Carriers defending against asbestos claims—and possibly other long-tail claims such as those involving silica, benzene, and talc—would be wise to review the Keasbey case to identify strategies for limiting coverage. Cont’l Cas. Co. v. Emp. Ins. Co. of Wausau, 871 N.Y.S.2d 48 (N.Y. App. Div. 2008) (Keasbey). There, the court found that “one indisputable fact . . . to emerge from [the] medical evidence . . . is that actual injury . . . does not occur upon [initial] exposure to asbestos.” Id. at 62. This ruling, which has implications for trigger of coverage, nonproducts coverage, allocation, and corporate succession, has been underused by insurers litigating asbestos coverage issues, especially given that since the Keasbey trial, which was held in 2005, the medical evidence has become stronger that “bodily injury” does not occur at or soon after initial exposure.
Tort actions involving pharmaceuticals and medical devices usually involve state law claims, and therefore, diversity jurisdiction is often the only way to proceed in a federal court. Plaintiffs, however, may join doctors, sales representatives, hospitals, or pharmacies as nondiverse defendants, or in some cases, they may even join multiple plaintiffs from several states to defeat diversity jurisdiction. Because defendants most often prefer to litigate in federal courts, fighting the joinder of these nondiverse defendants is critical.
In the recent case of Arora v. Whirlpool Canada LP,  S.C.C.A. No. 498, the Supreme Court of Canada has refused leave to appeal the decision of the Ontario Court of Appeal which determined that plaintiffs cannot recover for pure economic loss resulting from the negligent design of a non-dangerous product.