Asbestos Client Alert: Court’s Exclusive Gatekeeper Role May not be Ignored or Shifted to a Jury
February 07, 2014 —
Lee Marshall and Chandra L. Moore - Haight Brown & Bonesteel, LLPIn Estate of Henry Barabin v. AstenJohnson, Inc., - F.3d -, 2014 U.S. App. LEXIS 774, 2014 WL 129884 (9th Cir., Jan. 15, 2014) en banc, the Ninth U.S. Circuit Court of Appeals vacated a $10.2 million judgment in the Plaintiffs’ favor in a case where Plaintiff alleged that occupational exposure to asbestos from dryer felts caused his mesothelioma. The Ninth Circuit held that the district court abused its discretion by neglecting its duty as a “gatekeeper” under Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Federal Rule of Evidence 702, by improperly admitting expert testimony at trial without first determining its reliability. The en banc court held that admitting the testimony on the debated theory that “each asbestos fiber causes mesothelioma” was prejudicial error and the court remanded the case for a new trial. The court also held that a reviewing court has the authority to make Daubert findings based on the record established by the district court, but in the instant case, the record was “too sparse” to determine whether the expert testimony was relevant and reliable or not.
This ruling is a victory for the defense in that it reaffirms the federal court’s exclusive gatekeeper role and holds that the role may not be ignored or shifted to a jury. Unfortunately, the court did not go so far as to evaluate the inherent reliability of expert opinions based on the theory that “each asbestos exposure causes mesothelioma.” As such, it did not provide guidance as to what specific foundational requirements are required to admit, or exclude, these types of opinions under a Daubert analysis.
In Barabin, Plaintiff alleged he was exposed to asbestos while working at a paper mill with dryer felts manufactured and supplied by Defendants. The issue was whether the dryer felts substantially contributed to Barabin’s development of mesothelioma, a determination that required expert testimony.
Reprinted Courtesy of Lee Marshall, Haight Brown & Bonesteel, LLP and
Chandra L. Moore, Haight Brown & Bonesteel, LLP
Mr. Lee may be contacted at lmarshall@hbblaw.com and Ms. Moore may be contacted at cmoore@hbblaw.com.
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Congratulations to Nicole Whyte, Keith Bremer, John Toohey, and Tyler Offenhauser for Being Recognized as 2022 Super Lawyers!
February 07, 2022 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBWB&O is proud to announce that Partners Nicole Whyte, Keith Bremer, John Toohey, and Tyler Offenhauser have been named as 2022 Southern California’s Super Lawyers! We are also honored to share that Nicole Whyte is included in two of the top lists, Top 50 Women Lawyers in Southern California and Top 50 Lawyers in Orange County!
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations, and peer evaluations. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. During the final selection process, only lawyers in the top 5% of the total lawyers in the state are selected to the Super Lawyers list.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
A Bill for an Act Concerning Workers’ Compensation – 2014 Edition
January 13, 2014 —
W. Berkeley Mann, Esq. - Higgins, Hopkins, McLain & Roswell, LLCWorkers’ compensation (“WC”) costs are a significant portion of the labor costs experienced by construction companies. These costs have typically risen over time due to the “experience modification factor.” This term means the amortized cost of past claims recovered through future premiums charged by an insurer to an employer. As a company’s claims go up in both number of claims and total expense of claims over time, the experience modifier increases as a multiplier of the base WC premium. As with other general medical costs, the question is not whether the cost of claims with a medical component will go up, but rather the rate at which they will increase from year to year.
It is with these facts of life in mind that it is reported that the Colorado legislature will take up a bill concerning WC benefits in the 2014 session. This bill, if passed, will have the likely effect of dramatically increasing the cost of WC claims to the construction industry - along with all other Colorado employers.
The draft bill has three distinct changes for the current law, each of which serves to change the delicate balance of rights and obligations of employers and employees under existing law.
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W. Berkeley Mann, Esq.W. Berkeley Mann, Esq. can be contacted at
mann@hhmrlaw.com
Federal District Court Dismisses Property Claim After Insured Allows Loss Location to Be Destroyed Prior to Inspection
September 29, 2021 —
James M. Eastham - Traub LiebermanIn BMJ Partners LLC v. Arch Specialty Insurance Co., No. 20-CV-03870, 2021 WL 3709182 (N.D. Ill. Aug. 20, 2021), the United States District Court for the Northern District of Illinois dismissed, with prejudice, a coverage action filed by an insured based on a failure to comply with a request to inspect the involved property under Rule 34 of the Federal Rules of Civil Procedure. The loss at issue involved a hail-damaged building in Carpentersville, Illinois. During the discovery phase of the litigation, the property insurer served a request to inspect the subject property under FRCP Rule 34. After ignoring numerous requests to schedule the inspection, the insurer filed a motion to dismiss for failure to prosecute or, alternatively, to compel an inspection. After the motion was filed, a status hearing was conducted where the insured’s counsel advised the Court of his intention to file a motion to withdraw from representation of the insured. After the date set to file the motion to withdraw passed without anything being filed, the Court entered an order directing the insured to show cause why the matter should not be dismissed for lack of prosecution.
In response to the order to show cause, the insured advised the Court that instead of responding to the property insurer’s discovery requests, the insured sold the property to a buyer who subsequently tore down the building. In light of what the Court described as the insured’s “flabbergasting admission”, the Court was compelled to grant the motion to dismiss and do so with prejudice. In support of the “extreme sanction” of dismissing the matter with prejudice, the Court first noted that the insured had not come close to justifying a discharge of the pending show-cause order. Rather, the insured’s responsive filing refers to the Court's show cause order only indirectly and does not deny, or offer any justification for, disregarding case-related communications for several months. Even if that were not enough, the Court further held that the insured’s spoliation of evidence likewise provides sufficient basis for dismissal given that Courts have inherent authority to sanction parties for failure to preserve potential evidence. According to the Court, dismissal with prejudice was the only appropriate sanction in light of the insured’s violation of the obligation to preserve the property. Not only did the insured ignore multiple requests from the insurer to inspect, but during the same time frame the insured found time to allow inspections of the building as part of the sale by both the Village of Carpentersville and the property's buyer.
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James M. Eastham, Traub LiebermanMr. Eastham may be contacted at
jeastham@tlsslaw.com
Whose Lease Is It Anyway: Physical Occupancy Not Required in Landlord-Tenant Dispute
February 07, 2018 —
Afua Akoto – SDV Case Alert In September 2017, a Texas Federal district judge ruled that that Personal and Advertising Injury coverage in a CGL policy did not require physical occupancy in a landlord-tenant dispute.
In the underlying lawsuit, restaurant owner Ziggy Gruber alleged that John Dunn, the landlord of a Houston shopping center, wrongfully interfered with his right of occupancy at the shopping center by failing to complete the negotiation of a lease and preventing his occupancy of the space. Gruber further alleged that he had acquired a direct interest in the premises and became a rightful tenant but as a result of Dunn’s interference, he was never able to open his restaurant.
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Afua Akoto, Saxe Doernberger & Vita, P.C. Ms. Akoto may be contacted at
asa@sdvlaw.com
Flag on the Play! Expired Contractor’s License!
October 02, 2015 —
Yas Omidi – California Construction Law BlogIt’s football season again. Which means, of course, that in addition to touch downs and field goals, you’ll also see hooting and hollering when the ref throws down a yellow flag signaling that a foul has been committed.
In Judicial Council of California v. Jacob Facilities, Inc., Case Nos. A140890, A141393 (August 20, 2015), The California Court of Appeals for the First District threw down its own yellow flag under the dreaded Business and Professions Code section 7031, finding that a contractor was required to disgorge all monies received on a project – to the tune of a whopping $18 million – when its parent company allowed the subsidiary’s contractor’s license to lapse when it rebranded a new company to perform the work of the old company but never formally assigned the contract. I think someone in marketing may be in big trouble.
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Yasmeen, Omidi, Wendel Rosen Black & Dean LLPMs. Omidi may be contacted at
yomidi@wendel.com
Economy in U.S. Picked Up on Consumer Spending, Construction
October 02, 2015 —
Shobhana Chandra – BloombergThe world’s largest economy expanded more than previously forecast in the second quarter, boosted by gains in consumer spending and construction that may help the U.S. withstand a global slowdown.
Gross domestic product rose at a 3.9 percent annualized rate, compared with a prior estimate of 3.7 percent, Commerce Department figures showed Friday in Washington. The median forecast of 76 economists surveyed by Bloomberg called for a 3.7 percent gain.
Strong hiring, cheaper gasoline and higher home prices will probably sustain household purchases, which account for about 70 percent of the economy. That helps bolster Federal Reserve Chair Janet Yellen’s view that the U.S. will overcome any fallout from cooling overseas markets and swings in global financial and commodity markets.
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Shobhana Chandra, Bloomberg
Construction Defect Dispute Governed by Contract Disputes Act not yet Suited to being a "Suit"
June 25, 2019 —
William S. Bennett - Saxe Doernberger & Vita, P.C.The Southern District of California recently held that a series of demands for a general contractor to investigate and repair several construction defects at a U.S. Army facility did not constitute a “suit” within the meaning of the general contractor’s commercial general liability (“CGL”) policy.
In Harper Construction Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., the U.S. Government hired Harper Construction Company (“Harper”) to construct a U.S. Army training facility for the Patriot Missile System in Fort Sill, Oklahoma. No. 18-cv-00471-BAS-NLS (S.D. Cal. Mar. 28, 2019). During the project, Harper hired Harper Mechanical Contractors (“Harper Mechanical”), an independent company, as a subcontractor “to perform demolition, grading, and other work at the Project.”
After Harper completed the project, the government informed Harper of property damage at the project, “including, but not limited to, gypsum wallboard cracks and binding doors.” Harper attempted to repair the issues, but the problems continued. The issues were apparently the result of Harper Mechanical’s grading work. Subsequently, the government sent two letters requesting an investigation and asking Harper to “propose a plan to correct the issues.” As Harper undertook an investigation spanning multiple years, the government became increasingly frustrated with the delays. The government threatened to initiate “formal administrative recourse” and to demolish the project, forcing Harper to re-build from the ground up. It also sent Harper another letter requesting Harper submit a formal proposal to correct the issues.
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William S. Bennett, Saxe Doernberger & Vita, P.C.Mr. Bennett may be contacted at
wsb@sdvlaw.com
