West Virginia Record

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Federal court judges in separate jurisdictions remand asbestos cases removed as trials began

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By The West Virginia Record | Feb 27, 2020

General court 05

CHARLESTON – Defendants interrupted four asbestos trials in February by removing them from state courts to federal courts.

The tactic failed every time. 

U.S. District Judge Irene Berger of the Southern District of West Virginia remanded three cases back to Kanawha Circuit Court. Similarly, U.S. District Judge Staci Yandle of the Southern District of Illinois also remanded a case back to Madison County.


Berger

The West Virginia action started Feb. 10 as First Circuit Judge Ronald Wilson began trials for about 20 plaintiffs. Wilson, who works in the northern panhandle, has been appointed by the state Mass Litigation Panel to oversee the asbestos personal injury cases He sets three such trial dates a year, and wrote this year that parties settled about 1,140 mesothelioma cases and 500 lung cancer cases in his court in 19 years. 

On the trial date, the defendants learned that Vimasco Corporation of Nitro moved for summary judgment Feb. 7. The plaintiffs had named Vimasco as a defendant but hadn’t developed the claim and didn’t plan to put Vimasco on trial. 

Three defendants removed cases Feb. 11, claiming plaintiffs fraudulently joined Vimasco to involve a West Virginia defendant and defeat federal jurisdiction. 

J-M Manufacturing removed a case filed by the estate of Lyle Swiger that originally included 77 defendants. J-M counsel Mark Hayes of Charleston wrote that all defendants settled except J-M, Core & Main, Mueller Company and Vimasco. 

Hayes wrote that Wilson “specifically indicated that he was not ruling on Vimasco’s pending motion for summary judgment, that there would be four defendants at trial, but that there would only be evidence put on as to three defendants.” 

Greyhound Bus Lines removed a case filed by Raegena and Paul Boggs that originally listed 55 defendants.  Greyhound counsel Raj Shah of Charleston wrote that all parties settled or were dismissed except Greyhound, Arvin Meritor, Carlisle Companies and Vimasco. 

“Vimasco has been improperly joined in this action, so the citizenship of this defendant must therefore be ignored for jurisdictional purposes,” Shah wrote. “There is no evidence that Ms. Boggs was exposed to a product for which Vimasco is responsible.”

Truck maker PACCAR removed a case filed by Gilbert and Francis Puffinberger that originally included 71 defendants. PACCAR counsel Jay Evans of Pittsburgh listed among the remaining parties his client, Daimler Trucks, Pep Boys, Arvin Meritor, Leslie Equipment, and Vimasco. 

He alleged fraudulent joinder not only of Vimasco but also of Leslie Equipment, a John Deere dealer in West Virginia and Kentucky. 

“Plaintiffs cannot possibly prevail as to any cause of action against Vimasco or Leslie Equipment Company,” Evans wrote. 

Plaintiffs filed emergency motions to remand the cases to Wilson. 

For the Swiger estate, John David Hurst of Motley Rice in Morgantown wrote that Vimasco currently was active in the matter. He wrote that the estate had a demand for settlement outstanding to Vimasco and that J-M improperly acted as if it were the judge in analyzing the merits of the estate’s legal claims against Vimasco. 

For the Boggses and the Puffinbergers, Scott McGee of Morgantown wrote, “The state court judge has indicated that he is keeping the jury.” 

Berger remanded the cases to Wilson on Feb. 12 and 13. 

She wrote that the position of defendants that she should resolve summary judgment between West Virginia litigants, turning on disputes regarding facts and evidence, fell short of the standard for fraudulent joinder. 

Wilson resumed the trials and all parties settled. 

In Illinois, Stobbs started trial Feb. 19 for Arlan Wieland and Dian Wieland in a case they originally filed against 62 defendants. 

Automotive component maker Arvin Meritor removed it on that date. Arvin Meritor counsel Brian Myers of St. Louis wrote that the remaining parties were his client and PACCAR. 

“As such, the basis for removal has only become apparent within the last 24 hours,” Myers wrote. 

Allyson Romani, representing the Wielands, filed an emergency motion Feb. 20, saying Caterpillar, an Illinois citizen, was an active defendant.     

She wrote that although plaintiffs and Caterpillar engaged in negotiations, they hadn’t reached agreement. 

Myers disputed that on the same date, claiming Caterpillar’s counsel advised him that an agreement was reached. He moved for permission to conduct discovery on facts relevant to removal. 

Yandle denied the motion on that date and remanded the case to Stobbs. 

She found the Wielands and Caterpillar hadn’t reached agreement and the state court docket listed Caterpillar as an active defendant. 

The trial resumed Feb. 25 with jury selection.

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U.S. District Court for the Southern District of West Virginia Charleston Division