Recently, a disgruntled former UPS employee, whose employment had been terminated, opened fire at the UPS facility in Alabama, killing two employees before killing himself. Tragically, not a day seems to go by without some media report of gun violence in this country. While any level of gun violence, where innocent lives are taken, stirs contentious debate on the issue of the “right to bear arms,” gun violence at the workplace presents special challenges to employers aiming to prevent becoming a part of the statistic and the evening news. The debate over who should carry guns and under what conditions or restrictions has created a platform for dialog concerning gun regulation and safety. In response, many states have passed more comprehensive gun legislation, which may make it more difficult or easier for employers seeking to keep their workplace safe, depending on which side of the gun debate you are on.
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.