawllp.com
mrogovin@weisslawllp.com
The case is Bushansky v. PVR Partners, L.P., et al., Case No.
2:13-cv-06829-HB, in the United States District Court for the
Eastern District of Pennsylvania (Philadelphia).
REGIONAL TITLE: Faces Class Action Over Excessive Closing Fees
--------------------------------------------------------------
Joshua Alston, writing for Law360, reports that a New Jersey title
company was hit with a putative class action suit in state
Superior Court last month, alleging the firm and its owner charged
real estate buyers excessive fees during the closing process.
Regional Title Agency LLC is the target of the putative class
action led by Michael and Maureen Yanak, a Mount Laurel Township
couple who say RTA and its owner Thomas Swider assessed excessive
fees at the close of their real estate transaction in violation of
New Jersey's fraud and contract laws.
According to the Nov. 19 complaint, RTA's roles are to act as an
insurance agent, to purchase and issue title insurance policies,
and also as a closing agent, to collect assorted fees. The
complaint, filed in Camden County, said this dual role is typical
of the area's "South Jersey closings."
What is atypical is how much RTA allegedly charged customers for
deed "recording fees," which, according to the complaint, exceed
the legal limits set by New Jersey's Land Title Insurance Rating
Bureau Manual of Rates and Charges. The Yanaks said the
unwarranted fees violate the state's Consumer Fraud Act and Truth
in Consumer Contract, Warranty and Notice Act.
While the complaint does not specify the amount of money the
Yanaks were charged, it said the amount at issue is less than
$100, making the dispute appropriate for a class action, as
pursuing the claims individually would be economically fruitless.
The complaint does not provide the exact size of the putative
class, but estimated it at "several thousand" RTA customers who
were charged the deed recording fees since November 2007.
The suit includes counts of violating the Consumer Fraud and Truth
in Consumer Contract acts, in addition to unjust enrichment and
conversion. The Yanaks are seeking actual damages that would be
trebled based on the CFA, plus attorneys' fees and costs as well
as an injunction blocking RTA from assessing the fees in the
future.
According to the complaint, Mr. Swider, identified in the document
as RTA's managing officer, owner and principal, is named in the
suit as an individual defendant for his role in the collection of
the fees rather than to further a theory of vicarious liability.
"The claims against Swider are based on the actions of Swider, and
on the fact that Swider personally participated in the
unconscionable commercial practices alleged herein; that Swider
knew of, created and approved of the [practices] knowing that he
was receiving proceeds from unlawful activity," the complaint
said.
An attorney for the Yanaks did not immediately respond to a
request for comment on Dec. 5, nor did a representative of RTA.
The Yanaks are represented by DeNittis Osefchen PC, which won a
settlement in a similar class action suit in April.
North American Title Agency Inc. approved a settlement to resolve
a class action filed on behalf of as many as 12,000 homeowners who
were allegedly overcharged for documents in mortgage closings.
The plaintiff in that suit alleged that North American Title had a
system of automatically estimating the amount of documents that
would be generated in a closing and charging customers for the
estimate, which may not have reflected the actual number of
documents. North American Title computed its fee by charging $30
for the first page of a mortgage, and $10 for each additional
page.
Following a judge's certification of the class and final approval
of the settlement in April, Mr. DeNittis told Law360 the
individual claims ranged between $10 and $150, but said he could
not estimate the amount of the full settlement.
The Yanaks are represented by Stephen P. DeNittis --
sdenittis@denittislaw.com -- and Joseph A. Osefchen --
sdenittis@denittislaw.com -- of DeNittis Osefchen PC.
Representation information for Regional Title and Swider were not
immediately available on Dec. 5.
The case is Michael and Maureen Yanak v. Regional Title Agency LLC
and Thomas Swider, case number L-004730-13, in the Superior Court
of New Jersey, Camden County.
SAMSUNG TELECOMS: Court Denies Motion for Class Action Arbitration
------------------------------------------------------------------
Kat Greene, writing for Law360, reports that a Texas federal court
on Dec. 5 refused to send a putative class action alleging Samsung
didn't make customers whole on faulty Galaxy S phones into
arbitration, finding that clauses in the customers' wireless
carrier contracts did not include the phones' maker.
U.S. District Judge Sidney A. Fitzwater ruled that Samsung could
file a supplemental appendix in support of moving the suit to
arbitration, but denied the motion on the grounds that the
customers suing the company had arbitration agreements with Sprint
and Verizon but not with Samsung, according to the decision.
"It is not necessary for plaintiffs to rely on the terms of their
service agreements with Sprint Corp. and Verizon Wireless to
assert their claims against Samsung, and plaintiffs' claims are
not intimately founded in and intertwined with these contracts,"
Judge Fitzwater wrote on Dec. 5.
The judge also pared the putative class's claims, trimming out
several breach of warranty accusations on the grounds that the
customers had turned to their wireless carriers and not Samsung
itself to fix their phones when problems arose.
Shane Galitsky, along with two other lead plaintiffs, filed suit
in California in June 2012, but Samsung successfully moved the
suit to federal court in Dallas, according to court records. It
was at least the third such class action the plaintiffs had
attempted over the Galaxy S phones.
Mr. Galitsky said his phone started failing only a few months
after he bought it, according to the suit. The phones freeze,
shut down and power off randomly in standby mode, rendering them
unusable, the plaintiffs claimed. He said he contacted Samsung
about the defect when he was having a different problem with the
phone and that Samsung did nothing to fix it, according to the
suit. He then had a second problem, also unrelated, and again told
the company about the shutdown issue, he said.
Mr. Galitsky is still trying to use the Galaxy S, a fact that,
Samsung argued, should preclude him from bringing claims of the
product's unmerchantability to court. But Judge Fitzwater
disagreed, saying that because Mr. Galitsky has to frequently
remove the phone's battery to reset it renders the phone useless
for its general purpose.
"We are pleased with the court's well-reasoned opinion denying
Samsung's request for arbitration and leaving intact key warranty
and consumer protection claims. We are continuing with discovery
and look forward to certifying a class for trial," plaintiffs'
attorney Bill Doyle told Law360 on Dec. 5.
A spokeswoman for Samsung declined to comment.
The class is represented by William J. Doyle --
bill@doylelowther.com -- and James R. Hail -- jim@doylelowther.com
-- of Doyle Lowther LLP, Thomas E. Glynn of Glynn Law Group,
Alan M. Mansfield -- amansfield@whatleykallas.com -- of The
Consumer Law Group, and Mark R. Stanley of Stanley Iola LLP.
Samsung is represented by Jeffrey M. Tillotson, Alan Dabdoub, Gail
A. Hayworth and John D. Volney of Lynn Tillotson Pinker & Cox LLP
and David I. Hurwitz -- dih@birdmarella.com -- and Ekwan E. Rhow
-- eer@birdmarella.com -- of Bird Marella Boxer Wolpert Nessim
Drooks & Lincenberg PC.
The case is Shane Galitsky et al. v. Samsung Telecommunications
America LLC, case number 3:12-cv-04782, in the U.S. District Court
for the Northern District of Texas.
ST. JUDE MEDICAL: Court Tosses Bid to Dismiss "O'Neil" Suit
-----------------------------------------------------------
District Judge Robert S. Lasnik denied a motion to dismiss the
class action complaint captioned K. SEAN O'NEIL, et al.,
Plaintiffs, v. ST. JUDE MEDICAL, INC., et al., Defendants, NO.
C13-0661RSL, (W.D. Wash.).
In his complaint, Mr. O'Neil alleges that defendants failed to
manufacturer its implantable cardiac defibrillator (ICD) device in
a manner that was consistent with the manufacturing and process
changes approved by the Food and Drug Administration (FDA) between
2005 and 2010.
Judge Lasnik held that the allegations regarding the manufacturing
and reporting standards imposed by federal regulation and the
approval process, the specific manufacturing defects arising from
noncompliance with those standards, the FDA investigation and
recall, defendants' knowledge of product defects and subsequent
reporting failures, the impact the alleged defects would have on
the functioning of an ICD, the nature of plaintiff's injuries, and
the condition of his Riata lead upon removal, considered together,
are sufficient to state plausible claims for relief.
A copy of the District Court's November 22, 2013 Order is
available at http://is.gd/Dspioufrom Leagle.com.
TJ MAXX: Sued Over Use of Theft Contributory Database
-----------------------------------------------------
G. Tsang, individually and on behalf of a class of similarly
situated individuals v. T.J. Maxx of CA, LLC and Does 1 through
10, inclusive, Case No. RG13704658 (Cal. Super. Ct., Alameda Cty.,
November 25, 2013) arises out of T.J. Maxx of CA, LLC's
participation as a member in the "Esteem" "retail theft
contributory database" to the detriment of the Plaintiff and the
Class.
The Esteem database is owned and operated by First Advantage
Background Services Corp., which purchased the database from
LexisNexis Risk Solutions Inc. in early 2013. The database is
comprised exclusively of information derived from the input of
participating retail merchants, including T.J. Maxx, specifically
their detention records for alleged incidents of shoplifting,
fraud, and theft. The vast majority, if not all, of the detention
records in the database relate to alleged crimes that were never
criminally prosecuted and for which no criminal conviction ever
resulted.
T.J. Maxx of CA, LLC is a Delaware limited liability company
headquartered in Framingham, Massachusetts. T.J. Maxx has
systematically and continuously done business in the state of
California through T.J. Maxx retail stores. The Plaintiff is
ignorant of the true names and capacities of the Doe Defendants.
The Plaintiff is represented by:
Jeffrey F. Keller, Esq.
Eric A. Grover, Esq.
Carey G. Been, Esq.
KELLER GROVER LLP
1965 Market Street
San Francisco, CA 94103
Telephone: (415) 543-1305
Facsimile: (415) 543-7861
E-mail: jfkeller@kellergrover.com
eagrover@kellergrover.com
cbeen@kellergrover.com
TRUMP UNIVERSITY: 9th Circuit Refused to Review Anti-SLAPP Suit
---------------------------------------------------------------
Tim Hull at Courthouse News Service reports that declining to
reconsider Trump University's defamation counterclaim against an
unhappy former student, the 9th Circuit added fuel November 27,
2013, to a controversy over the application of state anti-SLAPP
laws in federal court.
Tarla Makaeff lodged a class action alleging deceptive business
practices against the for-profit school in 2010. She claimed that
Trump University, now called The Trump Entrepreneur Initiative,
took her for nearly $60,000 and failed to follow up on promises it
made during expensive seminars that Makaeff said were little more
than "infomercials."
Trump University answered the allegations with a counterclaim for
defamation based on Makaeff's online postings and other comments,
which Makaeff said were intended to "alert other consumers of my
opinions and experience with Trump University," and to "inform
other consumers of my opinion that Trump University did not
deliver what it promised."
Makaeff moved to strike the counterclaim under California's anti-
SLAPP (Strategic Lawsuits Against Public Participation) law, but
U.S. District Judge Irma Gonzalez in San Diego denied the motion.
A three-judge federal appeals panel reversed Gonzalez in April,
finding that she had failed to set the appropriately high standard
that Trump University must meet to prove defamation as a "limited
public figure."
In a concurrence to the ruling, Chief Judge Alex Kozinski argued
that California's anti-SLAPP law, which has been used in federal
court since 1999, had "cut[] an ugly gash" across an otherwise
orderly federal process.
He said an 11-judge, en banc rehearing of the Trump case would
provide a "fresh look at the question."
The appeals court refused to take Kozinski's bait and denied en
banc rehearing in an order published Wednesday, November 27, 2013.
This inspired a long dissent on the anti-SLAPP statute's many
alleged shortcomings from Judge Paul Watford, which was joined by
Kozinski and Judges Richard Paez and Carlos Bea.
The judges argued that the Anti-SLAPP law clashes with at least
two federal rules of procedure by requiring a higher standard for
pre-trial dismissal and "for testing the legal sufficiency of a
claim."
They further contended that the U.S. Supreme Court's 2010 ruling
in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., in
which the high court ruled that a New York state statute
conflicted with federal procedures governing class actions,
warranted a rehearing of the Trump case.
"That intervening decision should have led us to revisit -- and
reverse -- our precedent permitting application of state anti-
SLAPP statutes in federal court," Judge Watford wrote.
He added that, "even if anti-SLAPP motions may be brought in
federal court, we should stop entertaining interlocutory appeals
from rulings on such motions."
In a concurrence that addressed many of the issues raised in the
dissent, Judges Kim McLane Wardlaw and Consuelo Maria Callahan
said that en banc rehearing was only proper under extraordinary
circumstances.
Meanwhile, a "contrary result" in the Trump case would create a
split among the federal circuits, they said, joined by Judges
William Fletcher and Ronald Gould.
The judges also defended the application of anti-SLAPP laws in the
federal courts.
"Without anti-SLAPP protections in federal courts, SLAPP
plaintiffs would have an incentive to file or remove to federal
courts strategic, retaliatory lawsuits that are more likely to
have the desired effect of suppressing a SLAPP defendant's speech-
related activities," Wardlaw and Callahan wrote. "Encouraging
such forum-shopping chips away at "'one of the modern cornerstones
of our federalism.'"
The Plaintiffs are represented by:
Amber Eck, Esq.
ZELDES HAEGGQUIST & ECK, LLP
625 Broadway
San Diego, CA 92101
Telephone: (619) 342-8000
Facsimile: (619) 342-7878
E-mail: ambere@zhlaw.com
- and -
Amanda M. Frame, Esq.
Eric Alan Isaacson, Esq.
Rachel L. Jensen, Esq.
Thomas R. Merrick, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway
San Diego, CA 92101-8498
Telephone: (619) 338-3899
E-mail: aframe@rgrdlaw.com
erici@rgrdlaw.com
rachelj@rgrdlaw.com
tmerrick@rgrdlaw.com
The Defendants are represented by:
Jill Ann Martin, Esq.
c/o Trump National Golf Club
One Ocean Trails Dr.
Rancho Palos Verdes, CA 90275
Telephone: (310) 303-3225
E-mail: jmartin@trumpnational.com
- and -
David Keith Schneider, Esq.
YUNKER & SCHNEIDER
655 West Broadway
San Diego, CA 92101
Telephone: (619) 233-5500
E-mail: dks@yslaw.com
The appellate case is Tarla Makaeff, et al. v. Trump University,
LLC, et al., Case No. 11-55016, in the United States Court of
Appeals for the Ninth Circuit. The original case is Tarla
Makaeff, et al. v. Trump University, LLC, et al., Case No. 3:10-
cv-00940-IEG-WVG, in the U.S. District Court for Southern
California, San Diego.
UC LIVERMORE: Lab Retirees to Pursue Legal Class Action
-------------------------------------------------------
Jeff Garberson, writing for The Independent, reports that under
new leadership, the UC Livermore Laboratory Retirees Group will
continue its legal action aimed at forcing the University of
California to restore retirees to UC health care programs.
Marty Crowningshield, who retired in 1999 after 31 years at
Lawrence Livermore National Laboratory, has taken over as
president of the group after its original leader, Joe Requa,
stepped down for health reasons.
In an interview, Mr. Crowningshield said that he thinks Mr. Requa
has done an outstanding job. He agrees with the group's efforts
to date and is "very optimistic" that the lawsuit will prevail.
The lawsuit was filed in Superior Court in Oakland in 2010, two
years after operation of the national laboratory was reassigned to
a for-profit consortium. Until that contract change, UC had been
sole manager and the Laboratory's retirees received UC benefits.
Health insurance was negotiated by the University based on quality
and price of insurers' services. Now the retirees have to shop in
the larger health insurance market without UC group protection.
The suit has been going through the court system, with
encouragement for the retirees at key steps along the way.
Two years ago, for example, the California Supreme Court confirmed
that an implicit contract may exist requiring a public agency to
continue providing benefits to its retirees even when there is no
written document promising the benefits. The existence and
validity of an implicit contract is a key contention of the
retirees' case.
More recently, an Appeals Court overruled a decision by Superior
Court Judge Frank Roesch dismissing the retirees' suit as
requested by the University.
Current legal activity includes an effort to change the suit to
class action, which requires court permission and acceptance of a
new group of plaintiffs. The change was agreed to by more than 90
percent of Retirees Group members in a survey and approved by its
legal defense panel.
If accepted by the court, the change could put more pressure on
the University because of the possibility of greater damages,
according to outgoing president Mr. Requa, speaking last Spring.
Mr. Crowningshield, the new president, agrees with this strategy
and plans to continue it. "I would hope nothing will change" from
the course the Retirees Group has been taking, he said.
He thinks its board of directors has been "doing a great job"
raising funds necessary to support the suit, helping develop
strategy and interacting with members.
Still, the remaining legal effort is unlikely to be concluded
anytime soon, according to legal observers familiar with the case.
The process involves approval of the change to class action,
certification of the class for which a resolution is being sought,
opportunities for UC to respond, and opportunities for the
retirees to respond to the University.
If the case survives, a months-long period of "discovery" will
follow during which retirees can seek documents that might help
their case. Again, the University can respond and so can retirees.
Conclusion of the case before the end of 2014 would be unusually
fast, according to legal observers.
Still, said Mr. Crowningshield, "I'm very optimistic that we'll
win. Every time there has been a legal problem, we have dealt
with it and we have won."
UNILIFE CORP: Faces Securities Suit for Misleading Investors
------------------------------------------------------------
Byron Brandt, Individually and on Behalf of All Other Persons
Similarly Situated v. Unilife Corporation, Alan D. Shortall, R.
Richard Wieland, and Ramin Mojdeh, Case No. 1:13-cv-02690-JEJ
(M.D. Pa., November 1, 2013) is a federal securities class action
on behalf of a class consisting of all persons other than the
Defendants, who purchased Unilife securities between July 13,
2011, and September 9, 2013, inclusive, seeking to recover damages
caused by the Defendants' alleged violations of the federal
securities laws and to pursue remedies under the Securities
Exchange Act of 1934.
Throughout the Class Period, the Defendants made false and
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects, the Plaintiffs contends.
Unilife is a Delaware corporation headquartered in York,
Pennsylvania. Unilife designs and manufactures medical devices.
The Company produces retractable syringes. Unilife markets its
products to pharmaceutical manufacturers, suppliers of medical
equipment to healthcare facilities, as well as patients who self-
administer prescription medication. The Individual Defendants are
directors and officers of the Company.
The Plaintiff is represented by:
Walter W. Cohen, Esq.
Kevin J. Kehner, Esq.
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
200 Locust Street, Suite 400
Harrisburg, PA 17101-1508
Telephone: (717) 234-9730
Facsimile: (717) 234-9734
E-mail: walter.cohen@obermayer.com
kevin.kehner@obermayer.com
- and -
Jeremy A. Lieberman, Esq.
Lesley F. Portnoy, Esq.
POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
lfportnoy@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP
Ten South LaSalle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
E-mail: pdahlstrom@pomlaw.com
The Defendants are represented by:
Jay A. Dubow, Esq.
William A. Liess, Esq.
PEPPER HAMILTON LLP
3000 Two Logan Square
Philadelphia, PA 19103-2799
Telephone: (215) 981-4713
E-mail: dubowj@pepperlaw.com
liessw@pepperlaw.com
VAPOR CORP: Defrauds Shoppers Over Free Starter Kit, Suit Claims
----------------------------------------------------------------
Lorraine Bailey at Courthouse News Service reports that an
e-cigarette vendor defrauds Internet shoppers by offering a "free
trial" starter kit for just $4.95 in shipping, then rings up $100
on their credit card and keeps billing them every month, a class
action claims.
Lead plaintiff Jean-Francois Patterson sued Vapor Corp. and Global
Vapor Partners in Cook County Court.
"Defendants Vapor Corp. and GVP are just two of a plethora of
companies vying for the attention and money of smokers who are
seeking out e-cigarettes as an alternative to traditional tobacco
products," the complaint states.
Through various Web sites, Vapor Corp. offers "starter kits" of e-
cigarettes, which it claims are worth nearly $100, for the price
of shipping: $4.95, Patterson claims.
"Vapor Corp. and GVP fail to clearly and conspicuously disclose to
consumers -- who are eager to receive their free trial of e-
cigarettes -- that 14 days following the transaction (in which
consumers only pay $4.95 for shipping and handling) they will then
charge consumers' credit and debit cards over $100.
"If the initial charge wasn't bad enough, defendants also enroll
consumers in a monthly club and tack on additional, reoccurring
monthly charges for Vapor Corp.'s products without disclosing to
consumers -- in any readily recognizable fashion -- that this
charge will be imposed," according to the complaint.
Vapor Corp. states on its website that it owns the e-cigarette
brands Smoker 51, Krave, Green Puffer, VaporX, and EZ-Smoker.
Patterson claims: "Vapor Corp. and GVP are careful to bury mention
of the initial trial charges or the monthly charges in the Terms &
Conditions, which never appear on the same page as the free trial
offer. Defendants also obscure mention of these fees through the
use of flashy graphics and misleading statements that tell
consumers that they 'just pay shipping and handling' and that the
'Total' price for starter kit is '0.00' with a shipping and
handling fee of '4.95.'
Even if consumers return the starter kit within 14 days, Vapor
Corp. charges a $10 restocking fee and gives no refund for the e-
cigarette cartridges, "meaning that under no circumstance is the
cost of the starter kit ever '$0.00,'" according to the lawsuit.
The Better Business Bureau Web site, checked this morning, gave
Vapor Corp. an F rating, citing numerous complaints against it.
Patterson seeks class damages for fraud, breach of contract and
unjust enrichment.
The case is Jean-Franc Patterson v. Vapor Corp. and Global Vapor
Partners, LLC, Case No. 2013-CH-26261, in the Illinois Circuit
Court for Cook County.
The Plaintiff is represented by:
Jay Edelson, Esq.
Rafey S. Balabanian, Esq.
Christopher L. Dore, Esq.
Benjamin H. Richman, Esq.
John C. Ochoa, Esq.
EDELSON LLC
350 North LaSalle Street, 13th Floor
Chicago, IL 60654
Telephone: (312) 589-6370
E-mail: jedelson@edelson.com
rbalabanian@edelson.com
cdore@edelson.com
brichman@edelson.com
jochoa@edelson.com
WAL-MART: Agrees to Contribute $25MM to Settle Gas Can Lawsuits
---------------------------------------------------------------
Lisa Myers and Rich Gardella, writing for NBC News, reports that
the nation's largest retailer, Wal-Mart, has agreed to contribute
about $25 million to settle unresolved lawsuits filed on behalf of
consumers allegedly injured or killed in explosions involving
portable plastic gas cans, according to court documents obtained
by NBC News.
The money from Wal-Mart amounts to slightly more than 15 percent
of a proposed $161 million fund that would settle dozens of
lawsuits against the largest manufacturer of these cans, Blitz
USA, records from U.S. Bankruptcy Court in Delaware show. A
hearing on the proposed settlement is set for early next year.
The retail chain, the largest seller of plastic gas cans, sold
tens of millions of Blitz gas cans. In agreeing to contribute
toward the settlement, it does not acknowledge any safety defect
in the Blitz cans.
Blitz, based in Miami, Okla., and formerly the nation's largest
manufacturer of plastic gas cans, is now in bankruptcy and out of
business, largely because of the lawsuits and previous payouts to
victims of alleged gas can explosions.
Plaintiff attorneys representing individuals burned in alleged gas
can explosion incidents have filed at least 80 lawsuits against
can manufacturers in the last decade or so. Some have also
targeted retailers that sold the cans.
Wal-Mart tells NBC News it's been named as a defendant in 24 of
the lawsuits.
Those lawsuits allege that Blitz and Wal-Mart knowingly sold a
defective product that could explode and produce catastrophic and
sometimes fatal injuries, and refused to add a safety device,
known as a flame arrester, to make the cans safer.
Blitz and other manufacturers have argued that any alleged
injuries were caused by the users' own negligence and misuse, and
that the cans were not at fault.
According to many scientific experts, a flame arrester -- an
inexpensive piece of mesh or a disk with holes -- can reduce the
likelihood of an explosion of a gas/air vapor mixture inside a gas
can. They said the arrester can prevent a flame from entering the
can by absorbing and dispersing its heat energy.
Parties to the lawsuits, including Blitz USA's estate, debtors,
participating insurers and Walmart, have agreed to contribute $161
million to settle with many of the plaintiffs, while denying
liability for the personal injury claims or that any defect in the
cans is the cause of the incidents.
In depositions, Wal-Mart officials insisted that the manufacturer
-- not Wal-Mart -- was responsible for the safety of the product.
A former gas can buyer for Wal-Mart, Jacques DesHommes, said when
questioned in 2010 for a lawsuit that even after being sued over
alleged gas can explosions, the company did not conduct any tests
or investigate whether explosions were actually occurring.
"Wal-Mart does not test the can, the products. The suppliers test
the products," he said.
Diane Breneman, an attorney who has represented about 30
plaintiffs in gas can cases, claims Wal-Mart should have used its
power years ago to demand these cans be made safer.
"If you repeatedly are sued in cases and the allegations are
people are being severely burned or burning to death, you can't
hide your head in the sand," Ms. Breneman said. "You're making
money off of those cans. You have a responsibility at that point
to investigate it, to do whatever is necessary, if you're going to
continue to sell the product."
Wal-Mart spokesperson Brooke Buchanan said the retail chain was
aware of the alleged explosion incidents through its involvement
in lawsuits involving Blitz cans since 2005 (and one earlier
product by another manufacturer in the early 1990s).
Ms. Buchanan acknowledged that Wal-Mart did not ask Blitz or any
other can manufacturer to take any action to investigate the
alleged explosion incidents, evaluate the safety of the cans or
make changes to the can's design, such as adding a flame arrester.
Ms. Buchanan noted that such explosions are "very, very rare
occurences" and said it's not proven that flame arresters will
prevent them.
"We're waiting on industry experts," Ms. Buchanan said.
At NBC News' request, the Consumer Product Safety Commission
analyzed available incident and injury databases and counted
reports of at least 11 deaths and 1,200 emergency room visits that
involved gas can explosions during the pouring of gasoline since
1998.
Both Breneman and Wal-Mart declined comment on the proposed
settlement, which would cover those injured by gas can explosions
between July 2007 and July 2012.
In a video statement provided in response to NBC News inquiries,
Wal-Mart's Buchanan said, "These types of events are tragic and
we're saddened that a small number of people have suffered
injuries from the misuse of gas cans."
While acknowledging Wal-Mart did not ask Blitz to make changes to
reduce the likelihood of flashback explosions, company officials
who gave depositions in some of the lawsuits said Blitz was asked
to make a different change in the product.
Mr. DesHommes said after customers complained about gas can spout
leaking, Wal-Mart asked Blitz to change the spout. The company did
so.
In a deposition in 2006, then-CEO and owner of Blitz USA, John C.
"Cy" Elmburg, testified he asked the retailer to support a
national campaign to educate consumers about the potential dangers
of misusing gas cans, and about how to use them properly.
Wal-Mart officials acknowledged that Blitz asked Wal-Mart to
support such a campaign. The officials told NBC News that Wal-
Mart did not agree to help with the campaign, but did not explain
why.
An internal corporate video from a company meeting in 2003, posted
on YouTube by a communications company, shows a Wal-Mart official
making a joke about a gas can exploding.
In the video, a Wal-Mart employee wearing a helmet and sunglasses,
drives what appears to be a motorized scooter down a store aisle
and into a display of the red portable plastic gas cans, marked
with a sign that reads "2 for $9.00." A chorus of shouted
"whoas!" can be heard in the background as some of the cans fall
to the ground.
The camera cuts to three officials on a stage, one of whom asks,
"Whose gas can was that?"
Another chimes in, "It's a great gas can -- it didn't explode!"
Ms. Buchanan told NBC News that the video was made two years
before the first lawsuit involving a Blitz can that named Wal-Mart
as a defendant. She later confirmed that a lawsuit involving an
alleged gas can explosion in the 1990s had named Wal-Mart as a
defendant. That lawsuit involved a different manufacturer,
Rubbermaid, which no longer makes plastic gas cans, Buchanan said.
Asked why Wal-Mart did not ask Blitz USA to add flame arresters
after it became aware of allegations in the lawsuits that the
absence of a flame arrester had contributed to those incidents,
Ms. Buchanan said, "Wal-Mart is a retailer, we rely on the
experts."
Ms. Buchanan noted that when the issue was brought before the
Consumer Product Safety Commission in 2011, the commission decided
not to act.
But in response to an NBC News investigation published last week,
the CPSC reviewed government reports about injuries from alleged
gas can explosions and its own engineering data about flame
arresters, then called on the industry to add the devices to
portable gas cans.
"We believe this is the right process to determine if the product
can be made even safer," Ms. Buchanan said. "We're looking
forward to seeing their results. As always, we're continually
working to offer customers high-quality products that meet and
exceed their expectations."
WHIRLPOOL CORP: Suit Claimants Seek Recall of Dishwashers
---------------------------------------------------------
CBC News reports that one of the most common dishwashers in
Canadian kitchens is dangerously defective according to
allegations contained in a class action lawsuit filed by an
Edmonton lawyer.
Since the lawsuit was filed in September more than two dozen
people have come forward to report their dishwashers caught fire,
according to lawyer Rick Mallett of Edmonton-based James H. Brown
and Associates.
"It's a real concern because almost everyone has a dishwasher,"
Mr. Mallett said. "And we're hearing stories about flames that
come shooting out of the front of the dishwasher where all the
controls are."
The suit covers fires in the electronic control boards made by
Whirlpool Corporation, and installed in millions of dishwashers in
North America, sold under brand names that include Whirlpool,
Kenmore and KitchenAid.
Christine Fitzsimons of Red Deer said her Kenmore Elite dishwasher
caught fire in January.
She said she was running a load and was in another part of the
house getting ready for company to arrive when she smelled smoke.
"It was like the worst electrical smell I've ever smelled,"
Fitzsimons said.
'Smoke was filling the room'
She and her husband came into the kitchen and saw white smoke
pouring from the dishwasher.
"We ran to the dishwasher and opened it up and it was just full of
smoke and the smoke was filling the room."
They turned off the dishwasher and aired out the house.
But later that night her husband closed the dishwasher's door and
the smoke started pouring out again.
"At that point the power was on in the dishwasher and he ran
downstairs . . . to turn the breaker off for it to stop," she
said.
Ms. Fitzsimons said she often used the dishwasher's delay cycle to
run a load at the end of the day and worries what would have
happened had she not detected the smell so quickly.
"I hate to think if we'd used it that night and gone to bed, what
would have happened."
Natalie Bickert, of Kelowna, B.C., is the lead plaintiff in the
class-action suit.
Ms. Bickert believes she's lucky to be alive after her dishwasher
caught fire last December.
Owner suffered smoke and CO inhalation
She suffered smoke and carbon monoxide inhalation and was rushed
to hospital.
Ms. Bickert said the dishwasher should have been recalled.
"I had no idea that my dishwasher was a fire hazard," she said in
a written statement.
"The company should recall or repair the dishwasher, and they
should warn consumers."
Ms. Fitzsimons's Kenmore dishwasher was manufactured by Whirlpool
Corporation.
She went online her and found her machine's model number was one
digit different from a model already recalled by Whirlpool because
of concerns of fire.
Ms. Fitzsimons contacted Sears, where she had purchased the
dishwasher.
Sears said her dishwasher wasn't part of the recall because her
machine had a stainless steel tub and the 2005 recall only covered
machines with plastic tubs.
In fact, the recall was for problems with overheating motors, not
control panels.
Another recall, for about 1.7 million Maytag dishwashers, was
issued by Whirlpool in 2010 after 12 reports of fires because of
failed heating elements. Maytag is also owned by Whirlpool.
Whirlpool has not issued a recall on its electronic control
boards, which it has used since 1989, and said it stands by their
safety.
"No serious injury has been caused by a Whirlpool control board.
Electronic control boards in any electronic product will heat up
during normal operation," said spokeswoman Kristine Vernier in an
emailed statement. "In extremely rare situations they can
overheat."
Ms. Vernier says Whirlpool is monitoring the safety of its
products and working with government safety agencies in Canada and
the U.S.
"We've sold more than 24 million of those dishwashers," she wrote,
adding they were built so overheating would be contained within
the unit itself.
The statement goes on to say the "claims in the proposed class-
action lawsuit are without merit."
Lawsuit questions Whirlpool's assurances
"We certainly take issue with that," Mr. Mallett said.
"(Natalie Bickert) had a fire that wasn't contained; the safety
features didn't work; and she ended up . . . with smoke inhalation
and significant smoke damage to her home."
Mr. Mallett said the goals of the lawsuit are to get compensation
for people whose dishwashers were destroyed and who suffered
health problems or damage to their homes, and to force Whirlpool
to issue a recall.
A separate class-action lawsuit was filed against Whirlpool in the
U.S. on behalf of 18 people whose dishwashers allegedly caught
fire.
The suit alleges the dishwasher control boards have a known design
flaw and that Whirlpool and Sears have been aware of problems with
the control panels for at least four years.
The claims in both lawsuits have not been proven.
Ms. Fitzsimons hasn't yet joined the Canadian class-action suit,
but hopes it will prompt Whirlpool to recognize there's a problem.
"I don't think anyone's lost their life yet," she said. "But I
wonder what it's going to take for them to actually do something."
* Bennett Jones Discusses Five Class Action Cost Decisions
----------------------------------------------------------
Kirsten A. Thoreson, Esq. -- thoresonk@bennettjones.com -- at
Bennett Jones LLP reports that last month, Justice Belobaba
released five costs decisions with a strong message for the class
action bar: access to justice is becoming too expensive and the
excesses of counsel are at least partly to blame (Rosen v BMO
Nesbitt Burns Inc., 2013 ONSC 6356; Crisante v DePuy Orthopaedics,
2013 ONSC 6351; Dugal v Manulife Financial, 2013 ONSC 6354; Brown
v Canada (Attorney General), 2013 ONSC 6887; and Sankar v Bell
Mobility Inc., 2013 ONSC 6886). He found that excess appears to
have become the norm, causing access to justice to become too
expensive in class actions, an area of law specifically designed
to achieve this fundamental objective. As a result, he suggested
that a "no costs" rule would be much more sensible in the world of
class actions, a world "very different" from other litigation.
In 1982, the Ontario Law Reform Commission (the OLRC, now the Law
Commission of Ontario) recommended establishing class action
legislation with a distinctive no-costs regime as a general rule,
whereby costs would not be awarded to any party to a class action,
at any stage of the proceedings, including an appeal. A similar
regime was already in place in the United States. Instead of
following the OLRC's recommendation, the provincial legislature
adopted the views of the Attorney General's Advisory Committee, of
which Justice Belobaba was a member, to follow Ontario's general
rule that "costs follow the event". Now, Justice Belobaba says
the OLRC was right and he was wrong. He hopes that the mistake
will be corrected in the course of the Law Commission of Ontario's
current review of Ontario's class action legislation, which is now
underway. There is already a no-costs regime in British Columbia
and certification costs awards are capped in Quebec.
So as the annual number of Ontario class actions declines, Justice
Belobaba clarified that, while he will continue to consider and
apply the factors set out in the Rules of Civil Procedure and the
various binding directions of the Court of Appeal, he will also
aim for more transparent and predictable costs decisions in
conventional certification motions. Historical costs awards in
similar cases will be seriously considered. In cases where the
final fees or disbursement amount is dramatically above the norm,
the costs award may be made in two parts: a portion that is
payable immediately and a further portion that is payable in the
cause.
With the "access to justice" objective keenly in mind,
Justice Belobaba's anticipated results are: 1) lower than expected
costs awards, 2) leaner and more focused certification motions,
with a greater measure of predictability, and 3) overall, the
continuing viability of class actions.
Justice Belobaba's decisions appear to be part of a growing trend.
Justice Perell released a costs decision last month as a result of
a motion for documentary productions (The Trustees of the Drywall
Acoustic Lathing and Insulation Local 675 Pension Fund v SCN Group
Inc., 2013 ONSC 7122). The successful defendant claimed close to
$100,000 in fees and disbursements for resisting an interlocutory
motion in an already certified class action. Justice Perell noted
that access to justice is an entitlement of defendants just as it
is for plaintiffs and that spiraling costs in class proceedings
have become a threat to the viability of the class action regime.
Fashioning a creative hybrid solution, he ultimately held that the
appropriate award was costs in any event of the cause in the full
amount claimed by the defendant, but with only 25 percent payable
forthwith and the balance to be paid either a) as a set off
against any future costs awards made against the defendant or b)
to the defendant should it ultimately be successful in defending
the class action at trial.
A no-costs regime is not imminent and, as Justice Belobaba
acknowledges, it remains to be seen how his approach will play
out. Assuming that significant adverse cost awards act as a
disincentive for plaintiffs' lawyers to commence class actions,
then reducing that risk may increase the prospect of class actions
going forward. However, some members of the plaintiff bar argue
that access to justice will actually be further denied, given that
plaintiffs' lawyers are often the beneficiaries of costs awards.
They suggest that defendants will have incentive to drive up the
costs of certification motions, forcing plaintiffs' lawyers to
spend more time but be compensated with less, thereby bearing
increased risks.
Asbestos Litigation
ASBESTOS UPDATE: AMETEK Inc. Continues to Defend Fibro Suits
------------------------------------------------------------
AMETEK, Inc., continues to defend itself against asbestos-related
lawsuits, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended September 30, 2013.
The Company (including its subsidiaries) has been named as a
defendant, along with many other companies, in a number of
asbestos-related lawsuits. Many of these lawsuits either relate to
businesses which were acquired by the Company and do not involve
products which were manufactured or sold by the Company or relate
to previously owned businesses of the Company which are under new
ownership. In connection with many of these lawsuits, the sellers
or new owners of such businesses, as the case may be, have agreed
to indemnify the Company against these claims (the "Indemnified
Claims"). The Indemnified Claims have been tendered to, and are
being defended by, such sellers and new owners. These sellers and
new owners have met their obligations, in all respects, and the
Company does not have any reason to believe such parties would
fail to fulfill their obligations in the future; however, one of
these companies filed for bankruptcy liquidation in 2007. To date,
no judgments have been rendered against the Company as a result of
any asbestos-related lawsuit. The Company believes it has strong
defenses to the claims being asserted and intends to continue to
vigorously defend itself in these matters.
AMETEK, Inc. (AMETEK) is a global manufacturer of electronic
instruments and electromechanical devices with operations in North
America, Europe, Asia and South America. The Company markets its
products worldwide through two groups: the Electronic Instruments
Group (EIG) and the Electromechanical Group (EMG). EIG builds
monitoring, testing, calibration and display devices for the
process, aerospace, industrial, power and medical markets. EMG
produces engineered electromechanical connectors for hermetic
(moisture-proof) applications, specialty metals for niche markets
and brushless air-moving motors, blowers and heat exchangers. End
markets include aerospace, defense, mass transit, medical, office
products and other industrial markets. In October 2013, the
Company announced that it has acquired Creaform Inc., a developer
and manufacturer of portable third dimension (3D) measurement
technologies and a provider of 3D engineering services.
ASBESTOS UPDATE: ConEdison Has $10-Mil. PI Liability at Sept. 30
----------------------------------------------------------------
Consolidated Edison, Inc., has a $10 million accrued liability for
asbestos suits, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2013.
Suits have been brought in New York State and federal courts
against Consolidated Edison Company of New York, Inc. and Orange
and Rockland Utilities, Inc. (the Utilities) and many other
defendants, wherein a large number of plaintiffs sought large
amounts of compensatory and punitive damages for deaths and
injuries allegedly caused by exposure to asbestos at various
premises of the Utilities. The suits that have been resolved,
which are many, have been resolved without any payment by the
Utilities, or for amounts that were not, in the aggregate,
material to them. The amounts specified in all the remaining
thousands of suits total billions of dollars; however, the
Utilities believe that these amounts are greatly exaggerated,
based on the disposition of previous claims.
In 2010, CECONY estimated that its aggregate undiscounted
potential liability for these suits and additional suits that may
be brought over the next 15 years is $10 million. The estimate was
based upon a combination of modeling, historical data analysis and
risk factor assessment. Actual experience may be materially
different. In addition, certain current and former employees have
claimed or are claiming workers' compensation benefits based on
alleged disability from exposure to asbestos. Under its current
rate agreements, CECONY is permitted to defer as regulatory assets
(for subsequent recovery through rates) costs incurred for its
asbestos lawsuits and workers' compensation claims.
At September 30, 2013, the accrued liability for asbestos suits is
$10 million and the amounts deferred as regulatory assets is $10
million for Con Edison. At September 30, 2013, the accrued
liability for asbestos suits is $10 million and the amounts
deferred as regulatory assets is $10 million for CECONY.
Consolidated Edison, Inc. (Con Edison) is a holding company, which
owns Consolidated Edison Company of New York, Inc. (CECONY), which
delivers electricity, natural gas and steam to customers in New
York City and Westchester County; Orange and Rockland Utilities,
Inc. (O&R) (together with CECONY referred to as the Utilities),
which delivers electricity and natural gas to customers primarily
located in southeastern New York, and northern New Jersey and
northeastern Pennsylvania, and competitive energy businesses,
which provide retail and wholesale electricity supply and energy
services. CECONY's business operations are its regulated electric,
gas and steam delivery businesses. O&R's business operations are
its regulated electric and gas delivery businesses. In July 2012,
Consolidated Edison Development, a wholly owned subsidiary of Con
Edison, and GCL Solar Energy Inc., a wholly owned subsidiary of
GCL-Poly Energy Holdings Limited, acquired two solar photovoltaic
projects.
ASBESTOS UPDATE: Noble Corp. Has 33 Suits Pending as of Sept. 30
----------------------------------------------------------------
There were 33 asbestos-related lawsuits against Noble Corporation,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013.
The Company states: "We are from time to time a party to various
lawsuits that are incidental to our operations in which the
claimants seek an unspecified amount of monetary damages for
personal injury, including injuries purportedly resulting from
exposure to asbestos on drilling rigs and associated facilities.
At September 30, 2013, there were 33 asbestos related lawsuits in
which we are one of many defendants. These lawsuits have been
filed in the United States in the states of Louisiana, Mississippi
and Texas. We intend to vigorously defend against the litigation.
We do not believe the ultimate resolution of these matters will
have a material adverse effect on our financial position, results
of operations or cash flows."
Noble Corporation is a leading offshore drilling contractor for
the oil and gas industry. Noble performs, through its
subsidiaries, contract drilling services with a fleet of 79
offshore drilling units (including two ultra-deepwater drillships
and five high-specification jackup drilling rigs currently under
construction), located worldwide, including in the U.S. Gulf of
Mexico and Alaska, Mexico, Brazil, the North Sea, the
Mediterranean, West Africa, the Middle East, India, Malaysia and
Australia. Noble's shares are traded on the New York Stock
Exchange under the symbol "NE." Additional information on Noble
Corporation is available on the Company's Web site at
http://www.noblecorp.com.
ASBESTOS UPDATE: Alleghany Reports $550.2-Mil LAE Gross Reserves
----------------------------------------------------------------
Alleghany Corporation reported a total loss and loss adjustment
expenses ("LAE") gross reserves of $550.2 million, which include
amounts for risks relating to asbestos-related illnesses and
environmental impairment, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended September 30, 2013.
As of September 30, 2013, such total gross reserves comprised of
$539.7 million for TransAtlantic Holdings, Inc., and $10.5
million for Capitol Transamerica Corporation and Platte River
Insurance Company.
The reserves carried for such claims, including the incurred but
not reported portion, are based upon known facts and current law
at the respective balance sheet dates. However, significant
uncertainty exists in determining the amount of ultimate liability
for asbestos-related illnesses and environmental impairment
losses, particularly for those occurring in 1985 and prior, which
represents the majority of TransRe's asbestos-related illnesses
and environmental impairment reserves. This uncertainty is due to
inconsistent court resolutions and judicial interpretations with
respect to underlying policy intent and coverage and uncertainties
as to the allocation of responsibility for resultant damages,
among other reasons. Further, possible changes in statutes, laws,
regulations, theories of liability and other factors could have a
material effect on these liabilities and, accordingly, future
earnings.
Alleghany is engaged in the property and casualty reinsurance and
insurance business. Reinsurance business is conducted through
certain subsidiaries of Alleghany's wholly-owned subsidiary
Transatlantic Holdings, Inc. ("TransRe"), which was acquired in a
merger transaction (the "merger") on March 6, 2012 (the "TransRe
Acquisition Date"). Insurance business is conducted through
certain subsidiaries of Alleghany's wholly-owned subsidiary,
Alleghany Insurance Holdings LLC ("AIHL").
AIHL's insurance business is conducted through its wholly-owned
subsidiaries RSUI Group, Inc. ("RSUI"), Capitol Transamerica
Corporation and Platte River Insurance Company (collectively,
"CATA"), and Pacific Compensation Corporation ("PCC"). AIHL Re LLC
("AIHL Re"), a captive reinsurance subsidiary of AIHL, provides
reinsurance to Alleghany operating units and affiliates.
Alleghany Corporation (Alleghany) is engaged, through Alleghany
Insurance Holdings LLC (AIHL) and its subsidiaries RSUI Group,
Inc. (RSUI), Capitol Transamerica Corporation (CATA) and Pacific
Compensation Corporation (PCC), in the property and casualty and
surety insurance business. Property and casualty and surety
insurance operations are conducted by AIHL through its insurance
operating units RSUI, CATA and PCC. In addition, AIHL Re LLC (AIHL
Re) is a wholly owned subsidiary of AIHL that has in the past
provided reinsurance to Alleghany's insurance operating units and
affiliates. Alleghany Capital Partners LLC (Alleghany Capital
Partners) was established to manage its equity investments,
including those held by its insurance operating units. It also
owns and manages land in Sacramento, California through its
subsidiary Alleghany Properties. Effective July 31, 2013,
Alleghany Corp acquired a 6.25% interest in Ares Management LLC.
ASBESTOS UPDATE: Standard Motor Has 2,250 Cases Pending
-------------------------------------------------------
There were 2,250 asbestos-related cases pending against Standard
Motor Products, Inc., according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2013.
The Company states: "In 1986, we acquired a brake business, which
we subsequently sold in March 1998 and which is accounted for as a
discontinued operation. When we originally acquired this brake
business, we assumed future liabilities relating to any alleged
exposure to asbestos-containing products manufactured by the
seller of the acquired brake business. In accordance with the
related purchase agreement, we agreed to assume the liabilities
for all new claims filed on or after September 2001. Our ultimate
exposure will depend upon the number of claims filed against us on
or after September 2001 and the amounts paid for indemnity and
defense thereof. At September 30, 2013, approximately 2,250 cases
were outstanding for which we may be responsible for any related
liabilities. Since inception in September 2001 through September
30, 2013, the amounts paid for settled claims are approximately
$14.6 million. We acquired limited insurance coverage up to a
fixed amount for defense and indemnity costs associated with
certain asbestos-related claims and have exhausted all insurance
coverage.
In evaluating our potential asbestos-related liability, we have
considered various factors including, among other things, an
actuarial study of the asbestos-related liabilities performed by
an independent actuarial firm, our settlement amounts and whether
there are any co-defendants, the jurisdiction in which lawsuits
are filed, and the status and results of settlement discussions.
As is our accounting policy, we consider the advice of actuarial
consultants with experience in assessing asbestos-related
liabilities to estimate our potential claim liability. The
methodology used to project asbestos-related liabilities and costs
in our actuarial study considered: (1) historical data available
from publicly available studies; (2) an analysis of our recent
claims history to estimate likely filing rates into the future;
(3) an analysis of our currently pending claims; and (4) an
analysis of our settlements to date in order to develop average
settlement values.
The most recent actuarial study was performed as of August 31,
2013. The updated study has estimated an undiscounted liability
for settlement payments, excluding legal costs and any potential
recovery from insurance carriers, ranging from $24.4 million to
$37.4 million for the period through 2058. The change from the
prior year study was a $2.7 million decrease for the low end of
the range and a $4.1 million decrease for the high end of the
range. The decrease in the estimated undiscounted liability from
the prior year study at both the low end and high end of the range
reflects our actual experience over the prior twelve months. Based
on the information contained in the actuarial study and all other
available information considered by us, we have concluded that no
amount within the range of settlement payments was more likely
than any other and, therefore, in assessing our asbestos liability
we compare the low end of the range to our recorded liability to
determine if an adjustment is required. Based upon the results of
the August 31, 2013 actuarial study, no adjustment to the asbestos
liability was recorded in our consolidated financial statements as
the difference between our recorded liability and the liability in
the actuarial report at the low end of the range was not material.
Legal costs, which are expensed as incurred and reported in
earnings (loss) from discontinued operations in the accompanying
statement of operations, are estimated, according to the updated
study, to range from $27.4 million to $48.1 million for the period
through 2058.
We plan to perform an annual actuarial evaluation during the third
quarter of each year for the foreseeable future. Given the
uncertainties associated with projecting such matters into the
future and other factors outside our control, we can give no
assurance that additional provisions will not be required. We will
continue to monitor the circumstances surrounding these potential
liabilities in determining whether additional provisions may be
necessary. At the present time, however, we do not believe that
any additional provisions would be reasonably likely to have a
material adverse effect on our liquidity or consolidated financial
position."
Standard Motor Products, Inc. (Standard Motor Products) is an
independent manufacturer and distributor of replacement parts for
motor vehicles in the automotive aftermarket industry, with a
focus on the original equipment service market. The Company
operates in two segments: Engine Management Segment, which
manufactures ignition and emission parts, ignition wires, battery
cables and fuel system parts, and Temperature Control Segment that
manufactures and remanufactures air conditioning compressors, air
conditioning and heating parts, engine cooling system parts, power
window accessories, and windshield washer system parts. In April
2011, the Company acquired the Engine Controls business of BLD
Products, Ltd. In October 2011, the Company acquired Forecast
Trading Corporation. The Company sells its products primarily to
warehouse distributors, retail chains, original equipment
manufacturers and original equipment service part operations in
the United States, Canada and Latin America.
ASBESTOS UPDATE: FirstEnergy Continues to Defend PI Suits
---------------------------------------------------------
FirstEnergy Corp. continues to defend itself against asbestos-
related lawsuits and claims, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended September 30, 2013.
There are various lawsuits, claims (including claims for asbestos
exposure) and proceedings related to FirstEnergy's normal business
operations pending against FirstEnergy and its subsidiaries.
During the third quarter of 2013, studies were completed to update
the estimated cost of asbestos remediation for The Toledo Edison
Company FirstEnergy Solutions Corp. The cost studies resulted in
a revision to the estimated cash flows associated with the Asset
Retirement Obligation liabilities of FES and TE and increased the
liability for FES and TE by approximately $5 million and $7
million, respectively.
FirstEnergy Corp. (FirstEnergy) is engaged in the holding,
directly or indirectly, of its subsidiaries: Ohio Edison Company
(OE), The Cleveland Electric Illuminating Company (CEI), The
Toledo Edison Company (TE), Pennsylvania Power Company (Penn) (a
wholly owned subsidiary of OE), American Transmission Systems,
Incorporated (ATSI), Jersey Central Power & Light Company (JCP&L),
Metropolitan Edison Company (Met-Ed), Pennsylvania Electric
Company (Penelec). FirstEnergy operates in three segments:
Regulated Distribution, Regulated Independent Transmission and
Competitive Energy Services. On February 25, 2011, AE merged with
a subsidiary of FirstEnergy and becoming a wholly owned subsidiary
of FirstEnergy. On July 28, 2011, FirstEnergy completed the sale
of the Fremont Energy Center. On October 18, 2011, FirstEnergy
sold its Richland (432 mega-watts) and Stryker (18 mega-watts)
Peaking Facilities. On October 18, 2011, Gunvor Group, Ltd.
purchased a 33% in Global Holding, a joint venture.
ASBESTOS UPDATE: Crane Co. Had 53,822 Pending Claims at Sept. 30
----------------------------------------------------------------
There were 53,822 claims pending against Crane Co., according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended September 30,
2013.
As of September 30, 2013, the Company was a defendant in cases
filed in numerous state and federal courts alleging injury or
death as a result of exposure to asbestos.
Of the 53,822 pending claims as of September 30, 2013,
approximately 19,100 claims were pending in New York,
approximately 9,700 claims were pending in Texas, approximately
5,300 claims were pending in Mississippi, and approximately 3,000
claims were pending in Ohio, all jurisdictions in which
legislation or judicial orders restrict the types of claims that
can proceed to trial on the merits.
Substantially all of the claims the Company resolves are either
dismissed or concluded through settlements. To date, the Company
has paid two judgments arising from adverse jury verdicts in
asbestos matters. The first payment, in the amount of $2.54
million, was made on July 14, 2008, approximately two years after
the adverse verdict in the Joseph Norris matter in California,
after the Company had exhausted all post-trial and appellate
remedies. The second payment, in the amount of $0.02 million, was
made in June 2009 after an adverse verdict in the Earl Haupt case
in Los Angeles, California on April 21, 2009.
The Company has tried several cases resulting in defense verdicts
by the jury or directed verdicts for the defense by the court, one
of which, the Patrick O'Neil claim in Los Angeles, was reversed on
appeal. In an opinion dated January 12, 2012, the California
Supreme Court reversed the decision of the Court of Appeal and
instructed the trial court to enter a judgment of nonsuit in favor
of the defendants.
On March 14, 2008, the Company received an adverse verdict in the
James Baccus claim in Philadelphia, Pennsylvania, with
compensatory damages of $2.45 million and additional damages of
$11.9 million. The Company's post-trial motions were denied by
order dated January 5, 2009. The case was concluded by settlement
in the fourth quarter of 2010 during the pendency of the Company's
appeal to the Superior Court of Pennsylvania.
On May 16, 2008, the Company received an adverse verdict in the
Chief Brewer claim in Los Angeles, California. The amount of the
judgment entered was $0.68 million plus interest and costs. The
Company pursued an appeal in this matter, and on August 2, 2012
the California Court of Appeal reversed the judgment and remanded
the matter to the trial court for entry of judgment
notwithstanding the verdict in favor of the Company on the ground
that this claim could not be distinguished factually from the
Patrick O'Neil case decided in the Company's favor by the
California Supreme Court.
On February 2, 2009, the Company received an adverse verdict in
the Dennis Woodard claim in Los Angeles, California. The jury
found that the Company was responsible for one-half of one percent
(0.5%) of plaintiffs' damages of $16.93 million; however, based on
California court rules regarding allocation of damages, judgment
was entered against the Company in the amount of $1.65 million,
plus costs. Following entry of judgment, the Company filed a
motion with the trial court requesting judgment in the Company's
favor notwithstanding the jury's verdict, and on June 30, 2009,
the court advised that the Company's motion was granted and
judgment was entered in favor of the Company. The trial court's
ruling was affirmed on appeal by order dated August 25, 2011. The
plaintiffs appealed that ruling to the Supreme Court of
California, which dismissed the appeal on February 29, 2012; the
matter is now finally determined in the Company's favor.
On March 9, 2012, a Philadelphia, Pennsylvania, state court jury
found the Company responsible for a 1/8th share of a $123,000
verdict in the Frank Paasch claim. The Company and plaintiffs
filed post-trial motions. On May 31, 2012, on plaintiffs' motion,
the Court entered an order dismissing the claim against the
Company, with prejudice, and without any payment.
The judgment amounts are not included in the Company's incurred
costs until all available appeals are exhausted and the final
payment amount is determined.
The gross settlement and defense costs incurred (before insurance
recoveries and tax effects) for the Company for the nine-month
periods ended September 30, 2013 and 2012 totaled $67.9 million
and $73.5 million, respectively. In contrast to the recognition of
settlement and defense costs, which reflect the current level of
activity in the tort system, cash payments and receipts generally
lag the tort system activity by several months or more, and may
show some fluctuation from quarter to quarter. Cash payments of
settlement amounts are not made until all releases and other
required documentation are received by the Company, and
reimbursements of both settlement amounts and defense costs by
insurers may be uneven due to insurer payment practices,
transitions from one insurance layer to the next excess layer and
the payment terms of certain reimbursement agreements. The
Company's total pre-tax payments for settlement and defense costs,
net of funds received from insurers, for the nine-month periods
ended September 30, 2013 and 2012 totaled $48.3 million and $60.1
million, respectively.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: "Nelson" Suit v. Crane Co. Remains Pending
-----------------------------------------------------------
An asbestos-related personal injury lawsuit filed by James Nelson
against Crane Co. and other defendants remains pending in a state
court, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013.
On March 23, 2010, a Philadelphia, Pennsylvania, state court jury
found the Company responsible for a 1/11th share of a $14.5
million verdict in the James Nelson claim, and for a 1/20th share
of a $3.5 million verdict in the Larry Bell claim. On
February 23, 2011, the court entered judgment on the verdicts in
the amount of $0.2 million against the Company, only, in Bell, and
in the amount of $4.0 million, jointly, against the Company and
two other defendants in Nelson, with additional interest in the
amount of $0.01 million being assessed against the Company, only,
in Nelson. All defendants, including the Company, and the
plaintiffs took timely appeals of certain aspects of those
judgments. The Company resolved the Bell appeal by settlement,
which is reflected in the settled claims for 2012. On
September 5, 2013, the Pennsylvania Superior Court, in a 2-1
decision, vacated the Nelson verdict against all defendants,
reversing and remanding for a new trial. Plaintiffs have requested
a rehearing in the Superior Court, which the defendants, including
the Company, have opposed.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: Crane Co. Awaits Decision in "Dummit" Appeal
-------------------------------------------------------------
Crane Co. is awaiting a New York court's decision in its appeal
from an order issued in an asbestos-related action filed by Ronald
Dummitt, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013.
On August 17, 2011, a New York City state court jury found the
Company responsible for a 99% share of a $32 million verdict on
the Ronald Dummitt claim. The Company filed post-trial motions
seeking to overturn the verdict, to grant a new trial, or to
reduce the damages, which the Company argued were excessive under
New York appellate case law governing awards for non-economic
losses. The Court held oral argument on these motions on October
18, 2011 and issued a written decision on August 21, 2012
confirming the jury's liability findings but reducing the award of
damages to $8 million. At plaintiffs' request, the Court entered a
judgment in the amount of $4.9 million against the Company, taking
into account settlement offsets and accrued interest under New
York law. The Company has appealed.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: Crane Co. Awaits Decision in "Paulus" Appeal
-------------------------------------------------------------
Crane Co. is awaiting a California court's decision in its appeal
from an order issued in an asbestos-related action filed by
William Paulus, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2013.
On August 29, 2012, the Company received an adverse verdict in the
William Paulus claim in Los Angeles, California. The jury found
that the Company was responsible for ten percent (10%) of
plaintiffs' non-economic damages of $6.5 million, plus a portion
of plaintiffs' economic damages of $0.4 million. Based on
California court rules regarding allocation of damages, judgment
was entered in the amount of $0.8 million against the Company. The
Company filed post-trial motions requesting judgment in the
Company's favor notwithstanding the jury's verdict, which were
denied. The Company has appealed.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: Crane Co.'s Appeal in "Suttner" Suit is Pending
----------------------------------------------------------------
Crane Co.'s appeal from an order issued in an asbestos-related
action filed by Gerald Suttner remains pending, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2013.
On October 23, 2012, the Company received an adverse verdict in
the Gerald Suttner claim in Buffalo, New York. The jury found that
the Company was responsible for four percent (4%) of plaintiffs'
damages of $3 million. The Company filed post-trial motions
requesting judgment in the Company's favor notwithstanding the
jury's verdict, which were denied. The court entered a judgment of
$0.1 million against the Company. The Company has appealed.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: "Hellam" Suit v. Crane Co. Remains Pending
-----------------------------------------------------------
An asbestos-related personal injury lawsuit filed by James Hellam
against Crane Co. remains pending in a California court, according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended September 30,
2013.
On November 28, 2012, the Company received an adverse verdict in
the James Hellam claim in Oakland, CA. The jury found that the
Company was responsible for seven percent (7%) of plaintiffs' non-
economic damages of $4.5 million, plus a portion of their economic
damages of $0.9 million. Based on California court rules regarding
allocation of damages, judgment was entered against the Company in
the amount of $1.282 million. The Company filed post-trial motions
requesting judgment in the Company's favor notwithstanding the
jury's verdict and also requesting that settlement offsets be
applied to reduce the judgment in accordance with California law.
On January 31, 2013, the court entered an order disposing
partially of that motion. On March 1, 2013, the Company filed an
appeal regarding the portions of the motion that were denied. The
court is expected to resolve the remainder of the issues raised
shortly, after which the Company will appeal any remaining issues.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: Crane Co.'s Appeals in 2 Pa. Suits Are Pending
---------------------------------------------------------------
Crane Co.'s appeals from orders issued by a Pennsylvania court in
two asbestos-related lawsuits remain pending, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2013.
On February 25, 2013, a Philadelphia, Pennsylvania, state court
jury found the Company responsible for a 1/10th share of a $2.5
million verdict in the Thomas Amato claim and a 1/5th share of a
$2.3 million verdict in the Frank Vinciguerra claim, which were
consolidated for trial. The Company filed post-trial motions
requesting judgments in the Company's favor notwithstanding the
jury's verdicts or new trials, and also requesting that settlement
offsets be applied to reduce the judgment in accordance with
Pennsylvania law. These motions were denied. The Company has
appealed.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: "Peraica" Suit v. Crane Co. Remains Pending
------------------------------------------------------------
An asbestos-related personal injury lawsuit filed by Ivo Peraica
against Crane Co. remains pending in a New York state court,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013.
On March 1, 2013, a New York City state court jury entered a $35
million verdict against the Company in the Ivo Peraica claim. The
Company filed post-trial motions seeking to overturn the verdict,
to grant a new trial, or to reduce the damages, which the Company
argues were excessive under New York appellate case law governing
awards for non-economic losses and further were subject to
settlement offsets. The plaintiffs have requested judgment against
the Company in the amount of $19.3 million. The matters remain
pending before the trial court. The Company plans to pursue an
appeal if necessary. The Company has taken a separate appeal of
the trial court's denial of its summary judgment motion.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: Crane Co. Continues to Defend "Holdsworth" Suit
----------------------------------------------------------------
Crane Co. continues to defend itself against an asbestos-related
personal injury lawsuit filed by Lee Holdsworth, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2013.
On July 31, 2013, a Buffalo, New York, state court jury entered a
$3.1 million verdict against the Company in the Lee Holdsworth
claim. The Company plans to file post-trial motions seeking to
overturn the verdict, to grant a new trial, or to reduce the
damages, which the Company argues were excessive under New York
appellate case law governing awards for non-economic losses and
further were subject to settlement offsets. Post-trial motions are
scheduled to be heard in the fourth quarter. The Company plans to
pursue an appeal if necessary.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: "Garvin" Suit v. Crane Co. Remains Pending
-----------------------------------------------------------
An asbestos-related personal injury lawsuit filed by Lloyd Garvin
against Crane Co. remains pending in a South Carolina state court,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013.
On September 11, 2013, a Columbia, South Carolina, state court
jury in the Lloyd Garvin claim entered an $11 million verdict for
compensatory damages against the Company and two other defendants
jointly, and also awarded exemplary damages against the Company in
the amount of $11.0 million. The jury also awarded exemplary
damages against both other defendants. The Company has filed post-
trial motions seeking to overturn the verdict, to grant a new
trial, or to reduce the damages. The Company plans to pursue an
appeal if necessary.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: Crane Co. Continues to Defend "DeLisle" Suit
-------------------------------------------------------------
Crane Co. continues to defend itself against an asbestos-related
personal injury lawsuit filed by Richard DeLisle, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2013.
On September 17, 2013, a Fort Lauderdale, Florida, state court
jury in the Richard DeLisle claim found the Company responsible
for 16 percent of an $8 million verdict. The Company has filed
post-trial motions seeking to overturn the verdict, to grant a new
trial, or to reduce the damages, which the Company argues were
excessive under Florida law and further were subject to settlement
offsets. Plaintiffs have filed competing post-trial motions
challenging the jury's allocation of damages to non-parties. The
Company plans to pursue an appeal if necessary.
Crane Co. (Crane) is a diversified manufacturer of engineered
industrial products. It operates in five segments: Aerospace &
Electronics, Engineered Materials, Merchandising Systems, Fluid
Handling and Controls. Its primary markets are aerospace, defense
electronics, non-residential construction, recreational vehicle
(RV), transportation, automated merchandising, chemical,
pharmaceutical, oil, gas, power, nuclear, building services and
utilities. The Aerospace & Electronics segment has two groups, the
Aerospace Group and the Electronics Group. The Engineered
Materials segment manufactures fiberglass-reinforced plastic
panels. The Merchandising Systems segment is comprised of two
businesses, Vending Solutions and Payment Solutions. The Fluid
Handling segment is a provider of engineered fluid handling
equipment. The Controls segment provides customer solutions for
sensing and control applications. In June 2012, it sold Azonix
Corporation to Cooper Industries.
ASBESTOS UPDATE: Albany Int'l. Continues to Defend PI Claims
------------------------------------------------------------
Albany International Corp. continues to defend itself against
asbestos-related personal injury claims, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2013.
Albany International Corp. is a defendant in suits brought in
various courts in the United States by plaintiffs who allege that
they have suffered personal injury as a result of exposure to
asbestos-containing products that it previously manufactured. The
Company produced asbestos-containing paper machine clothing
synthetic dryer fabrics marketed during the period from 1967 to
1976 and used in certain paper mills. Such fabrics generally had a
useful life of three to twelve months.
The Company states: "We were defending 4,299 claims as of
October 11, 2013.
We anticipate that additional claims will be filed against the
Company and related companies in the future, but are unable to
predict the number and timing of such future claims.
Exposure and disease information sufficient to meaningfully
estimate a range of possible loss of a particular claim is
typically not available until late in the discovery process, and
often not until a trial date is imminent and a settlement demand
has been received. For these reasons, we do not believe a
meaningful estimate can be made regarding the range of possible
loss with respect to pending or future claims.
While we believe we have meritorious defenses to these claims, we
have settled certain claims for amounts we consider reasonable
given the facts and circumstances of each case. Our insurer,
Liberty Mutual, has defended each case and funded settlements
under a standard reservation of rights. As of October 11, 2013, we
had resolved, by means of settlement or dismissal, 36,592 claims.
The total cost of resolving all claims was $8.7 million. Of this
amount, almost 100% was paid by our insurance carrier. The Company
has over $125 million in confirmed insurance coverage that should
be available with respect to current and future asbestos claims,
as well as additional insurance coverage that we should be able to
access."
Albany International Corp. is an advanced textile and material
processing company. The Company's business is a producer of
custom-designed fabrics and belts essential to paper and
paperboard production. The consumable fabrics are used to
manufacture all grades of paper from lightweight paper to
heavyweight containerboard. The Company has five segments: Paper
Machine Clothing segment (PMC), Engineered Composites (AEC),
Albany Door Systems (ADS), Engineered Fabrics (EF) and PrimaLoft
Products. Albany International supplies the worldwide pulp and
paper industry, as well as other process industries, with
technologically advanced structured materials and related
services. The Company maintains manufacturing facilities in
Brazil, Canada, China, France, Germany, the United Kingdom, Italy,
Mexico, New Zealand, South Korea, Sweden, Turkey, and the United
States. On January 11, 2012, the Company sold its assets in the
Albany Door Systems (ADS) segment to ASSA ABLOY AB.
ASBESTOS UPDATE: Albany Int'l. Unit Continues to Defend PI Suits
----------------------------------------------------------------
Albany International Corp.'s subsidiary continues to defend itself
against asbestos-related personal injury lawsuits, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended September 30,
2013.
Brandon Drying Fabrics, Inc., a subsidiary of Geschmay Corp.,
which is a subsidiary of the Company, is also a separate defendant
in many of the asbestos cases in which Albany is named as a
defendant. Brandon was defending against 7,816 claims as of
October 11, 2013.
The Company states: "We acquired Geschmay Corp., formerly known as
Wangner Systems Corporation, in 1999. Brandon is a wholly owned
subsidiary of Geschmay Corp. In 1978, Brandon acquired certain
assets from Abney Mills ("Abney"), a South Carolina textile
manufacturer. Among the assets acquired by Brandon from Abney were
assets of Abney's wholly owned subsidiary, Brandon Sales, Inc.
which had sold, among other things, dryer fabrics containing
asbestos made by its parent, Abney. Although Brandon manufactured
and sold dryer fabrics under its own name subsequent to the asset
purchase, none of such fabrics contained asbestos. Because Brandon
did not manufacture asbestos-containing products, and because it
does not believe that it was the legal successor to, or otherwise
responsible for obligations of Abney with respect to products
manufactured by Abney, it believes it has strong defenses to the
claims that have been asserted against it. As of October 11, 2013,
Brandon has resolved, by means of settlement or dismissal, 9,787
claims for a total of $0.2 million. Brandon's insurance carriers
initially agreed to pay 88.2% of the total indemnification and
defense costs related to these proceedings, subject to the
standard reservation of rights. The remaining 11.8% of the costs
had been borne directly by Brandon. During 2004, Brandon's
insurance carriers agreed to cover 100% of indemnification and
defense costs, subject to policy limits and the standard
reservation of rights, and to reimburse Brandon for all indemnity
and defense costs paid directly by Brandon related to these
proceedings.
We do not believe a meaningful estimate can be made regarding the
range of possible loss with respect to these remaining claims.
In some of these asbestos cases, the Company is named both as a
direct defendant and as the "successor in interest" to Mount
Vernon Mills ("Mount Vernon"). We acquired certain assets from
Mount Vernon in 1993. Certain plaintiffs allege injury caused by
asbestos-containing products alleged to have been sold by Mount
Vernon many years prior to this acquisition. Mount Vernon is
contractually obligated to indemnify the Company against any
liability arising out of such products. We deny any liability for
products sold by Mount Vernon prior to the acquisition of the
Mount Vernon assets. Pursuant to its contractual indemnification
obligations, Mount Vernon has assumed the defense of these claims.
On this basis, we have successfully moved for dismissal in a
number of actions.
Although we do not believe that a meaningful estimate of a range
of possible loss can be made with respect to such claims, based on
our understanding of the insurance policies available, how
settlement amounts have been allocated to various policies, our
settlement experience, the absence of any judgments against the
Company or Brandon, the ratio of paper mill claims to total claims
filed, and the defenses available, we currently do not anticipate
any material liability relating to the resolution of the
aforementioned pending proceedings in excess of existing insurance
limits. Consequently, we currently do not anticipate, based on
currently available information, that the ultimate resolution of
the aforementioned proceedings will have a material adverse effect
on the financial position, results of operations, or cash flows of
the Company. Although we cannot predict the number and timing of
future claims, based on the foregoing factors and the trends in
claims against us to date, we do not anticipate that additional
claims likely to be filed against us in the future will have a
material adverse effect on our financial position, results of
operations, or cash flows. We are aware that litigation is
inherently uncertain, especially when the outcome is dependent
primarily on determinations of factual matters to be made by
juries."
Albany International Corp. is an advanced textile and material
processing company. The Company's business is a producer of
custom-designed fabrics and belts essential to paper and
paperboard production. The consumable fabrics are used to
manufacture all grades of paper from lightweight paper to
heavyweight containerboard. The Company has five segments: Paper
Machine Clothing segment (PMC), Engineered Composites (AEC),
Albany Door Systems (ADS), Engineered Fabrics (EF) and PrimaLoft
Products. Albany International supplies the worldwide pulp and
paper industry, as well as other process industries, with
technologically advanced structured materials and related
services. The Company maintains manufacturing facilities in
Brazil, Canada, China, France, Germany, the United Kingdom, Italy,
Mexico, New Zealand, South Korea, Sweden, Turkey, and the United
States. On January 11, 2012, the Company sold its assets in the
Albany Door Systems (ADS) segment to ASSA ABLOY AB.
ASBESTOS UPDATE: "Addison" PI Suit Remanded to State Court
----------------------------------------------------------
Judge G. Patrick Murphy of the U.S. District Court for the
Southern District of Illinois granted the motion to remand filed
by plaintiffs in the asbestos-related personal injury action
titled EDGAR LEE ADDISON and JOSEPHINE TORRES ADDISON, Plaintiffs,
v. CBS CORP., et al., Defendants, CIVIL NO. 13-397-GPM (S.D. Ill.)
after finding that removal of the action was untimely.
A full-text copy of Judge Murphy's memorandum and order dated
Nov. 25, 2013, is available at http://is.gd/Q1SlVOfrom
Leagle.com.
ASBESTOS UPDATE: Bid for Rehearing in "Pfeifer" Suit Denied
-----------------------------------------------------------
William and Anne Pfeifer asserted claims for negligence, strict
liability, and loss of consortium against John Crane, Inc.,
alleging that its asbestos-laden products caused William Pfeifer's
mesothelioma. During the trial, the court rejected JCI's
proffered instructions regarding its "sophisticated user" defense,
and directed a verdict on the defense. After the jury returned a
verdict in the Pfeifers' favor, a judgment was entered awarding
them compensatory and punitive damages. The trial court
subsequently entered orders, inter alia, crediting JCI with an
offset for pre-verdict settlements, and awarding expert fees to
the Pfeifers. JCI appealed from the judgment and certain related
orders, and the Pfeifers cross-appealed.
Regarding JCI's appeal, the Court of Appeal of California, Second
District, Division Four, concluded that the trial court correctly
declined to give JCI's requested instructions on its
"sophisticated user" defense, which stated that employees of a
sophisticated user are deemed to be sophisticated users. The
Court of Appeal held that when a manufacturer provides hazardous
goods to a "sophisticated" intermediary that passes the goods to
its employees or servants for their use, the supplier is subject
to liability for a failure to warn the employees or servants of
the hazards, absent some basis for the manufacturer to believe the
ultimate users know or should know of the hazards.
With respect to JCI's other contentions, the Court of Appeals
concluded there was sufficient evidence to support the jury's
findings regarding comparative fault, and that the award of
punitive damages was supported by the evidence and was not
excessive in amount.
Accordingly, the Court of Appeal dismissed JCI's appeal insofar as
it challenges an award of expert fees to the Pfeifers, as JCI
filed no notice of appeal from the award. Regarding the Pfeifers'
cross-appeal, the Court of Appeal affirmed the trial court's
determination of JCI's credit for the pre-verdict settlements.
Moreover, the Court of Appeal found no error in the judgment and
related orders, with the exception of an error both sides
acknowledge regarding the determination of the Pfeifers' net
recovery of economic damages. The Court of Appeal therefore
dismissed JCI's appeal in part, modified the judgment to reflect
the correct determination of the Pfeifers' net economic damages,
and affirmed the judgment and related orders, as modified.
After the Court of Appeal rendered its judgment, JCI filed a
petition for rehearing, which the Court denied.
The case is WILLIAM PFEIFER et al., Plaintiffs and Appellants, v.
JOHN CRANE, INC., Defendant and Appellants and ANNE PFEIFER,
Individually and as Personal Representative, etc., Plaintiff and
Appellant, v. JOHN CRANE, INC., Defendant and Appellant, NO.
B232315 (Cal. App.). A full-text copy of the Court of Appeal's
Decision dated Nov. 27, 2013, is available at http://is.gd/hmxaGK
from Leagle.com.
Plaintiffs and Appellants William Pfeifer and Anne Pfeifer are
represented by:
Brian P. Barrow, Esq.
SIMON GREENSTONE PANATIER BARTLETT
301 East Ocean Blvd., Suite 1950
Long Beach, CA 90802
Tel: (562) 590-3400
Fax: (562) 590-3412
John L. Cooper, Esq. -- jcooper@fbm.com -- Racheal Turner, Esq. --
rturner@fbm.com -- and Deborah K. Barron, Esq. -- dbarron@fbm.com
-- at Farella Braun & Martel, for Defendant and Appellant John
Crane, Inc.
ASBESTOS UPDATE: Ohio Appeals Court Affirms "Fisher" Ruling
-----------------------------------------------------------
The matter arises from a jury verdict for plaintiff, Jeanine M.
Fisher, daughter of Joseph Bohazi and executor of his estate,
awarding damages for Bohazi's exposure to asbestos-containing
materials and his death from malignant mesothelioma. The
defendant, Ferro Engineering Division of Marine Services Co.,
appeals from the judgment of the trial court that denied its
motions for a directed verdict and for judgment notwithstanding
the verdict. The Plaintiff cross-appeals from the jury's
apportionment of liability among various entities, including
Bohazi's former employers.
In an opinion dated Nov. 27, 2013, a three-judge panel in the
Court of Appeals of Ohio, Eighth District, Cuyahoga County,
affirmed the denial of the motion for a directed verdict and
motion for judgment notwithstanding the verdict, and affirmed the
apportionment of liability.
The case is JEANINE M. FISHER, EXECUTOR OF THE ESTATE OF JOSEPH
BOHAZI, DECEASED PLAINTIFF-APPELLEE, and CROSS-APPELLANT, v.
BEAZER EAST, INC., ET AL. DEFENDANTS-APPELLANTS and CROSS-
APPELLEES [APPEAL BY FERRO ENGINEERING DIVISION, OF MARINE
SERVICES CO.]., NO. 99662 (Ohio App.). A full-text copy of the
Decision is available at http://is.gd/W8JOb6from Leagle.com.
Stephen H. Daniels, Esq. -- sdaniels@mdllp.net -- James A. Byrne,
Esq. -- jbyrne@mdllp.net -- and Evan J. Palik, Esq. --
epalik@mdllp.net -- at MCMAHON DEGULIS L.L.P., Attorneys for
Appellants/Cross-Appellees.
Attorneys for Appellee/Cross-Appellant are:
Joseph J. Cirilano, Esq.
Stephanie N. Bell, Esq.
Diana Nickerson Jacobs, Esq.
Charles J. McLeigh, Esq.
GOLDBERG, PERSKY & WHITE, P.C.
1030 Fifth Avenue, 3rd Floor
Pittsburgh, PA 15219
ASBESTOS UPDATE: Summary Judgment Bids in "Cabasug" Suit Denied
---------------------------------------------------------------
Robert and Joyce Cabasug filed an action on June 1, 2012,
asserting claims for negligence, strict liability, breach of
warranty, loss of consortium, and punitive damages based on a
failure to warn theory against 25 Defendants that manufactured,
sold and/or supplied various products containing asbestos to the
United States Navy. As alleged in the Third Amended Complaint,
Robert Cabasug was exposed to asbestos contained in Defendants'
products while working as a pipefitter and nuclear engineer at the
Pearl Harbor Naval Shipyard from 1973 through 2006, causing him to
develop mesothelioma and other asbestos-related diseases.
Currently before the United States District Court for the District
of Hawaii are a number of motions raising interrelated issues
regarding causation, including (1) what evidence Plaintiffs must
present to raise a genuine issue of material fact that each of
Defendant's products was a substantial factor in causing Cabasug's
injuries; and (2) whether Defendants may be held liable for
asbestos containing replacement parts which they did not
themselves place into the stream of commerce.
The District Court previously determined that maritime law applies
to this dispute in the case Cabasug v. Crane Co., ___ F. Supp. 2d
___, 2013 WL 3855548 (D. Haw. July 25, 2013), Doc. No. 657.
Applying maritime law, the District Court joined those courts that
have already addressed these issues and found that (1) on
causation, Cabasug must establish, for each Defendant, a
substantial exposure for a substantial period of time to a
Defendant's product; and (2) on the duty to warn, a Defendant has
no duty to warn regarding asbestos-containing replacement parts
that it did not manufacture and/or distribute.
Defendants Cleaver Brooks, Inc., Ametek, Inc., Aurora Pump
Company, and Crane Company filed Motions for Summary Judgment
arguing that they are entitled to summary judgment on the issue of
causation (whether based on a substantial factor, replacement
part, and/or duty to warn theory).
The District Court found that a reasonable inference may be drawn
that Cabasug was exposed to asbestos gaskets and packing from Aqua
Chem and/or Cleaver Brooks based on the evidence that: (1) Cabasug
specifically recalled working on Aqua Chem distillers by replacing
their gaskets and packing; (2) both Andrew Ott and Richard
Felimer, two of the Plaintiff's witnesses, assert that the gaskets
and packing of the distillers contained asbestos; (3) Cleaver
Brooks provided instructions for ordering replacement parts; and
(4) selling replacement parts, including asbestos gaskets, was a
regular part of Cleaver Brooks' business.
Accordingly, the District Court denied Cleaver-Brooks' Motion;
granted Ametek's Motion for Summary Judgment; granted in part and
denied in part Aurora Pump's Motion for Summary Judgment; and (5)
granted in part and denied in part Crane's Motion for Summary
Judgment.
The case is ROBERT A. CABASUG and JOYCE C. CABASUG, Plaintiffs, v.
CRANE COMPANY, et al., Defendants, CIVIL NO. 12-00313 JMS/BMK (D.
Haw.). A full-text copy of the Nov. 26, 2013 order penned by
Judge J. Michael Seabright is available for free at
http://is.gd/YOa2GZat Leagle.com.
ASBESTOS UPDATE: Mass. Court Won't Rule on Summary Judgment Bid
---------------------------------------------------------------
In a dispute concerning an indemnification agreement, Plaintiff
Metso Automation USA, Inc. and defendant ITT Corporation each seek
contractual indemnification from the other for damages incurred
defending asbestos-related product-liability suits. The parties
both rely on an indemnity clause contained in an agreement
executed in 1983 between their predecessors-in-interest. ITT has
moved for partial summary judgment.
In lieu of granting partial summary judgment to ITT, Judge F.
Dennis Saylor IV of the United States District Court for the
District of Massachusetts gave the Plaintiff an opportunity to
file a response under Rule 56(d) of the Federal Rules of Civil
Procedure. The Court also gave the parties an opportunity to file
supplemental memoranda on the issue of whether the Court's earlier
ruling granting partial summary judgment as to the declaratory
judgment claim should be vacated.
The case is METSO AUTOMATION USA, INC., Plaintiff, v. ITT
CORPORATION, Defendant, CIVIL ACTION NO. 11-10514-FDS (D. Mass.).
A full-text copy of Judge Saylor's memorandum and order dated
Nov. 27, 2013, is available at http://is.gd/QUZcROfrom
Leagle.com.
ASBESTOS UPDATE: Wash. Court Issues Ruling in "Turner" Suit
-----------------------------------------------------------
In the asbestos-related personal injury action titled JAMES B.
TURNER, et al., Plaintiffs, v. LOCKHEED SHIPBUILDING COMPANY, et
al., Defendants, NO. C13-1747 TSZ (W.D. Wash.), Judge Thomas S.
Zilly of the United States District Court for the Western District
of Washington, Seattle, made the following rulings:
(1) The motion for summary judgment brought by defendant ON
Marine Services Company, LLC, Ferro Engineering Division, a
wholly owned subsidiary of Oglebay Norton Company, LLC, is
granted in part and denied in part as follows:
(a) With regard to the Plaintiffs' claims for
conspiracy, spoliation, willful or wanton
misconduct, breach of warranty, and market-share
liability, ON Marine's unopposed motion for summary
judgment is granted, and those claims are dismissed
with prejudice;
(b) ON Marine's motion for summary judgment is otherwise
denied.
(2) ON Marine's motions in limine are granted in part, denied
in part, and deferred in part. ON Marine's motions in
limine with respect to Compliance with Protective Order,
Financial Status of ON Marine, "Sending a Message"
Arguments, Witness's Asbestos Injury or Lawsuit,
Disparaging Remarks, "Missing" Witness, Advance Notice of
Witnesses, Extra-Pleading Matters, and Scope of Expert
Testimony, are granted. ON Marine's motion in limine with
respect to Asbestos Awards or Standards is granted in part
and deferred in part to trial. ON Marine's motion in
limine with respect to Characterizing ON Marine as
"Asbestos Company" and Health Conditions of Family Members
is granted in part and denied in part. ON Marine's motion
in limine with respect to Newspaper or Magazine Articles is
deferred to trial. ON Marine's motion in limine to Exclude
Witnesses From Courtroom is granted in part, denied in
part, and deferred in part. ON Marine's motions in limine
with respect to "Ban" on Asbestos, Testimony of Carl A.
Brodkin, M.D., Testimony of Susan Raterman, and Videos
Using Tyndall Lighting are deferred. ON Marine's motion in
limine with respect to Cumulative Asbestos Exposure is
stricken as moot.
A full-text copy of Judge Zilly's Nov. 22, 2013, order is
available at http://is.gd/i85Lurfrom Leagle.com.
ASBESTOS UPDATE: Pa. Court Affirms Ruling in "Wilson" Suit
----------------------------------------------------------
Beth Wilson appeals from two orders of the Court of Common Pleas
of Montgomery County which vacated and struck down two judgments
that were entered by the Montgomery County Prothonotary in her
favor pursuant to Section 428 of the Workers' Compensation Act, 77
P.S. Section 921 (pertaining to judgment and execution for failure
to pay benefits due).
The controversy began 30 years ago when the Claimant's father,
James Wilson, filed a Claim Petition at Bureau Claim No. 777631,
in which he alleged that as of September 15, 1983, he was totally
disabled from lung disease and asbestosis caused by his exposure
to asbestos during the course of his employment with Employer from
1950 to 1981. At all times relevant to this appeal, the Claimant
was an adult female who was severely mentally retarded due to
Down's syndrome.
A three-judge panel of the Commonwealth Court of Pennsylvania
composed of Judge Bernard L. McGinley, Judge P. Kevin Brobson, and
Judge Anne E. Covey affirmed the common pleas court to the extent
that it struck off and vacated the judgments at issue and the
matter is remanded. The parties are directed to conduct
proceedings before the Bureau.
The case is Beth Wilson, Appellant, v. Travelers Casualty and
Surety Company (Employer's Insurance Company) and Honeywell, Inc.
(successor in interest to Allied Signal, Inc., Employer), NOS. 863
C.D. 2013, 864 C.D. 2013 (Pa. Cmmw.). A full-text copy of the
Dec. 3, 2013 Opinion penned by Judge McGinley is available at
http://is.gd/xxcyrofrom Leagle.com.
ASBESTOS UPDATE: N.C. Court Affirms Ruling in "Wise" Suit
---------------------------------------------------------
Harvey Smith worked for Alcoa, Inc., from 1935 until 1978. The
parties stipulated that he was exposed to asbestos during his
employment with defendant. On February 12, 2008, Smith was
diagnosed with esophageal cancer, specifically esophageal
adenocarcinoma, from which he died on 9 March 2008 at an advanced
age. Subsequently, the executor of his estate, Paulette Smith
Wise, filed a worker's compensation claim, contending that Smith's
cancer and death were caused or contributed to by asbestos
exposure that occurred during his employment with defendant.
The Plaintiff offered three expert witnesses: Dr. Nicholas
Shaheen, head of the Center for Esophageal Disease and Swallowing
at the University of North Carolina; Dr. Ravi Reddy, Smith's
treating physician; and Dr. Arthur Frank, a board certified expert
of occupational medicine. The Defendant also offered three expert
witnesses: Dr. Ernest McConnell, a veterinary pathologist and
toxicologist, and expert in animal medical studies; Dr. Kenneth
Karb, a general oncologist; and Dr. Michael Morse, an expert in
oncology.
On September 17, 2012, the Industrial Commission entered its
Opinion and Award. The Commission concluded that the Plaintiff
had failed to prove that Smith's esophageal cancer was
characteristic of individuals engaged in his particular trade or
occupation with defendant; that Smith's employment had put him at
increased risk of developing esophageal cancer as compared to
members of the general public; and that Smith had contracted a
compensable occupational disease while working for defendant. The
Industrial Commission denied plaintiff's claim. The Plaintiff
appealed.
The Court of Appeals of North Carolina through Judge Sanford L.
Steelman, Jr., affirmed the ruling and held that, "[w]here medical
experts testified concerning subjects within their areas of
expertise, the Industrial Commission did not err in admitting
their testimony. The Commission did not err in finding that
plaintiff's decedent suffered from Barrett's esophagus. There was
evidence in the record to support the Commission's findings
concerning risk factors applicable to decedent. The Commission did
not abuse its discretion in denying plaintiff's motion to admit a
deposition from another case as additional evidence. Where
plaintiff moved to subpoena evidence that was not relevant to the
issue before the Commission, the Commission's failure to address
plaintiff's motion was harmless. Where a non-mandatory provision
of federal law recognized the existence of an "association"
between asbestos exposure and esophageal cancer, that provision
was not dispositive of the issue of whether decedent's esophageal
cancer was caused by asbestos exposure."
The Court of Appeals concluded that the Plaintiff failed to meet
her burden of proving causation. The Court of Appeals held that
there was evidence in the record to support the Commission's
findings of fact, and that these findings in turn support the
Commission's conclusion that the Plaintiff failed to prove
causation.
The case is PAULETTE SMITH WISE, Executor of the Estate of HARVEY
SMITH, Deceased Employee, Plaintiff, v. ALCOA, Inc., Employer,
SELF-INSURED, Defendant, NO. COA13-29 (N.C. App.). A full-text
copy of Judge Steelman's Decision dated Dec. 3, 2013, is available
at http://is.gd/DF4Jq5from Leagle.com.
The plaintiff-appellant is represented by:
Michael B. Pross, Esq.
WALLACE & GRAHAM, P.A.
525 N. Main St.
Salisbury, NC 28144
Tel: (704) 633-5244
Jeri L. Whitfield, Esq. -- jeri.whitfield@smithmoorelaw.com -- and
Lisa K. Shortt, Esq. -- lisa.shortt@smithmoorelaw.com -- at Smith
Moore Leatherwood LLP, for defendant-appellee.
ASBESTOS UPDATE: La. Court Denies Bid to Remand "Smith" Suit
------------------------------------------------------------
Judge Carl J. Barbier of the United States District Court for the
Eastern District of Louisiana denied the motion to remand filed by
the plaintiff in the asbestos-related personal injury action
titled SMITH v. UNION CARBIDE CORP., ET AL. Section: "J" (5),
CIVIL ACTION NO. 13-6323 (E.D. La.), after determining that it
does not appear reasonably possible that a state court would
impose liability on Taylor-Seidenbach, Inc., and that the parties
in the case are at the final stages of discovery and Mrs. Smith
has has taken little action with regard to Taylor throughout the
course of litigation. A full-text copy of Judge Barbier's order
and reasons dated Dec. 3, 2013, is available for free at
http://is.gd/mQP2zJfrom Leagle.com.
ASBESTOS UPDATE: 'Ray of Hope' for Mesothelioma Sufferers
---------------------------------------------------------
Nonee Walsh, writing for ABC News, reported that a new treatment
for the asbestos-related disease, mesothelioma, is offering a ray
of hope to victims of the deadly cancer, researchers say.
The Asbestos Diseases Research Institute in Sydney has published
the results of laboratory testing of a novel genetic treatment in
the international Journal Oncology. The treatment uses bacterial
mini cells which have no genetic information to carry messenger
cells, or micro RNA, into mesothelioma tumours. The mini cells
are protected with a coating of anti-bodies that protect them on
the way to the target. Scientists say it appears to be halting
the growth of cancer in animals.
"Over the course of the experiment, which was about a month in
duration, we found that the tumours didn't increase in size at
all," said senior researcher Doctor Glen Reid.
Dr Reid says low levels of micro RNAs in mesothelioma cells could
be contributing to the rapid growth of the cancer.
"We find that the growth of the tumours is strongly repressed," he
said.
"So this is quite an exciting discovery, that micro RNA's
themselves can inhibit the growth of a tumour in an animal."
People diagnosed with mesothelioma are given an average life
expectancy of one year, and current treatments only extend that to
15 months.
The Institute says mesothelioma has killed more than 10,000
Australians since the early 1980s and another 25,000 are expected
to die over the next four decades.
The Asbestos Diseases Research Institute will recruit volunteers
to start early stage clinical trials in about six weeks time.
Initially, they will look at the action of the treatment in the
body before looking at safety and dosage.
Doctor Reid says medication trials could follow, but the whole
testing process could take four or more years.
"There is small ray of hope with this study in tissue culture in
the lab and in an experimental model," he said.
"There is no reason to think that the same thing won't be
effective in tumour cells in a patient."
ASBESTOS UPDATE: 9/11 Fibro Crews Fear Health Coverage Running Out
------------------------------------------------------------------
Joan Gralla, writing for Long Island Newsday, reported that a few
days after the Twin Towers fell, Marcos Segura was at Ground Zero
-- one of more than 2,300 asbestos workers called in to remove the
toxic dust blown into surrounding buildings.
The Queens man put on a protective suit and breathed through a
special mask, but it wasn't enough. Despite their safety gear and
training, Segura and other asbestos workers wound up getting
exposed to a host of poisons after 9/11. Many have developed
health problems, just like less-protected firefighters, police and
ironworkers, according to medical surveys. And while Ground Zero
asbestos-removal crews are now at risk of developing mesothelioma
and other cancers, there's no guarantee they'll have their future
medical bills covered.
Assured by federal officials that the outside air was safe to
breathe, Segura, now 61, said he and co-workers removed their
masks during meal breaks or when they walked around the ruins of
the World Trade Center.
After work, he'd change into street clothes, unaware that they'd
become contaminated. Volunteers and restaurants brought in free
food, and that, too, turned into a hazard, he said.
"They gave us food, sandwiches, chicken -- everything in plastic
bags, but you had to take it out to eat it. And we even ate it
with dirty hands and all," Segura, a native of Ecuador, said
through a translator. "We were swallowing dust in a way that
scares me."
Dr. Jacqueline Moline of the Hofstra North Shore-LIJ School of
Medicine interviewed asbestos workers while helping lead Mount
Sinai Hospital's World Trade Center health program. In many cases,
she said, workers toiled without proper safety gear, "or were not
trained to use it properly."
"Personal protective equipment is good but not perfect," she said.
Segura said he soon developed asthma symptoms. Today, he has
severe breathing problems that make sleeping difficult.
"There are moments when I struggle to breathe," said Segura, who
lives in Elmhurst with his wife and has two grown daughters. "I
get congestion in my throat and nose, and I get a lot of headaches
at night."
'Forgotten ones'
Another former Ground Zero asbestos worker, Stalin Barcco Wong,
50, of Brooklyn, said asbestos was so thick in the air in the days
after 9/11 it was visible to the naked eye.
"Usually asbestos is encapsulated in something; it's not just in
the air," said Wong, also a native Ecuadorean.
Wong, who worked at Ground Zero for two months after 9/11,
experienced symptoms that progressed from a rash to internal
bleeding. These illnesses, coupled with a back injury, have kept
him from working since 2003, he said.
Wong's breathing is now impaired by chronic sinus conditions and
his digestion -- like Segura's -- is wracked by acid reflux --
ailments common among first responders.
Far worse, health experts say the asbestos crews face a heightened
risk of cancer. Mesothelioma, typically caused by asbestos
exposure, could strike long after the free, federally funded WTC
health program runs out of money in 2016.
Two years ago, the September 11 Victim Compensation Fund was
reactivated to help cover economic losses and out-of-pocket
medical expenses incurred by workers, survivors and victims'
relatives. But that fund must pay out all of its nearly $2.8
billion by 2017, officials said. After then, it's uncertain
whether Congress will renew funding for either program.
That troubles former asbestos workers, whose medical needs are
covered for now.
"We are the most forgotten ones," Segura said. "Those who worked
and cleaned there."
"We have to be taken care of, maybe even like the police and
firefighters, because we were working and exposed to the
contamination just like those who were out to bring order or help
people."
Dangerous shortcuts
The dangers of asbestos were well-documented long before
terrorists struck on Sept. 11, 2001.
But immediately afterward, a number of federal and state
safeguards for cleaning up hazardous materials were waived due to
the ongoing state of emergency. Then-Mayor Rudy Giuliani, backed
by civic and business leaders, stressed the imperatives of
restarting Wall Street and getting the city back to normal.
During that chaotic time, a union leader said he did his best to
protect asbestos workers, but some, under pressure to work
swiftly, took safety shortcuts.
"People initially were using asbestos masks, but they got clogged
so fast," said Francisco "Paco" Vega, business manager of Heat &
Frost Insulators Asbestos Workers Local 12A.
Unlike emergency responders, some asbestos crews spent years
working in the area, Vega noted. The longer exposure intensified
the health risks.
"If standard procedures had been used rather than suspended or
disregarded, many of the workers would have worn personal
protective equipment and been otherwise protected from exposure,"
said Columbia University law professor Michael Gerrard, an
environmental law expert.
Interviews with almost 2,000 out of the 2,332 known Ground Zero
asbestos workers have revealed that hundreds weren't properly
equipped, said Dr. Michael Crane, medical director of the WTC
health program at Mount Sinai.
Crane estimates that at least 20 percent either didn't have
respirators or didn't wear them in the first few days after 9/11,
when the health risks were highest. Some employers also cut costs
by hiring workers who were neither trained nor licensed, as is
required, Crane said.
For many asbestos workers, language barriers were another problem.
They were either recent immigrants or undocumented and had limited
English language skills, which would have made it difficult to
understand safety rules or directions from supervisors. Surveys
showed that about half of the asbestos workers spoke Spanish as a
first language; another quarter Polish, Crane said.
The U.S. Occupational Safety and Health Administration, the lead
agency overseeing worker safety at Ground Zero, denies that
asbestos workers were ignored.
"OSHA disputes any characterization that it neglected any group of
workers, including non-English-speaking workers, during 9/11
recovery operations or at any other time," Edmund Fitzgerald, an
OSHA spokesman, said in a statement.
The city's Department of Environmental Protection said the agency
has long required asbestos warning signs to be translated into a
number of languages, said Chris Gilbride, an agency spokesman.
Gilbride said the agency also opened a hotline and set up a Ground
Zero help desk, along with other agencies.
'Want to stay healthy'
Segura said the combination of sadness and dust that defined
Ground Zero were tough to take in the aftermath of the attacks.
He left after a few days, only to return about six months later to
clean windows and roofs.
"That dust was still there, and as we worked to clean it, it
didn't matter how much water we put on it," he recalled. "You are
always lifting the dust and getting splashed and wet with that
water."
Segura, who has not been able to work since a 2003 construction
accident, worries that his free medical care will end when he
needs it most.
"I feel that as days pass I have more trouble breathing," he said.
"All of us who worked there . . . we know that we have to die some
day, but we want to stay healthy."
ASBESTOS UPDATE: Charlie Chaplin Museum Delayed Due to Fibro Find
-----------------------------------------------------------------
Anne Sewell, writing for Digital Journal, reported that Chaplin's
World is a 55 million franc ($60 million) project, set to convert
the Swiss home of Charlie Chaplin into a museum by 2015. However,
plans have now been delayed as asbestos has been discovered in the
building.
The mansion is located in Le Manoir de Ban, in Corsier-sur-Vevey
in the canton of Vaud. Charlie Chaplin, the iconic film actor and
director, spent his last 25 years in the house.
Backers of the project, including the Chaplin family, have been
struggling for 10 years to get the approval and financial backing
to convert the mansion into a museum. The project apparently has
backing from 10 municipalities in the Vevey area. But just as
plans were zooming ahead, the discovery was made. Previously it
was thought to be only in the roof, but as Philippe Meylan,
architect and promoter for the project told the 20 Minutes
newspaper (in French): "There is asbestos in the paintings, the
floors, the joints . . . everywhere."
Apparently it will now take at least three months to remove the
asbestos.
Until the early 1990s, asbestos was used routinely as a fire
preventative in Switzerland. It was later banned due to the
associated health risks from asbestos fibers, as inhalation can
potentially cause lung disease.
Meylan said that workers removing the material will need to wear
special coveralls and masks to protect them from the fibers. He
says the costs of removing the asbestos which is approximately
between 200,000 and 300,000 francs ($220,000 to $330,000), has to
be added to the already high cost of renovating the mansion.
The president of the museum is Michael Chaplin, son of Charlie and
a Swiss resident. Among other partners promoting the museum are
companies set up by the Chaplin family to protect the name, rights
and image attached to Chaplin's work. Reportedly investors from
Luxembourg and La Compagnie des Alpes, a ski resort and leisure
park operator, are also involved in the museum project.
ASBESTOS UPDATE: John Lewis Sued for GBP150,000 by Lung Cancer Man
------------------------------------------------------------------
In-Cumbria reported that a Carlisle man is suing retail giant John
Lewis for up to GBP150,000 compensation, claiming he contracted
terminal lung disease after prolonged exposure to asbestos during
his 30-year career at a textiles factory.
According to a writ lodged at London's High Court, Edward Scott
worked at the Stead McAlpin factory, in Cummersdale near Carlisle,
which used to be run by John Lewis Plc, as a production operator
between 1971 and 2000.
The 79-year-old, of Clifton Street, was diagnosed with malignant
mesothelioma -- an incurable form of lung cancer -- this year,
following a routine chest X-ray. He has launched legal action
against the high-street chain, claiming that during his employment
-- first with Stead McAlpin & Co Ltd until 1993, and thereafter
with John Lewis Plc -- he was exposed to asbestos dust at the
factory.
In the writ, Mr Scott's lawyers claim John Lewis Plc is liable for
his entire period of employment. They argue there was asbestos in
lagging on pipework, rope and seals on some machines, and panels
in the roof and walls, which resulted in fibres and dust escaping
into the atmosphere whenever fitters were working on maintenance
and repairs.
They also claim asbestos removal works in the late 1980s or early
1990s were initially done by the factory's own fitters, without
adequate precautions, causing further exposure, and say that not
all materials containing asbestos were removed at that stage.
John Lewis Plc is fighting Mr Scott's case, firmly denying any
liability to compensate him. In a defence filed on the company's
behalf, lawyers say John Lewis no longer has any records relating
to the period of Mr Scott's employment and that it is for him to
prove his case.
ASBESTOS UPDATE: Victoria Group Continues to Fight Against Fibro
----------------------------------------------------------------
Jessica Chambers, writing for LaTrobe Valley Express, reported
that the community remembered those lost to asbestos-related
disease and vowed to prevent others from suffering the same fate
at an Asbestos Awareness Day ceremony at Morwell Centenary Rose
Garden, in Victoria, Australia, on Nov. 30.
The event organised by the Asbestos Council of Victoria and
Gippsland Asbestos Related Disease Support was an opportunity to
raise awareness of the harmful fibre and its devastating effects.
Guest speakers, including members of parliament, trade unionists
and family members of sufferers, spoke about GARDS' achievements
and the work that still needed to be done.
Gippsland Trades Labour Council's Steve Dodd shared some alarming
facts, including more than 10,000 people had died from asbestos-
related disease since the 1980s and this number was set to rise
dramatically -- "we haven't reached the peak". He lamented
asbestos-related deaths did not receive the same recognition
nationally, as those who died during war or in road accidents.
"We need to speak about the danger that has not passed," Mr Dodd
said.
"The only way we can make sure that people don't suffer is to
stick together."
GARDS chief executive Vicki Hamilton thanked all who had supported
herself and the organisation to carry out their work of supporting
sufferers and lobbying for legislative and education-based change.
She said positive research programs into cures and vaccines for
mesothelioma were being carried out and gave an update on the
progress of removing of a "dangerous" federal government asbestos
household guide, which was still available.
Ms Hamilton reiterated what other speakers had mentioned -- that a
third wave of asbestos-exposure was upon the community.
"People are still being exposed," she said, adding that automotive
imports and tiles from overseas filled with asbestos were
available in Australia.
However Ms Hamilton said the biggest danger now was exposure
through home renovations.
"I can't stress enough to take all the precautions when renovating
yourself. Get an asbestos audit on your home," Ms Hamilton said.
"Latrobe City has asbestos home removal kits available and it may
not seem like much, but it's important to protecting yourself."
The event was interspersed with performances from the Coal Valley
Male Choir, the GARDS bag pipers and Newborough Primary School's
choir. It concluded with an ecumenical service, officiated by
Celebrant Beryl Stevens, where family members and others laid
wreaths on a bed of crosses for those lost to asbestos-related
disease.
ASBESTOS UPDATE: Plan Would Eliminate Deadly Dust on South Wallace
------------------------------------------------------------------
Laura Lunquist, writing for Bozeman Daily Chronicle, reported that
Bozeman, Montana, may soon get rid of some of its last remnants of
an old asbestos storage site.
The Montana Department of Environmental Quality is putting an
asbestos cleanup proposal out for public comment after receiving
the plan from the city of Bozeman. The site for the cleanup is
the Harrington and Story properties in the 200 block of South
Wallace Avenue, west of the Bozeman Public Library.
The 5-acre, city-owned property around the library used to be the
Chicago, Milwaukee Co. East Main Depot where asbestos ore was
stored for milling prior to being transported elsewhere.
Since then, anthophyllite asbestos contaminants have been found in
the soils on the site and on surrounding private property where
asbestos ore was spread or used as fill.
If they become airborne, asbestos fibers can lodge in the lungs
where they lead to mesothelioma, a lung cancer. Mesothelioma has
killed a high percentage of residents in Libby, where asbestos ore
was mined.
The 5-acre area around the Bozeman library was designated as a
Superfund site in 2003, and the soils of the main site were
excavated and taken away.
Then the city sponsored $438,000 worth of additional cleanup of
the soils along South Wallace in 2009 but didn't dig under
buildings. Now the buildings on the Harrington and Story
properties are scheduled to be demolished, and the soils beneath
the buildings will be exposed.
"We don't know that we'll find asbestos contaminants there, but
we're going to be prepared," said environmental science specialist
Jessica Gutting. "We saw them around the foundation when we did
the cleanup in 2009."
The city prepared a plan for two alternatives, the first of which
includes excavation of the two properties and asbestos disposal
that could cost about $346,000.
The DEQ supports this alternative and can reimburse the city for a
portion of the cost under the Controlled Allocation of Liability
Act. Gutting said the project would probably require the removal
of soil 3 feet deep and subsequent chemical testing, which should
take about six weeks. The soil would be transported to the Valley
View Landfill near Helena, which is qualified to take contaminated
debris.
A second alternative would require removing and testing just some
of the soil and installing a concrete barrier over the rest.
Gutting said the second alternative was not an acceptable option
because it didn't do as good of a job protecting the public health
and wasn't worth the effort.
The deadline for comments on the plan is Dec. 30. Comments can be
submitted to Jessica Gutting at jgutting@mt.gov or P.O. Box
200901, Helena, 59620-0901. The public can get copies of the
cleanup proposal either online at
http://www.deq.mt.gov/StateSuperfund/CmcBozeman.mcpxor hard
copies are available at the Bozeman Public Library, 626 E. Main
St.
ASBESTOS UPDATE: Sydney Water Manages Fibro and Lead Contamination
------------------------------------------------------------------
Laura Suckling, writing for Southern Courier, reported that Sydney
Water has started remediation work on soil contaminated with
asbestos and lead exceeding health-based guidelines at Hillsdale's
Grace Campbell Reserve.
In July, Sydney Water did tests on its easement after the
Environment Protection Authority (EPA) found toxic chemicals,
including polychlorinated biphenyls (PCBs) and hexachlorobenzene
(HCB) at the site.
The first report found the site was safe for recreational use and
recommended further testing of a small area on the eastern side of
the site near Rhodes St.
New tests by URS Australia in September showed levels of BaP
(Benzo(a)Pyrene), lead and asbestos at some locations to be above
health-based guidelines.
The report states: "The chrysotile asbestos at the soil surface
warrants management to reduce the risk to human health".
Sydney Water had a contractor remove material containing asbestos
on November 22. They confirmed the Sydney Water site was clear of
any asbestos on the ground, but asbestos is still present below
the surface.
Sydney Water is implementing an environmental management plan
(EMP) at the Hillsdale site to manage the contamination, including
site inspections to ensure that healthy grass growth is maintained
to prevent access to the soils.
REMEDIATION
* A Remedial Action Plan must be completed before Christmas,
including installation of a physical barrier between park users
and the surface soils.
* Preparation of an Environmental Management Plan for the entire
site containing standard operating procedures for maintenance
works
* Botany Council is being asked maintain healthy grass coverage
over the site
* Sydney Water has begun implementing these actions to be
completed by December 31. See the results and recommendations at
sydneywaternews.com.au
ASBESTOS UPDATE: Group Fears Rising Fibro-Related Deaths
--------------------------------------------------------
ABC News reported that a local asbestos awareness group in
Australia says deaths from mesothelioma will overtake deaths
caused by ovarian cancer and skin cancers.
Vicki Hamilton from GARDS says rates of asbestos-related disease
in Gippsland will increase. Ms Hamilton made the comments at the
Asbestos Awareness Week wreath laying ceremony. She says two men
walked into the support group's office to speak about their
diagnosis.
"Been diagnosed with mesothelioma, which I've got say was really
tragic the other day, the gentlemen that walked in, it was all his
effort to hold back the tears as he told me what is wrong with him
and it's a devastating diagnosis to get," she said.
ASBESTOS UPDATE: Inquest Finds No Clear Cause of Worker's Death
---------------------------------------------------------------
Southern Daily Echo reported that mystery surrounds the death of a
former steel worker who was suffering from a host of illnesses
after an inquest found no clear cause of death.
Alfred Read, 67, was found dead in his supported home in Gemini
Close, in Lordshill, in Southampton, on August 3 of this year.
The pensioner was suffering abdominal pain, schizophrenia, lung
damage due to exposure to asbestos and severe breathing problems.
But a post-mortem examination could not pin down the exact cause
of death.
Pathologist Adrian Bateman said there was a possibility that he
could have suffered from cardiac arrhythmia, where his heart could
beat irregularly before stopping -- but he admitted this was only
a theory.
But coroner Keith Wiseman said: "I don't have to know what natural
cause it was. In terms of the legal position I am entirely
satisfied that it was death from natural causes.
"One would like to know a little bit more about what happened and
I am very sorry we don't but everything has been done by Dr
Bateman as can be."
ASBESTOS UPDATE: Wisconsin Mine Scales Back Sampling Plans
----------------------------------------------------------
Steven Verburg, writing for The Wisconsin State Journal, reported
that a company looking to dig a huge iron mine in far northwest
Wisconsin has scaled back its plan for sampling rock in the area
to avoid rock containing hazardous asbestos-like fibers.
According to the report, the state Department of Natural Resources
released Gogebic Taconite's revised plan for removing tons of rock
from the proposed mine site.
After the company submitted its first bulk sampling plan, the DNR
asked for more detail. Since then, the agency disclosed the
discovery of grunerite rocks in a form that can release fibers
like the ones known to cause deadly lung cancer.
Now Gogebic Taconite says it will take two previously proposed
sampling sites out of its plan. Questions about how much asbestos-
like material is present would wait to be settled when the company
files for a permit to begin mining.
"The grunerite issue has been the subject of a media debate and
the removal of these areas leaves the debate to be resolved by the
systematic and scientific study of the issue that will be required
within the permit application," the revised plan states. "Our
position remains that asbestiform material is unlikely to be
present in the reserve, but will defer to a proven and methodical
approach to address the potential of asbestiform materials in the
future mining permit application."
The plan promises visual inspections at sampling sites to detect
grunerite, and also sulphide, which can cause problems of acid
drainage from mine sites.
Company spokesman Bob Seitz didn't return a phone message. DNR
officials in charge of the mining project also were unavailable.
The mine project has been divisive, with environmentalists warning
that the asbestiform material is dangerous and that mining could
release acids that would ruin waterways and wetlands.
The Legislature this year amended state law to limit the extent to
which the DNR can review the project, saying that mining jobs were
badly needed.
The company originally wanted to remove 4,000 tons of rock from
five sites in the Penokee Hills. The company planned to use
excavation equipment or explosives. The DNR wanted more details,
though.
The new plan calls for removing samples from three sites instead
of five using excavation equipment. The company would turn to
blasting if it can't obtain enough materials.
The DNR plans to review the plan and let the company know what
permits will be necessary.
ASBESTOS UPDATE: Fibro Death Sparks Widow's Plea for Justice
------------------------------------------------------------
Hayley Draper, writing for Coventry Telegraph, reported that the
widow of a former Standard Triumph mechanic who died from an
asbestos-related disease is trying to trace some of his former
workmates from the 1960s and 70s.
It is believed John Harper contracted the deadly disease
mesothelioma while working at the factory, in Coventry, England.
He died in February 2012 at the age of 77, just months after being
diagnosed with the aggressive cancer in July 2011. The diagnosis
had come after 18 months of increasingly poor health and pain.
His doctors and an independent asbestos specialist believe John
had contracted the disease as a result of inhaling deadly asbestos
dust while handling brake pads, which were known to contain
asbestos, during the decade he spent working in Standard Triumph
Motor Company's warranty department at its Canley and Tile Hill
sites between 1965 and 1975.
John's widow Bridget Harper, 73, a retired Coventry teacher, cared
for John up until his death. She is now taking legal advice and
is appealing for witnesses and former colleagues to come forward
to help her secure posthumous justice for her husband. She said:
"I'd like to see some justice for John and for the company to take
responsibility that John contracted this terrible illness because
of work he was doing for them.
"It's not about the money. The company has some responsibility in
this as this is where the exposure occurred.
"It is about someone being answerable for what was done -- even if
that was 40 or 50 years ago."
Mrs Harper's solicitor, Slater & Gordon personal injury lawyer
Jonathan Reid, said: "It is vital for Bridget and her family to
find someone who has first-hand knowledge of Mr Harper's asbestos
exposure while he was working for Standard Triumph in the 1960s
and 1970s.
"Mesothelioma is an extremely aggressive and painful disease that
is wholly preventable.
"Sadly, millions of people were exposed to asbestos at work from
the 1930s to the 1970s as its use in some industries -- including
the car industry -- was widespread. The sad fact is that many
employers knew about the dangers of asbestos, but failed to
adequately protect their employees.
"It doesn't matter that almost 50 years has passed since Mr Harper
was exposed to the deadly fibres -- he and his family are still
entitled to justice, even if in this case it must sadly be
posthumous justice."
Anyone who can help should call the law firm on 0207 657 1682.
ASBESTOS UPDATE: Fibro Law Experts in Plea to Government
--------------------------------------------------------
The Star reported that specialist lawyers from Sheffield, England,
are urging the Government to ensure thousands of families, whose
lives are torn apart because of terminal illness caused by
asbestos exposure, are not given a 'second rate solution'.
The plea comes as the Mesothelioma Bill goes through a second
reading in the House of Commons. The Bill outlines a scheme to
provide payments to those who cannot trace their former employer's
insurer.
However, experts at Sheffield-based law firm Irwin Mitchell have
expressed concern thousands of sufferers will be denied full
justice due to the scheme's technicalities.
Adrian Budgen, head of the firm's asbestos-related disease team,
said: "In some situations it is impossible to find evidence of
insurance records where firms have ceased to exist.
"While the Government has tried to address this issue, with the
promise of a scheme to help those who cannot trace an insurer,
many asbestos victims will be left high and dry by the proposal's
technicalities."
ASBESTOS UPDATE: Fibro Law Could Net Wales NHS GBP1MM Yearly
------------------------------------------------------------
News Wales reported that a new Bill passed by the National
Assembly for Wales, in the United Kingdom, will enable the Welsh
NHS to recover the medical costs of treating diseases caused by
asbestos.
Wrexham Assembly Member Lesley Griffiths has welcomed the Bill
which will now complete the final stages of the legislative
process and become law. It is estimated the new law could raise
up to GBP1 million a year for the Welsh NHS.
The Bill will place an obligation on employers who exposed workers
to deadlyasbestos and insurance companies, requiring them to
reimburse the NHS in Wales for the cost of treating those asbestos
victims.
Hundreds of Welsh workers suffer from asbestos related diseases
and exposure to asbestos has caused thousands more deaths over the
past decades. The rare but deadly cancer Mesothelioma is commonly
caused by exposure to asbestos and it is estimated the human cost
will continue for decades with the peak in mortality not expected
until at least 2015.
Lesley Griffiths AM for Wrexham commented: "The cost of treating
asbestos related diseases places significant financial strain on
the Welsh NHS so this Bill is a major step forward and will offer
greater support to the victims and their families."
"The new law will help raise awareness and understanding of the
dangers of asbestos and improve the quality of life for those who
have suffered from the terrible diseases."
ASBESTOS UPDATE: Fletcher Spends NZD4MM on Fibro Cleanup
--------------------------------------------------------
The Australian Associated Press reported that Fletcher Building,
New Zealand's largest building company, has spent about NZD4
million (AUD3.63 million) to clean up and replace the roof of its
Christchurch plasterboard factory that contained asbestos.
The Winstone Wallboards factory, which manufactures GIB
plasterboard, was re-opened on October 21 following its closure on
August 27 after traces of asbestos were found during preparations
for the roof replacement, the Auckland-based company said in a
statement on Dec. 3.
Staff were transferred to the distribution centre or to Auckland
during the closure and remained on full pay, the company said.
Dispatch operations at Christchurch were down for about three
days, with plasterboard supplied from Fletcher's Auckland GIB
plant during that time.
ASBESTOS UPDATE: Weston Carpenter Killed by Fibro Exposure
----------------------------------------------------------
Becky Parker, writing for Weston, Worle & Somerset Mercury,
reported that an 81-year-old man in Weston, United Kingdom, died
as a result of his work with asbestos, an inquest heard.
Kenneth Wilton, who lived in Dunster Crescent with his wife, died
on November 3 at 5:30 a.m.
Mr Wilton, who was born in Suffolk, but moved to the area in the
1960s, was a retired carpenter.
At the inquest at Flax Bourton Coroners Court this week, it was
established he died after a lifetime of exposure to the dangerous
material asbestos. He died at Weston Hospicecare just months
after being diagnosed with mesothelioma -- a rare form of cancer
caused by inhaling asbestos fibres.
Mr Wilton began working as a carpenter in 1946, and continued in
this profession until he retired.
In a statement written before he died, Mr Wilton said: "I had to
use hand tools to cut and fix the asbestos panels by hand. I could
not help inhaling the asbestos fibres which were on my hands,
clothes and tools."
Throughout his career, except during a stint in the RAF, he worked
closely with the hazardous substance.
The coroner, Terence Moore, said: "Mr Wilton himself says he was
exposed to asbestos dust throughout the 1940s, 1950s, 1960s and
into the early 1970s, which is a long and quite intensive
exposure."
His death was recorded as industrial disease.
ASBESTOS UPDATE: Mum Raises Concern Over Deadly Dust
----------------------------------------------------
Buxton Advertiser reported that a mum in Chapel-en-le-Frith,
England has said she is so concerned about asbestos from a nearby
housing development that she is considering moving.
Sharon Morson, who lives on Burrfields Road opposite the Federal
Mogul site in Chapel, has two children aged five and three.
Work on a major housing development on the site is well underway,
yet Sharon and fellow residents say they have not yet been
reassured that asbestos in the buildings that are being demolished
to make way for the houses will be dealt with in the correct
manner. She said: "I want to know how they are going to remove it
safely. It's got to the point where I am really concerned.
"I've even thought about moving. I'm concerned about my children.
I don't want them to be subjected to anything like this.
"Everyone in the community knows there is asbestos in those
buildings and all we want is to be reassured that it is going to
be dealt with properly."
She added that despite repeated phone calls to the developers,
none of the residents have received anything in writing which has
put their minds at rest, and called for a public meeting so locals
could have their concerns addressed.
ASBESTOS UPDATE: Fire at Garage Containing Fibro in Longton
-----------------------------------------------------------
The Sentinel reported that firefighters dealt with potentially
deadly chemicals when attending a fire at a garage in Longton, in
Staffordshire, England, the night of Dec. 2.
Two crews from the Longton fire station were deployed to tackle
the blaze at the detached domestic garage on Field Placein
Longton.
Asbestos, cement and corrugated metal was discovered in the
garage, and firefighters visited local residents to warn them to
keep their windows closed as a precautionary measure.
The incident was reported at 9.36pm on Dec. 1, with crews in
attendance until roughly midnight, using fine spray to extinguish
the fire and leave the asbestos undisturbed.
Ownership of the garage has yet to be established, and
Staffordshire Police is investigating the incident.
A spokesman said: "The fire is believed to have been started
deliberately and an investigation is underway."
ASBESTOS UPDATE: Two New Lung Cancer Suits Filed in Ill. Court
--------------------------------------------------------------
Kelly Holleran, writing for The Madison-St. Clair Record, reported
that another two asbestos lawsuits have been added to St. Clair
County's asbestos docket.
John Garrigus filed an asbestos lawsuit Nov. 13 in St. Clair
County Circuit Court against 69 defendant corporations while
Margie Vail filed another one Nov. 15 against 51 defendant
corporations on behalf of her recently deceased husband, Bobby G.
Vail. Margie Vail does not specify where she resides, but Garrigus
says he lives in Collinsville.
Garrigus and Margie Vail are represented by Randy L. Gori and
Barry Julian of Gori, Julian and Associates in Edwardsville.
In their complaints, Garrigus and Margie Vail allege the defendant
companies caused them or their deceased relatives to develop lung
cancer after their exposure to asbestos-containing products
throughout their careers.
Garrigus worked as in the U.S. Air Force from 1972 until 1974,
according to the complaint. He was also secondarily exposed to
asbestos fibers through his father, who worked as a laborer at
Clark Oil Refinery, the suit states.
Bobby Vail worked in the U.S. Navy from 1948 until 1967 and as a
maintenance worker and mechanic from 1969 until 1989.
The defendants should have known of the harmful effects of
asbestos, but failed to exercise reasonable care and caution for
the plaintiff's safety, the suit states.
As a result of their asbestos-related diseases, Garrigus and
Margie Vail became disabled and disfigured, incurred medical costs
and suffered great physical pain and mental anguish, the complaint
says. In addition, they were prevented from pursuing their normal
course of employment and, as a result, lost large sums of money
that would have accrued to them, the plaintiff claims. In
addition, Bobby Vail died on March 31, according to the complaint.
In his 10-count complaint, Garrigus is seeking a judgment of more
than $100,000, economic damages of more than $150,000,
compensatory damages of more than $200,000, punitive and exemplary
damages of more than $50,000 and other relief the court deems
just.
In her complaint, Margie Vail is seeking economic damages of more
than $50,000, a judgment of more than $100,000, punitive and
exemplary damages, compensatory damages of more than $100,000 and
other relief the court deems just.
St. Clair County Circuit Court case numbers: 13-L-579, 13-L-582.
ASBESTOS UPDATE: MPs Speak Out Over Fibro Payout Curbs
------------------------------------------------------
Roger Bagley, writing for The People's Daily Morning Star,
reported that Labour MPs in the United Kingdom accused ministers
of meekly allowing giant insurance companies to water down a
compensation scheme for workers suffering from deadly asbestos-
related mesothelioma.
Leading trade unionists Ian Lavery MP and Jim Sheridan MP pledged
to fight for improvements to the scheme during a Commons debate.
Mr Lavery alleged that the deal cooked up between the government
and their company friends had saved the big insurers GBP1 billion.
While welcoming the government-sponsored compensation scheme as a
big step forward, Mr Lavery demanded an increase in payout levels
and inclusion of other asbestos-related diseases. He also urged a
much earlier cut-off date for claims, complaining that under the
suggested compensation scheme a mesothelioma sufferer must have
been diagnosed on or after July 25 2012 to be eligible.
"The disease has a devastating impact on all it touches, both the
victims and their loved-ones," said Mr Lavery.
"It is a fatal disease with life expectancy of between nine and 15
months following diagnosis."
Paisley MP Mr Sheridan said that one of his constituents had
described the disease as like having a tree growing inside him.
"The branches spread and eventually choke the sufferer to death."
The government's Mesothelioma Bill received an unopposed second
reading, but with Labour MPs warning that they would move line-by-
line amendments at the committee stage.
North Durham MP Kevan Jones declared that the attitude of hugely
profitable insurance companies to a compensation levy costing them
just GBP350 million was an "insult" to the victims.
"It seems that the insurance companies have been in the driving
seat in these negotiations," he complained.
Jarrow MP Stephen Hepburn protested that "the insurance companies'
fingerprints are all over the Bill." He lambasted employers for
literally "getting away with murder," and insurance companies for
"robbing dead people of GBP1bn."
Work and Pensions Minister Mike Penning said the Bill was "part of
the ongoing commitment by the government and the insurance
industry to correct the market failure that everyone accepts there
has been in respect of mesothelioma cases." He predicted that
28,500 people would die from mesothelioma between July 2012 and
March 2024, the expected end date for the scheme.
ASBESTOS UPDATE: Driving Instructor Killed by Fibro Exposure
------------------------------------------------------------
Steve Bradley, writing for Birmingham Mail, reported that a
husband in Midland, United Kingdom, who worked as a driving
instructor for 40 years died after being exposed to lethal
asbestos in a previous job in the 60s.
Harvey Brian Eggerton was exposed to the killer dust while working
as a carpenter for Erdington building firm George Stubbings, an
inquest heard.
The 64-year-old, of Sutton Road, Walsall, succumbed to
bronchopneumonia due to mesothelioma on November 23 after
suffering a rapid deterioration, coroner Robin Balmain said.
Mr Eggerton's widow Christine confirmed that her husband had cut
asbestos sheets to line outbuildings over a three or four-year
period before being made redundant in 1969. He was cared for by
St Giles Hospice, where support staff encouraged him in his
successful claim for GBP26,000 in industrial injuries compensation
plus disability living allowance.
Mrs Eggerton said: "When things used to come up on TV that there
were different [asbestos] cases, he used to make light of it and
say 'I used to cut up asbestos'.
"I suppose we were naive, really -- just didn't really think
anything of it."
She said Mr Eggerton had started to get short of breath last year
and had been diagnosed with the asbestos cancer this February.
Mr Balmain said a post mortem was unnecessary because the biopsy
results were proof enough. He told the widow: "There's plenty of
evidence that your husband's death is due to an industrial
disease."
ASBESTOS UPDATE: Texas County Inks Fibro Deal for Agri Bldg.
------------------------------------------------------------
Bob Thaxton, writing for Seguin Gazette, reported that Guadalupe
County, Texas commissioners have approved a contract with a Fort
Worth company for asbestos abatement at the county's Agriculture
Building.
Commissioners court on voted 5-0 to accept the lowest of three
bids which was submitted by Aztec Environmental Services Inc. of
Fort Worth.
County Judge Larry Jones said asbestos abatement did not have to
await completion of plans for renovation of the building.
"We can move forward with abating it," Jones said. "We're not
going to leave any asbestos in the building, and while they're
abating the asbestos, they're going to get the mold and mildew."
Lyndsay Thorn of the architectural firm of ThornGraves recommended
proceeding with the asbestos abatement and accepting the bid from
Aztec Environmental.
The court on Nov. 26 voted to contract with ThornGraves for
architectural services and other professional services for
renovation of the Agriculture Building. Thorn estimated it would
take four or five weeks to complete plans for the project. He
said that asbestos abatement could proceed while ThornGraves is
working on plans for the renovation.
County officials hope to have the renovation completed by the end
of May when the AgriLife Extension staff is expected to have to
vacate temporary quarters at the Mary B. Erskine School building.
Action on the contract for asbestos abatement came on a motion
made by Greg Seidenberger and seconded by Kyle Kutscher.
ASBESTOS UPDATE: High Dose Radiaton May Control Mesothelioma
------------------------------------------------------------
Tim Povtak, writing for Asbestos.com, High dose radiation therapy,
as a follow-up to aggressive pleurectomy/decortication surgery for
patients with pleural mesothelioma, has produced impressive
results in a recent Italian study.
Researchers in the Department of Radiation Oncology at the Centro
di Riferimento Oncologico di Aviano, in northern Italy, reported a
median survival rate of 33 months for the 20 consecutive patients
enrolled at the cancer institute.
"We think our approach is a concrete alternative option for the
cure of MPM (malignant pleural mesothelioma)," lead researcher
Emilio Minatel, M.D., told Asbestos.com. "We have very encouraging
results of local control and survival in a very select
population."
The results were published in the November edition of the
international journal Lung Cancer. The study provided some much-
needed encouragement for mesothelioma patients. There currently is
no cure for mesothelioma cancer, which is caused by exposure to
asbestos fibers.
The results also have delivered fuel to the on-going debate about
those who believe that lung-sparing P/D surgery is a better option
than the more-radical extrapleural pneumonectomy (EPP), which
involves the removal of an entire lung.
The survival rate in the study was 70 percent at two years and 49
percent at three years or more. The estimated progression-free
survival rate was 68 percent at two years and 46 percent at three
years.
The radiation dosage used in the study was 50Gy in 25 fractions.
Areas of particular concern for residual disease were boosted to
60Gy. Of the 20 patients, 19 also received a cisplatin/pemetrexed
chemotherapy regimen.
"We have shown that it is feasible to deliver full dose radiation
following lung-sparing surgery," Minatel said. "We also think that
high dose radiation might have a prognostic role in patients who
did not undergo radical surgery."
Second Study from Italy Questions Aggressive Surgery
Although the results were among the best ever observed in
mesothelioma patients, another multicenter study in Italy has
raised the question of whether any type of aggressive surgery
really offers any survival advantage for mesothelioma patients.
The second study was part of an Oral Abstract Presentation at the
World Conference on Lung Cancer in Australia last month, made by
Andrea Bille, M.D., of Istituto Nazionale dei Tumori, in Milan,
Italy.
That study involved 1,365 patients with mesothelioma. They were
treated between 1982 and 2012, and divided into three categories.
Those who underwent the P/D surgery had an average survival of
20.5 months. Patients who underwent the EPP surgery survived an
average of 18.8 months. Test subject who had only chemotherapy or
palliative care lasted just 11.7 months.
The belief is that only the healthiest patients even qualify for
surgery, making them more likely to survive longer regardless of
the treatment approach.
When the same three groups were compared by using only those with
"favorable prognostic factors," which meant younger, healthier
patients, there was little or no difference in the survival times.
The difference ranged from 1 to 3 months, whether the patients had
surgery or not.
The surgeries also came with lengthy recovery periods, which
immediately raised quality of life issues.
"The modest benefit observed after surgery over medical treatment
requires further investigation," the authors reported at the Lung
Cancer Conference. "Our data suggests that patients with good
prognostic factors had similar survival whether they received
medical therapy only, P/D or EPP."
ASBESTOS UPDATE: "Environmental Terrorists" Dumped Toxic Dust
-------------------------------------------------------------
Essex County Standard reported that flytippers dumped asbestos
near public toilets in Tendering, United Kingdom.
Tendring Council had to spent GBP600 on contractors to remove the
building materials, found near public conveniences in Ipswich
Road, Holland-on-Sea.
Staff had been in the area three days earlier clearing up rubbish.
Nick Turner, councillor responsible for the environment, hopes
someone will come forward to help catch those responsible. He
said: "These environmental terrorists are not just costing the
council.
"They will have got the work because they will have been paid
cash, hold no waste carrier's credentials or be VAT registered or
paying income tax -- so the cost to UK plc is huge.
"Residents have a social responsibility to check all these points
before employing a contractor and if they can't demonstrate
legitimacy then use someone else.
"One of our own residents will know who did this because it would
be their home, or their neighbour's home, this toxic waste came
from and I would ask them to come forward urgently."
ASBESTOS UPDATE: Scientists, Groups Condemn India's Fibro Use
-------------------------------------------------------------
In a letter sent to three government ministers, over 200
scientists and over 100 labour and health organizations from 36
countries urge Government of India to protect the health of the
people of India, not the profits of the asbestos industry.
The letter stated, "We respectfully wish to bring to your
attention our deep concerns regarding efforts currently underway
to promote the use of chrysotile asbestos in India.
On December 3 and 4, the International Chrysotile Association,
which represents the interests of the global asbestos industry,
together with the Asbestos Cement Product Manufacturers'
Association of India, will be holding a conference in New Delhi to
promote use of chrysotile asbestos in India and to put forward the
claim that scientific research shows that chrysotile asbestos can
be safely used.
This claim is utterly false. The world scientific community has
overwhelmingly concluded that chrysotile asbestos causes deadly
diseases, such as asbestosis, mesothelioma and lung and other
cancers, and that it cannot be safely used.
The International Agency for Research on Cancer and the World
Health Organization have called for an end to all use of
chrysotile asbestos in order to prevent further tragic epidemics
of asbestos-related diseases.
To name just a few leading organisations, the World Federation of
Public Health Associations, the International Commission on
Occupational Health, the International Social Security
Association, the Union for International Cancer Control
(representing 770 member organisations in 155 countries, including
the Indian Cancer Society and the Cancer Aid and Research
Foundation of India), the International Trade Union Confederation
(representing 175 million workers in 151 countries), the Collegium
Ramazzini, the Joint Policy Committee of Societies of Epidemiology
and the Indian Association of Occupational Health have all called
for an end to the use of chrysotile asbestos.
Chrysotile asbestos represents 95% of all asbestos used over the
past century and today represents the entirety of the asbestos
trade. In every country in which it has been used, chrysotile
asbestos has left behind a legacy of terrible human suffering and
billions of dollars of economic costs for health care and
compensation for victims and for removal of deteriorated asbestos
from buildings.For this reason, the World Bank recommends against
the use of chrysotile asbestos.
The International Chrysotile Association is a lobby organisation,
based in Quebec, Canada and headed by Mr. Jean Leblond, a long-
time salesman for the Quebec asbestos mines. The Association has
been condemned by medical experts in Quebec and around the world
for putting forward deadly, deceptive misinformation that will
cause suffering and loss of life for years to come.
Not a single reputable scientific agency in the world supports the
claim put forward by the International Chrysotile Association and
the Asbestos Cement Product Manufacturers' Association that
chrysotile asbestos can be safely used.
In the face of the demand by Quebec and other health experts to
end its export of asbestos, the Quebec government last year closed
down the last asbestos mines in Quebec. Quebec and the rest of
Canada virtually stopped using asbestos many years ago. However,
because of the long latency period for asbestos-related diseases,
70% of deaths from occupational disease in Quebec continue today
to be caused by asbestos.
In the face of the public health disaster caused by asbestos, 54
industrialized countries have banned any use of asbestos. Other
countries, such as the United States and Canada simply stopped
using it. Consequently, the asbestos industry, in order to ensure
its continued profits, is aggressively targeting Asian countries
for sales. Just six Asian countries -- China, India, Indonesia,
Vietnam, Thailand and Sri Lanka -- now represent 70% of world
asbestos consumption.
While the asbestos industry pretends that asbestos is widely used,
in fact, just eight countries represent 87% of global consumption:
China, India, Brazil, Indonesia, Russia, Vietnam, Thailand and Sri
Lanka.
India imports more asbestos than any other country on the planet,
with imports having risen from 253,382 tons in 2006 to 473,240
tons in 2012, an increase of 186%. These vast amounts of asbestos,
being placed in homes and schools across India, are a deadly time
bomb that will go on causing suffering and deaths for decades to
come, as well as causing a financial drain on India.
While Russia and Brazil reap the profits of exporting asbestos, it
is India that will pay the price in human suffering and in
financial costs.
While there is no systematic monitoring and reporting of asbestos
related diseases (ARD) in India, 225 cases of mesothelioma, a rare
form of cancer found in people exposed to all forms of asbestos
fibres, have been reported by the Indian cancer registry, the
Gujarat Cancer Institute and the Tata Cancer Institute.
Independent studies in Mumbai, Madhya Pradesh and Jharkhand of
former asbestos product manufacturing factory/mine workers have
identified over 500 cases of asbestosis, some of whom have also
been compensated for contracting ARD due to work related exposure.
New data being collected by independent health organisations show
diseases amongst family members of workers due to secondary and
environmental exposures. Several legal cases are pending in labour
and civil courts in Gujarat, Maharashtra and Rajasthan.
As a result of increased use of asbestos in Asia, Dr. G.V. Le, Dr.
K. Takahasi et al have warned: "A surge of ARD in Asia should be
anticipated in the coming decades. Asian countries should not only
cease asbestos use but also prepare themselves for an impending
epidemic of ARD." (Le, G.V., Takahashi, K. et al, Asbestos use and
asbestos-related diseases in Asia: Past, present and future,
Respirology, 2011, 16, 767-775.)
In order to promote its false claim that chrysotile asbestos can
be safely used, the International Chrysotile Association financed
a paper to be written by Dr. David Bernstein, who has worked for
decades for the tobacco industry and for the asbestos industry.
Dr. Bernstein will present his paper, Health Risks of Chrysotile
Revisited, supporting use of chrysotile asbestos, at the New Delhi
conference. A New York court has recently ruled that a number of
scientific papers written by Dr. Bernstein, financed by an
asbestos products company, were intended to cast doubt on the
capability of chrysotile asbestos to cause cancer, and constituted
potential crime-fraud.
When he testified in court on behalf of an asbestos company, Dr.
Bernstein admitted to the judge that not a single scientific body
anywhere agreed with his views on chrysotile asbestos.
The asbestos industry is concerned to protect its profits. Our
concern is the protection of public health. We respectfully urge
you, as Minister of Health, Minister of Labour and Minister of
Environment for India, to put the health interests of the people
of India ahead of the vested interests of the asbestos industry.
We urge you and the government of India to support the
recommendation of the World Health Organization and the worldwide,
reputable scientific community and ban the use of any asbestos in
India in order to prevent further unnecessary suffering and death.
We urge you to join the vast majority of countries in the world
who have adopted an enlightened policy, based on the overwhelming
scientific evidence, to ban all use of asbestos in order to
protect public health for generations to come."
ASBESTOS UPDATE: La. Court Keeps Jurisdiction Over Fibro Claims
---------------------------------------------------------------
HarrisMartin Publishing reported that a Louisiana federal court
has retained jurisdiction over an asbestos case set for a January
trial, ruling that the only Louisiana-based defendant remaining in
the case was fraudulently joined.
In the Dec. 3 order, the U.S. District Court for the Eastern
District of Louisiana opined that the evidence used to support the
claims against the in-state defendant was "tenuous," and, as such,
it was not reasonably possible for a state court to impose
liability on the defendant.
The case was slated for a Jan. 13 trial date in state court,
according to the order.
ASBESTOS UPDATE: Fibro Issues to Impact Wakefield Project's Costs
-----------------------------------------------------------------
Scott McCaffrey, writing for Sun Gazette, reported that the
existence of non-friable asbestos material in the walls of the
abandoned Wakefield High School, Raleigh, North Carolina, means
some unexpected costs for the county school system and, by
extension, local taxpayers.
Testing has found that the asbestos exists in 90 percent of
exterior walls, meaning the firm selected to demolish the building
will have to take more care and segregate the materials so they
can be disposed of properly under federal regulations.
Forrester Construction, which has been in charge of the $118
million Wakefield project from its inception, initially estimated
the cost of the additional work at $2.6 million to $4.7 million,
but in a report to School Board members, staff said they have
worked out an arrangement that will require payment of just
$905,680. Funds will come from the contingency built into the
Wakefield budget, although schools staff acknowledge that the
additional cost may jeopardize getting the project completed on
budget.
In the "silver-lining" category, school officials report that the
amount of asbestos found in the flooring material of the old
school turned out to be far less than anticipated, which helped
reduce the net cost of the additional work.
Asbestos was widely used in construction and insulation projects
across the U.S. from the late 19th century until the late 1970s,
when evidence of the carcinogenic effects of its fibers became
widely accepted. The biggest danger comes from inhaling asbestos
that has been stirred up and become airborne, not from residing,
working or attending school in buildings that used it in
construction.
The original Wakefield High School was built in the early 1950s;
the new school, which opened to students in September, sits on the
westernmost portion of the existing campus, along South George
Mason Drive.
When demolition of the original school is complete, sports fields,
parking and a high-tech HVAC system will be placed on its
footprint.
ASBESTOS UPDATE: Fibro Regulators & Researchers Meet in Canterbury
------------------------------------------------------------------
Voxy.com.nz reported that for the first time researchers,
regulators and agencies from across New Zealand and Australia are
meeting in Christchurch to focus on the challenge of asbestos in
the rebuild.
More than 600 people are attending a trade breakfast and trans-
Tasman forum at Addington Raceway on Dec. 5, organised by MBIE's
Canterbury Rebuild Health and Safety Programme team.
"Asbestos continues to be a major challenge in the rebuild. New
Zealand has not seen work on this scale or magnitude involving
asbestos before," says Programme Director Kathryn Heiler.
"Today is a critical opportunity to understand the challenges of
asbestos management and what we need to do in the rebuild," Ms
Heiler says.
"We really need to understand what the potential for harm is. The
regulator, workers and industry need to work together now to
prevent people becoming sick in the years to come.
"Our health and safety inspectors are still seeing too many cases
where asbestos has been poorly managed. It is absolutely crucial
that before any work begins on site that asbestos is accurately
identified," Ms Heiler says.
Speeches included:
-- the links between DIY work and asbestos exposure
-- asbestos-related disease in New Zealand and Australia
-- a contractor's view of asbestos in the rebuild
-- asbestos State regulations and approaches in Australia.
"There will also be an opportunity to discuss asbestos management
in 2014 and the upcoming review of the asbestos regulations, in a
panel discussion later in the day," Ms Heiler says.
The event is the third occupational health event organised by MBIE
for rebuild workers in the past five months.
ASBESTOS UPDATE: Dale Alcock Bids to Nail Mesothelioma
------------------------------------------------------
Elle Farcic, writing for The West Australian, reported that when
When Dale Alcock was growing up in the Wheatbelt town of
Kellerberrin, one after-school chore was stacking asbestos sheets
in his family's hardware yard.
It seemed innocent at the time, but after the building mogul lost
his father Dennis to mesothelioma almost four years ago, the
gravity of the situation dawned on him.
"Often with asbestos disease you tend to find out in the twilight
of a person's life, so in my father's situation, when he was
diagnosed to when he passed away was six months," Mr Alcock said.
"There is always a lingering concern in the back of your mind
about Dad could be the first one in the family to get it, what
about everyone else?"
Mr Alcock describes mesothelioma as the "black cloud" hanging over
the building industry.
After his father died, he put forward a proposal for the Housing
Industry Association to set up a charitable foundation to help
improve the health and wellbeing of those in the industry.
The foundation on Dec. 4 handed over its first cheque to the
National Centre for Asbestos Related Diseases to fund cutting-edge
research into mesothelioma.
Mr Alcock, his wife Jan and Alcock Brown-Neaves Group donated
$325,000 to the cause, WA Charity Direct contributed $25,000 and
an extra $50,000 came from fundraising.
ASBESTOS UPDATE: Organization Launches Fibro Mobile App
-------------------------------------------------------
The Asbestos Disease Awareness Organization on Dec. 5 released the
mobile app on the subject of asbestos. ADAO is a non-profit
organization dedicated to preventing asbestos-related diseases
through education, advocacy and community.
The ADAO app, available on iTunes under "ADAO Asbestos
Information," connects users to the latest news regarding
treatments for mesothelioma, a cancer caused only by asbestos, and
ways to prevent asbestos exposure. Touch the icons to learn about
ADAO's three initiatives -- Education, Advocacy and Community --
and "Connect With Us" to access social networks.
"Many of us can think back to the heartbreaking time when we first
heard the news that a loved one had an asbestos-caused disease,"
said ADAO President and Co-Founder Linda Reinstein. "It took me
many weeks to even begin to understand the diagnosis my husband
had received and find the very limited treatment options available
at that time. ADAO is committed to replacing fear, loneliness and
confusion with the knowledge that there are others who want to
support them."
An exclusive feature from the mobile app includes a direct dial to
three government agencies: Environmental Protection Agency,
Occupational Safety and Health Administration, and the Consumer
Product Safety Commission. These direct dials give people easy
access to report an asbestos-related problem or request
information.
"Navigating the health care system maze is complex -- but it
shouldn't be," added Reinstein. "Although, we do not make medical
referrals, the app provides easy access to information, including
a list of 25 hospitals in ten states that we've compiled over the
past ten years, where specialized treatment for mesothelioma and
asbestos-related diseases is offered."
ADAO's app addresses the most commonly asked questions from
www.adao.us and is designed for patients and their families who
want to know more about their disease, workers who want to better
understand how to protect themselves from exposure at work, and
homeowners wanting to know where asbestos might be found in their
homes.
About the Asbestos Disease Awareness Organization
The Asbestos Disease Awareness Organization (ADAO) was founded by
asbestos victims and their families in 2004. ADAO seeks to give
asbestos victims and concerned citizens a united voice to raise
public awareness about the dangers of asbestos exposure. ADAO is
an independent nonprofit organization dedicated to preventing
asbestos-related diseases through education, advocacy and
community.For more information, visit
http://www.asbestosdiseaseawareness.org
ASBESTOS UPDATE: Toxic Dust Found in 2 New York Schools
-------------------------------------------------------
Kelly McCarthy, writing for WBNG.com, reported that asbestos
contamination was found in two Binghamton, New York city schools,
but the district said it will not evacuate any students or
faculty.
Woodrow Wilson Elementary and West Middle School are the latest
Binghamton city schools to have confirmed reports of the cancer-
causing substance.
After asbestos caused Calvin Coolidge Elementary to close in
August, the school board requested all Binghamton city schools to
have another round of inspections.
"And as protocol when you receive results that test positive, we
need to immediately seal those areas," said Assistant
Superintendent Karry Mullins, "So that's why we informed the
parents because as soon as we received the results, we knew we had
to seal those spaces and wanted them to be informed."
School principals mailed letters to parents and guardians that say
asbestos was found in the school, but students and faculty have no
access to the space.
Since students and faculty have no access to these spaces and
there has been no disturbance, neither school will be shut down.
Mullins said these findings are very different from the asbestos
found at Coolidge and parents should not be concerned.
"That is not the case in either of these buildings, or in any of
our crawl spaces," Mullins said, "Of our other buildings, there is
not access unless it is through somebody who has to go and fix a
pipe and that had not been done in any of these buildings."
Binghamton School District will include money for asbestos
abatement in it's next capital project. Until then, the areas will
remain sealed off.
ASBESTOS UPDATE: Fibro Bill Could Threaten Quick Access to Money
----------------------------------------------------------------
Over the course of the last few decades, asbestos litigation has
become a pervasive aspect of the American legal system. Millions
have been exposed to asbestos and developed mesothelioma, lung
cancer or some other asbestos-related illness. Whether exposed to
asbestos in the course of military duty, in the course of
employment or in some other manner, victims of asbestos-related
illnesses often have legal recourse to secure compensation from
their employers or from manufacturers of products containing
asbestos.
Because there have been so many asbestos legal claims, a number of
asbestos trusts have been established to hold assets of
financially insolvent companies that bear responsibility for
causing asbestos-related illnesses. These trusts ensure that even
if companies that caused mesothelioma go bankrupt, there will
still be a resource pool available to compensate victims.
According to the U.S. Government Accountability Office, as of
2011, there were 60 asbestos trusts containing combined assets
worth more than $37 billion.
In November, 2013, the U.S. House of Representatives voted to
require public online disclosure of certain information about
those who file claims against asbestos trusts. While the
publically available information would not contain the names or
Social Security numbers of asbestos victims who sought
compensation for an asbestos-related injury, it would list other
personal details.
Critics of the bill say it could delay payments to claimants who
desperately need them.
Supporters of the new bill claim that it would deter the filing of
fraudulent asbestos claims. But, there is little actual evidence
of fraud involving asbestos trusts. The Center for Justice &
Democracy reported that the threat of fraudulent claims against
asbestos trusts has been widely overblown, and government data
puts the rate of erroneous payments from asbestos trusts at a mere
0.35 percent.
Meanwhile, the bill would require public disclosure of certain
private information about asbestos victims, who are
disproportionately military veterans exposed to asbestos in the
course of duty. It would require asbestos funds to report
quarterly on the claims filed and claims paid, which many experts
fear would result in a delay of payments to legitimate claimants,
many of whom are dying and in desperate need of money to cover
medical bills.
The bill passed in the House on a vote of 229-191; it now moves to
the Senate. While the bill's future is uncertain, it is expected
to be shelved in the Senate for the time being.
Call an asbestos litigation lawyer if an asbestos-linked illness
has impacted your life.
If you have been exposed to asbestos in the Navy, another branch
of the armed services, through your employment or in your home,
the bill should have no immediate effect on you. If it becomes law
however, it might impact the expediency of your ability to recover
compensation.
Asbestos-related diseases are very slow to develop, and may not
become evident until many years after exposure. Even though it can
take a long time to learn of an asbestos-related illness, as soon
as you do, you should get in touch with an asbestos litigation
attorney; the quicker you begin your legal case, the sooner you
can expect compensation. With the potential of the new asbestos
trust bill to slow some payments if it becomes law, it is
especially important to act quickly in contacting a lawyer.
If you have developed an illness that you believe may be related
to asbestos exposure, or if you have lost a loved one to an
asbestos-related illness, get in touch with an asbestos litigation
attorney today.
Article provided by Law Offices of Wallace & Graham at
http://www.usmesotheliomalaw.com/
ASBESTOS UPDATE: Christchurch Workers Warned on Deadly Dust
-----------------------------------------------------------
Georgina Stylianou, writing for Stuff.co.nz, reported that
hundreds of rebuild workers have been given a grim wake-up call in
a bid to avoid a legacy of danger and asbestos-related deaths.
The Ministry of Business, Innovation and Employment hosted a trade
breakfast and trans-Tasman forum for almost 400 contractors and
their employers, with a focus on the importance of identifying
asbestos before work begins on a site and wearing protection gear.
Health officials, representatives from recovery authorities and
major insurers also attended.
Maria Burns, an occupational health nurse from Moorhouse Medical,
said there was no doubt there had been "accidental exposures to
asbestos in this rebuild".
"It's a hidden killer and it's a potential health timebomb in
Christchurch," she said.
Studies showed plumbers, carpenters and electricians were most at
risk of exposure, she said, but demolition crews in Christchurch
were also in the firing line.
She encouraged workers to get health checkups that included
measuring lung capacity and a chest X-ray.
"The potential exposure to asbestos in the Christchurch rebuild is
unprecedented."
Mike Cosman, director of Impac Risk and Safety Management
Solutions, said any workers unsure about "what you're going into"
should stop work immediately and ask the project supervisor about
the potential risks.
Canterbury District Health Board medical officer of health
Alistair Humphrey believed the EQC should be forced to reveal
which homes asbestos had been encased in found in, and called for
a moratorium on the policy.
"Sadly, this is quickly becoming a public health issue, not just
an occupational health risk."
A young family could carry out minor renovations -- such as
drilling through some plasterboard to install lights -- and
unknowingly be exposed to asbestos.
Humphrey said a baby crawling around on carpet "covered with
contaminated dust from the ceiling" could be exposed to dangerous
fibres for months.
ASBESTOS UPDATE: Land of "Mr Fluffy" Fibro House Sold at Auction
----------------------------------------------------------------
Meredith Clisby, writing for The Canberra Times, reported that the
the Downer land, in Canberra, Australia, on which a dangerous Mr
Fluffy asbestos house stood only a few months ago has been sold at
auction.
Number 25 Bradfield Street looked like it belonged in a Stephen
King story line earlier in the year when it was encased in a giant
bubble to keep the community safe from deadly asbestos fibres.
The home was one of a thousand insulated with a loose-fill form of
amosite asbestos in the late 70s by a company trading as Mr
Fluffy.
Amosite asbestos is considered to be one of the most dangerous
forms of the substance because it is easily crumbled or reduced to
powder and the microscopic fibres require very little disturbance
to become airborne.
While a Loose Asbestos Removal Program was carried out in the late
1980s and 90s the Downer home was one of four later discovered to
have been missed in the cleanup.
The home had been vacant since November 2011 when the owners
discovered what they thought was asbestos and a test confirmed
their fears.
The ACT government purchased the house for $743,200 in December
2013 and then spent $2 million decontaminating and then removing
the building.
This involved stretching a giant plastic sheet over the house and
using a special vacuum and negative air pressure systems to avoid
the fibres escaping into the air.
When the asbestos removal work was completed the home was
deconstructed.
The property sold at auction for $620,000 under the hammer of
Luton Properties principal Richard Luton.
Sales agent for the property Christine Shaw said there had been a
lot of inquiry for the site as it was zoned RZ2 and such blocks
were rarely available in the suburb. She said she had included a
sales information pack to those interested which included further
information about the site's history including photos showing the
deconstruction of the house.
An information sheet provided by the government also detailed the
process of the asbestos cleanup and assured potential buyers the
site was safe.
"The process of removing the soil so deep and replenishing the
soil, goes above and beyond normal protocols," the document said.
"The soil was removed as a precaution. Subsequent analysis did not
identify [asbestos] fibres in the soil."
Ms Shaw said there had been three registered bidders for the site
and two had competed for the land.
A crowd of Downer neighbours also turned out to watch the land go
under the hammer.
ASBESTOS UPDATE: Stoner Closes Road Through Barraba's Fibro Mine
----------------------------------------------------------------
Catherine Clifford, writing for ABC News, reported that the Acting
Premier has announced the closure of the road that passes through
the derelict Woodsreef Asbestos Mine at Barraba, in New South
Wales.
Andrew Stoner says the public health risks to keep open the road,
known as Crow Mountain Road, are far too high with deposits of
Chrysotile, or white asbestos considered to be a carcinogen,
present at the Woodsreef mine.
The mine is managed as part of the New South Wales Derelict Mines
Program.
Andrew Stoner says processed friable asbestos material stockpiled
throughout the mine site, and the expert advice received by the
Woodsreef Mine Taskforce, indicate it is unsafe.
"In addition to this, tailings material containing asbestos has
been deposited on the surface of Mine Road and subsequently
disturbed by passing vehicles," he said in a statement.
The Acting Premier says he is aware that some Barraba residents
wish to keep the road open, but he says the state government would
breach its public duty if it took any other course of action.
A scoping study report has rejected construction of an alternate
access route around the derelict mine, saying the existing road
network is sufficient.
Andrew Stoner says the NSW government has accepted this advice.
Nationals' Member for Tamworth, Kevin Anderson, says he is
disappointed with the decision, but says he understands the
reasons behind the closure.
The recommendation for the road closure was made in 2011.
Residents of Barraba have registered their anger at the decision,
saying their suggestions about the future of the road have been
ignored.
ASBESTOS UPDATE: NY Probe at Exposure Incident in School Continues
------------------------------------------------------------------
Talk of the Sound reported that state investigators were on scene
at the Davis Elementary School in New Rochelle, New York, as part
of an ongoing investigation of an asbestos exposure incident last
July.
Three state investigators inspected Davis school. They were
escorted through and around the school by John Gallagher, a
consultant from Aramark who holds the school district title of
Director of Environmental Services.
The asbestos exposure incident came to light as a result of a Talk
of the Sound investigation. Inquires by Talk of the Sound to the
New York State Department of Labor Asbestos Control Bureau, the
New York State Department of Environmental Conservation and the
New York State Department of Education resulted in the DOL and DEC
launching their own investigations.
Jennifer Krinsky, a spokesperson for the NYS Department of Labor,
confirmed the investigation is ongoing but declined further
comment.
Sources tell Talk of the sound that Gallagher has been implicated
along with George Wood, a plumbing contractor hired by the
District and working under Gallagher, as being responsible for the
allegedly illegal removal, transportation and disposal of
hazardous materials -- asbestos fibers contained in floor tiles
that were improperly removed from the principal's office and main
office at Davis School.
Any case brought as a result of the incident might involve county,
state or federal prosecutors. There are criminal state statutes
that could result in jail time but the most likely outcome would
be large fines. The district would be in violation of AHERA, a
federal law, for failing to notify those in the building of an
asbestos exposure building.
The New Rochelle Board of Education commissioned an internal
investigation by their outside counsel, Jeffrey Kehl. Past being
prologue (recall the promised and then never-delivered Jose
Martinez "investigation") this will be a whitewash, amounting to
nothing and not likely ever mentioned publicly.
ASBESTOS UPDATE: Canterbury Can't Be Left With Fibro Legacy
-----------------------------------------------------------
Voxy.co.nz reported that Labour's Canterbury Earthquake Recovery
spokesperson Ruth Dyson has renewed a call for an asbestos
register in light of major concerns about future exposure.
It follows meetings between building industry leaders from New
Zealand and Australia in Christchurch to discuss the dangers
asbestos poses in the rebuild.
"It is estimated that asbestos in the ceilings of at least 4000
earthquake damaged homes has been encased behind plasterboard
rather than being removed.
"Current property owners know what's in their ceilings, but there
is no onus on them to notify future owners.
"Workshops are being held for contractors handling asbestos but
that doesn't help future do-it-yourselfers.
"It is a potentially lethal substance. To ignore the risk it poses
is negligence at its worst.
"A register to identify all houses which have encased asbestos
should be set up and any properties on the list should remain on
it until the asbestos has been removed.
ASBESTOS UPDATE: Mesothelioma Lawsuit to Stay in La. Court
----------------------------------------------------------
Kyle Barnett, writing for The Louisiana Record, reported that an
asbestos lawsuit is being kept in a Louisiana federal court
despite the court supporting an argument that the only remaining
Louisiana plaintiff was improperly joined to the case via evidence
that would likely not be admissible in state court.
Walter Hanson Smith Jr., an Alabama man, filed a lawsuit in the
U.S. District Court for the Eastern District of Louisiana that
alleged his mesothelioma was caused by numerous defendants whom he
formerly worked for and who supplied asbestos materials to the job
sites where he worked.
Shortly after proceedings in the lawsuit began on Nov. 2, 2012,
Smith died and his wife Miriam P. Smith became the lead plaintiff
in the suit.
Of the many defendants in the case only four were considered
Louisiana residents including, Taylor-Seidenbach Inc., Eagle Inc.,
McCarty Corp. and Maryland Casualty Insurance Company. While Eagle
Inc. and McCarty Corp. settled with the plaintiff and were removed
from the case,Maryland Casualty Insurance Company was dismissed
without opposition by the plaintiff leaving Taylor-Seidenbach Inc.
as the only remaining Louisiana defendant.
In a Dec. 3 ruling, U.S. District Judge Carl Barbier found that
Walter Smith had only worked for an employer for a period of four
weeks in 1969 that sporadically received asbestos products from
Taylor-Seidenbach Inc. beginning in that year and over the next
three decades and that "it does not appear reasonably possible
that a state court would impose liability on Taylor."
According to Barbier, that interpretation is sufficient for
removal.
"The test for improper joinder where there is no allegation of
actual fraud is whether the defendant has demonstrated that there
is no possibility of recovery by the plaintiff against an in-state
defendant. A mere theoretical possibility of recovery is not
sufficient to preclude a finding of improper joinder," Barbier
wrote.
While the court supported the defendants' ability to have the case
removed to another court, and despite the finding that Taylor-
Seidenbach Inc. was the only remaining Louisiana defendant and
appears to be unconnected to Walter Smith's contraction of
mesothelioma, the court has refused to allow the case to be
removed to another jurisdiction because "the facts that the
parties are at the final stages of discovery and that Mrs. Smith
has taken little action with regard to Taylor throughout the
course of litigation, persuades the Court that remand is
inappropriate."
Case no. 2:13-cv-06323-CJB-ALC.
ASBESTOS UPDATE: Pa. Judge Affirms $2.3MM Plaintiff's Verdict
-------------------------------------------------------------
Jon Campisi, writing for Legal Newsline, reported that a trial
court judge recently upheld a $2.3 million plaintiff's verdict in
an asbestos mass tort case out of Philadelphia, disputing defense
assertions that the defendants were entitled to a new trial
because the plaintiff's case for causation failed as a matter of
law.
Common Pleas Court Judge Mark I. Bernstein refused to throw out
the multi-million dollar verdict against Crane Co., DAP Inc., Duro
Dyne Corp., The Goodyear Tire & Rubber Co. and Goodyear Canada
Inc., which had been reached following a jury trial in late
February.
The plaintiff in the case, Charlotte Vinciguerra, filed suit in
late June 2012 on behalf of her late husband, Frank Vinciguerra,
who died on Nov. 3, 2010, as a result of malignant mesothelioma.
Numerous companies were initially listed as defendants in the
litigation, but many were dismissed before trial, the court record
shows.
A joinder complaint had been filed in early 2011 against
Industrial Petolic Corp., but Bernstein ultimately dismissed the
action, determining that Frank Vinciguerra had not been exposed to
any of Industrial Petolic's asbestos-containing products.
In her complaint, Charlotte Vinciguerra claimed that her late
husband contracted mesothelioma as a result of his exposure to
asbestos while on the job.
The record shows that the man had worked as a sheet metal helper
and sheet metal mechanic for E.I. DuPont De Nemours & Co. from
1951 to 1985.
Frank Vinciguerra learned he had malignant mesothelioma in the
summer of 2010, the record shows.
The plaintiff, who resides in New Jersey, alleged that E.I. DuPont
failed to exercise reasonable care to protect her husband and
others from the hazardous, dangerous and harmful conditions that
existed at the property.
In their post-trial motion, the defendants maintained that they
were entitled to a new trial because the trial judge allowed the
plaintiff's expert witness to testify that "each and every breath"
and "every exposure" to asbestos-containing fiber was causative of
Frank Vinciguerra's injuries, in violation of precedence set by
the Pennsylvania Supreme Court in the case of Betz v. Pneumo Abex
LLC.
In his Nov. 8 opinion, however, Bernstein, the trial judge, wrote
that none of the plaintiff's expert witnesses ever offered this
opinion during the course of the litigation. Bernstein singled
out the testimony of Dr. Steven Markowitz, an occupational and
environmental medicine expert, who testified that it was his
opinion that Frank Vinciguerra's exposure to asbestos likely
caused the man's disease.
During his testimony, the record shows, Markowitz explained the
dose-response relationship and concepts of cumulative exposure to
asbestos. The doctor's testimony was based upon his individual
analysis of the specific factors in Vinciguerra's condition, was
offered to a reasonable degree of medical certainty, and was
"fully subject to cross-examination," Bernstein noted.
The latter was particularly important to the judge, who noted in
his opinion that "the defense may not appeal on the basis of
truthful expert opinion that they solicited."
In one of Markowitz's responses during cross-examination, the
judge noted, the doctor "did not opine that every breath causes
mesothelioma.
"Rather," Bernstein wrote, "the witness clearly explained that it
is the cumulative effect which causes the disease."
Bernstein also ruled that Crane Co., one of the defendants, is not
entitled to judgment notwithstanding the verdict on the grounds
that the plaintiffs have made a complete recovery of their
damages.
Crane had argued in post-trial motions that the plaintiff cannot
recover more than the full amount awarded and surmised that
Charlotte Vinciguerra may attempt to do just that in the future.
The defendant claimed that the plaintiff had submitted various
asbestos claims in the past and will in the future likely submit
additional claims to asbestos bankruptcy trusts.
The judge, however, wrote that "the speculation that Plaintiff
will unethically and improperly seek compensation beyond that
awarded by the jury is unsupported by any evidence." Bernstein
added, "Crane is wrong when they claim that amounts received from
settling Defendants, whose liability was not presented to the jury
because insufficient evidence was presented at trial for any
liability to be found, must be included in the total compensation
calculation."
Bernstein also noted that Crane had the ability throughout the
course of the case to join other parties into the action or pursue
cross-claims against other parties initially named as defendants
in the suit who subsequently settled with the plaintiff.
In his opinion, Bernstein also said he had properly refused to
offer jurors instructions that are not the law in Pennsylvania.
Crane's attorneys argued that Bernstein erred during jury
instructions, saying that because federal courts have predicted
that the Pennsylvania Supreme Court will adopt Section Two of the
Restatement (Third) of Torts, that Bernstein should have used that
prediction as his jury instruction.
"Crane claims that a new trial must be granted because this Court
failed to charge the jury in accordance with the law as it is
predicted to be changed," Bernstein wrote. "It needs no citation
of authority for this Court to state as a black letter proposition
of law that cases are to be tried, and all rulings made, in
accordance with the law at the time trial occurred."
Bernstein also disputed a defense assertion that the Vinciguerra
case was improperly consolidated with another asbestos mass tort
case, writing that Pennsylvania appellate courts have for decades
ruled the practice proper.
"The Philadelphia Court recently administratively reviewed and
revised these procedures and imposed significant restrictions on
the number and types of cases that may be consolidated into trial
groupings," Bernstein wrote. "There was no error in following
standard practice and procedure in the Philadelphia Courts as
modified to reduce the number of plaintiffs presented in one
trial."
Bernstein asked the Pennsylvania Superior Court to affirm his
ruling on appeal.
In April, Bernstein approved of delay damages in excess of
$56,000, the docket sheet in the case shows.
Then, in late July, he molded the verdict to reflect the reduction
of bankruptcy trust settlement in the amount of $68,449.39.
Adding the delay damages, the total verdict for the plaintiff came
in at $2,286,376.44.
The plaintiff was represented by Philadelphia attorney Benjamin
Shein.
ASBESTOS UPDATE: Anger Over Dumping of "Highly Toxic" Fibro
-----------------------------------------------------------
Freya Leng, writing for Worcester News, reported that a councillor
in Wychavon District, England, has protested that the dumping of
"highly toxic" asbestos in his village is "disgusting".
Piles of asbestos have been found in three separate locations in
and around Bishampton in recent weeks, leaving people concerned.
A dozen sheets of asbestos roofing were dumped in Broad Lane along
with a similar amount near Shorthorn Wood. A further pile was left
in Throckmorton Road by the entrance to the rubbish tip.
Parish councillor Rodney Hodgkins said: "It's disgusting. We've
had stuff dumped in the village before and haven't seen a
prosecution. Obviously some people were doing a roofing job and
dumping it.
"I think it's terrible. People should be aware this is a highly
carcinogenic material which is just being dumped in the village by
some ne'er-do- wells who just don't care a whit for people or the
material they are handling.
"These are people who really have no social conscience at all who
go around dumping this sort of stuff. It makes the place look a
mess and is highly toxic."
A spokesman for Wychavon District Council said they would have to
call in specialists to remove the toxic waste but it is hoped it
will be taken away this week.
Dave Roberts, Wychavon's environmental crime officer, said: "We
need to stop this irresponsible behaviour. If you see anyone
dumping rubbish, ring us on our Environmental crime hotline on
01386 565018. Evidence is vital to helping us prosecute the
perpetrators."
ASBESTOS UPDATE: MDL Ct. Says LIA Preempts Railcar Exposure Claims
------------------------------------------------------------------
HarrisMartin Publishing reported that the court overseeing the
national asbestos products liability multidistrict litigation
docket has found that state law asbestos claims alleging exposure
to brake shoes on railcars are preempted by the Locomotive
Inspection Act.
In the Dec. 5 order, the U.S. District Court for the Eastern
District of Pennsylvania opined that since the railcar brake shoes
are a "part of appurtenance" of the locomotive, the Act applies.
"Here, Plaintiff's claims stem from brake shoes located on
railcars, which are an essential and integral part of the
locomotive braking system," the court said.
ASBESTOS UPDATE: General Contractor Denied Summary Judgment
-----------------------------------------------------------
HarrisMartin Publishing reported that the National Asbestos
Products Liability Multidistrict Litigation court has denied a
general contractor's efforts to obtain summary judgment, saying
that the plaintiff has presented enough evidence of causation to
defeat the motion.
In the Nov. 7 decision, the U.S. District Court for the Eastern
District of Pennsylvania opined that a reasonable jury could
conclude that the general contractor's conduct caused the
plaintiff's injury.
Plaintiff Corey Stewart contends that he was exposed to asbestos-
containing products while working at General Tire Plant in North
Carolina. Stewart named Daniel International Corp. as a defendant
in the action.
ASBESTOS UPDATE: Nussbaumer Joins Williams Venker Fibro Team
------------------------------------------------------------
Ann Maher, writing for The Madison-St. Clair Record, reported that
Williams Venker & Sanders in St. Louis has announced that attorney
Kenneth M. Nussbaumer, Esq. -- knussbaumer@wvslaw.com -- has
joined the firm's asbestos team of counsel.
Nussbaumer has more than 20 years of experience in personal injury
litigation including cases in product liability, toxic torts and
insurance defense.
A graduate of Southern Illinois University School of Law,
Nussbaumer has defended cases throughout southern Illinois and
Missouri. His primary area of practice is the defense of asbestos
and benzene cases.
ASBESTOS UPDATE: Koos Environmental Cited for Improper Cleanup
--------------------------------------------------------------
The World Link reported that a local environmental cleanup firm
has been hit with a penalty for allegedly improperly handling
asbestos at Myrtle Point High School, in Oregon.
The Oregon Department of Environmental Quality issued a penalty of
$4,800 to Koos Environmental last month, an asbestos abatement
contractor out of Coos Bay, for failing to properly wet friable
asbestos material during a summer recess asbestos removal project
at the high school.
They were also cited for failing to use a negative pressure
enclosure during the removal of asbestos pipe insulation. The
nature of the project required use of this system to reduce the
risk of asbestos fibers releasing to the air.
When material containing asbestos was not wetted, the DEQ says the
company risked exposing workers to dangerous asbestos fibers,
which can cause lung cancer, mesothelioma and asbestosis.
Koos Environmental appealed DEQ's citation and will soon meet with
state staff to discuss options for resolving the penalty.
ASBESTOS UPDATE: Fibro Delays Work at Old County Hospital
---------------------------------------------------------
Tim Acosta, writing for Kingsville Record, reported that the cost
to remove asbestos from the old Kleberg County Hospital, in Texas,
could be higher than expected, city officials said, due to the
prevalence of the substance in the building, but the project is
still moving ahead.
ASBESTOS UPDATE: Waterloo School Board to OK Fibro Removal Plan
---------------------------------------------------------------
Andrew Wind, writing for Waterloo Cedar Falls Courier, reported
that a $184,181 contract with Advanced Environmental to remove
asbestos from the old Irving School will be considered by the
Board of Education.
The Waterloo contractor was the lowest of three bidders on the
project at 728 Hawthorne Ave. The other bids totaled $270,200 and
$376,256.
The old Irving has been largely vacant since 2003, when a new
elementary school bearing the same name opened at 1115 W. Fifth
St., on the former location of now-demolished West Middle School.
Once the asbestos have been removed, Waterloo Community Schools
plans to demolish the old Irving building.
ASBESTOS UPDATE: Jane Hutt Welcomes Fibro Bill
----------------------------------------------
Barry & District News reported that Vale AM Jane Hutt, has
congratulated Labour AM and former South Glamorgan County
Councillor Mick Antoniw, on his pioneering Bill to help sufferers
of asbestos diseases.
The Recovery of Medical Costs for Asbestos Diseases Bill will
become law after it was passed by the National Assembly for Wales
last month.
Thousands of Welsh workers suffer from asbestos related disease
and almost 100 cases of mesothelioma, a fatal form of lung cancer.
are diagnosed each year in Wales.
Before the dangers of asbestos were fully understood, the material
was widely used. Among the work places where asbestos exposure
occurred were power stations, lagging industries, and steel works
and shipyards.
In some cases of asbestos disease, there have been negligence and
health and safety breaches. This new law will enable the Welsh
Government to recover the cost of medical services and treatment
provided by the Welsh NHS, from the negligent party or insurer.
Jane Hutt AM said: "This is a milestone Bill which will help
people whose lives have been devastated by this terrible disease.
"Mick Antoniw has worked tirelessly to ensure that this Bill
becomes law and although the Welsh Conservatives did not support
it, I am pleased that the Bill was welcomed by the Welsh Labour
Government, Plaid Cymru and the Welsh Liberal Democrats."
ASBESTOS UPDATE: Australia Warned of 80% Surge in Mesothelioma
--------------------------------------------------------------
Emma Macdonald, writing for The Canberra Times, reported that
Health authorities are warning Australia can expect an 80 per cent
increase in new mesothelioma diagnoses by 2020 and have begun
preparing a specialised nurse workforce to help deal with the
influx of new patients.
The Lung Foundation of Australia has paid for 10 specialist nurses
to be trained to lead treatment planning. And in Canberra, from
next year, in a national first, construction workers will require
mandatory asbestos training to prevent new cases emerging over
coming decades.
Australia already has the highest incidence of mesothelioma in the
world with 661 new cases documented in 2008 and 606 deaths
attributed to the disease in 2011.
The predicted epidemic is the result of the rampant use of
asbestos in insulation and building materials from the 1950s to
the 1970s. The cancer does not become active until 20 to 40 years
after initial exposure.
Canberra nurse Jenny Northey is one of the 10 new national
graduates and will lead local treatment of patients in a city with
one of the worst asbestos exposure records.
Judy Rafferty, the Lung Foundation's nurse educator for asbestos-
related disease, said the nurses were given specialised intensive
training to enable them to best care for mesothelioma sufferers
and support their families.
All nurses undertook the training voluntarily -- completing it
outside of their regular working hours throughout the year through
an online education program, clinical activities within their own
hospitals and attending a four-day workshop in Sydney.
Ms Rafferty praised their efforts, saying they would form a
national mesothelioma nurse special interest group and become
nurse leaders in their communities.
The ACT secretary of the Construction, Forestry, Mining and Energy
Union, Dean Hall, said the nurses were an important step in
providing victims with support. Male construction workers made up
the bulk of Australians exposed to the deadly fibres before
asbestos was outlawed in the 1980s.
"It's really sad we need these new nurses but it is important we
are prepared," Mr Hall said.
The ACT would be first in Australia to require all construction
workers to undergo a four-hour mandatory asbestos training licence
from the new year, he said.
For five years, construction apprentices have been receiving the
training and Mr Hall said it had become apparent that they were
the ones alert to the potential of asbestos being found on old
building sites.
"All the notifications of asbestos were coming in from the young
kids who knew what to look for, so we are going to extend that
training right across the workforce," he said.
Canberra's extensive new construction phase in the 1960s and '70s
had left a legacy that was still claiming lives -- mesothelioma
was now approaching the same death rate as bone marrow and ovarian
cancer.
"It's a tragedy that generations of construction workers have been
exposed. They are going to pay a high price for going out and
trying to earn a living. We need to do everything we can to
prevent new generations from being exposed," Mr Hall said.
*********
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