Kentucky Court of Appeals
Multiple Tortfeasors - Apportionment - Dismissed Parties
Smith v. Bargo, 357 S.W.3d 224, 2012 WL 4502074 (Ky.App. September 30, 2011)

The Court held that apportionment was proper against a party who had been granted directed verdict after opening statement where the co-defendants offered proof of the parties negligence subsequently. The directed verdict was based on comments by counsel that no proof would be offered against that party. The Court went on to hold that it was error to enter judgment against the dismissed party, limiting the ruling to apportionment.

Sixth Circuit Court of Appeals
Product Liability – Asbestos - Causation
Moeller v. Garlock Sealing Technologies, LLC., 660 F.3d 950, 2011 WL 4408448 (6th Cir. September 28, 2011)

Garlock manufactured asbestos containing gaskets, and the Plaintiff’s decedent worked with them from about 1962 to 1970. There was also proof that the decedent also sustained significant exposure to asbestos insulation between 1962 and 1975. Plaintiff offered the testimony of qualified medical doctor that the decedent’s exposure to asbestos from gaskets, along with other exposures, contributed to the decedent’s mesothelioma. Plaintiff also offered the testimony of a treating oncologist that if the decedent worked for many years scraping and grinding asbestos gaskets and if he breathed those fibers then that exposure would have caused his cancer. The Court rejected the this expert testimony as insufficient because the asbestos expert never suggested that the exposure from gaskets was a substantial factor, and there was no showing that the treating doctor was qualified with respect to asbestos.

The Court also considered whether the circumstances would support a finding of causation. The Court held that such a finding would not be supported where, as here, the Plaintiff failed to quantify the exposure from Garlock gaskets coupled with the fact that the decedent has significant exposure to asbestos from other sources.

Kentucky Court of Appeals
Damages – Role of Corporate Lost Revenue in Calculating Lost Wages
Buda v. Schuler, 352 S.W.3d 350, 2011 WL 4408448 (Ky.App. September 23, 2011)

Shuler was a Chiropractor and practiced in the name of a for profit corporation. He received $5000 per month for his base salary, but claimed his actual lost earnings were more because he was unable to work for the corporation. The Court referred to Restatement (Second) of Torts sec. 924, which draws a distinction between business earnings from work as opposed to capital. The Court held that since his labor was the sole source of income for the business, the jury could consider lost business in calculating lost wages.

Sixth Circuit Court of Appeals
Product Liability – Liability for the Product of Others
Smith v. Wyeth, Inc., 657 F.3d 420, 2011 WL 4389211 (6th Cir. September 21, 2011), petition for writ of certiorari denied 132 S.Ct. 2103 (April 30, 2012)

The Court affirmed a summary judgment in favor of various name brand manufacturers of a drug for gastroesophageal reflux disease because the plaintiff had only consumed a generic version of the drug. The basis for the ruling was that an essential element of a product liability claim is that the claimant used the defendant’s product.

Sixth Circuit Court of Appeals
Product Liability - Preemption of Generic Drug Labeling
Smith v. Wyeth, Inc., 657 F.3d 420, 2011 WL 4389211 (6th Cir. September 21, 2011), petition for writ of certiorari denied 132 S.Ct. 2103 (April 30, 2012)

The Sixth Circuit, applying the recent U.S. Supreme Court case of PLIVA, Inc. v Mensing, 564 U.S. __, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), held that claims against the manufacturer of a generic drug based on inadequacy of the warnings are preempted by federal law.