/raid1/www/Hosts/bankrupt/CAR_Public/091023.mbx
C L A S S A C T I O N R E P O R T E R
Friday, October 23, 2009, Vol. 11, No. 210
Headlines
ALP LIQUIDATING: Class Certification Hearing Set for December
AMC ENTERTAINMENT: "Bateman" Suit Still Stayed Pending Appeal
AT&T OPERATIONS: Calif. Lawsuit Alleges Labor Law Violations
AVERY DENNISON: Settled Label Stock Suit for $37 Million in Sept.
BEBE STORES: Sued in Los Angeles for Privacy Violations
BP NORTH AMERICA: Court Denies Motion to Dismiss Pension Lawsuit
CAPITAL ONE: Calif. Suit Complains About Credit Card Rate Hikes
CEDARS SINAI: Suit Says Brain Scans Are Too Intense
CHEYENE SIV: Judge Scheindlin Declines Invitation to Expand Class
DOLE FOOD: Doesn't Have to Pay $97 Million Nicaraguan Verdict
EXXONMOBIL: N.D. Calif. Dismisses Global Warming Lawsuit
FERRING B.V.: 2nd Cir. Revives Diabetes Drug Antitrust Case
FLORIDA PUBLIC: Defending Suit Challenging Chesapeake Merger
GEORGIA: Employee Lawsuit Seeks Payment of 2.5% Pay Raise
GKN AEROSPACE: Calif. Lawsuit Alleges Labor Law Violations
KADANT INC: Plaintiff's Appeal of Suit Dismissal Still Pending
KMART CORP: Status Conference Next Week in Germ Defense Lawsuit
MEEKER COUNTY: Settles Strip Jail Search Case for $1.75 Million
REPUBLIC OF TURKEY: Cypriot Property Owners Sue for in D.C.
RUBIO'S RESTAURANTS: Shareholders Fight Levine's Buyout Offer
SIGG SWITZERLAND: Calif. Suit Claims Aluminum Bottles are Toxic
STARBUCKS COFFEE: No Class, But Tip Policy Violates Minn. Law
STARENT NETWORKS: Del. Lawsuit Wants Cisco to Pay More in Merger
TIME WARNER: Calif. Suit Accuses Firm of Labor Law Violations
WYNN RESORTS: Employee Second-Hand Smoke Lawsuit Filed in Nev.
Asbestos Litigation
ASBESTOS ALERT: Robinson & Owen Fined $1,800 for Cleanup Breach
ASBESTOS UPDATE: PPG Ind. Records $534Mil Settlement at Sept. 30
ASBESTOS UPDATE: Puckett's Widow Receives $1.2M Payout on Oct. 5
ASBESTOS UPDATE: Coroner Rules on Former Horndean Plumber Death
ASBESTOS UPDATE: Tenn. Appeal Court Issues New Trial in Nye Case
ASBESTOS UPDATE: Willmore Dies After Receiving GBP240,000 Payout
ASBESTOS UPDATE: Abatement at Condemned Day House to Cost $3,000
ASBESTOS UPDATE: Streets' Widow Gets GBP314,471 in Compensation
ASBESTOS UPDATE: Shirebrook Rail Worker's Death Linked to Hazard
ASBESTOS UPDATE: Torquay Builder Death Linked to Hazard Exposure
ASBESTOS UPDATE: Ripon Local to Pay $22.5T for Disposal Breaches
ASBESTOS UPDATE: Hazard Uncovered at Washington Univ. Frat House
ASBESTOS UPDATE: Dist. Court Remands Fuller Case to Madison Co.
ASBESTOS UPDATE: New Trial OK'd in Oxford Case v. Foster Wheeler
ASBESTOS UPDATE: District Court Affirms Valentine Remand Motion
ASBESTOS UPDATE: Bankruptcy Court Rules on Plant Insulation Case
ASBESTOS UPDATE: CSX Continues to be Subject to Exposure Claims
ASBESTOS UPDATE: Linder, Whisnant Case Filed v. 84 Firms in Tex.
ASBESTOS UPDATE: Hampshire Ex-Welder's Death Linked to Exposure
ASBESTOS UPDATE: Bracklesham Builder's Death Linked to Exposure
ASBESTOS UPDATE: Asbestos Materials Discovered in Prague Subway
ASBESTOS UPDATE: New Guinea Doctors Seek Asbestos Products' Ban
ASBESTOS UPDATE: Hazard Discovered at Beacon Elem. in Montesano
ASBESTOS UPDATE: Zimbabwe's Gov't. Urged to Revisit Asbestos Ban
ASBESTOS UPDATE: Baron and Budd Asserts Privilege in 7,000 Cases
ASBESTOS UPDATE: Probe into Ex-Chrysler Worker's Death Underway
ASBESTOS UPDATE: Delaware Court Rules in Favor of Warren, Viking
ASBESTOS UPDATE: Hazard Found in Cave Street School in Tuscumbia
ASBESTOS UPDATE: Appeal Court OKs Board Ruling in Samuel's Case
ASBESTOS UPDATE: Ariz. Court Dismisses Covell's Claim v. Arpaio
ASBESTOS UPDATE: E&D Environmental Owner Indicted for Mail Fraud
ASBESTOS UPDATE: Univ. of Wyoming Charged for Handling Breaches
ASBESTOS UPDATE: Drabczyk Wins $1.5Mil Verdict in Case v. Fisher
ASBESTOS UPDATE: Conn. Resident Facing Charge for TSCA Breaches
ASBESTOS UPDATE: Cleanup at Salem, Ore. Library to Start in 2010
ASBESTOS UPDATE: Amarillo Local Indicted for Disposal Violations
ASBESTOS UPDATE: Retired Holloway Laborer Death Linked to Hazard
ASBESTOS UPDATE: Pfizer Inc. to Clean Up Peapack-Gladstone Site
ASBESTOS UPDATE: McLean Cty., Ill., Jury Awards Widows $5.5 Mil.
ASBESTOS UPDATE: Cleanup at Smith School Site to Cost Over $250K
ASBESTOS UPDATE: Trial in Mancuso Asbestos Claim Starts Oct. 20
ASBESTOS UPDATE: Cleanup at W.Va. Schools Estimated at $303,970
ASBESTOS UPDATE: Consultant to Check Hazard at Knox's Courthouse
ASBESTOS UPDATE: Vandals at Rockland School Exposed to Asbestos
ASBESTOS UPDATE: Thomas County Courthouse to Undergo Assessment
*********
ALP LIQUIDATING: Class Certification Hearing Set for December
-------------------------------------------------------------
A hearing on a motion to certify a plaintiff class in Rothal v.
Arvida/JMB Partners Ltd. et al., Case No. 03-10709, has been
scheduled for Dec. 21 to Dec. 22, 2009, according to ALP
Liquidating Trust's Aug. 11, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2009.
Effective Sept. 30, 2005, Arvida/JMB Partners, L.P. (the
"Partnership") completed its liquidation by contributing all of
its remaining assets to ALP, subject to all of the Partnership's
obligations and liabilities. Arvida Company, an affiliate of
the general partner of the Partnership, acts as Administrator
(the "Administrator") of ALP.
The Partnership, the General Partner and certain related parties
as well as other unrelated parties have been named defendants in
an action entitled, "Rothal v. Arvida/JMB Partners Ltd. et al.,
Case No. 03-10709 CACE 12," filed in the Circuit Court of the
17th Judicial Circuit in and for Broward County, Florida.
In this suit that was originally filed on or about June 20,
2003, plaintiffs purport to bring a class action allegedly
arising out of construction defects occurring during the
development of Camellia Island in Weston, which has
approximately 150 homes.
On May 9, 2005, plaintiffs filed a nine count second amended
complaint seeking unspecified general damages, special damages,
statutory damages, prejudgment and post-judgment interest,
costs, attorneys' fees, and such other relief as the court may
deem just and proper.
The plaintiffs complain, among other things, that the homes were
not adequately built, that the homes were not built in
conformity with the South Florida Building Code and plans on
file with Broward County, Florida, that the roofs were not
properly attached or were inadequate, that the truss systems and
installation thereof were improper, and that the homes suffer
from improper shutter storm protection systems.
The Arvida defendants have filed their answer to the amended
complaint.
This case has been tendered to one of the Partnership's
insurance carriers, Zurich American Insurance Company, for
defense and indemnity. Zurich is providing a defense of this
matter under a purported reservation of rights.
The Partnership has also engaged other counsel in connection
with this lawsuit.
ALP Liquidating Trust engages in liquidating the assets of
Arvida/JMB Partners, L.P. Arvida/JMB Partners transferred all of
its remaining assets to the trust at the time of its liquidation
in 2005. Previously, Arvida/JMB Partners was engaged in the
development of resort and primary home communities for the
middle and upper income segments in the State of Florida, as
well as in Atlanta, Georgia, and Highlands, North Carolina. ALP
Liquidating Trust was founded in 1987 and is based in Chicago,
Illinois.
AMC ENTERTAINMENT: "Bateman" Suit Still Stayed Pending Appeal
-------------------------------------------------------------
Bateman v. American Multi-Cinema, Inc., et al., Case No.
07-cv-00171 (C.D. Calif.) (Cooper, J.), is still stayed pending
the appeal of the plaintiff on the denial of his renewed motion
for class certification of the case.
The suit, filed in January 2007, alleges violations of the Fair
and Accurate Credit Transaction Act. FACTA provides in part that
neither expiration dates nor more than the last five numbers of a
credit or debit card may be printed on electronic receipts given
to customers. It imposes significant penalties upon violators
where the violation is deemed to have been willful. Otherwise
damages are limited to actual losses incurred by the cardholder.
The plaintiff is seeking an order certifying the case as a class
action as well as statutory and punitive damages in an
unspecified amount.
On Oct. 31, 2007, the District Court denied the plaintiff's
motion for class certification without prejudice pending the
U.S. Court of Appeals for the Ninth Circuit's decision in an
appeal from a denial of certification in a similar FACTA case.
On June 3, 2008, the President of the United States of America
signed the FACTA reform bill. The bill specifies that if a
company printed the expiration date on credit card receipts, but
otherwise complied with FACTA, it did not willfully violate the
law. The legislation does not specifically address the
situation where more than five digits of the credit card are
printed on a receipt.
The Ninth Circuit appeal was subsequently dismissed after the
parties reached a settlement.
On Oct. 24, 2008, the District Court denied plaintiff's renewed
motion for class certification. Plaintiff has appealed this
decision and the case is stayed pending this appeal, according to
the company's Aug. 12, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 2,
2009.
Representing the plaintiffs are:
Gregory N. Karasik, Esq.
Ira Spiro, Esq.
SPIRO MOSS LLP
11377 West Olympic Boulevard, 5th Floor
Los Angeles, CA 90064
Phone: 310-235-2468
Representing the defendants is:
David E. Novitskim, Esq.
THELEN REID BROWN RAYMANS AND STEINER
333 South Hope Street, Suite 2900
Los Angeles, CA 90071-3048
Phone: 213-576-8097
Fax: 213-576-8080
On May 14, 2009, Harout Jarchafjian filed a similar lawsuit,
Jarchafian v. American Multi-Cinema, Inc., Case No. 09-cv-03434
(C.D. Calif.), alleging that the Company willfully violated FACTA
and seeking statutory damages, but without alleging any actual
injury. The Jarchafjian case has been deemed related to the
Bateman case. The Company has not yet filed a responsive
pleading in the Jarchafjian case. The Company believes the
plaintiff's allegations in both these cases, particularly those
asserting AMC's willfulness, are without merit.
AT&T OPERATIONS: Calif. Lawsuit Alleges Labor Law Violations
------------------------------------------------------------
Pacita Welch, an individual, on behalf of herself, and all
persons similarly situated, sued AT&T Operations, Inc., Docket
No. 30-2009-00180163 (Calif. Super. Ct., Orange Cty.) (Bauer,
J.), on Oct. 16, 2009. The Complaint says that individuals who
held Project Manager positions with job code 30091808 weren't
paid what they were owed.
The Plaintiff is represented by:
David R. Markham, Esq.
R. Craig Clark, Esq.
James M. Treglio, Esq.
Maura M. Cotter, Esq.
CLARK & MARKHAM LLP
600 B Street, Suite 2130
San Diego, California 92101
Telephone: 619-239-1321
- and -
Walter Haines, Esq.
UNITED EMPLOYEES LAW GROUP
65 Pine Ave., #312
Long Beach, California 90802
Telephone: 877-696-8378
AVERY DENNISON: Settled Label Stock Suit for $37 Million in Sept.
-----------------------------------------------------------------
Avery Dennison Corp. agreed to pay $37 million to settle a
purported class action lawsuit, the company discloses in its Aug.
12, 2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended July 4, 2009.
On April 24, 2003, Sentry Business Products, Inc. filed a
purported class action on behalf of direct purchasers of label
stock in the United States District Court for the Northern
District of Illinois against the company, UPM-Kymmene
Corporation, Bemis Company Inc., and certain of their
subsidiaries seeking treble damages and other relief for alleged
unlawful competitive practices, with allegations including that
the defendants attempted to limit competition among themselves
through anticompetitive understandings.
Ten similar complaints were filed in various federal district
courts. In November 2003, the cases were transferred to the
United States District Court for the Middle District of
Pennsylvania and consolidated for pretrial purposes.
Plaintiffs filed a consolidated complaint on Feb. 16, 2004, which
the company answered on March 31, 2004.
On April 14, 2004, the court separated the proceedings as to
class certification and merits discovery, and limited the initial
phase of discovery to the issue of the appropriateness of class
certification.
On Jan. 4, 2006, plaintiffs filed an amended complaint.
On Jan. 20, 2006, the company filed an answer to the amended
complaint.
On Aug. 14, 2006, the plaintiffs moved to certify a proposed
class. The court substantively granted class certification on
Nov. 19, 2007. On July 22, 2008, the court held a hearing to set
a schedule for merits discovery.
On May 12, 2009, the company entered into a settlement agreement
with plaintiffs.
Without admitting liability, the company has agreed to pay
plaintiffs $36.5 million, plus up to $500,000 related to notice
and administration expenses, in two equal installments of
$18.5 million, which were paid on May 27, 2009 and July 15, 2009.
On June 10, 2009, the district court entered an order
preliminarily approving the settlement, and a final approval
hearing was scheduled for Sept. 17, 2009.
Avery Dennison Corp. -- http://www.averydennison.com/-- develops
innovative identification and decorative solutions for businesses
and consumers worldwide. The company's products include
pressure-sensitive labeling materials; graphics imaging media;
retail apparel ticketing and branding systems; RFID inlays and
tags; office products; specialty tapes; and a variety of
specialized labels for automotive, industrial and durable goods
applications. A FORTUNE 500 Company with sales of $6.7 billion
in 2008, Avery Dennison is based in Pasadena, California and has
more than 32,000 employees in over 60 countries.
BEBE STORES: Sued in Los Angeles for Privacy Violations
-------------------------------------------------------
Linda Yudelson, on behalf of herself and all others similarly
situated, sued Bebe Stores, Inc., Docket No. BC423835 (Calif.
Super. Ct., Los Angeles Cty.) on Oct. 14, 2009. The Complaint
accuses the women's apparel retailer of illegally requiring
credit card customers to provide personal identification
information.
The Plaintiff is represented by:
Neil B. Fineman, Esq.
FINEMAN & ASSOCIATES
19713 Yorba Linda Blvd., Suite 570
Yorba Linda, CA 92886
Telephone: 714-620-1125
BP NORTH AMERICA: Court Denies Motion to Dismiss Pension Lawsuit
----------------------------------------------------------------
Attorneys Mark Amadeo, Esq., Gail Langendorf, Esq., and E. Andre
Busald, Esq., announced an important decision in a ground-
breaking case being tried in the United States District Court of
Eastern District Of Kentucky involving alleged miscalculation of
benefits by BP North America, Inc. when it converted its pension
plan from a traditional defined benefit plan to a cash balance
retirement plan.
The decision to deny the defendant's motion to dismiss the suit
and allow the case to move forward was handed down by Judge David
L. Bunning and lauded by attorneys Langendorf and Amadeo who are
representing the former BP employee.
"We are extremely pleased with Judge Bunning's decision to deny
the motion to dismiss and allow Mr. French's claim against BP to
move forward," said Mr. Amadeo of the Amadeo Law Firm in
Frederick, Md. "We firmly believe BP acted unlawfully when it
converted its employees' pension plan to a cash balance plan --
in essence, by using an excessive interest rate to discount the
payments under the traditional defined benefit plan, BP
shortchanged participants out of retirement money that was due to
them."
The suit, which is being pursued as a class action, claims that
BP achieved a windfall when it unlawfully reduced the pension
benefit that plaintiff Robert French and other participants had
already earned at the time that the corporation switched to a
cash balance retirement plan. At the conversion date, BP
established opening balances in the cash balance plan that were
supposed to be the lump sum equivalent value of the benefits that
were to be paid from the traditional pension plan during
participants' retirement. In one of the first suits asserting
this claim, the attorneys allege that the company, instead,
unlawfully discounted the retirement benefits by using an
interest rate that exceeded the interest rates permitted under
ERISA and the Internal Revenue Code for calculating lump sum
equivalent values of retirement benefits. When miscalculated,
individual employees stand to lose out on significant portions of
their pension benefits retirement plans.
"This is an important case for both employees that are entitled
to retirement benefits and corporations that have, or plan to,
switch to cash balance plans," said co-counsel in the case, Gail
Langendorf, Esq., of Busald Funk Zevely P.S.C., a law firm in
Florence, Ky. "Companies must realize they are bound by both the
Employee Retirement Income Security Act and the Internal Revenue
code to fairly estimate benefits when switching employees' plans,
and that when they don't, people will take notice."
The suit further alleges that BP repeatedly used excessive
interest rates when it converted the traditional defined benefit
plans of companies that merged with BP to cash balance plans.
Lastly, the suit contends that certain participants lost benefits
when they were retroactively inserted into to the cash balance
plan and benefits in another plan were retroactively eliminated.
The only case to ever address such an issue was heard in United
States District Court, in the Eastern Division of Missouri in
2007 [Edward W. Sunder, Louis R. Jarodsky, v. U.S. Bank Pension
Plan, Case No. 05-CV-01153] in which the Judge found that the
plan in question used an excessive interest rate to discount
benefits when it established opening balances.
About the Firms
Based in Florence Kentucky, Busald Funk Zevely, P.S.C. is a law
firm with deep roots in the Northern Kentucky and the Greater
Cincinnati community. Founded in 1976 the firm currently has nine
lawyers-all of whom are licensed to practice in Kentucky with
many also licensed in Ohio and various federal courts.
The Amadeo Law Firm, with offices in Washington, DC and
Frederick, Md., is a consulting and litigation boutique. Its
founder, Mark A. Amadeo, Esq., has previously litigated ERISA
class action cases.
CAPITAL ONE: Calif. Suit Complains About Credit Card Rate Hikes
---------------------------------------------------------------
Courthouse News Service reports that a class action claims
Capital One Financing unfairly increased the interest rate on its
credit cards by 231 percent immediately after begging a $3.6
billion bailout from taxpayers, in Los Angeles Federal Court.
A copy of the Complaint in Mirzaie v. Capital One Finanical, LLC,
Case No. 09-cv-7577 (C.D. Calif.), is available at:
http://www.courthousenews.com/2009/10/20/CapitalOne.pdf
The Plaintiff is represented by:
T. Matthew Phillips, Esq.
1631 W. Craig Road, #9-101
N. Las Vegas, NV 89032
Telephone: 323-314-6996
CEDARS SINAI: Suit Says Brain Scans Are Too Intense
---------------------------------------------------
A class action lawsuit captioned Rees v. Cedars Sinai Medical
Center, GE Healthcare, Inc., GE Healthcare Technologies, Inc., et
al., Docket No. BC4241898 (Calif. Super. Ct., Los Angeles Cty.),
alleges patients received eight-times the approved dosage of
radiation during their CT brain perfusion scans to diagnose
strokes, and seeks compensation for medical malpractice, strict
product liability, negligence, breach of express warranty, and
breach of implied warranty.
This class action lawsuit includes all individuals who received a
CT brain perfusion scan at Cedars Sinai Medical Center from
February 2008 through August 2009. It also includes anyone who
received such a scan that utilized CT image machines manufactured
by GE Healthcare, Inc., and GE Healthcare Technologies at any
medical facility during the two-year period preceding this suit.
The media has reported widely on a 2007 CT scan study by
researchers David Brenner and Eric Hall, published in The New
England Journal of Medicine, claiming that overuse of CT scans
may increase significantly people's chances of cancer.
"The amount of radiation during a single CT scan can range from
1,000 to 10,000 millirems, depending on the machine and the
machine's settings," says Los Angeles trial lawyer Bill Newkirk,
Esq., of the Law Offices of William H. Newkirk. "The study says
Japanese survivors of the bombing of Hiroshima and Nagasaki who
were a mile or two from ground zero received about 3,000
millirems on average."
Mr. Newkirk says, "Survivors of Cedars Sinai Medical Center
received eight-times a normal dose of radiation, making them more
susceptible to potential cancers and other effects of radiation
poisoning than those people who survived the atomic bomb."
Trevor Rees, one of the 206 Cedar patients who was overdosed with
radiation, claims the doctor who called him merely asked if he'd
had any hair loss. Rees, who underwent two CT scans for a stroke
in December, learned about the problem from a television news
report.
"There was no mention of radiation to me on the phone at all,"
says Mr. Rees. "I never thought anything more about it until I
saw the news about five days later."
Mr. Rees says, "I certainly don't relish the chance of dying of
tumors. I'm supposed to live stress free and this hasn't helped
matters."
"This isn't just a Cedars Sinai problem," says Mr. Newkirk. "We
believe that because of the way the machine is manufactured and
explained to medical users, there is a very good chance that this
same situation has been or is being played out in radiology
departments across the country. We have no idea how many people
have been overdosed with radiation."
For more information, contact:
William H. Newkirk, LLP
1801 Century Park East, Suite 1920
Los Angeles CA 90067
Telephone: 310-477-7122
CHEYENE SIV: Judge Scheindlin Declines Invitation to Expand Class
-----------------------------------------------------------------
Jonathan Perlow at Courthouse News Service reports that a federal
judge in Manhattan rejected investors' bid to expand their fraud
class action against Morgan Stanley and two credit rating
agencies, accusing them of hyping and overrating a complex
investment vehicle linked to the subprime mortgage mess.
Abu Dhabi Commercial Bank and other investors claimed the bank,
Moody's Investment Service and The McGraw-Hill Companies masked
the risk of the Cheyne Structured Investment Vehicle, which went
bankrupt in August 2007.
The plaintiffs said structured investment vehicles (SIV) "have
been at the heart of the recent U.S. credit crisis."
Cheyne's investors were hit hard after the vehicle's assets
plummeted in 2007. Many lost most or all of their investments,
according to the lawsuit.
U.S. District Judge Shira A. Scheindlin rejected investors' bid
to throw non-fraud claims in the mix.
The ruling is expected to draw attention from other investors and
pension funds, who seek to hold banks and credit raters
responsible for steering investors toward SIVs and similar
complex investments, which would have been "virtually
unmarketable without high credit ratings," the plaintiffs' said
in their amended complaint.
SIV's are funds that invest in long-term, high-yield securities
with money that they raise by selling lower-yielding, short-term
securities. They're often invested in asset-backed securities, or
corporate debt.
"At their core, SIV's are a mechanism for banks to offload
exposure to these risky asset backed securities," according to
the plaintiffs.
The market for SIV's dried up after the subprime mortgage crisis.
The plaintiffs said Morgan Stanley misled investors by hyping
Cheyne as a high-quality investment, and the rating agencies
improperly assigned it a high rating.
The judge dismissed all claims against the Bank of New York
Mellon last month, but left the door open in the current ruling
by not dismissing them with prejudice.
She decided that discovery could reveal new facts to bolster the
plaintiffs' claims that BoNY aided and abetted Morgan Stanley and
the rating agencies in the alleged fraud.
Judge Scheindlin dismissed numerous claims against Morgan
Stanley, including breach of fiduciary duty and unjust
enrichment, in last month's ruling, but gave the plaintiffs a
chance to amend their complaint.
Judge Scheindlin said she rejected the inclusion of the
additional claims because the plaintiffs' amended complaint
"added no new facts and made no attempt to cure the deficiencies
outlined by this Court." But the bank and rating agencies must
still defend against the fraud claims.
"Where both the rating agencies and Morgan Stanley knew that the
ratings process was flawed, knew that the portfolio was not a
safe, stable investment, and knew that the rating agencies could
not issue an objective rating because of the effect it would have
on their compensation, it may be plausibly inferred that Morgan
Stanley and the ratings agencies knew they were disseminating
false and misleading ratings," Judge Scheindlin wrote in her
opinion last month.
A copy of Judge Scheindlin's Oct. 15, 2009, Memorandum Opinion
and Order is available at:
http://www.courthousenews.com/2009/10/20/Morgan%20Stanley%20ruling.pdf
The case is Abu Dhabi Commercial Bank, et al. v. Morgan Stanley,
et al., No. 08-7508 (S.D.N.Y.). Previous reporting about this
proceeding appeared in Sept. 8, 2009, edition of the Class Action
Reporter.
DOLE FOOD: Doesn't Have to Pay $97 Million Nicaraguan Verdict
-------------------------------------------------------------
Edvard Pettersson at Bloomberg News reports that Dole Food Inc.,
the world's biggest fresh fruit and vegetables producer, can't be
forced in the U.S. to pay a $97 million verdict issued by a
Nicaraguan court, the Honorable Paul Huck ruled in Osorio, et al.
v. Malta Navarro, et al., Case No. 07-cv-22693 (S.D. Fla.).
The award, won four years ago by 150 Nicaraguans who claimed they
suffered injuries from pesticides used at Dole's banana
plantations in the 1970s, can't be enforced because it was based
on a law that violates international legal standards, Judge Huck
said in his ruling. "The law under which this case was tried
stripped defendants of their basic right in any adversarial
proceeding to produce evidence in their favor and rebut the
plaintiffs' claims."
Mr. Pettersson relates that Dole argued at a four-day hearing
before Judge Huck that the 2001 Nicaraguan law is biased against
defendants like itself. The statute was enacted to litigate
injury claims by banana workers against foreign corporations and
presumes the pesticide dibromochloropropane, or DBCP, causes
sterility and other injuries.
Nicaraguan courts since 2002 have issued judgments in 32 such
suits for a total of $2.05 billion against Dole and pesticide
makers, Dole said in a May 8 regulatory filing. Dole said that
if the plaintiffs had won in Miami, their lawyers would try in
U.S. courts to collect the other judgments that the companies
have refused to pay.
"This is a powerful ruling," Dole's lawyer, Theodore Boutrous
Jr., Esq., at Gibson Dunn & Crutcher told Mr. Pettersson in a
phone interview. "It will be a major deterrent to bringing other
verdicts to the U.S."
Judge Huck ruled in January that Occidental and Shell couldn't be
held liable because there was no evidence their DBCP products
were used in Nicaragua.
The lawyers representing the Nicaraguan workers are:
Steven Craig Marks, Esq.
Joel Douglas Eaton, Esq.
Carolina Maharbiz, Esq.
Ricardo M. Martinez-Cid, Esq.
Aaron Samuel Podhurst, Esq.
Ramon Alvaro Rasco, Esq.
PODHURST ORSECK JOSEFSBERG, et al.
City National Bank Building
25 W. Flagler Street, Suite 800
Miami, FL 33130-1780
Telephone: 305-358-2800
- and -
Joe J. Fisher, II, Esq.
Mark Sparks, Esq.
PROVOST UMPHREY LAW FIRM LLP
490 Park Street
Beaumont, TX 77701
Telephone: 409-835-6000
Dole Food is represented by:
Theodore Boutrous Jr., Esq.
GIBSON DUNN & CRUTCHER LLP
333 S. Grand Avenue, Suite 4600
Los Angeles, CA 90071-3197
Telephone: 213-229-7000
- and -
Scott A. Edelman, Esq.
William E. Thomson, Esq.
GIBSON DUNN & CRUTCHER LLP
2029 Century Park East, Suite 4000
Los Angeles, CA 90067
Telephone: 310-557-8061
- and -
Andrea E. Neuman, Esq.
GIBSON DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612-4412
Telephone: 949-451-3937
- and -
Yolanda Orozco, Esq.
JONES DAY
555 S. Flower Street, 50th Floor
Los Angeles, CA 90071-2300
Telephone: 213-243-2469
- and -
Jeffrey W. Gutchess, Esq.
Christopher N. Johnson, Esq.
Adriana Riviere-Badell, Esq.
Martin Leonard Steinberg, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131
Telephone: 305-810-2500
Occidental Chemical Corporation is represented by:
Guy S. Lipe, Esq.
D. Ferguson McNiel, III, Esq.
VINSON & ELKINS LLP
1001 Fannin, Suite 2500
Houston, TX 77002
Telephone: 713-758-1109
- and -
Barbara Mary Arco, Esq.
James D. Wing, Esq.
HOLLAND & KNIGHT
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Telephone: 305-374-8500
Dow Chemical Company is represented by:
Michael P. Foradas, Esq.
James T. McLaughlin, Jr., Esq.
Jeffrey J. Zeiger, Esq.
KIRKLAND & ELLIS LLP
300 N. LaSalle
Chicago, IL 60654
Telephone: 312-862-2000
- and -
Michael L. Brem, Esq.
SCHIRRMEISTER DIAZ-ARRASTIA BREM LLP
700 Milam
Pennzoil Place North Tower, 10th Floor
Houston, TX 77002
Telephone: 713-221-2500
- and -
Ronald Peter Weil, Esq.
RONALD WEIL PA
Wachovia Financial Center, Suite 900
200 S. Biscayne Boulevard
Miami, FL 33131
Telephone: 305-372-5352
Shell Oil Company is represented by:
Eric R. Columbus, Esq.
David W. Ogden, Esq.
Sarah G. Rapawy, Esq.
Ethan G. Shenkman, Esq.
WILMERHALE LLP
1875 Pennsylvania Avenue NW
Washington, DC 20006
- and -
Natalie Jessica Carlos, Esq.
Julie Feigeles, Esq.
Neil Preseton Linden, Esq.
ADORNO & YOSS LLP
2525 Ponce De Leon Boulevard, Suite 400
Miami, FL 33134
Telephone: 305-460-1000
EXXONMOBIL: N.D. Calif. Dismisses Global Warming Lawsuit
--------------------------------------------------------
A news release distributed by the law firm of Pillsbury Winthrop
Shaw Pittman LLP this week relates that Native Village of
Kivalina v. ExxonMobil Corporation, et al., Case No. 08-cv-1138
(N.D. Calif.) SBA, was dismissed on Sept. 30, 2009.
In this case, members of the Inupiat Eskimos living in a village
near the Arctic Circle asserted a federal common law nuisance
claim. The plaintiffs alleged that the defendants -- 24 oil,
energy, and utility companies -- contributed to the excessive
emissions of carbon dioxide and other greenhouse gases which
caused global warming and consequently diminished the Arctic sea
ice that protects their village from winter storms, and that the
resulting erosion and destruction will require their relocation.
The court ruled that the complaint must be dismissed as a non-
justiciable claim under the political question doctrine of the
Supreme Court's 1962 decision in Baker v. Carr. In doing so, the
court took issue with a contrary ruling of the Second Circuit
Court of Appeals in Connecticut v. American Electric Power,
decided on September 21, 2009. In addition, the court held that
the plaintiffs failed to adequately establish that they have
standing to pursue these claims, failing to show that there was
any connection between their alleged damages and the defendants'
conduct.
"While each case must be evaluated on the merits of evidence on a
individual basis, the decision in Kivalina is more in keeping
with how courts have traditionally ruled -- often dismissing
these types of cases as "nuisance suits" filed by plaintiffs for
no other purpose than to cause headaches for companies
they politically or personally disagree with," said partner
Sheila Harvey, Esq., head of Pillsbury's Climate Change &
Sustainability team. "But as more carbon emission cases go to
trial, testing case law or reinterpreting it differently as
happened here when both cases cited Connecticut v. American
Electric Power, companies may find themselves increasingly facing
potential liability if they can't demonstrate that every effort
has been made to reduce or limit carbon emissions as part of the
standard cost of doing business."
Ms. Harvey notes that the ruling from the Northern District of
California is starkly different from the decisions handed down by
the United States Court of Appeals for the Fifth in Comer, et al.
v. Murphy Oil USA, et. al., Case No. 07-60756 (covered in
yesterday's edition of the Class Action Reporter).
"The U.S. Supreme Court ruling to classify carbon emissions as
pollutants was an important turning point," said environmental
lawyer Anthony Cavender, Esq., who is based in Pillsbury's
Houston office. "Given that the Obama Administration has already
advocated for tighter regulations related to the environment as a
whole, and in particular, for tougher policies governing carbon
emissions, many plaintiffs may now feel that the time is right to
file such suits, hoping that that both state and federal courts
will be equally sympathetic. That tactic paid off in Comer given
the unanimous ruling for the plaintiffs."
Pillsbury's Climate Change & Sustainability team assists clients
in funding, supporting, and building technologies, facilities or
products that help reduce the world's carbon footprint.
Pillsbury's experience advising energy clients on carbon
emissions-related matters dates back more than 20 years when the
State of California first began mandating specific rules related
to reducing greenhouse gases (GHGs). The Firm's team members
have advised on more than 100 climate change matters in the past
five years, including negotiating at the international level
under the Framework Convention on Climate Change and on the EU's
GHG cap-and-trade program; legislative activity at the U.S.
federal and state level, and GHG-related litigation. Pillsbury
also serves clients in the area of financing projects aimed at
securing GHG-emission reduction credits. The Firm also has
significant experience assisting cleantech start ups to secure
financing and patent new technologies designed to burn cleaner
fuels or reduce greenhouse gases.
For more about Pillsbury's Climate Change Practice, visit
http://www.pillsburylaw.com/climatechange/
The lawyers commenting on these two recent climate change
decisions can be reached at:
Sheila McCafferty Harvey, Esq.
PILLSBURY WINTHROP SHAW PITTMAN LLP
2300 N Street, NW
Washington, DC 20037-1122
Telephone: 202-663-8000
- and -
Anthony Cavender, Esq.
PILLSBURY WINTHROP SHAW PITTMAN LLP
2 Houston Center
909 Fannin, Suite 2000
Houston, TX 77010-1018
Telephone: 713-276-7600
FERRING B.V.: 2nd Cir. Revives Diabetes Drug Antitrust Case
-----------------------------------------------------------
Avery Fellow at Courthouse News Service reports that the United
States Court of Appeals for the Second Circuit has reinstated an
antitrust class action accusing drug makers Ferring and Aventis
of hiking prices on the diabetes drug desmopressin acetate, known
as DDAVP.
The Second Circuit found that buyers of the drug -- Meijer Inc.,
Rochester Drug Co-op, and Louisiana Wholesale Drug -- had a case
against the drug companies, even though they were not direct
competitors.
The buyers claimed that Ferring filed a false citizen petition
with the U.S. Food and Drug Administration to delay the approval
of generic DDAVP tablets. This allegedly gave Ferring and Aventis
pricing control over the tablets, which they used to inflate the
price of the drugs.
Though the plaintiffs are not generic drug makers or direct
competitors, they were affected by the actions of Ferring and
Aventis by being forced to pay higher prices, the 2nd Circuit
ruled. This gives them standing to sue under antitrust laws,
Judge John Walker Jr. determined, reversing a lower court's
dismissal of the complaint for lack of standing.
The drug makers knew that their patent was unenforceable months
before the FDA rejected their citizen petition, but they did not
withdraw it, Judge Walker added. He said the plaintiffs can sue
over the sham litigation's impact on drug prices.
The Second Circuit vacated dismissal and remanded the case.
A copy of the Second Circuit's ruling is available at
http://is.gd/4tSPZat no charge.
FLORIDA PUBLIC: Defending Suit Challenging Chesapeake Merger
------------------------------------------------------------
Florida Public Utilities Co. intends to defend a putative class
action lawsuit purportedly on behalf of the shareholders of the
company, challenging the merger was filed in Palm Beach County,
Florida, against the company, each member of company's board of
directors and Chesapeake.
On May 8, 2009, a putative class action lawsuit purportedly on
behalf of the shareholders of FPU, challenging the merger was
filed in Palm Beach County, Florida, against FPU, each member of
FPU's board of directors and Chesapeake.
The complaint, filed on May 8, 2009, alleges, among other things,
that the approval of the proposed merger by the directors of the
company constituted a breach of their fiduciary duties. The suit
seeks to enjoin completion of the merger, the company disclosed
in its Aug. 12, 2009, Form 10-Q filed with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2009.
Florida Public Utilities Company -- http://www.fpuc.com/--
provides natural gas, electricity and propane gas to residential,
commercial and industrial customers in Florida. The company has
three segments: natural gas, electric and propane gas. The
Florida Public Service Commission regulates the natural gas and
electric segments. The company's regulated segments sell natural
gas and electricity to approximately 83,000 customers and its
unregulated segment sells propane gas, through a wholly owned
subsidiary, Flo-Gas Corporation, to approximately 12,000
customers. The company also sells merchandise and other service-
related products on a limited basis as a complement to the
natural and propane gas segments.
GEORGIA: Employee Lawsuit Seeks Payment of 2.5% Pay Raise
---------------------------------------------------------
Jacqueline J. Holness at Courthouse News Service reports that
10,000 state employees demand that Georgia come through with the
raises it promised. The class action in Fulton County Superior
Court says Gov. Sonny Perdue has no right with withhold the 2.5
pay increase the Legislature authorized last year.
William Estill filed the complaint on behalf of more than 10,000
state employees. Georgia's 2008 Appropriation Act authorized the
pay increases, to take effect Jan. 1, 2009, but employees are
still waiting for it.
Mr. Estill says Perdue signed a 2009 Supplemental Appropriations
Act two and a half months after state employees should have got
their raises. This act deferred the 2009 salary increase. Mr.
Estill says it's not really a deferment, it's a denial of the
salary increase, as nothing in the Supplemental Act or the
following 2010 Appropriation Act will reimburse employees for the
raises they lost this year.
Other methods, such as a reduction in force or higher taxes could
have been used rather than slashing raises for all employees
across the board, Mr. Estill says. He seeks an injunction
reinstating the raises, with back pay.
A copy of the Complaint in Estill v. The State of Georgia, et
al., Civ. Action No. 2009CV176536 (Ga. Super. Ct., Fulton Cty.),
is available at:
http://www.courthousenews.com/2009/10/21/GaEmployees.pdf
The Plaintiff is represented by:
Wilbur D. Owens, III, Esq.
Joseph A. Mulherin, III, Esq.
OWENS & MULHERIN
P.O. Box 13368
Savannah, GA 31416
Telephone: 912-691-4686
GKN AEROSPACE: Calif. Lawsuit Alleges Labor Law Violations
----------------------------------------------------------
Peter Tran, on behalf of himself and all others similarly
situated, sued GKN Aerospace Transparency Systems, Inc., Docket
No. 30-2009-00312257 (Calif. Super. Ct., Orange Cty.) (Colaw,
J.), on Oct. 16, 2009. The Complaint accuses the airplane window
design and manufacturing company of not paying its non-exempt
workers what they're owed. The Plaintiff is represented by:
James T. Hawkins, Esq.
Isandra Fernandez, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, California 92618
Telephone: 949-387-7200
KADANT INC: Plaintiff's Appeal of Suit Dismissal Still Pending
--------------------------------------------------------------
The U.S. First Circuit Court of Appeals has yet to schedule a
hearing on the plaintiffs' appeal of the dismissal of a purported
class action lawsuit filed on behalf of a putative class of
consumers who purchased defective decking and railing products
manufactured by Kadant, Inc.'s discontinued operation.
The company has been named as a co-defendant, together with the
its Kadant Composites LLC subsidiary and another defendant, in a
consumer class action lawsuit filed in the United States District
Court for the District of Massachusetts on Dec. 27, 2007 on
behalf of a putative class of individuals who own GeoDeck(TM)
decking or railing products manufactured by Composites LLC
between April 2002 and October 2003.
The complaint in this matter purports to assert, among other
things, causes of action for unfair and deceptive trade
practices, fraud, negligence, breach of warranty and unjust
enrichment, and it seeks compensatory damages and punitive
damages under various state consumer protection statutes.
The District Court dismissed the complaint against all defendants
in its entirety on Nov. 19, 2008.
The plaintiffs have appealed the District Court's dismissal to
the Court of Appeals. The Court of Appeals has yet to schedule a
hearing on the plaintiffs' appeal, the company disclosed in its
Aug. 12, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 4, 2009.
The suit is Fisher, et al. v. Liberty Diversified Industries,
Inc., et al., Case No. 07-CV-12375 (Mass.) (Tauro, J.)
Representing the plaintiffs are:
Natalie Finkelman Bennett, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
35 E. State Street
Media, PA 19063
Phone: 610-891-9880
Fax: 610-891-9883
E-mail: nfinkelman@sfmslaw.com
- and -
Kristen Marquis Fritz, Esq.
THORNTON & NAUMES LLP
30th Floor, 100 Summer Street
Boston, MA 02110
Phone: 617-720-1333
Fax: 617-720-2445
E-mail: kfritz@tenlaw.com
Representing the defendants are:
John G. Fabiano, Esq.
WILMERHALE LLP
60 State Street
Boston, MA 02109
Phone: 617-742-9100
Fax: 617-526-5000
E-mail: john.fabiano@wilmerhale.com
- and -
Edward William Little Jr., Esq.
MCCARTER & ENGLISH, LLP
225 Franklin street
Boston, MA 02110
Phone: 617-345-7018
Fax: 617-204-8018
E-mail: elittle@mccarter.com
KMART CORP: Status Conference Next Week in Germ Defense Lawsuit
---------------------------------------------------------------
Amelia Flood at The St. Clair Record reports that a suit over a
generic immunity booster sold by Kmart stores is set for a status
conference early next week.
The suit is similar to several others filed in St. Clair County
in 2008 against pharmacies and retailers selling their own forms
of the popular "Airborne" supplement.
The same team of attorneys, Richard Burke of St. Louis, Paul
Weiss of Chicago and Kevin Hoerner and Brian Kreisler of
Belleville, are at the helms of all of the suits.
The Kmart suit is virtually identical to suits filed by the four
against Target, CVS pharmacies and others.
Each suit claims that the retailers breached the Illinois
Consumer Fraud Act by selling a product that does not boost the
immune system as claimed.
Lead plaintiff Larry Adams is suing on behalf of others similarly
situated on claims of violation of the consumer fraud statute and
unjust enrichment. The suit seeks damages of not more than
$75,000 per individual class member, costs and attorneys' fees.
On Sept. 14, presiding judge, St. Clair Circuit Judge Lloyd Cueto
ordered the case status hearing continued to Oct. 26 at 9:00 a.m.
Mr. Adams and the proposed class are represented by the Burke
team.
Kmart is represented by William Knapp of Edwardsville and Mark
Brand of Collinsville.
The case is St. Clair case number 08-L-599.
Prior coverage of this matter appeared in the Class Action
Reporter on Jan. 30, 2009, and Dec. 3, 2008.
MEEKER COUNTY: Settles Strip Jail Search Case for $1.75 Million
---------------------------------------------------------------
Tom Cherveny at the West Central Tribune reports that Meeker
County's former practice of strip searching and sometimes
photographing private body parts of all newly arrested people as
they were booked into jail will cost the Minnesota Counties
Insurance Trust $1.75 million.
The Insurance Trust agreed to pay compensation and legal fees
totaling that amount on behalf of Meeker County as part of a
class-action settlement recently approved by U.S. District Court
Judge Joan Erickson.
The county does not admit to any wrongdoing or liability as part
of the agreement.
The agreement calls for paying $50,000 to Gail Lynn Simpson, of
Big Lake, who filed the initial civil lawsuit against Meeker
County in March 2008. Ms. Simpson charged that she had been
booked into the jail five times on traffic violations,
misdemeanor theft and a child-support dispute. She was strip
searched each time, and her pierced breasts were photographed
during her last admission, according to the civil complaint.
The order also requires that $950,000 in compensation be divided
into shares and paid to 397 other claimants. They had filed
forms by Sept. 11, 2009, asserting to have been strip searched or
photographed when booked into jail during the period covered by
the lawsuit, March 31, 2002 through April 30, 2008. The
compensation will be awarded based on a formula that took into
account their claims of 807 compensable strip searches and 132
compensable instances of photography of personal areas.
The court also ordered that up to $70,000 be set aside as a
"stragglers fund" and used to compensate other persons who have
until Nov. 24 to file claims for having been strip searched or
photographed.
The Plaintiffs are represented by:
Vincent J. Moccio, Esq.
ROBINS, KAPLAN, MILLER & CIRESI LLP
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402
Telephone: 612-349-8500
and the remaining $630,000 will be paid to the plaintiffs' law
firm, although that amount could be reduced by up to the $70,000
yet to be awarded as the stragglers fund.
Meeker County also agrees to maintain its new procedures on strip
searches and photography.
The new procedures were adopted one month after the filing of the
lawsuit. They limit strip searches to newly arrested persons who
are charged with felony level offenses or offenses involving
drugs or weapons or in cases where officers have reason for
suspicion.
The plaintiffs alleged in their lawsuit that the county was
essentially strip searching everybody who was booked into the
jail for more than six hours, even if the charged offense was a
misdemeanor or gross misdemeanor, Mr. Moccio told Mr. Cherveny.
Mr. Moccio said his office received mainly "positive feedback"
from the claimants in response to the settlement.
The attorney's office had sent notices of the class-action suit
to 2,643 people at 4,455 addresses, according to the court order.
Those notified could either opt out of the suit or attest to
being strip searched and or photographed.
The attorney representing the county:
Jon K. Iverson, Esq.
IVERSON REUVERS
9321 Ensign Avenue South
Bloomington, MN 55438
Telephone: 952-548-7200
was out of the office when Mr. Cherveny attempted to contact him.
In a news release announcing the settlement, Mr. Iverson pointed
out that a similar lawsuit was handled on behalf of St. Croix
County, Wis., and resulted in a payout of more than $6 million
and that a case involving Mille Lacs County required a $2 million
payout.
Meeker County was able to settle the case within the limits of
its insurance coverage, and it avoids any ongoing legal costs,
the news release also stated.
REPUBLIC OF TURKEY: Cypriot Property Owners Sue for in D.C.
-----------------------------------------------------------
Courthouse News Service reports that a class of people who lived
in Cyprus before Turkey's 1974 invasion sued Turkey and the
Turkish Republic of Northern Cyprus, claiming they are criminally
selling off expropriated property.
The Plaintiffs seek $400 billion in compensatory damages and $1
trillion in punitive damages.
A copy of the Complaint in Toumazou, et al. v. Republic of
Turkey, et al., Case No. 09-cv-0167 (D.C.) (Friedman, J.), is
available at:
http://www.courthousenews.com/2009/10/21/GovtCyprus.pdf
The Plaintiffs are represented by:
Athan T. Tsimpedes, Esq.
TSIMPEDES LAW FIRM
1050 Connecticut Ave., N.W., Suite 1000
Washington, DC 20036
Telephone: 202-772-3159
RUBIO'S RESTAURANTS: Shareholders Fight Levine's Buyout Offer
-------------------------------------------------------------
Elizabeth Banicki at Courthouse News Service reports that Rubio's
board of directors and its largest shareholders are taking the
company private on the cheap, at $8 a share, shareholders say in
a Superior Court class action. They say the offer is unfair, as
Rubio's share price has tripled after five straight quarters of
growth.
Lead plaintiff Sanjay Israni says "the timing of the proposed
buyout is no accident." After a dismal 2008, Rubio's shares sank
to about $2. But record results for the first half of 2009
brought a 9 percent increase in revenue, and the share rose to
$6.
Rubio's, founded in 1983, owns and operates 190 outlets in the
Southwest.
The buyout group, which together own almost 50 percent of the
shares, "saw the rapidly increasing share price as a threat to
the leverage that the low share price afforded them and acted
quickly to cap the price at $8," the complaint states.
Defendant Alex Meruelo is the largest shareholder, with 12
percent of the shares. Ralph Rubio, founder and chairman, Kyle
Anderson; managing director for Rosewood Capital; Daniel Pittard,
Rubio's president and CEO; and directors Timothy Ryan, Craig
Andrews, William Bensyl, and Loren Pannier are all named as
defendants.
The class alleges breach of fiduciary duties and seeks an
injunction, costs and attorney's fees.
A copy of the Complaint in Israni v. Rubio's Restaurants, Inc.,
et al., Case No. 37-2009-00062992-CU-BT-NC (Calif. Super. Ct.,
San Diego Cty.), is available at:
http://www.courthousenews.com/2009/10/21/Rubios.pdf
The Plaintiffs are represented by:
Darren J. Robbins, Esq.
Randall J. Baron, Esq.
A. Rick Atwood, Jr., Esq.
David T. Wissbroecker, Esq.
Aaron W. Beard, Esq.
COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-3301
Telephone: 619-231-1058
- and -
Marc S. Henzel, Esq.
LAW OFFICES OF MARC C. HENZEL
273 Montgomery Ave., Suite 2020
Bala Cynwyd, PA 19004
Telephone: 610-660-8000
SIGG SWITZERLAND: Calif. Suit Claims Aluminum Bottles are Toxic
---------------------------------------------------------------
Jared Brandt and Andrea Koepke, individually and on behalf of all
others similarly situated, sued SIGG Switzerland (USA), Inc.,
Case No. 09-cv-04981 (N.D. Calif.), on Oct. 19, 2009, because
they didn't know that the reusable aluminum bottles they
purchased contained bispenol A. The Plaintiffs say they thought
they were buying BPA-free bottles from SIGG. The Plaintiffs are
represented by:
Michael A. Caddell, Esq.
Cynthia B. Chapman, Esq.
George Y. Nino, Esq.
CADDELL & CHAPMAN
1331 Lamar, Suite 1070
Houston, TX 77010-3027
Telephone: 713-751-0400
As reported in the Class Action Reporter on Sept. 4, 2009,
Caddell & Chapman filed a similar class action complaint on
behalf of other clients in the Western District of Kentucky.
STARBUCKS COFFEE: No Class, But Tip Policy Violates Minn. Law
-------------------------------------------------------------
Melissa Allison at the Seattle TImes reports that "Starbucks'
policy violates Minnesota law by requiring employees who work on
a particular shift to share tips received on that shift with
employees who do not work on that shift," Judge Patrick Schiltz
of the Federal Court for the District of Minnesota wrote in an
Oct. 16 clarification letter in response to questions from
Starbucks attorneys in Delsing v. Starbucks Coffee Corporation,
Case No. 08-cv-01154 (D. Minn.).
On Sept. 30, Kudge Schiltz denied class-action status for a
lawsuit filed by two former Starbucks baristas, Sandra Delsing
and Amber Boleng. The judge said the interests of the class
would be divided, because some baristas come out ahead with the
current policy.
Although Judge Schiltz said that Starbucks' policy violates
Minnesota state law, he has not decided whether plaintiffs in the
lawsuit are entitled to receive damages, he said in the Oct. 16
clarification letter.
"We are still actively litigating this case. As we've stated in
the past, we are opposing the Minnesota case because we believe
our tipping policy is fair and appropriate," Starbucks spokesman
Alan Hilowitz told Ms. Allison.
This past summer, Ms. Allison relates, a California appeals court
overturned a $86 million decision against Starbucks, saying the
company did not violate state law by allowing shift supervisors
to share tips with baristas.
The Plaintiffs are represented by:
E. Michelle Drake, Esq.
Paul J. Lukas, Esq.
Jessica J. Clay, Esq.
NICHOLS KASTER
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: 612-256-3200
Starbucks is represented by:
Jessica W.P. D'Arrigo, Esq.
Daniel L. Nash, Esq.
Nathan J. Oleson, Esq.
AKIN GUMP STRAUSS HAUER & FELD
1333 New Hampshire Ave. NW
Washington, DC 20036-1564
Telephone: 202-887-4390
- and -
Gregory W. Knopp, Esq.
AKIN GUMP STRAUSS HAUER & FELD
2029 Century Park East, Suite 2400
Los Angeles, CA 90067-3012
Telephone: 310-552-6436
- and -
Mark J. Girouard, Esq.
Joseph G. Schmitt, Esq.
HALLELAND LEWIS NILAN & JOHNSON PA
220 S. 6th St., Ste. 600
Minneapolis, MN 55402-4501
Telephone: 612-338-1838
STARENT NETWORKS: Del. Lawsuit Wants Cisco to Pay More in Merger
----------------------------------------------------------------
Laborers Local 235 Benefit Funds, on behalf of itself and all
others similarly situated, filed a Verified Class Action
Complaint, Case No. 5002 (Del. Ch. Ct.), against Starent
Networks, Corp., Ashraf M. Dahod, Edward T. Anderson, Timothy A.
Barrows, Sean M. Dalton, Matthew J. Desch, James A. Dolce, Jr.,
Kenneth A. Goldman, Cisco Systems, Inc., and Barcelona
Acquisition Corp. on Oct. 20, 2009. The Fund is challenging
Starent's proposed merger with Cisco, saying the $2.9 billion
Cisco is offering is inadequate.
"[B]oth the value to Starent shareholders contemplated in the
Merger and the process by which Defendants propose to consummate
the Merger are fundamentally unfair to . . . public
shareholders," the Complaint says.
The Plaintiff is represented by:
SAXENA WHITE P.A.
2424 North Federal Highway, Suite 257
Boca Raton, Florida 33431
Telephone: (561) 394-3399
- and -
FARUQI & FARUQI, LLP
369 Lexington Avenue, 10th Fl.
New York, NY 10017
Telephone: (212) 983-9330
- and -
Carmella P. Keener, Esq.
ROSENTHAL, MONHAIT & GODDESS, P.A.
Citizens Bank Center
919 N. Market Street, Suite 1401
P.O. Box 1070
Wilmington, DE 19801
Telephone: (302) 656-4433
TIME WARNER: Calif. Suit Accuses Firm of Labor Law Violations
-------------------------------------------------------------
Delzora Dotson, on behalf of herself and all others similarly
situated, sued Time Warner, Inc., Docket No. BC424131 (Calif.
Super. Ct., Los Angeles Cty.), on Oct. 16, 2009. The lawsuit
complains that Time Warner doesn't pay its in-bound customer call
center employees and in-bound sales representatives what they're
owed.
The Plaintiff is represented by:
Gregory N. Karasik, Esq.
SPIRO MOSS LLP
11377 W. Olympic Blvd., Fifth Floor
Los Angeles, California 90064-1683
Telephone: 310-235-2468
WYNN RESORTS: Employee Second-Hand Smoke Lawsuit Filed in Nev.
--------------------------------------------------------------
Nick Divito at Courthouse News Service reports that a proposed
class action seeks to force The Wynn Hotel and Casino to protect
its workers on the casino floor from second-hand smoke. Kanie
Kastroll, a dealer at the Wynn, says she suffers with asthma, and
the "second-hand smoke she is exposed to ... exacerbates her
condition."
Wynn "is aware of the health risks posed by exposure to second-
hand smoke," but "has failed to adequately address the problem
. . . in the gaming area of its casino."
The hotel forbids dealers from designating certain tables as
"smoke-free," and they can't request customers to blow smoke away
from the table or to move their ashtrays, the lawsuit states.
They're also told not to fan their hands at tobacco smoke.
Ms. Kastroll says the Wynn even encourages its customers to
smoke. "Cocktail servers bring cigars and cigarettes to customers
at the gaming tables," and that the hotel gives free smokes to
gamblers.
"If a customer asks a dealer 'do you mind if I smoke?" Wynn
. . . prefers its dealers to answer 'no, not at all,' even if the
tobacco smoke does in fact bother the dealer," according to the
complaint. Ms. Kastroll says dealers who complain fear
discipline or losing their jobs.
Accommodations are sometimes made for pregnant dealers, but only
at the discretion of individual floor supervisors, the lawsuit
states.
"Employees are frequently faced with a choice: quit their jobs or
continue to expose themselves and their unborn children to
second-hand smoke."
Second-hand smoke has been designated as a known carcinogen by
the U.S. Environmental Protection Agency, the National Toxicology
Program and the International Agency for Research on Cancer.
Ms. Kastroll says other casinos have voluntarily taken measures
to reduce the amount of second-hand smoke their workers inhale.
The Bellagio, for example, installed an air filtration system to
reduce the amount of second-hand smoke on its casino floor. The
Palazzo built "smoke-free corridors" and designed 50 percent of
its casino floor as non-smoking.
"Wynn Las Vegas, however, continues to gamble with its employees'
health and welfare in order to cut costs and maintain the status
quo," the lawsuit states.
Ms. Kastroll seeks an order requiring the hotel to "take
reasonable measures to protect its employees from second-hand
smoke."
A copy of the Complaint in Kastroll v. Wynn Resorts, Ltd., Case
No. 09-cv-02034 (D. Nev.), is available at:
http://www.courthousenews.com/2009/10/21/Kanie%20Kastroll%2013.pdf
The Plaintiff is represented by:
Jay Edelson, Esq.
Rafey Balabanian, Esq.
Steven Lezell, Esq.
KAMBEREDELSON, LLC
350 N. LaSalle Ave, Suite 1300
Chicago, IL 60654
Telephone: (312) 589-6370
- and -
George Kelesis, Esq.
Marc Cook, Esq.
BAILUS COOK & KELESIS
400 S. 4th St., Suite 300
Las Vegas, NV 89101
Telephone: (702) 385-3788
Asbestos Litigation
ASBESTOS ALERT: Robinson & Owen Fined $1,800 for Cleanup Breach
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The Oregon Department of Environmental Quality penalized Robinson
& Owen Heavy Construction Inc. US$1,800 for performing an
asbestos abatement project at Black Butte Ranch without a
license, according to a DEQ press release dated Oct. 20, 2009.
The penalty stems from work Robinson & Owen performed in June
2009, when employees used an excavator to remove 26 linear feet
of asbestos-containing sewer pipe from the east side of
Partridgefoot Road at Black Butte Ranch.
Removal of the pipe caused it to be broken into smaller pieces.
This in turn rendered the pipe friable, or capable of being
crumbled or pulverized when dry. This action likely caused the
release of asbestos fibers into the air.
Robinson & Owen was unlicensed to perform such asbestos removal
work, and thus was penalized US$1,800. DEQ also cited the
Company for openly accumulating asbestos-containing waste
material at the site but did not assess a civil penalty for this
violation.
Robinson & Owen did not appeal the penalty by its Oct. 14, 2009,
deadline, and the penalty amount is now due.
COMPANY PROFILE: Robinson & Owen Heavy Construction, Inc.
750 Buckaroo Trail Ste 102
Sisters, OR 97759-9426
Tel. No.: (541) 549-1848
ASBESTOS UPDATE: PPG Ind. Records $534Mil Settlement at Sept. 30
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PPG Industries, Inc.'s asbestos settlement (under current
liabilities) was US$534 million as of Sept. 30, 2009, compared
with US$615 million as of Sept. 30, 2008, according to a Company
report, on Form 8-K, filed with the Securities and Exchange
Commission on Oct. 15, 2009.
The Company's asbestos settlement (under current liabilities) was
US$514 million as of June 30, 2009, compared with US$613 million
as of June 30, 2008. (Class Action Reporter, July 24, 2009)
The Company recorded US$3 million as net asbestos settlement
during the three months ended Sept. 30, 2009, compared with US$5
million as of Sept. 30, 2008.
The Company recorded US$10 million as net asbestos settlement
during the nine months ended Sept. 30, 2009, compared with US$9
million during the nine months ended Sept. 30, 2008.
Third quarter 2009 net income includes an aftertax charge of US$2
million, or US$0.01 per share, to reflect the net increase in the
current value of the Company's obligation under its proposed
asbestos settlement, which is pending court proceedings.
Reported third quarter 2008 net income included aftertax charges
of US$110 million, or US$0.67 per share, for business
restructuring and US$3 million, or US$0.02 per share, for the
proposed asbestos settlement.
PPG Industries, Inc. supplies paints, coatings, optical products,
specialty materials, chemicals, glass and fiber glass. The
Company has more than 140 manufacturing facilities and equity
affiliates and operates in more than 60 countries. The Company is
headquartered in Pittsburgh.
ASBESTOS UPDATE: Puckett's Widow Receives $1.2M Payout on Oct. 5
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Danny Puckett's unnamed widow, on Oct. 5, 2009, received US$1.2
million in Texas court as compensation for Mr. Puckett's
workplace exposure to asbestos, Asbestos.com reports.
The Pucketts sued several defendants, stating that Mr. Puckett's
mesothelioma was due to asbestos exposure he experienced from
1975 to 1985 when he worked for Dowell Company as a member of the
cement crew.
Two defendants, Montello, Inc. and Union Carbide Corporation were
each found 15 percent liable for Mr. Puckett's mesothelioma
development while other defendants settled out of court or were
dismissed from the case.
The 59-year-old Mr. Puckett died in April 2009, six months after
his diagnosis. Before his passing, he testified in the lawsuit,
stating he was exposed to a "continuous smokestack" of dust from
asbestos-containing cement additives used in a cement-mixing
hopper.
ASBESTOS UPDATE: Coroner Rules on Former Horndean Plumber Death
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A coroner ruled that the death of 68-year-old Frederick Lockie, a
former plumber from Horndean, Hampshire, England, was due to an
asbestos-related industrial disease, Asbestos.Net reports.
The coroner issued the ruling after an inquest investigated the
life and death of Mr. Lockie was diagnosed with malignant pleural
mesothelioma.
Mr. Lockie worked as a plumber throughout his career, beginning
as an apprentice when he was very young. During his
apprenticeship and in the years following, he was exposed to
asbestos on a regular basis.
Mr. Lockie's widow, Pauline Lockie, said, "He didn't deserve to
die, he was a lovely man."
ASBESTOS UPDATE: Tenn. Appeal Court Issues New Trial in Nye Case
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On Oct. 14, 2009, three Tennessee Court of Appeals judges ruled
that the family of Hugh Todd Nye, who died on mesothelioma, is
entitled to a new asbestos-related trial, The Chattanoogan
reports.
The case is styled Evelyn Nye, individually and as surviving
spouse of Mr. Nye v. Bayer Cropscience and others.
After a two-week trial in Hamilton County Circuit Court in the
spring of 2008, the jury returned a verdict that was favorable in
part to Mr. Nye's family. However, the jury ultimately ruled in
favor of defendant North Brothers, due, according to the Court of
Appeals, instructions from the judge.
Mr. Nye worked at the E. I. du Pont de Nemours and Company
facility in Chattanooga, Tenn., from 1948-1985. Although numerous
companies were originally involved in the lawsuit, the only
defendant left in the case at the time of trial was North
Brothers, an asbestos products supplier to DuPont.
The Nye family is represented by Jimmy Rodgers, Esq., with the
law firm of Summers & Wyatt in Chattanooga, Tenn., along with
John Guerry, Esq., and Benjamin Cunningham, Esq., from the Motley
Rice law firm of Charleston, S.C.
North Brothers was represented by Hugh Bright, Esq., Michael
King, Esq., and Robert Vance, Esq., from the Woolf McClane firm
out of Knoxville, Tenn.
ASBESTOS UPDATE: Willmore Dies After Receiving GBP240,000 Payout
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Dianne Willmore, a 49-year-old woman from Wales, United Kingdom,
died on Oct. 15, 2009 of mesothelioma, about 24 hours after a
judge ruled that she should be paid GBP240,000 in asbestos-
related compensation, BBC News reports.
Mrs. Willmore inhaled asbestos a pupil at Huyton's Bowring School
in Merseyside, England, in the 1970s.
In a landmark ruling, the High Court decided that Mrs. Willmore
was entitled to the cash because the Knowsley Council "knew or
ought to have known that any more than minimal exposure to
asbestos dust was foreseeably hazardous.
It is the first time a case relating to exposure in a school has
been found in favor of a pupil.
Mrs. Willmore, who was from Huyton and went to school there,
later moved to Wrexham in north Wales. Her solicitor, Ruth
Davies, said, "She was a very courageous, bubbly woman who had to
face a lot to find justice. I managed to contact her last night
to tell her the good news, she was delighted. Obviously she was
having problems speaking because breathing had become so hard for
her."
Mrs. Willmore was diagnosed with malignant mesothelioma in 2007
and in July 2009 Liverpool High Court found Knowsley Council
liable for damages for negligently exposing her to asbestos
fibres while she was a pupil.
The local authority then appealed against this decision and it
went to the Court of Appeal. The hearing was heard on Oct. 14,
2009, where the judge said the council did not have a case to
pursue.
Mrs. Willmore had told the court that she was exposed to asbestos
fibers through the ceiling tiles in the school toilets. They were
disturbed by children who used to hide items up there, causing
the leak.
Paul Rowan, MP for Rochdale who has campaigned on behalf of Mrs.
Willmore, welcomed the ruling, saying it was a case that could
"affect many more people suffering from the disease."
Mr. Rowan said, "She was a brave, brave lady. In doing what she
has done she has helped every member of staff and pupil who has
been, or will be, exposed to asbestos in a school."
ASBESTOS UPDATE: Abatement at Condemned Day House to Cost $3,000
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The removal of asbestos tiles and insulation at a condemned house
on the Day property in South Berwick, Maine, will cost US$3,000,
which will be taken from the Town's capital account,
Seacoastonline.com reports.
On Oct. 12, 2009, the Town Council voted to demolish the
condemned house on Agamenticus Road, more than six years after
the town purchased it for US$150,000 as a possible new library
site.
The so-called Day property, sold to the town by Mary Day, was
purchased using money from the library reserve account. However,
according to Town Manager John Schempf, the house fell into
disrepair over the years and was condemned by the Town's fire
chief, code enforcement officer and insurance carrier in November
2005.
Mr. Schempf recommended the building be razed in a controlled
burn by the Town's firefighters, who would use the opportunity to
train.
"The US$3,000 could be used for something else," said David
Webster. "It's unwise to spend taxpayer money to remove the
asbestos. Sell it as is and see how it goes."
"Nothing ventured, nothing gained," said Paul Steinhauer, who
suggested the town put a "for sale" sign on the property now for
30 or 45 days, and see if it can be sold as is.
The councilors, who held a workshop on the matter earlier this
month, agreed with Mr. Schempf.
David Burke, who initially agreed with many in the audience that
the building should remain, was convinced at the workshop of the
need for demolition, "for liability issues alone."
ASBESTOS UPDATE: Streets' Widow Gets GBP314,471 in Compensation
---------------------------------------------------------------
Judge Nigel Wilkinson QC ordered Esso Petroleum LTD to pay
Michael Streets' widow, Francis Streets, GBP314,471 in asbestos-
related damages, including GBP65,000 for Mr. Streets' "pain,
suffering and loss of amenity" in the months before he died, the
St Albans & Harpenden Review reports.
Mrs. Streets, of Hatfield, England, won a High Court battle
against Mr. Streets' former employers, Esso Petroleum, which she
blames for his premature death.
Mr. Streets died on December 2007 of mesothelioma. His death came
40 years after he started work as an apprentice pipe fitter at
Southampton's Fawley Refinery in 1963.
In a statement, which was made before Mr. Streets died, read out
to a London High Court hearing on Oct. 15, 2009, Mr. Streets
claimed it was impossible to do his job at the refinery without
exposure to asbestos.
Mr. Streets had said innocent young workers staged fights with
lumps of wet asbestos, adding that the "atmosphere was thick"
with killer dust and workers overalls were covered with it. In
the four decades after leaving Fawley in 1975, Mr. Streets,
formerly of Forrest Gate, Mopley, Blackfield, Southampton,
enjoyed a highly successful career in the oil industry, working
in the Bahamas - where he met his wife - and for 20 years in
Saudi Arabia.
Mr. Streets was treated in a Southampton Hospital before being
discharged to spend his last few months at home with his family.
Esso Petroleum, who had offered Mrs. Streets GBP200,000 to settle
her claim out of court, also now face heavy legal costs.
ASBESTOS UPDATE: Shirebrook Rail Worker's Death Linked to Hazard
----------------------------------------------------------------
An inquest heard that the death of 80-year-old Arthur Clayton, a
former railway worker from Shirebrook, Derbyshire, England, was
linked to workplace exposure to asbestos, the Evening Post
reports.
Mr. Clayton started working on the railways in 1953 and he was
regularly exposed to asbestos. He died on Sept. 24, 2009 from
bronchopneumonia caused by mesothelioma.
Notts coroner Dr. Nigel Chapman recorded a verdict of death by
industrial disease.
ASBESTOS UPDATE: Torquay Builder Death Linked to Hazard Exposure
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An inquest at South Devon Coroner's Court on Oct. 14, 2009 heard
that the death of 54-year-old Michael Young, a builder and
developer from Torquay, Devon, England, was related to workplace
exposure to asbestos, the Herald Express reports.
South Devon coroner Ian Arrow recorded a verdict of death from an
industrial disease.
Mr. Young had instructed a solicitor, Hayley Hill, to pursue a
personal injury claim on his behalf. A statement from Ms. Hill
said she he been instructed by the estate of Mr. Young to
continue pursuing the claim.
The inquest was told Mr. Young passed away at his home in Torquay
in July 16, 2009 from mesothelioma. He had had a number of jobs
which required him to work closely with the deadly substance. He
worked in a confined factory environment and was required to
sweep asbestos dust off the floor.
In Mr. Young's other jobs, had also been in contact with asbestos
roof sheets and pipe lagging.
ASBESTOS UPDATE: Ripon Local to Pay $22.5T for Disposal Breaches
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Donald Wagner of Ripon, Wis., has agreed to clean up the mobile
homes, drums, tires, boats, and other solid waste on his Green
Lake County, Wis., property and to pay US$22,500 to settle state
claims brought under Wisconsin's air pollution prevention and
solid waste management laws, according to a WisPolitics.com press
release dated Oct. 16, 2009.
The complaint that began the case alleged that Mr. Wagner
purchased a 32 acre parcel in Green Lake County where the
previous owner had been operating an unlicensed junk yard and
mobile home scrapping operation
It further alleged that Mr. Wagner had an agreement with two
local men, John Hansen and Robert Mitchelly, whereby they would
scrap the homes and keep the profits from the metals they
collected. In February 2007, four mobile homes were set afire.
A Department of Natural Resources inspection and investigation
found asbestos in one of the burn piles, 40-60 other mobile homes
in various stages of demolition, thousands of tires, appliances,
furniture, batteries, boats, and other solid and hazardous
wastes.
Wisconsin law prohibits the long-term storage of such waste
without a solid waste storage facility operating license and plan
approval from the Department of Natural Resources, and prohibits
the disposal of solid waste at unlicensed facilities.
The law also requires that structures such as mobile homes must
be tested for asbestos and any asbestos must be removed before
any demolition activities occur. None of the homes that were
dismantled or burned were tested for asbestos.
As part of the settlement, Mr. Wagner agreed to test a well
serving the property before he has it abandoned, and to test burn
piles for VOCs, metals, and PCBs. He agreed to secure a US$70,000
line of credit to cover the anticipated costs of clean-up, and to
complete all necessary work by set deadlines.
The State previously entered settlement agreements with Mr.
Hansen and Mr. Mitchelly, whereby they agreed to pay US$5,000 and
US$2,000 in forfeitures, respectively.
Attorney General J.B. Van Hollen said, "The open burning of
trailer homes with their plastic, foam, rubber, metal, and
insulation components is a significant source of hazardous air
pollutants, dioxins, asbestos, and heavy metal containing waste
particulates.
"The releases are a health risk to Wisconsin citizens and a
serious violation of environmental protection laws which the
Wisconsin Department of Justice in conjunction with the
Department of Natural Resources will continue to enforce."
Assistant Attorney General Diane Milligan prosecuted the case.
Green Lake County Circuit Court Judge William M. McMonigal
approved the settlement.
ASBESTOS UPDATE: Hazard Uncovered at Washington Univ. Frat House
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At Washington University in St. Louis, Mo., traces of asbestos
have been uncovered on campus, according to an EIN News press
release dated Oct. 17, 2009.
While removing the nests of birds from the attic, Greek Life
officials found asbestos in the attic of the Theta Xi
fraternity's chapter house. Further testing on the material must
be done to confirm what percentage of asbestos is in the
substance.
However, according to David Wallace, coordinator for Greek
housing programs, none of the residents in the frat house are in
any danger.
Officials from the Greek Life Office (GLO) have taken air quality
samples from the living areas of the house. A contractor has been
hired to seal off the asbestos-containing area and remove the
material.
Mr. Wallace said, "We don't know [if] it's dangerous. We decided
it was better to just remove it." He added that the removal
project will take about a week, and it will "have little to no
impact on the men living inside the chapter house."
Theta Xi, located on the Upper Fraternity Row, is home to 16
fraternity brothers housed in its 15 bedrooms.
ASBESTOS UPDATE: Dist. Court Remands Fuller Case to Madison Co.
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The U.S. District Court, Southern District of Illinois, remanded
Barbara Fuller's asbestos-related lawsuit to the Circuit Court of
the Third Judicial Circuit, Madison County, Ill.
The case is styled Barbara Fuller, Individually and as Special
Administrator of the Estate of Harold Raymond Welch, Deceased,
Plaintiff v. A.W. Chesterton, Inc., et al., Defendants.
District Judge G. Patrick Murphy entered judgment in Civil Action
No. 09-675-GPM on Sept. 3, 2009.
In this case, Barbara Fuller sought damages in connection with
the death of Harold Raymond Welch from mesothelioma caused by
alleged exposure to asbestos.
Ms. Fuller's case was brought originally in the Circuit Court of
the Third Judicial Circuit, Madison County, Ill., and Electro-
Motive Diesel, Inc. had removed her claims against it to this
Court.
Electro-Motive asserted that federal subject matter jurisdiction
was proper on the basis of federal bankruptcy jurisdiction
because Electro-Motive had a right to be indemnified by its co-
Defendant in Ms. Fuller'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.
Review of the notice of removal and the record of this case led
the Court to conclude that the case must be remanded to state
court under principles of permissive abstention and equitable
remand.
ASBESTOS UPDATE: New Trial OK'd in Oxford Case v. Foster Wheeler
----------------------------------------------------------------
The Court of Appeal, First District, Division 1, California,
reversed the ruling of the San Francisco Superior Court and
remanded for a new trial an asbestos lawsuit filed by Judy Oxford
against Foster Wheeler LLC.
The case is styled Judy Oxford et al., Plaintiffs and Respondents
v. Foster Wheeler LLC, Defendant and Appellant.
Judges Graham, James J. Marchiano, and Sandra L. Margulies
entered judgment in Case No. A121577 on Sept. 9, 2009.
On March 22, 2006, Mrs. Oxford, individually and as successor in
interest to Calvin Oxford, and Chris Oxford and Jennifer Odegaard
as legal heirs of Mr. Oxford (collectively referred to as
plaintiffs), filed their first amended complaint against Foster
Wheeler and several other defendants.
The complaint alleged that Mr. Oxford was exposed to asbestos
between 1963 and 1967 while assigned to the boiler repair shop of
the U.S.S. Klondike (a U.S. Navy vessel that functioned as a
repair ship for other Navy warships) and while working at various
shipyards including the Long Beach Naval Shipyard in Long Beach,
Calif.
In 2005, Mr. Oxford was diagnosed with mesothelioma. He died that
same year. The complaint stated causes of action against Foster
Wheeler for negligence, products liability, false representation,
and prayed for damages including loss of consortium, and wrongful
death.
On May 17, 2006, Foster Wheeler filed its answer to the first
amended complaint.
On Jan. 4, 2008, the jury found against plaintiffs on their
products liability claims for design defect and failure to warn,
but found in favor of plaintiffs on their claim for negligence.
The verdict form did not ask the jury to specify the factual
basis for its negligence finding.
After the verdict was rendered, Foster Wheeler requested that
judgment be entered in its favor, arguing the positive finding on
the elements of the government contractor defense immunized it
from liability.
Plaintiffs contended that judgment should be entered in their
favor, in spite of the findings on the defense, because Foster
Wheeler had not demonstrated that "the products in this case are,
quote, military equipment, close quote."
The trial court found the affirmative defense did not foreclose
judgment against Foster Wheeler, reasoning that the defense
verdict on the product liability claim for failure to warn did
not subsume the jury's finding on negligent failure to warn, and
that the government contractor defense does not apply to failure
to warn claims.
Plaintiffs filed this appeal.
Sedgwick, Detert, Moran & Arnold LLP (Frederick D. Baker, Esq.,
and Brian R. Thompson, Esq.) represented Foster Wheeler LLC.
Brayton Purcell LLP (Alan R. Brayton, Esq., Gilbert L. Purcell,
Esq., Lloyd F. LeRoy, Esq., and Richard M. Grant, Esq.)
represented Judy Oxford.
ASBESTOS UPDATE: District Court Affirms Valentine Remand Motion
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The U.S. District Court, Eastern District of Arkansas, Western
Division, granted James M. Valentine, Sr.'s Motion to Remand an
asbestos lawsuit filed against BorgWarner Corporation and other
defendants.
The case is styled James M. Valentine, Sr., Special Administrator
of the Estate of Mary Valentine, Deceased, Plaintiff v.
BorgWarner Corporation, et al., Defendants.
District Judge Wm. R. Wilson, Jr. entered judgment in Case No.
4:09CV00684-WRW on Sept. 1, 2009.
Mr. Valentine alleged that decedent Mary Valentine's exposure to
Defendants' asbestos-containing products caused her to develop
malignant mesothelioma, which resulted in her death. Mr.
Valentine sued eight manufacturers who allegedly "manufactured,
sold and distributed asbestos-containing automobile brakes,
clutches and gaskets."
Defendant Darragh Company was the only non-diverse defendant.
The Clerk of the Court was directed to remand this case to the
Circuit Court of White County, Ark.
Russell B. Winburn, Esq., of Odom & Elliott Post Office Drawer
1868 in Fayetteville, Ark., represented Mr. Valentine.
Ronald D. Harrison, Esq., Victor L. Crowell, Esq., of Ledbetter,
Cogbill, Arnold and Harrison, LLP in Fort Smith, Ark.,
represented BorgWarner Corporation.
ASBESTOS UPDATE: Bankruptcy Court Rules on Plant Insulation Case
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The U.S. Bankruptcy Court, Northern District of California,
entered rulings in litigation involving asbestos coverage in the
case styled In re Plant Insulation Company, Debtor.
U.S. Bankruptcy Judge Thomas E. Carlson entered judgment in Case
No. 09-31347 TEC on Aug. 4, 2009.
The official committee of unsecured creditors (the Committee)
sought to appoint Sheppard, Mullin, Richter & Hampton (Sheppard)
as its counsel. Timely objection was filed by U.S. Fire Insurance
Company, which issued liability policies to Debtor, and which is
a defendant in a pending insurance coverage action brought by
Debtor.
U.S. Fire contended that Sheppard must be disqualified from
representing the Committee, because the Committee will be
involved in the pending coverage action, and because that action
is substantially related to a previous coverage action in which
Sheppard represented U.S. Fire.
The court determined that Sheppard should not be disqualified,
because the pending coverage action is not substantially related
to the action in which Sheppard represented U.S. Fire, and
because the Committee is not a party to the pending coverage
action.
Because it is a close question whether the two coverage actions
are substantially related, however, the court appointed Sheppard
upon the condition that Sheppard not represent the Committee with
respect to any matters directly related to the pending coverage
claims against U.S. Fire.
Plant Insulation Company sold, installed, and removed asbestos
products. From 1978 through the petition date, Plant was sued by
thousands of claimants for bodily injury and wrongful death, and
tendered those suits to its primary insurers.
The insurers, claiming exhaustion of the policies, accepted
tender and defended numerous asbestos claims under a reservation
of rights. In January 2006, Plant filed an insurance coverage
action entitled Plant Insulation Co. v. Fireman's Fund Ins. Co.,
et al. (the Plant Coverage Action). U.S. Fire is a defendant in
the Plant Coverage Action.
Plant filed for chapter 11 bankruptcy relief on May 20, 2009. On
May 29, 2009, the U.S. Trustee appointed Paul McKenzie, Joe
Radley, Karen Garner, Linda Seiler, and Richard Parker to the
Official Committee of Unsecured Creditors (the Committee). Each
member of the Committee asserted an asbestos bodily injury claim
against Debtor, and each is represented by counsel.
On May 29, 2009, the Committee filed an application (the
Application) to employ Sheppard as its counsel.
ASBESTOS UPDATE: CSX Continues to be Subject to Exposure Claims
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CSX Corporation is still subject to occupational claims that
arise from allegations of exposure to certain materials in the
workplace, such as asbestos, solvents (which include soaps and
chemicals) and diesel fuels, according to the Company's quarterly
report filed with the Securities and Exchange Commission on Oct.
20, 2009.
During second quarter 2009, the Company reduced its asbestos
reserves by US$18 million. This reserve reduction is related to
about 1,500 claims that were deemed to have no medical merit and
therefore have been determined to have no value.
Jacksonville, Fla.-based CSX Corporation's rail and intermodal
businesses provide rail-based transportation services including
traditional rail service and the transport of intermodal
containers and trailers.
ASBESTOS UPDATE: Linder, Whisnant Case Filed v. 84 Firms in Tex.
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An asbestos lawsuit on behalf of Johnnie Melvin Linder and
Michael Curtis Whisnant was filed against 84 defendant
corporations on Oct. 14, 2009 in Jefferson County District Court,
Tex., The Southeast Texas Record reports.
Alice Faye Galloway, Billy Jean Jones, Floy Elvira Linder, Larry
Linder claim Mr. Linder and Mr. Whisnant worked as craftsmen and
construction tradesmen at refineries and chemical plants
throughout Texas.
Throughout the course of their careers, the plaintiffs claim Mr.
Linder and Mr. Whisnant were forced to work near asbestos-
containing insulation and other asbestos products, which led to
their diseases, according to the complaint.
The suit says the defending companies failed to keep their
premises safe, but implied they were attempting to protect their
workers by hiring insurers. However, the insurers failed to
conduct inspections of the premises and report results.
In addition, the defending companies negligently failed to
properly instruct the plaintiffs on how to avoid asbestos
exposure, the plaintiffs claim.
In the complaint, the plaintiffs seek punitive damages, plus pre-
and post-judgment interest, costs and other relief to which they
may be entitled.
Chris Portner, Esq., of Reaud, Morgan and Quinn in Beaumont,
Tex., will be representing the plaintiffs.
Case No. D185-121 has been assigned to Judge Milton Shuffield,
136th District Court.
ASBESTOS UPDATE: Hampshire Ex-Welder's Death Linked to Exposure
---------------------------------------------------------------
An inquest at Portsmouth Guildhall heard that the death of Tom
Williamson, a welder from Cowplain, Hampshire, England, was
linked to exposure to asbestos, The Portsmouth News reports.
Mr. Williamson was diagnosed with mesothelioma on Oct. 2, 2008,
the day before his 68th birthday. His widow, Betty Williamson,
told the inquest, "He couldn't think where he had got it. He has
never actually worked with it (asbestos). He was never ever
concerned about it.
"He worked at Southbourne Sheet and Metal and that is the only
place he thought he could have been exposed to it. He was there
for 20 years."
Mr. Williamson died at Queen Alexandra Hospital in Cosham,
Portsmouth, on Jan. 18, 2009.
David Horsley, the coroner for Portsmouth and Southeast
Hampshire, ruled that Mr. Williamson's death was caused by
industrial disease.
ASBESTOS UPDATE: Bracklesham Builder's Death Linked to Exposure
---------------------------------------------------------------
A Sept. 30, 2009 inquest at West Sussex, England, heard that the
death of 69-year-old retired builder James Janes, of Bracklesham
Bay, was linked to workplace exposure to asbestos, the West
Sussex Gazette reports.
Mr. Janes died at St Richard's Hospital on Sept. 2, 2009 from
mesothelioma. He lived with his wife Shirley at Holden's Farm
Caravan Park.
It is thought Mr. Janes he came into contact with asbestos and
asphalt when he was a builder. His son Paul said he did not think
his father wore gloves or protection when handling the toxic
materials.
At the inquest, West Sussex coroner Penelope Schofield recorded a
verdict that Mr. Janes died from industrial disease.
ASBESTOS UPDATE: Asbestos Materials Discovered in Prague Subway
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Tons of used asbestos-containing materials are found throughout
the tunnels of the subway in Prague, Czech Republic, Aktualne.cz
reports.
The fireproof asbestos-cement grooves protect the supply cables
against a potential fire on all metro routes.
The law says that the asbestos should be gradually replaced and
stored at designated landfills. The Prague Public Transit Company
abides halfway, leaving the grooves behind in the subway. In the
past, the Czech Environmental Inspectorate has fined in hundred
thousands for offenses of this kind.
As Aktualne.cz found out, the asbestos-cement grooves often hang
freely from the hooks on the tunnel walls between, for instance,
Malostranska and Staromestska stop on the A route and between
Mustek and Muzeum stops.
Three years ago, a specialist company carried away and disposed
of the grooves. According to Aktualne.cz, the grooves continue to
be dismantled and the waste remains underground.
The Prague City Council indirectly said that the Prague Public
Transit Company was breaching the law. The Environment Bureau
writes in its statement, "It would be an offense if the grooves
laid about freely without being secured and if they weren't
collected by a competent person before handed over."
Aktualne.cz approached experts on legislature concerning
dangerous waste, including the Environment Ministry. According to
health officers of the National Institute of Public Health, the
asbestos in the subway is not a hazard. The Prague Public Transit
Company is nevertheless violating the law, officials say.
Ariana Lajcikova of the National Institute of Public Health says,
"Asbestos-cement products belong to the so-called products with
firmly fixed asbestos-the asbestos isn't released into the air.
Their storage-unless the products are mechanically impaired-
doesn't pose a substantial threat to human heath."
The asbestos grooves can be removed by a specialized business
whose employees can only handle the material wearing disposable
suits and special mouth filters.
According to a well-informed source, the asbestos-cement grooves
are also being manipulated by unauthorized individuals. The
source says, "Old metro cables are continuously being replaced
with new ones, the asbestos-cement grooves are being moved
around, sometimes they even fall down and a chunk breaks off."
So far, the Czech Environmental Inspectorate has not investigated
the asbestos in the subway, but its inspectors fined in hundred
thousands those who have handled the risky material in disregard
to the legal regulations.
ASBESTOS UPDATE: New Guinea Doctors Seek Asbestos Products' Ban
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Medical experts in Papua New Guinea seek a ban on the importation
of asbestos products and tighter building controls after health
crackdowns in industrialized nations, Australia Network News
reports.
The PNG Medical Society also says many colonial-era buildings in
the country are made of asbestos-containing fibro-cement
sheeting.
Society president Dr. Mathias Sapuri told Radio Australia, "We
already have evidence to show that some of our patients who have
died from lung cancer due to mesothelioma (were exposed) to the
asbestos from fibro.
"The Medical Society of PNG is calling on the appropriate
building industry authorities and the government to ensure that
we put in place regulations to ban importation of fibro for
building."
Building industry representatives in Papua New Guinea say
asbestos products that are sealed and are in good condition and
are not shedding fibres are not a health risk.
Dr. Sapuri said it was difficult to get Papua New Guineans with
lung cancer to undergo a biopsy.
ASBESTOS UPDATE: Hazard Discovered at Beacon Elem. in Montesano
---------------------------------------------------------------
During the remodeling of Beacon Elementary School in Montesano,
Wash., asbestos was found for the second time and in four
classrooms still in use by students, The Daily World reports.
Principal Craig Loucks said, "It is not a danger because it's in
the glue behind the blackboards." Construction began to remodel
the school at the start of school in September 2009 and will
continue through the summer of 2010.
In September 2009, while removing blackboards in the 500
building, construction workers discovered asbestos-laden mastic
behind chalkboards in eight classrooms. The 300 building was
built in 1969, at the same time as the 500 building, and includes
four classrooms still in use during construction.
Workers checked behind the blackboards in the 300 Building for
asbestos and confirmed its presence in the same glue.
Students will remain in the classrooms until Spring Break in late
March 2009 or early April 2009, Principal Loucks said. He added
that the students are not in danger of contamination from the
asbestos because it will not enter the air until the blackboards
are removed.
Principal Loucks said the asbestos will require thorough cleaning
and will cost an extra US$4,000 or so to remove from the 500
building. He said he does not yet know how much it will cost to
remove the asbestos from the 300 building.
According to a report from Project Manager Russ McElroy, work is
proceeding on the location for the new 700 Building addition and
workers have completed plumbing for the 500 Building.
Superintendent Marti Harruff said the remodel of Beacon is much
different from the demolition and rebuilding of Simpson
Elementary. He commended the Beacon staff for running classes
well throughout construction.
ASBESTOS UPDATE: Zimbabwe's Gov't. Urged to Revisit Asbestos Ban
----------------------------------------------------------------
In an interview, Zimbabwe Cement and Lime Workers Union's (ZCLWU)
general secretary Alfred Mpofu said Zimbabwe's Government should
look into the matter concerning the ban of chrysotile asbestos,
The Herald reports.
ZCLWU described the move to ban chrysotile asbestos as a
deliberate machination by the West to weaken African economies
that thrive on the continent's vast mineral resources. The union
stated the ban had nothing to do with health matters but was a
deliberate strategy to promote Western businesses.
Mr. Mpofu said the asbestos ban, if permitted, would cripple
Zimbabwe's many sectors of the economy. He added, "Asbestos
industries have already started to witness a dwindling market
because of the embargo. Export markets are no longer willing to
buy our products as they are said to be harmful. We strongly urge
our Government to look into the matter as it is bent on derailing
economic growth on the pretext of health."
Mr. Mpofu also said the mining sector was going to be severely
affected, as asbestos companies would not be able to buy the raw
materials for the manufacture of asbestos. He said the union
would soon hold a protest march against the asbestos ban.
The latest ban on asbestos was being pushed by an Australian
organization named Asbestos Disease Awareness Organisation.
On Sept. 10, 1998, in Rotterdam, the Netherlands, about 165
countries adopted the Rotterdam Convention, which banned
dangerous minerals.
ASBESTOS UPDATE: Baron and Budd Asserts Privilege in 7,000 Cases
----------------------------------------------------------------
The law firm of Baron and Budd, P.C. asserted attorney-client
privilege in more than 7,000 asbestos-related lawsuits that
depend on reports from radiologist Jay Segarra, The West Virginia
Record reports.
Baron and Budd's Tiffany Dickinson, on Oct. 7, 2009, claimed the
privilege in national litigation before U.S. District Judge
Eduardo Robreno of Philadelphia. She attached 191 pages of client
names, at 37 names per page.
Suspicion has hung over Mr. Segarra since 2005 when federal judge
Janis Jack of Texas revealed that he diagnosed asbestosis and
silicosis in the same X-rays.
Mr. Segarra currently faces a civil suit at federal court in
Jackson, Miss., where National Services Industries alleges that
he signed fraudulent X-ray reports for asbestos lawyers.
Baron and Budd's bid to shield Mr. Segarra followed an Aug. 27,
2009 order from Judge Robreno casting doubt on all suits that
began in mass X-ray screenings. Many screenings lacked
reliability and accountability, Judge Robreno wrote, and
screeners failed to adhere to necessary medical standards and
regulations.
Judge Robreno wrote that he would entertain motions and conduct
hearings to resolve evidentiary questions in cases supported only
by results of mass screenings. He presides over asbestos suits
from around the nation by appointment of the U.S. Judicial Panel
on Multi District litigation.
In 2008, Judge Robreno inherited tens of thousands of suits with
dozens of defendants in the average suit, for a total in excess
of three million claims.
ASBESTOS UPDATE: Probe into Ex-Chrysler Worker's Death Underway
---------------------------------------------------------------
An investigation is ongoing into the death of Robert Clarke, who
formerly worked at the Chrysler factory in Ryton-on-Dunsmore,
Coventry, England, the Coventry Telegraph reports.
Mr. Clarke died in January 2009 at the age of 62 from
mesothelioma. He was diagnosed with the disease on May 2007.
Now lawyers representing Mr. Clarke's family are trying to
discover whether he was exposed to asbestos while working at the
Ryton-on-Dunsmore factory in the 1970s and 80s.
In April 2009, an inquest in Coventry ruled Mr. Clarke had died
from an industrial disease.
Mr. Clarke's son, Michael, said, "Dad began suffering from chest
pains and shortness of breath months before he was diagnosed. He
had to undergo a series of tests, some of which were invasive and
painful. The only time Dad could remember being exposed to
asbestos was while he worked for Chrysler. He was reluctant to
talk about it during his lifetime. Being diagnosed with
mesothelioma was a huge shock to all the family."
Mr. Clarke worked for Chrysler UK as an electrician for more than
15 years. This involved maintaining the electrics of the car
plant and its machinery.
It is believed Mr. Clarke may have come into contact with
asbestos-lagged pipe work, or been exposed to asbestos when the
ceiling collapsed in the office where he worked.
The Clarke family's counsel Alida Coates, from Irwin Mitchell,
said, "It is vital if we are going to continue to fight for
justice for this family, that people who have information
concerning the working practices undertaken at Chrysler between
1970 and the early 1980s, come forward to assist us with our
enquiries."
ASBESTOS UPDATE: Delaware Court Rules in Favor of Warren, Viking
----------------------------------------------------------------
Judge Leo E. Strine Jr. of the Delaware Court of Chancery, on
Oct. 14, 2009, ruled in favor of Warren Pumps L.L.C. and Viking
Pump Inc. in an asbestos case styled Warren Pumps L.L.C. vs.
Century Indemnity Co. et al., Business Insurance reports.
Warren and Viking, which face asbestos liabilities, are entitled
to coverage under excess policies sold to another company whose
pump manufacturing businesses they acquired.
Judge Strine also ruled that New York state law makes each excess
insurer independently responsible for all of the liability
resulting from an occurrence, including multi-period exposures.
That "all-sums" allocation of liability allows Warren Pumps and
Viking Pump to collect payments from any insurer whose policy is
triggered for all claims, according to a statement from law firm
Dickstein Shapiro L.L.P., which represented Warren Pumps.
The case stems from the companies' mid-1980s acquisitions of pump
manufacturing businesses formerly owned by Houdaille Industries
Inc. As a result of those acquisitions, Warren Pumps and Viking
Pump faced numerous personal injury claims alleging asbestos
exposure.
The two companies sought coverage under 45 excess insurance
policies sold to Houdaille by 20 different insurers, court
records state. But among other points, the insurers argued that
their policies contain anti-assignment provisions.
However, Judge Strine ruled those provisions were not enforceable
under New York law. He also found that "the policy language, read
as a sensible whole, can only be given effect if an all-sums
approach" is applied to the allocation of insurer liability.
ASBESTOS UPDATE: Hazard Found in Cave Street School in Tuscumbia
----------------------------------------------------------------
Asbestos is present in the Cave Street School, which is located
in Tuscumbia, Ala., Mesothelioma.com reports.
According to a recent summary, among the projected costs for
repairing the building is the cost for asbestos removal, which
could total as much as US$50,000.
A committee, which was formed to study the possible futures of
the Cave Street School, said that the building should be torn
down if no buyers step forward. However, the committee also
stated that no action should be taken immediately.
The committee will work with another group to make a list of
possible uses for the historic school building, and will report
to the City Council on Nov. 2, 2009. Mayor Bill Shoemaker said,
"When we talk about saving this building, somebody's got to put
US$1 million into it."
The committee consists of Councilmen George Johnson, Randy Davis
and Bobby Mitchell, Parks and Recreation Director Joel Kendrick
and Police Chief Tony Logan.
The committee has found that saving the building will likely be
cost prohibitive, in part due to the amount of asbestos present
in the structure. It may cost as much as US$500,000 to stabilize
the building.
ASBESTOS UPDATE: Appeal Court OKs Board Ruling in Samuel's Case
---------------------------------------------------------------
The U.S. Court of Appeals for Veterans Claims affirmed the April
11, 2008 ruling of the Board of Veterans' Appeals, which denied
service connection for the cause of U.S. Navy veteran David C.
Samuel's death.
The case is styled Veronica Samuel, Appellant v. Eric K.
Shinseki, Secretary of Veterans Affairs, Appellee.
Judge Robert N. Davis entered judgment in Case No. 08-1554 on
Sept. 9, 2009.
Veronica Samuel, Mr. Samuel's widow, appealed the Board's ruling.
She raised three principal arguments on appeal.
Mrs. Samuel asserted that the Board failed to ensure compliance
with VA's duty to assist because it failed to obtain records of
the U.S. Navy that would potentially verify Mr. Samuel's exposure
to asbestos during service. She further asserted that the Board's
statement of reasons and bases was inadequate to explain its
rejection of favorable medical nexus evidence.
Finally, Mrs. Samuel argued that the Board failed to properly
apply the benefit of the doubt standard in weighing the evidence
associated with her claim.
Mr. Samuel died of a self-inflicted gunshot wound after
struggling for many years with multiple physical ailments
including "hypertension, chronic atrial fibrillation,
cardiomyopathy, dyslipidemia and pulmonary hypertension secondary
to multiple pulmonary emboli."
Mrs. Samuel's theory of service connection was that Mr. Samuel
was depressed about his physical condition. She stated that the
lung problems were the worst of his afflictions. In essence, she
sought service connection for an asbestos-related condition and
secondary service connection for a depressive disorder that she
viewed as having led to his suicide.
Mrs. Samuel related that in the early 1950s, Mr. Samuel was
aboard a ship that rammed and sank another U.S. ship, with many
casualties. She alleged that during this incident, her husband
underwent an intense exposure to asbestos, which she believed to
be the triggering incident for his lung problems in later life.
On appeal, Mrs. Samuel asserted that VA did not fulfill its duty
to assist by obtaining records of this incident that might have
confirmed Mr. Samuel's exposure to asbestos.
ASBESTOS UPDATE: Ariz. Court Dismisses Covell's Claim v. Arpaio
---------------------------------------------------------------
The U.S. District Court, District of Arizona, dismissed a civil
rights case involving asbestos filed by Frederick W. Covell
against Maricopa County Sheriff Joseph Arpaio.
The case is styled Frederick W. Covell, Plaintiff v. Joseph
Arpaio, Defendant.
District Judge David G. Campbell entered judgment in Case No. CV
07-2213-PHX-DGC (DKD) on Sept. 2, 2009.
Mr. Covell's claims arose during his confinement at the Maricopa
County Lower Buckeye Jail in Phoenix, Ariz. In Count I, he
alleged that Sheriff Arpaio was aware of asbestos and lead
contaminants in the jail but was deliberately indifferent in
failing to take any action to abate these risks.
In Count II, Mr. Covell claimed that Sheriff Arpaio was
deliberately indifferent to the overcrowded conditions at the
jail, which led to increased agitation and fighting. In Count
III, Mr. Covell claimed that Sheriff Arpaio's policies denied Mr.
Covell's Sixth Amendment right of access to the courts because he
was denied access to the law library and could not obtain the
assistance of a paralegal or law clerk.
As a result, Mr. Covell claimed he could not subpoena witnesses
for his criminal case. The Court ordered Sheriff Arpaio to
respond to Counts I, II, and III, and Sheriff Arpaio filed an
Answer. The Court issued a Scheduling Order and discovery
commenced. Sheriff Arpaio now moved for summary judgment.
The reference to the Magistrate Judge was withdrawn as Sheriff
Arpaio's Motion for Summary Judgment. Sheriff Arpaio's Motion for
Summary Judgment was granted. Mr. Covell's action was dismissed
with prejudice.
Frederick W. Covell of Kingman, Ariz., represented himself.
Thomas P. Liddy, Esq., of Phoenix, Ariz., represented Joseph
Arpaio.
ASBESTOS UPDATE: E&D Environmental Owner Indicted for Mail Fraud
----------------------------------------------------------------
A federal grand jury, on Oct. 20, 2009, indicted 43-year-old
Rogelio Lowe, of Thornton (San Joaquin County), Calif., on
charges of mail fraud and falsifying asbestos documents at his
company, E&D Environmental Safety Training, the San Francisco
Chronicle reports.
Mr. Lowe has been charged with faking the exams of students
learning how to remove asbestos and claiming he taught them for
eight hours a day, when their classes were actually as short as
25 minutes.
The State of California certifies asbestos removal workers who
have completed four-day training courses lasting eight hours a
day, including at least 14 hours of hands-on training, and passed
a written test. Workers also must take eight hours of training to
renew their certificates each year.
The indictment said Mr. Lowe advertised courses in July 2008 that
met those standards, charging their employers US$500 to US$600
for the four-day course and US$200 for the renewal.
The indictment said that six students signed up and attended
classes that ranged from 25 minutes to 6 1/2 hours over the four
days.
Mr. Lowe then gave the students the answers to the written exam,
and forged the answers for a student who did not show up that
day, the grand jury said. Six more students signed up for an
eight-hour refresher course and were given no more than 45
minutes of training, the indictment said.
The state certified the workers after Mr. Lowe accredited them,
the indictment said.
Mr. Lowe appeared before a magistrate on Oct. 21, 2009 and was
released on a US$400,000 bond, said U.S. Attorney Joseph
Russoniello's office.
ASBESTOS UPDATE: Univ. of Wyoming Charged for Handling Breaches
---------------------------------------------------------------
The Wyoming Department of Environmental Quality, on Sept. 28,
2009, issued a Notice of Violation (NOV) to the University of
Wyoming, which allegedly scattered asbestos materials during
demolition work, the Associated Press reports.
The project at the Bureau of Mines Building on the main campus in
Laramie, Wyo., caused suspect materials to be "scattered all over
the outside of the building where the public could be exposed,"
according to the NOV.
The NOV states the university failed to conduct an asbestos
inspection, provide notification and remove a regulated asbestos-
containing material before demolition. The university also failed
to use trained personnel to remove the material and did not
adequately wet it down or place it in leak-tight containers ahead
of disposal, the NOV states.
The university reported the incident to the DEQ on June 23, 2009.
David Finley, administrator of the DEQ's Air Quality Division,
called the incident a serious matter in a Sept. 28, 2009 letter
to the university's facilities engineering manager, Frank
Burrows.
Mr. Finley's letter said, "I am considering recommending that the
department refer this violation to the state Attorney General's
Office requesting that a suit be filed in District Court to
recover appropriate penalties."
The DEQ inspected the site on June 24, 2009 and the university
told the department it would have the material cleaned up by June
26, 2009, department spokesman Keith Guille said. He added that
normal procedures do not call for the department to verify
whether cleanup has occurred.
Mr. Guille said, "We weren't on site to oversee the cleanup. What
they were required to do was give us notification that they'll be
doing cleanup of the suspected materials."
ASBESTOS UPDATE: Drabczyk Wins $1.5Mil Verdict in Case v. Fisher
----------------------------------------------------------------
The New York law firm of Belluck & Fox obtained a US$1.5 million
verdict and punitive damages of US$750,000 against Fisher
Controls International LLC following the death of Ronald
Drabczyk, a worker at Hooker Chemical in Buffalo, N.Y., who was
exposed to asbestos on the job, according to a Belluck & Fox
press release dated Oct. 21, 2009.
The verdicts in Estate of Ronald Drabczyk, Index No. I 2005/1583,
were rendered on Oct. 19, 2009 and Oct. 20, 2009 in Erie County
Court in Buffalo, N.Y. Judge John Lane presided.
Fisher Controls, based in Marshalltown, Iowa, is a subsidiary of
Emerson Electric Co., based in St. Louis.
Belluck & Fox represented the family of Mr. Drabczyk, a factory
worker at a chemical plant in Niagara Falls, N.Y. He died from
mesothelioma.
Mr. Drabczyk repaired valves manufactured by Fisher Controls,
which contained asbestos gaskets and packing. The valves were
sold by Fisher to the Hooker plant where Mr. Drabczyk overhauled
them from 1970 to 1988.
The evidence at trial demonstrated that Fisher was aware of the
dangers of asbestos as early as 1946 but failed to place any
warning on its products.
In addition to awarding Mr. Drabczyk's estate US$1.5 million in
damages, the jury found that Fisher Controls acted negligently in
failing to warn of the dangers associated with the valves. It
found that Fisher Controls was responsible for five percent of
the fault associated with his exposure and that the exposure to
the valves was a substantial contributing factor in causing Mr.
Drabczyk's mesothelioma.
Further, the jury found that Fisher Controls acted with reckless
disregard for the safety of Mr. Drabczyk. Under New York law,
this finding of reckless disregard renders Fisher Controls
responsible for the entire verdict, minus a set-off for prior
settlements. This is the first instance that Fisher Controls has
been found liable for using asbestos in its products.
The jury also awarded US$750,000 in punitive damages, finding
that Fisher Controls acted with wanton and reckless manners
toward Mr. Drabczyk and others. This is the first punitive damage
award in an asbestos case in New York State in more than 20
years.
The case was tried by Belluck & Fox partner Jordan Fox, Esq., and
Michael P. Joyce, Esq., of the Law Office of Michael P. Joyce in
Boston. The law firm of Lipsitz, Green, Scime Cambria, based in
Buffalo, N.Y., served as co-counsel in the case.
The trial lasted six weeks.
ASBESTOS UPDATE: Conn. Resident Facing Charge for TSCA Breaches
---------------------------------------------------------------
John V. Bruce, a 39-year-old resident of Meriden, Conn., faces
the possibility of spending up to a year in prison and paying
fines of as much as US$100,000 after pleading guilty on Oct. 20,
2009 to one count of breaching the Toxic Substance Control Act,
the Record-Journal reports.
Mr. Bruce, the owner of Environmental Training and Consulting
Inc., pleaded guilty at the U.S. District Court in Bridgeport,
Conn.
Federal documents state that in May 2004, Mr. Bruce sold a
certificate for US$400 for a four day, 32-hour asbestos worker
training course to a person who never enrolled in the course. The
certificate, signed by Mr. Bruce, included a completion date of
2002.
Investigators discovered the illegal transaction after learning
that the person Mr. Bruce had sold the certificate to had only
entered the United States from Honduras two weeks prior to
receiving the certificate.
Mr. Bruce will face sentencing in the case when he appears before
a judge in Bridgeport on Jan. 7, 2010.
ASBESTOS UPDATE: Cleanup at Salem, Ore. Library to Start in 2010
----------------------------------------------------------------
An asbestos abatement project on the lower level of the Salem
Public Library in Salem, Ore., will commence early in 2010, the
Statesman Journal reports.
The asbestos already has been removed from the library's other
floors.
In May 2009, the Salem City Council agreed to reallocate
US$165,000 in funds from a library lighting-upgrade project to
allow for removal of asbestos and replacement of some carpet at
the library. The Council also agreed to use an additional
US$10,000 in Facilities Services Division funds to complete the
two library projects.
The cost to remove the asbestos is estimated at US$145,000, and
the cost of replacing the carpet is estimated at US$30,000.
Tony Mounts, the city's administrative services director said the
Council plans to use stimulus funds intended for energy
efficiencies to pay for the library's lighting upgrade.
With ballasts no longer being manufactured for the obsolete light
fixtures in the area affected by asbestos, the library has no
choice but to install more efficient fixtures. The new lights
already have been installed in areas that no longer contain
asbestos.
But before an upgrade can be made to lighting in affected areas,
the asbestos must be removed, said B.J. Toewe, the interim
library manager.
The areas of the library containing asbestos primarily are where
employees and volunteers get new books ready for the shelves, but
also in the Anderson Room kitchenette. The presence of asbestos
was troubling enough. However, the City set aside US$105,960 for
asbestos abatement two years ago.
The funding later was scratched from the budget. It was a move
that did not sit well with Roger Heusser, president of Friends of
the Salem Public Library. For the past three years, he has pushed
hard to have the asbestos removed.
In 1991, asbestos was removed from the building's main floor and
mezzanine level as part of a remodeling project. During a second
remodeling project in 2007, asbestos was removed from the
Anderson Room on the lower level.
Removal of the asbestos will include abating the ceiling,
including the ceiling above the staircase that leads up to the
main floor from the lower level.
The project will require Technical Services Division staff to be
relocated to the vacant Capitol Community Television location.
ASBESTOS UPDATE: Amarillo Local Indicted for Disposal Violations
----------------------------------------------------------------
Federal records show that Jack R. Coiner, of Amarillo, Tex., was
indicted on Oct. 20, 2009 on two counts of knowing release of a
hazardous air pollutant and two counts of violating waste
disposal standards for asbestos, amarillo.com reports.
Mr. Coiner is the principal owner and operator of Asbestos
Maintenance Services.
The charges against Mr. Coiner claim the improper disposal of
asbestos in a residential area on the outskirts of Canyon and at
a commercial property in Borger. The indictments also allege the
owner knowingly released the asbestos.
According to records, Mr. Coiner's company was licensed until
November 2007 to remove and dispose of asbestos. From 1988 to
July 2006, he properly disposed of asbestos waste at a landfill
that is licensed and permitted for asbestos disposal.
According to the indictments, studies of asbestos fibers, which
can be easily spread over large areas, have indicated no safe
level of human exposure to the material.
In July 2006, Mr. Coiner became delinquent in his disposal
payments to the landfill, which began refusing waste shipments
from Mr. Coiner's company, records show. That month, Mr. Coiner
allegedly began directing employees to place asbestos on various
properties that he leased, owned or used.
Two of the indictments allege that Mr. Coiner knowingly released
asbestos into the air at 801 Hix Road in Canyon and at a
commercial site in the 600 block of East Tenth Street in Borger,
knowingly placing others in danger.
The indictments allege Mr. Coiner released unspecified amounts of
asbestos at the Hix Road address from March 13, 2007 to Aug. 8,
2008, and released asbestos at the Borger property from August
2007 to May 2009.
Indictments also allege that Mr. Coiner violated waste disposal
standards for the material and did not have waste disposal
permits for the Canyon and Borger locations.
ASBESTOS UPDATE: Retired Holloway Laborer Death Linked to Hazard
----------------------------------------------------------------
An inquest heard that the death of 71-year-old John Hawkins, a
retired laborer from Holloway, London, England, was related to
exposure to asbestos, the Islington Gazette reports.
Dr. Louise Restrick, a consultant respiratory physician at The
Whittington Hospital, said, "Scans in April showed he had very
significant emphysema. By early July he was very sick."
Mr. Hawkins died on July 8, 2009 at The Whittington in Magdala
Avenue, Archway.
Speaking after the inquest at St Pancras Coroner's Court on Oct.
15, 2009, Mr. Hawkins' wife Maureen said, "He was a very happy
man. He loved people and he was known by someone wherever he went
in Islington. His family will miss him a great deal. He had a
very happy life. He liked a drink and a game of darts and his
regular was The Coronet, in Holloway Road."
A post mortem gave Mr. Hawkin's cause of death as pneumonia
resulting from emphysema and asbestosis, a disease caused by the
inhalation of asbestos fibers.
ASBESTOS UPDATE: Pfizer Inc. to Clean Up Peapack-Gladstone Site
---------------------------------------------------------------
Pfizer Inc.'s asbestos and environmental cleanup efforts at a
dump in Peapack-Gladstone, N.Y., are underway, The Bernardsville
News reports.
On Oct. 7, 2009, the Land Use Board approved a major soil
movement permit at its meeting to allow Pfizer to remove the
debris, much of which is at least partially buried.
Pfizer discovered garbage, auto parts and roofing tiles that
contain asbestos on just under an acre of land at the southwest
corner of its 70-acre tract off Route 206.
Richard Chambers, director of media relations for Pfizer, assured
residents that "there is no indication of any threat to the water
supply."
According to Russell Downing, an environmental engineer
overseeing the project for the international pharmaceutical
corporation, Pfizer initially found the dumpsite in March 2005
when it was conducting a property survey to determine the
different land uses that existed on the site.
During the meeting, Mr. Downing said the Company had to obtain
state Department of Environmental Protection (DEP) permits before
it could start the removal.
Pfizer started to pick up surface debris in March 2009, but
Company officials soon realized they would need to dig down to
reach the majority of the items, Mr. Downing said.
The cleanup will include digging three- to five-inch deep pits to
access any debris that may be under the surface. When the debris
is removed, Mr. Downing said, soil samples would be taken from
the sides and bottom of the excavated area to determine whether
any pollutants leached into the soil. He also said the pits would
be filled with clean soil each day after they are excavated.
Pfizer estimates it would need about 500 trucks to both dispose
of the removed earth and deliver the clean fill.
In total, it should take about six weeks to remove all of the
debris from the site, Mr. Downing added.
ASBESTOS UPDATE: McLean Cty., Ill., Jury Awards Widows $5.5 Mil.
----------------------------------------------------------------
A jury in McLean County, Ill., on Oct. 21, 2009, awarded US5.5
million to three widows in a lawsuit alleging their husbands were
exposed to asbestos at a Bloomington, Ill., factory,
Pantagraph.com reports.
Merlon Dukes, Bob Blessing and John Watkins worked at Union
Asbestos & Rubber Co. (later called UNARCO Industries Inc.) in
the 1950s and 1960s. They died of mesothelioma, according to
claims filed in civil court.
The lawsuit, filed on behalf of Doris Dukes, Judy Blessing and
Ruth Watkins, was handled by James Wylder, Esq., and Lisa Corwin,
Esq., of Wylder Corwin Kelly LLP in Bloomington, Ill.
The jury found that Honeywell International Inc., through its
corporate predecessor Bendix, conspired with other companies,
including UNARCO, Johns-Manville, Raybestos-Manhattan, Owens-
Illinois, Owens Corning and Metropolitan Life Insurance Co., to
fail to disclose information about the hazards of asbestos.
According to the lawsuit, the firms also agreed not to warn their
employees and customers of the dangers of the substance.
The jury verdict in favor of the survivors came after about 4-1/2
hours of deliberation and a 2-1/2 week trial.
ASBESTOS UPDATE: Cleanup at Smith School Site to Cost Over $250K
----------------------------------------------------------------
The principal partner at Pandey Environmental LLC, Atul Pandey,
said that he estimated the costs for full asbestos abatement at
the Smith Middle School in Ohio could run well over the $250,000
mark, Mesothelioma reports.
The work at the Smith site would include removing and disposing
of ceiling tiles, floor tiles, wall plaster and plumbing
insulation.
An abandoned school building in Chillicothe, Ohio, is for sale
after the board of education voted to allow administrators to
find a buyer. The building had previously undergone asbestos
evaluations that had held up the sale of the former site of
McArthur Elementary School in Chillicothe, Ohio.
The school board also voted to let city officials carry out an
appraisal of other environmental impact factors at the old site.
Pandey Environmental finished an asbestos evaluation on another
school site, Smith Middle School, recently and is expected to do
the same work at the McArthur site.
When school board members expressed concerns about the costs of
environmental assessments at both the Smith and McArthur sites,
Mr. Pandey suggested that the school district apply for financial
aid through the U.S. Environmental Protection Agency's
"Brownfield" program.
The EPA offers grants and revolving low-interest loans to state
and local government agencies to cover the costs of environmental
impact assessments and cleanup efforts for properties that have
suffered from contamination by toxic substances such as asbestos,
so long as the organization applying for funds was not the same
one responsible for the original pollution.
ASBESTOS UPDATE: Trial in Mancuso Asbestos Claim Starts Oct. 20
----------------------------------------------------------------
Opening statements got underway on Oct. 20, 2009 in the case of
Paul and Steven Mancuso, both of Utica, N.Y., who were accused of
illegally removing asbestos from various locations throughout
Central New York, WKTV.com reports.
According to the U.S. Attorney's Office, Paul and Steven Mancuso
worked together to run an illegal asbestos removal company.
In 2004, Paul Mancuso was convicted for violating the federal
Clean Air Law, so was forbidden to be associated with any
asbestos removal operation. He faces a maximum of 55 years in
state prison and fines of more than US$2.5 million if convicted
on these charges.
Steven Mancuso, who is also an attorney, faces fraud charges
relating to the operation of these operations. If convicted, he
faces five years in prison and a fine of up to US$250,000.
ASBESTOS UPDATE: Cleanup at W.Va. Schools Estimated at $303,970
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Asbestos abatement at several schools in Morgan County, W.Va., is
estimated to cost US$303,970, Mesothelioma & Asbestos Awareness
Center reports.
The district is seeking the US$303,970 in Major Improvement Plan
(MIP) funding from West Virginia School Building Authority for
asbestos removal in county school facilities.
Asbestos removal is requested for the Paw Paw High School stage,
stairs, classrooms and hallways. At Paw Paw Elementary, asbestos
is present in the nurse's station, storage room, vault room,
lounge, bathroom, and custodian room.
At Pleasant View Elementary, asbestos needs to be removed from a
vestibule, and at Berkeley Springs High School it is present in a
classroom.
Other requested asbestos removal areas include Greenwood
Elementary hallways, classrooms, cafeteria, kitchen and restrooms
and Widmyer Elementary closets, office, classroom and restrooms.
The total estimated cost of the projects throughout the schools
is US$343,970. The cost includes removal of the asbestos tile,
linoleum and mastic. In addition, air quality monitoring is
included in this estimate.
About US$40,000 of the money needed for the project will come
from the school system's capital improvement fund.
ASBESTOS UPDATE: Consultant to Check Hazard at Knox's Courthouse
----------------------------------------------------------------
The building committee of the Knox County Board in Galesburg,
Ill., hired Johnson Building Systems Inc. to investigate how much
asbestos is in the county courthouse and how much it would cost
to have it removed, The Register-Mail reports.
The committee hired Johnson Building to find an asbestos
consulting firm to develop an abatement plan.
Knox County Public Information Officer Gary Tomlin said, "County
Chairman Greg Bacon presented a bid proposal from Johnson
Building Systems. He explained that a consultant has to go
through the building, study the circumstances, condition and
placement of the asbestos and develop an abatement plan."
Mr. Tomlin added, "That plan will be a definition of the work to
be done and can then be put-up for bid to abatement contractors
to do the work. JBS got bids from five abatement consultants and
recommended the low bidder, Graves Environmental, for US$2,785.
JBS will bill US$978 for their services."
The building committee accepted the recommendation by 7-0 vote at
a meeting on Oct. 14, 2009. Some asbestos abatement work has
previously been conducted at the courthouse, according to County
Board member Paul Stewart, D-District 2.
The remaining asbestos in the courthouse is found on plumbing
pipes in the building. Mr. Stewart said it was unclear how much
it would cost to have the asbestos removed. He added that if the
county decides to renovate the courthouse it would likely have to
remove asbestos in the building.
The consultants hired will investigate the extent of asbestos in
the building and then present a plan, which the county board
could then decide to put out to bid.
The building committee has been charged with making a
recommendation to the full county board on the future of the
courthouse.
ASBESTOS UPDATE: Vandals at Rockland School Exposed to Asbestos
----------------------------------------------------------------
The Royal Canadian Mounted Police (RCMP) said that vandals who
broke into the former Rockland Elementary School in Campbell
River, Canada, were likely exposed to asbestos, The Vancouver Sun
reports.
Corporal Brian Brown said the former school is currently under
construction. He said that some of the walls have been
demolished, exposing the harmful chemical.
The vandals threw heavy objects through walls and caused other
damage to the building where they likely breathed in asbestos
fibres, Cpl. Brown added.
No arrests have been made in the break-in.
ASBESTOS UPDATE: Thomas County Courthouse to Undergo Assessment
---------------------------------------------------------------
Commissioners in Thomas County, Ga., approved an asbestos and
lead paint assessment for the historic Thomas County Courthouse
in Thomasville, the Times-Enterprise reports.
Commissioner Mary Jo Beverly, chairman of the commission public
property committee, said, "We want to go with the total smoke-
free campus over there."
Huber Engineering Co. Inc., of Thomasville, Ga., was awarded the
contract for asbestos and lead paint assessment of the 151-year-
old building. Huber's bid was US$3,000.
An assessment team will inspect the structure and identify and
collect samples of potential asbestos-containing material and/or
lead paint.
Commissioner Moses Gross asked Tony Huber, company president, if
special measures would be required to dispose of asbestos or lead
paint. Mr. Huber responded "It will have to be disposed of
according to EPA (federal Environmental Protection Agency) and
EPD (Georgia Environmental Protection Division)."
Mr. Huber pointed out that if asbestos and/or lead paint are
present in the building, it is possible the materials would not
be disturbed during renovation/restoration.
*********
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