Products Liability Law Reporter

A federal district court held that joinder of several general contractors that may have subcontracted with a worker’s former employer was unnecessary in a wrongful death action arising out of the workers’ asbestos exposure and mesothelioma.

James Hill Sr. was allegedly exposed to asbestos while working as an insulator in the 1970s and 1980s. After Hill’s death, his estate brought a South Carolina state court lawsuit against 60 manufacturers, general contractors, and premises owners, including Mallinckrodt LLC, which owned and operated a facility where Hill had worked. The plaintiff subsequently agreed to dismissal of all of the South Carolina claims against Mallinckrodt and sued the company and two other entities in North Carolina federal district court. The plaintiff also settled with the general contractors and released all further claims against them.

Mallinckrodt moved to dismiss based on the plaintiff’s failure to join necessary and indispensable parties under Fed. R. Civ. P. 19. The defendant argued that because the plaintiff’s allegations against it dealt with the safety of a subcontractor’s employee, the general contractors that exercised control over the various worksites are necessary and indispensable parties under Rule 19.

Denying the motion, the district court noted that it is necessary to join the general contractors here if they are “required” parties under Rule 19(a). An entity is required where its absence would prevent a court from affording complete relief among existing parties or where disposing of the action absent that entity would impair the entity’s ability to protect its interest or create an inconsistent obligation.

The court considered the defendant’s argument that the general contractors are integral to its ability to present a complete defense. Citing case law, the court found that it is unnecessary for all joint tortfeasors to be named as defendants in a single lawsuit, although inclusion of all joint tortfeasors in a single suit is permissible. The plaintiff and the general contractors have already settled, the court said, and the defendant is in the exact same defense position as it would have been had the settlement occurred in a lawsuit in which it and the contractors were named as joint tortfeasors. The contractors’ interests were protected through their participation in and settlement of the South Carolina action, the court found.

Consequently, the general contractors’ participation here is not necessary for just adjudication of the plaintiff’s claims, and dismissal is therefore not warranted.

Citation: Hill v. Mallinckrodt LLC, 2020 WL 956589 (M.D.N.C. Feb. 27, 2020).

Plaintiff counsel: AAJ members Jonathan M. Holder and Lisa W. Shirley, both of Dallas; and AAJ member William M. Graham, Salisbury, N.C.

Comment: See also Hart v. Keenan Properties, Inc., 2020 WL 2563836 (Cal. May 21, 2020). There, the California Supreme Court held that an appellate court’s reversal of a plaintiffs’ verdict in an asbestos exposure case was improper. The court held that a witness’s observation of a pipe distributor’s name and logo printed on delivery invoices constituted evidence of identity, not proof of the matters asserted or hearsay. AAJ members David L. Amell, Marissa Y. Uchimura, Denyse F. Clancy, and Ted W. Pelletier, all of Oakland, Calif., represented the plaintiffs in this case.

In Eckrich v. A.O. Smith Water Prods. Co., 2020 WL 2219965 (N.Y. Sup. Ct. New York Cty. May 4, 2020), Thomas Eckrich developed mesothelioma and died of his disease over a year later. Suit against ECR International, Inc., alleged liability for Eckrich’s injuries, which, the plaintiffs claimed, resulted from his exposure to asbestos while working as a pollution control engineer near other workers who maintained asbestos-containing boilers. ECR moved for summary judgment based on the plaintiffs’ failure to provide evidence that Eckrich had been exposed to asbestos-containing products manufactured, sold, or distributed by ECR. Denying the motion, the trial court found that in the New York Asbestos Litigation, a plaintiff is not required to show the exact cause of his or her damages, just prove the facts and conditions from which the defendant’s liability may reasonably be inferred. Among other evidence, the plaintiffs offered Eckrich’s deposition testimony identifying Utica-brand ECR boilers that he saw during the time of his alleged exposure. Additionally, the plaintiffs offered the testimony of a Utica corporate representative, who testified about asbestos-containing components and insulation in Utica boilers. Thus, the court concluded that the plaintiffs raised issues of fact to be resolved at trial. Ambre Brandis, New York City, represented the plaintiffs.