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/raid1/www/Hosts/bankrupt/CAR_Public/091218.mbx C L A S S A C T I O N R E P O R T E R Friday, December 18, 2009, Vol. 11, No. 250 Headlines ACTIVE RESPONSE: Shareholder Sues Directors in S.D.N.Y. AMERICAN HONDA: Settles Class-Action Civic Hybrid Lawsuit BEKINS VAN LINES: Accused in N.Y. Lawsuit of Lowball Estimates BLUE CROSS: Calif. Lawsuit Alleges Overcharges Under HIPPA BROADCOM CORP: Court Tosses All Civil & Criminal Backdating Cases CHARLES SCHWAB: Al Parish Ponzi Scheme Class Certified in S.C. CHICAGO TITLE: N.D. Tex. Declines Class Certification Invitation CITY OF ANTIOCH: Opposes Class Certification in N.D. Calif. Suit COVENANT APOSTOLIC: Daycare Provider Sued for Drugging Children DISTRICT OF COLUMBIA: Paying $8.25 Mil. to Settle Arrest Suit GILBERT DEVELOPMENT: Nev. Suit Says Homes it Built Are Defective GLAXO SMITH: Bloomberg Says Paxil Settlements Hit $1 Billion Mark INTEGRITY ADVANCE: N.J. Suit Claims Payday Lender Charges 600% RED HAT: Inks $8.8 Million Securities Litigation Settlement REMINGTON ARMS: Ark. Lawsuit Calls Rifle Safety Device Defective SIRIUS XM RADIO: Accused of Abusing Monopoly by Hiking Prices UNITED STATES: Fed. Cir. Hears Statute of Limitation Argument VIOXX AD LITIGATION: Ad Suits Can't Proceed as Class Action WILSON COUNTY: Tenn. Lawsuit Alleges Racial Hiring Discrimination WINDOW SHADES: Massive Recall to Repair All Roman Shades & Blinds YOUTH STUDY CENTER: Settlement Calls for New Confinement Policies New Securities Fraud Cases METROPCS COMMS: Coughlin Files Shareholder Suit in N.D. Tex. Asbestos Litigation ASBESTOS ALERT: ARAMARK Has $6.8M Oct. 2 Retirement Obligations ASBESTOS UPDATE: Chelmsford Residents' Deaths Linked to Exposure ASBESTOS UPDATE: Hearing in Mo. Fire Chief Case Set for March 18 ASBESTOS UPDATE: Kitchin Widow Files Lawsuit v. Farleigh School ASBESTOS UPDATE: Markethaven, Walmac Fined for Safety Violations ASBESTOS UPDATE: Cleanup & Demolition of Iowa Bldg. Cost $88,230 ASBESTOS UPDATE: Mass. AG Settles Asbestos Issue With Worcester ASBESTOS UPDATE: Stonehouse Fined GBP5,500 for Safety Violations ASBESTOS UPDATE: $20. Mil. Settlement with Sealed Air Investors ASBESTOS UPDATE: Pullman Awarded $233T in Lawsuit v. Smithsonian ASBESTOS UPDATE: Wis. Local Penalized $130,000 for DNR Breaches ASBESTOS UPDATE: Trial of Former Eternit Execs Ongoing in Turin ASBESTOS UPDATE: Nightcliff Foreshore Closed for Hazard Removal ASBESTOS UPDATE: Traces of Hazard Found in Quarry Near Baryulgil ASBESTOS UPDATE: Court Affirms Ruling in Illinois Central Action ASBESTOS UPDATE: Defendants' Summary Judgment Affirmed in Meehan ASBESTOS UPDATE: North End Resident's Death Related to Exposure ASBESTOS UPDATE: Carpenter's Kin Seeking Information on Exposure ASBESTOS UPDATE: Three Cases Filed in Kanawha Co. on Nov. 13, 23 ASBESTOS UPDATE: Templeton, Testa Actions Filed Nov. 12 in W.Va. ASBESTOS UPDATE: Handeland to Pay Penalty for Cleanup Violations ASBESTOS UPDATE: Madison, St. Clair in "Judicial Hellholes" List ASBESTOS UPDATE: Hazard Uncovered in Guernsey's Castel Hospital ASBESTOS UPDATE: Coiner Facing Prison, Fine for Safety Breaches ASBESTOS UPDATE: Skerrit Urged to Address Roseau Asbestos Issue ASBESTOS UPDATE: Hazards Uncovered in Ocala City Hall's Ducting ASBESTOS UPDATE: Asbestos Found in Ocean Downs Racetrack in Md. ASBESTOS UPDATE: Hazard Forces Closure of Tourist Motel in Wash. ASBESTOS UPDATE: Seitz Remand Bid Ok'd in Case v. Bell, Northrop ASBESTOS UPDATE: Tex. Appeal Court Reverses Ruling in Smith Case ASBESTOS UPDATE: Suffolk Builder Pleads Guilty to Cleanup Breach ASBESTOS UPDATE: South Oxhey Resident's Death Linked to Exposure ASBESTOS UPDATE: Sebring Engineer Filed OSHA Complaint on Dec. 9 ASBESTOS UPDATE: Bethlehem Work Exposes 100 Students to Asbestos ASBESTOS UPDATE: Thieves Exposed to Asbestos in Nottinghamshire ASBESTOS UPDATE: Community Seeking Answers on Summerlin Project ASBESTOS UPDATE: Court OKs Careys' Motion to Remand Viad Suit ASBESTOS UPDATE: La. Court Affirms Ruling in Boudreaux's Lawsuit ASBESTOS UPDATE: Miss. Court Denies Attorneys' Fees in Broussard ASBESTOS UPDATE: N.Y. Supreme Court Issues Ruling in Ames Claim ********* ACTIVE RESPONSE: Shareholder Sues Directors in S.D.N.Y. ------------------------------------------------------- Courthouse News Service reports that shareholders say directors of Active Response Group wasted, diverted and misappropriated corporate assets, in a $10 million claim in Manhattan Federal Court. The case is Hercules Technology Growth Captial, Inc. v. Brad Powers, Leland H. Nolan, Jud Traphagen, Florin C. Vicol and Bhavin Shah, Case No. 09-cv-10160 (S.D.N.Y.) (Daniels, J.). The Plaintiff is represented by: Gregory A. Blue, Esq. Rachel Kathryn Marcoccia, Esq. MORGENSTERN JACBOS & BLUE, LLC 885 Third Avenue, 24th Floor New York, NY 10022 Telephone: 212-750-6776 AMERICAN HONDA: Settles Class-Action Civic Hybrid Lawsuit --------------------------------------------------------- U.S. News & World Report reprts that if you own a 2003 to 2008 model Honda Civic Hybrid, you may be entitled to some cash from a settlement in True v. American Honda Motor Co., Inc., Case No. 07-cv-00287 (C.D. Calif.) (Phillips, J.). In 2007, 120,000 Civic Hybrid owners -- lead by plaintiffs John True and Gonzalo Delgado -- sued Honda for advertising an EPA- estimated fuel economy not reflective of real-world figures. According to the New York Times, the automaker advertised a city/highway fuel economy of 49/51 mpg -- but the plaintiff's vehicles only netted an estimated 31 mpg. To be clear, "The suit stresses it is not challenging the methodology used by the Environmental Protection Agency to predict mileage but says Honda deceived consumers by not making it clear that they were unlikely to achieve the agency's figures," adds the NYT. While Honda recently agreed to a settlement agreement, it admits no wrongdoing -- as it only advertised what the EPA said the Civic Hybrid could net. According to the terms of the agreement, Messrs. True and Delgado will walk away with enough money to recoup most of what they paid for their vehicles, but most Civic Hybrid owners will not. Autoblog Green reports: "[T]he Japanese automaker has agreed to settle the case out of court. If approved, owners of 2003-2008 Civic Hybrids will get a voucher worth up to $1,000 to purchase a new Honda or a check for $100 if they can prove they complained to Honda about their car's mileage." BEKINS VAN LINES: Accused in N.Y. Lawsuit of Lowball Estimates -------------------------------------------------------------- Courthouse News Service reports that Bekins Van Lines and affiliates defraud customers by lowballing moving estimates, then charging too much, including for services they don't provide, a class action claims in Brooklyn Federal Court. One plaintiff says she was given an estimate of $9,521, then charged $15,000. A copy of the Complaint in Frey, et al. v. Bekins Van Lines, et al., Case No. 09-cv-05430 (E.D.N.Y.) (Wexler, J.), is available at: http://www.courthousenews.com/2009/12/14/CCABekins.pdf The Plaintiffs are represented by: Jeffery K. Brown, Esq. LEEDS MORELLI & BROWN P.C. One Old Country Rd., Suit 347 Carle Place, NY 11514 Telephone: 516-873-9550 - and - Joseph A. Black, Esq. Daniel E. Cohen, Esq. THE CULLEN LAW FIRM, PLLC 1101 30th St., N.W., Suite 300 Washington, DC 20007 Telephone: 202-944-8600 - and - Jeffery M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th St., Suite PHR New York, NY 10003 Telephone: 212-228-9795 BLUE CROSS: Calif. Lawsuit Alleges Overcharges Under HIPPA ---------------------------------------------------------- Courthouse News Service reports that Blue Cross of California dba Anthem Blue Cross overcharges under HIPAA, a class action claims in Los Angeles Superior Court. BROADCOM CORP: Court Tosses All Civil & Criminal Backdating Cases ---------------------------------------------------------------- Amanda Bronstad at The National Law Journal reports that a federal judge has thrown out all criminal and civil charges related to the stock options backdating scandal at Broadcom Corp. amid accusations of prosecutorial misconduct. U.S. District Court Judge Cormac J. Carney, in the Central District of California, dismissed with prejudice the cases against William Ruehle, the former chief financial officer of Broadcom, and Henry Nicholas, one of the company's co-founders. Judge Carney also dismissed the U.S. Securities and Exchange Commission's civil case against Mr. Ruehle, Mr. Nicholas, co- founder Henry Samueli and David Dull, the former general counsel of the company. Mr. Ruehle's lawyers filed a motion on Dec. 4 raising at least four instances in which the government allegedly engaged in misconduct, including threatening witnesses with perjury charges depending on their testimony in the criminal trial. Judge Carney concluded that the government's handling of the case "distorted the truth-finding process" and made a "mockery" of the defendants' due process rights. Before a courtroom packed with observers and other parties in the case, Ms. Bronstad reports, Judge Carney entered a judgment of acquittal for former Chief Financial Officer William Ruehle, who has been in trial since Oct. 23. "For these constitutional rights to have true meaning, the government must not do anything to intimidate and improperly influence witnesses," Judge Carney said. "Sadly, they did so in this case." CHARLES SCHWAB: Al Parish Ponzi Scheme Class Certified in S.C. -------------------------------------------------------------- WCSC Channel 5 in Charleston, S.C., reports that a federal court has certified a class action lawsuit brought by the victims of Al Parish's Ponzi scheme that names Charles Schwab & Co., Inc. as a defendant. The victims claim the financial investing company is liable for violations under the South Carolina Uniform Securities Act of 2005. The class action stems from the Ponzi scheme orchestrated by former Charleston Southern University economics professor, Al Parish. Mr. Parish has been ordered to pay victims $66 million in restitution and is currently serving a twenty-four year sentence in the Federal Correctional Complex in Butner, N.C., where Bernie Madoff is also imprisoned. The class, as certified in Brown, et al. v. Charles Schwab & Co., Inc., Case No. 07-cv-03852 (D. S.C.) (Norton, J.), includes all those who held IRA and other investment accounts with Schwab and invested in any Parish Investment Vehicle through the brokerage and custodial services provided by Schwab. Class claims are based on Schwab's alleged role as a broker-dealer in materially aiding the sale of securities and as a control person of those liable under the Act. At least 53 individuals residing in 13 states are believed to be class members. "Proceeding as a class allows us to prosecute this case more efficiently before a single jury rather than multiple arbitration panels across the country," stated: Badge Humphries, Esq. MOTLEY RICE 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Telephone: 843-216-9000 who represents the plaintiffs. "It also eliminates the possibility of conflicting rulings on key issues, such as the elements of proof for investors' claims which the court has now resolved in plaintiffs' favor," he further explained. Because of a previous ruling limiting discovery in the case to class-certification issues, the order effectively reopens the discovery process, broadening its scope to all facts relevant to the case's merits. The order also resolved, in the plaintiffs' favor, a key area of disagreement between the parties as to the elements of proof for certain claims. "This is a very significant event and a big step forward in efforts to obtain money for those Charles Schwab clients who were victims of Parish Economics," commented: James M. Griffin, Esq. Law Office of James Mixon Griffin P.O. Box 999 Columbia, SC 29201 Telephone: 803-744-0800 who also represents the plaintiffs. The class certification order appoints Messrs. Humphries and Griffin as class counsel along with: William H. Narwold, Esq. MOTLEY RICE 20 Church Street, 17th Floor Hartford, CT 06103 Telephone: 860-882-1676 - and - Richard A Harpootlian, Esq. RICHARD A. HARPOOTLIAN PA 1410 Laurel Street Columbia, SC 29202 Telephone: 803-252-4848 Charles Schwab & Co., Inc., is represented by: Ethan H. Cohen, Esq. Michael K. Wolensky, Esq. SCHIFF HARDIN 1201 W. Peachtree Street, Suite 2300 Atlanta, GA 30309 Telephone: 404-437-7000 - and - Mary (Molly) Agnes Hood Craig, Esq. James B. Hood, Esq. Robert H. Hood, Esq. Robert H. Hood, Jr., Esq. HOOD LAW FIRM P.O. Box 1508 Charleston, SC 29402 Telephone: 843-577-4435 Third-Party Defendant Battery Wealth Management, Inc., is represented by: Neil Keith Emge, Jr., Esq. David J. Harmon, Esq. CARLOCK COPELAND SEMLER AND STAIR 40 Calhoun Street, Fourth Floor Charleston, SC 29401 Telephone: 843-727-0307 CHICAGO TITLE: N.D. Tex. Declines Class Certification Invitation ---------------------------------------------------------------- Leigh Sanders at Courthouse News Service reports that Chicago Title Insurance Co. won't face a class action for allegedly overcharging customers, a federal judge in Dallas ruled. U.S. District Judge Sidney Fitzwater denied Ceaser Hancock and Emma Benavides' request for class certification, saying the trial would have to be conducted on a case-by-case basis, to determine whether each plaintiff is entitled to a refund. "[S]uch an exercise would require the court to conduct the type of mini-trials that defeat class certification," Judge Fitzwater wrote. Ms. Benavides said Chicago Title withheld a discount when she refinanced her home within seven years of her first mortgage. Texas rules require title insurance companies to issue insurance at a discounted rate if refinancing homeowners had title insurance on their previous mortgage, as Ms. Benavides said she did. Chicago Title argued that Ms. Benavides didn't get the reissue credit because Capital Title of Texas goofed when it "issued the policy on behalf of Chicago Title." Chicago Title also moved to name Capital as a third-party defendant. Judge Fitzwater granted the motion, but refused to certify a plaintiff class. In Benavides v. Chicago Title Insurance Company, Case No. 08-cv-01916 (N.D. Tex.) (Fitzwater, J.), the Plaintiff is represented by: Katherine B. Bornstein, Esq. Edward W. Ciolko, Esq. Joseph H. Meltzer, Esq. Joseph A. Weeden, Esq. Nick S. Williams, Esq. BARROWAY TOPAZ KESSLER MELTZER & CHECK LLP 280 King of Prussia Rd. Radnor, PA 19087 Telephone: 610-667-7706 - and - Eric G. Calhoun, Esq. Richard J. Pradarits, Jr., Esq. TRAVIS & CALHOUN 1000 Providence Towers East 5001 Spring Valley Rd. Dallas, TX 75244 Telephone: 972-934-4100 and Chicago Title is represented by: Derek E. Diaz, Esq. Robert J. Fogarty, Esq. Steven A. Goldfarb, Esq. Robert B. Port, Esq. HAHN LOESER & PARKS LLP 200 Public Square, Suite 2800 Cleveland, OH 44114 Telephone: 216-621-0150 - and - John R. Nelson, Esq. LOCKE LORD BISSELL & LIDDELL LLP 100 Congress Ave., Suite 300 Austin, TX 78701 Telephone: 512-305-4868 - and - Karin Britt Torgerson, Esq. LOCKE LORD BISSELL & LIDDELL LLP 2200 Ross Ave., Suite 2200 Dallas, TX 75201-6776 Telephone: 214-740-8000 CITY OF ANTIOCH: Opposes Class Certification in N.D. Calif. Suit ---------------------------------------------------------------- Hilary Costa at the Contra Costa Times reports that lawyers for Antioch argue in a memorandum filed earlier this month that the American Civil Liberties Union's civil rights lawsuit against the city and its police department does not meet the criteria for class-action status. The memo, filed in U.S. District Court in San Francisco, comes ahead of a scheduled Jan. 12 class-certification hearing, in which a judge will rule whether the ACLU and other civil rights groups representing the plaintiffs can gain class-action status for their lawsuit. Class-action status allows a large number of people with a common interest in a matter to sue as a group. The suit accuses the Antioch Police Department's Community Action Team of harassing African-American residents receiving housing assistance through the federal Section 8 program in order to drive them out of Antioch. The city's arguments against class-action are: -- The five original and 49 putative plaintiffs do not have enough in common. -- Some of the plaintiffs were not receiving Section 8 housing assistance. -- Most were not investigated by the action team. -- "Few" of the claimed 1,000-plus class members ever came forward. "The plaintiffs present a hodgepodge of disconnected, factually diverse individualized grievances, with little in common, all unique," the memorandum says, and therefore cannot constitute a class. According to the city, the action team is a response-driven unit formed to address residents' complaints of neighborhood crime and "persistent nuisance, health and safety issues." According to its motion filed in October, the ACLU is seeking class-action status for "all African-Americans who have held, currently hold, may hold, or are erroneously regarded by the City and officers of the Antioch Police Department as holding, Section 8 housing vouchers, and all members of their households, who reside, have resided or will reside, in the City of Antioch." The ACLU argues that the suit meets all the requirements for class-action status because the Police Department's actions against the five original plaintiffs were commonplace. In the class-action memorandum, Antioch's attorneys say the plaintiffs once alleged intentional racial discrimination by action team officers but have changed their argument to the "disproportionate adverse impact theory of liability" - that African-Americans were investigated by the action team at a rate disproportionate to their population in Antioch, which is discriminatory, whether intentional or not. COVENANT APOSTOLIC: Daycare Provider Sued for Drugging Children --------------------------------------------------------------- WKRC Channel 12 in Cincinnati reports that a Cincinnati law firm and a first-time mother are filing a class action lawsuit against a church where two daycare workers are accused of drugging children grandmother in order to make them sleep better. The law firm of Statman, Harris and Eyrich, LLC is filing a class action lawsuit against Covenant Apostolic church and the two women who allegedly put the dietary supplement melatonin in candy and formula and gave it to children as young as two months old. The mother named in the lawsuit says her child has not smiled or acted right for the past several months, and she was told the child was sleeping most of the day at the daycare on View Place Drive in Finneytown. An investigation is also being conducted by Springfield Township Police and The Ohio Department of Job and Family Services, which licenses the daycare. Hamilton County authorities at 241-Kids are also investigating, and the Hamilton County Prosecutor's office is now looking at possible criminal charges of at least child endangering against the daycare employees. The church's pastor, Shelly Hendricks, told Local 12 on Tuesday night that he just learned of the incidents on Sunday. He says an immediate investigation was launched and both of the accused women have been relieved of their duties. On Tuesday, a grandmother of one of the infants at the daycare spoke with Local 12. Laura Satterfield is angry. She says police told her daughter that employees at the daycare admitted putting melatonin in her grandson Lucas' formula. They say they did it to get the nine-and-a-half-month-old baby, along with about 16 other children, to sleep better at nap time. Laura's daughter called yesterday with the news. "She called me in tears, very upset said Lucas has been drugged . . . even though it's a supplement. Anytime you're giving a child something he's not supposed to have, it's a drug." Investigators say an employee at the daycare noticed a supervisor putting what appeared to be drugs into a Tootsie Roll that was then given to some of the children. On Sunday, police and Children's Services were notified. Satterfield says while Lucas was only at the daycare one day a week, he appeared to have trouble sleeping when he visited her. "This was the day he was up from four o'clock in the morning until five o'clock in the evening without taking a nap because he could not sleep. We'd lay him down with his bottle, it's what parents and grand parents do. And he could not sleep, he would sleep for about five minutes and he was up." Church leaders say the daycare is cooperating. Satterfield is not satisfied. "I want these women to be humiliated. I want people to look at these women and say you gave drugs to kids . . . that's what I want done . . . I want them to be prosecuted. I want these women punished for what they did." Melatonin is a hormone made by the pineal gland, a small gland in the brain. Melatonin helps control sleep and wake cycles. The Mayo Clinic says melatonin is not FDA approved or regulated and has side effects, including seizures in children ages one to five, as well as headaches, nausea fatigue and depression. Long term use is not recommended for children or adults. At this point no ones sure exactly what drugs or supplements were actually given to the children. Samples of some of them were confiscated and are currently undergoing analysis at a laboratory. Charges against the daycare employees depend on what comes back from the lab. Child endangerment charges are possible. Felony charges are also possible if the tests show the substances were prescription drugs. A class action proceeding entitled Coleman v. Covenant Apostolic Church, Case No. A 0911823 (Ohio Ct. Common Pleas, Hamilton Cty.), was filed on Dec. 15, 2009. Mr. Coleman is represented by: Kelly W. Lundrigan, Esq. Alan J. Statman, Esq. Colleen M. Henne, Esq. STATMAN, HARRIS & EYRICH, LLC 441 Vine St., Suite 3700 Cincinnati, OH 45202 Telephone: 513-621-2666 DISTRICT OF COLUMBIA: Paying $8.25 Mil. to Settle Arrest Suit ------------------------------------------------------------- Del Quentin Wilber at The Washington Post reports that the D.C. government and a nonprofit civil rights organization have settled a class-action lawsuit brought by hundreds of protesters and bystanders arrested during a downtown demonstration in 2002. The District agreed to pay $8.25 million to almost 400 protesters and bystanders to end the lawsuit over mass arrests in Pershing Park during World Bank protests, according to lawyers involved in the suit. Police did not warn people to disperse before rounding them up Sept. 27, 2002, and some were hogtied and held for more than 24 hours before being released. Former D.C. police chief Charles H. Ramsey has apologized for the arrests. It is the third settlement reached by the District in a mass arrest lawsuit in recent weeks. Last month -- see Class Action Reporter, Nov. 25, 2009 -- the District agreed to pay $13.7 million to about 700 protesters arrested during a 2000 demonstration. It also agreed to pay $450,000 to eight war protesters to settle a lawsuit filed after a 2002 detention and interrogation. The protesters in all three suits have been represented by the Partnership for Civil Justice, a nonprofit civil rights organization. The settlements send "a powerful message to police agencies throughout the country that you cannot engage in mass violations of constitutional rights without accountability and a heavy price to pay," said: Mara Verheyden-Hilliard, Esq. PARTNERSHIP FOR CIVIL JUSTICE 617 Florida Avenue NW Washington, DC 20001 Telephone: (202) 232-1180 a lead attorney for the group, adding that the payouts have set national records for such cases. In a statement, the D.C. attorney general's office said it "is pleased to put this episode behind it and looks forward to working with plaintiffs on various initiatives that are intended to prevent any future peaceful public protest from becoming another Pershing Park event." In addition to paying protesters, the District has agreed to do a better job of tracking mass arrests and to fund a computer system for logging and indexing evidence. The city is required to report its progress on those measures every six months to the Partnership for Civil Justice, Ms. Verheyden-Hilliard said. In the $13.7 million settlement, the District agreed to improve training for officers on First Amendment issues. D.C. Attorney General Peter Nickles has been racing to settle the mass arrest cases because the city was expected to have a rough time before a jury. He was also under fire from a federal judge because the District mishandled evidence tied to the Pershing Park arrests. Attorneys for the protesters have alleged that the District destroyed a key log of police actions that day and deleted portions of radio dispatch tapes. Attorneys for the city have conceded that the evidence has vanished, but they say it was not obliterated on purpose. A report by a retired judge who investigated the matter expressed skepticism about the District's position and urged the city to investigate further. The settlement reached Tuesday does not end the Pershing Park saga, the newspaper report says. Four bystanders rounded up by police that day are represented by separate lawyers and are not part of the class-action suit. One of their attorneys, Jonathan Turley, said he is scheduled to meet with Mr. Nickles for the first time Tuesday to discuss a possible settlement. But he seems to be itching for a courtroom brawl. "We are preparing for trial," Mr. Turley told the Post. GILBERT DEVELOPMENT: Nev. Suit Says Homes it Built Are Defective ---------------------------------------------------------------- at Courthouse News Service reports that Dakota TD LLC, GDC LLC, and Gilbert Development Corp. built defective homes in the Vista Del Monte subdivision in Mesquite, Nev., a class action claims in Clark County Court, Las Vegas. GLAXO SMITH: Bloomberg Says Paxil Settlements Hit $1 Billion Mark ---------------------------------------------------------------- Minara El-Rahman at Law.com reports that Bloomberg reports that Paxil lawsuits have resulted almost $1 billion in Glaxo Smith Kline settlements. The Paxil lawsuits range from class action lawsuits to wrongful death lawsuits over a reported increased risk of suicidality in patients. The pharmaceutical company has had to battle lawsuits over birth defects and antitrust claims as well. While Glaxo Smith Kline refused to comment on Paxil lawsuits, it did issue a statement about its overall settlement total: "Paxil has been on the market in the U.S. since 1993. Like many other pharmaceutical products, it has been the subject of different kinds of litigation over the years," Sarah Alspach, a spokeswoman for Glaxo, said in an e-mailed statement to Bloomberg. "It would be inappropriate and potentially misleading to aggregate payments in these various types of litigation." However, the massive amount of Paxil lawsuits is troubling, Ms. El-Rahman says. One lawsuit, she notes, centered around a man who shot his family and then turned the gun on himself. He was a patient taking Paxil medication for depression. INTEGRITY ADVANCE: N.J. Suit Claims Payday Lender Charges 600% -------------------------------------------------------------- Courthouse News Service reports that Integrity Advance dba Iadvancecash charges usurious rates of more then 600 percent of payday loans, according to a class action in Ocean County Court, N.J. A copy of the Complaint in Freeman v. Integrity Advance LLC dba IAdvanceCash, Docket No. L-4156-09 (N.J. Super. Ct., Ocean Cty.), is available at: http://www.courthousenews.com/2009/12/14/Payday.pdf The Plaintiff is represented by: Steven M. Weisbrot, Esq. LANE M. FERDINAND PC 505 Morris Ave. Springfield, NJ 07081 Telephone: 973-467-1060 RED HAT: Inks $8.8 Million Securities Litigation Settlement ----------------------------------------------------------- Red Hat, Inc. (NYSE: RHT) reached an agreement in principle this week to settle In re Red Hat, Inc. Securities Litigation, Case No. 04-cv-00473 (E.D.N.C.) (Britt, J.), brought on behalf of a class of shareholders in connection with the restatement of financial results announced in July 2004. Red Hat has recorded, in its quarter ended November 30, 2009, a reserve in the amount of $8.8 million for its portion of the settlement. Red Hat plans to exclude this one-time charge from the non-GAAP results Red Hat reports for its quarter ended November 30, 2009, when these results are announced on December 22, 2009, and will provide a reconciliation to GAAP results at that time. The class action settlement is subject to the completion of a final, written settlement agreement and court approval. The Class Action Reporter's latest update concerning this matter was published on Oct. 12, 2009. About Red Hat, Inc. Red Hat -- http://www.redhat.com/-- the world's leading provider of open source solutions and a component of the S&P 500, is headquartered in Raleigh, NC with over 65 offices spanning the globe. CIOs ranked Red Hat as one of the top vendors delivering value in Enterprise Software for six consecutive years in the CIO Insight Magazine Vendor Value survey. Red Hat provides high- quality, affordable technology with its operating system platform, Red Hat Enterprise Linux, together with virtualization, applications, management and Services Oriented Architecture (SOA) solutions, including Red Hat Enterprise Virtualization and JBoss Enterprise Middleware. Red Hat also offers support, training and consulting services to its customers worldwide. REMINGTON ARMS: Ark. Lawsuit Calls Rifle Safety Device Defective ---------------------------------------------------------------- Courthouse News Service reports that the Remington Model 700 bolt-action rifle has a defective "Walker" safety device that makes the rifle "fire without a trigger pull upon release of the safety," a class action claims in El Dorado, Ark., Federal Court. A copy of the Complaint in Rodgers v. Remington Arms Company, Inc., Case No. 09-cv-04054 (W.D. Ark.), is available at: http://www.courthousenews.com/2009/12/15/CCA.pdf The Plaintiff is represented by: Gary M. Draper, Esq. GRIFFIN, RAINWATER & DRAPER, P.L.C. 310 Main Street P.O. Box 948 Crossett, AR 71635 Telephone: 870-364-2111 - and - Adam Q. Voyles, Esq. HEARD ROBINS CLOUD BLACK & LUBEL, LLP 3800 Buffalo Speedway, 5th Floor Houston, TX 77098 Telephone: 713-650-1200 - and - Stephen W. Drinnon, Esq. THE DRINNON LAW FIRM, PLLC 1700 Pacific Ave., Suite 2230 Dallas, TX 75201 Telephone: 972-445-6080 - and - Jeffrey W. Hightower, Jr., Esq. HIGHTOWER LAW FIRM 9400 North Central Expressway, Suite 1207 Dallas, TX 75231 Telephone: 214-580-9800 SIRIUS XM RADIO: Accused of Abusing Monopoly by Hiking Prices ------------------------------------------------------------- Tim Hull at Courthouse News Service reports that Sirius XM Radio, the nation's only satellite radio provider, is abusing its monopoly to the tune of $89 million a year through small increases in fees and services, a class action claims in Manhattan Federal Court. And it did this despite promising the FCC before it merged with its only competitor that "no satellite radio subscriber will have to pay more as a result of the merger," the class claims, citing a 2007 FCC memorandum. Named plaintiff Carl Blessing claims in Blessing v. Sirius XM Radio, Inc., Case No. 09-cv-10035 (S.D.N.Y.) (Baer, J.), that within 6 months of the 2008 merger between Sirius and XM, the new company increased its multi-radio subscription price by 30 percent and started charging subscribers for Internet access. "In spite of the FCC's attempts to forestall the inevitable impact of combining the only two companies in the market, the merged entity has already exhibited anti-competitive behavior that has harmed consumers,' Blessing says. He says that just 6 months after the merger, the company increased its monthly charge for multi-radio subscribers from $6.99 to $8.99 per radio. About 4 million of the company's 18 million customers are multi- radio subscribers, Blessing says, which comes out to an additional $7.4 million per month, or nearly $89 million a year in increased revenue. Also shortly after the merger, the company began charging $2.99 for subscribers to listen to radio programming via the Internet, while before the merger this was free, Blessing says. "Since gaining monopoly power, Sirius XM has profitably sustained multiple price increases to satellite radio consumers, and the supposed efficiencies of the mergers have not been passed on to the consumers in the form of lower prices," Blessing says. A spokesman for Sirius XM told Mr. Hull the class action is baseless. "The allegations contained in the complaint are completely without merit," said senior vice president Patrick Reilly. "We plan to vigorously defend this suit." The class accuses Sirius XM of unlawful acquisition of monopoly power, breach of contract, bad faith, and for violating state consumer laws. It seeks restitution and treble damages. The Plaintiff is represented by: Edward J. Cook, Esq. COOK, HALL & LAMPROS, LLP Promenade Two, Suite 3700 1230 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: 404-876-8100 - and - James Joseph Sabella, Esq. Shelly L. Friedland, Esq. Jay W. Eisenhofer, Esq. Grant & Eisenhofer P.A. 485 Lexington Avenue, 29th Floor New York, NY 10017 Telephone: (646)-722-8500 - and - Reuben Guttman, Esq. 1920 L Street, NW, Suite 400 Washington, DC 20036 Telephone: 202-386-9500 UNITED STATES: Fed. Cir. Hears Statute of Limitation Argument ------------------------------------------------------------- Steve Vockrodt at the Kansas City Business Journal reports that the U.S. Court of Appeals for the Federal Circuit has taken a significant land-takings case under advisement after hearing oral arguments from Lathrop & Gage LLP lawyers arguing a plaintiff's cause. Appellate judges heard arguments a week ago today in what could be a precedent-setting case regarding not only the government's ability to take land, but also how a statute of limitations applies in a class-action lawsuit against the federal government. Lathrop & Gage is based in Kansas City. Fauvergue v. United States, No. 09-5048 (Fed. Cir.), and Fauvergue v. United States, Case No. 08-cv-00431 (Fed. Ct. Cl.) (Miller, J.), stem from lawsuits filed on behalf of 150 property owners in Cherokee County in Kansas and Jasper County in Missouri from whom the federal government took land in 2002 to convert inactive railroads into hiking trails. A ruling by the Court of Federal Claims, a federal court that accepts lawsuits against the government, said plaintiffs bringing a class-action suit against the federal government must file a complaint and form a class within six years of an alleged wrongdoing under statute of limitation laws. The suit was filed last year. "We think that's just draconian, and we think that is wrong as a matter of law," Thor Hearne, Esq., at Lathrop & Gage, who represents the landowners, told Mr. Vockrodt Tuesday. Mr. Hearne has argued that the clock should stop running on the statute of limitations once a lawsuit has been filed. Mr. Hearne has said that if higher courts accept the U.S. Department of Justice's position on the statute of limitations, the ability for plaintiffs to bring a class-action lawsuit against the government would be heavily restricted. A decision is expected sometime in 2010. Mr. Hearne said a decision in his client's favor would result in the case going back to the Court of Federal Claims as a class action; a decision siding with the government would result in a petition for a rehearing or a motion to have the U.S. Supreme Court hear the case. VIOXX AD LITIGATION: Ad Suits Can't Proceed as Class Action ----------------------------------------------------------- Kenneth Ofgang at the Metropolitan News-Enterprise reports that consumers who claim they were misled into purchasing the painkiller Vioxx before it was pulled from the market in 2004 cannot sue the manufacturer in a class action, the Court of Appeal for this district ruled yesterday. Affirming a ruling by then-Los Angeles Superior Court Judge Victoria Chaney-who has since been elevated to the Court of Appeal-Div. Three said the judge did not err in concluding that individual issues as to damages make class certification of an action for unfair competition and false advertising inappropriate. Vioxx was introduced in 1999 and removed from the market five years later, after complaints that it led to adverse cardiovascular effects. The manufacturer, Merck & Co. Inc., faces billions of dollars in legal claims by users of the drug. 2.4 Million Californians In the proposed class action, brought on behalf of an estimated 2.4 million Californians-out of about 20 million Vioxx users nationwide-the plaintiffs did not seek damages for any adverse health effects, but sought reimbursement for the difference between what they paid for Vioxx and what they would have paid for less costly but safer medications. Merck contended, as it has consistently, that its representations regarding the drug-both to doctors and the public-were accurate and proper. Chaney agreed that liability could be determined with respect to the class as a whole, but said that damages would vary according to such factors as each litigant's medical history, how much they paid for the drug, how long they took Vioxx, and the extent to which they relied on the allegedly false marketing. The judge also concluded that the individual plaintiffs' claims were atypical of third parties who paid for the drug on behalf of subscribers to prescription drug plans. Justice Walter Croskey, writing for the Court of Appeal, said the plaintiffs failed to demonstrate that Chaney's ruling was clearly erroneous. Third-Party Payors With respect to the third-party payors, the justice noted, many conducted vigorous reviews to determine whether a particular patient required Vioxx rather than a less-expensive drug. Those payors, the justice wrote, cannot recover on the plaintiffs' theory because "every penny they paid for Vioxx was paid for a patient for whom a traditional [non-steroidal anti-inflammatory drug] was not a viable medical option." The evidence, Croskey went on to say, also supported Chaney's conclusion that damages could not, as the plaintiffs proposed, be determined simply by comparing the price a consumer paid for Vioxx to that he or she would have paid for the same quantity of naproxen, a generic alternative. The trial judge, Croskey said, was entitled to reject the use of naproxen for class-wide comparison, based on evidence that after Vioxx was withdrawn from the market, most Vioxx users switched to other brand-name drugs such as Celebrex rather than to generics. Because restitution for unfair competition requires proof of a measurable amount to be repaid, the justice said, "[t]he failure of naproxen as a viable class-wide comparator . . . defeats the claim for class-wide restitution." The justice elaborated: "Even if plaintiffs establish, class-wide, that Merck misrepresented the cardiovascular risks of Vioxx in a manner that was likely to deceive plaintiffs and their prescribing physicians, no plaintiff would be able to recover without first identifying a proper comparator drug, the cost of which would provide the actual value to the patient of the Vioxx received. As the trial court concluded, on the evidence, that the issue of a proper comparator was a patient-specific issue, incorporating the patient's medical history, treatment needs, and drug interactions, the trial court properly concluded that restitution could not be calculated on a class-wide basis." Attorneys on appeal were Steve W. Berman, Craig R. Spiegel and Elaine T. Byszewski of Hagens Berman Sobol Shapiro for the plaintiffs, and Richard B. Goetz and Charles C. Lifland of O'Melveny & Myers for Merck. The case is In re Vioxx Class Cases, B216521. WILSON COUNTY: Tenn. Lawsuit Alleges Racial Hiring Discrimination ----------------------------------------------------------------- Courthouse News Service reports that Wilson County, Tenn., "has the reputation of not hiring African Americans," and violates its own nepotism policy, according to a class action in Nashville Federal Court. A copy of the Complaint in Tartt, et al. v. Wilwon County, Tennessee, Case No. 09-cv-01179 (M.D. Tenn.), is available at: http://www.courthousenews.com/2009/12/14/Employ.pdf The Plaintiffs are represented by: Jerry Gonzalez, Esq. 2441-Q Old Fort Parkway Murfreesboro TN 37128 Telephone: 615-360-6060 WINDOW SHADES: Massive Recall to Repair All Roman Shades & Blinds ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission (CPSC) and the Window Covering Safety Council (WCSC) announced a voluntary recall to repair all Roman shades and roll-up blinds to prevent the risk of strangulation to young children. This recall involves millions of Roman and roll-up blinds. About five million Roman shades and about three million roll-up blinds are sold each year. CPSC has received reports of five deaths and 16 near strangulations, since 2006, in Roman shades and three deaths, since 2001, in roll-up blinds. Strangulations in Roman shades can occur when a child places his or her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his or her neck. Strangulations in roll-up blinds can occur if the lifting loop slides off the side of the blind and a child's neck becomes entangled on the free-standing loop or if a child places his or her neck between the lifting loop and the roll-up blind material. "Over the past 15 years, CPSC has been investigating window covering hazards and working with the WCSC to ensure the safety of window coverings. We commend the WCSC for providing consumers with repair kits that make window coverings safer and look forward to future steps to eliminate these hazards," said Inez Tenenbaum, CPSC Chairman. Over the years, CPSC has been investigating deaths associated with different types of window coverings and has worked with the WCSC to address the hazards posed by them. In 1994 and in 2000, CPSC and WCSC announced recalls to repair horizontal blinds to prevent strangulation hazards posed by pull cord and inner cord loops. As a result of CPSC investigations, the industry has modified its products and provides free repair kits for existing horizontal blinds and other window coverings. In October 2009, CPSC issued a new safety alert to warn parents about the dangers associated with window coverings. Consumers that have Roman or roll-up shades in their homes should contact the WCSC immediately at http://www.windowcoverings.org/ or by calling (800) 506-4636 anytime to receive a free repair kit. To help prevent child strangulation in window coverings, CPSC and the WCSC urge parents and caregivers to follow these guidelines: * Examine all shades and blinds in the home. Make sure there are no accessible cords on the front, side, or back of the product. CPSC and the WCSC recommend the use of cordless window coverings in all homes where children live or visit. * Do not place cribs, beds, and furniture close to the windows because children can climb on them and gain access to the cords. * Make loose cords inaccessible. * If the window shade has looped bead chains or nylon cords, install tension devices to keep the cord taut. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10073.html A number of retailers are participating in this recall: Retailer Recalled Products -------- ----------------- J.C. Penney More than 2.2 million Roman shades and about 340 roll-up blinds Wal-Mart 600,000 roll-up blinds and 500,000 Roman shades All Strong Industry About 290,000 Roman shades (USA) Inc., Ontario, Calif. Lotus & Windoware 250,000 1/4" Oval Roll-Up Blinds Inc., Memphis, Tenn. International 355,000 Deluxe Matchstick Roll-up Merchandise, Shades Columbus, Ohio Pottery Barn, Pottery 305,000 Roman shades and 45,000 Barn Kids, and PBteen roller shades division of Williams-Sonoma Inc., San Francisco, Calif. West Elm, San 42,000 Jute/Poly Roman Shades Francisco, Calif. Draper Inc., 1,800 Roman shades Spiceland, Ind. Ross Stores Inc., 6,300 Newport Energy Solution Roman Pleasanton, Calif. shades YOUTH STUDY CENTER: Settlement Calls for New Confinement Policies ----------------------------------------------------------------- A proposed settlement in J.D., et al. v. C. Ray Nagin, et al., Case No. 07-cv-09755 (E.D. La.), calls for promulgating and implementing new policies and procedures that improve the operation of the Youth Study Center in New Orleans. A copy of the Settlement Notice is available at http://is.gd/5qtDm New Securities Fraud Cases METROPCS COMMS: Coughlin Files Shareholder Suit in N.D. Tex. ------------------------------------------------------------ Coughlin Stoia Geller Rudman & Robbins LLP commenced a class action lawsuit in the United States District Court for the Northern District of Texas on behalf of purchasers of MetroPCS Communications Inc. (NYSE:PCS) common stock during the period between February 26, 2009, and November 4, 2009. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from today. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman, Esq., or David A. Rosenfeld, Esq., of Coughlin Stoia at 800/449-4900 or 619/231-1058, or via e-mail at djr@csgrr.com. If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.csgrr.com/cases/metropcs/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges MetroPCS and certain of its officers and directors with violations of the Securities Exchange Act of 1934. MetroPCS offers wireless broadband mobile services in the United States. The complaint alleges that during the Class Period defendants issued a series of false and misleading statements and/or concealed material adverse facts regarding the Company's business and prospects. Specifically, the complaint alleges that defendants' statements misrepresented and failed to disclose the following adverse facts: (a) the Company was losing customers at a higher rate than previously experienced and was failing to add new customers due to increased competition; (b) the Company's average revenue per user was lower than expected due to an increase in promotional activity; (c) the Company's increase in subscribers in the first quarter was due to a promotion whereby customers received the first month free and could cancel without penalty; (d) the reported new subscriber numbers were artificially inflated by the inclusion of upgraded subscribers as new additions; (e) the costs of acquiring new customers was increasing due to an intensification of the Company's marketing campaigns in the Northeast market along with its promotional activities; and (f) as a result of the foregoing, defendants lacked a reasonable basis for their positive statements about the Company and its prospects. Then, on November 5, 2009, before the market opened, MetroPCS issued a press release announcing its third quarter 2009 financial results, reporting that the Company's net additions were below expectations due to elevated churn and a deceleration in gross additions, and lowering its guidance for the year. In response to the lowered guidance, the price of MetroPCS stock fell $0.61 per share, or 9%, to close at $6.01 per share. Plaintiff seeks to recover damages on behalf of all purchasers of MetroPCS common stock during the Class Period (the "Class"). The plaintiff is represented by Coughlin Stoia, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. Coughlin Stoia -- http://www.csgrr.com/-- a 190-lawyer firm with offices in San Diego, San Francisco, Los Angeles, New York, Boca Raton, Washington, D.C., Philadelphia and Atlanta, is active in major litigations pending in federal and state courts throughout the United States and has taken a leading role in many important actions on behalf of defrauded investors, consumers, and companies, as well as victims of human rights violations. Asbestos Litigation ASBESTOS ALERT: ARAMARK Has $6.8M Oct. 2 Retirement Obligations --------------------------------------------------------------- ARAMARK Corporation recorded asset retirement obligations (including asbestos-related) of US$6,831,000 as of Oct. 2, 2009, compared with US$7,147,000 as of Oct. 3, 2009, according to the Company's annual report filed with the Securities and Exchange Commission on Dec. 15, 2009. The Company recognizes a liability for asset retirement obligations, which consist primarily of costs associated with the removal and disposal of regulated asbestos-containing material and the retirement of certain equipment and leasehold improvements, even if that activity can be deferred indefinitely. COMPANY PROFILE: ARAMARK Corporation ARAMARK Tower 1101 Market Street Philadelphia, Pa. 19107 Tel. No.: 215-238-3000 Description: ARAMARK Corporation provides managed services to business, educational, healthcare and governmental institutions and sports, entertainment and recreational facilities. ASBESTOS UPDATE: Chelmsford Residents' Deaths Linked to Exposure ---------------------------------------------------------------- A Dec. 11, 2009 inquest at the Chelmsford Coroners Court heard that the deaths of four Chelmsford, England, locals (Brian Taylor, John Cutler, Mavis Mayne, and Donald Grant) were related to workplace exposure to asbestos, the Yellow Advertiser reports. The 68-year-old Mr. Taylor, a retired maintenance engineer, was exposed to asbestos when working on boilers, gas pipes and chimneys during the 1960s. The Harlow native was diagnosed with mesothelioma in January 2008. He died on May 13, 2009. Assistant deputy coroner, Tina Harrington, said, "Brian Taylor died from an industrial disease caused by asbestos. I give a verdict that he died after contracting the disease during a period of employment he had been engaged in." The 75-year-old Mrs. Mayne, of Dunton Road, Basildon, assisted her husband with renovation work to her bungalow by cutting asbestos sheeting. The court heard that she would be "covered head to toe" in dust between 1955 and 1964. She died on Oct. 9, 2009 at St. Luke's Hospice, Basildon. The 76-year-old Mr. Cutler, of Falmouth Road, Chelmsford, was diagnosed with mesothelioma in June 2009 and died on July 6, 2009. It is believed that he worked in an office that had undergone repairs using asbestos and had worked for the company from the age of 14. The 66-year-old Mr. Grant, of Rahn Road, Epping, contracted mesothelioma in December 2008. He was exposed to asbestos dust while cutting tiles through his work. He died on July 8, 2009 in Princess Alexandra Hospital, Harlow. ASBESTOS UPDATE: Hearing in Mo. Fire Chief Case Set for March 18 ---------------------------------------------------------------- Joseph L. Washington, the former president and chief of the Northeast Ambulance and Fire Protection District who pleaded guilty for asbestos cleanup violations, will be sentenced on March 18, 2010 in front of U.S. District Judge Charles Shaw, the St. Louis Post-Dispatch reports. Mr. Washington was fired earlier in December 2009 as fire chief. He admitted that while he was president of the district's board, he illegally removed asbestos from the district's offices in Beverly Hills, Mo. Mr. Washington pleaded guilty to one count of violating the Clean Air Act. In return, the U.S. Attorney's office dropped four other felony counts against him. Those charges also included lying on federal bankruptcy documents about his wife's income. According to the indictment, Mr. Washington did not notify the Environmental Protection Agency of renovations that included the removal of asbestos from the building at 7100 Natural Bridge Road and then violated federal standards for removing the substance. Mr. Washington was scheduled to go to trial in the case last Dec. 14, 2009. He faces from probation to six months in prison, under federal sentencing guidelines. As part of the plea agreement, the U.S. Attorney's office promised not to pursue prosecution against Mr. Washington related to any clean air violations. The district, which provides fire and ambulance service to 15 north St. Louis County communities and the University of Missouri St. Louis, has been plagued with controversy since April 2007, when control of the board swung to a majority led by Mr. Washington. ASBESTOS UPDATE: Kitchin Widow Files Lawsuit v. Farleigh School --------------------------------------------------------------- Rosemary Kitchin, David Kitchin's widow, filed a lawsuit for GBP200,000 against Mr. Kitchin's employer, Farleigh School, for exposing him to asbestos, ThisIsHampshire.net reports. Mrs. Kitchin is claiming damages from the governors of the Roman Catholic School near Andover, Hampshire, England, where boarding fees are GBP6,265 a term. Mr. Kitchin worked as a former master at the school between 1966 and 1969, and 1974 and 1986, when he was exposed to deadly asbestos dust and fibers in the Stone Passageway, the route into the main school - according to a High Court writ. Overhead central heating and hot water pipes lagged with blue asbestos ran in the passageway, and the lagging was friable, making the atmosphere contaminated with asbestos, the writ says. It is claimed that pupils also disturbed the lagging by jumping up to swing on the pipes. Mr. Kitchin used the passageway until it was made out of bounds because of the asbestos, the court will hear. He also visited the boiler house, which contained asbestos lagged pipes, from time to time. Mr. Kitchin developed pain in his abdomen in January 2008, and tests showed he had malignant mesothelioma of his peritoneal cavity. He underwent five cycles of chemotherapy, with minimal response, and spent time in hospital. He died on Jan. 21, 2009 at the age of 60. Mrs. Kitchin brands the school negligent and says Mr. Kitchin it exposed him to a major risk of fatal injury without any protection, and without warning him of the risks he ran. ASBESTOS UPDATE: Markethaven, Walmac Fined for Safety Violations ---------------------------------------------------------------- The Dublin Circuit Criminal Court issued penalties to Markethaven Ltd (a developer) and Walmac Ltd (a demolition firm) for allowing workers to be exposed to asbestos, The Irish Times reports. Markethaven is based in Eblana Villas, Dublin 2 and Walmac is based in Hillview, Naas Road, Saggart. Finian McDonnell, Markethaven's director, pleaded guilty on behalf of the company to two breaches of the Health and Safety Act at the former Spring Grove Service Laundry on the Shelbourne Road, Ballsbridge, on June 20, 2003. The charge detailed that Markethaven failed to appoint a project supervisor for the design stage and that it carried out an activity which exposed persons, or was liable to expose persons, to a concentration of asbestos fibers, which created a substantial risk of death or serious harm. Thomas Gibson, a solicitor acting for Walmac, pleaded guilty to breaches of health and safety regarding the same place and date. Veronica Helley of the Health and Safety Authority (HSA) told Rosin Lacey, prosecuting, that she visited the site in 2003 when it was being demolished. Ms. Helley said she was shown to the site office and examined safety documents. She shouted at employees to cease because of the danger of asbestos, and work was stopped. She said the employees of East Coast Building Ltd, who were doing the demolition work, were not aware of asbestos in the building except in the roof. Ms. Helley said she issued a prohibition notice for work to stop and that it took two specialist firms two months to clean up the site in a seven-stage program, the cost of which was EUR300,000 plus VAT. Judge Frank O'Donnell said he needed time to consider the matter and adjourned sentencing until January 2010. Both parties face an unlimited fine. ASBESTOS UPDATE: Cleanup & Demolition of Iowa Bldg. Cost $88,230 ---------------------------------------------------------------- The asbestos removal and the demolition of the former Eagle County Market in Betterdorf, Iowa, cost US$86,230, Mesothelioma.com reports. The demolition began in the first week of December, and is now completed. The former Eagle Country Market been vacant for a decade, and the demolition was coordinated by Holst Trucking and Excavating of LeClaire, Iowa. The city bought the building for US$1.5 million in 2001, but was never able to find a way to use the building to its full potential. Bettendorf Mayor Mike Freemire said, "We've tried public uses, public-private and private uses and could not find a solution that could be done in an economical fashion. As such, with the removal of this building, it allows us the opportunity for a clean slate to be able to develop whatever programming is necessary to complement the Learning Campus and make this area useable for all Bettendorf residents." Mayor Freemire added, "Now we have the opportunity to be able to look for new uses for the ground, and in the middle of the city having a little green area is probably a good thing." ASBESTOS UPDATE: Mass. AG Settles Asbestos Issue With Worcester --------------------------------------------------------------- Attorney General Martha Coakley's Office reached an agreement with the City of Worcester, Mass., resolving allegations that public school officials improperly removed and disposed of vinyl asbestos tiles from the auditorium of the Vernon Hill School in violation of environmental laws, according to a Massachusetts Attorney General's Office press release dated Dec. 9, 2009. A final judgment was entered in Suffolk Superior Court on Dec. 9, 2009 by Judge Elizabeth Fahey that requires Worcester officials to develop and implement an environmental management system (EMS) for its public schools. Additionally, the Worcester Public Schools will pay a civil penalty of US$75,000, which will be waived if the city completes the EMS in accordance with the Settlement Agreement. Attorney General Coakley said, "The City of Worcester is taking a major step towards assuring that the students in the public schools are protected from environmental hazards in the schools by comprehensively addressing environmental issues. This is a great outcome for Worcester and particularly for the students who attend the public schools." Department of Environmental Protection Commissioner Laurie Burt said, "MassDEP rules are in place to ensure that public health is protected through proper removal and handling of asbestos- containing materials. The city is committing to an environmental management system that will ensure proper compliance in the future with these and other important health, safety and environmental requirements." In April 2007, while school was out for spring vacation, employees of the city of Worcester removed vinyl asbestos floor tiles without using a licensed asbestos contractor, according to the complaint filed in Suffolk Superior Court. Under the city's direction, employees put cracked and broken pieces of vinyl asbestos floor tiles from the auditorium in plastic bags and then placed the plastic bags in cardboard drums, sealed the drums with strapping or duct-tape, and placed the drums between rows of lockers under the stage in the auditorium. The complaint further alleges that the city did not label the barrels with asbestos warnings. According to the complaint, the vinyl asbestos tiles removed by the city contained asbestos concentrations of about 33 to 42 percent. The complaint also alleges the city did not seal off the auditorium to contain fugitive dust when it was conducting the removal of the vinyl asbestos tiles or use an air filtration system to capture particulate asbestos fibers. Upon discovery of the violations, MassDEP required the city to restrict access to the auditorium and hire a licensed asbestos contractor to properly remove, package and dispose of all asbestos waste materials and to thoroughly clean and decontaminate the auditorium and all affected areas of the school. The settlement agreement requires the city to develop and implement an EMS for its public schools that will comprehensively address environmental issues to achieve and maintain environmental compliance throughout the Worcester public school system and will integrate the city's commitment to environmental compliance and environmental management practices into the daily mission of the public schools. Assistant Attorney General Betsy Harper, Esq., of Attorney General Coakley's Environmental Protection Division handled the case. Mary Jude Pigsley, Esq., Greg Levins, Esq., and Don Heeley, Esq., handled the case for the MassDEP. ASBESTOS UPDATE: Stonehouse Fined GBP5,500 for Safety Violations ---------------------------------------------------------------- A development company that exposed both employees and others to the risks of asbestos during renovation work has been prosecuted by the Health and Safety Executive (HSE), according to an HSE press release dated Dec. 10, 2009. Stonehouse Design and Build Limited, based in Houndiscombe Road, Mutley, Plymouth, Devon, England, was charged with health and safety breaches under the Control of Asbestos at Work Regulations 2002, following renovation work at the former Sharksfin Hotel at The Quay in Mevagissey, Cornwall, between December 2005 and July 2006. The company was charged with breaching Regulation 15 (relating to the spread of asbestos) and Regulation 16 (1) (a) (relating to the failure to keep the site clean). Having pleaded guilty to both charges, Stonehouse Design and Build Ltd was fined GBP2,700 for the each of the breaches then ordered to pay part costs of GBP8,267 at Bodmin Magistrates Courts on Dec. 8, 2009. Stonehouse Design and Build Limited bought the former hotel site in order to convert the building into apartments. During the course of the renovation work, asbestos was disturbed and HSE was notified in confidence that the hazardous material was not being removed under appropriate controlled conditions. This included the illegal disposal of asbestos materials alongside general waste, designated for general landfill waste. Work at the site was halted by HSE inspectors in July 2009 and the asbestos was removed under licensed conditions then the site decontaminated by a specialist team. Speaking after the hearing, HSE Inspector, Martin Lee, said, "We have just been running an asbestos awareness campaign called 'The Hidden Killer' precisely to highlight the dangers of this potentially lethal material to tradesmen such as those working at the former Sharksfin Hotel site. "The dangers of exposure to asbestos cannot be underestimated. In Cornwall alone, 250 men died from mesothelioma caused by asbestos between 1981 and 2005 (latest figures available). This figure will continue to rise unless we can educate tradesmen about the dangers of asbestos and why this is relevant to them. "We want them to change the way they work so that they don't put their lives at risk. The most simple, but important advice is, if any worker or developer is not 100 per cent certain that there is no asbestos on site, then work should not begin before the facts are known. It is not worth the long-term risk." ASBESTOS UPDATE: $20. Mil. Settlement with Sealed Air Investors --------------------------------------------------------------- Sealed Air Corporation, on Dec. 4, 2009, agreed to pay US$20 million to settle a six-year-old class action lawsuit filed by shareholders who alleged that the Company understated its liability for litigation caused by purchasing part of an asbestos manufacturer, the New Jersey Law Journal reports. The suit just settled, Louisiana Municipal Police Employees Ret. Sys. v. Sealed Air Corp., 2:03-cv-4372, was filed on behalf of buyers of company stock between March 27, 2000 and July 30, 2002, during which period the share price dropped from US$58.18 to US$14.51. U.S. District Judge Dennis Cavanaugh approved the settlement, under which US$6 million, or 30 percent, goes toward attorney fees and another US$393,350 for expenses. The litigation stemmed from the Company's 1998 acquisition of the Cryovac division of W. R. Grace and Co., a company that in the 1990s was hit with thousands of asbestos suits. Beginning in 2000, personal injury litigants began suing Grace and the Company as co-defendants, seeking to overturn the acquisition as a fraudulent transfer designed to protect Grace's assets from liability. In April 2001, Grace filed for Chapter 11. The lawsuit charged that the Company "consistently failed to acknowledge Sealed Air's potentially massive contingent liabilities related to Grace's asbestos liability exposure." It further alleged that the Company violated generally accepted accounting principals by failing to account for the "substantial likelihood" that the Company would be held liable for asbestos claims against Grace. Judge Cavanaugh certified the class in the Louisiana Municipal suit in March 2008. The Company unsuccessfully sought to overturn that decision in the 3rd U.S. Circuit Court of Appeals. In October 2008, the parties engaged in mediation with former U.S. District Judge Nicholas Politan, now a Roseland, N.J.-based solo, but failed to reach a settlement. After a second mediation, with Eric Green, a professor at Boston University School of Law, they reached a deal on April 27, 2009. In approving the settlement, Judge Cavanaugh said 82,000 potential class members were given notice of the terms and none objected to its reasonableness, adequacy or fairness, although two members opted out. Andrew Gordon, Esq., of Paul, Weiss, Rifkind, Wharton & Garrison in New York was lead defense counsel and Gregory Reilly, Esq., of Lowenstein Sandler in Roseland, N.Y., was local counsel for the Company. Ken Aurichio, the Company's director of corporate communications, said the agreement was reached "to avoid the cost and burden on our company resulting from continuing litigation." He added, "We've always denied and continue to deny each and every one of the claims." Patrick Dahlstrom, Esq., of Pomerantz, Haudek, Block, Grossman & Gross in Chicago, was class counsel and Olimpio Squitieri, Esq., of Squitieri & Fearon in Jersey City, N.J., was local counsel for the class. ASBESTOS UPDATE: Pullman Awarded $233T in Lawsuit v. Smithsonian ---------------------------------------------------------------- Richard Pullman, a former employee of the Smithsonian Air and Space Museum, was awarded a US$233,000 asbestos-related settlement, thus ending his lawsuit against the institution, the Washington Post reports. According to the terms of the settlement published in the Washington Post, Mr. Pullman received US$154,000 in August 2009 and will receive US$79,000 in severance pay. The Smithsonian also agreed to pay 65 percent of his health insurance for nine months. The 54-year-old Mr. Pullman, a former exhibit specialist, worked for the museum for 28 years, during which time he frequently had to saw and drill into the interior walls of the museum. However, it was not until 2008 that Mr. Pullman and his colleagues were informed that those walls contained asbestos. He now has asbestosis. The Smithsonian commissioned an independent report to look into the asbestos situation, and the consultant has recommended changes in procedures, training and inspections at the buildings, to locate toxic substances throughout the massive complex. The Smithsonian failed, reportedly, to maintain complete records of asbestos-containing material, so workers had insufficient information as to the whereabouts of the toxic substance, and how to work around it. ASBESTOS UPDATE: Wis. Local Penalized $130,000 for DNR Breaches --------------------------------------------------------------- According to Wisconsin state Attorney General J.B. Van Hollen, on Dec. 10, 2009, Daniel Marini was fined more that US$130,000 after he was found guilty of environmental violations (including asbestos-related) in operating salvage sites in La Crosse and Jackson counties, Coulee News reports. The 59-year-old Mr. Marini, of Mindoro, Wis., burned five mobile homes and then buried the ash at his La Crosse County salvage yard, without a permit and without first inspecting them for asbestos, Mr. Van Hollen said. Mr. Marini also illegally transported and stored about 90 non- labeled drums of hazardous waste and crushed vehicles without first draining them as required of liquids, which ran into the ground, according to a civil complaint filed in Dane County. Mr. Van Hollen added that when the state Department of Natural Resources and La Crosse County demanded Mr. Marini properly remove waste materials and close his unlicensed salvage operation, Mr. Marini relocated to a salvage yard he bought in Jackson County. The DNR concluded both sites had hazardous substance spills. On Dec. 10, 2009, a judge fined Mr. Marini US$100,137 and ordered he pay US$32,206 to the DNR and the Department of Justice. ASBESTOS UPDATE: Trial of Former Eternit Execs Ongoing in Turin --------------------------------------------------------------- The trial of two former Eternit executives, 62-year-old Stephan Schmidheiny and 88-year-old baron Louis de Cartier de Marchienne, who were accused of negligence in 2,200 asbestos-related deaths is ongoing, UPI.com reports. Trial began on Dec. 10, 2009 in Turin, Italy. Mr. Stephan, Eternit's owner, is a Swiss billionaire, and Mr. de Marchienne, a former managing director of the Company, is a Belgian baron. The two men, who are being tried in absentia, are accused of causing an environmental disaster and failing to take proper safety measures at Eternit. Both men deny any wrongdoing. If convicted, they could each face 12 years in prison. Thousands showed up for the trial's beginning, with interest so high it required three courtrooms with hundreds of relatives and journalists watching on videolink. Outside, demonstrators and relatives of victims who worked at Eternit plants in Europe held placards calling for justice. Prosecutor Raffaele Guariniello told reporters asbestos dust in the air from roofs, streets and courtyards caused tumors among Eternit staff, their families and people living near the factories and has left around 800 seriously ill. ASBESTOS UPDATE: Nightcliff Foreshore Closed for Hazard Removal --------------------------------------------------------------- The Council of the City of Darwin, in the Northern Territory of Australia, said the Nightcliff foreshore has been closed to the public on Dec. 11, 2009 while asbestos is removed from the beach, ABC News reports. Six men in full-body suits, face masks, gloves and glasses removed up to three cubic meters of loose asbestos dumped on the beach at Nightcliff after World War II and Cyclone Tracy. Graeme Sawyer, the Lord Mayor, says there may be several more tons of asbestos in the rock face, which is being exposed by coastal erosion. He says it is not fair to slap Darwin ratepayers for the cost of removing material, which was probably dumped by a combination of American and Australian defense forces. He has approached the Federal Government for assistance with the cleanup. Air monitoring pumps are measuring all fibers and there have not been any alarms this morning. The overcast and wet weather had provided ideal conditions for the cleanup. The bags of asbestos will be buried at the waste disposal center near Shoal Bay. ASBESTOS UPDATE: Traces of Hazard Found in Quarry Near Baryulgil ---------------------------------------------------------------- Tests showed traces of asbestos at the Ewingar quarry near Baryulgil, New South Wales, Australia, The Daily Examiner reports. Mayor Richie Williamson said the Clarence Valley Council was aware of the test results and precautions were being put into place. He said, "A program of works is been undertaken immediately to minimize risks of harm to people working and travelling near the asbestos-containing materials. "The council has been aware that asbestos occurs naturally in the area and one of the bridge reconstruction projects recently undertaken encountered asbestos, which then required the careful management of that part of the reconstruction." More site-testing of the material and airborne particle testing is being undertaken to determine the extent of asbestos material and the health risks associated with the exposed fibers. Council has discontinued the use of asbestos in the Ewingar quarry to minimize health risks to residents, staff and visitors. ASBESTOS UPDATE: Court Affirms Ruling in Illinois Central Action ---------------------------------------------------------------- The Court of Appeals of Kentucky affirmed the ruling of the McCracken Circuit Court, which granted Illinois Central Railroad Company's motion to dismiss an asbestos case filed by Dale Batts on behalf of her late husband, Charles Batts. The case is styled Dale Batts, Executrix of the Estate of Charles Batts v. Illinois Central Railroad Co. Judges Michelle M. Keller, Janet L. Stumbo, and Laurance B. VanMeter entered judgment in Case No. 2008-CA-001193-MR on Oct. 2, 2009. In February 2003, Mr. Batts filed a complaint in circuit court alleging that he contracted asbestosis as a result of his exposure to asbestos and asbestos-containing products during the course of his employment with ICRR, which ICRR denied. On April 27, 2004, the circuit court issued a notice of intent to dismiss the case for lack of prosecution. Upon receiving notice of Mr. Batts' April 21, 2004 death and of Mrs. Batts' intent to revive the action in her name, the court entered an order retaining the case on its active docket. On April 21, 2005, Mrs. Batts moved for substitution and revival of the claim in the circuit court. On that same date, the Hickman District Court judge signed an order appointing Mrs. Batts as the executrix of Mr. Batts' estate. Meanwhile, ICRR moved to dismiss Mrs. Batts' motion for substitution and revival. The circuit court dismissed Mrs. Batts' motion. Her motion to vacate the judgment was denied. Thereafter, she appealed. On March 2, 2007, in Appeal No.2005-CA-001594, a panel of this court reversed and remanded the circuit court's order on the ground that the April 21 order appointing Mrs. Batts as the executrix of the estate became effective the day it was signed by the judge. Thus, Mrs. Batts' motion for substitution and revival was not barred. ICRR then moved to dismiss the action on Jan. 28, 2008. Mrs. Batts responded and ICRR replied. Ultimately, the circuit court granted ICRR's motion and dismissed the case. ASBESTOS UPDATE: Defendants' Summary Judgment Affirmed in Meehan ---------------------------------------------------------------- The U.S. District Court, Northern District of New York, granted Defendants' Motion for Summary Judgment in a pro se case involving asbestos filed by Dennis Meehan. The case is styled Dennis Meehan, Plaintiff v. George Pataki, Governor; Glenn Goord, Commissioner, DOCS; John Doe #1, President, Corcraft; John Doe #2, Superintendent, Auburn Correctional Facility; Saxton, Head Supervisor, Corcraft; and Nelson, Deputy Superintendent of Programs, Defendants. Senior District Judge Frederick J. Scullin, Jr. entered judgment in Case No. 9:06-CV-769 (FJS/GJD) on Sept. 29, 2009. On June 12, 2006, Mr. Meehan filed this action, alleging violations of his rights under the Eighth Amendment. He alleged that he was exposed to asbestos during his incarceration at Auburn Correctional Facility and that, because of this exposure, Defendants violated his Eighth Amendment rights. Mr. Meehan contended that, while he was incarcerated at Auburn Correctional Facility (ACF), between July 2001 and May 2005, facility personnel did not follow proper procedures when initiating asbestos removal or other construction projects, causing friable asbestos to "contaminate the air." Mr. Meehan also claimed that, from April 2004 until May 2005, he worked as a porter for Industry/Corcraft at Auburn Correctional Facility. He contended that, during that time, he was unnecessarily exposed to more asbestos while he cleaned elevator shafts and a boiler room. Finally, he asserted that he was further exposed to asbestos when heating pipes were removed from A-Block and E-Block. On Sept. 30, 2008, Defendants filed a motion for summary judgment. This court granted the order, thus the case was dismissed. ASBESTOS UPDATE: North End Resident's Death Related to Exposure --------------------------------------------------------------- An inquest heard that the death of 75-year-old Alex Tiller, a former lagger and riveter from North End, Portsmouth, England, was linked to workplace exposure to asbestos, The Portsmouth News reports. Mr. Tiller had spent his career in Portsmouth. He regularly came into contact with asbestos while working as a lagger and riveter over a period of more than 40 years. He had to retire in 1993 due to ill-health. However, it was not until 11 years later that Mr. Tiller was diagnosed with lung cancer following an x-ray. The inquest heard he became unwell that he was constantly short of breath, could not climb a flight of stairs, and eventually had to sleep on the ground floor at his home. He died at home on Dec. 26, 2008. A post mortem revealed Mr. Tiller had asbestos-related pleural plaques, asbestosis and a large tumor on his left lung. Recording a verdict that Mr. Tiller died from an industrial disease, Portsmouth and south-east Hampshire coroner David Horsley said, "I know that Mr. Tiller was a smoker but I think all of the facts presented are too much of a coincidence. "The fact that he worked all his life in the dockyard, that he has pleural plaques, he's got asbestosis, and a special test carried out in Cardiff showed a high level of asbestos fibres in his lung tissue, is such that I can't ignore it." ASBESTOS UPDATE: Carpenter's Kin Seeking Information on Exposure ---------------------------------------------------------------- The family of Tracey Carpenter, a 43-year-old mother who died from long-term exposure to asbestos, seeks more information about where Ms. Carpenter was exposed to asbestos, the Evening Telegraph reports. Ms. Carpenter, of Kettering, Northamptonshire, England, died in November 2009 after being diagnosed wth mesothelioma in July 2009. She left behind her partner Gary Haldane and their children: 18-year-old daughter Jane and 16-year-old son Reece. Ms. Carpenter could not recall working with asbestos but may have been exposed to the substance through contact with clothing worn by her father while he worked at British Steel in Corby. Ms. Carpenter's father, Charles Fairey, who died in 1980 at the age of 56, worked as a crane driver in the bessemer plant at British Steel from 1956 to 1980. Before she died, Ms. Carpenter, who worked at Kettering Council, remembered her father coming home from work wearing dusty clothing when she was a child. She also remembered helping with the laundry which included her father's work clothes. Ms. Carpenter's family is calling for anyone who worked as a crane driver, or on the maintenance of cranes at Corby steelworks or who worked with Mr. Fairey to get in touch if they have any information about the presence of asbestos. Thompsons Solicitors is investigating the possibility of obtaining compensation for the family. ASBESTOS UPDATE: Three Cases Filed in Kanawha Co. on Nov. 13, 23 ---------------------------------------------------------------- Three separate lawsuits were filed in Kanawha Circuit Court, W.Va., wherein one case was filed on Nov. 13, 2009 and two cases were filed on Nov. 23, the West Virginia Record reports. In the lawsuit filed Nov. 13, 2009, Jerome Hensley named 52 companies in his complaint. In the Nov. 23, 2009 complaints, Arnold Glenn Treadaway named 45 companies and Charles Benjamin Oxley and Louise Oxley named 58 companies. Mr. Hensley, Mr. Treadaway and Mr. Oxley claim they were exposed to asbestos products of the defendants while working at various job sites over many years. Mr. Hensley and Mr. Treadaway were diagnosed on Oct. 16, 2009 with mesothelioma. They both claim to have smoked one pack per day: Mr. Hensley from 1986 to 2004 and Mr. Treadaway smoked from 1944 to 1970. Mr. Oxley claims he never smoked. According to the suits, the defendants are being sued for negligence, contaminated buildings, breach of expressed/implied warranty, strict liability, intentional tort, conspiracy, misrepresentations, and post-sale duty to warn. Cindy J. Kiblinger, Esq., of James F. Humphreys & Associates, and Victoria Antion, Esq., of Motley Rice represent Mr. Hensley, Mr. Treadaway and the Oxleys. Mr. Treadaway is also represented by James A. McKowen, Esq., also from James F. Humphreys & Associates. Kanawha Circuit Court Case Nos.: 09-C-2123, 09-C-2178, 09-C-2179 have been assigned to a visiting judge. ASBESTOS UPDATE: Templeton, Testa Actions Filed Nov. 12 in W.Va. ---------------------------------------------------------------- Two widows, Nellie Gray Templeton and Ruth Testa, on Nov. 12, 2009, filed separate asbestos-related lawsuits against CSX Transportation Inc. on behalf of their late husbands in Kanawha Circuit Court, W.Va., The West Virginia Record reports. Mrs. Templeton and Mrs. Testa claim their husbands were exposed to asbestos dust, fibers, silica sand, silica dust, coal and/or coal dust. The Templeton suit says Carroll Templeton was employed at CSX from 1943 until 1982. Mrs. Templeton claims during her husband's career he was exposed to asbestos dust, fibers, silica sand, silica dust, coal and/or coal dust. He died as a result of asbestos-causes diseases and/or injuries. The Testa suit says Benny J. Testa worked at CSX from 1938 until 1953. Mrs. Testa claims during her husband's career he was exposed to asbestos dust, fibers, silica sand, silica dust, coal and/or coal dust. He died as a result of asbestos-causes diseases and/or injuries. Both women seek judgment against CSX Transportation in the amount of US$1.5 million. James F. Humphreys, Esq., James A. McKowen, Esq., and Willard J. Moody, Esq., represent Mrs. Templeton and Mrs. Testa in Kanawha Circuit Court Case Nos.: 09-C-2114 and 09-C-2115. ASBESTOS UPDATE: Handeland to Pay Penalty for Cleanup Violations ---------------------------------------------------------------- Wisconsin State Attorney General J.B. Van Hollen, on Dec. 15, 2009, announced that his office has resolved a civil case it has brought against Handeland Flooring, Inc., a firm based in Thiensville, Wis., which engaged in the business of laying, replacing and refinishing floors, according to a Wisconsin Department of Justice press release dated Dec. 15, 2009. The Wisconsin Department of Natural Resources (DNR) asked the DOJ to prosecute Handeland Flooring for its violations of air pollution control laws regulating the handling of asbestos- containing materials. The case involves a renovation project at the First United Methodist Church of West Allis during the summer of 2007. First United Methodist contracted with Handeland to remove old asbestos-containing flooring and to install new flooring in a small dining room and an adjacent hallway in the lower level of its church at 7520 West Lapham Street in West Allis. The civil complaint filed in the case charges that Handeland began work on Aug. 9, 2007, by removing old nine by nine-inch asbestos-containing tiles and then sanding the underlying asbestos-containing adhesive mastic on the floor. According to the complaint, Handeland: -- Failed to inspect the premises for asbestos prior to commencing work on the project. State law requires anyone renovating a building to thoroughly inspect for the presence of asbestos prior to the commencement of work. -- Failed to provide any prior notice to DNR of its intention to renovate before it began stripping and removing the asbestos- containing material. State law requires renovators to provide written notice to the DNR no later than ten working days prior to commencing work that may disturb certain amounts of regulated asbestos-containing material. -- Failed to wet all regulated asbestos-containing material that it had removed from the basement of the church and to keep it wet until the material was collected for proper disposal. State law requires renovators to wet such material before stripping it from a building and then keep it wet until it is collected and contained for disposal. Complying with these regulations minimizes the emissions of asbestos fibers into the air. -- Failed to have properly trained individuals on the job site. State law requires renovators to have at least one on-site representative who has been properly trained in the control of asbestos emissions when asbestos-containing material is being stripped, removed, handled or disturbed. Under the terms of the settlement agreement, approved by Milwaukee County Circuit Court Judge Timothy Witkowiak, Handeland Flooring has agreed to pay penalties totaling US$20,000. Mr. Van Hollen said, "The excessive emission of air pollution can threaten the quality of the air we breathe and public health. That is particularly true with respect to a potentially dangerous pollutant like asbestos, because exposure to airborne asbestos fibers is believed to increase the risk of serious lung diseases." Here, the church employed other contractors to clean up the dust and debris from Handeland's renovation work and in the process confirmed that asbestos-containing dust had not reached the building's main floor. Mr. Van Hollen added that "the Wisconsin Department of Justice will continue to work with the Department of Natural Resources to ensure that such laws are followed." Assistant Attorney General Thomas L. Dosch represented the state. ASBESTOS UPDATE: Madison, St. Clair in "Judicial Hellholes" List ---------------------------------------------------------------- An American Tort Reform Association 2009 "Judicial Hellholes" report, released on Dec. 15, 2009, mentions Madison County and St. Clair counties in Illinois on the group's "watch" list, The Madison St. Clair Record reports. In Madison County, the report observes, "The outlook generally remains positive, but there are those in Illinois and elsewhere who are discouraged by recent developments and still consider it a Judicial Hellhole." Madison's asbestos docket has been increasing since 2006. 2009's new filings exceed the total number of asbestos cases filed in 2008. On class action lawsuits, at least one more case has been filed in 2009 than in 2008. The report continues, "Reasons to keep a close eye on Madison County persist. Judges interested in reform can only do so much; the lawyers practicing in the local court rooms determine much of the local activity. Madison County remains almost twice as litigious as Cook County and more than four times as litigious as the average of the other 101 Illinois counties." As for St. Clair County, the report states, "Madison County's neighbor shares a reputation as inhospitable to corporate defendants, but its standing has improved along with the rest of the Metro East in recent years. Still, it remains a place to watch with some decisions of concern." The Record reported there have been three times as many class action lawsuits filed in St. Clair County in 2009 than there were filed in 2008. Topping the Hellhole list (a place formerly occupied by Madison County) is South Florida, followed by West Virginia, Cook County, Atlantic County, N.J., and beyond, New Mexico appellate courts and New York City. ASBESTOS UPDATE: Hazard Uncovered in Guernsey's Castel Hospital --------------------------------------------------------------- Tests show that asbestos is found in the roof of a portion of the Castel Hospital in Guernsey, which is a British Crown dependency, BBC News reports. The Meadows Day Centre was closed after part of the ceiling collapsed in November 2009, due to heavy rain. There was concern that the ceiling contained asbestos so samples were sent to the United Kingdom for analysis. The results confirmed asbestos is present and as a precaution security measures have been put in place to ensure no one enters the building. The Health and Social Services Department is in talks about what action should be taken. The center has a temporary home at the Gateway Clubhouse, but arrangements are being made to move it into part of the Giffard Ward, which was closed earlier in 2009. ASBESTOS UPDATE: Coiner Facing Prison, Fine for Safety Breaches --------------------------------------------------------------- Jack R. Coiner, a businessman from Amarillo, Tex., on Dec. 15, 2009, pleaded guilty to a federal charge of negligently releasing asbestos into the air, Amarillo.com reports. Mr. Coiner faces up to a year in prison and a US$100,000 fine. According to federal court records, from July 2007 to May 2009, Mr. Coiner, who owns Asbestos Maintenance Services Inc., told two employees to store asbestos, which was properly sealed inside bags and barrels, at two locations. Mr. Coiner told federal authorities he planned to store the material and eventually dispose of it legally at a permitted landfill, but he was unable to do so because of financial hardship. Through time, some of the bags and barrels weathered or eroded, releasing asbestos into the air. A federal investigation has not revealed any other instances when Mr. Coiner or his businesses unlawfully disposed of asbestos. ASBESTOS UPDATE: Skerrit Urged to Address Roseau Asbestos Issue --------------------------------------------------------------- Norris Prevost, the United Workers' Party candidate for the Roseau Central constituency, urges Dominica's Prime Minister Roosevelt Skerrit to remove an "asbestos health hazard" in Roseau, Dominica News Online reports. On Dec. 10, 2009, Mr. Prevost said, "I have visited the area myself, and seen the serious danger posed by the degrading and condemned asbestos buildings in the scouts and girls guides headquarters, to the health of the children of the St. Mary's Primary School, as well as to the Old people from the Grotto Home, who have been moved to the former Dominica Club, and to the Scouts who still use the building." According to Mr. Prevost, the problem has been brought to the prime minister's attention, but to no avail. He added, "This asbestos health hazard was brought to the attention of Mr. Skerrit by a medical Doctor, at a televised public budget consultation earlier this year, and again a few months later in August. In spite of his promise to deal with it, up to today, M. Skerrit has failed to remove this very serious health hazard from the vicinity of the School." ASBESTOS UPDATE: Hazards Uncovered in Ocala City Hall's Ducting --------------------------------------------------------------- Asbestos and mold were found in the City Hall of Ocala, Fla., causing the Ocala City Council to hold their meeting elsewhere, Ocala.com reports. The Council was scheduled to meet in the Marion Theatre off Magnolia Avenue downtown. One of the items on the agenda is a request for US$75,000 to pay for the repairs. Complaints about odors in the council chambers led to discovery of mold in the chamber's air conditioning duct work. The chambers have a separate air conditioning system, so the problem is confined to that room and a hallway between the chambers and city manager's office on the second floor of City Hall. Assistant City Manager/City Engineer Bruce Phillips said the material that taped the duct work together contained the asbestos. Mr. Phillips said that PBO3 from Satellite Beach surveyed the situation and identified the problem at a cost of US$2,782. Sunrise Environmental of Melbourne removed the ceiling duct work with the asbestos at a cost of US$9,844. The new air handler and duct work and installation will cost US$46,600. Once the work is completed, new carpeting will be installed. The old carpeting was due to be replaced in 2010. The cost of installing the new ceiling and the carpeting will be US$13,000. Mr. Phillips said the system likely was the original system that dates back at least 40 years. The city has received an energy efficiency stimulus grant for US$600,000 that will be used to replace the rest of the air conditioners at City Hall. ASBESTOS UPDATE: Asbestos Found in Ocean Downs Racetrack in Md. --------------------------------------------------------------- Asbestos, lead paint and aging steel beams at the Ocean Downs Racetrack's grandstand in Berlin, Md., are problems that are delaying a proposed slots parlor, The Daily Times reports. Due to "unexpected site conditions," there will be an "undetermined delay" of the opening of the Ocean Downs video lottery facility, according to track owner William Rickman. In a Dec. 6, 2009 letter to the Maryland Video Lottery Location Commission, Mr. Rickman described how the above problems are holding up the project. Demolition of the building, which has been authorized by the county and State Highway Administration, has been stopped and construction put off until those issues can be resolved. Plans by Mr. Rickman's company, Ocean Enterprise 589, call for the 800 slot machines approved for Ocean Downs to be contained in a new facility erected in the footprint of the existing grandstand. That requires the building, which dates back to the 1970s, be stripped down to roof and beams, with seating removed, and rebuilt to accommodate administrative offices above the main ground-floor gaming area and bar. However, during a survey of the grandstand, engineers "discovered serious corrosion in many of the primary and secondary structural members, some of it very problematic, and requiring further investigation to determine if we have adequate strength for the renovation or if we need to take additional measures." Lead paint covering those beams "is being analyzed for welding compatibility." The old building also has asbestos, especially in the roof -- a discovery that put an immediate halt on demolition. Worcester County Commission President Bud Church said the county had not counted on seeing any money from the track in the current fiscal year. ASBESTOS UPDATE: Hazard Forces Closure of Tourist Motel in Wash. ---------------------------------------------------------------- The presence of asbestos is the biggest problem plaguing the Tourist Motel in Yakima, Wash., and could eventually force the hotel's owner to permanently close it, kimatv.com29 reports. Joe Caruso, Yakima City Code Enforcement Officer, said, "They have 30 days to get a contractor to start abating that before anything can be done in that building." And a lot has to be done before renters can move back in. There are electrical and fire safety issues and major roof damage. However, right now, it is the asbestos keeping everyone out. Joe Walkenhauer, consultant with Sun Pacific Service, said, "This is probably the type of respirator that we'd go in to start the cleanup." KIMA spoke with Sun Pacific Service, specialists in asbestos removal. Their assessment: the Tourist Motel faces a big and costly challenge. The owner is supposed to be back after Christmas. But even if he does not take responsibility, the manager will have to, by the city's deadline. ASBESTOS UPDATE: Seitz Remand Bid Ok'd in Case v. Bell, Northrop ---------------------------------------------------------------- The U.S. District Court, District of Delaware, granted Frederick and Mary Louise Seitz's Motions to Remand, in asbestos actions filed against Bell Helicopter Textron, Inc. and Northrop Grumman. The case is styled In re Asbestos Litigation: Frederick Seitz and Mary Louise Seitz, his wife, Plaintiff v. Adel Wiggins Group, et al., Defendants. District Judge Sue L. Robinson entered judgment in Civil Action Nos. 08-351-SLR and 08-353-SLR on Sept. 30, 2009. The Seitzes filed this asbestos action in the Superior Court of the State of Delaware for New Castle County on April 25, 2008. Mr. Seitz was allegedly exposed to asbestos while serving as a mechanic and pilot in the U.S. Marine Corps from 1946 through 1967, and was allegedly exposed to asbestos during that time. Northrop Grumman and Bell manufactured and supplied aircraft that Mr. Seitz maintained and piloted during his service in the Marines. The Seitzes alleged that Northrop Grumman's and Bell's aircraft had asbestos-containing components and utilized asbestos insulation. The Seitzes contend that defendants failed to warn Mr. Seitz and his fellow servicemen about the hazards of asbestos. According to his physician, in March 2008, Mr. Seitz was diagnosed with malignant mesothelioma. On July 2, 2008, the Seitzes filed a withdrawal of claims on July 2, 2008, limiting the scope of its case to a state law failure to warn claim. The Defendants' motion to stay was denied as moot and the cases were remanded to the Superior Court of the State of Delaware. Allen Dale Bowers, II, Esq., of the Law Offices of Joseph Rhoades, Esq., in Wilmington, Del., of Counsel, Jerome H. Block, Esq., Sharon J. Zinns, Esq., and Amber R. Long, Esq., of Levy Phillips & Konigsberg, LLP, in New York, represented the Seitzes. Penelope O'Connell, Esq., of Elzufon Austin Reardon Tarlov & Mondell, P.A. in Wilmington, Del., and Nancy Shane Rappaport, Esq., of DLA Piper U.S. LLP in Philadelphia represented Northrop Grumman Corporation. Robert K. Beste, III, Esq., of Smith, Katzenstein & Furlow, LLP in Wilmington, Del., of Counsel, M. Douglas Eisler, Esq., of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP in Philadelphia, represented Bell Helicopter Textron Inc. ASBESTOS UPDATE: Tex. Appeal Court Reverses Ruling in Smith Case ---------------------------------------------------------------- The Court of Appeals of Texas, Houston, First District, reversed the ruling of the 122nd District Court, Galveston County, Texas Trial Court, which ruled in favor of Oliver D. and Peggy Ann Bowen Smith in asbestos litigation filed against Union Carbide Corporation and Hexion Specialty Chemicals, Inc. The case is styled Union Carbide Corporation and Hexion Specialty Chemicals, Inc., Appellants v. Oliver D. Smith and Peggy Ann Bowen Smith, Appellees. Justices Terry Jennings, Elsa Alcala, and Laura Carter Higley entered judgment in Case No. 01-08-00641-CV on Oct. 1, 2009. Hexion was formerly known as Borden Chemicals, Inc., Borden, Inc., and The Borden Company. In 2005, Mr. Smith was diagnosed with mesothelioma, which was caused by his exposure to asbestos during his employment as a pipefitter and general laborer for numerous employers at numerous work sites throughout his career. The Smiths sued numerous defendants, including Union Carbide, the owner of one of the premises at which Mr. Smith worked as an independent contractor, and Hexion, a successor-in-interest to Smith-Douglas, one of Mr. Smith's former employers. The case proceeded to trial against Union Carbide and Hexion, and the jury found that the negligence of Union Carbide and Hexion caused Mr. Smith's mesothelioma. The jury further found Union Carbide two percent responsible and Hexion 50 percent responsible for Mr. Smith's mesothelioma. Finally, the jury found that Hexion was grossly negligent. Under the jury's verdict, the trial court entered judgment in favor of the Smiths and against Union Carbide and Hexion and awarded the Smiths damages in the amount of about US$150,000 against Union Carbide and US$4 million against Hexion. The Appeal Court reversed the trial court's judgment and rendered a take nothing judgment in favor of Union Carbide and Hexion. ASBESTOS UPDATE: Suffolk Builder Pleads Guilty to Cleanup Breach ---------------------------------------------------------------- Edward Thomas Webster, a builder from Suffolk, England, on Dec. 14, 2009, pleaded guilty at Ipswich Magistrates' Court to the deposit of chrysotile asbestos and to the transfer of the waste asbestos without a consignment note, according to an Environment Agency press release dated Dec. 15, 2009. Mr. Webster, trading as Preservation in Action, admitted to breaching the Environmental Protection Act 1990 and the Hazardous Waste Regulations 2005. He was fined a total of GBP350 and ordered to pay GBP250 towards Environment Agency costs. In March 2009, two Environment Agency officers inspected Mr. Webster's yard at Hazels Lane, Thorington, Suffolk, following reports that waste was being stored illegally. The officers found that the land was divided into three fields. All areas of the site contained pallets with materials for sale such as cleaned bricks, roof tiles, wood and old beams. Mrs. Anne-Lise McDonald, prosecuting, told the court that in one of the fields the officers saw a large pile of asbestos roofing sheets. In another field, the officers noted evidence that materials were being sorted for resale. They saw more asbestos roofing sheets lying in the undergrowth. On March 11, 2009, Nick Davis, an Environment Agency officer, returned to the site to take formal samples of the roofing sheets. Four samples were taken, two from each field, and all the samples were found to contain chrysotile asbestos. Mr. Davis wrote to Mr. Webster confirming the samples contained chrysotile asbestos and requesting that the material was removed to a suitably licensed facility. Mr. Webster later produced paperwork to show that 4,260 kilograms of asbestos had been taken to a suitable landfill site on April 30, 2009. Mr. Davis returned to the site on May 7, 2009 and saw the asbestos had been removed. Mrs. McDonald told the court, "While there was no evidence of direct impact to the environment, the waste had an impact on the visual amenity of the area." She went on to say, "Mr. Webster deliberately brought the waste asbestos onto his land. However, it does not appear that the offending was deliberate." The magistrates said that the fine and costs were limited by Mr. Webster's ability to pay. After the hearing, Environment Officer, Nick Davis, said, "It is very important that waste, particularly hazardous waste such as asbestos, is dealt with appropriately. Regulations are in place to ensure that waste is dealt with in a responsible manner whilst protecting people and the environment from harm." Mr. Davis further added, "The Environment Agency has, and will continue to take appropriate enforcement action against people or companies who attempt to bypass the regulations in order to gain an advantage in business. If people are unsure as to how to deal with the waste they produce they should contact the Environment Agency for appropriate advice and guidance." ASBESTOS UPDATE: South Oxhey Resident's Death Linked to Exposure ---------------------------------------------------------------- A Dec. 16, 2009 inquest, at the Hatfield Coroners' Court, heard that the death of Thomas Price, an 84-year-old resident of South Oxhey, Watford, England, was related to workplace exposure to asbestos, the Watford Observer reports. Mr. Price's exposure to asbestos began while in the Royal Navy during the 1940s. He then worked as an engineer where he was responsible for mixing asbestos for use in construction. Mr. Price received medical treatment at Watford General Hospital throughout August 2009 after deterioration in his weight and health. The inquest heard that Mr. Price was admitted to hospital on Oct. 29, 2009 and suffering from worsening breathlessness and confusion and was offered palliative care. He died on Nov. 1, 2009 at Watford General Hospital. Mr. Price's cause of death was listed as malignant mesothelioma, which Coroner Edward Thomas said was attributable to his significant exposure to asbestos throughout his working life. He recorded a verdict of industrial disease. ASBESTOS UPDATE: Sebring Engineer Filed OSHA Complaint on Dec. 9 ---------------------------------------------------------------- On Dec. 9, 2009, Rick Solis, an engineer who was one of 27 employees laid off in October 2009, filed an asbestos-related Occupational Safety & Health Administration (OSHA) complaint, the Highlands Today reports. OSHA notified Highlands County on Dec. 9, 2009 that Mr. Solis was alleging discriminatory employment practices in violation of the Pipeline Safety Improvement Act, the Asbestos Hazard Emergency Response Act and the Toxic Substance Control Act, and retaliation in violation of the Surface Transportation Assistance Act and the OSHA Act. The county has 20 days to respond in writing. Highlands County public information officer Gloria Rybinski said Mr. Solis was one of four engineers laid off when Highlands County cut its budget by US$15 million. The county is accused of whistleblower retaliation, said a letter from Mr. Solis' attorney, Daniel A. Perez, Esq., of Melbourne. In a letter to OSHA dated Oct. 23, 2009, Mr. Perez said, "Mr. Solis was terminated for making complaints of unsafe removal, handling, and disposal of pipes containing asbestos. Mr. Solis was laid off shortly after complaining about the way Highlands County was removing, handling, pulverizing and disposing of pipes containing asbestos." On Nov. 30, 2009, the Department of Environmental Protection concluded that the asbestos pipes removed in the Sebring Parkway Project were within the legal limit. The project involved about 6,700 feet of asbestos water pipes, of which 229.9 feet of asbestos pipes were removed. The legal limit is 260 feet. The DEP's report stated, "As of Nov. 18, 2009, the Department has not discovered any violations of the aforementioned regulations." About 85 asbestos samples were collected in two months along the Sebring Parkway and from the Highlands County Landfill. ASBESTOS UPDATE: Bethlehem Work Exposes 100 Students to Asbestos ---------------------------------------------------------------- A rehabilitation project at Bethlehem Area Vocational-Technical School in Bethlehem, Pa., exposed about 100 students to asbestos and some parents were furious when they found out, The Express- Times reports. The students spent two months rehabbing the inside of a home in Bethlehem Township. On Dec. 15, 2009, an asbestos consultant told teachers, parents and students of the school that the kids were exposed to "an extremely low" level of asbestos in the basement of the home. The school is checking why teachers and students were not properly notified about the asbestos, according to the report. ASBESTOS UPDATE: Thieves Exposed to Asbestos in Nottinghamshire --------------------------------------------------------------- Thieves were told they could have exposed themselves to asbestos after stealing copper pipes from a skip in Nottinghamshire, England, BBC News reports. The theft occurred between the evening of Dec. 14, 2009 and the morning of Dec. 15, 2009 in Coventry Road, Bulwell. The skip had copper, which was being used by contractors who were demolishing a former health center. The thieves cut the lock on the skip which was sealed to protect members of the public from asbestos dust. The thieves were urged to seek health advice as soon as possible. ASBESTOS UPDATE: Community Seeking Answers on Summerlin Project --------------------------------------------------------------- Residents of a community in Fort Myers, Fla., Whiskey Creek, seek answers following the discovery of asbestos in concrete pipes at the Summerlin Road project, WINK News reports. A Dec. 15, 2009 meeting was scheduled to address the situation. About 50 people were expected to attend. ASBESTOS UPDATE: Court OKs Careys' Motion to Remand Viad Suit ------------------------------------------------------------- The U.S. District Court, District of Massachusetts, granted Edward F. and Margaret Carey's Motion to Remand an asbestos lawsuit filed against Viad Corp. and various other defendants. The case is styled Edward F. Carey and Margaret Carey, Plaintiffs v. Viad Corp. et al., Defendants. U.S. District Judge Gertner entered judgment in Civil Action No. 09cv10530-NG on Sept. 28, 2009. The Careys brought this personal injury suit against manufacturers of asbestos-containing equipment in Massachusetts state court. According to the Complaint, Mr. Carey worked with and in close proximity to the defendants' asbestos-containing products as a sheetmetal worker at the Fore River Shipyard in Quincy, Mass., from 1949 to 1952. He also worked at various commercial and industrial sites in Massachusetts from about 1955 to the 1970s. Mr. Carey's exposure to asbestos allegedly caused him to develop colon cancer, asbestosis, and other asbestos-related diseases. Viad removed the case from Middlesex Superior Court to this Court. According to Viad, during the time when its actions allegedly led to Mr. Carey's exposure to asbestos, it was acting under the government's instructions as a federal contractor. ASBESTOS UPDATE: La. Court Affirms Ruling in Boudreaux's Lawsuit ---------------------------------------------------------------- The Court of Appeal of Louisiana, Third Circuit, upheld the ruling of the Fifteenth Judicial District Court, Parish of Vermilion, which favored defendants in asbestos litigation filed by Patsy Jane Boudreaux on behalf of Lloyd Joseph Boudreaux, Jr. The case is styled Patsy Jane Boudreaux, et al. v. Able Supply Company, et al. Judge Sylvia R. Cooks entered judgment in Case No. 08-1350 on Oct. 7, 2009. This litigation involved the survival and wrongful death claims filed by Mrs. Boudreaux and her children. It was alleged Mr. Boudreaux contracted, and subsequently died from, malignant mesothelioma resulting from asbestos exposure. Plaintiffs alleged Mr. Boudreaux sustained significant occupational exposure to asbestos from the 1950s to the 1970s as an insulator at various worksites in Texas and Louisiana. Plaintiffs originally filed suit first in the U.S. District Court for the Eastern District of Texas. After Mr. Boudreaux's death in 2007, plaintiffs filed suit in Vermilion Parish, La., against 54 corporate defendants. One of the defendants, American Cyanamid filed an Exception of Improper Venue and a Motion to Dismiss for forum non conveniens, asserting that Texas is a more appropriate forum. Many other defendants joined in and other defendants filed similar exceptions and motions to dismiss. Some defendants filed exceptions to personal jurisdiction. Following a hearing, the trial court granted the parties additional time to conduct discovery limited to the facts pertaining to the forum non conveniens issues. When the discovery was complete, another hearing was held at which American Cyanamid filed Plaintiffs' discovery responses in the record as evidence. The trial court granted the forum non conveniens motion and dismissed the action without prejudice, reserving plaintiffs the right to re-file the action in a court of competent jurisdiction within 60 days of the rendition of the judgment. The dismissal was also conditioned upon all defendants waiving any defense based upon prescription that matured since commencement of the action in Louisiana. The trial court concluded all of the private and public interest factors weighed heavily in favor of dismissal and the plaintiffs' slim connection to Vermillion Parish did not justify the burden on the court and the taxpayers of the parish to support the suit. The trial court did not render any judgment on the exception of improper venue. Plaintiffs appealed. The judgment was affirmed. ASBESTOS UPDATE: Miss. Court Denies Attorneys' Fees in Broussard ---------------------------------------------------------------- The Court of Appeals of Mississippi, on Oct. 20, 2009, affirmed the ruling of the Warren County Circuit Court, which denied Illinois Central Railroad Company's motion for attorneys' fees and expenses in an asbestos lawsuit filed on behalf of Edwin L. Broussard. Case No. No. 2007-CA-01010-COA is styled Illinois Central Railroad Company, Appellant v. Edwin L. Broussard, Appellee. On April 12, 2006, a complaint was filed in the Warren County Circuit Court on behalf Mr. Broussard. The complaint alleged claims for personal injuries as a result of Mr. Broussard's exposure to asbestos while he was an employee of Illinois Central. In response, Illinois Central filed an answer, along with its requests for discovery. Illinois Central later filed a motion to compel after its requests for discovery went unanswered. After conducting an independent investigation, Illinois Central discovered that Mr. Broussard was deceased at the time the lawsuit was filed. Mr. Broussard died on Aug. 3, 2004, which was about one year and eight months before the complaint was filed on April 12, 2006. On April 27, 2007, Illinois Central filed a motion to dismiss and a motion for attorneys' fees and expenses. On May 2, 2007, Mr. Broussard's attorneys filed a motion to withdraw as counsel and cited Mr. Broussard's failure to respond to mail correspondence and to phone calls as the grounds for the motion. The circuit court granted Illinois Central's motion to dismiss. However, Illinois Central's request for attorneys' fees was denied because the circuit court determined that the plaintiff's attorneys were not guilty of "the type of egregious conduct required by the Act and Rule 11 so as to warrant the assessment of attorney[s'] fees and expenses." It is from that denial of attorneys' fees that Illinois Central appealed. Finding no error, the Appeals Court affirmed. ASBESTOS UPDATE: N.Y. Supreme Court Issues Ruling in Ames Claim --------------------------------------------------------------- The Supreme Court, Appellate Division, First Department, New York, issued rulings in the case styled In re New York City Asbestos Litigation, Jamie Ames, Plaintiff-Respondent v. Kentile Floors Inc., Defendant-Appellant. Judges Gonzales, Saxe, Catterson, McGuire, and Acosta entered judgment in the case on Oct. 29, 2009. On June 24, 2009, the Supreme Court, New York County, denied Kentile's motion for a protective order and confirmed the Dec. 3, 2008 ruling of the Special Master regarding production of certain materials associated with tests conducted by Kentile's withdrawn expert. In this negligence and strict products liability action in the New York City Asbestos Litigation, the court did not abuse its discretion in ordering the production of certain tiles, boxes, videos and photographs. Although the Oswald case had been settled, the appeal with respect thereto had been withdrawn and its expert had been withdrawn, there remained other ongoing Kentile asbestos litigation. Thus, the motion court had full authority, under the controlling Case Management Order, to issue its discovery order pertaining to ongoing cases involving Kentile, including this case. Furthermore, Mr. Ames demonstrated the "special circumstances" or "undue hardship" necessary to support an entitlement to expert disclosure beyond the statutorily required summary of the expert's opinions. The items at issue, tiles sold prior to 1986, the boxes in which they were stored, and photographs and videos thereof, could not be obtained on the open market, and the withdrawal of Kentile's expert did not affect the disclosure requirement as the items were not work-product prepared in anticipation of litigation. The Court considered Kentile's remaining arguments, including that the motion court ignored its motion for a protective order, and found them unavailing. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. 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