/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091016.mbx C L A S S A C T I O N R E P O R T E R Friday, October 16, 2009, Vol. 11, No. 205 Headlines ALLEN-VANGUARD: Sued for Financial Misrepresentations in Ontario ELEKTRO: Brazilian AEI Unit Battles Privatization Class Action GENERAL NUTRITION: Defending Suits Over Sale of Andro Products GENERAL NUTRITION: CBPC Claims in "Ahussain" Dismissed in March GENERAL NUTRITION: Reached Settlement of Creatine Suit in July GENERAL NUTRITION: Defends Remaining Claims in "Jackson" Lawsuit GENERAL NUTRITION: Defends Five Suits Over Consumer Fraud Claims LUND UNIVERSITY: Varsity Sued Over Affirmative Action MATTEL INC: Settles 22 Lead-Containing Toy Recall Lawsuits MAXXAM INC: Shareholder Challenges Reverse Stock Split in Del. MERIX CORP: Remanded Oregon Securities Fraud Suit in Discovery MICROSOFT: Sued, with T-Mobile, for Losing Sidekick Users' Data PACE AIRLINES: Employee Alleges Improper Termination Notice T-MOBILE: Sued, with Microsoft, for Losing Sidekick Users' Data New Securities Fraud Cases ENERGYSOLUTIONS INC: Coughlin Stoia Files Fraud Suit in S.D.N.Y. NOVAGOLD RESOURCES: Sutts Strosberg Files Fraud Suit in Ontario RETALIX LTD: Weiss & Lurie Files Class Action Suit in E.D. Tex. Asbestos Litigation ASBESTOS ALERT: Biffa to Pay GBP55T Penalty for Cleanup Breaches ASBESTOS ALERT: Mass. Contractor Fined $16.7T for Cleanup Breach ASBESTOS UPDATE: Aviva Reserves GBP1.019B for A&E Claims in 2008 ASBESTOS UPDATE: Rushden & Higham Seeks Help on Hazard Abatement ASBESTOS UPDATE: Devon Local to Pay GBP3,412 for Disposal Breach ASBESTOS UPDATE: A & T, Noble Gift Penalized for Cleanup Breach ASBESTOS UPDATE: Beeston Electrician's Death Linked to Exposure ASBESTOS UPDATE: Fla. Suit v. EPA on Marco Island Issues Ongoing ASBESTOS UPDATE: Hazard to Be Removed from Tucumcari, N.M. Site ASBESTOS UPDATE: Superior Abatement Penalized for Cleanup Breach ASBESTOS UPDATE: Hazard to be Removed From Santa Rita Elementary ASBESTOS UPDATE: Ky. Supreme Court Affirms Ruling in Lyons Case ASBESTOS UPDATE: GlaxoSmithKline Motion Granted in Allgood Case ASBESTOS UPDATE: GenCorp Inc. Still Facing 135 Cases at Aug. 31 ASBESTOS UPDATE: 16 Lawsuits Filed in Madison During Sept. 21-25 ASBESTOS UPDATE: Morrison-Clark Faces Penalty for CAA Violations ASBESTOS UPDATE: Crissy Sinopole Campaigns v. Asbestos Practices ASBESTOS UPDATE: Inquest Rules on Burnley Hospital Worker Death ASBESTOS UPDATE: East Sussex Builder's Death Linked to Exposure ASBESTOS UPDATE: $550T Set Aside for Courthouse Cleanup, Repairs ASBESTOS UPDATE: Berkhamsted Builder's Death Linked to Exposure ASBESTOS UPDATE: Cleanup at Smith, Lowell Schools to Cost $300K ASBESTOS UPDATE: Asbestos Removed From Phoenix, Ariz., Building ASBESTOS UPDATE: Hazard Uncovered at Cass Street Bridge in Fla. ASBESTOS UPDATE: Hazard Forces Closure of Fulton School in Ill. ASBESTOS UPDATE: Minn. Appeal Court Upholds Ruling in Rock Case ASBESTOS UPDATE: Appeal Court Affirms Ruling in Walmach Lawsuit ASBESTOS UPDATE: Appeal Court Upholds Board Ruling in White Case ASBESTOS UPDATE: Forse's Action v. Texaco Filed Oct. 7 in Texas ASBESTOS UPDATE: Asbestos Found in 34 of 66 Buildings in Seoul ASBESTOS UPDATE: Cambridgeshire Inquest Rules on Hornsby's Death ASBESTOS UPDATE: James Hardie Files Liability Claim v. CSR Ltd. ASBESTOS UPDATE: 1st Newman Case Filed on Oct. 1 v. 31 Companies ASBESTOS UPDATE: 3rd Newman Action Filed in Jefferson on Oct. 7 ASBESTOS UPDATE: Hazard to be Removed from Fort Collins Building ASBESTOS UPDATE: Exposure Lawsuit Filed Against Westshore Hotel ASBESTOS UPDATE: Wokingham Council Tenants "At Risk" From Hazard ASBESTOS UPDATE: Family of Welling Worker Gets GBP110T in Payout ASBESTOS UPDATE: CSX Transportation Seeks Renewal of Harron Case ASBESTOS UPDATE: Court Issues Split Ruling in Schneiderhan Case ASBESTOS UPDATE: Allen Remand Bid Denied in Case v. Buffalo, GE ASBESTOS UPDATE: Wight Remand Bid Denied in Case v. Buffalo, GE ASBESTOS UPDATE: Ohio Appeals Court Issues Rulings in Perez Case ASBESTOS UPDATE: Case v. TH Agriculture Plan Resolved in 3rd-Qtr ASBESTOS UPDATE: Goates Lawsuit v. Chevron Filed Oct. 7 in Texas ASBESTOS UPDATE: Pilcher Case v. Chevron Filed in Jefferson Co. ASBESTOS UPDATE: Pickles, ATS to be Probed for Botched Abatement ASBESTOS UPDATE: Probe on Docking of U.S. Ship in Alang Ongoing ASBESTOS UPDATE: Abatement at Rochester's Midtown Plaza Underway ASBESTOS UPDATE: Trial in Mancuso Asbestos Case to Start Oct. 19 ASBESTOS UPDATE: Dist. Court Remands Wring Action to Madison Co. ASBESTOS UPDATE: District Court Remands Diaz Case to Madison Co. ASBESTOS UPDATE: District Court Remands Funk Case to Madison Co. ASBESTOS UPDATE: Dist. Court Remands Yates Action to Madison Co. ********* ALLEN-VANGUARD: Sued for Financial Misrepresentations in Ontario ---------------------------------------------------------------- Barry Critchley at the Financial Post reports that an $80-million class-action lawsuit has been filed against Ottawa-based Allen- Vanguard Corp. by London-based Siskinds LLP. The so-called notice of action also names a number of Allen-Vanguard's current and former officers and directors. The class action, filed in the Ontario Superior Court of Justice but not yet certified, seeks a "declaration that the defendants misrepresented the true financial condition of Allen-Vanguard Corp. in the period between Aug. 3, 2007, and Sept. 12, 2009." The earlier data relates to the day Allen-Vanguard announced the purchase of Med-Eng Systems Inc. for $600-million with another $50-million set aside for the purchase of excess working capital. "Med-Eng is clearly an exceptional strategic fit with Allen- Vanguard and meets our other stated acquisition criteria of scale, geographic balance, and strong growth and earnings visibility," said David Luxton, Allen-Vanguard's chief executive at the time of the announcement. "We are pleased to have been able to structure the financing for this major transaction with an ultimate combination of one half debt and one half new equity in Allen-Vanguard," he added. About six weeks later, Allen-Vanguard closed a $300-million equity financing with each of the 31.58 million shares being sold for $9.50 a share. At the time of the closing, Allen-Vanguard was a $1-billion company. The class period ends on Sept. 12, the same day Allen-Vanguard announced a transaction with Versa Capital Management, a private- equity firm. "The deal provides no consideration for the shareholders," said Allen-Vanguard when announcing that transaction. Over the next few weeks a detailed statement of claim will be filed. The suit alleges Allen-Vanguard overpaid by "at least $250-million" to purchase Med-Eng and that "the defendants did not conduct proper due diligence in advance of the transaction and turned a blind eye to the grossly excessive consideration being paid by Allen-Vanguard for Med-Eng. " The suit further alleges that "because Allen-Vanguard has materially overpaid for Med-Eng, it was forced to take writedowns during the class period amounting to in excess of $516.3- million." Because Allen-Vanguard "failed to take the writedowns in a timely fashion ... the shares of Allen-Vanguard were materially overvalued throughout the class period and the plaintiff [Claude Laneville] and the class members paid an excessive price for the Allen-Vanguard securities that they purchased during the class period," the lawsuit alleges. Aside from alleging "secondary market liability," the suit also takes aim at prospectus liability, under the Ontario Securities Act. The suit alleges the company filed two prospectuses over the class period -- the first on Sept. 21 2007 (for $300-million of equity) and the second on Feb. 10, 2009 (for a $14.1-million rights offering) -- both of which "failed, however, to make full true and plain disclosure of all material facts related to such shares [being offered] in that it failed to disclose the matters complained of herein." The suit also alleges oppressive conduct under the Business Corporations Act. None of the claims have been proven in court. Mr. Critchley's calls to Allen-Vanguard seeking comment weren't returned. ELEKTRO: Brazilian AEI Unit Battles Privatization Class Action -------------------------------------------------------------- Class actions against AEI's Brazilian subsidiary, Elektro, over its privatization are pending. In July 1998, two separate class actions were filed against Elektro and others. Each of these actions seek the annulment of the privatization of Elektro and allege, among other things, that the price paid for Elektro was low and unacceptable. Elektro has been advised by external counsel that it has solid legal grounds on which to have each of the cases dismissed, according to AEI's Oct. 7, 2009, Form F-1 filing with the U.S. Securities and Exchange Commission. AEI owns and operates essential energy infrastructure assets in emerging markets. It operates in 19 countries in Latin America, Central and Eastern Europe and Asia in Power Distribution, Power Generation, Natural Gas Transportation and Services, Natural Gas Distribution and Retail Fuel. It operates or has joint control of more than 50 businesses and has investments in more than ten others. GENERAL NUTRITION: Defending Suits Over Sale of Andro Products -------------------------------------------------------------- General Nutrition Centers, Inc., continues to defend six purported class-action lawsuits filed in connection with Andro Products. Lawsuits relating to the sale by GNC of certain nutritional products alleged to contain the ingredients commonly known as Androstenedione, Androstenediol, Norandrostenedione, and Norandrostenediol (AndroProducts) were filed against the company in California, New Jersey, Pennsylvania, and Florida. In each of the five cases, the plaintiffs have sought, or are seeking, to certify a class and obtain damages on behalf of the class representatives and all those similarly situated who purchased certain nutritional supplements from the company alleged to contain one or more Andro Products. On April 17-18, 2006, the company filed pleadings seeking to remove each of the Andro Actions to the respective federal district courts in which the respective Andro Actions are pending. At the same time, the company filed motions seeking to transfer each of the Andro Actions to the U.S. District Court for the Southern District of New York based on "related to" bankruptcy jurisdiction, as one of the manufacturers supplying them with Andro Products, and to whom they sought indemnity -- MuscleTech Research and Development, Inc. -- filed for bankruptcy. The company was successful in removing the New Jersey, New York, Pennsylvania, and Florida Andro Actions to federal court. These actions were then transferred to the U.S. District Court for the Southern District of New York based on bankruptcy jurisdiction. The California case was not removed and remains pending in state court. Following the conclusion of the MuscleTech Bankruptcy case, the plaintiffs, in September 2007, filed a stipulation dismissing all claims related to the sale of MuscleTech products in the four cases currently pending in the U.S. District Court for the Southern District of New York (New Jersey, New York, Pennsylvania, and Florida cases). Additionally, the plaintiffs filed motions to remand these actions to the respective state courts where they were originally filed, asserting that the federal court is divested of jurisdiction because the MuscleTech bankruptcy action is no longer pending. The motions to remand remain pending before the District Court. That motion was never ruled upon and has been rendered moot by the disposition of the case. On June 4, 2008, the U.S. District Court, Southern District of New York (on its own motion) set a hearing for July 14, 2008 for the purpose of hearing argument as to why the New Jersey, New York, Pennsylvania, and Florida cases should not be dismissed for failure to prosecute in conformity to the Court's Case Management Order. Following the hearing, the Court advised that all four cases would be dismissed with prejudice and issued an Order to that effect on July 29, 2008. On Aug. 25, 2008, plaintiffs appealed the dismissal of the four cases to U.S. Court of Appeals for the Second Circuit. Appellate briefs were submitted by all parties in January 2009 and the Company is awaiting a decision by the Court. In the Guzman case in California, plaintiffs' Motion for Class Certification was denied on Sept. 8, 2008. Plaintiffs appealed on Oct.31, 2008. The company expects to submit an appellate brief in October 2009. Oral arguments have not been scheduled are pending, according to GNC's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Oct. 3, 2008, the plaintiffs in the five other Andro Actions filed another suit related to the sale of Andro products in state court in Illinois, "Stephens and Pio v. General Nutrition Companies, Inc." (Case No. 08 CH 37097, Circuit Court of Cook County, Illinois, County Department, Chancery Division). The allegations are substantially similar to all of the other Andro Actions. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a holding company that, through its subsidiaries, operates as a global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplements (VMHS) products, sports nutrition products, diet products and other wellness products. Its product mix is sold under its GNC brands, including Mega Men, Ultra Mega, Pro Performance and Preventive Nutrition, and under third-party brands. The company operates through three business segments: Retail, Franchise and Manufacturing/Wholesale. The Retail segment generates revenues primarily from sales of products to customers at Company-owned stores in the U.S. and Canada, and through GNC's Web site at http://www.gnc.com/ The Franchise segment consists of the Company's domestic and international franchise operations. The Manufacturing/Wholesale segment consists of GNC's manufacturing operations in South Carolina and its wholesale sales business. GENERAL NUTRITION: CBPC Claims in "Ahussain" Dismissed in March ---------------------------------------------------------------- The California Business & Professions Code claims in a purported class-action suit against units of General Nutrition Centers, Inc., were dismissed by the U.S. District Court for the Central District of California in March 2009. On Nov. 7, 2006, Abdul Ahussain, on behalf of himself and all others similarly situated, sued GNC Franchising, LLC, and General Nutrition Corp. The plaintiffs, who are all current franchisees, filed a putative class action lawsuit seeking to certify a class of current and former California GNCF franchisees. The suit alleges that GNC engages in unfair business practices designed to earn a profit at its franchisees' expense. These alleged practices include: -- requiring its franchises to carry slow moving products, which cannot be returned to GNC after expiration, with the franchise bearing the loss; -- requiring franchised stores to purchase new or experimental products, effectively forcing the franchisees to provide free market research; -- using the Gold Card program to collect information on franchised store customers and then soliciting business from such customers; -- underselling its franchised stores by selling products through the GNC website at prices below or close to the wholesale price, thereby forcing franchises to sell the same products at a loss; and -- manipulating prices at which franchised stores can purchase products from third-party suppliers, so as to maintain GNC's favored position as a product wholesaler. The plaintiffs are seeking damages in an unspecified amount and equitable and injunctive relief. On March 19, 2008, the court certified a class as to only plaintiffs' claim for violation of California Business & Professions Code, Section 17200 et seq. The class consists of all persons or entities who are or were GNC franchisees in the State of California from Nov. 13, 2002, to the date of adjudication. The plaintiffs' individual claims were settled and dismissed. On March 18, 2009, the company's motion for summary judgment was granted as to the CBPC class claim. In April 2009, GNC filed a motion for court costs and attorneys' fees and the court ordered the plaintiffs to pay approximately $0.4 million to GNC for its fees and costs, according to GNC's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. The suit is Ahussain v. GNC Franchising LLC, Case No. 2006-cv- 01090 (C.D. Calif.) (Carter, J.) Representing the plaintiffs are: Abel E. Aguilera, Esq. BOHM MATSEN KEGEL AND AGUILERA 695 Town Center Drive, Suite 700 Costa Mesa, CA 92626 Phone: 714-384-6500 E-mail: eaguilera@bmkalaw.com - and - Omar Ahmed Siddiqui, Esq. ULWELLING SIDDIQUI Park Tower 695 Town Center Drive, Suite 700 Costa Mesa, CA 92626 Phone: 714-384-6650 E-mail: osiddiqui@usllp.com Representing the defendants are: Christopher C. Eck, Esq. GENERAL NUTRITION CORPORATION 300 Sixth Avenue Pittsburg, PA 15222 Phone: 412-288-4600 E-mail: chris-eck@gnc-hq.com - and - Brad A. Funari, Esq. MCGUIRE WOODS Dominion Tower 625 Liberty Avenue, 23rd-27th Floors Pittsburg, PA 15222 Phone: 412-667-6000 E-mail: bfunari@mcguirewoods.com GENERAL NUTRITION: Reached Settlement of Creatine Suit in July ---------------------------------------------------------------- General Nutrition Centers, Inc., and one of its wholly owned subsidiaries, General Nutrition Corporation, reached a settlement of the complaint filed by plaintiff S.K., on behalf of himself and all others similarly situated in July 2009. The plaintiff filed the complaint on Oct. 29, 2008, in the U.S. District Court for the Southern District of New York. The plaintiff makes certain allegations regarding consumption of GNC products containing creatine and GNC's alleged failure to warn consumers of those risks. The plaintiff asserts, among other things, claims for deceptive sales practices, fraud, breach of implied contract, strict liability and related tort claims. The plaintiff seeks unspecified monetary damages. In July 2009, a settlement was reached, contemplating payment of an immaterial amount by GNC, and the parties are preparing a written settlement agreement at this time, according to GNC's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a holding company that, through its subsidiaries, operates as a global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplements (VMHS) products, sports nutrition products, diet products and other wellness products. Its product mix is sold under its GNC brands, including Mega Men, Ultra Mega, Pro Performance and Preventive Nutrition, and under third-party brands. The company operates through three business segments: Retail, Franchise and Manufacturing/Wholesale. The Retail segment generates revenues primarily from sales of products to customers at Company-owned stores in the U.S. and Canada, and through GNC's Web site at http://www.gnc.com/ The Franchise segment consists of the Company's domestic and international franchise operations. The Manufacturing/Wholesale segment consists of GNC's manufacturing operations in South Carolina and its wholesale sales business. GENERAL NUTRITION: Defends Remaining Claims in "Jackson" Lawsuit ---------------------------------------------------------------- General Nutrition Centers, Inc., is defending the remaining claims in a consumer class and representative action filed by Grady Jackson, on behalf of himself and all others similarly situated. On Nov. 10, 2008, Mr. Jackson filed a complaint against General Nutrition Corporation and General Nutrition Centers, Inc. in the Superior Court of the State of California for the County of Alameda. On Dec. 15, 2008, the matter was removed to the U.S. District Court, Northern District of California. This consumer class and representative action brought under California Unfair Competition and False Advertising Law asserts, among other things, that the non-GNC product "Nikki Haskell's Star Caps" contained a prescription diuretic ingredient that was not disclosed on the label. On March 31, 2009, GNC filed a motion to dismiss. By order dated June 10, 2009, the court dismissed three of the seven counts asserted by plaintiffs, according to GNC's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a holding company that, through its subsidiaries, operates as a global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplements (VMHS) products, sports nutrition products, diet products and other wellness products. Its product mix is sold under its GNC brands, including Mega Men, Ultra Mega, Pro Performance and Preventive Nutrition, and under third-party brands. The company operates through three business segments: Retail, Franchise and Manufacturing/Wholesale. The Retail segment generates revenues primarily from sales of products to customers at Company-owned stores in the U.S. and Canada, and through GNC's Web site at http://www.gnc.com/ The Franchise segment consists of the Company's domestic and international franchise operations. The Manufacturing/Wholesale segment consists of GNC's manufacturing operations in South Carolina and its wholesale sales business. GENERAL NUTRITION: Defends Five Suits Over Consumer Fraud Claims ---------------------------------------------------------------- General Nutrition Centers, Inc., is defending five putative class actions generally alleging claims of consumer fraud, misrepresentation, strict liability, and breach of warranty. The suits are: -- Andrew Dremak, et al. v. Iovate Health Sciences Group, Inc., et al., U.S. District Court, Southern District of California; -- Enjoli Pennier, et al. v. Iovate Health Sciences, et al., U.S. District Court, Eastern District of Louisiana; -- Alejandro M. Jimenez, et al. v. Iovate Health Sciences, Inc., et al., U.S. District Court, Eastern District of California; -- Amy Baker, et al. v. Iovate Health Sciences USA, Inc., et al., U.S. District Court, Northern District of Alabama; and -- Kyle Davis and Sara Carreon, et al. v. Iovate Health Sciences USA, Inc., et al., U.S. District Court, Northern District of Alabama. Any liabilities that may arise from these matters are not probable or reasonably estimable at this time, according to GNC's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a holding company that, through its subsidiaries, operates as a global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplements (VMHS) products, sports nutrition products, diet products and other wellness products. Its product mix is sold under its GNC brands, including Mega Men, Ultra Mega, Pro Performance and Preventive Nutrition, and under third-party brands. The company operates through three business segments: Retail, Franchise and Manufacturing/Wholesale. The Retail segment generates revenues primarily from sales of products to customers at Company-owned stores in the U.S. and Canada, and through GNC's Web site at http://www.gnc.com/ The Franchise segment consists of the Company's domestic and international franchise operations. The Manufacturing/Wholesale segment consists of GNC's manufacturing operations in South Carolina and its wholesale sales business. LUND UNIVERSITY: Varsity Sued Over Affirmative Action --------------------------------------------------------- AFP reports that a group of Swedish women filed a class-action lawsuit against a university Wednesday because it gave under- represented male students admissions priority, their lawyer said. "These women wanted to study psychology, but they were not competing on equal terms with men. . . . The case is all about equal treatment," lawyer Clarence Crafoord told AFP. Mr. Crafoord represents 31 women who were refused admission in 2008 to the competitive psychology programme at Lund University, one of Sweden's largest higher learning institutes. That year, the university started giving priority to men applying for the psychology programme because women applicants were over- represented. Women represent about 60 percent of university students in Sweden, a pioneer in gender equality. The government has allowed universities to practise affirmative action since 2003. "It is almost always women who are treated unfairly when institutions of higher education give automatic priority to applicants of the under-represented sex," Mr. Crafoord and fellow lawyer Gunnar Stroemmer wrote in an open letter published Wednesday in the Dagens Nyheter newspaper. They pointed out that three-quarters of Sweden's largest academic institutions have affirmative action admission policies, and that it is women who are discriminated against in 95 percent of cases. Mr. Crafoord explained that there were no legal means to force the university to admit the women, but that they were each suing for 75,000 kronor (7,300 euros, 10,850 dollars) in damages. The lawyers are also lodging a separate complaint against the country's equality ombudsman -- a government agency which advises on and investigates cases of discrimination -- because it refused to hear the women's case. "The lawyers at the equality ombudsman have said it is illegal (for a university to apply affirmative action), and even so they have chosen not to do anything," Mr. Crafoord said. He added they were asking the justice ombudsman, an agency that ensures that public authorities comply with the law, to examine the matter. MATTEL INC: Settles 22 Lead-Containing Toy Recall Lawsuits ---------------------------------------------------------- John J. Stoia, Jr., Esq., of Coughlin Stoia Geller Rudman & Robbins LLP, announced a landmark action settlement this week involving the largest recalls of children's toys in history. Through the settlement, Mattel and Fisher-Price agreed to provide refunds and other monetary relief to millions of families who purchased children's toys made in China. The toys were recalled or withdrawn from the market in 2006 and 2007, after they were found to exceed legal limits of lead in the paint or plastic of the toy or small magnets that could become loose and harm children if ingested. T he affected toys include popular lines including certain Sesame Street toys, Dora the Explorer and Diego toys made by Fisher-Price, and certain Mattel toys, such as Batman, Polly Pocket, Barbie accessories, and Sarge cars. The proposed consumer class action settlement will resolve twenty-two class action lawsuits filed against Mattel and Fisher- Price and major retailers on behalf of millions of American children and families who purchased or received the defective toys as gifts before they were later recalled or withdrawn from market. Mattel entered into the settlement on behalf of itself, its subsidiary Fisher-Price, and the retailer defendants. If approved by the Court, the settlement will require Mattel and Fisher-Price to provide refunds to consumers who purchased or acquired the toys, as well as reimburse families who incurred costs for testing their children for lead exposure. Class members who participated in the prior recalls of the affected toys will automatically receive a check. Mattel will also implement a quality assurance program, overseen by the Court, which will ensure the safety of Mattel and Fisher-Price toys all around the world, and it will donate $275,000 to the National Association of Children's Hospitals and Related Institutions, a not-for-profit association of 150 children's hospitals, pediatric units of medical centers and related health systems. "Families deserve to trust that toys labeled as safe won't harm their kids," said John J. Stoia, Jr., Esq., of Coughlin Stoia, one of the Co-Lead Counsel representing consumers. "Thanks to this important victory for consumers as a result of this landmark settlement involving toys made by the largest toy company in the world, families can shop with a greater sense of security when purchasing toys," Mr. Stoia added. Last year, the Honorable Dale S. Fischer of the U.S. District Court for the Central District of California refused defendants' attempts to dismiss the case on the basis that they had offered consumers vouchers or replacement toys as part of a recall program. "Defendants' argument that some Plaintiffs have not been injured because they received replacement toys in the voluntary recalls is unpersuasive," declared Judge Fischer in her order rejecting the corporations' request to dismiss the case. To receive a payment, learn more about the settlement, and get a list of toys at issue, visit http://www.MattelSettlement.com/or http://www.CSGRR.com/Mattel About Coughlin Stoia Coughlin Stoia -- http://www.csgrr.com/-- is the nation's pre- eminent class action law firm with 190-lawyers in offices in San Diego, San Francisco, Los Angeles, New York, Boca Raton, Washington, D.C., Philadelphia and Atlanta. Coughlin Stoia is active in major litigations pending in federal and state courts throughout the United States and has taken a leading role in many important actions on behalf of defrauded investors, consumers, and companies, as well as victims of human rights violations. MAXXAM INC: Shareholder Challenges Reverse Stock Split in Del. -------------------------------------------------------------- Courthouse News Service reports that shareholders say Maxxam's proposed reverse stock split would breach fiduciary duty by suspending its financial reporting obligations and deregistering its common stock, in Delaware Chancery Court. Maxxam is a real estate and golf course developer. A copy of the Complaint in Gayner, et ux. v. Maxxam Inc., et al., Case No. 4971 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2009/10/13/SCAMaxxam.pdf The Plaintiffs are represented by: Aaron Brody, Esq. STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Telephone: 212-687-7230 - and - Joseph H. Weiss, Esq. WEISS & LURIE 551 Fifth Avenue New York, NY 10176 Telephone: 212-682-3025 - and - Brian D. Long, Esq. Seth D. Rigrodsky, Esq. Timothy J. MacFall, Esq. RIGRODSKY & LONG, P.A. 919 N. Market St., Suite 980 Wilmington, DE 19801 Telephone: 302-295-5310 MERIX CORP: Remanded Oregon Securities Fraud Suit in Discovery -------------------------------------------------------------- The remanded consolidated securities fraud class-action suit, Central Laborers Pension Fund v. Merix Corp. et al, Case No. 04-cv-00826, is in the discovery phase. On June 17, 2004, the company and certain of its executive officers and directors were named as defendants in the first of four purported class action suits alleging violations of federal securities laws. These four cases, which were filed in the U.S. District Court for the District of Oregon, have been consolidated in a single action entitled, "In re Merix Securities Litigation, Lead Case No. CV 04-826-MO." The court appointed a lead plaintiff, who filed a consolidated and amended class action complaint on Nov. 15, 2004. On March 3, 2005, the company filed a motion to dismiss the amended and consolidated complaint for failure to identify with sufficient specificity the statements that plaintiffs allege to have been false and why the statements were either false when made or material. On Sept. 15, 2005, the court dismissed the case, without prejudice, and gave the plaintiffs leave to amend their complaint. In November 2005, the lead plaintiff filed an amended complaint. The complaint, as amended, alleges that the defendants violated the federal securities laws by making certain alleged inaccurate and misleading statements in the prospectus used in connection with the January 2004 public offering of approximately $103.4 million of the company's common stock. In September 2006, the court dismissed that complaint with prejudice. The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. In April 2008, the Ninth Circuit reversed the dismissal of the Second Amended Complaint. The company sought rehearing and a rehearing en banc, both of which were denied. The company obtained a stay of the mandate from the Ninth Circuit and will file a certiorari petition with the U.S. Supreme Court by Sept. 22, 2008. On Dec. 15, 2008, the Supreme Court denied the certiorari petition. The case has been remanded to the U.S. District Court for the District of Oregon. The plaintiffs seek unspecified damages. On May 15, 2009, the plaintiffs moved to certify a class of all investors who purchased in the public offering and who were damaged thereby. The Court has not yet ruled on that motion, according to the company's Oct. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 29, 2009. The suit is Central Laborers Pension Fund v. Merix Corp. et al., Case No. 04-cv-00826 (Ore.) (Mosman, J.) Representing the plaintiffs are: Gregory M. Castaldo, Esq. Stuart L. Berman, Esq. Darren J. Check, Esq. Sean M. Handler, Esq. Andrew L. Zivitz, Esq. SCHIFFRIN & BARROWAY, LLP Three Bala Plaza East, Suite 400 Bala Cynwyd, PA 19004 Phone: 610-667-7706 Fax: 610-667-7056 E-mail: gcastaldo@sbclasslaw.com sberman@sbclasslaw.com check@sbclasslaw.com shandler@sbclasslaw.com azivitz@sbclasslaw.com - and - Lori G. Feldman, Esq. MILBERG WEISS BERSHAD & SCHULMAN, LLP 1001 Fourth Ave., Suite 2550 Seattle, WA 98154 Phone: 206-839-0730 Fax: 206-839-0728 E-mail: lfeldman@milbergweiss.com Representing the defendants are: Richard L. Baum, Esq. PERKINS COIE, LLP 1120 NW Couch St., 10th Floor Portland, OR 97209-4128 Phone: 503-727-2021 Fax: 503-727-2222 E-mail: baumr@perkinscoie.com - and - Joseph E. Bringman, Esq. Ronald L. Berenstain, Esq. Douglas W. Greene, III, Esq. PERKINS COIE, LLP 1201 Third Ave., Suite 4800 Seattle, WA 98101-3099 Phone: 206-359-8501 206-359-8477 206-359-8613 Fax: 206-359-9000 206-359-9477 206-359-9613 E-mail: jbringman@perkinscoie.com RBerenstain@perkinscoie.com DGreene@perkinscoie.com MICROSOFT: Sued, with T-Mobile, for Losing Sidekick Users' Data --------------------------------------------------------------- A class action lawsuit places the spotlight on T-Mobile, subsidiary of Deutsche Telekom (NYSE:DT) and Microsoft (NASDAQ:MSFT) for losing most all the contacts, appointments, photos and other data stored by as many as one million users of the popular T-Mobile Sidekick line of mobile phones. The T-Mobile Sidekick data service went down in early October and then T-Mobile admitted that Microsoft's Danger, Inc. subsidiary, which is responsible for the Sidekick data service, lost most all of the personal data it was entrusted with protecting, and that it was highly unlikely it would recover any data. The lawsuit alleges that T-Mobile, Microsoft, and Danger actively marketed the Sidekick mobile phones as automatically backing up all the data that users would store, such as contacts, appointments, photos and more, and then failed to follow through on these promises. According to the lawsuit, most Sidekick users have "suffered a complete and catastrophic" loss of data. The suit is brought by Maureen Thompson of the Atlanta area. Ms. Thompson owns a Sidekick used primarily by her daughter, K hryn Thompson-Gayle, an aspiring model, singer, and songwriter who used her Sidekick to store personal and business contacts, appointments, and even irreplaceable song lyrics not stored anywhere else. Ms. Thompson bought the Sidekick for her daughter primarily because T-Mobile promised that any data would be protected and available no matter what happened to the phone. Upon facing a barrage of criticism for this overwhelming data loss, T-Mobile has offered Sidekick users a free month of Sidekick data service worth about $20 and as much as $100 in credits to spend on T-Mobile products or services. "T-Mobile's initial efforts to reimburse Sidekick users are a step in the right direction, but fail to sufficiently compensate Sidekick users for this disastrous loss of data," explained Jay Edelson, Esq., the lead attorney for the class action. "T-Mobile and Microsoft promised to safeguard the most important data their customers possess and then apparently failed to follow even the most basic data protection principles. What they did is unthinkable in this day and age." The class action seeks injunctive relief and monetary damages for failing to protect Sidekick user data, and false advertising. Mr. Edelson's firm, KamberEdelson, LLC, is a leading class action firm that focuses on internet, technology, and privacy issues. According to Edelson, "this devastating data security failure demonstrates that companies must do more than promise security; they must actually take whatever steps are necessary to ensure that their customers' data are safe." Mr. Edelson is joined on the lawsuit by Michael Aschenbrener, Esq., of KamberEdelson. A copy of the Complaint is available at: http://www.prnewschannel.com/pdf/10-14-09_Complaint_SideKick.pdf Jay Edelson, Esq., testified before the U.S. in 2008 in connection with the contaminated pet food recall, which resulted in a settlement of over $24 million. He has a reputation for bringing and winning high profile class action lawsuits. Just last year, Edelson settled a nationwide case involving lead paint contamination with Thomas the Tank Engine & Friends Wooden Railway children's toys that was valued at over $30 million. Edelson's firm also was lead counsel in the lawsuits coming out of the 2008 contaminated pet food recall, which resulted in a settlement of over $24 million. Edelson testified before the U.S. Senate in connection with that case. PACE AIRLINES: Employee Alleges Improper Termination Notice ----------------------------------------------------------- MyFox8.com reports that a class action lawsuit was filed Tuesday by a former employee of Pace Airlines Inc. who alleges the company violated its employees' rights by not giving proper notice before they were terminated. Participants in the lawsuit are seeking 60 days of pay and other benefits, claiming Pace violated the WARN Act, which requires companies to give employees at least 60 days' notice before they are let go. Last month the charter airline company advised the Federal Aviation Administration it had temporarily ceased operations at its headquarters at Smith Reynolds Airport. Earlier, according to a memo to employees, Pace executives laid off all nonessential personnel. According to company executives, the reduction affected between 75 and 100 employees. Those cuts were in addition to earlier layoffs that affected up to 200 people. For weeks, employees had complained of not receiving paychecks and the company not paying their health insurance. Also last month, investigators from the Department of Insurance arrested Pace owner and CEO Bill Rodgers Sr. on charges he knowingly stopped paying his employee's medical insurance premiums without giving them proper notice. The North Carolina Department of Labor said it has more than 430 wage complaints against Pace Airlines. The company also owes the Forsyth Airport Commission a million dollars in rent and must vacate its space at Smith Reynolds sometime this month. The lawsuit was filed by Gregory J. Hensley and other former employees by Carruthers & Roth P.A. and Outten & Golden LLP. T-MOBILE: Sued, with Microsoft, for Losing Sidekick Users' Data --------------------------------------------------------------- A class action lawsuit places the spotlight on T-Mobile, subsidiary of Deutsche Telekom (NYSE:DT) and Microsoft (NASDAQ:MSFT) for losing most all the contacts, appointments, photos and other data stored by as many as one million users of the popular T-Mobile Sidekick line of mobile phones. The T-Mobile Sidekick data service went down in early October and then T-Mobile admitted that Microsoft's Danger, Inc. subsidiary, which is responsible for the Sidekick data service, lost most all of the personal data it was entrusted with protecting, and that it was highly unlikely it would recover any data. The lawsuit alleges that T-Mobile, Microsoft, and Danger actively marketed the Sidekick mobile phones as automatically backing up all the data that users would store, such as contacts, appointments, photos and more, and then failed to follow through on these promises. According to the lawsuit, most Sidekick users have "suffered a complete and catastrophic" loss of data. The suit is brought by Maureen Thompson of the Atlanta area. Ms. Thompson owns a Sidekick used primarily by her daughter, K hryn Thompson-Gayle, an aspiring model, singer, and songwriter who used her Sidekick to store personal and business contacts, appointments, and even irreplaceable song lyrics not stored anywhere else. Ms. Thompson bought the Sidekick for her daughter primarily because T-Mobile promised that any data would be protected and available no matter what happened to the phone. Upon facing a barrage of criticism for this overwhelming data loss, T-Mobile has offered Sidekick users a free month of Sidekick data service worth about $20 and as much as $100 in credits to spend on T-Mobile products or services. "T-Mobile's initial efforts to reimburse Sidekick users are a step in the right direction, but fail to sufficiently compensate Sidekick users for this disastrous loss of data," explained Jay Edelson, Esq., the lead attorney for the class action. "T-Mobile and Microsoft promised to safeguard the most important data their customers possess and then apparently failed to follow even the most basic data protection principles. What they did is unthinkable in this day and age." The class action seeks injunctive relief and monetary damages for failing to protect Sidekick user data, and false advertising. Mr. Edelson's firm, KamberEdelson, LLC, is a leading class action firm that focuses on internet, technology, and privacy issues. According to Edelson, "this devastating data security failure demonstrates that companies must do more than promise security; they must actually take whatever steps are necessary to ensure that their customers' data are safe." Mr. Edelson is joined on the lawsuit by Michael Aschenbrener, Esq., of KamberEdelson. A copy of the Complaint is available at: http://www.prnewschannel.com/pdf/10-14-09_Complaint_SideKick.pdf Jay Edelson, Esq., testified before the U.S. in 2008 in connection with the contaminated pet food recall, which resulted in a settlement of over $24 million. He has a reputation for bringing and winning high profile class action lawsuits. Just last year, Edelson settled a nationwide case involving lead paint contamination with Thomas the Tank Engine & Friends Wooden Railway children's toys that was valued at over $30 million. Edelson's firm also was lead counsel in the lawsuits coming out of the 2008 contaminated pet food recall, which resulted in a settlement of over $24 million. Edelson testified before the U.S. Senate in connection with that case. New Securities Fraud Cases ENERGYSOLUTIONS INC: Coughlin Stoia Files Fraud Suit in S.D.N.Y. ---------------------------------------------------------------- The City of Roseville Employees' Retirement System sued EnergySolutions, Inc., R. Steve Creamer, Philip O. Strawbridge, Jean I. Everest, II, Mark C. McBride, Alan E. Goldberg, Jordan W. Clements, Lance L. Hirt, Robert D. Lindsay, E. Gail De Planque, Robert J.S. Roriston, Andrew S. Weinberg, David B. Winder, Credit Suisse Securities (USA) LLC, J.P. Morgan Securities Inc., Morgan Stanley & Co. Incorporated and ENV Holdings, LLC, Case No. 09-cv- 08633 (S.D.N.Y.) (Koeltl, J.), on October 9, 2009, saying that the defendants made false and misleading statements in connection with the 2007 IPO and a secondary stock offering. The Plaintiff is represented by: Evan Jay Kaufman, Esq. David Avi Rosenfeld, Esq. Samuel Howard Rudman, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS, LLP (LI) 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 NOVAGOLD RESOURCES: Sutts Strosberg Files Fraud Suit in Ontario --------------------------------------------------------------- A class proceeding was commenced Wednesday in the Ontario Superior Court of Justice on behalf of all investors who acquired shares of Novagold Resources Inc. on the Toronto Stock Exchange during the period October 25, 2006, to January 16, 2008 (the "Class Period"). The plaintiff alleges that NovaGold, certain of its officers and directors and Hatch Ltd., engaged in violations of the Ontario Securities Act and the common law. The plaintiff, a resident of Ontario, has retained Sutts, Strosberg LLP, with offices in Toronto and Windsor, to prosecute the class action. The plaintiff alleges that throughout the Class Period, on the strength of a feasibility study authored by Hatch Ltd., the defendants regularly and systematically assured the investing public that the construction of NovaGold's Galore Creek project was on schedule and on budget. Such claims allowed NovaGold to raise hundreds of millions of dollars in the capital markets. On January 16, 2008, NovaGold admitted to investors that the "Study completed by Hatch Ltd. in October 2006 should not be relied upon." NovaGold's share price declined by more than 50% and litigation over NovaGold's disclosures was commenced in the United States. On June 9, 2009, an United States Federal Court ruled that "The plaintiff has pleaded with sufficient particularity facts supporting an inference that NovaGold knew that the Hatch Study and its cost estimate of USD $1.8 billion were unreliable and misleading shortly after release, if not at release, or that NovaGold was at least reckless in its public statements of reliance on the estimate... Despite such knowledge, NovaGold continued to tout the Hatch Study's figures throughout that year." Importantly, the United States federal court excluded from the U.S. litigation all purchasers who acquired NovaGold shares on the Toronto Stock Exchange. Sutts, Strosberg LLP pioneered securities class actions in Ontario and has recovered more than $100 million for its clients in securities class actions as a result of its involvement on the leadership team of many successful proceedings such as Bre-X, YBM Magnex, Southwestern Resources, Atlas Cold Storage and CV Technologies. Visit the Sutts, Strosberg LLP Web site at http://www.strosbergco.com/and http://www.novagoldclassaction.com/for more information about the firm and the NovaGold class action. CONTACT: Jay Strosberg, Esq. Sutts, Strosberg LLP Telephone: (519) 561-6285 E-mail: jay@strosbergco.com RETALIX LTD: Weiss & Lurie Files Class Action Suit in E.D. Tex. --------------------------------------------------------------- The law firm of Weiss & Lurie filed a class action lawsuit in the United States District Court for the Eastern District of Texas, on behalf of the public owners of the stock of Retalix, Ltd., (NASDAQ:RTLX), against certain officers and/or directors of Retalix, and other persons and entities who are parties to a proposed transaction through which the Company will enter into a Share Purchase Agreement with a group of Investors seeking to gain control of the Company. The complaint asserts claims against defendants Retalix, Retalix USA Inc., Gillon Beck, Brian Cooper, Ishay Davidi, Neomi Enoch, Zvi Lieber, Amnon Lipkin-Shahak, Ian O`Reilly, Barry Shaked, Gur Shomron, and Itschak Shrem for violations of their fiduciary duties of loyalty, good faith, due care, and full and fair disclosure. The complaint concerns the defendants' agreement to a Private Placement of Retalix stock with a group of Investors (the "Investors") at $9.10 per share; authorizing the Investors to launch a Tender Offer to gain a controlling interest in the Company at $9.10 a share; and giving the Investors millions of dollars worth of warrants. The consideration to be paid by the Investors is grossly inadequate and does not fairly value Retalix stock. Indeed, defendants Shaked and Cooper have agreed to sell all of their Retalix shares to the Investors at $12.00 per share, $2.90 per share more than the Investors will pay Retalix in the Private Placement or Retalix shareholders in the Tender Offer. Plaintiff is represented by the law firm of Weiss & Lurie which possesses significant experience and expertise in prosecuting class actions on behalf of shareholders in federal and state courts throughout the United States. Weiss & Lurie has been collectively responsible for recovering more than a billion dollars on behalf of class members. If you wish to discuss this action, have any questions concerning this notice or your rights or interests with respect to this matter, or if you have any information you wish to provide to us, please contact: Joseph H. Weiss, Esq. David C. Katz, Esq. Michael Rogovin, Esq. WEISS & LURIE The French Building 551 Fifth Avenue, Suite 1600 New York, NY 10176 Telephone: (212) 682-3025 E-mail: infony@weisslurie.com Asbestos Litigation ASBESTOS ALERT: Biffa to Pay GBP55T Penalty for Cleanup Breaches ---------------------------------------------------------------- Biffa Waste Services Limited, a waste management business, on Oct. 14, 2009, was handed down over GBP55,000 in fines and costs for the poor handling of asbestos, according to an Environment Agency press release dated Oct. 14, 2009. Derby Magistrates' Court heard that by not managing asbestos in the correct manner, Biffa exposed its staff and the environment to risk of harm. Biffa, which operates a landfill at Elvaston Quarry, Bellington Hill, near Shardlow, Derbyshire, England, was sentenced in relation to two charges of breaching its waste management license, specifically involved with the handling of asbestos. The Company was fined GBP40,000 and ordered to pay GBP15,400 in costs, along with a GBP15 victim surcharge. The charges were brought by the Environment Agency under Section 33 (6) of the Environmental Protection Act 1990. For the Environment Agency, Counsel Barry Berlin told the court that Biffa holds a Waste Management Licence for the Elvaston Quarry site. As the site operator, Biffa was responsible for controlling the deposit and safe handling of the waste it received. Around May 2007, Biffa was accepting brown and white asbestos and had to therefore adhere to its operational working plan and its Waste Management Licence. The Waste Management Licence required that asbestos be carefully deposited in pre-constructed lanes to contain it and make it easier to cover up and then contain it immediately to minimize the risk of any potentially harmful asbestos fibres escaping in to the air. On May 17, 2007, Environment Officers visited Elvaston Quarry and saw both bagged and sheet asbestos left exposed on site. The asbestos had not been tipped in pre-constructed lanes, it had not been covered up and no Biffa employees were in the tipping area to undertake or oversee activities. A Notice was served on Biffa requiring it to immediately comply with its Waste Management Licence and cover up any asbestos, which could potentially cause harm and ensure waste asbestos was correctly handled in future. Environment Officers returned to the site on May 21, 2007 and found asbestos was still not being handled or covered correctly. Biffa staff was still apparently unsure of the correct procedures to follow. Speaking after the case Mark Cunningham, an Environment Agency Team Leader involved in the investigation, said, "This persistent mishandling of asbestos plainly created a serious risk of asbestos fibres escaping and seems to have arisen from a combination of poorly trained staff and inadequate management on the part of Biffa. "I hope today's result sends a clear message that we won't hesitate to take strong action against anyone who shows disregard for public health or the environment. I would, however, like to reassure local residents and the public in general that we found no evidence that asbestos escaped from site." In mitigation, solicitor Stephen Toghill said the Company bitterly regretted the incident, staff had been retrained and there were no further incidents before the site was closed in October 2007. In sentencing, the District Judge stated that this was a case of persistent mishandling of asbestos. She also said these were serious breaches of the Act by a company without an unblemished record. ASBESTOS ALERT: Mass. Contractor Fined $16.7T for Cleanup Breach ---------------------------------------------------------------- The Massachusetts Department of Environmental Protection (MassDEP) levied a US$16,700 penalty against Environmental Restoration Services Corporation of Lawrence, Mass., for violating state asbestos regulations during a job in Westfield, according to a MassDEP press release dated Oct. 13, 2009. MassDEP's action followed receipt of a complaint regarding the improper removal of asbestos-containing thermal insulation at a former manufacturing facility, Columbian Mill at 1 Cycle Street, Westfield. During an inspection of the facility conducted on July 18, 2008, MassDEP found that Environmental Restoration Services had failed to employ asbestos removal, handling and disposal procedures designed to prevent the release of asbestos fibers. MassDEP ordered Environmental Restoration Services to develop and implement a Standard Operating Procedure for its asbestos abatement operations to ensure future compliance with the asbestos regulations. The Company will pay US$3,000 of the US$16,700 penalty. The remaining US$13,700 has been suspended by MassDEP during a two- year probationary period. Michael Gorski, director of MassDEP's Western Regional Office in Springfield, said, "Asbestos abatement contractors must be held accountable for the protection of the public health and welfare of their clients, their employees and the general public. "Mishandling asbestos-containing materials poses a serious health risk to those exposed and MassDEP will take firm enforcement action against chronic violators." ASBESTOS UPDATE: Aviva Reserves GBP1.019B for A&E Claims in 2008 ---------------------------------------------------------------- Aviva plc's net initial asbestos- and environmental-related reserves for unpaid losses and loss adjustment expenses were GBP1.019 billion as of Dec. 31, 2008, compared with GBP323 million as of Dec. 31, 2007. The Company's gross initial A&E reserves for unpaid losses and LAE were GBP1.994 billion as of Dec. 31, 2008, compared with GBP1.284 billion as of Dec. 31, 2007. The Company has exposure to liabilities for A&E claims arising from the sale of commercial liability and multi-peril policies prior to 1987. After 1987, policy terms and conditions in many cases excluded these types of claims, thereby considerably reducing the Company's potential for loss. The Company's estimation of latent claims reserves was revised in 2008 to reflect increasing market trends observed in mesothelioma claims. Most of the Company's latent claims reserves relate to mesothelioma-based risks in the U.K. The Institute of Actuaries' Asbestos Working Party report in 2008 contributed to the Company's view that experience variances, which the Company had previously perceived as normal short-term volatility, reflected a real worsening of expected ultimate claims experience. The market trend in mesothelioma claims has been fully reflected as a significant one-off strengthening of gross latent claims reserves in 2008 of GBP356 million, with a corresponding increase of GBP52 million in reinsurance recoverable. The net increase of GBP304 million in claims reserves comprises GBP668 million on an undiscounted basis and discounting of GBP364 million. While this is a significant change, it should be noted that this reflects the long-term impact of the settlement of latent claims currently running at GBP30 million per annum, of which GBP25 million relates to mesothelioma. The number of claims is currently predicted to rise slightly in the period to 2015 and then diminish slowly over the next 30 years to 2045. London-based Aviva plc provides life and pension products in the United Kingdom, Ireland, the Netherlands, Poland, Spain, France, Italy, and Romania. The Company seeks to grow its long-term and savings businesses in Asian markets and the United States. ASBESTOS UPDATE: Rushden & Higham Seeks Help on Hazard Abatement ---------------------------------------------------------------- Rushden & Higham United F.C., a football club based in Rushden, Northamptonshire, England, is calling for help on the removal of asbestos from the roof of one of its stands, the Evening Telegraph reports. The club seeks quotes to have the asbestos removed and has approached councils and other organizations for funding. The club has more than 200 members, ranging from children as young as eight to adults, and it cannot extend at the ground. The club has approached Rushden Town Council to ask for more sporting facilities to be created for footballers in the town either at the proposed Manor Park leisure centre complex or elsewhere. The club has sent the town council a letter, which will be shown to councilors at a future meeting. Club secretary Chris Ruff said, "We're still playing there but we've been told we won't be re-insured in the future. The stand includes our main changing rooms so if we cannot use that we wouldn't be able to play there. "We have been in the town as Rushden Rangers for almost 30 years and merged with Higham Town which has a history dating back more than 100 years." ASBESTOS UPDATE: Devon Local to Pay GBP3,412 for Disposal Breach ---------------------------------------------------------------- Roger Stanbury, of Devon, England, was ordered to pay GBP3,412 in fines and costs for tipping waste including asbestos on land at Holsworthy, Devon, according to an Environment Agency press release dated Sept. 28, 2009. On Aug. 7, 2008, Environment Agency officers visited a site near Rydon Lane, Holsworthy, Devon, to investigate a report of illegal waste dumping. On arrival they saw piles of building waste including rubble, wood, plastic and metals. Evidence of waste burning was found nearby. A large lorry had become stuck in mud while attempting to deposit soil at the site. There were mounds of soil from previous lorry deliveries. Mr. Stanbury, the owner, said he was tipping waste to increase the land level. The material had come from the "viaduct site" at Holsworthy. Agency officers explained he could not tip any more material at the site until he obtained the necessary permits and authorisations including planning permission. He was also told to stop burning waste. Despite receiving this advice, Mr. Stanbury continued to bring building waste to the site. On Oct. 30, 2008, Agency officers returned with a planning officer from Devon County Council who said Mr. Stanbury would not be given planning permission for the activities he was carrying out. He was told, by the Agency, to clear the site and ensure any waste was properly disposed of. On Jan. 29, 2009, officers returned and found that while some materials had been removed, the site still contained waste including asbestos sheets that had been newly dumped at the site. Robin Duffy for the Environment Agency said, "It is illegal for landowners to keep controlled waste on their land without an exemption or permit. This defendant continued to import waste including potentially hazardous materials such as asbestos despite being told to stop by the Agency." Mr. Stanbury, of The Holly, Rydon Lane, Holsworthy was fined GBP2,000 and ordered to pay GBP1,412 costs by Barnstaple magistrates after pleading guilty to two offences under the Environmental Protection Act 1990 including keeping controlled waste on land adjacent to Rydon Lane and keeping asbestos at the same site without an Environmental Permit. ASBESTOS UPDATE: A & T, Noble Gift Penalized for Cleanup Breach ---------------------------------------------------------------- Two companies, A & T Roofing Ltd and Noble Gift Packaging Ltd, were prosecuted after workers and members of the public were exposed to unacceptable levels of asbestos during a removal project, according to a Health and Safety Executive press release dated Oct. 7, 2009. The HSE took the companies to court on Oct. 6, 2009 after an unlicensed contractor carried out the specialist work at a warehouse in Brimsdown, Enfield, England. On Nov. 29, 2005, Noble Gift contracted A & T Roofing to remove the roof from a building on Lockfield Avenue. The roof was lined with 3,000 square meters of asbestos insulating board that contained Amosite (brown asbestos fibers), which requires removal in highly controlled conditions by licensed asbestos contractors. A & T Roofing, of 191 Bowes Road, Enfield, on Sept. 1, 2009, pleaded guilty at Southwark Crown Court to Regulation 3(1) of the Asbestos (Licensing) Regulations 1983, and Sections 2(1) and 3(1) Health & Safety at Work etc Act 1974. They Company was fined GBP25,000 and was ordered to pay costs of GBP33,844.30. Noble Gift, of 73 Lockfield Avenue, Enfield, on Oct. 28, 2008, pleaded guilty at the City of London Magistrates' Court to Section 3(1) Health & Safety at Work etc. Act 1974. The Company was fined GBP40,000 and was ordered to pay costs of GBP19,223.65. A & T Roofing employees spent 12 weeks removing and smashing the boards before sweeping the dust and debris into bags. The workers were not provided with effective protection, even after the company found out that the material being cleared contained Amosite. Managers allowed work to continue after employees complained and a tested sample showed the presence of asbestos. Workers at the site were exposed to potentially deadly fibres. These were carried on their clothes and into their homes, vehicles, onto public transport, and may have contaminated the general public and their own families. HSE Inspector Sarah Snelling said, "A & T Roofing Ltd's cavalier attitude towards the removal of the asbestos has put the future health of their employees, their employees' families and members of the public in general at serious risk. The exposure suffered by the men working on this project is the worst our specialist inspector has seen in over 15 years of dealing with asbestos cases. "Not everyone exposed to asbestos goes on to develop life- threatening or terminal asbestos-related conditions such as lung cancer, asbestosis or mesothelioma. However, when people do develop such conditions, it is often many years after they were exposed. All the men exposed, and their families, will have this hanging over them for the rest of their lives." Ms. Snelling added, "The actions of A & T Roofing Ltd in this matter were unpardonable; they were told two weeks into the project that they were working with brown asbestos but carried on for another 10 weeks. "Noble Gift Packaging Ltd, as client for the work, should have taken the basic step of having a full asbestos survey done after they were informed in a valuation survey that the roof contained asbestos. This could have prevented this whole tragic case." ASBESTOS UPDATE: Beeston Electrician's Death Linked to Exposure ---------------------------------------------------------------- An inquest at Nottingham, England, heard that the death of 73- year-old electrician, Neil Copley, was linked to workplace exposure to asbestos, the Evening Post reports. Mr. Copley, of Beeston, Nottinghamshire, England, was found dead at home on Sept. 25, 2009. A post-mortem examination showed he died from broncho-pneumonia arising from pulmonary fibrosis. A verdict of death by industrial disease was recorded. ASBESTOS UPDATE: Fla. Suit v. EPA on Marco Island Issues Ongoing ---------------------------------------------------------------- Mario Sanchez, a Marco Island, Fla., Resident and a Miami-Dade College professor, sued the U.S. Environmental Protection Agency, alleging the EPA did not release information about asbestos found in 2005 on city property as required by the Freedom of Information Act, the Marco Eagle reports. Marco Public Information Coordinator Lisa Douglass confirmed asbestos fragments existed on a construction staging site, which is now Veterans' Community Park. Ms. Douglass, who, before being hired as the City spokeswoman, was the ombudsman for the Florida Department of Environmental Protection and was addressing Marco residents' environmental complaints sent to DEP. In addition to asbestos fragments, Mr. Sanchez alleges that other toxic materials were handled improperly between January 2005 and December 2007. The lawsuit alleges that the city pumped untreated hydrogen sulfide, sulfuric acid and sediment into waterways. On Sept. 18, 2009, Mr. Sanchez filed his lawsuit without an attorney in U.S. District Court in Fort Myers, Fla. In his Freedom of Information Act request, Mr. Sanchez sought all EPA documents involving Marco Island between January 2005 and July 31, 2008. Mr. Sanchez's lawsuit says the EPA informed him that his public information request was denied because people investigated by the EPA "may be embarrassed" by the release of such information. EPA spokeswoman Deb Berlin said, "We take FOIA responsibilities very seriously. Once the complaint is received, we will look into the allegations and respond as is consistent with the law." Although it is the EPA' policy not to comment on pending litigation, Ms. Berlin said EPA officials and attorneys are putting a lot of energy into investigating Sanchez's allegations of FOIA violations. The issue began in October 2005, when crushed asbestos pipe was discovered on the park property, prompting allegations against the city and Quality Enterprises, a contractor the city hired to complete the Collier Boulevard Reconstruction Project. City officials disputed the contentions, accusing residents of planting the asbestos to derail the ongoing construction on Marco. Police Chief Thom Carr said detectives closed their investigation into the planted asbestos theory after determining the allegations were unfounded. In March 2006, Citizens Advocating Responsible Environmental Solutions (CARES), a former political action committee, filed a lawsuit in U.S. District Court over the asbestos allegations. That lawsuit, which accused the city of violating the federal Clean Air Act, ended in a settlement agreement in October 2006 that required Quality Enterprises to pay for the proper removal and disposal of the asbestos. When the allegations surfaced, former Marco Island resident Ed Foster, Godfrey Davies, Mr. Sanchez and other residents collected and reported evidence to support their contentions that Marco's underground water, which contains hydrogen sulfide, was pumped into canals to make way for the construction of the island's Septic Tank Replacement Program. At the time, many residents reported allergic reactions to a rotten egg smell that is associated with hydrogen sulfide. The Collier County Department of Health checked the health concerns residents raised over the construction on Collier Boulevard as well as the Septic Tank Replacement Program, which began in 2005. The process has since changed, according to Ms. Douglass, who said underground water related to the ongoing sewer project is now sent to the treatment plant. In 2007, DEP and the South Florida Water Management District ordered Marco Island to stop discharging waste into state waters. However, the order did not result in fines. Mr. Sanchez contends that waiting for the information is like waiting for those who perpetrated the environmental crimes to serve prison time. ASBESTOS UPDATE: Hazard to Be Removed from Tucumcari, N.M. Site --------------------------------------------------------------- City Commissioners in Tucumcari, N.M., have tasked City Manager Bobbey Rose to deal with asbestos and other contaminants at the Sands Dorsey Building, Mesothelioma.com reports. The Sands Dorsey is a historic building that was damaged over two years ago in a fire. Commissioner Jim Lafferty said, "We are no closer to a solution then when we began these discussions two years ago." The cost of demolition, abatement, and disposal is prohibitive, and a major source of contention for city officials. Lead, mercury and asbestos were found in the materials at the site. Doug Powers, Tucumcari's Community Development director said, "Because of levels of containments, demolition and transportation of the waste changes drastically. We can not just tear it down and throw it in our landfill. One possible solution is seeking Brownfield Funds." Mr. Rose is demanding that action be taken swiftly. ASBESTOS UPDATE: Superior Abatement Penalized for Cleanup Breach ---------------------------------------------------------------- The New York State Department of Labor cited Superior Abatement Inc., a West Caldwell, N.J.-based contractor, with five asbestos- related safety violations during cleanup at the Roosevelt High School in Roosevelt, Long Island, N.Y., Newsday reports. The state inspection report was obtained by Newsday on Oct. 6, 2009. The state Department of Labor has cited Superior Abatement with five safety violations in the asbestos removal, part of a renovation project that has both teachers and students complaining of a rain of noxious dust, which the district said was Styrofoam being removed. Citations were issued after the inspector on Sept. 4, 2009, before the school year began, observed a "plume of white dust" rising along a wall atop the 54-year-old high school. The citations, issued after the Sept. 4, 2009 inspection, observed three workers not wearing required respirators as the dust rose during the asbestos removal work. On Oct. 6, 2009, department spokeswoman Karen Williamson said that an inspector returned to the school on Oct. 2, 2009 in response to further complaints about roofing work. A second investigation is under way. However, an assistant Roosevelt schools superintendent, David Weiser, said on Oct. 6, 2009 in a phone interview that material spotted falling from the roof by teachers during the school year was Styrofoam insulation removed by another contractor, not the potentially hazardous asbestos described in the inspector's report. Mr. Weiser added that the district ordered a cleanup in response to complaints. On Oct. 2, 2009, the district also issued a letter to parents saying that preliminary results of air testing showed the high school's interior to be free of asbestos contamination. Superior Abatement's asbestos removal began Sept. 3, 2009 and was completed on Sept. 23, 2009, according to the company, which is licensed for such work. The firm's owner, Nick Petrovski, told Newsday that he fired the work crew and its supervisor as soon as the Labor Department notified him of the violations, and that he brought in new workers on Sept. 8, 2009. That was the same day classes resumed in the school. However, Mr. Petrovski and the district said all asbestos removal was done after classes ended each day. Roosevelt is the only state-run district in New York, and is nearing completion of a US$100-million reconstruction of all its schools. ASBESTOS UPDATE: Hazard to be Removed From Santa Rita Elementary ---------------------------------------------------------------- Asbestos will be removed from the Santa Rita Elementary School and 10 other area schools in San Angelo, Tex., Mesothelioma.com reports. The school will benefit from the San Angelo school district's US$117 million bond project, passed in November 2008. Over a 10-month period, renovation and remodeling were done for the entry, administration offices and student restrooms of the Santa Rita School. The Santa Rita Elementary School dates back to the 1920s. Money from the bond will be used at area schools through 2012. According to Steve Van Hoozer, the district's director of bond planning and construction, the district is forced to juggle multiple projects at the same time. He said, "We are 95 percent through with Phase 1 of a five phase project at Santa Rita." Phase 2 has begun, and involved the north wing of the building. This phase will wrap up by Thanksgiving. Phase 3 consists of work on the south wing, and will require asbestos abatement. Projects at Crockett Elementary, Glenmore Elementary, Bradford Elementary and Reagan Elementary will also begin as soon as possible. The projects have been pushed back due to foul weather and changes to the plans for the finished look for each school. Mr. Van Hoozer added, "Everything has been pushed back, from weeks to months, because of changes in planning. For instance, Goliad [School] uses smart boards in every classroom and changes had to be made to make that work." ASBESTOS UPDATE: Ky. Supreme Court Affirms Ruling in Lyons Case --------------------------------------------------------------- The Supreme Court of Kentucky affirmed the decision of the Workers' Compensation Board and the Court of Appeals, which ruled that the Honorable Marcel Smith, an administrative law judge, erred in dismissing Thomas B. Lyons' compensation claim. The case is styled Radco Asbestos Specialists, Inc., Appellant v. Thomas B. Lyons; Honorable Marcel Smith, Administrative Law Judge; and Workers' Compensation Board, Appellees. The Court entered judgment in Case No. 2008-SC-000777-WC on Aug. 27, 2009. Mr. Lyons sustained a work-related back injury on June 11, 1990, and was awarded a 30 percent occupational disability, which provided income benefits for 425 weeks beginning on June 26, 1991, and medical benefits "during disability." Mr. Lyons filed the first of two motions to reopen in May 2000, which was after the 425-week period of his income benefits expired but within four years after Dec. 12, 1996. He alleged that his physicians had taken him off work since Jan. 13, 2000, and that he was totally disabled, either temporarily or permanently. An ALJ awarded TTD from Jan. 13, 2000, for so long as Mr. Lyons remained totally disabled and ordered the employer, Radco Asbestos Specialists, Inc. to pay for a lumbar discogram. A subsequent order terminated TTD benefits as of July 10, 2003, and an order entered on Sept. 12, 2003, denied Mr. Lyons' request for permanent total disability benefits. Mr. Lyons filed the motion to reopen that is the subject of this appeal on Jan. 26, 2004. He alleged increased disability and requested both additional TTD benefits and approval for a proposed surgery. He underwent an independent medical examination by Dr. Kriss by agreement of the parties, after which Radco Asbestos approved the surgery. Dr. Holt performed the procedure in March 2007. Radco Asbestos asserted that the phrase "during the period of an award" referred to the period of an award of income benefits and, thus, that KRS 342.125(3) prohibited reopening because Mr. Lyons' award of income benefits expired before January 2004. Judge Smith agreed and dismissed the claim. Like the Board and the Court of Appeals, the Supreme Court disagreed and concluded that this matter must be remanded for additional consideration. The decision of the Court of Appeals was affirmed. James Gordon Fogle, Esq., Denis S. Kline, Esq., of Ferreri & Fogle in Louisville, Ky., represented Radco Asbestos Specialists, Inc. Wayne C. Daub, Esq., in Louisville, Ky., represented Thomas B. Lyons. ASBESTOS UPDATE: GlaxoSmithKline Motion Granted in Allgood Case --------------------------------------------------------------- The U.S. District Court, Eastern District of Louisiana, granted GlaxoSmithKline plc's motion for reconsideration as to the assessment of court costs filed by Sheila Allgood, Francis P. Powell and Robin P. May, in a case involving asbestos filed on behalf of Jake Palermo. The case is styled Sheila Allgood, et al. v. GlaxoSmithKline plc. District Judge Eldon E. Fallon entered judgment in Civil Action No. 06-3506 on Aug. 25, 2009. Ms. Allgood, Mr. Powell and Ms. May, are the sole heirs of Mr. Palermo, who suffered from cancer and depression. He was prescribed the drug Paxil for his depression in April 2003. Paxil is manufactured and marketed by GlaxoSmithKline. The Plaintiffs alleged that the drug caused suicidal tendencies, which ultimately resulted in Mr. Palermo fatally shooting himself on April 14, 2003 at the age of 76. The Plaintiffs filed this survival/wrongful death action in state court under theories of products liability and negligence, relying on Louisiana's Products Liability Act. GlaxoSmithKline removed the case on July 5, 2006. On Feb. 20, 2008, the Court granted summary judgment to GlaxoSmithKline on two independent grounds: -- First, that under the learned intermediary doctrine, GlaxoSmithKline had discharged its duty as to the Plaintiffs by adequately warning the prescribing physician of any dangers of harm from the drug; and -- Second, that under the doctrine of judicial estoppels, the Plaintiffs were precluded from arguing that Paxil was a proximate cause of their father's suicide because, in a separate case in state court, they had previously argued that his exposure to asbestos was the sole cause. The Court awarded GlaxoSmithKline costs and referred the calculation of costs to the Clerk of Court. On March 25, 2008, the Clerk of Court awarded GlaxoSmithKline US$15,075.43. On May 5, 2008, Plaintiffs filed a Motion for Reconsideration. GlaxoSmithKline asserted that Plaintiffs are prevented from filing a Motion for Reconsideration because that motion should be filed as a Motion to Alter or Amend the Judgment within 10 days of the judgment. Therefore, GlaxoSmithKline asserted that the only issue before the Court was the amount of costs to be taxed against Plaintiffs. GlaxoSmithKline asserted that all costs were reasonable and should remain at the amount of US$15,075.43. The Court ordered that GlaxoSmithKline's Motion for Reconsideration be granted. Plaintiffs were taxed costs of US$7,537.72. David L. Colvin, Esq., Travis Jasper Causey, Jr., Esq., of Colvin Law Firm in Gretna, La., Arnold Anderson Vickery, Esq., of Vickery, Waldner & Mallia, LLP in Houston, Lewis Scott Joanen, Esq., of Bruno & Bruno in New Orleans, represented Sheila Allgood, Francis P. Powell, and Robin P. May. Heather M. Howard, Esq., of King & Spalding, LLP in Atlanta, represented GlaxoSmithKline plc. ASBESTOS UPDATE: GenCorp Inc. Still Facing 135 Cases at Aug. 31 --------------------------------------------------------------- GenCorp Inc., as of Aug. 31, 2009, faced 135 pending asbestos- related cases, according to the Company's quarterly report filed with the Securities and Exchange Commission on Oct. 8, 2009. The Company faced 135 pending asbestos cases as of May 31, 2009, compared with 157 cases pending as of Nov. 30, 2008. (Class Action Reporter, 10 July 2009) The Company has been, and continues to be, named as a defendant in lawsuits alleging personal injury or death due to exposure to asbestos in building materials, products, or in manufacturing operations. Most of the cases have been filed in Madison County, Ill., San Francisco. During the nine months ended Aug. 31, 2009, the Company noted 24 claims filed, 22 claims consolidated, 22 claims dismissed, and two claims settled. The aggregate settlement costs were US$35,000 and the average settlement costs were US$49,000. During the year ended Nov. 30, 2008, the Company noted 33 claims filed, 31 claims dismissed, and five claims settled. The aggregate settlement costs were US$246,000 and the average settlement costs were US$49,000. Legal and administrative fees for the asbestos cases for the first nine months of fiscal 2009 were US$300,000. Legal and administrative fees for the asbestos cases were US$500,000 for fiscal year 2008 and US$900,000 for fiscal year 2007. Rancho Cordova, Calif.-based GenCorp Inc. manufactures aerospace and defense products and systems. The Company has a real estate segment that includes activities related to the re-zoning, entitlement, sale, and leasing of the Company's excess real estate assets. ASBESTOS UPDATE: 16 Lawsuits Filed in Madison During Sept. 21-25 ---------------------------------------------------------------- During the week of Sept. 21, 2009 through Sept. 25, 2009, a total of 16 new asbestos-related lawsuits were filed in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. These cases are: -- (Case No. 09-L-1003) Mary Bertrand of Ontario, Canada, alleges the deceased Robert Bertrand developed mesothelioma after his work as a laborer and insulator. Richard L. Saville Jr., Esq., Ethan A. Flint, Esq., and David J. Page, Esq., of Saville and Flint in Alton, Ill., will represent Ms. Bertrand. -- (Case No. 09-L-1004) Robert and Isabelle Bullock of Ohio claim Mr. Bullock developed mesothelioma after his work as a teacher, minister, bus driver, toll booth operator and self- employed operator of various camps and resorts. Timothy F. Thompson Jr., Esq., and Ryan J. Kiwala, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent the Bullocks. -- (Case No. 09-L-1017) Walter Cain, a member of the U.S. Navy and a worker at various other jobs, claims mesothelioma. Richard L. Saville Jr., Esq., and Ethan A. Flint, Esq., of Saville and Flint in Alton, Ill., will represent Mr. Cain. -- (Case No. 09-L-1011) Bruce Klabunde of North Dakota claims his deceased mother, Elizabeth Klabunde, developed mesothelioma after her work as a receptionist and home remodeler. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Klabunde. -- (Case No. 09-L-1018) Gerald and Kathleen LaBathe of Texas claim Mr. LaBathe developed mesothelioma after his work as a member of the U.S. Army and in the National Guard. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the LaBathes. -- (Case No. 09-L-1025) Dolores Molloy of Illinois claims her deceased husband, Joseph Molloy, developed mesothelioma after his work as an electrician and mechanic. Nate Mudd, Esq., of French and Mudd in St. Louis, will represent Mrs. Molloy. -- (Case No. 09-L-1010) Fabian Moyano claims his deceased father, Guillermo Moyano, developed mesothelioma after his work as a superintendent. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Moyano. -- (Case No. 09-L-1012) Dexter Napier of Georgia, a laborer, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Napier. -- (Case No. 09-L-1026) Donald Pattison claims the deceased Arthella Pattison developed mesothelioma after her work at St. Johns and Orvid-Elsie schools. Richard L. Saville Jr., Esq., Ethan A. Flint, Esq., and Andrew J. Balcer, Esq., of Saville and Flint in Alton, Ill., will represent Mr. Pattison. -- (Case No. 09-L-1002) Adriana M. Perez of Florida, a laborer at ABC Print Shop in Miami, a laborer at Haiti, an office worker at Nikki Lu and a secretary at a doctor's office, claims mesothelioma. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent Mrs. Perez. -- (Case No. 09-L-1005) Richard W. and Geraldine F. Reeves of Indiana claim Mr. Reeves developed mesothelioma after his work as a seaman in the U.S. Navy, as a bill collector for various credit and accounting firms and as a boilermaker for various employees through the international Boilermaker Union. Randy L. Gori of Gori, Esq., of Julian and Associates in Edwardsville, Ill., will represent the Reeves couple. -- (Case No. 09-L-1006) Ella D. Ridout of Texas claims her deceased husband, Thomas G. Ridout, developed lung cancer after his work as a member of the U.S. Air Force, as an iron worker, welder and crane operator, as a general foreman for Martin K. Eby, as a general foreman for H.B. Zachry, as a superintendent for Wanzek Construction and as a general foreman and general superintendent for Fluor. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent Mrs. Ridout. -- (Case No. 09-L-1014) Anne M. Schmuhl of Ohio claims her deceased father, Julius M. Storti, developed mesothelioma after his work with Transformer Engineering Corp. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent Mrs. Schmuhl. -- (Case No. 09-L-1013) Danielle Taurmina of New York claims her deceased stepfather, Mario Bosio, developed mesothelioma after his work as a civil engineer and a home remodeler. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Ms. Taurmina. -- (Case No. 09-L-1009) Maurice Wintermann of Illinois, a boilermaker, janitor and laborer, claims mesothelioma. Andrew O'Brien, Esq., Christopher Thoron, Esq., Christina J. Neilson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J. FitzGerald, Esq., of the O'Brien Law Firm in St. Louis will represent Mr. Wintermann. -- (Case No. 09-L-1015) John J. Worthen of Illinois, a bricklayer for Worthen Brick Construction Company, a bricklayer for Coppers, a bricklayer for Ser-Steel and a bricklayer for National Steel and US Steel, claims lung cancer. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent Mr. Worthen. ASBESTOS UPDATE: Morrison-Clark Faces Penalty for CAA Violations ---------------------------------------------------------------- Morrison-Clair, Inc., a South Barre, Vt.-based flooring contractor, faces a penalty for alleged violations of the Clean Air Act and the National Emission Standard for Hazardous Air Pollutants for Asbestos, commonly known as the "Asbestos NESHAP" regulations, according to a U.S. Environmental Protection Agency press release dated Oct. 9, 2009. According to EPA, Morrison-Clark violated certain requirements of the Asbestos NESHAP when they performed a flooring removal and replacement job, in July 2008, at the Main Street Middle School in Montpelier. The flooring consisted of vinyl asbestos tile. Specifically, Morrison-Clark failed to provide written notice to EPA before starting the work, to wet the asbestos while stripping it and keep it wet until collected and contained for disposal and, also, failed to properly handle and dispose of asbestos- containing waste that was generated. The Company faces a penalty of up to US$32,500 per day for the alleged violations of the "Asbestos NESHAP" regulations. The federal Clean Air Act and the Asbestos NESHAP requirements, promulgated under the Act, require owners and operators of renovation operations to follow certain inspection requirements prior to beginning work and, for jobs involving regulated asbestos-containing materials, to abide by specific notification, work practice, and waste disposal requirements. Violations of Asbestos NESHAP requirements can pose significant health risks to the surrounding community, as well as to workers conducting demolition or renovation operations. In this case, though, EPA is not aware of any specific harm or exposure to airborne asbestos caused by the renovation. ASBESTOS UPDATE: Crissy Sinopole Campaigns v. Asbestos Practices ---------------------------------------------------------------- Crissy Sinopole, the Sarnia-Lambton New Democratic Party Candidate, launched a campaign to urge the Canadian federal government to stop its controversial asbestos practices, The Observer reports. The federal government has been criticized for its failure to ban the mining and sale of asbestos, while it continues to be exported to third world countries. More than CAD100 million worth of asbestos was exported in 2008, much of it to India, Indonesia, Sri Lanka and Brazil. It is estimated that at least 90,000 people die from asbestos-related lung cancer, mesothelioma and asbestosis, each year. The issue, Ms. Sinopole noted, hits home to many people in this community - an area with one of the highest rates of asbestos- related disease in Canada. She said, "This is for the victims that have been left behind. For the grandchildren who have been denied the opportunity to know their grandfathers." Ms. Sinopole added, "What infuriates me is that this is 100 percent preventable. And shame on us for making it always about a dollar." Ms. Sinopole's petition has gone out to a number of companies, before being tabled in the House of Commons later in October 2009. ASBESTOS UPDATE: Inquest Rules on Burnley Hospital Worker Death --------------------------------------------------------------- An inquest at the Burnley Coroner's Court heard that the death of John Swales, a hospital worker from Burnley, England, was linked to workplace exposure to asbestos, The Burnley Citizen reports. The inquest heard that Mr. Swales, a maintenance expert responsible for the upkeep of several East Lancashire hospitals, was slowly poisoned by asbestos as he repaired wards and theatres. He split his time between Burnley General, nearby Victoria Hospital and infirmaries in Nelson and Colne. East Lancashire coroner Richard Taylor, reading from a statement by Mr. Swales' widow, Audrey Swales, recalled one incident where Mr. Swales was forced to carry out emergency repairs to the recovery room at Burnley General. Mrs. Swales said, "He came absolutely covered in dust and said that the recovery room ceiling had collapsed and he was holding it up with poles while they got the patients out." The inquest heard that the 79-year-old Mr. Swales, who latterly lived at the Taylor Street nursing home in Burnley, was first employed by the hospitals in 1965. Mr. Swales underwent tests for possible asbestos infection several years ago but it was only when a post-mortem examination was carried out, after his death on April 8, 2009, that the extent of his problem emerged. Consultant pathologist Dr. Zuhir Twage said internal examinations showed that Mr. Swales had around eight million particles of asbestos fibres in his lungs at the time of his death. Normally people would carry around one million with them through day-to-day living so eight million was considered a high amount, added Dr. Twage. Recording an industrial disease verdict, Mr. Taylor said there could be no doubt that asbestos had contributed to Mr. Swales' death. ASBESTOS UPDATE: East Sussex Builder's Death Linked to Exposure --------------------------------------------------------------- An inquest at Eastbourne Magistrates Court heard that the death of 80-year-old Maurice Kelly, a builder from Eastbourne, East Sussex, England, was linked to exposure to asbestos, ContractorsCompare.com reports. Mr. Kelly died earlier in 2009 from a tumor on his lungs after he was diagnosed with asbestos-related disease mesothelioma. The Bexhill Observer reported that Mr. Kelly's widow, Diane, presented a witness statement from her husband to a coroner at Court, saying that he came into contact with asbestos while carrying out work at EMI Records 60 years ago. The statement read, "I was definitely exposed to asbestos while demolishing a boiler house at the record factory. The dust in there was terrific; it was all over my clothes and in my hair." Pathologist Dr. Hassan El Teraifi, who carried out the post mortem, confirmed that asbestos was the most likely cause of death. ASBESTOS UPDATE: $550T Set Aside for Courthouse Cleanup, Repairs ---------------------------------------------------------------- Officials in Plymouth, Mass., set aside about US$550,000 for asbestos cleanup, other remediation, and remodeling of a historic courthouse, Mesothelioma.com reports. The officials signed the deal to pay out US$850,000 in exchange for the courthouse. The historic courthouse, which dates from 1820, will be taken over by town and area commissioners in November 2009. The town purchased the building from Plymouth County. The deal was approved unanimously in a special meeting of the town selectmen. In April 2009, a town meeting approved spending up to US$1.4 million of Community Preservation Act money to buy the property. The current plan for the future of the courthouse involves renovating and using it in a new way that has yet to be determined. The US$850,000 purchase price leaves US$550,000 for the cleanup and remodeling. The Plymouth Area Chamber of Commerce had intended to bid on the property. ASBESTOS UPDATE: Berkhamsted Builder's Death Linked to Exposure --------------------------------------------------------------- On Oct. 8, 2009, an inquest at Hatfield Coroner's Court heard that the death of 72-year-old builder Dennis Weeden, of Berkhamstead, England, was related to occupational asbestos exposure, The Gazette reports. Mr. Weeden cut up asbestos while working for a building firm in the 1960s, leading to a "fairly substantial" exposure, the inquest was told. He died at the Hospice of St Francis on June 3, 2009. Coroner Edward Thomas told the court, "When he was working for a building company he would come in regular contact with asbestos, usually cutting up asbestolux and corrugated sheets for garage roofs. That would have been a major part of his work during that particular time. He would have been regularly exposed to asbestos." Mr. Weeden then went to work for a timber works in the 1970s, where again he was exposed to asbestos until its dangers became known. Mr. Weeden had suffered ill health in the past but the coroner decided this was not a factor in his death and it was recorded he died of industrial disease. ASBESTOS UPDATE: Cleanup at Smith, Lowell Schools to Cost $300K --------------------------------------------------------------- The Boise School District Board, on Oct. 12, 2009, approved a US$300,000 asbestos removal project for two Sioux City, Iowa- based schools: Smith Elementary School and Lowell Elementary School, The Sioux City Journal reports. The Board voted 6-0. Troy Thomas, purchasing director for the District said the project will be completed in three stages, starting with Lowell, which is currently vacant. The second phase is scheduled to begin at Smith this summer and the third phase will start in spring 2011. Mr. Thomas said the district needs to remove the asbestos from Smith before it can demolish the building. Construction is already under way for the Smith-Everett replacement school, which is scheduled to open in August 2011. The District will hold a public hearing on the asbestos removal project at 6 p.m., Oct. 26, 2009, at the current Education Service Center. ASBESTOS UPDATE: Asbestos Removed From Phoenix, Ariz., Building --------------------------------------------------------------- Asbestos was removed from an unnamed Phoenix, Ariz., building, which was demolished after cleanup to pave way for a new senior center/retirement community, Mesothelioma.com reports. Crews from Advanced Explosives Demolition brought down the building with no injuries and no damage. John Witt, who is in charge of the cleanup said, "The bad stuff is gone. 1,000 tons of asbestos was hauled away and disposed of. What we have here is probably 1500 tons of steel. We're going to chop up the whole thing into small enough chunks to haul, and we're going to recycle the whole thing." On Oct. 5, 2009, the Maricopa County Air Quality Department said that the implosion did not cause any significant air quality problems. Spokesperson Holly Ward said, "Our monitoring data shows we did not exceed the standard on Sunday, the day of the implosion." Because of the prior asbestos removal, there was no concern about exposure to asbestos dust following the demolition. ASBESTOS UPDATE: Hazard Uncovered at Cass Street Bridge in Fla. --------------------------------------------------------------- The completion date of the Cass Street bridge project in Tampa, Fla., has been pushed back to November 2009, due to the presence of asbestos and corroded steel, Mesothelioma & Asbestos Awareness Center reports. The bridge was shut down for repairs earlier in 2009 after it was deemed "structurally deficient." According to David Vaughn, the City's contracts administrator, contractors repairing the Industrial Era drawbridge uncovered more asbestos and corroded steel that needed to be replaced, which caused the extension of the project's timeline. The bridge project, which began in July 2009, will cost a total of US$1.7 million. The bridge was built in 1927, and has had some work done over the years. However, prior to this project, the bridge had not undergone a complete overhaul since 1949. In 2008, the bridge was listed by inspectors as "structurally deficient." It was scored by the state Department of Transportation, receiving a health rating of 74.89, which means that the bridge is in need of repairs or replacement within six years. According to the State DOT, about 12,000 vehicles a day cross the bridge. ASBESTOS UPDATE: Hazard Forces Closure of Fulton School in Ill. --------------------------------------------------------------- Students and staff at Fulton High School in Fulton, Ill., were sent home on Oct. 9, 2009 due to concerns about asbestos contamination, the Quad-City Times reports. Superintendent Jane Bauer said the decision was made to evacuate the school after a staff member removed a floor tile that contained asbestos without permission. The tile was removed in the shop area. Ms. Bauer said the district has contacted the Illinois Department of Public Health and is working with an asbestos abatement contractor to address the problem. The high school has about 300 students. The school reopened on Oct. 13, 2009. ASBESTOS UPDATE: Minn. Appeal Court Upholds Ruling in Rock Case --------------------------------------------------------------- The Court of Appeals of Minnesota upheld ruling of the district court, which favored Joyce E. Rock in asbestos-related proceedings filed against Bucyrus International, Inc., a corporation based in Wisconsin. Judges Jill Halbrooks, Harriet Lansing, and Gordon W. Shumaker entered judgment in Case No. A08-2222 on Sept. 1, 2009. Bucyrus employed Dona Rock from 1948 to 1951. Mr. Rock, who died of mesothelioma on Feb. 18, 2008, may have been exposed to asbestos during his employment. Ms. Rock, trustee for Mr. Rock's next-of-kin, may have a claim against the unknown parties who supplied products containing asbestos to Bucyrus during the period of Mr. Rock's employment. Ms. Rock has not commenced an action against Bucyrus. In March 2008, the district court issued a commission that allowed Ms. Rock to obtain discovery from Bucyrus in Wisconsin. Under this commission, Ms. Rock sought and received a subpoena from the circuit court for Milwaukee County, Wis. The subpoena ordered Bucyrus to appear for a deposition and to produce certain documents. Bucyrus later moved the Wisconsin circuit court to quash the subpoena. In June 2008, the Wisconsin circuit court stayed the subpoena but ordered the parties "to work in good faith to provide discoverable information and to attempt to work out any disagreements between them." During the pendency of these proceedings, Bucyrus moved the district court for a protective order to prevent the deposition of Bucyrus' corporate representative. On Aug. 28, 2008, the district court issued an order that denied Bucyrus' motion but limited the scope of discovery. Bucyrus then challenged this order by filing petitions for a writ of prohibition and for discretionary review with this court. The District Court denied these petitions without reaching the issue of whether pre-suit discovery was authorized. On Oct. 13, 2008, Bucyrus moved the district court to quash the commission and dismiss the proceedings for lack of subject-matter jurisdiction. The district court denied this motion, concluding that it had "broad jurisdictional power in determining all issues relating to asbestos." Bucyrus appealed. Robert E. Cattanach, Esq., Michael J. Wahoske, Esq., Colin Wicker, Esq., of Dorsey & Whitney, LLP in Minneapolis, and Mark J. Peschel, Esq., Daniel E. Hintz, Esq., of Johnson & Lindberg, P.A. in Minneapolis, represented Bucyrus International, Inc. Michael S. Polk, Esq., Michael R. Strom, Esq., Shauna M. Verheyen, Esq., of Sieben Polk, P.A. in Hastings, Minn., represented Joyce E. Rock. ASBESTOS UPDATE: Appeal Court Affirms Ruling in Walmach Lawsuit --------------------------------------------------------------- The Court of Appeal, Second District, California, affirmed the ruling of the Los Angeles Superior Court, which granted a US$2.66 million asbestos-related judgment in favor of Donna Walmach, Jennifer Orchard, and Julie Pitts. The case is styled Donna Walmach et al., Plaintiffs and Respondents v. Foster Wheeler, Defendant and Appellant. Judges H. Walter Croskey, Richard D. Aldrich, and Patti S. Kitching entered judgment in Case No. B203962 (Consolidated with Case No. B205820) on Sept. 1, 2009. Foster Wheeler LLC appealed a US$2.66 million judgment in favor of the Plaintiffs. Their decedent, Richard Walmach, died of mesothelioma he contracted from breathing asbestos fibers contained in products manufactured by Foster Wheeler. Mr. Richard Walmach began working as an apprentice marine machinist at the Puget Sound Naval Shipyard in Bremerton, Wash. (the shipyard), in February 1965. At the shipyard, he worked as a civilian employee of the U.S. Navy. In 1967, Mr. Walmach began serving on active duty in the Navy. While in the Navy, he worked as a machinery repairman. He spent most of his time in the Navy stationed in Long Beach, Calif. In November 1969, Mr. Walmach left the Navy and returned to his apprenticeship at the shipyard. He completed his apprenticeship in 1971 and continued to steadily receive promotions as a marine machinist mechanic at the shipyard and eventually became a foreman. He retired in March 2002. Mr. Walmach was also exposed to ambient asbestos while building his home in the mid-1970s. At that time, he used products containing asbestos while installing sheet rock. Mr. Walmach was diagnosed with malignant pleural mesothelioma in January 2006. He died from the disease in June 2006. He contracted mesothelioma as a result of his exposure to asbestos. Plaintiffs' medical expert testified that Mr. Walmach's exposure to asbestos released from Foster Wheeler's products was a significant contributing factor to Mr. Walmach contracting mesothelioma. Plaintiffs initially sued over two dozen defendants. However, plaintiffs reached settlement agreements with, or dismissed, all of the defendants except Foster Wheeler prior to the commencement of opening statements at the trial. The jury awarded plaintiffs US$950,895.26 in economic damages, US$2.2 million in noneconomic damages, and US$2 million in punitive damages. The court entered judgment in the amount of US$2.66 million in favor of plaintiffs and against Foster Wheeler. Foster Wheeler filed a motion for judgment notwithstanding the verdict and motion for a new trial. Both motions were denied. Foster Wheeler appealed. Waters & Kraus, Esq., Paul C. Cook, Esq., and Michael B. Gurien, Esq., represented the Plaintiffs. Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, Kelly J. Savage, Esq.; Brydon, Hugo & Parker, John R. Brydon, Esq., and James C. Parker, Esq., represented Foster Wheeler. ASBESTOS UPDATE: Appeal Court Upholds Board Ruling in White Case ---------------------------------------------------------------- The U.S. Court of Appeals for Veterans Claims affirmed the July 13, 2007 ruling of the Board of Veterans' Appeals, which denied Tommie L. White service connection for allergies due to asbestos exposure and paint fumes and other ailments. The case is styled Tommie L. White, Appellant v. Eric K. Shinseki, Secretary of Veterans Affairs, Appellee. Judge William A. Moorman entered judgment in Case No. 07-3394 on Sept. 1, 2009. Mr. White served on active duty in the U.S. Navy from November 1982 to November 1986. His separation examination noted mild PFB. In July 1989, he filed claims for service connection for a right ear injury and facial skin disease, both of which a VA regional office (RO) denied in December 1989. In February 2004, Mr. White sought to reopen his previously denied claim for service connection for a right ear injury. In May 2004, the RO denied service connection for allergies as secondary to asbestos exposure and declined to reopen Mr. White's previously denied claim for service connection for a right ear injury. Mr. White continued to appeal. In May 2005, Mr. White again sought service connection for PFB, a right ear injury, and allergies related to exposure to paint fumes. In October 2005, the RO granted service connection for PFB, with a noncompensable disability rating effective April 2005. The RO denied service connection for allergies due to paint fumes and abnormal breathing. White continued to appeal. In July 2007, the Board issued the decision here on appeal. ASBESTOS UPDATE: Forse's Action v. Texaco Filed Oct. 7 in Texas --------------------------------------------------------------- Floyd Forse's widow, Veola Forse, and his 10 children filed an asbestos-related lawsuit against Texaco Inc. on Oct. 7, 2009 in Jefferson County District Court, Tex., The Southeast Texas Record reports. In addition to Mrs. Forse, the other plaintiffs named in the suit are Patricia Beavers, Gwendolyn Walden, Michelle Stansbury, Steven Forse, Maurice Forse, Rebecca Caswell, William Forse, Jennifer Phillips, Richard Forse and Floyd J. Forse. The plaintiffs say Mr. Forse died on March 4, 2008 from an asbestos-related disease. They allege the disease was caused by asbestos fibers that Mr. Forse inhaled while working as a laborer, insulator helper, machinist helper, stillman and press operator at Texaco in Port Arthur, Tex. The plaintiffs blame Texaco for causing the disease, alleging the Company knew about the dangers of asbestos but still allowed its employees to work around the products. In addition, Texaco failed to warn Mr. Forse about the dangers of asbestos exposure, the suit states. Mrs. Forse and her children seek exemplary and punitive damages, plus interest, costs and other relief to which they may be entitled. J. Keith Hyde, Esq., and D'Juana Parks, Esq., of Provost and Umphrey Law Firm in Beaumont, Tex., will be representing the Forse family. Case No. D185-079 has been assigned to Judge Milton Shuffield, 136th District Court. ASBESTOS UPDATE: Asbestos Found in 34 of 66 Buildings in Seoul -------------------------------------------------------------- Rep. Cho Jung-sik, of the Korean Democratic Party, on Oct. 13, 2009, says that more than half of randomly selected buildings in Seoul, South Korea, are built with an asbestos substance, The Korea Times reports. Mr. Cho based his claims on a Seoul Metropolitan Government report, which said the asbestos was found in 34 of 66 buildings randomly selected for inspection. Among the buildings that tested positive were hospital, educational and cultural facilities, Mr. Cho said. More than 80 percent of buildings constructed in the 1980s tested positive for asbestos, while the rate fell to 30 percent among those built after 2000, he added. Mr. Cho urged the South Korean Government to ban the use of the toxic material in construction and manufacturing. Asbestos was popular among manufacturers and builders in the late 19th century because of its resistance to heat, electrical and chemical damage, sound absorption and tensile strength. ASBESTOS UPDATE: Cambridgeshire Inquest Rules on Hornsby's Death ---------------------------------------------------------------- An inquest on Oct. 9, 2009 in Ely, Cambridgeshire, England, heard that the death of 60-year-old Peter Hornsby, of Witcham, Cambridgeshire, England, was linked to exposure to asbestos, Cambs24 reports. Mr. Hornsby died peacefully at his Westways Place home at around on July 15, 2009. A report produced by Papworth Hospital NHS Trust stated that he had epithelioid malignant mesothelioma. At the inquest, a statement from Mr. Horsby's widow, Sally, said he had worked as a carpenter, cabinet maker, as a manager of a packaging company. He worked for a company named Perfect Pine between 1998 and 2003 where he fitted kitchens and regularly worked with pine products. Mr. Hornsby then moved to Cambridgeshire in 2003 and his health started to deteriorate but he was reluctant to see doctors. Mr. Hornsby had told doctors that he had several jobs many years ago where he may have been exposed to asbestos but he could not pinpoint where or how. William Morris, Coroner for North and East Cambridgeshire, returned a verdict of death through exposure to asbestos. ASBESTOS UPDATE: James Hardie Files Liability Claim v. CSR Ltd. --------------------------------------------------------------- James Hardie Industries N.V., in a bid to share liability for illnesses caused by its asbestos products, sued former partner CSR Limited in Queensland Supreme Court in Queensland, Australia, The Australian reports. Hardie's subsidiary, Amaca Pty Ltd (f/k/a James Hardie & Co Pty Ltd) is suing CSR, a building materials manufacturer, after Amaca was sued for AUD500,000 in damages by an asbestosis sufferer. John George Morley, a 72-year-old fitter and turner, sued Amaca, WorkCover Queensland and his former employers GH Engineering for in January 2008. In a statement of claim filed to the Queensland Supreme Court at the time, Mr. Morley, who worked for GH Engineering between 1952 and 1990, alleges he handled Hardie asbestos products for years at work. Mr. Morley claims that as a result of being exposed to and inhaling asbestos dust, he now suffers from asbestos-related illnesses, including asbestosis. He claimed his exposure to asbestos and subsequent injuries were "caused or contributed to" by Hardie's negligence. Amaca launched a defense against Mr. Morley's lawsuit, claiming it did not owe Mr. Morley a duty of care and that Mr. Morley's injuries were caused by his own "independent and unreasonable actions." Mr. Morley discontinued the matter in December 2008 after it was resolved with an informal, confidential settlement. Amaca filed the case aimed at equally sharing with CSR any liability and legal costs incurred by the Morley matter. Amaca claims it entered into a partnership with CSR on Sept. 24, 1964, to manufacture, distribute and sell in Australia asbestos-related products. This relationship continued until May 1974. Amaca claims that if CSR was sued by Mr. Morley, as a partner, the Company would have been subject to any liability faced by Amaca. Amaca claims CSR was negligent in 11 ways, including that CSR used or allowed to be used asbestos products when they "knew or ought to have known" that asbestos products were potentially dangerous to the health of people who came in contact with them. Dallas Booth, chief executive of the Asbestos Injuries Compensation Fund Limited, which manages compensation claims against James Hardie and its related companies, would not comment on the specific matter, but said the avenue of liability sharing was not new. ASBESTOS UPDATE: 1st Newman Case Filed on Oct. 1 v. 31 Companies ---------------------------------------------------------------- Lynda Guillory, on behalf of her late father, Ameal Newman, filed an asbestos-related lawsuit against 31 defendant corporations in Jefferson County District Court, Tex., on Oct. 1, 2009, The Southeast Texas Record reports. The defendants include: A.W. Chesterton Company, American Optical Corporation, Ametek Inc., Bayer CropScience AG, Bechtel Corporation, CBS Corporation, CertainTeed Corporation, Coltec Industries, Crane Co., Crown Cork and Seal Company, D&F Distributing, Dana Companies, Fluor Enterprises, Fluor Maintenance Services, Foster Wheeler Constructors, and Foster Wheeler Corporation. Defendants also include: Garlock Sealing Technologies, General Electric Corporation, General Refractories Company, Goulds Pumps Incorporated, Henry Vogt Machine Company, Honeywell International Inc., Industrial Holdings, Ingersoll-Rand Company, John Crane Inc., 3M Company, Owens Illinois Inc., Sepco Corporation, Treco Construction Services, Union Carbide Corporation, and Uniroyal. This is the first asbestos case filed on behalf of Mr. Newman. Before his death, he filed an asbestos suit, but Mrs. Guillory brought her complaint on allegations that Mr. Newman died from a different asbestos-related disease than was named in his previous lawsuit. On Oct. 3, 2009, Mrs. Guillory and the rest of Mr. Newman's children filed a separate asbestos suit and against ExxonMobil. Mrs. Guillory alleges the defendant companies caused Mr. Newman's disease because they failed to adequately test their products and failed to warn of the dangers of asbestos exposure. At the time the products were manufactured, the defending companies knew of the hazards associated with asbestos but failed to remove their products from the market, according to the complaint. Some defendant companies, like 3M and American Optical Corporation, failed to provide Mr. Newman with adequate masks to protect him from the asbestos, while other businesses forced him to work in close proximity to asbestos, the suit states. Mrs. Guillory seeks actual and exemplary damages, plus costs, pre- and post-judgment interest and other relief to which she may be entitled. Bryan O. Blevins Jr., Esq., of Provost and Umphrey Law Firm in Beaumont, Tex., is representing the Newman children. Case No. E185-046 has been assigned to Judge Donald Floyd, 172nd District Court. ASBESTOS UPDATE: 3rd Newman Action Filed in Jefferson on Oct. 7 --------------------------------------------------------------- The surviving children of Ameal Newman, on Oct. 7, 2009, filed an asbestos-related lawsuit against ExxonMobil Corporation, Mobil Oil Corp. and Mobil Chemical Co. in Jefferson County District Court, Tex., The Southeast Texas Record reports. This is the third asbestos lawsuit filed on behalf of Mr. Newman. Lynda Guillory, Esther Newman, Carolyn Richmond, Janice Newman and Willie Newman, Mr. Newman's children, claim he died on Jan. 11, 2008, after he developed lung cancer. The Newman children allege the disease was caused from asbestos fibers that Mr. Newman inhaled while working as a pipefitter and welder at Mobil Oil in Port Arthur, Tex., according to the complaint. Mr. Newman's children blame the defendants for causing the disease, saying the companies knew about the dangers of asbestos but still allowed their employees to work around the products. In addition, the defendants failed to warn Mr. Newman about the dangers of asbestos exposure, the suit states. The plaintiffs seek exemplary and punitive damages, plus interest, costs and other relief to which they may be entitled. J. Keith Hyde, Esq., and D'Juana Parks, Esq., of Provost and Umphrey Law Firm in Beaumont, Tex., will be representing the Newman children. Case No. A185-077 has been assigned to Judge Bob Wortham, 58th District Court. ASBESTOS UPDATE: Hazard to be Removed from Fort Collins Building ---------------------------------------------------------------- Before the demolition of the former Elks Lodge building in Fort Collins, Colo., can begin, asbestos and mercury abatement will need to be completed, Mesothelioma.com reports. The Fort Collins Downtown Development Authority announced that they plan to demolish the structure that was initially bought to delay a hotel planned for the downtown area. The building on Oak Street will be torn down, with work beginning sometime in 2010. Studies were done regarding the building, and it was ruled that upgrading the building would be prohibitively expensive, according to DDA Project Manager Anne Aspen. The 50,000-square-foot Elks facility was built in 1902. The last major repairs were conducted in 1978. The National Center for Craftsmanship will help with the so- called deconstruction process. NCC Executive Director, Neil Kaufman, said, "Our pioneering DeConstruct training model has allowed us the opportunity to take deconstruction to the next level." The DDA is weighing several options for the site, including a community marketplace. ASBESTOS UPDATE: Exposure Lawsuit Filed Against Westshore Hotel --------------------------------------------------------------- Tom Vorhees, a former employee of The Westshore Hotel in Tampa, Fla., filed a lawsuit claiming the hotel knowingly exposed its employees and occupants to a dangerous work environment of asbestos, mildew and mold, News Channel 8 reports. The case was filed in September 2009 in Hillsborough Circuit Court. A News Channel 8 investigation in April 2009 revealed a mold infestation problem and potential asbestos exposure at the hotel. Mr. Voorhees told WFLA-TV that Super Bowl visitors stayed at the hotel on West Shore Boulevard. Sam Medina, a former hotel maintenance worker, recalls hotel employees readying black moldy rooms for Super Bowl guests. He said, "We had spray bottles full of bleach, just regular house bleach that you can buy at any kind of store. We went in and tried to spray down the walls." According to the Hillsborough County Property Appraiser's Office, Westshore Hotel Property LLC owns the hotel. Its address is UBS Real Estate Securities in New York. The hotel was in mortgage foreclosure in December 2008. UBS, the mortgage lender, told a judge that the previous owner of the hotel, Fuel and Shubh Capital Management Delaware LLC, failed to maintain the hotel and at least 40 of the 235 guest rooms were mold infested. The court appointed Janus Hotels and Resorts Inc. to run the hotel for UBS. Deborah Chamberlin, Janus vice-president of operations, said Janus hired a licensed mold remediation company in January 2009 when it took over management of the hotel. Rooms with mold, she said, were closed to guests. Mr. Voorhees is even more concerned about possible asbestos exposure. He said, "I was definitely directly handling asbestos with no protection 'cause I didn't know it was there." Janus confirmed that the dropped ceiling tiles in guest bathrooms contained asbestos. ASBESTOS UPDATE: Wokingham Council Tenants "At Risk" From Hazard ---------------------------------------------------------------- The Audit Commission's progress report on Wokingham Borough Council's tenant services department highlighted issues that put residents in the borough's 2,800 council homes at risk from asbestos exposure, getwokingham reports. The department is "crippled" by a lack of funding, according to Wokingham Liberal Democrat Councilor Prue Bray, and the funding system must change in order for homes to be brought up to modern standards. The report, published in September 2009, reviews progress made by the department following recommendations in an inspection report in 2008. The council's cash flow problem stems from the United Kingdom Government's housing revenue system, which demands Wokingham pay back nearly half of the GBP10 million it receives in rent. The report also found the department has made limited or no progress on its asbestos register and management and states, "Tenants and contractors have not been given information about the presence of asbestos in homes and information has not been made available to tenants. This is potentially placing the health and safety of both tenants and contractors at risk." The Council is already undertaking a survey that will locate asbestos, identify it by type and deal with it. ASBESTOS UPDATE: Family of Welling Worker Gets GBP110T in Payout ---------------------------------------------------------------- The family of an unnamed school cleaner, who had worked at Welling Secondary School in Kent, England, was awarded GBP110,000 in asbestos-related compensation, FMworld reports. The woman was diagnosed with mesothelioma in March 2008 and died in June 2008 at the age of 81. She was exposed to asbestos while working as a cleaner at Welling Secondary School between 1972 and 1988. The building where the woman cleaned had asbestos in the internal partition walls that had been disturbed by drawing pins and general wear and tear. At no point was the woman warned of the dangers of her working environment and nothing was done by her employer to protect her from exposure. The woman's daughter, who pursued the compensation claim on her mother's behalf, said, "It is terrifying to think that my mum was exposed to asbestos while working in a school. You expect classrooms to be a safe haven for children but working there caused mum to suffer a painful illness and death many years later." ASBESTOS UPDATE: CSX Transportation Seeks Renewal of Harron Case ---------------------------------------------------------------- CSX Transportation Inc. will call for the reversal of District Judge Frederick Stamp's cancellation of their asbestos-related fraud conspiracy trial against radiologist Ray Harron of Bridgeport, W.Va., and the law firm of Robert Peirce, Esq., The West Virginia Record reports. The Fourth Circuit appeals court in Richmond, Va., docketed CSX's appeal on Oct. 5, 2009. Judge Stamp called off the trial in September 2009, three weeks before it would have started. Judge Stamp wrote on Sept. 15, 2009, "CSX cannot produce evidence sufficient for a reasonable jury to find that CSX relied upon the defendants' alleged fraudulent act." CSX claimed Mr. Harron fabricated evidence in an asbestos exposure suit that Mr. Peirce filed for Earl Baylor of Tennessee in Harrison County. Mr. Harron achieved national notoriety by claiming Fifth Amendment privilege against self incrimination before Congress and in depositions. Four years ago, U.S. District Judge Janis Jack of Corpus Christi, Tex., found that Mr. Harron diagnosed asbestosis and silicosis from the same X-ray, thousands of times. He has lost his license in seven states. In West Virginia, former Supreme Court Justice Arthur Recht stands ready to clear state courts of Harron cases. In September 2009, he offered to grant motions from CSX to dismiss suits that relied on Mr. Harron's X-rays. ASBESTOS UPDATE: Court Issues Split Ruling in Schneiderhan Case --------------------------------------------------------------- The U.S. Court of Appeals for Veterans Claims issued split rulings in the case involving asbestos styled Michael P. Schneiderhan, Appellant v. Eric K. Shinseki, Secretary of Veterans Affairs, Appellee. Judge Robert N. Davis entered judgment in Case No. No. 07-3111 on Aug. 31, 2009. U.S. Navy veteran Michael P. Schneiderhan appealed from a July 23, 2007, Board of Veterans' Appeals decision that: -- Denied Mr. Schneiderhan's service-connection claims for a low-back disability and sleep apnea, -- Denied an increased rating in excess of 30 percent for a right shoulder disability, and -- Declined to reopen a service-connection claim for tinnitus. This appeal was timely, and the Court had jurisdiction to review the Board's decision. The Court affirmed in part and set aside in part the Board's August 2006 decision, and remanded for further adjudication the issues of service connection for sleep apnea secondary to asbestos exposure. ASBESTOS UPDATE: Allen Remand Bid Denied in Case v. Buffalo, GE --------------------------------------------------------------- The U.S. District Court, District of Connecticut, denied Samuel Allen and 11 other plaintiffs' motion to remand to state court an asbestos case filed against Buffalo Pumps, Inc. and General Electric Company. The case is styled Samuel Allen, et al., Plaintiffs v. General Electric Co. and Buffalo Pumps, Inc., Defendants. District Judge Janet C. Hall entered judgment in Civil Action No. 3-09-CV-0497J on Aug. 27, 2009. On March 3, 2009, Mr. Allen and the other plaintiffs filed a personal injury action in the Connecticut Superior Court, Judicial District of Fairfield at Bridgeport. On March 27, 2009, Buffalo Pumps removed this case to federal court. On March 30, 2009, General Electric joined in the petition for removal. Plaintiffs are 12 men who were employed by General Dynamics Corporation, Electric Boat Division, in Groton, Conn., for various periods between 1956 and the present. All worked in areas where they were exposed to asbestos and now suffer from asbestos- related diseases such as lung cancer, lung disease, asbestosis, and loss of lung function. Plaintiffs alleged that their exposure to asbestos came at least in part from products the defendants manufactured for the Navy. Buffalo Pumps manufactured and supplied pumps for Navy ships under contracts which included specifications for the use of asbestos. GE manufactured marine steam turbines for use on Navy ships and submarines under detailed specifications and contracts, which included directions for the use of asbestos. ASBESTOS UPDATE: Wight Remand Bid Denied in Case v. Buffalo, GE --------------------------------------------------------------- The U.S. District Court, District of Connecticut, denied plaintiffs Louise Wight and Gail Bettencourt's motion to remand to state court an asbestos case filed against Buffalo Pumps, Inc. and General Electric Company. The case is styled Louise Wight, et al., Plaintiffs v. General Electric Co., et al., Defendants. District Judge Janet C. Hall entered judgment in Civil Action No. 3-09-cv-0645 (JCH) on Aug. 27, 2009. On March 12, 2009, Ms. Wight and Ms. Bettencourt, the executor for the estate of Howard Wight, filed a personal injury action in the Connecticut Superior Court, Judicial District of Fairfield at Bridgeport. Buffalo Pumps received service of the Complaint on March 23, 2009, and removed this case to federal court on April 21, 2009. On April 24, General Electric joined in the petition for removal. The motion for remand was denied. ASBESTOS UPDATE: Ohio Appeals Court Issues Rulings in Perez Case ---------------------------------------------------------------- The Court of Appeals of Ohio, Fifth District, Stark County, issued various rulings in litigation involving asbestos styled In re Estate of Thomas Perez. Judges William B. Hoffman, Julie A. Edwards, and Sheila G. Farmer entered judgment in Case No. 2008 CA 00081 on Aug. 31, 2009. Joseph Perez, individually and as the Executor of the Estate of Thomas Perez, appealed the March 18, 2008 Judgment Entry of the Stark County Court of Common Pleas, Probate Division, in favor of Appellee Thomas B. Perez. Thomas Perez died of lung cancer on April 29, 1999, survived by two adult children: Thomas B. Perez and Cynthia Moldovan. Thomas Perez's sole surviving sibling is Appellant Joseph Perez. Thomas Perez's last will and testament named Joseph Perez as the sole beneficiary. On March 30, 2004, Joseph Perez was appointed executor of the Estate of Thomas Perez (hereinafter "the Estate.") The only asset of the Estate was the wrongful death claim for asbestosis against various tortfeasors stemming from Thomas Perez's employment at Republic Steel Technologies. Joseph Perez participated in the asbestos litigation, in which various settlements were reached with different tortfeasors at different times. Each separate settlement required approval of the probate court. Three applications to approve settlement and distribution were filed in the Stark County Court of Common Pleas, Probate Division. On Sept. 13, 2004, the first application listed Thomas B. Perez, Mrs. Moldovan, and Joseph Perez as the wrongful death beneficiaries and contained a recommendation by Joseph Perez that the proceeds be divided equally between the survival claim and the wrongful death claim, and that Joseph Perez be found to be the only wrongful death beneficiary who had suffered a loss. The trial court conducted a hearing, and divided the settlement proceeds equally between the survival claim and the wrongful death claim. The Estate is the sole beneficiary of the survival claim, and Joseph Perez was found to be the only beneficiary of the wrongful death claim who suffered a loss. On Jan. 3, 2005, the second application was filed with the Probate Court. The trial court conducted a hearing, and on March 2, 2005, divided the proceeds equally between the survival claim for which the Estate is the sole beneficiary, and the wrongful death claim for which Joseph Perez was again found to be the only beneficiary who suffered a loss. On March 23, 2005, the third application was filed with the Probate Court. At the May 23, 2005 hearing, Thomas B. Perez appeared, and requested the trial court continue the hearing and vacate the two previous entries approving the prior applications. The trial court denied the motions to vacate. Thomas B. Perez appealed to this Court, which remanded the matter to the trial court to conduct an evidentiary hearing on the motions to vacate. On Dec. 19, 2006, the Probate Court conducted the hearing on the motions to vacate, and denied the motion to vacate as to the second application. On Feb. 15, 2007, the trial court vacated the distribution relative to the first application. The court then set a hearing on the first and third applications. Thomas B. Perez did not appeal the Feb. 15, 2007 Judgment Entry denying vacation of the second application. On June 4, 2007, Joseph Perez requested the Probate Court apply the doctrine of res judicata to the first and third applications, and apply the allocations set forth in the second application to the first and third. On Oct. 23, 2007, the Probate Court allocated all of the proceeds of both the first and third applications to the wrongful death claim, and ordered Thomas B. Perez receive 80 percent and Joseph Perez receive 20 percent of the proceeds. Upon request of Joseph Perez, the probate court issued findings of fact and conclusions of law on March 18, 2008. Joseph Perez filed his notice of appeal on April 15, 2008. The trial court erred in not applying the doctrine of res judicata in the distribution of the first and third applications. The first and second assignments of error were sustained, the March 18, 2008 Judgment Entry was reversed and the matter was remanded to the trial court for further proceedings in accordance with the law and this opinion. The Appeals Court found the arguments raised in the third, fourth and fifth assignments of error moot. Marjorie R. Perlman, Esq., in Canton, Ohio, represented Joseph Perez, Individually. Sharon V. Fladen, Esq., in Canton, Ohio, represented Joseph Perez, Executor of The Estate of Thomas Perez. Stanley R. Rubin, Esq., in Canton, Ohio, represented Thomas B. Perez. ASBESTOS UPDATE: Case v. TH Agriculture Plan Resolved in 3rd-Qtr ---------------------------------------------------------------- Koninklijke Philips Electronics N.V. says that, in the third quarter of 2009, the opposition filed against subsidiary TH Agriculture & Nutrition's (THAN) plan of reorganization has been successfully resolved. Provided that there will be no further opposition to the Plan, it is expected that the U.S. District Court will affirm the Plan in the coming weeks, in which case the Plan would become effective in the fourth quarter, triggering THAN and Philips Electronics North America Corporation's obligation to fund an asbestos personal injury trust with US$900 million (around EUR600 million). The Company has already provided for this amount, according to its report, on Form 6-K, filed with the Securities and Exchange Commission on Oct. 14, 2009. Headquartered in Amsterdam, The Netherlands, Koninklijke Philips Electronics N.V. (Royal Philips Electronics) makes consumer electronics, including TVs, VCRs, DVD players, and fax machines. The Company also makes light bulbs, electric shavers and other personal care appliances, picture tubes, medical systems, and silicon systems solutions. ASBESTOS UPDATE: Goates Lawsuit v. Chevron Filed Oct. 7 in Texas ---------------------------------------------------------------- An asbestos lawsuit on behalf of Marvin Goates was filed against Chevron Corporation on Oct. 7, 2009 in Jefferson County District Court, Tex., The Southeast Texas Record reports. Mr. Goates' widow, Ginger Goates, and his children (Carolyn Blackmon, Linda Dickinson, Katherine Goates and Jody Wilkerson) claim he died on Feb. 28, 2008, after he developed pulmonary asbestosis and lung cancer. According to the suit, the Goates family alleges the diseases were caused from asbestos fibers that Mr. Goates inhaled while working as a pipefitter helper, insulator trainee and instrument mechanic at Gulf Oil Corporation in Port Arthur, Tex. The plaintiffs blame Chevron for causing the disease, saying the Company knew about the dangers of asbestos but still allowed its employees to work around the products. In addition, Chevron failed to warn Mr. Goates about the dangers of asbestos exposure, the suit states. Mrs. Goates and the children seek exemplary and punitive damages, plus interest, costs and other relief to which they may be entitled. J. Keith Hyde, Esq., and D'Juana Parks, Esq., of Provost and Umphrey Law Firm in Beaumont, Tex., will be representing the Goates family. Case No. D185-076 has been assigned to Judge Milton Shuffield, 136th District Court. ASBESTOS UPDATE: Pilcher Case v. Chevron Filed in Jefferson Co. --------------------------------------------------------------- An asbestos lawsuit filed on behalf of Malcolm E. Pilcher against Chevron Corporation was filed in Jefferson County District Court, Tex., The Southeast Texas Record reports. Mr. Pilcher's widow, Joan Pilcher, and his children (Deborah Lackey, Michael Pilcher and Bruce Pilcher) claim Mr. Pilcher died on June 19, 2009 after he developed pulmonary asbestosis and rectal cancer. According to the complaint, the diseases were caused from asbestos fibers that Mr. Pilcher inhaled while working at Gulf Oil Corporation in Port Arthur, Tex. The Pilcher family blames Chevron for causing the disease, alleging the Company knew about the dangers of asbestos but still allowed its employees to work around the products. In addition, Chevron failed to warn Mr. Pilcher about the dangers of asbestos exposure, the suit states. The Pilcher family seeks exemplary and punitive damages, plus interest, costs and other relief to which they may be entitled. J. Keith Hyde, Esq., and D'Juana Parks, Esq., of Provost and Umphrey Law Firm in Beaumont, Tex., will be representing the Pilcher family. Case No. D185-078 has been assigned to Judge Milton Shuffield, 136th District Court. ASBESTOS UPDATE: Pickles, ATS to be Probed for Botched Abatement ---------------------------------------------------------------- Australasian Technical Services (an asbestos removal company) and Pickles Auctions (an auction house in Canberra, Australia) will be investigated over the removal of asbestos from a Fyshwick warehouse, ABC News reports. Pickles contracted ATS to remove asbestos from the warehouse's roof. However, on Oct. 9, 2009, the site was shut down by the Office of Regulatory Services (ORS) after 12 workers were found removing asbestos without appropriate safety equipment or protective gear. On Oct. 12, 2009, it was confirmed samples taken from around the site contained asbestos dust. Jon Quiggan from the ORS says their priority is cleaning up the site. Mr. Quiggan said, "There are some very strict guidelines. In many ways it's up to the individual companies to ensure that they're complying with those particular regulations and the code of practice. "In terms of how that's enforced, it is simply not possible for us to be everywhere, every time that work is being undertaken." ASBESTOS UPDATE: Probe on Docking of U.S. Ship in Alang Ongoing --------------------------------------------------------------- Platinum II, a U.S.-registered ship allegedly containing asbestos anchored near the ship-breaking yard at Alang forced India's Forest and Environment Ministry to seek an inquiry report from Gujarat Maritime Board, newKerala.com reports. The Alang port is located off the coast of Gujarat, India. The 18,000 ton-capacity ship contained toxic materials including about 200 tons of asbestos. According to environment activists, Indian Platform on Shipping, the ship was clandestinely being towed to the port, but an accident while it was being towed on Oct. 7, 2009 by a tug exposed the wrongdoing. Forest and Environment Ministry has directed the Maritime Board to conduct an inquiry and submit a report, official sources said, adding the Gujarat Pollution Control Board officials also inspected the 682-feet long ship, which was earlier named "SS Oceanic." ASBESTOS UPDATE: Abatement at Rochester's Midtown Plaza Underway ---------------------------------------------------------------- Asbestos abatement of the existing buildings at the Midtown Rising Project site in Rochester, N.Y., is now underway, JusticeNewsFlash.com reports. The project is part of ongoing redevelopment to make way for PAETEC, a telecommunications company. Cambria, the asbestos contractor, continues identifying, containing, and removing asbestos fibers from 1.4 million sq. ft. of retail-commercial space. Cambria was hired to deal with the evaluation, demolition, and removal of some 15,000 tons of asbestos materials present in the current structures at the Midtown Plaza Redevelopment site in upstate New York. The Rochester, N.Y., asbestos abatement project is expected to take at least 12 months to complete. The Governor of New York pledged to provide up to US$65 million for asbestos removal and demolition. A 2006 study into the cost of removing tiles, insulation, flooring, drywall, and other asbestos containing building materials was estimated at a minimum of US$40 million. The certified asbestos abatement technician with Cambria will oversee demolition and construction workers using some of the following various techniques while containing and removing the toxic materials: -- Wet removal -- Negative air pressure -- Decontamination units -- Sealing off floors and walkways -- Air quality monitoring Because no amount of asbestos exposure to humans is safe, once the asbestos materials have been removed and contained it will be transported to certified landfills for proper disposal. ASBESTOS UPDATE: Trial in Mancuso Asbestos Case to Start Oct. 19 ---------------------------------------------------------------- The federal asbestos trial against brothers Paul and Steven Mancuso and their father, Lester Mancuso, is expected to begin in U.S. District Court on Oct. 19, 2009, with the selection of the jury, the Observer-Dispatch reports. Witness testimony is expected to begin on Oct. 20, 2009. On Oct. 13, 2009, a federal judge ruled that he found no proof a government agent knowingly provided false statements to get a search warrant in connection with the alleged Mancuso family asbestos cover-up conspiracy. During the Oct. 13, 2009 hearing in Syracuse, N.Y., Patrick Fraccola, a former agent with the U.S. Environmental Protection Agency, stood by the information he believed was true at the time he provided applications to search the Mancuso business offices. Based on the warrants in question, Paul Mancuso's Genesee Street business office and Belle Avenue residence were searched in 2005 - leading seven months later to a search of the Genesee Street law office of his brother, Steven Mancuso. The Mancuso men have since been indicted by the U.S. Attorney's Office in connection with an asbestos-removal cover-up scheme. Among the issues during the hearing was was whether Mr. Fraccola knowingly failed to disclose his prior familiarity with Paul Mancuso as a witness for the EPA, and whether Mr. Fraccola did not tell the truth about his knowledge of Paul Mancuso's restrictions in handling asbestos activities. Paul Mancuso, previously convicted of violating asbestos removal laws and insurance fraud, is charged with now violating a court order to never become involved in asbestos-related work. The alleged concealment of his role in several asbestos removal companies then resulted in further allegations that his brother and father also were involved. In Mr. Fraccola's affidavit, he stated that he was first alerted to Paul Mancuso's alleged illegal asbestos activity in October 2005 when a state trooper located a man, David Comstock, who was dumping asbestos waste on a rural property in Poland. During the interview, Mr. Comstock reportedly told Mr. Fraccola that he was performing such work at the request of his "bosses," Paul Mancuso and a second brother, Ronald Mancuso. At issue in Mr. Fraccola's affidavit, however, was when he stated that Paul Mancuso was unable to obtain an asbestos license in his name, or any company controlled by him, after pleading guilty in 2003 to violating the federal Clean Air Act. During the hearing, Paul Mancuso's attorney, John Casey, Esq., wondered why Mr. Fraccola never told the federal judge of a 2004 restriction when applying for a search warrant. Mr. Fraccola also failed to inform the judge that 27 pounds of asbestos ultimately were found at the Poland dumping site, far less than the 300 pounds of asbestos Mr. Fraccola had initially estimated, Paul Mancuso argued. When questioned why this correction had not been conveyed to the judge, Mr. Fraccola told prosecutors that one pound of asbestos still would have been sufficient for a federal conviction. One issue Mr. Casey attempted to explore before he was cut off by Senior U.S. District Judge Frederick Scullin Jr. was the fact that Mr. Fraccola no longer works for the EPA. In 2008, Mr. Fraccola was placed under investigation at the EPA because he was "less than fully candid" about his simultaneous off-duty work with the Frankfort Village Police Department, according to prosecutors. Mr. Fraccola ultimately resigned from the EPA. ASBESTOS UPDATE: Dist. Court Remands Wring Action to Madison Co. ---------------------------------------------------------------- The U.S. District Court, Southern District of Illinois, remanded an asbestos case filed by Harold Wring and Gloria to the Circuit Court of the Third Judicial Circuit, Madison County, Ill. The case is styled Harold Wring and Gloria Wring, Plaintiffs v. A.W. Chesterton, Inc., et al., Defendants. District Judge G. Patrick Murphy entered judgment n Civil Action No. 09-664-GPM on Aug. 31, 2009. Mr. Wring sought damages under theories of negligence and strict products liability for personal injuries he has suffered allegedly as a result of exposure to asbestos. Mrs. Wring asserted derivative claims for loss of consortium. The Wrings brought suit originally in the Circuit Court of the Third Judicial Circuit, Madison County, Ill., and Defendant Detroit Diesel Corporation had removed their claims against it to this Court. ASBESTOS UPDATE: District Court Remands Diaz Case to Madison Co. ---------------------------------------------------------------- The U.S. District Court, Southern District of Illinois, remanded Jesse Diaz's asbestos lawsuit to the Circuit Court of the Third Judicial Circuit, Madison County, Ill. The case is styled Jesse Diaz, Plaintiff v. A.W. Chesterton, Inc., et al., Defendants. District Judge G. Patrick Murphy entered judgment in Civil Action No. 09-662-GPM on Aug. 31, 2009. Mr. Diaz sought damages under theories of negligence and strict products liability for personal injuries he has suffered allegedly as a result of exposure to asbestos. He brought suit originally in the Circuit Court of the Third Judicial Circuit, Madison County, Ill., and Defendant Detroit Diesel Corporation removed his claims against it to this Court. Detroit Diesel asserted that federal subject matter jurisdiction was proper on the basis of federal bankruptcy jurisdiction because Detroit Diesel has a right to be indemnified by its co- Defendant in Mr. Diaz's state-court proceeding General Motors Corporation, which filed for Chapter 11 bankruptcy protection in a federal court in New York on June 1, 2009. The Court's review of the notice of removal and the record of this case led it to conclude that the case must be remanded to state court under principles of permissive abstention and equitable remand. ASBESTOS UPDATE: District Court Remands Funk Case to Madison Co. ---------------------------------------------------------------- The U.S. District Court, Southern District of Illinois, remanded an asbestos lawsuit filed by Tammy Funk on behalf of her deceased father, Carlis Kinney, to the Circuit Court of the Third Judicial Circuit, Madison County, Ill. The case is styled Tammy Funk, Individually and as Special Administrator of the Estate of Carlis Kinney, Deceased, Plaintiff v. A.W. Chesterton, Inc., et al., Defendants. District Judge G. Patrick Murphy entered judgment in Civil Action No. 09-660-GPM on Aug. 31, 2009. Ms. Funk sought damages under the Illinois Wrongful Death Act, the Illinois Survival Act, and the Illinois Rights of Married Persons Act, in connection with the death of Mr. Kinney from mesothelioma caused by alleged exposure to asbestos. Ms. Funk's claims were sued on originally in the Circuit Court of the Third Judicial Circuit, Madison County, Ill., and Defendant Detroit Diesel Corporation removed her claims against it to this Court. Detroit Diesel asserted that federal subject matter jurisdiction was proper on the basis of federal bankruptcy jurisdiction because Detroit Diesel had a right to be indemnified by its co- Defendant in Ms. Funk's state-court proceeding General Motors Corporation, which filed for Chapter 11 bankruptcy protection in a federal court in New York on June 1, 2009. The Court's review of the notice of removal and the record of this case led it to conclude that the case must be remanded to state court under principles of permissive abstention and equitable remand. ASBESTOS UPDATE: Dist. Court Remands Yates Action to Madison Co. ---------------------------------------------------------------- The U.S. District Court, Southern District of Illinois, remanded an asbestos case filed on behalf of Terry Yates to the Circuit Court of the Third Judicial Circuit, Madison County, Ill. The case is styled Barbara Yates, Individually and as Special Administrator of the Estate of Terry Yates, Deceased, Plaintiff v. A.W. Chesterton, Inc., et al., Defendants. District Judge G. Patrick Murphy entered judgment in Civil Action No. 09-659-GPM on Aug. 31, 2009. Barbara Yates, Mr. Yates' widow, sought damages under the Illinois Wrongful Death Act, the Illinois Survival Act, and the Illinois Rights of Married Persons Act, in connection with the death of Mr. Yates from cancer allegedly caused by exposure to asbestos. Mrs. Yates brought suit originally in the Circuit Court of the Third Judicial Circuit, Madison County, Ill., and Defendant Detroit Diesel Corporation removed her claims against it to this Court. Detroit Diesel asserted that federal subject matter jurisdiction was proper on the basis of federal bankruptcy jurisdiction because Detroit Diesel has a right to be indemnified by its co- Defendant in Mrs. Yates' state-court proceeding General Motors Corporation, which filed for Chapter 11 bankruptcy protection in a federal court in New York on June 1, 2009. The Court's review of the notice of removal and the record of this case led it to conclude that the case must be remanded to state court under principles of permissive abstention and equitable remand. ********* 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., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. 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 $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *