In re: West Virginia Asbestos Litigation (Abbott v. A-Best Products Co.)

in

In re: West Virginia Asbestos Litigation (Abbott v. A-Best Products Co.)

Dan Markewich and Ellen Margolis have continued their string of successes in the field of railroad asbestos litigation with the U.S. Supreme Court's October 2, 2006 refusal to review the West Virginia Supreme Court's dismissal of state-law products liability claims brought on behalf of numerous railroad workers against a former manufacturer of locomotives containing asbestos materials. In this case as in the others - briefed by Ellen, Dan, and Amy Kallal and argued by Dan - the West Virginia courts ruled in favor of MCW&G's client, Viad Corp, that the plaintiffs' state-based causes of action were barred by federal field preemption principles under the Locomotive Boiler Inspection Act ("BIA"), and that the workers' sole remedy was against their employers, under the Federal Employers' Liability Act ("FELA").

Following a successful "friend of the court" brief before California's highest court in 1999, MCW&G first prevailed on this issue in a case of initial impression in New York State late in 2000 before Supreme Court Justice Helen Freedman, assigned to the citywide asbestos court, whose opinion - Seaman v. A.P. Green Ind., Inc. - has become one of the leading published decisions in the field of BIA preemption, along with the other MCW&G cases named herein. In 2001 MCW&G won similar victories before the Delta County, Michigan district court and the assigned asbestos judges in Cleveland, Ohio and Louisville, Kentucky. Another such motion was argued by MCW&G before the Minnesota asbestos judge in St. Paul in the Summer of 2006 and is still undecided.

Following MCW&G's submission of a brief opposing certiorari in the Cleveland case - Darby v. A-Best Products Co. - which had been affirmed by Ohio's 8th District Court of Appeals in 2002 and the Ohio Supreme Court in 2004, the U.S. Supreme Court declined to review that case early in 2005. The recent denial of review in the West Virginia case followed MCW&G's successful argument on certified issues before that state's highest court in late 2003, subsequent dismissal of the case by the trial court in 2005, and MCW&G's filing of a brief opposing certiorari in the U.S. Supreme Court.