/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140221.mbx C L A S S A C T I O N R E P O R T E R Friday, February 21, 2014, Vol. 16, No. 37 Headlines ALGO CENTRE: Class Action Over Mall Roof Collapse Certified ANZ BANK: West Australian Farmers Mull Class Action APPLE INC: Judge Tosses Class Action Over Siri Advertisements BACKWOODS STEAKHOUSE: Server Seeks Payment of Minimum & OT Wages CAPITAL INTELLECT: Registry Power Cleaner Is a Scam, Suit Claims CINCINNATI BENGALS: Cheerleader Files Wage Class Action COTY INC: Kaplan Fox Files Securities Class Action in New York CREDITORS INTERCHANGE: Court Tosses Bid to Dismiss FDCPA Suit CROWN STAR: Recalls Various Tillamook Country Smoker Jerky DELTA PETROLEUM: Shareholders Fails in Bid to Revive D&O Suit DENTAQUEST USA: Removed "Firestone" Class Suit to W.D. Tennessee ELECTROLUX HOME: "Watters" Class Suit Transferred to New Jersey EUROPEAN FINE: Recalls Lajkonik Crackers Due to Undeclared Milk FACEBOOK INC: Privacy Class Action Settlement Faces Opposition FRESENIUS MEDICAL: Hundreds of Dialysis Lawsuits Remain Pending GENERAL MOTORS: Recalls 153,310 Cars Due to Ignition Switch Defect GIANT FOOD: Accused of Violating Disabilities Act in Pennsylvania GNC CORP: "Brown" Suit Transferred From California to Maryland GOODLUCK BUSINESS: Class Seeks to Recover Unpaid Overtime Wages HEARTLAND: Recalls 3 Landmark Trailers Due to Incorrect Tire Info HIRERIGHT SOLUTIONS: Court Narrows Claims in "McNamara" Class Suit JOHNSON & JOHNSON: Hunter Women Join Mesh Class Action JIM'S ANTIQUES: Ex-Salesman Seeks Unpaid Overtime Wages & Damages LEXINGTON FAYETTE: Roe Plaintiffs' Bid to Quash Attys. Lien Okayed LNT ACQUISITION: Misrepresents Bamboo Textile Products, Suit Says LOUISIANA: Workers' Suit Over Contaminants Get Class-Action Status METROPOLITAN LIFE: Faces ERISA Violations Suit in S.D. New York MONTREAL MAINE: Transport Canada Included in Class Action NEIMAN MARCUS: Seeks Dismissal of Data Breach Class Action NEW YORK: Plaintiffs Seek Remand of Stop-and-Frisk Cases NISSAN MOTOR: Recalls 1,373 Trucks Due to Circuit Breaker Defect NUTRO CO: Mars, Unit Sued Over Misleading Dog Food Product Labels PELLA CORP: Accused of Selling Defective Designer Series Windows PHILIP MORRIS: Media Outlets Seek Inclusion in Tobacco Settlement PORTFOLIO RECOVERY: Sued for Sending Illegal Collection Notices RANCHO FEEDING: Shuts Down Following Recall of Beef Products REDNER'S MARKETS: Faces "Rozear" Class Suit in Pennsylvania RJ REYNOLDS: Former Dancer May Sue Over COPD, 3rd Cir. Rules S-L DISTRIBUTION: "McPeak" Suit Plaintiff May Amend Complaint SEARS ROEBUCK: OT Class Action Settlement Gets Preliminary Okay SIX FLAGS: Faces Suit of Defective Roller Coaster Train Car SPM RESORTS: Class Seeks to Recover Overtime Pay and Damages STARWOOD HOTELS: Wins Dismissal of Price-Fixing Lawsuit TOYOTA MOTOR: Recalls 25,557 Cars & SUVs Due to Crash Risk TOYOTA MOTOR: Recalls 1,379 PRIUS Cars Due to Damaged IPM VANDERPOL'S EGGS: Recalls Ova Easy Egg Products Due to Salmonella VIRGINIA: Sterilization Victims May Get Compensation VIRGINIA: Judge Strikes Down Ban on Same-Sex Marriage WOK N FIRE: Fails to Pay Minimum Wages, Ill. Suit Says WHOLE FOODS: Faces "Gezahegne" Suit Over Employee Background Check YAMAHA: Recalls 115 Motorcycles Due to Cracked Drive Chain Clip ZICAM LLC: Falsely Represented "Pre-Cold Medicine," Suit Claims * CJD Exposure Through Contaminated Equipment Spurs Lawsuits * U.S. Supreme Court Likely to Review Same-Sex Marriage in 2015 Asbestos Litigation ASBESTOS UPDATE: Porterville Hotel Fire Raises Fibro Concerns ASBESTOS UPDATE: Widowed Claimant Can't Shield Claim Forms ASBESTOS UPDATE: Deadly Dust Fills Kate Valley ASBESTOS UPDATE: Thai Health Secretary Backs Outlawing of Fibro ASBESTOS UPDATE: Directors Given Suspended Sentences for Dumping ASBESTOS UPDATE: Guilty Plea Entered for Landlord in Fibro Case ASBESTOS UPDATE: Hinsdale School Finishes Clearing Fibro, Mold ASBESTOS UPDATE: Firefighters Battle Blaze at Rochdale Factory ASBESTOS UPDATE: Minnesota Agency Fines Demolition Firm ASBESTOS UPDATE: US Insulation Product Center of Costliest Scandal ASBESTOS UPDATE: Action Remanded After Bankrupt Defendant Removed ASBESTOS UPDATE: Former Turner Brothers Site Poses Health Risk ASBESTOS UPDATE: Fibro-Hit Heanor Memorial Hospital To Be Replaced ASBESTOS UPDATE: EPA Orders Company to Stop Removing Fibro ASBESTOS UPDATE: Family Blames School for Fibro Fears ASBESTOS UPDATE: Fibro Abatement Planned for Stuhr Museum ASBESTOS UPDATE: Deadly Dust Continues to Plague Pakistan ASBESTOS UPDATE: Binghamton Schools Spend $80K on Additional Probe ASBESTOS UPDATE: Fibro Fears Halt Work on Eyesore Cullompton Site ASBESTOS UPDATE: HK Solons Amend Air Pollution Control Ordinance ASBESTOS UPDATE: Mum Asks Why Council Took Long to Rid Fibro ASBESTOS UPDATE: Thorne Daughter Raises Awareness of Deadly Dust ASBESTOS UPDATE: Beckenham High Street Facing Fibro Test ASBESTOS UPDATE: Second Hand Fibro Exposure Verdict $27MM ASBESTOS UPDATE: Washington County, Ore. OKs Abatement Work Deal ASBESTOS UPDATE: Fibro Still Poses Serious Risk to Workers ASBESTOS UPDATE: Health Program for Fibro Victims Expanded ASBESTOS UPDATE: Demolition at Orpington Site Sparks Fibro Fears ASBESTOS UPDATE: Fibro Dumping at Lisbane Landfill Probed ASBESTOS UPDATE: Judges Should Look for Fibro Claims Fraud ASBESTOS UPDATE: Couple Sues Avocet Enterprises et al. ASBESTOS UPDATE: Civic HQ Closed After Fibro Discovery ASBESTOS UPDATE: Plaintiffs Drop Military Claims ASBESTOS UPDATE: NBN Monitors to be Retrenched ASBESTOS UPDATE: Case Sheds Light on Murky World of Litigation ASBESTOS UPDATE: Sealed Air Pays $930MM in Cash to Grace Trust ASBESTOS UPDATE: Council OKs Fibro Removal at Lee Building ASBESTOS UPDATE: Judge Awards Summary Judgment to 2 Shipbuilders ASBESTOS UPDATE: Fibro to be Removed From Iroquois Admin Center ASBESTOS UPDATE: Burnham Fire Sparks Fibro Fears ASBESTOS UPDATE: Calif. Appeals Court Flips Ruling in "Kent" Suit ASBESTOS UPDATE: Delaware Court Dismisses "Fluitt" Action ASBESTOS UPDATE: Court Directs Widow to Reveal Claim Forms ASBESTOS UPDATE: Summary Judgment Bid in Pa. Suit Partially Okayed ASBESTOS UPDATE: Court Remands Fibro-Related Disability Suit ASBESTOS UPDATE: Court Denies Violator's Plea to Vacate Sentence ASBESTOS UPDATE: Court Rules on Summary Judgment Bids in "Filer" ASBESTOS UPDATE: Huntington's Bid to Dismiss "Hilt" Suit Granted ASBESTOS UPDATE: Court Narrows Claims in "Founds" Suit ASBESTOS UPDATE: 6 Defendants Dropped From "Yates" Suit ASBESTOS UPDATE: Crane Co.'s Bid to Dismiss "Brumley" Suit Denied ********* ALGO CENTRE: Class Action Over Mall Roof Collapse Certified ----------------------------------------------------------- Kevin McSheffrey, writing for Elliot Lake Standard, reports that the lawsuit that arose following the collapse of the Algo Centre Mall on June 23, 2012, has been certified to proceed as a class action by Ontario Superior Court Justice Edward Belobaba. Roland Aube, co-counsel in the class action lawsuit in Elliot Lake, says the certification is necessary in class action lawsuits. "In a regular lawsuit, a statement of claim is issued, served and the process is started," says Mr. Aube. But a class action suit has this extra step. "The court has to review the pleading and the information that the plantiffs have, to decide whether or not it meets the criteria for a class action, which obviously involves more than one person. "Those are fairly elaborate." He says there are five criteria, which include identifying the representatives of the plaintiffs and making sure there is a common cause of action. "The judge looked at those very carefully and found there was enough to get it started." The case was launched in July 2012. Two Elliot Lake business operators who were tenants in the Algo Centre Mall at the time of the collapse, John and Elaine Quinte have brought the action on behalf of approximately 300 people and businesses that might have suffered damages as a result. The lawsuit names the Algo Centre Mall's current and former owners, several professional engineers and construction professionals as well as the governments of the City of Elliot Lake and the Province of Ontario as defendants. The hearing to decide whether the action would be certified as a class action was heard on Nov. 12, 2013 at which time the court reserved its ruling. The partial roof collapse of the Algo Centre Mall resulted in the deaths of Lucie Aylwin age, 37, and Doloris Perizzolo age 74. It also injured 23 others. ANZ BANK: West Australian Farmers Mull Class Action --------------------------------------------------- Sarah Taillier, writing for ABC News, reports that a group of West Australian farmers say they are planning a class action against the ANZ Bank, claiming it has engaged in "predatory" and "unethical" practices. In 2009, ANZ purchased Landmark's loan book, which contained rural clients. Some of those clients are involved in the class action claiming revised loan conditions, imposed by ANZ, are too harsh. The Rural Action Movement's, Greg Kenney, is one of about seven farmers behind the action. He said he hoped the case resulted in a Parliamentary inquiry into banking practices. A spokesman for ANZ said the bank had not engaged in any unethical or predatory behavior. APPLE INC: Judge Tosses Class Action Over Siri Advertisements ------------------------------------------------------------- Julia Love, writing for The Recorder, reports that a federal judge has tossed a class action filed by consumers who claim the iPhone's personal assistant feature, Siri, did not live up to Apple's promises. In an order issued on Feb. 14, U.S. District Chief Judge Claudia Wilken granted Apple's motion to dismiss the suit without leave to amend. Plaintiffs in In Re iPhone Consumer Litigation, 12-1127, claimed that Apple's advertisements led them to believe that Siri could consistently respond to questions and commands. They were sorely disappointed with the feature once they purchased their phones. But Judge Wilken sided with Apple's lawyer Gail Lees -- glees@gibsondunn.com -- of Gibson, Dunn & Crutcher that the suit lacked specifics about how Apple's advertising deceived plaintiffs. "Apple would be hard-pressed to defend against an allegation that the overall impact of these commercials and advertisements misled plaintiffs," Judge Wilken wrote in a 21-page order. The would-be class of iPhone 4s consumers was represented by Robbins Geller Rudman & Dowd; Gardy & Notis; and Barnow and Associates. Judge Wilken rejected plaintiffs' request to file a fourth amended complaint, noting that they had not heeded her warnings about the shortcomings in their case. For example, plaintiffs did not state in their amended complaint how often they expected Siri to perform, despite Judge Wilken's request. "Apple and the court are left to guess whether plaintiffs expected Siri to operate without fail, or more often than not, or at any other level below perfection," Judge Wilken wrote. BACKWOODS STEAKHOUSE: Server Seeks Payment of Minimum & OT Wages ---------------------------------------------------------------- Kristin Weldon, on behalf of herself and those similarly situated v. Backwoods Steakhouse, Inc., a Florida Profit Corporation, Gaskins Family Diner, Inc., a Florida Profit Corporation, and John W. Gaskins, Jr., Individually, Case No. 6:14-cv-00079-RBD-TBS (M.D. Fla., January 17, 2014) asserts that the Plaintiff and similarly situated "server" employees are entitled to unpaid minimum and overtime wages from the Defendants. Backwoods Steakhouse, Inc., and Gaskins Family Diner, Inc., are Florida profit corporations with principal places of business in Brevard County, Florida. John W. Gaskins, Jr., owned and operated Backwoods Steakhouse and Gaskins Family Diner. The Plaintiff is represented by: Andrew Ross Frisch, Esq. MORGAN & MORGAN, PA 600 N Pine Island Rd., Suite 400 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 333-3515 E-mail: afrisch@forthepeople.com CAPITAL INTELLECT: Registry Power Cleaner Is a Scam, Suit Claims ---------------------------------------------------------------- Jennifer Bilodeau, individually and on behalf of all others similarly situated v. Capital Intellect, Inc., d/b/a Winferno Software, a Delaware corporation, Case No. 1:14-cv-10129-MLW (D. Mass., January 17, 2014) is based upon the Defendant's alleged practice of defrauding consumers through the deceptive design and sale of one of its software products, the Registry Power Cleaner. Capital Intellect, Inc. is a Delaware corporation headquartered in Boston, Massachusetts. Capital Intellect is a developer of computer software products, which the Company primarily markets and sells under the brand name "Winferno Software." Winferno claims that it will improve the performance of personal computers. The top-grossing Winferno product is Capital Intellect's so-called PC optimization software called "Registry Power Cleaner." Rather than actually performing any meaningful assessment of a computer's condition, Capital Intellect programmed Registry Power Cleaner to mischaracterize the severity of errors and problems reported through the software's diagnostics scan, and to arbitrarily report that the computer is at "High Risk," without any real assessment, Ms. Bilodeau alleges. She contends that this programmatic design induces unsuspecting consumers into purchasing the full version of the software to "fix" these errors, and to convince users that the full version of Registry Power Cleaner functions as advertised. The Plaintiff is represented by: Erica C. Mirabella, Esq. 132 Boylston Street, 5th Floor Boston, MA 02116 Telephone: (617) 580-8270 Facsimile: (617) 583-1905 E-mail: emirabella@gnemlaw.com - and - Rafey S. Balabanian, Esq. Benjamin H. Richman, Esq. Courtney Booth, Esq. EDELSON PC 350 North LaSalle, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: rbalabanian@edelson.com brichman@edelson.com cbooth@edelson.com CINCINNATI BENGALS: Cheerleader Files Wage Class Action ------------------------------------------------------- Connor Kiesel, writing for FOX Sports Ohio, reports that a cheerleader has filed a Class Action Complaint against the Cincinnati Bengals, claiming she is underpaid for the hours of work she puts in for the team. Alexa Brenneman, a member of the Ben-Gals from approximately May 2013 through Jan. 2014, alleges she is compensated, at most, $90 per home game at which the Ben-Gals cheer. Ms. Brenneman says between mandatory practices, public appearances, pregame time at the stadium and calendar posing/promotions, she works more than 300 hours a year for the Bengals' organization. Yet, she claims her pay rate comes out to less than $2.85 an hour, well under the 2013 Ohio minimum wage rate of $7.85. Ms. Brenneman notes the Seahawks organization in her complaint, saying that their group of cheerleaders is paid "any hourly wage and any applicable overtime required by law, for all hours worked." She also cites the Cavaliers' cheerleaders as being compensated for more than just games. Her accusation is that the Bengals are in violation of the Fair Labor Standards Act and Ohio Minimum Fair Wage Standards Act. The class action claim of the lawsuit includes, "All persons who were employed by Defendant as a Cincinnati BenGal cheerleader at any time from February 10, 2011 through the present." COTY INC: Kaplan Fox Files Securities Class Action in New York -------------------------------------------------------------- Kaplan Fox & Kilsheimer LLP on Feb. 13 disclosed that it has filed a class action suit in the United States District Court for the Southern District of New York against Coty Inc. The complaint is brought on behalf of persons and/or entities who purchased or otherwise acquired the common stock of Coty pursuant and/or traceable to the Company's registration statement filed with the U.S. Securities and Exchange Commission on Form S-1/A on May 28, 2013, and prospectus filed with the SEC on Form 424(b)(4) on June 13, 2013, in the Company's initial public offering of over 57 million shares of common stock at a price of $17.50 per share. The complaint alleges that the defendants violated Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 because the Registration Statement contained untrue statements of material facts or omitted to state material facts necessary to make the statements made not misleading, and was not prepared in accordance with the applicable SEC rules and regulations governing its preparation. If you are a member of the proposed Class, you may move the court no later than 60 days from February 13 to serve as a lead plaintiff for the purported class. You need not seek to become a lead plaintiff in order to share in any possible recovery. Plaintiff seeks to recover damages on behalf of the proposed Class and is represented by Kaplan Fox & Kilsheimer LLP. The firm, with offices in New York, San Francisco, Los Angeles, Chicago and New Jersey, has decades of experience in prosecuting investor class actions and actions involving violations of the Federal securities laws. If you have any questions about this Notice, the action, your rights, or your interests, please e-mail attorneys Jeff Campisi or Larry King, or contact them by phone, regular mail, or fax: Jeffrey P. Campisi, Esq. Laurence D. King, Esq. KAPLAN FOX & KILSHEIMER LLP KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14(th) Floor 350 Sansome Street, Suite 400 New York, New York 10022 San Francisco, California 94104 Toll-Free: (800) 290-1952 Telephone: (415) 772-4700 Telephone: (212) 687-1980 Fax: (415) 772-4707 Fax: (212) 687-7714 E-mail: lking@kaplanfox.com E-mail: jcampisi@kaplanfox.com Web site: http://www.kaplanfox.com CREDITORS INTERCHANGE: Court Tosses Bid to Dismiss FDCPA Suit ------------------------------------------------------------- District Judge Ruben Castillo denied a motion to dismiss the case captioned LISA WINIECKI, individually and on behalf of a class of similarly situated persons, Plaintiff, v. CREDITORS INTERCHANGE RECEIVABLE MANAGEMENT, LLC and ECAST SETTLEMENT Corporation, Defendants, NO. 13 C 3461, (N.D. Ill.). Ms. Winiecki brought the putative class action against CIRM and eCAST pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 51692 et seq. The Court denied eCAST's motion to dismiss saying the Plaintiff has sufficiently stated a claim for an FDCPA violation. In light of this opinion, the parties are instructed to exhaust all settlement possibilities. The parties will appear for a status hearing on March 18, 2014, at 9:45 a.m. Moreover, the Plaintiffs' motion for class certification is denied without prejudice until the Plaintiff files a new motion for class certification following full class discovery, ruled Judge Castillo. The parties are authorized to fully complete all class discovery on or before May 30, 2014, if this case cannot be settled, he added. A copy of the District Court's January 27, 2014 Memorandum Opinion and Order is available at http://is.gd/FMXrUxfrom Leagle.com. CROWN STAR: Recalls Various Tillamook Country Smoker Jerky ---------------------------------------------------------- Starting date: February 17, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Other Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Crown Star Food Distributors Ltd., Wallace & Carey Ltd. Distribution: Alberta, British Columbia, Manitoba, Ontario, Saskatchewan Extent of the product distribution: Consumer Crown Star Food Distributors Ltd. and Wallace & Carey Ltd., are recalling various Tillamook Country Smoker brand beef jerky products from the marketplace because they are believed to pose a risk. Consumers should not consume the recalled products described. The recall was initiated by Tillamook Country Smoker, Bay City, OR, USA. The manufacturer used some of the beef products which were recalled by Rancho Feeding Corporation, Petalama, California, USA on Feb. 8, 2014 "because it processed diseased and unsound animals and carried out these activities without the benefit or full benefit of federal inspection". Therefore, these products are considered unsound, unwholesome or otherwise unfit for human consumption. Check to see if you have recalled product in your home. Recalled product should be thrown out or returned to the store where it was purchased. There have been no reported illnesses associated with the consumption of these products. The recall was triggered by a recall in another country. The Canadian Food Inspection Agency (CFIA) is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled products from the marketplace. Affected products: 75 count Tillamook Country Smoker Teriyaki Beef Jerky with 12053 and 22053 codes on product; and 80 count Tillamook Country Smoker Loonies Beef Jerky with 11443, 21443, 11573 and 21573 codes on product DELTA PETROLEUM: Shareholders Fails in Bid to Revive D&O Suit ------------------------------------------------------------- District Judge Christine M. Arguello denied plaintiffs' motion for leave to amend their consolidated complaint captioned PATIPAN NAKKHUMPUN, Individually and on behalf of all others similarly situated, Plaintiff, v. DANIEL J. TAYLOR, JOHN R. WALLACE, CARL E. LAKEY, and KEVIN K. NANKE, Defendants, CIVIL ACTION NO. 12-CV- 01038-CMA-CBS, NO. 12-CV-01521-CMA-CBS, (D. Col.). This is a securities fraud class action in which a class of former shareholders of Delta Petroleum Corporation alleges that some of the Company's former officers and directors violated Securities Exchange Act Section 10(b) and 20(a) and S.E.C. Rule 10b-5. On September 30, 2013, the Court granted Defendants' Motion to Dismiss the entire complaint, concluding that Plaintiffs failed to allege all elements required to state a claim under Rule 10b-5 with respect to each alleged instance of prohibited conduct. However, the Court afforded Plaintiffs the opportunity to overcome the pleading deficiencies via an amended complaint. Accordingly, the Plaintiffs filed a Motion for Leave to Amend on October 28, 2013, along with their Proposed Amended Complaint (PAC). According to Judge Arguello, in seeking leave to amend, the Plaintiffs argued that the PAC would overcome two deficiencies that doomed several of their claims in the initial Amended Complaint (AC). First, with respect to Defendants' alleged misstatements concerning the reason Delta's negotiations with Opon ended, the Plaintiffs offer a new theory of loss causation. Second, they seek to revive claims based on alleged misstatements concerning improvements in Delta's liquidity and financial condition by articulating a new reason that those statements were false or misleading. "The Court considered each of these proposed amendments in turn, ultimately concluding that none of the claims Plaintiffs seek to revive could survive a motion to dismiss," she said. The Plaintiffs' motion to vacate or reconsider the final judgment entered in this case is denied as moot, Judge Arguello added. A copy of the District Court's January 29, 2014 Order is available at http://is.gd/d7NRsQfrom Leagle.com. DENTAQUEST USA: Removed "Firestone" Class Suit to W.D. Tennessee ---------------------------------------------------------------- The class action lawsuit styled Firestone Dental Group, et al. v. DentaQuest USA Insurance Co., Case No. CH-13-1877-2, from the Shelby County Chancery Court to the U.S. District Court for the Western District of Tennessee (Memphis). The District Court Clerk assigned Case No. 2:14-cv-02041-JPM-cgc to the proceeding. The Plaintiffs are represented by: James R. Newsom, III, Esq. William J. Wyatt, Esq. HARRIS SHELTON HANOVER WALSH, PLLC One Commerce Square, Suite 2700 Memphis, TN 38103 Telephone: (901) 525-1455 Facsimile: (901) 526-4084 E-mail: jnewsom@harrisshelton.com wwyatt@harrisshelton.com - and - Max Shelton, Esq. HARRIS SHELTON DUNLAP COBB & RYDER 2700 One Commerce Sq. Memphis, TN 38103 Telephone: (901) 525-1455 E-mail: mshelton@harrisshelton.com The Defendant is represented by: John S. Hicks, Esq. BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ-NASHVILLE 211 Commerce St., Suite 800 Nashville, TN 37201 Telephone: (615) 726-5600 E-mail: jhicks@bakerdonelson.com ELECTROLUX HOME: "Watters" Class Suit Transferred to New Jersey --------------------------------------------------------------- The class action lawsuit captioned Watters v. Electrolux Home Products, Inc., Case No. 2:13-cv-01759, was transferred from the U.S. District Court for the Western District of Pennsylvania to the U.S. District Court for the District of New Jersey (Camden). The New Jersey District Court Clerk assigned Case No. 1:14-cv- 00349-NLH-AMD to the proceeding. The Plaintiff is represented by: David Stephen Bahuriak, Esq. BAHURIAK LAW GROUP 520 South 3rd Street Philadelphia, PA 19147 Telephone: (215) 413-1150 E-mail: bahuriaklawgroup@gmail.com - and - R. Bruce Carlson, Esq. CARLSON LYNCH LTD. PNC Park 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bcarlson@carlsonlynch.com - and - Edwin J. Kilpela, Jr., Esq. DEL SOLE CAVANAUGH STROYD LLC 200 First Avenue, Suite 300 Pittsburgh, PA 15222 Telephone: (412) 261-2393 Facsimile: (412) 261-2110 E-mail: ekilpela@dscslaw.com The Defendant is represented by: Jeffrey M. Garrod, Esq. ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. 101 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 622-6200 E-mail: jmg@olss.com - and - Michael S. Nelson, Esq. K&L GATES LLP K&L Gates Center 210 Sixth Avenue Pittsburgh, PA 15222 Telephone: (412) 355-6500 Facsimile: (412) 355-6501 E-mail: michael.nelson@klgates.com EUROPEAN FINE: Recalls Lajkonik Crackers Due to Undeclared Milk --------------------------------------------------------------- Starting date: February 14, 2014 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: European Fine Foods Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 8605 Affected products: 140 g. Lajkonik Crackers with 5 900320 004236 UPC FACEBOOK INC: Privacy Class Action Settlement Faces Opposition -------------------------------------------------------------- Vindu Goelfeb, writing for The New York Times, reports that despite a class-action settlement in August that was supposed to ensure that Facebook users clearly consent to their comments, images and "likes" being used in ads, it has been business as usual on the service. If you are among Facebook's 1.2 billion users, the company says, you are automatically consenting to such social ads. Opting out is impossible for some ads, and for others, the control to stop them is buried deep within the service's privacy settings. But on Feb. 13, the nonprofit advocacy group Public Citizen will try to step up the pressure on Facebook to change its practices. In a legal brief to be filed with the Ninth Circuit Court of Appeals in San Francisco, the group will contend that the settlement violates the laws of seven states, including California and New York, by failing to require Facebook to receive explicit permission from parents before using the personal information of teenage users in advertising. "The default should be that a minor's image should not be used for advertising unless the parent opts in. Putting the burden on the parent to opt the child out gets it exactly backward," said Scott Michelman, a lawyer at Public Citizen, which has filed the appeal on behalf of five parents and their children who use Facebook. In a rare reversal, one child advocacy group that initially supported the $20 million settlement, the Campaign for a Commercial-Free Childhood, has now concluded the deal offers little protection to children and plans to ask the appeals court to reject it. A Facebook spokeswoman, Jodi Seth, defended the settlement in an email on Feb. 12. "The court-approved settlement provides substantial benefits to everyone on Facebook, including teens and their parents, and goes beyond what any other company has done to provide consumers visibility into and control over their information in advertising," she wrote. "The same arguments on state law were raised and rejected by the court last year, and a dozen respected groups continue to support the settlement." The settlement has yet to be put into effect as appeals by seven different groups wind their way through court. Under the settlement, Facebook agreed to create a system for users aged 13 to 18 to indicate whether their parents were on Facebook and give the parents control over the use of their children's likes and comments in advertising. If the parents were not using Facebook, the company promised to opt their children out of social advertising until age 18. (Children under age 13 are officially not allowed to use Facebook.) Susan Linn, director of the Campaign for a Commercial-Free Childhood, said that she would prefer to see Facebook adopt a policy similar to that of Google, which automatically opts out all users under age 18 from social advertising. Cliff Craine Ms. Seth said the company was still developing the system but it was not yet complete. In January, Facebook also announced it would discontinue the specific type of ad that spurred the original lawsuit, although it said it would sell other ads that showcased likes and comments. Ms. Linn said that she would prefer to see Facebook adopt a policy similar to that of Google, which automatically opts out all users under age 18 from social advertising. Public Citizen's legal challenge is narrowly focused on Facebook users aged 13 to 18, where the arguments are strongest, but Mr. Michelman said that the whole settlement, approved by a federal judge in August, is problematic for adults, too. "It does little to nothing for anyone's privacy," he said. Public Citizen says that the settlement violates laws governing children in California, Florida, New York, Oklahoma, Tennessee, Virginia and Wisconsin. The organization's challenge is supported by two other child-focused groups, the Center for Digital Democracy and the Children's Advocacy Institute. The disputed settlement was supposed to end a class-action lawsuit filed by plaintiffs' lawyers in March 2011 on behalf of individual Facebook users. After reviewing dozens of objections to the proposed deal from various groups, Judge Richard G. Seeborg of United States District Court rejected arguments that it violated state laws protecting the privacy of children. He approved the settlement in August. Eligible Facebook users in the United States were informed that they could receive $15 in compensation if they filed the appropriate paperwork. Jonathan E. Davis, a lawyer at the Arns Law Firm, led the class- action case on behalf of users. FRESENIUS MEDICAL: Hundreds of Dialysis Lawsuits Remain Pending --------------------------------------------------------------- Cliff Rieders of Rieders, Travis, Humphrey, Harris Waters & Waffenschmidt, reports that as the two-year anniversary approaches for the NaturaLyte and GranuFlo recall issued by Fresenius Medical Care in March 2012, an influx of product liability lawsuits are likely to be filed on behalf of dialysis patients who suffered sudden death or sudden cardiac arrest in the dialysis chair during treatment. Hundreds of Fresenius dialysis lawsuits are already pending in state and federal courts across the country, all involving similar allegations that Fresenius failed to adequately warn about the risks of heart problems from GranuFlo and NaturaLyte dialysis solutions from bicarbonate overload. The number of cases is expected to increase dramatically between now and March 2014 as the potential two year state statute of limitations may require that many cases be filed before the end of March. The statute of limitations in a case is the deadline by which a claim may be filed in court. States have different time limits for different types of claims. Many states have a two year statute of limitations that require an individual to file a claim for personal injury within two years of discovering the injury or the link between the product and the injury. Although plaintiffs allege that Fresenius has known for years that a higher-than-expected number of patients were suffering sudden cardiac arrest or death during dialysis treatments, the first information about the risk became available on March 29, 2012, when the manufacturer sent a notice to its facilities using GranuFlo and NaturaLyte about the importance of patient monitoring of bicarbonate levels during treatment. The Food & Drug Administration (FDA) later classified this notice as a recall. As a result of this first warning sent to clinics throughout the U.S., Fresenius Medical Care may argue that claims involving injuries that occurred prior to March 2012 in states with a two- year statute of limitations need to be filed by the end of next month. Plaintiffs are expected to allege that this warning was insufficient to trigger the statute of limitations from tolling. In April 2013, a multi-district litigation (MDL) was established by the U.S. Panel on Multidistrict Litigation (JPML) to coordinate pretrial proceedings for all of the GranuFlo and NaturaLyte cases filed in federal court. All of these federally filed lawsuits are now consolidated in U.S. District Court for the District of Massachusetts before Judge Douglas Woodlock. A number of cases have also been filed against Fresenius involving similar allegations in Massachusetts state court. GENERAL MOTORS: Recalls 153,310 Cars Due to Ignition Switch Defect ------------------------------------------------------------------ Starting date: February 10, 2014 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Airbag Units affected: 153310 Source of recall: Transport Canada Identification number: 2014038 TC ID number: 2014038 Manufacturer recall number: 13454 On certain vehicles, a defect in the ignition switch could allow the switch to move out of the "run" position if the key ring is carrying added weight or the vehicle goes off-road or is subjected to some other jarring event. The timing of the key movement out of the run position, relative to the activation of the sensing algorithm of the crash event, may result in the airbags not deploying, increasing the risk of injury. Dealers will replace the ignition switch. Note: Until the correction is performed, non-essential items should be removed from the key ring. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- PONTIAC PURSUIT 2005, 2006 CHEVROLET COBALT 2005, 2006, 2007 PONTIAC G5 2007 * * * Christopher Jensen, writing for The New York Times, reports that General Motors is recalling about 619,000 small cars in the United States because either a heavy key ring or a "jarring event" such as running off the road could cause the ignition to shut off and possibly prevent the air bags from deploying in a crash, the automaker said in a report posted on the National Highway Traffic Safety Administration's website. The vehicles affected by the recall are the 2007 Pontiac G5 and the 2005-7 Chevrolet Cobalt. In addition to the vehicles being recalled in the United States, another 153,000 in Canada and 6,100 in Mexico are being recalled. In a separate news release, G.M. said it knew of six deaths in five crashes in which the front air bags did not deploy. "All of these crashes occurred off-road and at high speeds, where the probability of serious or fatal injuries was high regardless of air bag deployment. In addition, failure to wear seat belts and alcohol use were factors in some of these cases," the statement said. Alcohol was involved in two of the five crashes, resulting in three of the deaths, Alan Adler, a spokesman for G.M., said in a telephone interview. The statement said G.M. was also aware of 17 other crashes "involving some type of frontal impact and nonfatal injuries where the air bags did not deploy." Mr. Adler said it was possible that hitting a deep pothole could turn off the ignition, but that G.M. had received no such reports. A figure for the weight of key rings causing the problems was not available. The automaker told N.H.T.S.A. that the "ignition switch torque performance may not meet General Motors' specification" on the vehicles, which were assembled in Lordstown, Ohio. In 2005 G. M. sent dealers a technical service bulletin about the 2005-6 Cobalt warning about a stalling problem related to heavy key rings. At that time, Mr. Adler explained, "In rare cases when a combination of factors is present, a Chevrolet Cobalt driver can cut power to the engine by inadvertently bumping the ignition key to the accessory or off position while the car is running. Service advisers are telling customers they can virtually eliminate this possibility by taking several steps, including removing nonessential material from their key rings." Mr. Adler wrote in an email that "the 2005 service bulletin was based on the facts as understood at the time. Safety of our consumers is paramount to G.M.; given our present understanding of the 2005-7 Cobalt ignition switch torque capabilities, we have announced a recall." GIANT FOOD: Accused of Violating Disabilities Act in Pennsylvania ----------------------------------------------------------------- Debra L. Rozear, individually and on behalf of all others similarly situated v. Giant Food Stores, LLC, Case No. 5:14-cv- 00294-JLS (E.D. Pa., January 17, 2014) alleges violations of The Americans with Disabilities Act of 1990. The Plaintiff is represented by: R. Bruce Carlson, Esq. CARLSON LYNCH LTD 115 Federal Plaza, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com GNC CORP: "Brown" Suit Transferred From California to Maryland -------------------------------------------------------------- The class action lawsuit titled Brown v. GNC Corporation, Case No. 4:13-cv-05890, was transferred from the U.S. District Court for the Northern District of California to the U.S. District Court for the District of Maryland (Baltimore). The Maryland District Court Clerk assigned Case No. 1:14-cv-00033-JFM to the proceeding. The lawsuit asserts personal injury claims related to Hydroxycut. GOODLUCK BUSINESS: Class Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Karol Auyon, on behalf of herself and all others similarly situated v. Goodluck Business San Antonio, LLC, Case No. 5:14-cv- 00062-FB (W.D. Tex., January 17, 2014) seeks damages against the Defendant for violations of the Fair Labor Standards Act. The lawsuit is brought on behalf of similarly situated employees to recover unpaid overtime, statutory liquidated damages, and reasonably attorneys' fees. The Plaintiff is represented by: Lawrence G. Morales, Esq. THE MORALES LAW FIRM 115 E. Travis, Suite 1530 San Antonio, TX 78205 Telephone: (210) 225-0811 Facsimile: (210) 225-0821 E-mail: moralesl@sbcglobal.net HEARTLAND: Recalls 3 Landmark Trailers Due to Incorrect Tire Info ----------------------------------------------------------------- Starting date: February 7, 2014 Type of communication: Recall Subcategory: Travel Trailer Notification type: Safety Mfr System: Label Units affected: 3 Source of recall: Transport Canada Identification number: 2014035 TC ID number: 2014035 On certain travel trailers, the certification label contains incorrect tire and wheel size information. Incorrect tire and/or rim information may lead to use of unsuitable tires and/or wheels and could affect vehicle stability, increasing the risk of a crash causing personal injury and/or property damage. Dealers will install updated labels. Affected products: 2014 Heartland Landmark HIRERIGHT SOLUTIONS: Court Narrows Claims in "McNamara" Class Suit ------------------------------------------------------------------ District Judge James F. Holderman granted, in part, and denied, in part, a motion to dismiss a two-count class action complaint captioned MICHAEL B. McNAMARA, Plaintiff, v. HIRERIGHT SOLUTIONS, INC., Defendant, NO. 13 C 5215, (N.D. Ill.). On July 22, 2013, Michael B. McNamara filed a two-count class action complaint against defendant HireRight Solutions, Inc. alleging violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. Section 1681 et seq. (2013). On September 18, 2013, HireRight filed a motion to dismiss both counts of McNamara's complaint. On November 7, 2013, the court granted McNamara's motion for leave to file an amended complaint; McNamara filed his pending two-count amended class action complaint; and HireRight filed its motion to dismiss both counts. The court ruled as follows: HireRight's "Motion to Dismiss Amended Class Action Complaint" is granted as to Count I of plaintiff McNamara's Amended Complaint, because Count I fails to allege a violation of 15 U.S.C. 1681e(b), and denied as to Count II, which does sufficiently allege a violation of 15 U.S.C. Section 1681i(a). Count I is dismissed. Count II remains pending. Defendant HireRight's answer to Count II was due on or before Feb. 11, 2014. Counsel for the parties were requested to meet and confer pursuant to Rule 26(f). Counsel were also requested to file jointly a Form 52 on or before Feb. 18, 2014. This case is set for a report on a status and entry of a scheduling order on Feb. 25, 2014, at 9:00 a.m. The parties were encouraged to discuss settlement. The question of class certification remains under advisement. A copy of the District Court's January 29, 2014 Memorandum Opinion and Order is available at http://is.gd/tBSe1Hfrom Leagle.com. JOHNSON & JOHNSON: Hunter Women Join Mesh Class Action ------------------------------------------------------ Kathleen Hyland, writing for ABC News, reports that a Newcastle woman who has joined a class action against medical giant Johnson & Johnson says there are many other victims suffering in silence. Prominent consumer advocate Erin Brokovich is in Australia to discuss the lawsuit, involving nearly 400 women, including 16 from the Hunter. The case centers on a surgical mesh used to treat pelvic organ prolapse -- it was removed from the market by Johnson & Johnson in 2012. A law firm says nearly 20 women from the Newcastle region have joined the class action against Johnson & Johnson, which has the potential to become the biggest product lawsuit in Australia's history. The lawyer overseeing the case, Rebecca Jancauskas, says there are several alleged side effects. "The complications that are reported vary from incontinence, organ issues, erosion, chronic pain, infection and the need to have the mesh removed," she said. "These implants, even after removal, often cause long term complications." Ms. Jancausakas says similar legal action is underway in the United States but in Australia its size may be unprecedented. "We understand that in the private health system alone in excess of 39,000 implants have been used in Australia," she said. "So on the basis of those numbers this action has the potential to be the biggest in this country's history -- in terms of product class action." JIM'S ANTIQUES: Ex-Salesman Seeks Unpaid Overtime Wages & Damages ----------------------------------------------------------------- Richard Peacock v. Jim's Antiques Ltd of N.J., Inc., a Florida corporation, and James Alterman, individually, Case No. 9:14-cv- 80067-JIC (S.D. Fla., January 17, 2014) is brought for violations under the Fair Labor Standards Act. The Plaintiff seeks unpaid overtime wages, liquidated damages or pre-judgment interest, post- judgment interest, reasonable attorney's fee and costs from the Defendants. Jim's Antiques is a Florida corporation. James Alterman is a resident of Florida, who owned or operated Jim's Antiques, where the Plaintiff was employed as an Inside Salesman. The Plaintiff is represented by: Brian J. Militzok, Esq. MILITZOK & LEVY, P.A. The Yankee Clipper Law Center 3230 Stirling Road, Suite 1 Hollywood, FL 33021 Telephone: (954) 727-8570 Facsimile: (954) 241-6857 E-mail: bjm@mllawfl.com LEXINGTON FAYETTE: Roe Plaintiffs' Bid to Quash Attys. Lien Okayed ------------------------------------------------------------------ KEITH RENE GUY, SR., ET AL., Plaintiffs, v. LEXINGTON FAYETTE URBAN COUNTY GOV'T, ET AL., Defendants, CIVIL ACTION NO. 1998-431, (E.D. Ky.) is before the District Court on the "Roe plaintiffs'" motion to quash attorneys' lien and the "Doe plaintiffs'" motion to hold settlement funds. The District Court held a telephonic hearing on these motions on January 23, 2014. Charles Arnold, Esq., Gayle Slaughter, Esq., and William Huffman, Esq., represented the Roe plaintiffs. Sharon Morris, Esq., and Jim Morris, Esq., represented the Doe plaintiffs. Keith Moorman, Esq. represented defendant LFUCG. In a January 29, 2014 Memorandum Opinion and Order available at http://is.gd/jZfMXKfrom Leagle.com, District Judge William O. Bertelsman granted the Roe plaintiffs' motion to quash attorneys' lien, and denied the Doe plaintiffs' motion to hold settlement funds. The case was filed on October 15, 1998, as a putative class action. In January 2000, the four named plaintiffs reached a settlement with defendants. Shortly thereafter, the Court approved the settlement, but it did not give notice thereof to the members of the putative class. On March 3, 2000, Slaughter entered her appearance on behalf of the remaining plaintiffs, then the single group comprising the putative class. At that time, Slaughter entered into contingency fee agreements with her clients. Later in 2000, Slaughter and Huffman solicited the involvement of Lexington attorneys Sharon and James Morris. Tensions had developed between Slaughter/Huffman and the Morrises regarding their respective roles in the litigation. On November 17, 2006, the Court held a status conference to address this dispute, as well as other issues. As a result of discussions at the conference, the Court directed that each set of attorneys -- the Morrises on one side and Slaughter/Huffman on the other -- consult with the individual plaintiffs and ask them to choose which attorneys they wished to represent them, and that each side would execute retainer agreements with their clients. In its Order following the hearing, the Court directed that one set of plaintiffs would be denominated the "Does," represented by the Morrises, and that Slaughter and Huffman's clients would be called the "Roes." Subsequently, counsel filed two separate amended complaints on behalf of the plaintiffs they represented, and the case moved forward. In May and August 2009, the Court ruled that the majority of the plaintiffs' claims were time-barred and that class certification was not appropriate. In September 2009, the Court agreed to certify these rulings to the Sixth Circuit, and on February 8, 2010, the Sixth Circuit granted the petition to hear the appeal. This case remained stayed until May 2, 2012, when the Sixth Circuit issued an opinion affirming this Court's rulings as to the statute of limitations and class certification. On March 27, 2013, the Morrises filed a Notice of Attorneys' Lien against any prospective judgment recovered in favor of the Roe plaintiffs. Following completion of summary judgment briefing, this Court granted the LFUCG's motions for summary judgment as to all claims except the Section 1983 claims of two plaintiffs who alleged that their abuse occurred while Ron Berry was employed by the LFUCG in connection with a summer lunch program. Following these rulings, significant mediation efforts by the assigned United States Magistrate Judge resulted in settlements with both Roe and Doe plaintiffs. Finally, on November 21, 2013, the Roe plaintiffs filed the motion to quash the Morrises' attorneys' lien, arguing that the Morrises are not entitled to any compensation from the Roes' settlements or separately from Slaughter and Hoffman. LNT ACQUISITION: Misrepresents Bamboo Textile Products, Suit Says ----------------------------------------------------------------- Dawn Wolf and Jacob J. Hutman, Individually and On Behalf of All Others Similarly Situated v. LNT Acquisition, LLC d/b/a Linens 'n Things, Case No. 2:14-cv-00407-FSH-JBC (D.N.J., January 19, 2014) seeks to remedy the alleged unfair, deceptive, and unlawful business practices of LNT with respect to the advertising, marketing and sales of textile products not directly woven from bamboo fibers yet described by the Defendant as "Bamboo." The Company markets, sells, and distributes textile fiber products online, including bedding, towels and sheets, using a marketing and advertising campaign that is centered around the claim that the Products are made of Bamboo, the Plaintiffs allege. LNT is a Delaware company with principal offices located in Northbrook, Illinois. The Company deals in goods of the kind sold to the Plaintiffs and the members of the Class. The Plaintiffs are represented by: Aryeh L. Pomerantz, Esq. POMERANTZ & POMERANTZ, PLLC 3 Whisper Lane Suffern, NY 10901 Telephone: (845) 547-2600 Facsimile: (845) 547-2601 E-mail: aryeh@pom-law.com - and - James C. Shah, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 35 E. State Street Media, PA 19063 Telephone: (610) 891-9880 Facsimile: (610) 891-9883 E-mail: jshah@sfmslaw.com - and - Mark Schlachet, Esq. 3515 Severn Road Cleveland, OH 44118 Telephone: (216) 896-0714 Facsimile: (216) 514-6406 E-mail: mschlachet@gmail.com LOUISIANA: Workers' Suit Over Contaminants Get Class-Action Status ------------------------------------------------------------------ Joe Gyan Jr., writing for The Advocate, reports that a judge granted class-action status to a lawsuit that claims contaminants sickened current and former state workers when the Louisiana Department of Revenue was housed for 20-plus years at the old Sears building on Florida Boulevard. Lewis Unglesby, an attorney for the five named plaintiffs, said on Feb. 13 he hopes state District Judge Janice Clark's ruling will encourage the state and Olshan-WS Associates -- which owned the old Sears facility and leased it to the revenue department from 1979 until 2001 -- to enter into serious settlement talks with the plaintiffs. Nearly 300 current and former state employees have filled out forms complaining of health problems allegedly associated with the old Sears building, Mr. Unglesby said last year while Judge Clark was conducting a class-action certification hearing. "I think it (the class) will be higher than that (300). Those are the ones who came forward initially," he said on Feb. 13. "You would anticipate it would expand." Several present and former employees testified at the hearing that their exposure to contaminants resulted in respiratory problems, asthma and allergy-like symptoms such as runny noses, itchy and watery eyes, sneezing, coughing and headaches. Attorneys for the state and Olshan-WS Associates objected to any class-action certification, arguing at the hearing there is not a commonality of causation for the alleged injuries. Those attorneys contend smoking, workplace and household dust, and other things could have caused the injuries alleged by the plaintiffs. Judge Clark issued her ruling on Feb. 12, saying class-action certification was "well founded." Attorneys for the state and Olshan-WS Associates could not be reached for comment on the judge's decision and whether they will appeal it. METROPOLITAN LIFE: Faces ERISA Violations Suit in S.D. New York --------------------------------------------------------------- Diane Iannone, Individually and on behalf of all others similarly situated v. Metropolitan Life Insurance Company, Case No. 1:14-cv- 00341-AKH (S.D.N.Y., January 17, 2014) is brought pursuant to the Employee Retirement Income Security Act of 1974. The Plaintiff is represented by: David M. Hoffman, Esq. LAW OFFICE OF DAVID M. HOFFMAN 15 A New England Ave., P.O. Box 554 Summit, NJ 07901 Telephone: (908) 608-0333 Facsimile: (908) 608-9050 E-mail: dhoffman@david-hoffman-esq.com MONTREAL MAINE: Transport Canada Included in Class Action --------------------------------------------------------- Allan Woods, writing for Toronto Star, reports that an expanded class-action lawsuit seeking financial compensation for the deadly train crash in Quebec last summer says the federal government was "grossly negligent" for knowing about, but doing nothing to improve, the poor safety record of the rail carrier. The July 2013 derailment in Lac-Megantic, Que., killed 47 people and destroyed a large swath of buildings, businesses and homes in the downtown area. It is believed that there were insufficient handbrakes applied to the rail cars when it was left unattended on the main track for a few hours between shift changes on the evening of July 5, that the train and eventually rolled down a slope and skipped the tracks in the heart of the town. Police and Transportation Safety Board investigations are continuing, but the lawsuit claims Transport Canada shares blame for the accident because the federal rail authority was well aware of Montreal, Maine & Atlantic's long history of safety violations, including some that occurred at the same location. "Transport Canada was intimately familiar with the dubious history of MMA Canada, including its very poor safety record which included multiple violations in respect of failing to apply brakes on stationary trains and cars," reads the amended statement of claim. The rail carrier disputes the notion it had a poor safety record, and the transport minister says the department has made changes to improve rail safety enforcement. The lawsuit, however, describes the company as being in "repeated violation" of Canadian railway regulations concerning the conditions in which trains should be left unattended. The lawsuit also cites federal records showing that MM&A has 129 accidents going back to 2003 and the "poorest safety record of any railroad in North America." "Transport Canada was clearly deficient and grossly negligent in its oversight role as it has failed to establish any effective or sustainable oversight approach in the face of MMA Canada's open non-compliance with its regulations," the lawsuit claims. "As a result, TC failed to provide a minimum level of assurance that MMA Canada was operating safely." The company has not filed a statement of defense, but MM&A chairman Ed Burkhardt said in an interview on Feb. 13 that many of the claims in the lawsuit are "sheer fantasy" -- chief among them the allegations about the rail carrier's safety record. "It's blatantly untrue . . . It's not the most unsafe railroad in North America. That's the figment of some lawyer's imagination. The railroad had minor derailments, it had minor incidents like every railway on the face of the Earth." The lawsuit cites Transport Canada records that show incidents where brakes were improperly applied to parked trains on at least eight occasions between October 2004 and February 2012, and at least one instance of a runaway train, the lawsuit claims. "Despite being aware of these repeated violations in the time leading up to the train derailment, (Transport Canada) wholly failed to impose any sanctions whatsoever in relation to these incidents," the lawsuit alleges. On Feb. 13, Transport Canada said it takes rail safety seriously but could not comment directly on the allegations in the lawsuit because of the ongoing investigation. It is not believed that the department has filed a statement of defense in the case. In the House of Commons, Transport Minister Lisa Raitt addressed the company's safety record, saying that MM&A's non-compliance prompted the government last year to introduce monetary penalties for those companies that don't follow the rules. "This is exactly why . . . we brought in the ability to administer fines. Before then, it simply did not exist," she said. Mr. Burkhardt, however, disputed that there were chronic breaches of regulations that cover the application of train handbrakes. "There were occasional issues, and there are on every railway. Sometimes Transport Canada would bring something to management's attention where they had the facts wrong and it turned out that the situation was not improper, so this is the normal type of back-and-forth conversation that takes place between each and every safety regulator, wherever you might be." None of the lawsuit's claims about the causes or precipitating factors behind the Lac-Megantic crash have yet been tested in court. The claimants argue that MM&A should have been prevented from carrying highly flammable crude oil drawn from shale gas reserves in North Dakota, particularly on "excepted track" that is known to be damaged and more dangerous, and for which slow-speed limits are imposed. Among the findings that have so far been released, the Transportation Safety Board has concluded the chemical composition of the crude oil being carried on that train more closely resembled gasoline, which is classified as a "Group 1." The load was incorrectly classified as a less volatile "Group 2" hazardous material. The most recent TSB recommendations include requiring a higher standard of tank car to transport flammable liquids. NEIMAN MARCUS: Seeks Dismissal of Data Breach Class Action ---------------------------------------------------------- Juan Carlos Rodriguez and Andrew Scurria, writing for Law360, report that Neiman Marcus Group Ltd. LLC hit back on Feb. 12 against a proposed class action in New York alleging it failed to properly safeguard customers' privacy in a recent data breach, saying the complaint fails to allege that fraudulent charges are attributable to the hack, or that they caused any real harm. Plaintiff Melissa Frank alleges that she made purchases at a Neiman Marcus store between Dec. 15, 2013, and Jan. 1, 2014, and that subsequently her debit card received fraudulent charges. But the company said she does not allege that the data incursion caused the fraudulent charges on her debit card, or that the card issuer is seeking to hold her liable for the charges. And, according to Neiman Marcus, the malware used to steal customer information was active from July 16 to Oct. 30, so Ms. Frank's alleged fraudulent charges can't be traced to the breach. The company said 1.1 million payment cards may have been exposed in the attack, and that about 2,400 have incurred fraudulent charges. The company also said Ms. Frank cannot meet Article III's redressability requirement because her complaint fails to allege facts showing how her past injuries can be remedied by a judgment in her favor. It said that due to Ms. Franks' card issuer's assurance of zero fraud liability, she does not need money to pay any unauthorized charges, which are the only concrete consequences of the fraudulent use of her payment card information. The motion said Ms. Frank alleges some potential future consequences from the data incursion, but fails to allege facts that would show a "sufficiently imminent" threat of future injury that would give her standing to assert her claims for injunctive relief. Neiman Marcus said that under the U.S. Supreme Court's decision in Clapper v. Amnesty International USA, future injury will confer standing only when that harm is "certainly impending." And it said New York does not recognize a claim of invasion of privacy outside the narrow confines of an unpled statute; Ms. Frank does not and cannot allege that Neiman Marcus, rather than unknown third parties, misappropriated and converted her payment card information to its own use; and payment card information is not property that can be the subject of bailment. Neiman Marcus is represented by Steven M. Bierman -- sbierman@sidley.com -- and James D. Arden -- jarden@sidley.com -- of Sidley Austin LLP. Melissa Frank is represented by Tina Wolfson, Robert Ahdoot -- RAhdoot@ahdootwolfson.com -- Theodore W. Maya -- tmaya@ahdootwolfson.com -- and Bradley K. King -- bking@ahdootwolfson.com -- of Ahdoot & Wolfson PC and Wendy R. Stein of the Law Office of Wendy R. Stein. The case is Frank v. The Neiman Marcus Group LLC et al., number 2:14-cv-00233, in the U.S. District Court for the Eastern District of New York. NEW YORK: Plaintiffs Seek Remand of Stop-and-Frisk Cases -------------------------------------------------------- Mark Hamblett, writing for New York Law Journal, reports that plaintiffs in the New York City's stop-and-frisk cases have urged the U.S. Court of Appeals for the Second Circuit to remand the cases so settlement terms on reforming the police department can be reached. In papers filed on Feb. 14, attorneys in Floyd v. City of New York, 13-3088 and Ligon v. City of New York, 13-3123, dispute the claims of five police unions that want the cases to stay in the Second Circuit. The unions claim Judge Shira Scheindlin's liability and remedial findings were wrong and damaged the department's ability to police the city. The unions are trying to win a reversal of Judge Scheindlin's rulings, but the plaintiffs assert that the new administration at City Hall should have the right to pursue a limited remand with an eye on settling the cases. "[T]he merits of the appeal are irrelevant to the city's right to cease prosecuting this appeal if it wishes," said the plaintiffs' attorneys, who include Darius Charney of the Center for Constitutional Rights, Jonathan Moore -- jmoore@blhny.com -- of Beldock Levine & Hoffman, and Christopher Dunn of the New York Civil Liberties Union. Corporation Counsel Zachary Carter also filed papers opposing the police unions on Feb. 14. He said allowing the unions to intervene would "hinder" any settlement. Mr. Carter argues the unions "have not shown they have a legally protectable interest in this action to establish their entitlement to intervention as of right," and he insisted that the unions would have a say if the case was remanded to district court. On Oct. 31, a three-judge panel at the Second Circuit stayed Judge Scheindlin's rulings in Floyd and Ligon and removed Judge Scheindlin from the cases for creating the appearance of impropriety. The controversial decision came just as stop-and frisk critic Bill de Blasio, was about to be elected mayor and follow through on his vow to drop the appeal of Judge Scheindlin's rulings that were being aggressively challenged by Mayor Michael Bloomberg and Corporation Counsel Michael Cardozo. They particularly fought Judge Scheindlin's appointment of a police department monitor. The police unions had sought to intervene in the cases in September. Following the Oct. 31 ruling by the motions panel, Judge Scheindlin fought back, with lawyers arguing to intervene on her behalf and claiming the panel's sua sponte removal was in error. Burt Neuborne led a group of distinguished lawyers advocating for Judge Scheindlin, calling Judges Jose Cabranes, Barrington Parker and John Walker to task for removing the judge. After being told Judge Scheindlin had no standing to intervene, the team later applied as amici and sought en banc review of the panel's rulings. On Nov. 25, the full circuit ordered that the intervention motions of the police unions would be held in abeyance, and it invited the parties to seek a limited remand for the purposes of reaching a settlement. On Jan. 30, Mayor de Blasio, Carter and new Police Commissioner William Bratton announced a "voluntary agreement in principle" with plaintiffs' lawyers to reform police stop-and-frisk practices that Judge Scheindlin had found violated the Fourth Amendment's requirement of reasonable suspicion and disproportionately targeted blacks and Hispanics in violation of the Fourteenth Amendment. NISSAN MOTOR: Recalls 1,373 Trucks Due to Circuit Breaker Defect ---------------------------------------------------------------- Starting date: February 12, 2014 Type of communication: Recall Subcategory: Light Truck & Van Notification type: Safety Mfr System: Electrical Units affected: 1373 Source of recall: Transport Canada Identification number: 2014039 TC ID number: 2014039 On certain vehicles, a circuit breaker was installed incorrectly during vehicle assembly, and could cause damage to the wiring harness, potentially disabling power seat and sunroof functions, discharging the battery and/or causing a short. A short circuit may cause an overheat condition which could result in property damage and/or personal injury. Dealers will inspect and affect repairs as necessary. Affected products: 2012, 2013, 2014 Nissan Frontier NUTRO CO: Mars, Unit Sued Over Misleading Dog Food Product Labels ----------------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reports that pet owners are suing Nutro, a subsidiary of Mars Inc., for allegedly inducing them to buy its dog food products with false statements about their promotion of growth of beneficial bacteria. The putative class action suit, Monteleone v. The Nutro Co., in federal court in Newark, claims violations of the New Jersey Consumer Fraud Act and includes counts for equitable fraud and negligent misrepresentation. It was brought on behalf of buyers of Nutro products from all states other than California, from December 2007 to April 2011, a period during which sales of Nutro dog food exceeded $10 million. Mars, of McLean, Va., a conglomerate best known for M&M's candies, is also named as a defendant in the suit. According to the suit, Nutro's product labels -- until corrected in late 2011 -- listed Bacillus licheniformis and Bacillus subtilis as ingredients, which the company claims formed healthy spores in a dog's digestive tract. The company discovered its dog food does not form those spores once ingested, prompting it to reformulate its products, but the volume of spores produced by the revised product did not meet the volume claimed on product labels, the suit says. The allegedly misleading labels included a "guaranteed analysis" with references to "millions of bacillus." When the defendants made those statements, they "had no reasonable grounds for believing them to be true," the suit says. "The failure of an advertiser to substantiate through documents, records or any other written proof any claim regarding the safety, performance, efficiency, quality or price of advertised merchandise shall constitute a per se violation of the New Jersey Consumer Fraud Act," the complaint says. The plaintiffs seek actual damages in the amount paid for the products, including sales tax, plus exemplary and punitive damages and attorney fees and costs. Filed in Essex County Superior Court, on Dec. 26, the case was removed to federal court on diversity grounds on Feb. 10 because class representative Damian Monteleone lives in New Jersey. The plaintiffs are represented by Ronald Giller and Jeffrey Spiegel of Gordon & Rees in Florham Park and John Donboli of Del Mar Law Group in Del Mar, Calif. PELLA CORP: Accused of Selling Defective Designer Series Windows ---------------------------------------------------------------- Randy Lewis, on behalf of himself and on behalf of all others similarly situated v. Pella Corporation, an Iowa Corporation, Case No. 4:14-cv-00089-SNLJ (E.D. Mo., January 17, 2014) asserts unfair and deceptive trade practices in violation of the Missouri Merchandising Practices Act, negligence, breach of express warranty, breach of implied warranty of mechantability, fraudulent concealment, unjust enrichment and seeks damages and declaratory relief in connection with Pella Architect and Designer series windows by Pella Corporation. Pella Corporation is an Iowa Corporation that transacted and conducted business in Missouri. Pella designed, manufactured, marketed, advertised, warranted, and sold the Windows to the Plaintiff and the Class as well as the general public. The Plaintiff is represented by: Eric D. Holland, Esq. R. Seth Crompton, Esq. HOLLAND, GROVES, SCHNELLER & STOLZE, LLC 300 North Tucker Boulevard, Suite 801 St. Louis, MO 63101 Telephone: (314) 241-8111 Facsimile: (314) 241-5554 E-mail: eholland@allfela.com scrompton@allfela.com - and - Christopher Ellis, Esq. BOLEN ROBINSON & ELLIS, LLP 202 South Franklin, 2nd Floor Decatur, IL 62523 Telephone: (217) 429-4296 Facsimile: (217) 329-0034 E-mail: cellis@brelaw.com PHILIP MORRIS: Media Outlets Seek Inclusion in Tobacco Settlement ----------------------------------------------------------------- Zoe Tillman, writing for Legal Times, reports that more than a half-dozen television networks, newspaper industry associations and advocacy groups have asked a federal judge in Washington to expand the media outlets on which tobacco companies are required to publish antismoking messages. Under a settlement with the federal government, Philip Morris USA Inc., Altria Group Inc., R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. agreed to pay for messages on television, online, in newspapers and on cigarette packages detailing the health risks of smoking. On Jan. 10, lawyers for the government and the tobacco companies asked the judge to approve their plan for carrying out the terms of the settlement, which included requiring the companies to buy time on their choice of the "three major television networks -- CBS, ABC or NBC" and space in several dozen newspapers across the United States. Reaction from excluded media outlets was swift. On Jan. 17, the National Newspaper Publishers Association and National Association of Black Owned Broadcasters were the first to intervene and ask U.S. District Judge Gladys Kessler to include their members in the order. In the weeks that followed, Fox Broadcasting Co., the National Association for the Advancement of Colored People, Viacom Inc. and A&E Television Networks LLC filed similar requests with the court. This week, Univision Communications Inc. and Radio One Inc. filed briefs. Most of the media outlets seeking inclusion argue they would better reach certain key demographics long targeted by the tobacco companies, such as young people, African-Americans and Hispanic Americans. "Television media also has changed dramatically in the forty-three years since Defendants broadcast their deceptive messages on television," Christopher Mead -- cmead@londonandmead.com -- of London & Mead of Washington, a lawyer for A&E, wrote in a Feb. 6 filing. "The Proposed Consent Order does not reflect those changes." The National Newspaper Publishers Association, represented by Washington's Leftwich & Ludaway, pointed out in its court filings that some of the newspapers included on the original list no longer exist. Fox, represented by Fletcher, Heald & Hildreth in Arlington, Va., argued it deserved a place alongside CBS, ABC and NBC on the list of "major television networks." In court papers, lawyers for the tobacco companies said media outlets hadn't filed objections in the seven years since Kessler entered the original judgment in 2006 listing the networks and newspapers that would carry the ads. PORTFOLIO RECOVERY: Sued for Sending Illegal Collection Notices --------------------------------------------------------------- Ilana Akoundi on behalf of herself, and all others similarly situated v. Portfolio Recovery Associates, LLC, and John Does 1-25, Case No. 1:14-cv-00329-LAK-RLE (S.D.N.Y., January 17, 2014) is brought on behalf of all consumers and their successors in interest, who have received debt collection letters or notices from the Defendant, which are in violation of the Fair Debt Collection Practices Act. Portfolio Recovery Associates, LLC is a foreign limited liability company with its principal place of business located in Norfolk, Virginia. The Company uses mail, telephone, and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another. The Doe Defendants are unknown to the Plaintiff at this time. The Plaintiff is represented by: Joseph K. Jones, Esq. Benjamin J. Wolf, Esq. LAW OFFICES OF JOSEPH K. JONES, LLC 100 Park Avenue, 20th Floor New York, NY 10017 Telephone: (646) 459-4971 Facsimile: (646) 459-7973 E-mail: jkj@legaljones.com bwolf@legaljones.com RANCHO FEEDING: Shuts Down Following Recall of Beef Products ------------------------------------------------------------ Ricardo Lopez, writing for Los Angeles Times, reports that a Northern California firm that recalled 8.7 million pounds of beef products distributed in four states has been voluntarily closed, the plant's quality control manager confirmed on Feb. 10. Rancho Feeding Corp. of Petaluma on Feb. 8 recalled the beef products sold to retailers and distributors. The U.S. Department of Agriculture's Food Safety and Inspection Service said the plant "processed diseased and unsound animals" without a full federal inspection. As a result, the agency said, the "products are . . . unsound, unwholesome or otherwise are unfit for human food and must be removed from commerce." There have been no reported illnesses linked to the beef products in question, the company and the USDA said. The affected beef products include whole carcasses, beef heads, 30-pound boxes of beef oxtail and cheeks. The company also recalled 30- and 60-pound boxes of beef tongue, tripe and veal cuts. In a statement, Scott Parks, the plant's quality control manager, said the plant enacted the recall "out of an abundance of caution" and that the company regrets the inconvenience to its customers. Mr. Parks declined to answer questions about specific customers the meat was sold to, and said Rancho Feeding Corp. is compiling a full list. The company last month issued a recall of nearly 42,000 pounds of beef products because they did not have a full federal inspection. REDNER'S MARKETS: Faces "Rozear" Class Suit in Pennsylvania ----------------------------------------------------------- Debra L. Rozear, individually and on behalf of all others similarly situated v. Redner's Markets, Inc., Case No. 5:14-cv- 00295-LFR (E.D. Pa., January 17, 2014) alleges violations of The Americans with Disabilities Act of 1990. The Plaintiff is represented by: R. Bruce Carlson, Esq. CARLSON LYNCH LTD 115 Federal Plaza, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com The Defendant is represented by: Randall C. Schauer, Esq. John J. Miravich, Esq. FOX ROTHSCHILD LLP P.O. Box 673 747 Constitution Dr., Suite 100 Exton, PA 19341 Telephone: (610) 458-4967 Facsimile: (610) 988-0806 E-mail: rschauer@foxrothschild.com jmiravich@foxrothschild.com RJ REYNOLDS: Former Dancer May Sue Over COPD, 3rd Cir. Rules ------------------------------------------------------------ Adolfo Pesquera, writing for Daily Business Review, reports that an 87-year-old dancer forced to retire because of a smoking- related illness got a chance at trial based in part on a Valentine's Day diagnosis. A Third District Court of Appeal panel split 2-to-1 and reversed the dismissal of the lawsuit brought by Everett Belanger. He sued R.J. Reynolds Tobacco Co. for causing his chronic obstructive pulmonary disease. At issue was the four-year statute of limitations. Miami-Dade Circuit Judge Beatrice Butchko accepted Reynolds' argument that Mr. Belanger knew he had a smoking-related disease Aug. 29, 1981, when he decided to stop smoking cold turkey while fighting off a terrible cold that had him coughing relentlessly. In a deposition, Belanger recalled that day, saying, "I was coughing my guts out, and I was reaching for a cigarette, that is when I realized to myself, 'You sick son of a bitch, you are reaching for something that is killing you.'" Writing for the majority, Judge Kevin Emas said on Feb. 12 that while Mr. Belanger was treated for respiratory illnesses in the 1980s, he was not referred to a pulmonologist or diagnosed with COPD until 1993. The starting date for smokers to benefit from findings of a Florida Supreme Court decision disbanding a Miami class action is May 5, 1990. "The question is not whether in fact Mr. Belanger had COPD prior to May of 1990 but rather whether he knew or reasonably should have known prior to May of 1990 that he had COPD," Judge Emas wrote. Judge Richard Suarez concurred. He cited Carter v. Brown & Williamson Tobacco, a 2000 Florida Supreme Court case in which the defendant claimed Carter knew he had a smoking-related illness on Jan. 29, 1991, the day he coughed and spit up blood. The defendant argued he had to file his lawsuit by Jan. 29, 1995. Carter went to a doctor and was told Feb. 14, 1991, that he had lung cancer. He filed his lawsuit Feb. 10, 1995. The Supreme Court said that in cases of "creeping" diseases, the cause of action accrues when the health effects manifest themselves in a way that supplies "some evidence of a causal relationship to the manufactured product." Judge Leslie Rothenberg issued a 14-page dissent in Mr. Belanger's case, claiming the majority did not give proper weight to extensive evidence that Mr. Belanger should have known he had a smoking-related illness. S-L DISTRIBUTION: "McPeak" Suit Plaintiff May Amend Complaint ------------------------------------------------------------- JOSEPH A. McPEAK, individually and on behalf of all similarly situated individuals, Plaintiff, v. S-L DISTRIBUTION COMPANY, INC. Defendant, CIVIL NO. 12-348 (RBK/KMW), (D. N.J.) comes before the Court upon the motion by Joseph A. McPeak for leave to file a Second Amended Complaint. The Plaintiff previously filed an Amended Class Action Complaint, alleging that his distribution agreement with S-L Distribution Company constituted a franchise under the meaning of the New Jersey Franchise Practices Act (NJFPA) and that S-L violated the statute when it unilaterally terminated the agreement. The Court previously dismissed Plaintiff's Amended Class Action Complaint without prejudice, and he now seeks to cure the defects in his previous pleading. Although the general basis for his claims are similar to those set forth in his previous pleadings, the Court finds that it would not be futile to amend the pleading. Accordingly, the Plaintiff's motion will be granted, ruled District Judge Robert B. Kugler. A copy of the District Court's January 29, 2014 Opinion is available at http://is.gd/uu7nJjfrom Leagle.com. SEARS ROEBUCK: OT Class Action Settlement Gets Preliminary Okay --------------------------------------------------------------- Daniel Siegal, writing for Law360, reports that Sears Roebuck & Co. on Feb. 13 won preliminary approval from a California federal judge for a $3.2 million settlement of class action claims that it shorted about 18,000 Golden State sales staff by excluding commissions from their overtime rates. U.S. District Judge George H. Wu granted preliminary approval to the settlement proposed by plaintiff Sarah Chookey, which would split $3.2 million among all commission-earning sales employees in California who were paid insufficient overtime by the retailer during the past four years. According to Ms. Chookey's memorandum of support for the settlement, the settlement is fair because it would give employees more than they are owed for unpaid overtime on average, while factoring in Sears' strong defenses against several of the suit's claims, "At the conclusion of a successful trial, plaintiff may only end up recovering the underlying damages associated with the failure to pay proper overtime, not the associated statutory damages and civil penalties for derivative wage-statement violations," the memorandum said. The proposed settlement would allow the 18,276 sales employees in California to submit a claim for a piece of the roughly $2 million of the settlement fund left after attorneys fees of 33 percent and other expenses have been subtracted. The employees would be paid proportionally, based on the number of weeks worked during the settlement period. Ms. Chookey, who since January 2011 has worked as a commissioned sales employee in the automotive department of Sears' Thousand Oaks, Calif., branch, sued her employer in February 2012 in Ventura Superior Court, saying Sears failed to take her commission payments into account when computing her overtime pay rate. Ms. Chookey's complaint, in which she seeks certification for all "C-class" Sears employees in the state who received a base pay rate as well as commission for sales who worked overtime and received deficient pay, also included claims that the company violated labor laws by providing inaccurate wage statements and failing to allow meal and rest breaks. After having the case removed to federal court in March 2012, Sears attempted to buck the overtime claim in May of that year, arguing in a motion to dismiss that Ms. Chookey was miscalculating her appropriate overtime rate at 2 1/2 times, and that the overtime claim should therefore be tossed. Judge Wu denied that motion, however, saying that Sears botched the math in its motion. On Jan. 16, Ms. Chookey submitted a motion for preliminary approval of the settlement along with the memorandum in support, which said the settlement was based on a mediator's proposal. Sears subsequently submitted a statement of nonopposition to the settlement that said although Sears, "disagrees with certain characterizations" of Ms. Chookey's memorandum in support of the settlement, the company fully agrees that final approval of the settlement should be granted. On Feb. 13, Sears spokesman Howard Riefs told Law360 that the company denies liability in the lawsuit, but that the settlement allows it to,"Put the matter behind us and focus on our members, customers and associates." On Feb. 13, Judge Wu issued preliminary approval, and asked the parties to submit proposed schedules for a fairness hearing. Ms. Chookey is represented by Alan Harris -- HarrisA@harrisandruble.com -- and Priya Mohan -- pmohan@harrisandruble.com -- of Harris & Ruble. Sears is represented by Joseph C. Liburt -- jliburt@orrick.com -- and Christian N. Brown -- cbrown@orrick.com -- of Orrick Herrington & Sutcliffe LLP. The case is Sarah Chookey v. Sears Roebuck & Co., case number 2:12-cv-02491, in the U.S. District Court for the Central District of California. SIX FLAGS: Faces Suit of Defective Roller Coaster Train Car ----------------------------------------------------------- Sandra Baker, writing for Fort Worth Star-Telegram, reports that Six Flags Over Texas in Arlington is suing the German manufacturer of the Texas Giant, alleging the roller coaster train car from which a Dallas woman fell to her death last summer was defective and dangerous. Six Flags and its parent company made the allegations in a cross- action filed on Feb. 14 in the case in state district court in Tarrant County, Texas. In September, the family of Rosa Esparza, 52, filed suit against Six Flags Over Texas, Six Flags Entertainment Corp., Six Flags Theme Park Inc., Texas Flags Ltd. and Gerstlauer Amusement Rides, the German company that made the ride. Six Flags and Gerstlauer have denied liability in the case. In previous court filings, Six Flags maintains it complied with inspections and maintenance procedures recommended by Gerstlauer. Six Flags was not specific in the latest filing as to how it believes the roller coaster was defective. Rather, Six Flags again said it followed all the recommended operation and maintenance procedures on the ride as spelled out by Gerstlauer, even at the time of the July 19 accident. Six Flags said it is joining Ms. Esparza's family to "allege that (Gerstlauer's) roller coaster train was a defective product that was unreasonably dangerous in design, manufacture, distribution and promotion," the filing said. Six Flags also alleges that Gerstlauer, as seller of the train, is "liable to (Six Flags) for strict products liability and negligence." Kenneth Broughton, a Houston attorney representing Gerstlauer, said the filing is a contract maneuver by Six Flags under its purchase agreement with Gerstlauer, which carries an indemnity provision. Mr. Broughton said such a move is "pretty standard" in such cases. Gerstlauer has 20 days to respond to the filing and Mr. Broughton said they will likely file a "mirror image" of a cross-action. In the filing, Six Flags said it was "simply a conduit of providing the ride for the public's use" and is seeking "full indemnity" from Gerstlauer. It did not specify the amount of money it is seeking. The family is seeking more than $1 million. The Texas Giant was shut down the night of Ms. Esparza's fatal fall. The ride reopened in September after Six Flags said its investigation found that no mechanical failure was involved. Six Flags has not released any further information from its investigation conducted by the ride's manufacturer, internal engineers and external experts. Six Flags has since added redesigned restraint-bar pads from the manufacturer, as well as new seat belts, and it began providing a coaster seat at the ride's entrance so guests can test whether they fit safely. Six Flags reopens for the season March 1. A statement from the park Feb. 17 said the Texas Giant is safe to ride. "We re-opened the ride last fall following the addition of incremental and overlapping safety measures that included re- designed restraint-bar pads from the manufacturer and new seat belts," the statement said. SPM RESORTS: Class Seeks to Recover Overtime Pay and Damages ------------------------------------------------------------ Antoine Simon, on his own behalf and others similarly situated v. SPM Resorts, Inc., d/b/a La Costa Beach Resort, a South Carolina corporation, Case No. 0:14-cv-60121-JEM (S.D. Fla., January 17, 2014) is brought to recover from the Defendant overtime compensation, liquidated damages, and costs and reasonable attorney's fees under the provisions of the Fair Labor Standards Act. SPM Resorts, Inc., is a South Carolina corporation authorized to do business in Florida, including its location in Pompano Beach, Broward County, Florida. The Company does business from multiple locations in Florida, Massachusetts, North Carolina, South Carolina, Virginia and Tennessee. The Plaintiff is represented by: Camar Ricardo Jones, Esq. THE SHAVITZ LAW GROUP, P.A. 1515 South Federal Hwy., Suite 404 Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: cjones@shavitzlaw.com STARWOOD HOTELS: Wins Dismissal of Price-Fixing Lawsuit ------------------------------------------------------- Joseph Ax, writing for Reuters, reports that a group of major U.S. hotel chains and online travel companies on Feb. 18 won the dismissal of an antitrust lawsuit accusing them of an industry- wide conspiracy to fix the online prices of hotel rooms. U.S. District Judge Jane Boyle in Dallas found that the lawsuit, brought by consumers who claimed they paid inflated prices for their rooms, failed to adequately show that such a conspiracy existed. Instead, she said, the agreements between each hotel chain and each online operator could be explained by "rational business interests" rather than anti-competitive behavior. The hotel companies include Starwood Hotels and Resorts Worldwide Inc, InterContinental Hotels Group Plc and Marriott International Inc while the online agencies include Expedia Inc, Orbitz Worldwide Inc and Priceline Com Inc. An Orbitz spokeswoman said the company was pleased with the decision, which she said was "well reasoned and accurately interprets applicable law." The lawsuit, which consolidated several complaints from various states, claimed that each hotel chain signed a deal with each online travel company to publish one lowest rate while also tacitly agreeing not to compete with one another, thereby creating "rate parity" and forcing consumers to pay artificially high prices. The companies countered that the individual agreements were simply an attempt by each hotel chain to ensure that it could control the online prices for its rooms. In return, they said, the online agencies got assurance that their competitors would not be able to undercut them, an explanation that Judge Boyle accepted. "Just because defendants' rational business interests can be recast in a suspicious light does not mean the allegations actually suggest a conspiracy was formed," Judge Boyle wrote. Judge Boyle said she would permit the plaintiffs to file an amended lawsuit if they could address the deficiencies she identified. The case is In re Online Travel Company Hotel Booking Antitrust Litigation, U.S. District Court for the Northern District of Texas, 12-cv-3515-B. Cliff Rieders of Rieders, Travis, Humphrey, Harris Waters & Waffenschmidt posted in Dangerous Drugs on Tuesday, February 18, 2014. TOYOTA MOTOR: Recalls 25,557 Cars & SUVs Due to Crash Risk ---------------------------------------------------------- Starting date: February 12, 2014 Type of communication: Recall Subcategory: Car, Light Truck & Van, SUV Notification type: Safety Mfr System: Brakes Units affected: 25557 Source of recall: Transport Canada Identification number: 2014043 TC ID number: 2014043 Manufacturer recall number: SSC228, SSC229 On certain vehicles, a manufacturing defect could affect the functioning of the electric brake actuator, illuminating various warning lights in the instrument panel of the vehicle and disabling the antilock braking system (ABS), traction control and vehicle stability control systems. This could increase the risk of a crash causing injury and/or property damage. Dealers will update the vehicle stability control ECU software and affect repairs as necessary. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- TOYOTA TACOMA 2012, 2013 TOYOTA RAV4 2012 LEXUS RX 350 2012, 2013 TOYOTA MOTOR: Recalls 1,379 PRIUS Cars Due to Damaged IPM --------------------------------------------------------- Starting date: February 12, 2014 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Powertrain Units affected: 1379 1Source of recall: Transport Canada Identification number: 2014042 TC ID number: 2014042 Manufacturer recall number: SSC230 On certain vehicles, the Intelligent Power Module (IPM), which is part of the hybrid system inverter assembly, could become damaged under certain driving conditions. This could cause various warning lights to illuminate in the instrument panel of the vehicle and cause a reduction or loss of motive power, increasing the risk of a crash causing injury and/or property damage. Dealers will update motor/generator and hybrid control ECU software and affect repairs as necessary. Affected products: 2010, 2011, 2012, 2013, 2014 TOYOTA PRIUS model VANDERPOL'S EGGS: Recalls Ova Easy Egg Products Due to Salmonella ----------------------------------------------------------------- Starting date: February 17, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Microbiological - Salmonella Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Vanderpol's Eggs Ltd. Distribution: National Extent of the product distribution: Retail CFIA reference number: 8627 Vanderpol's Eggs Ltd. is recalling Ova Easy brand Tasty Nutritious Egg dried egg product from the marketplace due to possible Salmonella contamination. Consumers should not consume the recalled product described. The product has been sold nationally. Check to see if you have recalled product in your home. Recalled product should be thrown out or returned to the store where it was purchased. Food contaminated with Salmonella may not look or smell spoiled but can still make you sick. Young children, pregnant women, the elderly and people with weakened immune systems may contract serious and sometimes deadly infections. Healthy people may experience short-term symptoms such as fever, headache, vomiting, nausea, abdominal cramps and diarrhea. Long-term complications may include severe arthritis. There have been no reported illnesses associated with the consumption of this product. The recall was triggered by a recall in another country. The Canadian Food Inspection Agency (CFIA) is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled the CFIA will notify the public through updated Food Recall Warnings. Affected products: 113 g. Ova Easy Tasty Nutritious Egg - Dried Egg Product with 8 95218 00010 8 UPC VIRGINIA: Sterilization Victims May Get Compensation ---------------------------------------------------- The Virginian-Pilot reports that there may yet be a chance for Virginians involuntarily sterilized by the state decades ago to receive some compensation for what was done to them. Two weeks ago, a House budget-writing panel indicated it would delay action for a year on legislation calling for $50,000 payments to people who were forcibly sterilized from 1924 to 1979 as part of the now-discredited eugenics movement, which sought to improve the human gene pool by weeding out those regarded as "defective." But the proposed House budget for 2014-16, unveiled Feb. 16, includes a scaled-down version of that proposal calling for $25,000 payments to sterilization victims up to a total of $500,000. That would allow payments for up to 20 people. So far, 10 people have come forward with medical documentation that they were sterilized under the program. Del. John O'Bannon, R-Henrico County, chairman of the subcommittee that considered the measure, called the budget proposal a "good- faith effort" to deal with the legacy of a state policy that is now widely seen as wrong-headed, even immoral. "I feel like it's the right thing to do," he said. Del. Bob Marshall, R-Prince William County, the sponsor of the original proposal, said he appreciates the gesture, calling it "a step in the right direction." But he said he still believes $50,000 is a more appropriate figure. In any event, any level of compensation is still uncertain. The House budget proposal must be reconciled with its counterpart from the state Senate, which does not include any money for the sterilization victims. VIRGINIA: Judge Strikes Down Ban on Same-Sex Marriage ----------------------------------------------------- Ian Simpson, writing for Reuters, reports that a federal judge struck down Virginia's ban on same-sex marriage as unconstitutional late on Feb. 13, saying it denied gay couples a fundamental freedom to marry. The ruling by U.S. District Court Judge Arenda Wright Allen in Norfolk, Virginia, added momentum to growing acceptance of gay marriage in the United States. Judge Allen said Virginia's constitutional ban on same-sex marriage violated the right to due process and equal protection of the law under the U.S. Constitution. However, she stayed execution of her order striking down the ban pending an appeal to the Fourth Circuit Court of Appeals. "The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry," Allen, a judge in the U.S. District Court for the Eastern District of Virginia, wrote in her 41-page opinion. She ordered submission of a proposed final order by March 14. The decision in Bostic v. Rainey, in which two gay couples sought to strike down the Virginia ban, follows two high-profile rulings by the U.S. Supreme Court last year. The high court paved the way for gay marriage to resume in California. It also struck down the Defense of Marriage Act (DOMA), a federal law that denied federal benefits to legally married same-sex couples. Federal judges have cited the DOMA ruling in finding gay marriage bans unconstitutional in Utah and Oklahoma. U.S. Principles Seventeen states plus the District of Columbia recognize gay marriage, including eight states where it became legal in 2013. Thirty-three ban same-sex couples from marrying by constitutional amendment, statute, or both. In Indiana, a vote by state residents on a constitutional amendment banning gay marriage was delayed by at least two years on Feb. 13. The American Foundation for Equal Rights, which brought the Virginia case, said Judge Allen's ruling upheld core U.S. principles of equality. "Laws excluding gay men and lesbians from marriage violate personal freedom, are an unnecessary government intrusion, and cause serious harm. That type of law cannot stand," lead co- counsel Theodore Olson said in a statement. Mr. Olson was part of the legal team that argued before the U.S. high court for the resumption of same-sex marriage in California. Also applauding the ruling, Virginia Attorney General Mark Herring said in a statement that it "is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love." Mr. Herring, a Democrat, said last month he would not defend the state's ban on gay marriage in court. In 2006, 57 percent of Virginians voted for the constitutional amendment imposing the ban. But a poll released in October by Virginia's Christopher Newport University showed that 56 percent of likely voters opposed the ban, while 36 percent favored it -- reflecting the reversal in public opinion. WOK N FIRE: Fails to Pay Minimum Wages, Ill. Suit Says ------------------------------------------------------ Rossiel Grandal and Pamela Msciwojewska, on behalf of themselves and all other persons similarly situated, known and unknown v. Wok N Fire South Barrington LLC, Wok N Fire Wheaton LLC, and Wok N Fire Addison, Inc., Case No. 1:14-cv-00341 (N.D. Ill., January 17, 2014) arises under the Fair Labor Standards Act and the Illinois Minimum Wage Law for the Defendants' alleged failure to pay the Plaintiffs and other similarly-situated current and former tipped employees their earned minimum wages. Wok N Fire South Barrington LLC, operates a restaurant located in South Barrington doing business as "Wok N Fire." Wok N Fire Wheaton LLC, operates a restaurant located in Wheaton is doing business as "Wok N Fire." Wok N Fire Addison, Inc., operates a restaurant located in Addison doing business as "Wok N Fire." The Plaintiffs are represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. David E. Stevens, Esq. Sarah J. Arendt, Esq. WERMAN SALAS P.C. 77 West Washington Street, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com dstevens@flsalaw.com sarendt@flsalaw.com WHOLE FOODS: Faces "Gezahegne" Suit Over Employee Background Check ------------------------------------------------------------------ ESAYAS GEZAHEGNE, individually and on behalf of all others similarly situated, Plaintiff, v. WHOLE FOODS MARKET CALIFORNIA, INC., a California Corporation, and DOES 1 THROUGH 100 Defendants, Case4:14-cv-00592-DMR (N.D. Cal., February 7, 2014), is an action on behalf of the plaintiff, and as a nationwide class action on behalf of all individuals who executed online authorization forms permitting Defendant to obtain a consumer report as part of the employment application process at any time from January 28, 2009 until the present, challenging the Defendant's uniform policy to obtain consumer reports on the basis of legally invalid authorization form that contained language constituting a waiver of claims against those who obtain the consumer reports. Specifically, the Defendant's use of authorization form containing a liability waiver constitutes a willful violation of the Fair Credit Reporting Act's requirement that the authorization forms be set forth in a document that "consists solely of the disclosure", and its inclusion in the Defendant's forms not only invalidates the forms but also triggers statutory damages in the amount of up to $1,000 for each individual for whom the Defendant obtained a consumer report without a facially valid authorization, as well as punitive damages, and attorneys' fees and costs, all of which is sought now by Plaintiff and the members of the Class. The Plaintiff resided in California, and is a former employee of the Defendant. In or around April 7, 2011, in connection with Plaintiff's application for employment with the Defendant, the Plaintiff executed an online FCRA authorization form that purported to allow Defendant to obtain consumer reports on him. Gezahegne is represented by: ACKERMANN & TILAJEF, P.C. Craig J. Ackermann, Esq. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 E-mail: cja@ackermanntilajef.com - and - MICHAEL MALK, ESQ., APC Michael Malk, Esq. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 203-0016 Facsimile: (310) 499-5210 E-mail: mm@malklawfirm.com YAMAHA: Recalls 115 Motorcycles Due to Cracked Drive Chain Clip --------------------------------------------------------------- Starting date: February 7, 2014 Type of communication: Recall Subcategory: Motorcycle Notification type: Safety Mfr System: Powertrain Units affected: 115 Source of recall: Transport Canada Identification number: 2014036 TC ID number: 2014036 Manufacturer recall number: M14-005 On some motorcycles, the drive chain clip may deform and/or crack during use. This could result in an unexpected loss of motive power, or rear wheel lockup. Either situation could increase the risk of a crash causing personal injury and/or property damage. Dealers will inspect and, if necessary, replace the drive chain clip. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- YAMAHA YZ250FEL 2014 YAMAHA YZ250FEW 2014 ZICAM LLC: Falsely Represented "Pre-Cold Medicine," Suit Claims --------------------------------------------------------------- Yesenia Melgar, on Behalf of Herself and all Others Similarly Situated v. Zicam LLC and Matrixx Initiatives, Inc., Case No. 2:14-cv-00405-GW-VBK (C.D. Cal., January 17, 2014) accuses the Defendants of falsely representing that the over-the-counter homeopathic remedy Zicam, "The Pre-Cold Medicine," prevents, shortens and reduces the severity of the symptoms of the common cold. The Pre-Cold Medicine includes Zicam Pre-Cold RapidMelts Original, Zicam Pre-Cold RapidMelts Ultra, Zicam Pre-Cold Oral Mist, Zicam Pre-Cold Ultra Crystals, Zicam Pre-Cold Lozenges, Zicam Pre-Cold Lozenges Ultra, and Zicam Pre-Cold Chewables. Zicam LLC is an Arizona Limited Liability Corporation headquartered in Scottsdale, Arizona. Zicam LLC is a wholly owned subsidiary of Matrixx Initiatives, Inc. Matrixx Initiatives, Inc. is a privately held corporation organized under the laws of Delaware with its principal place of business in Bridgewater, New Jersey. The Defendants are engaged in the business of manufacturing, mass marketing, and distributing homeopathic formulas, including the Pre-Cold Medicine, under the Zicam brand name. The Plaintiff is represented by: L. Timothy Fisher, Esq. Sarah N. Westcot, Esq. Annick M. Persinger, Esq. Julia A. Luster, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com swestcot@bursor.com apersinger@bursor.com jluster@bursor.com * CJD Exposure Through Contaminated Equipment Spurs Lawsuits ------------------------------------------------------------ Richard Craver, writing for Winston-Salem Journal, reports that the risk of transmitting Creutzfeldt-Jakob disease to patients by contaminated surgical equipment is considered extremely low by federal health officials. The rare but fatal degenerative brain disorder is caused by a rare type of protein that can adhere to surgical equipment and withstand standard sterilization. However, the exposure risk from such equipment may be higher than commonly known. The 18 patients at Forsyth Medical Center potentially exposed to CJD are involved in the latest of at least seven high-profile, and eerily similar, incidents in the United States over the past 14 years. The largest incident, according to media reports, was about 4,000 patients at University of Pittsburgh Medical Center Presbyterian potentially being exposed from April 2001 to April 2002. The hospital performed surgery on a patient in April 2001 to treat a condition of the nervous system. The hospital confirmed the patient died in the first quarter of 2002 from the disease. Forsyth informed the public of its CJD incident on Feb. 10. Patients were exposed to surgical equipment used on a neurosurgery patient operated on Jan. 18. That patient was diagnosed with CJD by Feb. 6. The potential risk timeline was Jan. 18 to Feb. 6. Jeff Lindsay, Forsyth's president, said "any exposure is simply unacceptable." In October 2004, Emory University Hospital in Atlanta acknowledged that at least 516 patients had been exposed to CJD after a brain surgery patient tested positive for the disease in September 2004. There were 98 brain or spinal surgery patients and 418 other non- neurosurgical patients affected by the incident. More recently, in September 2013 officials at Catholic Medical Center in Manchester, N.H., said eight patients were exposed to equipment used on a patient who was operated on in May. The patient later tested positive for sporadic CJD and died. The N.H. Department of Health and Human Services said another five patients from Connecticut and Massachusetts were exposed. Altogether, at least 4,719 patients were exposed in incidents that also include hospitals in Denver (six), New Orleans (eight) and Odgen, Utah (155). Some exposure incidents were cited in a 2010 article in the New England Journal of Medicine on the ethics of hospitals informing patients of "near risk" exposure to harmful or deadly diseases. If there is any silver lining for the Forsyth hospital patients, it's that from the other six incidents there have been no known cases of patients exposed to CJD by contaminated surgical equipment being harmed by the disease. According to a September 2013 article in Scientific American, published soon after the New Hampshire incident, the magazine reported that none of the exposed Pittsburgh patients have shown signs of CJD. The CJD exposure at Forsyth has gotten the attention of state health regulators and The Joint Commission, officials with those groups said on Feb. 12. The commission is an independent nonprofit organization that accredits hospitals in the United States. It remains unclear whether Forsyth and Novant will face state or federal regulatory sanctions. Kevin Howell, a spokesman for the N.C. Department of Health and Human Services, said on Feb. 14 its division of Health Service Regulation "takes the enforcement of state licensure rules and federal CMS regulations very seriously." "However, federal CMS policies prevent DHHS from disclosing any potential investigation or potential enforcement action that may be taken against any state licensed and Medicare certified facility." CMS officials have not responded to questions submitted Wednesday about the Forsyth incident. Similarities in exposure, response In all seven incidents, patients were exposed because enhanced sterilization measures were not used following the surgery on the patient later determined to have CJD. Abnormal forms of normal cellular proteins that cause sporadic CJD, the most common version, are not eradicated by standard sterilization process, according to the Centers for Disease Control and Prevention. The Joint Commission issued a sentinel warning in June 2001 about CJD exposure from contaminated surgical equipment after the 2000 incidents in Denver and New Orleans. The commission stressed "regular sterilization techniques are not yet proven to be effective against the CJD organism." The commission recommended "the disinfection or disposal of instruments used in neurosurgery in general and when CJD is suspected or confirmed, and the quarantine of such surgical instruments until an unclear diagnosis or biopsy is clarified." Dr. Jim Lederer, a Novant Health Inc. infectious disease expert, said Monday said there were "reasons to suspect" that the patient had the disease or another brain disease at the time of the surgery. "The extra cautions should have been taken, but were not," he said. Hospital officials in each incident expressed remorse over the failure to take the proper enhanced sterilization steps. They stressed the extremely low risk that any of the patients will contract CJD through the variant version of CJD. They committed to providing medical assistance to the exposed patients, who may not know for years, if not decades, if they have CJD because it has such a long incubation period. They all committed to using enhanced sterilization methods for any equipment used in future neurosurgery. Tell or not tell The authors of the New England Journal of Medicine article described CJD among "the most vexing large-scale adverse events involving potential injuries that cannot be definitively diagnosed and have no treatment." The Winston-Salem Journal submitted on Feb. 12 a series of medical and logistical questions to Forsyth and Novant. It included asking about the cost of replacing the contaminated surgical equipment. "Prevention of surgical transmission of CJD is possible but cumbersome and costly," the authors said. Hospital spokeswoman Jeanne Mayer said in an email on Feb. 13 that "Our primary concerns right now are: ensuring that processes are in place to provide the absolute safest care to our current and future patients; and supporting the affected individuals and their families." "In the meantime, we are conducting an extensive review of the events that led to this process failure. When we have completed our review, we will be happy to provide more information with you." The authors wrestled with the ethical responsibilities of hospitals when faced with a CJD exposure risk. "A duty to tell the truth might be outweighed by a duty of non- malfeasance," the authors wrote. "The fear and worry that could accompany disclosure may constitute a greater and more permanent harm in the case of CJD than in other large-scale adverse events without any corresponding benefit, given the remote chance of transmission of this disease and the lack of diagnostic and treatment options. "Arguably a patient has the right to the information. Should CJD develop in the patient, the harm is intensified by the sense of betrayal if the patient learns that providers have kept the risk of the development of a terminal, incurable disease a secret." The authors said disclosure to a potential affected but unaware patient may prevent putting other patients at risk from contaminated surgical equipment if they have subsequent neurosurgery, and in part so that they can take advantage of potential treatments if they are developed in future years. "Although, on balance, we believe that disclosure is often warranted, there is also greater ethical justification for nondisclosure (for CJD) than in the other type of large-scale adverse events," the authors said. Legal ramifications It may be too soon for the 18 patients to decide whether they will sue Forsyth and Novant for being exposed to CJD. Drew Brown, an attorney with Greensboro law firm Benson, Brown & Faucher PLLC, said on Feb. 14 it has been retained by two individuals who claim they are part of the 18 exposed patients. The law firm has run newspaper ads soliciting patients. "What we would advise them to do is wait at least a year so that we could hire third-party medical experts to evaluate their case," Mr. Brown said. "It would take that kind of time to determine what kind of damages to pursue for their exposure risk and their mental anguish." Mr. Brown said part of the evaluation would be determining what kind of damages can be sought for a disease that they may never have, but would represents a death sentence if they do. He said any lawsuit would have to be filed within three years to avoid statute of limitation restrictions. "Liability does not appear to be a question given what Forsyth officials already have said," Mr. Brown said. "They now have to back up what they have committed to for what may prove to be a very long time." The Emory incident In the Emory exposure case, at least 17 patients sued the hospital in the spring of 2006, about 18 months after the hospital disclosed the incident. The plaintiff accused the hospital system of medical malpractice, breach of fiduciary duty, reckless infliction of emotional distress and breach of informed consent. Emory responded to the lawsuit by denying all of the allegations, according to a March 2006 article on the AccessNorthGeorgia website. "There are no cases in the medical literature of CJD having been transmitted following the routine measures of surgical instrument sterilization that we employed," Emory spokesman Ron Sauder said at that time. At that time, Emory officials said they were aware of no CJD cases among the 516 patients. Wayne Grant, an Atlanta attorney who represented 17 of the Emory patients, said in a phone interview on Feb. 12 that his clients chose those specific claims because they believed the hospital did not following the proper sterilization steps during the exposure timeline. "Emory fought our lawsuit hard on all fronts," Mr. Grant said. "They said the right words in their (2004) press conference, but it was just spin and lip service." Mr. Grant said his clients' ages ranged from their 20s to their 60s. Several of his clients "were deeply affected" by knowing they had been exposed to CJD, some developing depression or paranoia. "I'm sure the patients who have been exposed at the hospital in your area are going through similar feelings," Mr. Grant said. "You don't know if this horrible disease is incubating inside your brain. If you start having memory lapses, what comes to mind but 'Is this the beginning of the end for me.' " After nearly five years of litigation and depositions, the hospitals and the 17 patients reached a confidential settlement in 2011. Mr. Grant said he could not disclose, for client privacy reasons, what damages he sought. "It is difficult to place monetary value because each person is affected in their own way," he said. "Emory agreed to the settlement after all the cards were put on the table and all the legal claims had been evaluated. They had sent notices to the patients not to donate blood or their organs. What does that tell you? "There was no more hiding or denying facts," Janet Christenbury, Emory's media relations director, said Thursday she was trying to get comment from Emory officials about the settlement agreement. Mr. Grant said he is not aware of any of his clients being diagnosed with CJD, although two have since died, one from a heart attack. When asked if the settlement amount was able to satisfy the needs of his clients, Mr. Grant said "they all wished the hospital could erase what happened." "There is no amount of money that they would have taken in advance to accept being exposed to this terrible disease since they have to live with the consequences the rest of their lives." * U.S. Supreme Court Likely to Review Same-Sex Marriage in 2015 --------------------------------------------------------------- Marcia Coyle, writing for The National Law Journal, reports that federal court decisions striking down same-sex marriage restrictions have moved, or are about to move, into four federal appellate courts, increasing the likelihood of U.S. Supreme Court review in 2015 or soon thereafter. A federal district judge in Virginia on Feb. 13 became the fifth federal judge in the past two months either to invalidate a state ban or to require certain recognition of legally married gay couples in their states. The Virginia case, Bostic v. Rainey, is expected to be appealed to the U.S. Court of Appeals for the Fourth Circuit. Other cases pending, or about to be appealed, are in the Sixth, Ninth and Tenth circuits. "It has always been about getting to the Supreme Court," said Evan Wolfson, president of Freedom to Marry. "But given the dynamics of the landscape -- 46 cases in 25 states and new ones being filed every week -- we are potentially on a timeline that would have us back in the Supreme Court in 2015 and possibly a little longer. We have to work as if we're on the urgency of the 2015 timeline and where we're in front of the Supreme Court a little later." The Supreme Court last June did not reach the seminal question of whether states, consistent with equal protection of the law, could define marriage as the union of a man and a woman. That question was posed in a challenge to California's same-sex marriage ban. The justices, in a 5-4 ruling, held that the proponents of the ban lacked standing to defend it. The decision in Hollingsworth v. Perry left in place a district court decision striking down the ban as a violation of equal protection and due process. In the Virginia case, U.S. District Judge Arenda Wright Allen struck down a state constitutional amendment approved by voters in 2006 that bans same-sex marriage and prohibits recognition of same-sex marriages performed in other states. On Feb. 14, Theodore Olson -- tolson@gibsondunn.com -- of Gibson, Dunn & Crutcher, counsel to the two same-sex couples in the Bostic challenge, said he felt "confident the right outcome will prevail" in the Fourth Circuit because of the reasoning in Wright Allen's decision. And even though state officials have refused to defend the state amendment, Olson said, the ban would have a "full throated" defense in the Fourth Circuit because clerks who issue marriage licenses in the state have participated in the lawsuit and the state attorney general continues to enforce the law. Neither Mr. Olson nor his co-counsel, David Boies -- dboies@bsfllp.com -- of Boies, Schiller & Flexner, would predict when or whether their case or others percolating in the lower courts would be first at the Supreme Court. Byron Babione, senior counsel with Alliance Defending Freedom, counsel to the Prince William County clerk of court defending the Virginia ban, said on Friday in a written statement, "Because the court's ruling interferes with the right of Virginians to determine the future of marriage in their state and raises serious constitutional issues, we are reviewing the judge's decision with our client and considering our next steps." A second Virginia challenge to the state ban, Harris v. McDonald, is a class action brought by the American Civil Liberties Union in Harrisonburg. Paul Smith of Jenner & Block, who is assisting in that suit, was hopeful the judge would rule quickly "so the rest of the people of Virginia" would enjoy the fundamental right to marry. Asbestos Litigation ASBESTOS UPDATE: Porterville Hotel Fire Raises Fibro Concerns ------------------------------------------------------------- Kelli Ballard, writing for The Porterville Recorder, reports that concerns surrounding the amount of asbestos in the Porterville Hotel were prominent before the fire that destroyed the historical building on Dec. 26, 2013; however, the fire and demolition have actually made the situation worse. "There is a pretty significant amount [of asbestos] according to the Hazmat report we had done before the demolition [was scheduled]," said City Manager John Lollis. Asbestos, known to cause cancers such as mesothelioma, was known to be in the hotel in areas such as floor tiles, the kitchen area and plaster. "Asbestos is not a problem as long as it is confined," said Mr. Lollis. When the hotel caught on fire, the city had to scramble to find a way to demolish it to protect residents, but also had to find a company that could do so with the asbestos problem. "Bowen [Engineering and Environmental] was there for a purpose -- remove the threat from the people. We've eliminated the immediate risk from the public," Mr. Lollis explained. "The most significant piece was having to deal with the unenforced masonry that had plaster in them." With the urgent demolition, the asbestos that was contained or in solid form, became broken and scattered. This form, called "friable form" happens when the materials containing asbestos is crumbled and the particles can be inhaled. This is when it is dangerous. "By the time the building burned, it was spread out," said Community Development Director Brad Dunlap. "That's why it was wetted down and encrusted." Bowen, as part of the demolition process, wet down the scattered debris to keep it in a solid form so the asbestos would be contained. If need be, the owners of the property, Porterville Hotel Investors, will wet down the material to keep it from becoming friable. "We don't believe it's a health risk at this time, and we've taken preventative steps," said Mr. Dunlap. As to when the property will be cleaned up, the city is still in the process of working with all parties involved. So far, the city has not yet reached a purchasing agreement with the property owners; however, a draft working on the language with all the parties given the new issues -- the fire -- is being worked on. Once the new language is agreed upon and accepted, the city will be able to continue negotiations to purchase the property and begin clean up. As for the asbestos concern, Mr. Lollis said, "Until we get a contractor in there that deals with asbestos, the assumption is that it is all asbestos contaminated." In other words, better safe than sorry. ASBESTOS UPDATE: Widowed Claimant Can't Shield Claim Forms ---------------------------------------------------------- Law360 reported that a Rhode Island judge ordered a widow blaming asbestos-tainted products for her husband's death to turn over the claim forms she filed with various asbestos bankruptcy trusts, ruling that the documents were neither protected work product nor shielded by confidentiality. According to the report, Providence County Superior Court Judge P.J. Gibney granted Crane Co.'s discovery request for claim forms filed by plaintiff Rosie Sweredoski that the company says could undercut allegations regarding her late husband's asbestos exposure history. ASBESTOS UPDATE: Deadly Dust Fills Kate Valley ---------------------------------------------- Rachel Young, writing for The Press, reported that more than 32,000 tonnes of asbestos-contaminated waste has been buried deep in North Canterbury, in New Zealand. The asbestos-contaminated waste makes up about 1.5 per cent of the 2.32 million tonnes of waste disposed of at Kate Valley landfill since it opened in 2005, with most of asbestos-contaminated waste buried since the earthquakes. Most of that waste is in the form of soil, gravel or rubble that has, or may have been, exposed to asbestos during the earthquakes or demolition. If a building is identified as having a risk of asbestos then a specialist contractor, on behalf of the demolition contractor, takes the waste to Kate Valley in plastic lined and covered bins -- it is usually also "wetted down" at the time of loading to minimise airborne dust. Upon arrival at the landfill, the waste is tipped almost immediately into a trench then buried by an excavator waiting on site. The Health and Safety in Employment (Asbestos) Regulations 1998 state all asbestos waste is to be buried in a designated area within a managed refuse disposal site, and covered with at least one metre of earth. Transpacific Industries Ltd landfill manager Rangi Lord said the landfill was triple-lined to prevent anything contaminating the surrounding soil, while asbestos-related waste was buried an average of four metres deep in a specifically dug hole. "It is also surveyed so we know where it is and not to go back digging there in the future," he said. "We make no apologies for being overly cautious." Lord estimated 900 tonnes of asbestos-related waste was processed monthly. Transwaste Canterbury chairman Gill Cox said as the demolition started ramping up in central Christchurch the amount of asbestos- related waste had increased significantly. There was no harm to the environment or people once it was buried as it was only dangerous when the fibres were airborne. "The biggest thing for us, absolutely, is health and safety," Cox said "That's the number one priority over everything." Independent air quality monitoring is regularly done at the landfill, specifically checking for airborne asbestos fibre. To date, all tests have been clear. Canterbury District Health Board medical officer of health Alistair Humphrey said asbestos was not harmful once buried. "I don't think it ever loses completely it's potential . . . if it were to be dried out and dug out and cut again, then yes, it could become dangerous again," he said. Asbestos, a known carcinogen, can cause mesothelioma, a rare fatal cancer of the lining of lungs or abdominal cavity, lung cancer, asbestosis or scarring of lung tissue, and pleural plaques. The register of asbestos-related illnesses between 1992 and 2012 had about 1300 cases, 99 per cent of which were due to prolonged exposure to asbestos in the workplace, Humphrey said. ASBESTOS UPDATE: Thai Health Secretary Backs Outlawing of Fibro --------------------------------------------------------------- Bangkok Post reported that permanent secretary for Public Health Narong Sahametapat has backed a push to outlaw the use of all asbestos in Thailand. His stance has been welcomed by civil society groups which had been campaigning for an asbestos ban for two years. The Public Health Ministry, at the behest of Dr. Narong, came up with the resolution to push forward a ban on chrysotile, the only asbestos type that is yet to be banned in Thailand. "We're satisfied with the resolution after two years of trying to convince the ministry about the dangers of chrysotile," said T-Ban network coordinator Somboon Sikamdokkae. "We hope the ministry will work with us to clarify how the resolution will be put into practice." The T-Ban has met with Dr. Narong's representatives -- Department of Disease Control deputy director Varabhorn Bhumiswasdi, preventive medicine expert Somkiat Siriruttanapruk, Bureau of Occupational and Environment Diseases director Preecha Prempree -- to learn about the resolution. T-Ban was told that Dr. Naron would be in charge of the ministry's study committee on asbestos health impacts. The committee, set up in 2010, was previously chaired by health deputy permanent secretary Charnwit Tharathep. Dr. Narong surprised participants by taking the chairman seat the at a committee meeting. In Dr. Charnwit's absence, the meeting ended with Dr. Narong's agreement to undertake academic studies on the danges of asbestos. The ministry will write a summarized report to propose to the industry, commerce and foreign affairs ministries as well as the Office of Consumer Protection Board to urge them to implement measures that are in keeping with the resolution to ban chrysotile. "The resolution was unexpected," said a source from the National Health Commission Office who was at the meeting. Asbestos is a known carcinogen that is used in construction materials. In 2010, the third National Health Assembly resolved to push forward the ban of all types of asbestos in Thailand. However, chrysotile continues to be used. The World Health Organization suggests all types of asbestos are harmful to health, leading more than 50 countries to announce a total ban. The NHA resolution led to the 2011 cabinet resolution to assign the Public Health Ministry to set up an academic committee, chaired by Dr. Charnwit, to study the impacts on health of asbestos. However, academics on the panel struggled for more than two years to convince Dr. Charnwit. Some of them gave up and resigned from the committee, the source said. Dr. Charnwit has insisted to the media that there was not enough medical evidence in Thailand to support the view that asbestos poses a health danger. He has vehemently denied claims asbestos companies had lobbied him. T-Ban told the Bangkok Post that it sent a complaint letter to Dr. Narong on Jan. 10 to ask him to look into the asbestos issue. ASBESTOS UPDATE: Directors Given Suspended Sentences for Dumping ---------------------------------------------------------------- BBC News Northern Ireland reported that two company directors have received suspended sentences for dumping tonnes of hazardous asbestos waste at a former factory site in south Belfast, Ireland. Appearing at Belfast Crown Court were Samuel James Shields, 77, and Roy Millar Molyneaux, 61. They pleaded guilty to a total of 14 charges of keeping, depositing and controlling unlawful waste between August 2008 and October 2012. Both men were sentenced to six months in prison suspended for two years. The judge also imposed conditional charges against their two companies on charges of keeping, depositing and controlling unlawful waste. A prosecution barrister told the court that the pair owned former factory units at Maldon Street in the Village area off the Donegall Road, and ordered them to be demolished. Shields, of Culcavy Road, Hillsborough, County Down, was the director of Belfast-based Brackhill Ltd, which owned three-quarter of the units. Molyneaux, of Andersons Hill, Newtownards, County Down, who was a director of Ards-based firm Sloan Molyneaux Holdings Ltd, owned the remainder of the site. 'Potentially harmful' The lawyer told Judge Donna McColgan QC: "This site was not secured and trespass from the neighbouring area occurred causing further damage to the asbestos waste and spread of asbestos fibres. "The condition of the site meant that contamination of persons and vehicles trespassing on the site would have been potentially harmful to human health from inhalation and ingestion of asbestos fibres." The court heard that on 10 August, 2010, officers from the Northern Ireland Environment Agency (NIEA) visited the site and found a "significant quantity of asbestos-contaminated waste, a large exposed pile of corrugated asbestos sheeting and further asbestos debris scattered throughout the site." The prosecution said NIEA twice wrote to Shields as director of Brackhill Ltd advising him that it was an offence to store contaminated waste on the site. "On 18 October, 2010, officers from the environmental crime unit (ECU) entered the unsecured Maldon Street site where they observed a large pile of corrugated asbestos sheeting, bags containing asbestos tiles, a derelict factory building and a significant quantity of mixed demolition waste," the prosecution lawyer said. "Samples taken from the sheeting and tile were later confirmed by analysis to contain white asbestos." Inspection Judge McColgan QC was told that on 13 January, 2011, NIEA officers visited the site and observed demolition waste being burned and a digger from John Lewis Contracts demolishing the derelict building. The lawyer added: "On 9 February, 2011, officers from the Health and Safety Executive visited the site and suspended work due to the presence of asbestos materials which require a licence. "In March 2011, Belfast City Council secured a court order under the Public Health Act." "Between April and September 2011, Belfast City Council undertook to secure the site, carry out works on dangerous structures and remove high-risk areas of asbestos-containing materials to mitigate the risks to public health." The prosecution lawyer said a survey for the council revealed that around 510 sq metres of asbestos insulation board was found within a dangerous structure on the site along with a further 350 sq metres of badly-damaged asbestos curtain walling along the perimeter of the site. "Tests of the surrounding area, including a local primary school, thankfully showed no asbestos contamination," the lawyer added. As a result, he said, a total of 66 tonnes of asbestos material was removed by specialist contractors at a cost of over GBP280,000 to the council. The court heard that the council is currently pursuing Shields and Molyneaux through the magistrates' court to recover the GBP280,000. It was also revealed in court that on 20 December, 2011, the NIEA issued a second notice to Brackhill Ltd to remove the asbestos sheeting by 31 January 2012 and asbestos-contaminated demolition waste by 31 March. "On 6 March, 2012, NIEA officers inspected the site and noted that all waste previously observed remained," the court heard. The judge was told that John Lewis Contracts pleaded guilty to failing to deal properly with the situation and was given a six- month sentence suspended for two years. The prosecution lawyer added:"It is accepted that the culpability of the present defendant cannot be greater than that of John Lewis Contracts who actually carried out the work in the knowledge from previous surveys that the site contained asbestos." Defence barristers for Shields and Molyneaux asked the judge to take their guilty pleas to all charges into consideration for sentencing. A lawyer for Molyneaux said he had at one stage run a successful clothing factory on the site employing 80 people. However, he said that the company was forced to close when cheaper clothing was being produced in the Far East. "He was left with a building which was derelict. There was nothing wrong with the building until the demolition work started. "He didn't have all due diligence as his wife was very ill at the time. He should have taken more care but he didn't," added his barrister. ASBESTOS UPDATE: Guilty Plea Entered for Landlord in Fibro Case --------------------------------------------------------------- Rick Kornak, writing for Mesothelioma.com, reported that John Mills, a landlord, and his employee, Terrance Allen, both of Malone, New York, pled guilty in federal court for violating the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in January, 2012. The two men were indicted in March, 2012, for illegally removing and disposing of more than 260' of asbestos-containing pipe wrap from two locations, both of which are owned by Mills. Allen was employed as a maintenance supervisor. The asbestos was friable, meaning it could easily become airborne with a minimal amount of pressure. Mills and Allen failed to warn subordinates about the hazardous material they were handling, nor did the defendants provide protective equipment for the employees they directed to remove almost twenty bags' worth of the contaminated pipe wrap. According to the indictment, Mills falsely told a New York State Department of Labor inspector that he was following required procedure for asbestos abatement, which includes wetting the friable asbestos to help prevent it from crumbling. Additional court documents revealed that Mills attempted to hide the bags of pipe wrap from Environmental Protection Agency agents. As a result, the indictment included charges for making false statements to law enforcement officers. Mills was also charged with retaliating against a witness, due to the fact that he fired the employee who blew the whistle on the unlawful activity. Mills and Allen will be back in court on May 12 for sentencing, which can result in up to five years in prison and a $250,000 fine. Asbestos fibers are extremely dangerous, and inhaling them is the primary cause of mesothelioma, a type of lung cancer that is almost always fatal. Prior to its ban in the 1970s, asbestos was used in a wide range of industries, including construction. Asbestos continues to be discovered in basements and attics of many old structures, which is why such stringent laws regarding its safe removal and disposal exist. ASBESTOS UPDATE: Hinsdale School Finishes Clearing Fibro, Mold -------------------------------------------------------------- ABC Local reported that the final cleaning at Hinsdale Middle School, Illinois, to remove mold and asbestos, means that students could be back in the building as soon as possible. Hinsdale students would have to stop attending Clarendon Hills for classes as workers try to clean up mold and asbestos in time for them to reopen the middle school. Experts will take samples for any signs of mold before students are allowed back into the building. The mold was found earlier in January and was traced to a leaking pipe. The superintendent has been providing daily updates to parents and the district says it's confident the school will re-open to students as soon as possible. ASBESTOS UPDATE: Firefighters Battle Blaze at Rochdale Factory -------------------------------------------------------------- Pete Bainbridge, writing for Manchester Evening News, reported that fire crews from across the region have battled to control a blaze at a derelict asbestos factory. Around 35 firefighters tackled flames which gutted the former Turner Industrial Products site in Rochdale, in England. Emergency teams were first called to the building, on Rooley Moor Road, at 11.10pm on the night of Jan. 30. Six engines and a specialist aerial unit from stations in Rochdale, Oldham, Littleborough, Chadderton and Heywood were deployed as the fire took hold. Group Manager Tony Holt, who is in charge of the incident, said he had the fire under control and added: "Our specialist environmental protection officers are working with the Environment Agency and other partners to keep the environmental impact of this fire to a minimum."As a precaution we are asking everyone who lives nearby to keep their doors and windows closed, while we tackle this fire." The blaze is the second in a year at the factory. In February, 2013, six crews of around 50 firefighters after flames took hold of the building. ASBESTOS UPDATE: Minnesota Agency Fines Demolition Firm ------------------------------------------------------- Construction & Demolition Recycling reported that the Minnesota Pollution Control Agency has fined Ramsey Excavating, a Minneapolis-based demolition firm, for improper procedures to remove and contain asbestos-containing materials during the demolition of a commercial building in Minneapolis in 2013. During the site of the demolition project, MPCA staff say they observed and documented visible emissions being generated by the demolition of one part of the property. Prior to demolition, the contractor had notified the MPCA that regulated asbestos- containing materials such as pipe and boiler insulation were present on that part of the property. During the visit, MPCA staff say they observed dust leaving the site boundary and blowing into the adjoining street and nearby businesses. The contractor was spraying water on to the debris with a single fire hose, but it was inadequate in preventing dust from becoming airborne and leaving the site, according to MPCA. MPCA staff also documented during the site visit that a debris pile that included asbestos-containing materials was not being processed for disposal in a timely manner as required. In addition to paying a $10,000 penalty, Ramsey Excavating agreed to use proper containment practices to prevent release of particulate matter and to manage asbestos-containing materials and debris in a timely manner on future demolition jobs. ASBESTOS UPDATE: US Insulation Product Center of Costliest Scandal ------------------------------------------------------------------ David Ellery, writing for The Canberra Times, reported that thousands of Australians are believed to have been exposed to an American insulation product at the centre of the world's costliest asbestos scandal. Zonolite, an American-mined vermiculite tainted with a deadly form of asbestos known as tremolite and linked to hundreds of deaths in the United States, was sold in Australia for more than 50 years. Monaro Mall, 1973. An estimated 824 cubic metres of the product was painstakingly scraped from the underside of the roof of the Canberra Centre in 1988. It was also used in home insulation and as a fire-resistant coating on major building projects. Experts had identified the presence of asbestos in the vermiculite anti-condensation coating during the renovation and expansion program that rebranded the former Monaro Mall. Regular testing over the past 25 years has found no further evidence of contamination at the site. While the Canberra Centre material was disposed of in strict accordance with anti-asbestos laws that had come into effect four years earlier, the inspector, John Robson, did not make the connection with Zonolite at the time. It continued to be mined and processed at Libby, Montana, until 1990. Asbestos activists now refer to the mountain community of 12,000, where hundreds of people have died from asbestosis, mesothelioma and malignant lung tumours and thousands more are critically ill, as "the American Chernobyl". W.R. Grace, the owner of Libby's Zonolite mine since 1963, is one of the companies whose activities partly inspired the 1998 John Travolta film, A Civil Action. This was the story of an allegedly cancer-causing water contamination in Massachusetts in the 1980s. Grace is about to sign off on two trust funds totalling more than $US4 billion ($4.6 billion) to cover future Zonolite-related compensation claims. This is more than twice the amount James Hardie has set aside for victims of its asbestos contamination. The company has apparently taken no steps to make Australians aware of possible ill-effects from its products and has yet to provide details, despite repeated requests, for information on this, the amount of Zonolite shipped to Australia since the 1920s and where it was processed. Grace says it is impossible for locals to take action against it through Australian courts even though the business has major operations in almost every state. "The US court-issued injunctions (which are effective worldwide) require all claims based on asbestos exposure from Grace products or operations to be submitted to one of the trusts," Rich Badmington, vice-president, global communications, said. W.R. Grace was under Chapter 11 bankruptcy protection, the same legal shield invoked by the US car makers at the height of the global financial crisis, since 2001. It emerged from bankruptcy protection following the settlement of the final appeal to its multibillion-dollar reorganization plan. The company's share price rose from $75 in April 2013 to more than $95 just before Christmas. John Robson, meanwhile, explains why Zonolite could not be identified as the asbestos culprit at the Canberra Centre a quarter of a century ago. "As the products [used in coatings such as the one at the Canberra Centre] are generally not branded and were removed in 1988, the specific manufacturer is not identifiable," Mr Robson, now the manager of Robson Environmental, says. "We were aware the vermiculite [sprayed under the roofing sheets of what had until then been known as the Monaro Mall] contained asbestos." Fairfax Media was only able to make the connection because of a full page advertisement extolling Zonolite's virtues in The Canberra Times on March 4, 1963. It was part of an advertising feature marking the opening of the Monaro Mall. An accompanying article features a picture of a worker, apparently wearing no protective mask or clothing, applying the coating in the roof cavity using a long handled spray boom. Brian McLeod, an occupational health and safety expert who has worked with Unions ACT, said he is aware of former Monaro Mall construction workers who later died of asbestos-related illnesses. "There were at least two or three," Mr McLeod said. It was the first time Zonolite's "Spra-Insulation" had been used in Australia and the distributors, Neuchatel Asphalte, were keen to drum up more business. The year 1963 was not the first time tremolite-contaminated Zonolite products had been marketed in Canberra or elsewhere in Australia. They had been available for decades. A Zonolite-derived loose fill insulation, branded as UniFil, was sold as a "do-it-yourself product" here and elsewhere from the 1930s. Canberra's notorious "Mr Fluffy", Dirk Jansen of Kingston, may also have used a Zonolite product as loose fill insulation in the 1960s and 1970s. He almost certainly supplied and applied Zonolite as part of his vermiculite-coating sideline over the same period. While vermiculite on its own is a safe substance, the Libby product -- which is contaminated with tremolite -- is not. Libby supplied an estimated 80 per cent of the world's tremolite needs in the 20th century. It must be stressed that while the Canberra Centre is the inadvertent canary that has drawn attention to the ticking tremolite time bomb, there is no reason to believe any risk to the public remains following 1988's clean-up. "There is no accessible Zonolite within the roof cavity . . . and a small amount of inaccessible Zonolite remains safely sealed and encapsulated in steel within a restricted, access-controlled plant room in line with strict legislative regulations," Canberra Centre senior centre manager Karen Noad said. "Any death or illness relating to former work practices is deeply regrettable and our compassion and sincere sympathies go to the families of the workers." ASBESTOS UPDATE: Action Remanded After Bankrupt Defendant Removed ----------------------------------------------------------------- HarrisMartin Publishing reported that a West Virginia federal court has remanded an asbestos action, after the plaintiffs opted to voluntarily dismiss a defendant who recently filed for Chapter 11 bankruptcy. In the Jan. 28 order, the U.S. District Court for the Western District of West Virginia noted that none of the other defendants opposed the plaintiffs' motion to remand the proceedings, which have been ongoing in state court for three years. John Edward and Gloria Davis asserted the claims, contending that John Davis was injured after years of asbestos exposure. ASBESTOS UPDATE: Former Turner Brothers Site Poses Health Risk -------------------------------------------------------------- Rochdale Online reported that the fire at the former Turner Brothers Asbestos site, in Rochdale, England, has brought concerns regarding site security, and the potential for serious risk to health, to the fore once more. Jason Addy of the Save Spodden Valley campaign says the TBA Working Party has been repeatedly raising these issues, together with local people and the SSV campaign. Ten years on, he says "local people have had the patience of Job". The site was once the largest asbestos factory in the world and is acknowledged to be contaminated with asbestos. The risk to health from asbestos has been well documented for decades; inhaling airborne asbestos fibres can lead to mesothelioma, an asbestos related cancer with a gestation period of anything between 10 and 50 years. SSV has fought relentlessly to stop development of the site without extensive remediation work first being carried out to make the site safe for future generations. SSV spokesman Jason Addy has raised the issue of security many times, he says it has been suggested that "nothing can be done". In an email, prior to the fire, to the Community Safety Unit at Rochdale Council Mr Addy says he was told that officers have been advised not to enter premises due to contamination risks. He goes on to say: "In addition to the foreseeable health risks trespassers face there is the additional risk to anyone that these people come into contact with -- if contaminated with respirable asbestos fibre. For the avoidance of any doubt there needs not be visible accumulated dust in order for a causative event for asbestos cancer to occur. The sad truth is that if exposure occurs there is no test to confirm it. There is nothing more to do than wait. For mesothelioma the usual range for the disease presenting as cancer is between 10 and 50 years, so if these incidents are not recorded and health monitored then any such outcome may not be properly sourced. "We are currently seeing an increase in mesothelioma attributed to historic non-occupational exposure. Recent events caused by trespassers on the site do create a foreseeable risk." For its part, the council has said that as the security for the site is arranged through the owner the council will endeavour to contact the owner and put questions asked by the TBA Working Party and SSV to them and get the answers to the questioners "in due course". It is understood there is a Incident Plan for the site and the expectation of the Working Party is that acts of trespass and vandalism should be dealt with under this procedure, however, the council has said that such acts "would not necessarily instigate the implementation of the Incident Response Plan, as the plan is designed to respond to a major emergency requiring multi agency intervention to prevent effects on the community". Mr Addy says: "For the sake of the trespassers and anyone who may come into close contact with them, or any respirable asbestos fibre released on this site, it is vital that such activity is stopped and that past events are recorded properly. "There comes a time when a series of smaller incidents accumulate into a larger, ongoing issue that must be addressed. In my opinion, the onus is on the owner of the site and best endeavours must be made by those with statutory duties for this site to ensure that all reasonable measures are taken by the owner to mitigate potential environmental and health risks. "Local people have been incredibly patient. Surely the time has come to act." ASBESTOS UPDATE: Fibro-Hit Heanor Memorial Hospital To Be Replaced ------------------------------------------------------------------ Caroline Jones, writing for Derby Telegraph, reported that a new GBP1.6 million building could replace an asbestos-hit community hospital, hundreds of people were told at a meeting. It was one of several options put forward for Heanor Memorial Hospital, along with refurbishing the 89-year-old building at a cost of GBP850,000. The hospital has been closed to patients since last year after asbestos was discovered in a boiler room during a routine inspection by staff in September. It means clinics and services have been moved temporarily to Ilkeston Community Hospital. As a result, bosses at the Southern Derbyshire Clinical Commissioning Group called a meeting to discuss the "best way forward" since the hospital's closure. William Jones, director of operations at Derbyshire Community Health Services NHS Trust, which runs the hospital, told the meeting: "If we spent GBP850,000 refurbishing the building, that is not going to solve all the problems. "I don't think it would take much to work out that it would be best to seek a new building at GBP1.6 million than invest in a building which is never going to be anything other than very old." More than 300 people attended the meeting and, as a result, it had to be moved from Heanor Town Hall to the nearby and more spacious St Lawrence's Church. After the meeting, Andy Layzell, chief officer of NHS Southern Derbyshire, said: "It was important for us to make four commitments during the meeting. "These were to reassure people that health services will be provided locally and an example of that is our efforts to try to move the blood clinic back there. "Secondly, if we demolish the hospital, there will be another NHS building put in its place on the site. "We will be honest about what's happening and we will have another meeting within three months to discuss progress." Mr Layzell said nobody "underestimated the commitment of the people of Heanor to that hospital". He said once proposals were made, a three-month formal consultation period would be held. ASBESTOS UPDATE: EPA Orders Company to Stop Removing Fibro ---------------------------------------------------------- The U.S. Environmental Protection Agency has ordered Olivet Management LLC to stop all work that could disturb asbestos at its facility, The Olivet Center in Dover, New York. Buildings at the former Harlem Valley Psychiatric Center are being renovated for future use as a research institution and information technology hub by Olivet University. Olivet Management did not notify the EPA about the asbestos work and did not handle or dispose of asbestos- containing materials properly during the renovations, as required by law. Asbestos was once used in insulation and other building materials. The inhalation of asbestos fibers can lead to cancer and asbestosis, a serious respiratory disease. The removal of asbestos-containing materials during demolition requires strict adherence to procedures outlined in the Clean Air Act to protect public health. Federal regulations require property owners or operators to notify the EPA before the demolition or renovation of buildings that could contain a certain amount of asbestos. Demolition and renovation work involving asbestos must be done carefully. Before demolition and construction activities can begin, inspections must be conducted to identify the presence of asbestos and materials that may pose a threat to the health of workers or the public must be removed. Materials containing asbestos must be wet down until they are collected and disposed of properly to prevent fibers and dust from becoming airborne during renovations and demolitions. Asbestos- containing materials must be disposed of at facilities licensed to receive the waste. On November 4 and 5, 2013, EPA inspectors, in coordination with inspectors from the New York State Department of Labor and the United States Department of Labor, Occupational Safety and Health Administration, inspected the site after being refused access three days earlier. The inspectors examined six buildings and the surrounding areas, sampled materials appearing to contain asbestos and observed numerous potential violations of the asbestos requirements. Many of the buildings contained significant amounts of asbestos. The EPA legal order alleges that Olivet Management violated the federal Clean Air Act asbestos regulations by failing to provide adequate notice to EPA of construction projects involving asbestos, adequately wet all regulated asbestos-containing material that had been removed or stripped from the site and ensure that all of these materials remained adequately wet until collected and contained in preparation for proper disposal. In addition to halting work at the site, the EPA order requires Olivet Management to prepare a comprehensive site cleanup work plan, submit the plan to EPA for review and approval to ensure it conforms with asbestos requirements and ensure that future demolition and activities at the site comply with EPA's order. The EPA's investigation is ongoing. ASBESTOS UPDATE: Family Blames School for Fibro Fears ----------------------------------------------------- Western Gazette reported that the family of a Somerton man who were left "devastated" after exposure to asbestos potentially led to his death are planning legal action. Jeremy Salter lost his battle with mesothelioma aged 58 in July last year. The rare and aggressive cancer affects the lining of the lung and is linked to asbestos. Mr Salter, who was an accountant with magazine and internet firm Future, believed he could have been exposed to the substance during his school days in the late 1960s. He claimed the only time he had been exposed to asbestos was during building work at a school in Hampshire, which he attended from 1967 to 1969. He remembered walking past an area where materials containing asbestos minerals and fibres were being used. Once completed the new buildings were then used by Mr Salter and his classmates, it is claimed. Last month, an inquest into his death recorded a verdict of accidental death, but his family have instructed lawyers to pursue a case against Hampshire County Council. Mr Salter's wife of 37 years Joan said: "As a family we have all been devastated by this terrible tragedy. I have lost my husband and the children have lost their father as a result of exposure to asbestos dust. We are all so upset at this loss and the conclusion by the coroner that Jeremy's death was accidental. "Jeremy's diagnosis came completely out of the blue. We were both working full time, enjoying family life and looking forward to future holidays and plans. Jeremy was so fit and healthy. When the doctors mentioned asbestos to Jeremy at his diagnosis, we really could not work it out as Jeremy had never worked in industries where he would have come across asbestos." Mr Salter was diagnosed with malignant mesothelioma in April 2012. He underwent three courses of chemotherapy and suffered from severe breathlessness, preventing him from driving to work. During the final months of his illness he worked from home as an accountant. But before his death he instructed mesothelioma specialist Helen Grady from Novum Law in Bath, to investigate his case. Ms Grady said she is increasingly seeing cases whereby people are contracting mesothelioma when they did not directly work with asbestos. She said it should be a reminder that there is "no known safe level" of asbestos exposure. Mrs Salter said: "Money cannot bring Jeremy back but during his lifetime he was determined to get to the bottom of who had exposed him to asbestos and how he may have contracted this dreadful disease. Getting justice for what happened to him was his last wish and also for his family to have future financial security -- he had intended to carry on providing for us for many more years to come." A spokeswoman for Hampshire County Council said she was unable to comment on individual cases. But she added: "Asbestos was widely used in the UK until 1985 when the use of products containing amphibole asbestos types were banned. The use of asbestos products within Hampshire County Council's estate was typical of the UK construction industry at the time. Like most local authorities, Hampshire has buildings which contain asbestos containing materials and we have been formally managing asbestos since 1997 before the duty to manage asbestos came into force in 2004 as part of the Control of Asbestos at Work Regulations of 2002." ASBESTOS UPDATE: Fibro Abatement Planned for Stuhr Museum --------------------------------------------------------- The Associated Press reported that a fundraising campaign to rejuvenate part of the Stuhr Museum in Grand Island, Nebraska, has raised more than $7.3 million. The money was raised as part of the Gem of the Prairie campaign, which began in September 2012 with a goal of $7 million, The Grand Island Independent reported. The money will be used to give the Stuhr Building "a much-needed renovation and infrastructure update," according to Pam Price, executive director of the Stuhr Museum Foundation. Work on will begin this month with asbestos abatement, which is scheduled to be done by mid-March. Officials also plan to demolish the building's interior and physical systems. The majority of construction is expected to be complete by May 2015, and a grand opening is planned for July 2015. Exhibits normally displayed in the Stuhr Building, which was built in 1967, will be temporarily relocated to venues throughout the community. Joe Black, the museum's executive director, said the museum was started as a way to preserve Hall County history but has evolved since it opened more than 40 years ago. "The demographics, the people and how the county works are totally different than what they were in 1967," Black told the newspaper. "The museum has reflected that and has evolved and changed so that we are an integral part of the county and the citizens' lives." The museum's mission is to preserve and portray the era of the pioneers who created the first communities in Nebraska. "When we reached our goal in late December, it was a huge weight off of our shoulders," Price said. "We are so tickled, as many doubted we could raise $7 million, and we blew past it." ASBESTOS UPDATE: Deadly Dust Continues to Plague Pakistan --------------------------------------------------------- The News reported that seven years ago, Fareed Ahmed died of tongue cancer at the age of 55. He was working as an engineer at a building and construction factory. Doctors said his death was due to asbestos poisoning. Asbestos, a naturally occurring mineral used extensively in construction, may cause cancer when inhaled. It has been banned in 52 countries of the world, but Pakistan remains an exception. Since 2007 when Fareed died, his brother Haroon Ahmed has been campaigning to ban this product in Pakistan. He filed a petition in the Sindh High Court and the case now awaits a decision by the Supreme Court. Findings by a commission, which worked under the Supreme Court directives, revealed that due to asbestos exposure workers at the factory where Fareed worked were suffering from severe lung and chest infections, according to a report published earlier in The News. As part of an ongoing campaign to highlight the dangers of this cancerous mineral, the first event kicked off through a conference, where renowned doctors, educationists, politicians and lawyers of the country urged the need to legislate to ban asbestos. There are six types of fibres being used in Pakistan. One such fibre is chrysotile, a type of asbestos, which is 400 times thinner than the human hair and is not visible to the naked eye, said Syed Haroon Ahmed, the president of Syed Fareed Ahmed Memorial Mesothelioma General Hospital Foundation, which was established to raise awareness about asbestos and form a community against the use of asbestos in Pakistan and worldwide. International organisations, including International Programme of Chemical Safety and International Labour Organisation, have declared all forms of asbestos cancerous. "But despite this nothing has been done to ban it by the Pakistani government," he said. Hundreds of workers exposed to asbestos in Gadap Town are suffering from lung diseases. So are the workers at the Gadani ship-breaking yard. According to the World Health Organisation, 150,000 people die across the world every year due to the asbestos-related diseases. Dr Huma Tabassum, an occupational health and safety expert, shared that asbestos was used extensively in construction of roofs, water pipes and sanitation but it could cause lung cancer, mesothelioma, asbestosis and diffuse pleural thickening. Muhammed Yaseen Azad, a former president of Supreme Court Bar Council, said: "We need to value human lives. I do not care if a factory employing hundreds closes down if it is responsible for taking even one life." He promised that he would look into the pending cases related to asbestos poisoning in the Supreme Court and also requested the chief justice to take up the issue. "For any society to develop, health and education should be the priorities. Unfortunately in Pakistan, the two are the lowest ranking issues in the budget." Karachi Commissioner Shoaib Siddiqui said: "The city government is trying to promote all campaigns which promote a good living. While working with Karachi Water and Sewerage Board as an employee in 2005, we also detected traces of asbestos in drinking water as the cancerous material was used in construction of pipelines," he claimed. Justice Khwaja Naveed of the Sindh High Court was of the view that there should be laws to ban hazardous substances. Meanwhile, an alternative to the material should also be found and builders should be informed about it. Muttahida Qaumi Movement's Khalid Maqbool said he came to know about the hazards of asbestos in his second year of medicine. "We as students tried to spread awareness about it on our campus. It has been 30 years and this is the first seminar I am attending about asbestos." Ishtiaq Virik, a representative of Building and Woodwork International, an international labour rights organisation, said that 1.5 million construction workers around the world were ill because of the use of asbestos. ASBESTOS UPDATE: Binghamton Schools Spend $80K on Additional Probe ------------------------------------------------------------------ Meghin Delaney, writing for Press Connects, reported that after five months and a special request from the school board, additional asbestos inspections have been completed in buildings owned and operated by the Binghamton City School District. The inspections, recently completed by licensed inspectors, cost the district $80,000 and identified issues in six buildings. Officials said they hope this will prevent future asbestos problems. Inspections began late-summer after unsafe levels of airborne asbestos were discovered Aug. 7, 2013, in Calvin Coolidge Elementary School. The Robinson Street school was hosting a summer enrichment program, and more than 200 students and staff had been in the building at the time. Coolidge was shut down until early December 2013 while the building was cleaned and deemed safe. For the first half of the school year, students were split into four different buildings. The updated cost for Coolidge remediation is approximately $4.7 million. Although the final figures are not in, officials are approximating $330,000 will not be covered by building aid and will need to be funded through district savings accounts. "Certainly it was a very costly project," said Karry Mullins, assistant superintendent for administration. "We want to make sure our buildings are safe and healthy." In an effort to ensure the issue was not widespread, the school board asked district officials in late August 2013 to conduct thorough, visuals checks of areas of noted asbestos in the rest of the district buildings. In New York, school districts are required to keep lists of areas in each building where asbestos has been identified. A visual inspection is done on these areas every six months and a more thorough inspection, called a triennial, every three years. The next triennial inspection for the district buildings will take place in 2016. The inspections requested by the Binghamton school board that occurred over the past five months were in addition to what is required by New York state. Areas in five buildings were identified to have small issues: Benjamin Franklin Elementary School, Woodrow Wilson Elementary School, West Middle School, East Middle School and Binghamton High School. After five months and a special request from the school board, additional asbestos inspections have been completed in buildings owned and operated by the Binghamton City School District. The inspections, recently completed by licensed inspectors, cost the district $80,000 and identified issues in six buildings. Officials said they hope this will prevent future asbestos problems. Inspections began late-summer after unsafe levels of airborne asbestos were discovered Aug. 7, 2013, in Calvin Coolidge Elementary School. The Robinson Street school was hosting a summer enrichment program, and more than 200 students and staff had been in the building at the time. Coolidge was shut down until early December 2013 while the building was cleaned and deemed safe. For the first half of the school year, students were split into four different buildings. The updated cost for Coolidge remediation is approximately $4.7 million. Although the final figures are not in, officials are approximating $330,000 will not be covered by building aid and will need to be funded through district savings accounts. "Certainly it was a very costly project," said Karry Mullins, assistant superintendent for administration. "We want to make sure our buildings are safe and healthy." In an effort to ensure the issue was not widespread, the school board asked district officials in late August 2013 to conduct thorough, visuals checks of areas of noted asbestos in the rest of the district buildings. In New York, school districts are required to keep lists of areas in each building where asbestos has been identified. A visual inspection is done on these areas every six months and a more thorough inspection, called a triennial, every three years. The next triennial inspection for the district buildings will take place in 2016. The inspections requested by the Binghamton school board that occurred over the past five months were in addition to what is required by New York state. Areas in five buildings were identified to have small issues: Benjamin Franklin Elementary School, Woodrow Wilson Elementary School, West Middle School, East Middle School and Binghamton High School. ASBESTOS UPDATE: Fibro Fears Halt Work on Eyesore Cullompton Site ----------------------------------------------------------------- Mid Devon Gazette reported that work to demolish a dangerous building in Cullompton High Street has stopped because potentially dangerous asbestos has been discovered in it. Contractors attempted to make the former Harlequin Valet launderette in Cullompton High Street safe after the derelict building, which was badly damaged in a 2010 fire, partially collapsed onto the pavement below. But they could only work on the front section of the building because roof tiles to the back contain asbestos. Some roof tiles which fell onto the street below also contain the dangerous mineral. These have now been removed. It is thought the tiles were made with white asbestos, one of the least dangerous types, but it is likely specialist contractors will have to be brought in to take them away. Asbestos fibres, which are released when building materials containing them are damaged, can cause potentially fatal lung diseases, even in minute quantities. Some council members in the town fear work to demolish the site could drag on for months or years. ASBESTOS UPDATE: HK Solons Amend Air Pollution Control Ordinance ---------------------------------------------------------------- In the legal update titled, " Air Pollution Control (Amendment) (No. 2) Bill 2013: Ban on the Use, Supply, Import and Transhipment of Asbestos or Asbestos Containing Material" dated 3 October 2013, Mayer Brown advised that the said Bill was published in the Gazette on 27 September 2013 and would be introduced into the Legislative Council in October 2013. The Bill sought to amend the Air Pollution Control Ordinance (Cap. 311) by prohibiting (unless exempted) the use, supply, import and transhipment of all types of asbestos or asbestos-containing material, and to amend the Factories and Industrial Undertakings (Asbestos) Regulation by prohibiting the use of all types of asbestos in industrial undertakings. The Air Pollution Control (Amendment) (No. 2) Ordinance 2013 (Amendment Ordinance) was passed by the Legislative Council on 22 January 2014 and will come into operation on 4 April 2014. It is understood that the Environment Protection Department (EPD) will work with the Pneumoconiosis Compensation Fund Board to publish a booklet about the most common sources of asbestos- containing material. The EPD has also uploaded on its website a list of machinery/products (for e.g., trucks/vehicles, generators, pumps, lift equipment/elevators etc.) which may contain asbestos, so as to enhance the asbestos awareness and knowledge of those persons who are involved in construction activities at industrial undertakings. Components of the machinery/products which may contain asbestos or asbestos-containing material include brake pads, brake lining, clutches, valve rings and valve stem packing which are used in trucks/vehicles, roofing and tiling materials and gaskets which are used in generators, and seals and gaskets which are used in pumps. Further, the EPD has compiled a list of suppliers of asbestos product substitutes to (i) facilitate the smooth switch from the use of asbestos products to safer and more reliable substitutes, and (ii) provide the industries and general public with useful information about asbestos substitutes, so that users can search for suitable suppliers supplying asbestos substitutes. Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions. ASBESTOS UPDATE: Mum Asks Why Council Took Long to Rid Fibro ------------------------------------------------------------ Emma Streatfield, writing for Southern Daily Echo, reported that a mother-of-four is asking council bosses why it took so long to deal with asbestos dumped near a Hampshire beach. Despite frantic calls to the authorities after she spotted the debris close to the beach at Hamble, Debbie Gordon. 40, saw nothing being done to remove it. It was removed about a week later. The Hamble resident said that she felt the issue had not been treated seriously when she alerted Eastleigh Borough Council, though it has since revealed it is not responsible for the land in question as it is owned by Hamble Parish Council. It said it had passed Mrs Gordon's concerns on. Mrs Gordon first noticed what she believed to be asbestos when walking with her husband at Westfield Common, just up from the beach at Hamble, next to the public walkway, on January 22, though her children saw it two days before. Mrs Gordon said it was broken and there was dust, which made her more concerned. She rang the out-of-hours service for Eastleigh Borough Council that evening but Mrs Gordon claims the operator made light of the situation. She said she had, however, been told that the council would send someone out in the morning when they had protective clothing. She rang other authorities, including the police, for help and advice, but this had no effect. Mrs Gordon then found another larger patch of four or five sheets next to the car park. When fibres from asbestos are inhaled they can cause serious diseases, which may affect people later on in life. Mrs Gordon said that the asbestos was near public walkways and in areas where children play and teenagers hang around and she was concerned about the long-term effects. "They're prepared to let my children, teenagers and the public walk past it," she said. An Eastleigh Borough Council spokesperson said it had received a call about the material, which was on land owned by Hamble Parish Council. He said: "The call was logged and an email sent informing them of the issue." Environmental Health officers from the council did go down independently and confirmed it was asbestos cement sheeting and of minimal risk. A Hamble Parish Council spokesman said Eastleigh Borough Council had arranged on their behalf for a fully trained and licensed asbestos contractor to remove the dumped materials from Westfield Common and dispose of them properly. He said: "Fly-tipping is a distressing but everyday fact of life for local authorities such as ourselves. "We deal with over 40 incidents each year at Westfield Common alone. "The entire cost of the clean-up in this instance will be borne by Hamble-le-Rice Parish Council and therefore the Hamble-le-Rice council taxpayer will ultimately be out of pocket over this issue." A spokesman for Hampshire police confirmed they had received a call about possible asbestos. "Full details were taken and passed to the council to deal with as this was assessed not to be a police matter and there were no immediate health and safety concerns," he said. ASBESTOS UPDATE: Thorne Daughter Raises Awareness of Deadly Dust ---------------------------------------------------------------- Thorne and District Gazette reported that a Thorne woman who lost her dad to an asbestos related illness is raising awareness of the silent killer disease. Dennis Digby, aged 68, was diagnosed with mesothelioma in 2011, which he is believed to have contracted while working for over 30 years in power stations. Having had no previous ailments, Dennis passed away in June 2013. His daughter, Amanda Miller, aged 38, of Walnut Road said: "My dad had mesothelioma which is a very aggressive form of cancer. "It is called a silent killer. It just takes one asbestos fibre to attach to the lining of the lung. It can incubate for 30 years until it comes to a head and then it's too late. "My dad was found to have fluid on his lung, but he had been fine up until then. "Anybody that has worked with asbestos pre-1970 can be susceptible to it. They believe it is up and coming now, and that cases will reach their peak in 2020." Amanda decided to start raising awareness of the disease by collecting funds, and joined forces with family members of other sufferers. As well as taking part in a number of sponsored runs, two charity balls have been held, raising over oe10,000 in total. A third ball, at Drax Sports and Social Club, is now being planned for later this spring. "I've been fundraising ever since he was diagnosed," said Amanda. "It's helped me to cope. "We want to raise awareness of the condition because it's so bad, and raise vital funds to train special nurses in mesothelioma, to put the nurses into hospitals to help patients." Anyone that can offer any form of support should email forgetmenot12@btinternet.com or call Amanda on 07899 761 458. Amanda added: "I'm hoping my dad is proud of what I am doing. I did a lot of my fundraising while he was here, so this year will be a bit of a challenge because he's not here." A government bill seeks to start a scheme that will pay compensation for victims of mesothelioma. In the UK 2,600 people a year are diagnosed, and around 300 to 400 a year are unable to get compensation because companies where they used to work have either gone bust or their insurers cannot be traced. The 2014 charity ball will take place at Drax Sports and Social Club on Saturday, April 5, from 7pm. The event will comprise a three course dinner, champagne, a raffle, auction and a band. The previous two balls have raised oe4,500 and oe7,500 respectively, and the organisers are looking to try to top that total. All proceeds to go to Mesothelioma UK. Should anyone want to provide prizes or sponsorship or purchase tickets they can contact Amanda on 07899 761 458 or Fran on 07583 971 143. Among those organising the event is solicitor and friend Howard Bonnett of Corries Solicitors Limited, who specialise in asbestos disease claims. ASBESTOS UPDATE: Beckenham High Street Facing Fibro Test -------------------------------------------------------- News Shopper reported that asbestos testing could be coming to Beckenham High Street, in the United Kingdom, after a planning application was lodged to change a building's usage. Bromley Council has confirmed a submission has been received for a property on the road and is set for assessment. A resident wrote in to the News Shopper with concerns that an asbestos testing plant may be constructed in a built-up and densely populated area. The council said nothing has been decided and stated: "We can confirm that we have received a planning application for the refurbishment and extension of a property 182a High Street, Beckenham which includes a change of use. "We will assess this application carefully and consider the planning merits before making our decision in the usual way. "We note that the proposed business activity is one that would be monitored and enforced by the Health and Safety Executive (HSE), which would ensure that health and safety regulations and guidelines are followed." A council spokeswoman added the application was not for a plant that's sole setup was to work with the product, but there would be some testing on site. She added it's currently being considered and a committee is preparing to discuss the plans later this month. ASBESTOS UPDATE: Second Hand Fibro Exposure Verdict $27MM --------------------------------------------------------- Shezad Malik, writing for The Legal Examiner, reported that on Ohio jury has found for a man who developed mesothelioma from secondary exposure to asbestos fibers, which were carried home on his father's clothes when he was a child. The jury awarded $27.5 million in damages. John Panza, 40, and his wife, Jane, filed a mesothelioma lawsuit against Kelsy-Hayes Co., which used to be known as National Friction Products. Panza's father, John Sr., brought home asbestos dust on his work clothes during 31 years of working at the Eaton Airflex brake company. The asbestos exposure came from brake pads manufactured by National Friction Products. John Panza, Sr., died of lung cancer in 1994, and his son was diagnosed with mesothelioma in 2012. Mesothelioma and Asbestos Link Mesothelioma is a cancer, which is only known to be caused by exposure to asbestos and inhaling asbestos fibers. It is a fatal disease that is often at a very advanced stage when a diagnosis is made, resulting in a very short life-expectancy. In Cuyahoga County Common Pleas Court, a jury returned a verdict of $27.5 million in damages, including $515,000 in economic damages and $12 million in non-economic damages awarded to John Panza, as well as $15 million awarded to his wife for loss of consortium. The verdict is believed to be the largest of its kind in Ohio history. While 40% of the liability in this recent case was placed on Eaton Airflex, which has immunity under Ohio law, Kelsey-Hayes is fully responsible for the entire damages. The company is expected to appeal. Mesothelioma litigation is the longest-running mass tort in U.S. history, with more than 600,000 people having filed a lawsuit against more than 6,000 defendants after being diagnosed with cancer that was caused by inhaling asbestos fibers. Recently there have been a number of mesothelioma lawsuits brought following second hand exposure, with wives, children and other family members alleging they developed the disease after breathing asbestos fibers brought home in the hair or on the clothing of individuals who worked directly with the material. ASBESTOS UPDATE: Washington County, Ore. OKs Abatement Work Deal ---------------------------------------------------------------- CJ Lovelace, writing for Herald-Mail Media, reported that making way for several projects, the Board of Commissioners in Washington County, Oregon approved a $111,700 contract to abate asbestos and demolish a handful of old buildings. The commissioners on Jan. 28 voted 5-0 to approve the low bid from contractor Allegany Wrecking and Salvage of Hagerstown in support of the county's projects, which include the road-widening improvements along Robinwood Drive and Eastern Boulevard north. Allegany Wrecking and Salvage came in nearly $118,000 less than the second-lowest bidder, Service All Inc. of Mitchellville, Md., according to county documents. Commissioner William B. McKinley asked how the winning bid could be so much less than the other five received, especially from a firm that hasn't done work for the county before. Robert J. Slocum, director of engineering and construction management, said the project manager for the contract has checked Allegany's references, and the company has a reputation for bidding lower than its competitors. County officials also found that the subcontractors used by Allegany fall in line with the low bid and they have a good record of completing work under their original bid, Slocum said. The contract includes asbestos abatement and demolition of three properties near the intersection of Security Road and Eastern Boulevard. Other properties to be brought down include one on Robinwood Drive to make way for further widening work and another on Frederick Street to allow for the county to build Southern Boulevard, also known as the Funkstown bypass. The contract also calls for asbestos abatement to the second floor of 120 W. Washington St., which the county owns and plans to renovate as part of a larger county administration building project in 2015. In all, the six properties named as part of the contract include: * 120 W. Washington St., second floor -- Asbestos abatement prior to interior renovation * 11325 Robinwood Drive -- Asbestos abatement, complete demolition of house in conjunction with ongoing widening project * 1051, 1114 and 1116 Security Road -- Asbestos abatement, complete demolition of three houses in advance of planned Eastern Boulevard improvements * 1240 Frederick St. -- Asbestos abatement, complete demolition of house in advance of planned Southern Boulevard project Slocum said the houses in question have been vacant for some time and are within the county's right of way on each of the three road projects. "This is the onset of several projects . . . of improvements to be made," he told the commissioners. The county building-renovation project drew some comments and questions from the commissioners, who asked about the process and when the project would get under way. Slocum said some work has begun at 120 W. Washington St., which is connected to the county's 100 W. Washington St. building, where the commissioners meet. The county building renovation, expected to begin in the late spring or early summer of 2015, will relocate the commissioners' meeting room and offices to a larger and currently unused first- floor area, according to county officials. The move will increase accessibility to the public and make use of vacant space in downtown Hagerstown, County Administrator Gregory B. Murray said. Slocum said the county will be receiving design bids for the project this month, and it will likely take about six months to finalize designs before construction can begin next year. Several county departments will be relocated as part of the building renovation, including housing the backup 911 center and the county's Planning and Zoning Department at 120 W. Washington St. Bid documents provide 200 calendar days to complete the demolition and asbestos-abatement projects, although each job will be handled separately, according to county documents. Work under the approved contract is expected to begin around Feb. 10, with late August the target for completion of all six jobs. The county has budgeted about $131,000 for the work within its Capital Improvement Plan, including $10,000 for inspection and testing costs, plus another $10,000 for construction contingencies. ASBESTOS UPDATE: Fibro Still Poses Serious Risk to Workers ---------------------------------------------------------- Tom Rabe, writing for Stirling Times, reported that asbestos still poses a serious risk to workers and their families with the mineral still inside established buildings throughout Perth, Australia's central business district, according to the Asbestos Diseases Society. Society president Robert Vojakovic stressed the importance of public awareness of the deadly mineral at a meeting of former Ceiloyd workers in Osborne Park. The Ceiloyd workers sprayed asbestos in a liquid form through many of Perth's largest and most used buildings until the mid-1970s. "The remaining few asbestos sprayers feel that it is their obligation to bring attention to the fact that some commercial and other buildings in the Perth area may still have some asbestos present which poses a current risk to maintenance workers, renovators and indeed building tenants of exposure to deadly asbestos fibres," Mr Vojakovic said. Mr Vojakovic said without the workers' accounts of the private developments sprayed with asbestos, no one would know which buildings were exposed. He said although many of the government buildings that were sprayed and lagged with asbestos had either been remediated or demolished, many of the commercial buildings had not due to lack of transparency and records. "It was a building by-law to lag buildings with asbestos for fireproofing, however any register may not cover all buildings that were sprayed with asbestos lagging and the information that can be provided by the Ceiloyd workers about the individual buildings and factories they applied asbestos lagging to is invaluable and in the public interest," he said. Mr Vojakovic said the company Ceiloyd ceased operating in 1975 and as a result much of the information was lost, making the survivor's information critical to future safety. Phil Toia, who worked for Ceiloyd, said more needed to be done to ensure future generations were not affected by asbestos. "Until the government takes out all the asbestos fences and roofs in our communities, our children will continue to be exposed to asbestos," he said. Mr Vojakovic said more funding needed to be directed towards medical research because asbestos exposure would continue to be a real risk for many years. "Until we have adequate funding for medical research for a cure for asbestos-related diseases, workers like these brave men will continue to die simply because they went to work," he said. "We need to do everything possible to prevent a new generation of workers from joining this shameful asbestos-related death toll." Mr Vojakovic said the death toll among asbestos sprayers and laggers was staggering, with most succumbing to mesothelioma, lung cancer, and asbestosis. ASBESTOS UPDATE: Health Program for Fibro Victims Expanded ---------------------------------------------------------- The Associated Press reported that a pilot program that provides medical and other services to victims of asbestos exposure has been expanded to include 18 additional counties in Montana, Idaho and Washington. The program offers home assistance, mileage reimbursements for medical travel and other benefits to people with asbestos-related diseases that have been linked to a closed W.R. Grace, Inc. vermiculite mine in Libby. The program had been open only to people in Lincoln and Flathead counties when it was established under the Affordable Care Act. U.S. Sen. Max Baucus announced that it will be expanded to include five more counties in northwestern Montana, seven in Idaho and six in Washington. Baucus says it will help people who moved away from Libby get the health care they need. ASBESTOS UPDATE: Demolition at Orpington Site Sparks Fibro Fears ---------------------------------------------------------------- Joshua Barrie, writing for News Shopper, reported that complaints have been made to the Health and Safety Executive (HSE) with fears of asbestos at an Orpington site. Demolition work has been started on a large industrial property on Cray Avenue, and a woman in a building nearby said she has big concerns for local people and those doing the job. Rachel Verghese works at TMS House directly opposite and said "it really looks like an asbestos roof", adding that if so it's not being dealt with safely. After her father died of a disease brought on by the substance two and a half years ago she said she knows a lot about the "deadly" product and added she's "is a bit scared" about the situation. The 38-year-old said: "They're knocking the life out of it. The building's really old and manky. "I don't want to get too close -- but the builders are just walking around. It's deadly. It gets you in 30 years. "It doesn't look safe. You're meant to remove asbestos carefully." She added she thinks the building used to be a CD making plant and has now been bought by car manufacturer Honda. The HSE has reported it's received complaints but can't yet confirm whether asbestos, which it says is "the single greatest cause of work-related deaths in the UK," is involved. A spokesman for the organisation said: "We are aware of complaints and we are making enquiries. "People have been raising concerns." Bromley Council said it's also been notified. ASBESTOS UPDATE: Fibro Dumping at Lisbane Landfill Probed --------------------------------------------------------- Adrian Rutherford, writing for Belfast Telegraph, reported that potentially deadly asbestos waste was being dumped at a landfill site in Northern Ireland as recently as last year, it has been revealed. Lisbane Landfill in Co Armagh only ceased accepting the waste in June 2013, according to Environment Minister Mark H Durkan. Described as a hidden killer, asbestos can lead to serious illnesses such as lung cancer and mesothelioma, and is therefore designated as hazardous waste. Disposing of hazardous waste alongside normal waste was banned from 2004 under the EU Landfill Directive 1999. After that it could only be disposed of after suitable procedures were agreed with the Northern Ireland Environment Agency. One site -- Lisbane, near Tandragee -- had accepted hazardous waste, but stopped doing so last June. The details were revealed by Mr Durkan after an Assembly question from Green Party MLA Steven Agnew. He requested a breakdown of sites where hazardous waste was dumped after it emerged that radioactive waste had been dumped at sites in Belfast and Londonderry in the 1980s. The "controlled burials" emerged in papers released under the 30- year rule by the Public Record Office last month, and are being investigated by the DoE. Mr Agnew said hazardous waste remained a threat to human health and the environment for many years. "Burying it simply means 'out of sight, out of mind' -- but its potential to contaminate land or even the water table lingers for decades," he told the Belfast Telegraph. "The issue of asbestos, once deemed to be safe enough to put into people's homes, highlights how we must exercise great caution going forward in what chemicals and hazardous substances we expose both humans and the environment to. "We need to make sure that best practice guidelines for the disposal of asbestos are followed rigorously and these areas are carefully monitored by the DoE for any threat of future contamination." Responding to Mr Agnew's question, Mr Durkan said premises that accumulate and dispose of radioactive waste must have a certificate of authorisation issued under the Radioactive Substances Act 1993. One of the routes for the disposal of low level solid radioactive waste was via controlled burial in landfill sites. This took place at two locations -- Culmore Point in Derry and Duncrue Street in Belfast. Asbestos is a naturally occurring fibrous substance used extensively in the UK building industry between the 1950s and mid- 1980s. If asbestos isn't damaged then there is little risk to health. But once disturbed, it breaks down into fibres up to 1,200 times thinner than a human hair. When inhaled, the fibres can cause lung cancer. ASBESTOS UPDATE: Judges Should Look for Fibro Claims Fraud ---------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that the recent ruling in a North Carolina bankruptcy court in favor of a gasket manufacturer has sparked talk of abuse and manipulation in the asbestos bankruptcy trusts, but one defense attorney says these actions aren't new and should have people wondering who has jurisdiction to keep trust systems functioning effectively. Asbestos defense attorney Richard Faulk, partner with Hollingsworth LLP, explained that when Judge George Hodges of the U.S. Bankruptcy Court of the Western District of North Carolina allowed Garlock Sealing Technologies to initiate full discovery into 15 selected cases and partial discovery into hundreds more, he was meticulously doing his job and acting within his power of case management. Garlock found that plaintiffs' lawyers withheld evidence of asbestos exposure to products other than Garlock's gaskets and delayed filing claims with bankruptcy trusts until after obtaining settlements from and judgments against Garlock. "It appears certain that more extensive discovery would show more extensive abuse," Hodges said in his ruling. "But that is not necessary because the startling pattern of misrepresentation that has been shown is sufficiently persuasive. "While it is not suppression of evidence for a plaintiff to be unable to identify exposures, it is suppression of evidence for a plaintiff to be unable to identify exposure in the tort case, but then later to be able to identify it in Trust claims. It is that practice that prejudiced Garlock in the tort system." Hodges ruled on Jan. 10 that the amount sufficient to satisfy the Garlock's asbestos liability is $125 million, roughly $1 billion less than what plaintiffs' representatives felt was proper. Faulk wrote in a column posted on Washington Legal Foundation's The Legal Pulse titled "Dispelling Asbestos Litigation Rumors" that Hodges' ruling will influence asbestos litigation across the nation and described it as the "shot heard 'round the world." "Defendants in pending cases will press for full disclosure of settlements made with the bankruptcy trusts of insolvent companies -- and Congress and state legislators will continue their quest for reforms to ensure complete disclosure of settlements to preclude exaggerated recoveries against peripheral defendants," Faulk wrote in his column. Faulk explained that "losing" evidence only to have it mysteriously reappear at a more convenient time is nothing new. He adds that while bankruptcy courts have fought this issue "pretty aggressively," they've always had the resources and power available to fully deal with these problems as Hodges did. It's a shame, Faulk said, that the asbestos world had to wait for the Garlock case to come up before a court looked into discovery and evaluating expert evidence on both sides. "I think it's unfortunate that we had to wait until now for a judge to decide to ask these questions," he said. "In asbestos litigation, too often they wait and continue to wait for the legislature to do something about it," he continued. "There really is no reason for them to wait because they have the inherent power in their own jurisdiction to change things and make this system work." The legislation Faulk refers to is the Furthering Asbestos Claim Transparency Act, or the FACT Act. If passed, it would require asbestos trusts to publish claimants' names and the nature of their claims in quarterly reports. The Act passed in the House in November 2013. It now sits in the Senate, where Faulk believes it will die due to the composition of the Senate. "I would say, in this Congress, it will be very difficult to get it through, but that doesn't mean it isn't a very good idea," he said. Even if the FACT Act doesn't pass, the courts could still carry out their full judicial power and disclose select bankruptcy information that has been previously "cloaked in mythical secrecy" by establishing an order requiring information on bankruptcy filings prior to litigation, he says. "It should be a uniform rule, but it's not," Faulk said. "And once again, the courts could fix this problem. And yet we have to wait until this goes all the way up to the federal Congress to do something that the court has the power to do. It really doesn't make much sense to me." Obtaining this information would help defendants offset their settlements or judgments, but often times they have to resort to negotiating a settlement without it. "Without a meaningful way to offset insolvent companies' settlements, defendants faced a 'Hobson's choice.' They could accept inflated settlement values -- or risk judgments inflated by their inability to obtain offsets," Faulk wrote in his column. A "Hobson's choice" is when a defendant is in a position where it needs the information, doesn't have it and can't get it. But the defendant is in a trial and must make a choice on how to negotiate and move forward, regardless. "Negotiations probably would have been more fruitful if the courts had required that information to be disclosed as a matter of law and order," Faulk wrote. What it comes down to, Faulk reiterated, is how important it is for courts to begin requiring disclosures of trust information while cases are pending in order to reach fair and just conclusions. If not, then "we will just have to wait on the government to do their job" and pass the FACT Act. "After decades of litigation and scores of bankruptcies, there are many other 'viable defendants' who lie on the fringes of liability," he wrote in his column. "Surely, they should not be forced into insolvency before they are allowed to pursue evidence that is undeniably relevant to their liability. It is time for judges and elected officials to ensure disclosure of all evidence necessary to protect parties from artificially inflated settlements and judgments. Perhaps then, at least one of the myths of asbestos litigation can finally be dispelled, and this issue can finally be ruled by the fairness to which our system of justice aspires." In response to the manipulation Garlock allegedly faced during prior asbestos litigations, the company filed five lawsuits against plaintiffs' asbestos firms under seal. Faulk explained that these cases may be sealed due to federal rules requiring confidentiality when pleading fraud specifically. ASBESTOS UPDATE: Couple Sues Avocet Enterprises et al. ------------------------------------------------------ Melody Dareing, writing for The Southeast Texas Record, reported that a Texas couple is suing a number of businesses they claim contributed to an employee's lung cancer. Roy L. Jones, and his wife, Patricia, filed a lawsuit Jan. 29 in the U.S. District Court for the Southern District of Texas against Avocet Enterprises Inc., Bird Inc., Carrier Corp., Certainteed Corp., General Electric Co., Georgia-Pacific LLC, Ingersoll-Rand Co., Kelly-Moore Paint Co., Riley Power Inc., Sears Roebuck and Co., Trane U.S. Inc., Union Carbide Corp., Viacom Inc., The Goodyear Tire & Rubber Co. and Shell Chemical LP. The plaintiffs are claiming negligence and gross negligence. The suit states Roy Jones has been diagnosed with lung cancer resulting from exposure from asbestos. They allege companies created dangerous conditions, failed in safety standards and did not warn employees of the risks, the complaint states. The Joneses are seeking an amount in damages in excess of the minimal jurisdictional amounts, plus court costs and any other relief. The couple is being represented by Houston attorney James C. Ferrell. ASBESTOS UPDATE: Civic HQ Closed After Fibro Discovery ------------------------------------------------------ John A. MacInnes, writing for Linlithgow Gazette, reported that delays are set to thwart Police Scotland's plans to move from its present office in Linlithgow to a new partnership hub in County Buildings -- due to the presence of asbestos. All types of asbestos fibres are known to cause serious health hazards. A spokesman for the council in West Lothian, Scotland, said: "Preliminary investigations have confirmed the property contains asbestos, with further work required before construction can begin. "It is very common for a building of this age to contain asbestos -- there is no risk to public or staff health as the building is currently unoccupied. "We are currently going out to tender to appoint a specialist contractor to remove the asbestos." A spokesman for the Asbestos Removal Contractors Association confirmed that, in County Buildings, the material was most likely to have been used for pipe lagging and wall insulation. The material is known to have brought about the deaths of many people who were previously unaware of the dangers associated with the mineral in various working environments. Asbestos became increasingly popular among manufacturers and builders in the late 19th century because of its sound absorption, strength, resistance to fire, heat, electrical and chemical damage and affordability. The trade and use of asbestos has been restricted or banned in many countries. It is most commonly found in asbestos coatings and lagging, insulation and insulating board. Its removal from County Buildings is likely to take several months. ASBESTOS UPDATE: Plaintiffs Drop Military Claims ------------------------------------------------ Heather Isringhausen Gvillo, writing for Legal Newsline, reported that a California district court has granted a claimant's motion to remand his asbestos lawsuit to the Solano Superior Court based on military-related exposure claims. According to the order filed on Jan. 23 in U.S. District Court for the Eastern District of California, plaintiff Paul Schulz cited Section 1442, which allows for removal despite defendant Crane Co.'s opposition to the motion for remand. "'When federal officers and their agents are seeking a federal forum, [courts] are to interpret section 1442 broadly in favor of removal.' Removals under section 1442 are not subject to the well- pleaded complaint rule, and a 'federal officer or agency defendant con unilaterally remove a case' without other defendants' consent," the order stated. Schulz filed his complaint in the Solano County Superior Court against 40 defendants on Sept. 9, alleging negligence, products liability, aiding and abetting, battery, concert of action and fraud. Then on Nov. 14, Crane Co. removed the case to the federal court. Crane Co. argued that a civil action could be appropriately removed to district court if any person is "'acting under' the direction of a United States officer." Schulz responded on Nov. 21 by waiving all claims against Crane Co. that related to his asbestos exposure during military service, employment by the government, from products sold or supplied to the U.S. military or government, at military and federal government jobsites or from U.S. military vessels or missiles. However, Crane Co. argues that Schulz's complaint remains unchanged, rendering the waiver invalid. Schulz responded with an instant motion to remand on Dec. 3. "The primary question raised by the instant motion is defendant's ability to raise a colorable federal defense," the order states. "Specifically, defendant argues it can raise the government contractor defense as a colorable federal defense to plaintiff's claims." However, Schulz claims the "'specific waiver eliminates the possibility of removal based upon a government contractor defense.' Defendant cannot raise that defense and thus defendant cannot raise that defense and thus defendant cannot meet the colorable defense requirement," his attorneys wrote. Schulz said he "does not know how to make it any clearer" that he no longer makes any claims against Crane Co. arising out of military, government or federal asbestos exposure." "Because plaintiff no longer states any claims against which defendant could raise a colorable federal defense, this court no longer has jurisdiction under Section 1442," the opinion states. ASBESTOS UPDATE: NBN Monitors to be Retrenched ---------------------------------------------- The Australian reported that safety monitors ensuring workers on the National Broadband Network rollout are not exposed to asbestos are being retrenched, despite breaches continuing, unions claim. A Senate inquiry was warned by the Electrical Trades Union that the removal of the 12 monitors, observing asbestos removal work on telecommunications pits across the country, placed workers' lives at risk. ASBESTOS UPDATE: Case Sheds Light on Murky World of Litigation -------------------------------------------------------------- Michael Tomsic, writing for NPR.org, reported that according to a 2011 report from the U.S. Government Accountability Office, companies have set aside more than $30 billion for mesothelioma victims since the 1980s. Asbestos lawsuits have played a role in about 100 companies' going bankrupt. One of those is a gasket manufacturer called Garlock. Its parent company, EnPro Industries, is based in Charlotte, N.C. As part of Garlock's $1 billion bankruptcy case, a judge has slashed what the manufacturer owes asbestos victims after finding that the victim's lawyers abused the system. Some call Garlock's bankruptcy case a watershed moment. "It's laid bare the massive fraud that is routinely practiced in mesothelioma litigation," says Lester Brickman, a Cardozo law school professor who has researched asbestos litigation for more than 20 years and who testified on behalf of Garlock. In Texas, one plaintiff said his only exposure to asbestos was from Garlock -- after his lawyers filed a claim with another company. In California, a plaintiff's lawyers misled a jury to make Garlock look worse. And in Philadelphia, lawyers made evidence of their client's exposure to 20 different asbestos products disappear. Those are just a few of the old cases that federal bankruptcy judge George Hodges gave Garlock's lawyers permission to re-examine back in late 2012. A former Asbestos plant is seen February in Thetford Mines, Quebec. Canada has ended its refusal to allow chrysotile asbestos to be added to the U.N.'s Rotterdam Convention on hazardous materials. "As [Hodges] says in his order," says Rick Magee, one of Garlock's attorneys, "we were able to demonstrate in all -- each and every one of those 15 cases -- that there was extensive suppression of exposure evidence." In doing so, Garlock persuaded Hodges to drastically reduce the estimate for how much the company still owes victims. No one argues that people suffering from mesothelioma shouldn't get compensated. Instead, it's a matter of the right companies paying the right amounts. The victims' lawyers argued that the company still owes about $1 billion, based on Garlock's past settlements. But in his January decision, Hodges wrote that that estimate is "infected with the impropriety of some law firms and inflated by the cost of defense." The head of one of those firms, Peter Kraus, managing partner of Waters & Kraus in Dallas, disagrees. "There are some of those cases that involve my firm," he says. "So I know for a fact from those cases that the judge's description of what happened is simply not correct." Kraus says Hodges took a radical approach with his decision. "It's very, very different from the rulings and findings by judges with a good deal more experience in this area." But that argument doesn't fly with folks at the Institute for Legal Reform at the U.S. Chamber of Commerce. "When you start building the case, when you start seeing more and more of these instances, you got to really question whether this is an outlier or not," says Harold Kim, the organization's executive vice president. Judges in Delaware, Ohio and Virginia have also noted dubious legal maneuvering in asbestos litigation, though not on the scale of the Garlock case. Kim says the case will be a wake-up call for other judges, which will lead to more accurate estimates of what companies really owe. For Garlock, the judge estimates that's $125 million. But the case isn't finished, and victims' lawyers are likely to challenge that amount. In the meantime, Garlock is suing some of the people who are suing it. The company is going after six law firms for the types of practices it uncovered in its bankruptcy case. ASBESTOS UPDATE: Sealed Air Pays $930MM in Cash to Grace Trust -------------------------------------------------------------- Kathleen Lynn, writing for NorthJersey.com, reported that Sealed Air Corp., the Elmwood Park maker of Bubble Wrap, has paid $930 million in cash into a trust for asbestos victims, the company said. The payment settles a claim that arose after Sealed Air bought a business from W.R. Grace & Co., which filed for bankruptcy after facing millions of dollars in asbestos claims. W.R. Grace has emerged from bankruptcy, after almost 13 years, which cleared the way for Sealed Air to pay the settlement. "This is very positive news for Sealed Air, as the completion of the settlement has been anticipated for some time and now brings finality to a matter after more than a decade of preparation," said Jerome A. Peribere, CEO of Sealed Air. "We will no longer incur interest on the settlement, which amounted to $48 million in 2013. Additionally, we anticipate meaningful cash tax benefits over the next several years." In addition to the $930 million in cash, the company also paid 18 million shares of Sealed Air common stock, with a value of more than $540 million. The claims against Sealed Air grew out of its $4.3 billion purchase of Cryovac, a flexible packaging business, from W.R. Grace in 1998. Some plaintiffs accused W.R. Grace of fraudulently transferring assets to Sealed Air "to the detriment of creditors holding asbestos claims against Grace." Sealed Air agreed in 2002 to pay $512 million to settle the claims, but that agreement was held up by litigation over the W.R. Grace bankruptcy, which dragged on for almost 13 years, in what is believed to be the longest bankruptcy in U.S. history. Sealed Air's payment grew to $930 million because of interest. The total value of the W.R. Grace-related asbestos trusts, which will be used to pay people injured by asbestos, is almost $4 billion. In a research note, analysts Ghansham Panjabi and Mehul Dalia of R.W. Baird said the resolution of the W.R. Grace agreement is worth about $2 a share to Sealed Air, because Sealed Air will no longer face interest costs on the settlement, and it will be able to take a tax deduction for the settlement amount. The analysts called the event "a modest positive" for Sealed Air shares. W.R. Grace, a Columbia, Md.-based chemical and materials manufacturer that was founded in 1854, was hit hard by asbestos injury litigation. From 1963 to 1990, the company owned a mine in Libby, Mont., that extracted vermiculite, a mineral used for insulation. The mining operation allegedly caused the release of up to 5,000 pounds of asbestos a day, exposing nearby residents to the cancer-causing dust. The tens of thousands of asbestos claims filed against W.R. Grace include some from people exposed to it near the mine, as well as from others who say they used W.R. Grace products that contained vermiculite and asbestos. Sealed Air, which had revenues of $7.6 billion in 2012, makes packaging, cleaning and hygiene products. It has about 25,000 employees. Its stock rose 38 cents Feb. 4 to close at $30.41. ASBESTOS UPDATE: Council OKs Fibro Removal at Lee Building ---------------------------------------------------------- Charles Oliver, writing for The Dalton Citizen, reported that the council in Dalton City, Illinois, voted 3-0 to award a $43,690 contract to Kadima, a Buford-based company, to remove asbestos and other hazardous materials from the Lee Printing building on Hamilton Street. Council member Tate O'Gwin was absent, and Mayor David Pennington generally votes only in the event of a tie. The building, which has been empty for over a decade, was donated to the city last year by Lee Deal LLC and McNeese Properties. "We plan to tear it down, and we need to get that stuff out of there first," Pennington said. "We hope to attract a private developer who'd like a site right there in the middle of town." Public Works Director Benny Dunn said Kadima should be finished by Feb. 20. Council members also voted 3-0 to: * Approve a contract with Marietta-based WFN Consulting to manage the city's community development block grant (CDBG) program. The company will be paid based on the amount and type of work it does, with fees for most of its services set at $125 an hour. * Approve alcohol beverage licenses for the Dalton Courtyard Bar on College Drive and Las Fiestas on Cleveland Highway. Council members and Keep Dalton-Whitfield Beautiful recognized Steve and Beth Laird for their efforts to pick up trash and keep their neighborhood litter free. ASBESTOS UPDATE: Judge Awards Summary Judgment to 2 Shipbuilders ---------------------------------------------------------------- HarrisMartin Publishing reports that the court overseeing the national Asbestos Products Liability Multidistrict Litigation docket has awarded summary judgment to two shipbuilders, reiterating that a ship is not a "product" under strict product liability law. In separate Jan. 29 opinions, the U.S. District Court for the Eastern District of Pennsylvania also found that the plaintiff's negligence claims failed since he failed to provide evidence that the defendants knew of asbestos hazards. Plaintiff David Filer asserted the claims, contending that he was exposed to asbestos while serving in the U.S. Navy. Both General Dynamics Corporation and Huntington Ingalls Inc. moved to dismiss the case. ASBESTOS UPDATE: Fibro to be Removed From Iroquois Admin Center --------------------------------------------------------------- Wendy Davis, writing for Times-Republic Online, reported that asbestos will soon be removed from the roof of the administrative center in Iroquois County, Illinois. This will be the first step in dealing with the leaking drains and roof, said maintenance supervisor Larry Pankey at an Iroquois County Board Management Services committee meeting. ASBESTOS UPDATE: Burnham Fire Sparks Fibro Fears ------------------------------------------------ Tom Wright, writing for The Weston Mercury, reported that asbestos fears have been raised following a fire. Crews were called to Oxford Street in Burnham, in England. They found a fire in the garage and outbuilding and extinguished the blaze while removing nearby gas cylinders. Environmental health teams were informed of the fire because 'minor' asbestos was discovered at the scene. Avon and Somerset Constabulary also attended although Devon Fire and Rescue Service said the cause of the fire is unknown. ASBESTOS UPDATE: Calif. Appeals Court Flips Ruling in "Kent" Suit ----------------------------------------------------------------- Donald Kent and his wife Lisa Kent took an appeal from a summary judgment in favor of Warren Pumps, LLC, in a personal injury action involving exposure to asbestos. The Plaintiffs contend that Warren failed to satisfy its initial burden as the party moving for summary judgment to show that they could not establish that Mr. Kent was exposed to asbestos in products manufactured or supplied by Warren. The Plaintiffs also contend the evidence creates a triable issue of fact on this issue in any event. In a decision dated Jan. 16, 2014, the Court of Appeals of California, Second District, Division Three, concluded that Warren failed to satisfy its initial burden as the party moving for summary judgment. Warren argues that Mr. Kent has no personal knowledge that the orders for parts were actually fulfilled by Warren. The Court of Appeals concluded that this goes to the weight of the evidence and does not preclude the trier of fact from reasonably concluding that parts ordered from Warren were supplied by Warren. Accordingly, the Court of Appeals reversed the judgment. The case is DONALD KENT et al., Plaintiffs and Appellants, v. WARREN PUMPS, LLC, Defendant and Respondent, NO. B243832 (Cal. App.). A full-text copy of the Decision is available at http://is.gd/zXH16Mfrom Leagle.com. Plaintiffs and Appellants are represented by: Brian P. Barrow, Esq. SIMON GREENSTONE PANATIER BARTLETT 301 East Ocean Blvd., Suite 1950 Long Beach, California 90802 Tel: 562-590-3400 Fax: 562-590-3412 Michael Pietrykowski, Esq. -- mpietrykowski@gordonrees.com -- at Gordon & Rees; and Laurie J. Hepler, Esq. -- lhepler@cbmlaw.com -- and Gonzalo C. Martinez, Esq. -- gmartinez@cbmlaw.com -- at Carroll, Burdick & McDonough, in San Francisco, California, for Defendant and Respondent. ASBESTOS UPDATE: Delaware Court Dismisses "Fluitt" Action --------------------------------------------------------- Judge Paul R. Wallace of the Superior Court of Delaware, New Castle County, granted Advance Auto Parts, Inc., et al.'s motion to dismiss a lawsuit alleging, among other things, that Ira Fluitt developed lung cancer as a result of wrongful exposure to asbestos. According to Judge Wallace, the Parties do not dispute that Mr. Fluitt is a "smoker," as that term is defined by the Asbestos and Silica Compensation Fairness Act. Thus, Florida law requires the Plaintiffs to plead each of the essential elements of a prima facie asbestos claim for a smoker, Judge Wallace said. Because the Plaintiffs have not met that standard, the Complaint is dismissed, Judge Wallace ruled. The case is IN RE: ASBESTOS LITIGATION relating to IRA FLUITT and REGINA FLUITT, Plaintiffs, v. ADVANCE AUTO PARTS, INC., et al., Defendants, C.A. NO. N12C-07-241 ASB (Del. Sup.). A full-text copy of Judge Wallace's Order dated Jan. 29, 2014, is available at http://is.gd/CAIlg3from Leagle.com. ASBESTOS UPDATE: Court Directs Widow to Reveal Claim Forms ---------------------------------------------------------- In August 2013, Defendant Crane Co. filed a Motion for Reconsideration, in which Crane renewed its discovery request for claim forms submitted by Plaintiff Rosie K. Sweredoski to asbestos bankruptcy trusts on behalf of her late husband, Douglas A. Sweredoski. On November 18, 2013, the Superior Court of Rhode Island, Providence S.C., issued an initial ruling, which ordered an in camera review of the claim forms in order to determine whether they were properly discoverable or whether a privilege applied to preclude Crane's discovery request. At the same time, that ruling reaffirmed the Court's original holding that the disputed claim forms are not discoverable for Crane's originally- articulated purpose of showing that Sweredoski's illness was caused by a non-party to this suit. After reconsidering the parties' arguments and conducting an in camera review of the claim forms, the Court found that the documents are discoverable for a limited evidentiary purpose. Specifically, the Court held that to the extent that information in the claim forms demonstrates non-party liability, nothing in the instant decision should be taken to alter the Court's prior findings that such information is neither relevant to nor reasonably calculated to lead to the discovery of admissible evidence relating to the Plaintiff's burden of proof on the issue of causation. Rather, the ruling is limited to the discoverability of the Plaintiff's claim forms. The Court ordered the Plaintiff to submit to Crane all claim forms and other supporting documentation supported by the Plaintiff or their attorneys on their behalf to asbestos bankruptcy trusts relating to claims of Sweredoski's injuries from asbestos exposure. In the event the bankruptcy trust documents contain specific instances of offers of compromise, as opposed to factual assertions, the Plaintiff may withhold the information and documentation. Additionally, the Plaintiff need not produce to Crane any documents provided by the bankruptcy trusts to the Plaintiff or any documentation revealing any amounts paid to the Plaintiff by any bankruptcy trust. The case is ROSIE K. SWEREDOSKI, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DOUGLAS A. SWEREDOSKI, AND INDIVIDUALLY RECOGNIZED AS SURVIVING SPOUSE, v. ALFA LAVAL, INC., et al., C.A. NO. PC-2011- 1544 (R.I. Super.). A full-text copy of the Jan. 30, 2014, decision penned by Presiding Judge Alice Gibney is available at http://is.gd/MjoYJxfrom Leagle.com. Robert J. Sweeney, Esq., For Plaintiff. David A. Goldman, Esq., Kendra A. Christensen, Esq., For Defendant. ASBESTOS UPDATE: Summary Judgment Bid in Pa. Suit Partially Okayed ------------------------------------------------------------------ Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania granted, in part, and denied, in part, the motion for summary judgment filed by Defendant Puget Sound Commerce Center, Inc., f/k/a Todd Shipyards Corporation, in the asbestos exposure lawsuit styled BARRY KELLY and, MOLLY KELLY, Plaintiffs, v. CBS CORPORATION, ET AL., Defendants, MDL NO. 875, CASE NO. 11-03240, CIVIL ACTION NO. 2:11-67269-ER (E.D. Pa.). Judge Robreno ruled that Todd Shipyards is entitled to summary judgment with respect to the Plaintiffs' strict product liability claims because a Navy ship is not a "product" within the meaning of strict product liability law. With respect to the Plaintiffs' remaining negligence-based claims, Todd Shipyards has not established that it is entitled to summary judgment on any of the other bases it has asserted, Judge Robreno said, pointing out that: (1) the Defendant has failed to identify the absence of a genuine dispute of material fact with respect to the Plaintiffs' negligence claim; (2) the Plaintiff has produced evidence to controvert the Defendant's proofs regarding the availability to the Defendant of the government contractor defense; and (3) Todd Shipyards has not presented evidence to establish that Mr. Kelly was a sophisticated user of the asbestos-containing products at issue as is required to support the sophisticated user defense under maritime law. Judge Robreno's Decision dated Jan. 29, 2014, is available at http://is.gd/rXI0TXfrom Leagle.com. ASBESTOS UPDATE: Court Remands Fibro-Related Disability Suit ------------------------------------------------------------ Gerald Tarr filed applications for Disability Insurance Benefits and Supplemental Security Income payments under Title II and XVI of the Social Security Act. In his applications, Tarr alleged an inability to work since December 5, 2007, due to history of asbestos exposure. After the Commissioner of Social Security initially denied his applications and upon reconsideration, Tarr had a hearing before an Administrative Law Judge, which initially denied existence of disability. The Plaintiff requested review of the ALJ's decision, and the Appeals Council remanded the matter for further administrative proceedings. Following a hearing, the ALJ issued a partially favorable decision on May 15, 2013, finding that the plaintiff's disability commenced December 22, 2010. The Plaintiff makes one challenge to the ALJ's Decision. He solely alleges the ALJ erred by finding a later disability onset date without the testimony of a medical expert as required under Social Security Ruling 83-20. Magistrate Judge Stephen J. Hillman of the U.S. District Court for the Central District of California concluded that the decision of the Commissioner should be reversed and remanded the case for further proceedings. In light of SSR 83-20, In re Armstrong v. Commissioner of Social Security Administration, 150 F.3d 587, 589, (9th Cir. 1998), Tarr's long history of asbestos exposure dating back to 1998, other medical evidence and Tarr's personal reports of his progressively deteriorating state of health prior to December 22, 2010, the magistrate judge concluded Tarr's disability onset date "ambiguous". The court therefore reversed the ALJ's decision and remanded the case with directions to the ALJ to call a medical expert to determine when Tarr became disabled. SSR 83-20, according to the magistrate judge, requires that the ALJ assist Tarr in creating a complete record that forms the basis for the correct onset date. The ALJ can fulfill this duty by calling a medical expert as required under SSR 83-20. The case is GERALD TARR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant, NO. CV 13-2799-SH (C.D. Calif.). A full-text copy of the magistrate judge's memorandum decision and order dated Jan. 28, 2014, is available at http://is.gd/rK5YCUfrom Leagle.com. ASBESTOS UPDATE: Court Denies Violator's Plea to Vacate Sentence ---------------------------------------------------------------- An indictment charged Guy Gannaway with conspiring to violate the Clean Air Act, in violation of 40 C.F.R. Sections 61.145(c)(1)), (c)(8), 42 U.S.C. Section 7413(c)(1), and 18 U.S.C. Section 1001, violating the Clean Air Act based on multiple failures to comply with asbestos work practice standards, in violation of 42 U.S.C. Section 7413(c)(1), and making false statements, in violation of 18 U.S.C. Section 1001. On Jan. 27, 2011, a jury convicted Gannaway and sentenced him to a concurrent term of 90 days imprisonment on each conviction to be followed by three years of supervised release. Gannaway appealed his convictions. On May 23, 2012, the United States Court of Appeals for the Eleventh Circuit affirmed Gannaway's convictions. Gannaway filed with the U.S. District Court for the Middle District of Florida, Tampa Division, a motion to vacate, set aside or correct sentence. District Judge James S. Moody, Jr., denied Gannaway's motion, holding that the case warrants no evidentiary hearing because "it plainly appears from the face of the motion and any annexed exhibits and prior proceedings in the case that the movant is not entitled to relief." The case is GUY GANNAWAY, Petitioner, v. UNITED STATES OF AMERICA, Respondent, CASE NO. 8:13-CV-1635-T-30MAP, CRIM. CASE NO. 8:10-CR- 59-T-30MAP (M.D. Fla.). A full-text copy of Judge Moody's Jan. 30, 2014, order is available at http://is.gd/BWSDgJfrom Leagle.com. ASBESTOS UPDATE: Court Rules on Summary Judgment Bids in "Filer" ---------------------------------------------------------------- Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania on Jan. 29, 2014, granted the motions for summary judgment filed separately by defendants General Dynamics Corporation and Huntington Ingalls in the asbestos-related personal injury lawsuit captioned DAVID FILER, Plaintiff, v. FOSTER WHEELER LLC ET AL., Defendants, MDL NO. 875, CASE NO. 12-00514, CIVIL ACTION NO. 2:12-60034-ER (E.D. Pa.). In support of his decision, Judge Robreno held that, under maritime law, a builder of a Navy ship, like General Dynamics and Huntingon, is liable in negligence if it failed to exercise reasonable care under the circumstances. In light of the long- standing and well-established rule of law, the Defendants' motions for summary judgment on the Plaintiffs' negligence claims on grounds that there was no duty to warn the Plaintiffs about the hazards of the products installed aboard Navy ships is denied. On the other hand, the Defendants' motions for summary judgment on the Plaintiffs' strict liability claims are granted because, as set forth in Mack v. General Electric Co., 896 F.Supp.2d 333 (E.D. Pa. 2012) (Robreno, J.), a Navy ship is not a product within the meaning of strict product liability law. Full-text copies of Judge Robreno's Orders are available at http://is.gd/8ONflKand http://is.gd/145mc5from Leagle.com. A full-text copy of the memorandum explaining Judge Robreno's orders is available at http://is.gd/BRp89Lfrom Leagle.com. ASBESTOS UPDATE: Huntington's Bid to Dismiss "Hilt" Suit Granted ---------------------------------------------------------------- Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania granted defendant Huntington Ingalls' motion for summary judgment in the asbestos-related personal injury lawsuit captioned GERALDINE HILT, ET AL., Plaintiffs, v. FOSTER WHEELER LLC, ET AL., Defendants, MDL NO. 875, CASE NO. 11-02367, CIVIL ACTION NO. 2:11-66273-ER (E.D. Pa.). Defendant Huntington Ingalls argues that the Plaintiffs have no evidence of asbestos exposure for which it is liable. The Plaintiffs have presented evidence from Horace Owens that Decedent Robert Hilt was exposed to respirable dust from thermal insulation surrounding steam pipes aboard the USS Midway. However, there is no evidence that this insulation contained asbestos. The Plaintiffs' expert, Charles Ay, confirms that there was asbestos insulation aboard the ship. However, he does not identify the steam pipe insulation to which the Decedent was exposed as being asbestos insulation and provides no expert opinion testimony as to whether or why steam pipe insulation would have contained asbestos. Moreover, there is no evidence that the Decedent was exposed to respirable dust from any asbestos- containing insulation aboard the ship. Mr. Ay opines that it would be virtually impossible for Decedent (or anyone else serving aboard the ship) to have avoided exposure to respirable asbestos dust because there was so much asbestos insulation aboard the ship. According to Judge Robreno, under maritime law, this evidence is insufficient. Without evidence that the Decedent was actually exposed to respirable dust from asbestos-containing insulation aboard the ship, no reasonable jury could conclude from the evidence that the Decedent was exposed to asbestos-containing insulation so that it was a substantial factor in the development of his illness, because any such finding would be based on conjecture. Accordingly, summary judgment in favor of the Defendant is warranted with respect to all of Plaintiffs' claims against it, Judge Robreno concluded. A full-text copy of Judge Robreno's Jan. 29, 2014, order is available at http://is.gd/TlDqV2from Leagle.com. ASBESTOS UPDATE: Court Narrows Claims in "Founds" Suit ------------------------------------------------------ Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania denied the Motion for Summary Judgment of Defendant Puget Sound Commerce Center, Inc., f/k/a Todd Shipyards Corporation, in the asbestos-related personal injury lawsuit captioned MARJORIE FOUNDS, Plaintiff, v. FOSTER WHEELER LLC, ET AL., Defendants, NO. MDL 875, CASE NO. 11-02212, CIVIL ACTION NO. 2:11-67265-ER (E.D. Pa.). Judge Robreno concluded that the Defendant is entitled to summary judgment with respect to the Plaintiff's strict product liability claims because a Navy ship is not a "product" within the meaning of strict product liability law. With respect to the Plaintiff's remaining negligence-based claims, the Defendant has not established that it is entitled to summary judgment on any of the other bases it has asserted for the following reasons: (1) the Defendant has failed to identify the absence of a genuine dispute of material fact with respect to the Plaintiff's negligence claim because the Plaintiff has identified sufficient evidence to support a negligence claim; (2) the Plaintiff has produced evidence to controvert Defendant's proofs regarding the availability to the Defendant of the government contractor defense; and (3) Todd Shipyards has not presented evidence to establish that the Plaintiff was a sophisticated user of the asbestos-containing products at issue as is required to support the sophisticated user defense under maritime law. A full-text copy of Judge Robreno's Jan. 29, 2014, order is available at http://is.gd/GKQrTUfrom Leagle.com. ASBESTOS UPDATE: 6 Defendants Dropped From "Yates" Suit ------------------------------------------------------- Judge Louise W. Flanagan of the U.S. District Court for the Eastern District of North Carolina, Western Division, granted the motions for summary judgment filed by six defendants in an asbestos-related personal injury lawsuit after determining that the plaintiff has presented few or no evidence detailining the manner of exposure or the level of asbestos in the products manufactured or distributed by the six defendants. Judge Flanagan, however, held in abeyance decisions on the motions for summary judgment filed by two defendants pending the defendants' address of arguments offered by the plaintiffs in response to its notice. The case is GRAHAM YATES and BECKY YATES, Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, successor by merger to Buffalo Pumps, Inc., individually and as successor-in-interest to The Delaval Separator Company; ALFA LAVAL, INC.; ARMSTRONG INTERNATIONAL, INC.; BORG-WARNER MORSE TEC, INC., individually and as successor- in-interest to Borg-Warner Corporation; CBS CORPORATION, a Deleware Corporation formerly known as Viacom, Inc. (sued as successor by merger to CBS Corporation) formerly known as Westinghouse Electric Corporation; CRANE CO.; CROWN CORK & SEAL COMPANY, INC., individually and as successor-in-interest to Mundet Cork Company; DANA COMPANIES LLC; ELLIOTT TURBO MACHINERY COMPANY, also known as Elliot Company; FLOWSERVE US INC., individually and as successor-in-interest to Edward Valve, Inc.; FMC CORPORATION, individually and as successor-in-interest to Northern Pump Company formerly known as Northen Fire Apparatus Company; FORD MOTOR COMPANY; FOSTER WHEELER ENERGY CORPORATION; THE GATES CORPORATION; GENERAL ELECTRIC COMPANY; HOBART BROTHERS COMPANY; HONEYWELL INTERNATIONAL, INC., successor-in-interest to Bendix Corporation; HOPEMAN BROTHERS INC.; IMO INDUSTRIES, INC., individually and as successor-in-interest to Delaval Turbine, Inc.; JOHN CRANE, INC.; MCNALLY INDUSTRIES, LLC, individually and as successor-in-interest to Northern Fire Apparatus Company; METROPOLITAN LIFE INSURANCE COMPANY; UNICOAT SALES LLC, individually and as successor-in- interest to KST Coatings LLC formerly known as KST Coatings Manufacturing, Inc.; UNION CARBIDE CORPORATION; VELAN VALVE CORPORATION; WARREN PUMPS LLC; WEIR VALVES & CONTROLS USA, INC., formerly known as Atwood & Morrill; THE WILLIAM POWELL COMPANY; and YARWAY CORPORATION; Defendants, NO. 5:12-CV-752-FL (E.D.N.C.). A full-text copy of Judge Flanagan's Jan. 30, 2014, order is available at http://is.gd/otwijDfrom Leagle.com. ASBESTOS UPDATE: Crane Co.'s Bid to Dismiss "Brumley" Suit Denied ----------------------------------------------------------------- Crane Co. moved for summary judgment dismissing the complaint and all other claims asserted against it on the ground that plaintiffs Carol Brumley, et al., have not shown that decedent Daniel R. Brumley was exposed to asbestos from working on or around any products manufactured by Crane or the Pacific boilers of which the Plaintiffs complain. Crane also argues that it is not liable for asbestos-containing products that Pacific did not manufacture, supply or specify for use with its products. The Plaintiffs' position is that the testimony raises a material issue of fact whether the decedent was exposed to asbestos from Pacific boilers and that Pacific knew or should have known that asbestos-containing insulation would be integrated with its boilers for their intended use. In a decision and order dated Feb. 5, 2014, Judge Sherry Klein Heitler of the Supreme Court, New York County, denied Crane's motion in its entirety, noting that all of Crane's submissions pertain to itself and not to Pacific and that the Plaintiffs' submissions indicate that during the late 1920s and early 1930s Pacific specifically called for the insulation of its boilers with asbestos. Crane has admitted that Pacific is a product line belonging to the company. The case is CAROL BRUMLEY, as Administratrix for the Estate of DANIEL R. BRUMLEY, and CAROL BRUMLEY, Individually, Plaintiffs, v. A.O. SMITH WATER PRODUCTS CO., et al., Defendants, DOCKET NO. 190101/13, MOTION SEQ. NO. 001 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision is available at http://is.gd/aExAd3from Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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