McKenna Storer was founded as a firm concentrating in the defense of general tort and injury cases. Today McKenna attorneys are called on to defend individuals and businesses in state and federal courts in a variety of practice areas from products liability, professional liability, premises liability and defamation (libel and slander), through toxic torts, construction cases, medical malpractice, employment, commercial and auto cases. Our attorneys also have experience in a wide variety of chancery cases involving claims such as consumer fraud, replevin, the Uniform Commercial Code, specific performance and other equitable remedies.
Plaintiff Charles Krik, a life-long cigarette smoker, alleged that his lung cancer was caused, in part, by exposure to asbestos attributable to his work as a pipe fitter at an Exxon Mobil refinery. At the trial level, the judge barred plaintiff’s expert Dr. Arthur Frank and his opinion that “any exposure” to a given substance adds to one’s cumulative dose, and that the cumulative dose is the alleged cause of the claimed injury. (Charles Krik v. Exxon Mobil Oil Corp., et al., No. 15-3112, 7th Cir., 2017 U.S. App. LEXIS 16795).
Justice Alito delivered the opinion of the U.S. Supreme Court on June 19, 2017 in Bristol-Myers Squibb Company v. Superior Court of California. The case concerned over 600 plaintiffs who brought suit in California state court against Bristol-Myers Squibb (BMS) alleging injuries from taking the drug Plavix. The vast majority of the plaintiffs were not California residents. The California Supreme Court concluded that California courts had specific jurisdiction to entertain the nonresident claims. The U.S. Supreme Court reversed the decision. This decision will have an impact on future mass tort litigation cases.
Talc seems harmless enough. It is used in countless cosmetics and is a staple for infant care. Known as the “world’s softest mineral,” talc is mined from the ground like any other mineral. However, increasing evidence is showing that mined talc can be intermingled with asbestos. Recent court decisions throughout the country could be an indication of the addition of talc-related cases handled by attorneys practicing mass tort litigation defense.
Take home, or secondary exposure, asbestos cases have increasingly become the norm in toxic tort asbestos litigation in the last 10 years. Secondary exposure occurs when a worker is exposed to asbestos at a job site and brings the asbestos-containing clothes home to be laundered by a family member. As a result, the family member handling the contaminated clothing becomes the victim of secondary exposure to asbestos.
A frequently relied upon defense in insurance defense cases such as product liability and toxic tort cases in Indiana has been the statute of repose. Plaintiffs had two years from the date they knew or should have known they suffered harm to file a lawsuit based upon the state’s statute of limitations. The statute of repose placed a 10-year limit on how long a plaintiff had to actually discover the harm before the claim would be barred.
Since the early 2000s, litigation stemming from food labeling has grown to record proportions. California, which leads the nation in food labeling cases, continues as the primary jurisdiction for the majority of the filings. This has caused some people use the term “food court” when referring to the U.S. District Court for the Northern District of California. Over 30 food-associated companies have been sued in that jurisdiction alone. California is followed by New York & New Jersey, Florida, Missouri and Illinois as leading the nation in food labeling lawsuits.
In Myers v. Crouse Hinds Div. of Cooper Indus., (2016 Ind. LEXIS 156), the Supreme Court of Indiana found that Section 2 of the Indiana Product Liability Act violates the Indiana Constitution. Further, the Court held that the Indiana Product Liability Act’s Statute of Repose does not apply to cases involving protracted exposure to inherently dangerous substances, such as asbestos. This decision will likely change the asbestos litigation landscape in Indiana by allowing a large number of claims that would previously have been barred.
In Neumann v. Borg-Warner Morse Tec LLC, et al. (Case No. 1:15-cv-10507), the United States District Court for the Northern District of Illinois granted Defendant’s motion to dismiss in this “take-home” asbestos exposure case. The Court determined that Plaintiff’s negligence claim failed because Defendant did not owe Plaintiff a duty of care. The Court’s decision fails to provide any guidance about how this issue will be settled in Illinois in the future.
We are pleased to announce that Greg Cochran has been included in the list of Leading Lawyers for 2016 for Mass Tort Defendant Law and Toxic Torts Defense Law. Greg has previously received this honor from 2012 to 2015.
On November 4, 2015, the Illinois Supreme Court filed its opinion in Folta v. Ferro Engineering, 2015 IL 118070. In a 4-2 decision, the Court held that an employee’s common law tort action against his employer is barred by the exclusive remedy provisions of the Workers’ Compensation Act and Workers’ Occupational Diseases Act (“the Act” or “the Acts”) even though no compensation is available under those acts due to statutory time limits on the employer’s liability. This decision represents a major victory for employer defendants in asbestos-related personal injury cases. Previously, there has been a split, specifically between how judges handling asbestos dockets in Cook County and Madison County have ruled on this particular issue. There is now clarity for courts throughout the state of Illinois as to how they should rule when faced with this common factual situation.
In this case, the decedent, James Folta, was an employee of Ferro Engineering from 1966-1970. During that time he was allegedly exposed to asbestos. Mr. Folta was diagnosed with mesothelioma, an asbestos-related disease, in 2011. At that time, any potential workers’ compensation claim was barred by the Act’s 25-year statute of repose. Unable to pursue a workers’ compensation claim, Folta filed a common law tort claim against Ferro Engineering. Ferro Engineering filed a motion to dismiss that was granted by the circuit court, and subsequently reversed by the appellate court. A full discussion of the appellate court’s decision can be found here.