In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendants Hennessy Industries and Caterpillar Incorporated moved to apply Kansas law and for summary judgment.

The court granted in part Hennessy’s motion and dismissed the plaintiff’s complaint. The court found that Kansas law “possesses the most significant relationship to these parties and causes of actions.” In its assessment, the court reviewed four factors: the place of exposure and diagnosis, where the conduct causing the injury occurred, the principal place of business and domicile of the parties, and the focal point of the parties’ relationship. The court found all four factors favored the application of Kansas law and pointed out that the focal point of the parties’ relationship was the most important factor on the issue of liability in an asbestos-exposure case.  As the court held: “Applying this reasoning here, it is clear that the relationship between Hennessy and Plaintiffs was centered in Kansas. Mr. New only came in contact with Ammco’s products through his employment with various Kansas-based automotive part and mechanic shops. This particularly weighty contact tips the scales heavily in favor of applying Kansas law.”

After determining that Kansas law applied, the court ruled that the plaintiff failed to satisfy the prima facie elements of the Kansas Silica and Asbestos Claims Act (KSACA). Under the KSACA, the court said: “…the plaintiff must show that he received ‘a diagnosis by a competent medical authority that [his] asbestos-related cancer was proximately caused by asbestos exposure.’ Kan. Stat. Ann. § 60-4902(c)(3). An individual qualifies as a ‘competent medical authority’ if, among other things, he ‘has or had a doctor-patient relationship with the exposed person, or in the case of a board-certified pathologist, has examined tissue samples or pathological slides of the exposed person at the request of the treating physician….’Id. § 60-4901(o)(2). The plaintiff must prove these requirements by submitting a written report with supporting test results within sixty days of filing suit. Id. § 60-4903(a). If the plaintiff fails to make this showing, then the Court must dismiss the case without prejudice. Id. § 60-4903(c).”  The court dismissed the case against Hennessy, finding no evidence that the plaintiff’s expert pathologist, Dr. James Strauchen, had any kind of doctor-patient relationship with Mr. New.

Defendant Caterpillar, however, fared differently. The court denied its motion to apply Kansas law, holding that “Missouri boasts the most significant relationship to Plaintiffs’ claims against Caterpillar.” The court gave Caterpillar additional time to submit a supplemental brief on the choice of law argument and  went on to withhold a ruling on Caterpillar’s causation arguments until after the Daubert challenge to Dr. Strauchen is resolved.

Read the first decision here.

Read the second decision here.

If you have questions about how this decision may impact your business, please contact:

• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
• Susan E. Van Gelder (716.566.5463; svangelder@goldbergsegalla.com)
• Lynn A. Lehnert (314.446.3359; llehnert@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Toxic Torts Practice Groups