Levy Konigsberg Wins Motion on Behalf of U.S.S. Roan Navy Veteran Who Developed Mesothelioma in New York


On March 21, 2016, Levy Konigsberg LLP defeated summary judgment motions filed by two defendants in an asbestos mesothelioma case pending in the United States District Court for the Northern District of New York. (Pearl Osterhout v. Crane Co et al., 5:14-CV-208). In a 47 page Order issued by Judge Mae A. D’Agostino, the Court denied two summary judgment that were based on a legal defense known as the “bare metal defense”. According to the decision, the defendants Foster Wheeler and Crane Co. argued that they had no duty to warn the Plaintiff Robert Osterhout about the hazards of asbestos associated with the use of their products. Mr. Osterhout, who encountered defendants’ asbestos products on the U.S.S. Roan while serving in the United States Navy in the late 1940s and early 1950s, ultimately developed mesothelioma shortly before filing the lawsuit in 2014. After the case was filed and Mr. Osterhout testified in a sworn deposition, he died from the asbestos-related cancer.

In its Order, the Court concluded that “a reasonable jury could find that Foster Wheeler and Crane Co. had a duty to warn about the hazards of asbestos exposure resulting from work on their products.” See Order at p. 27. One of the defendants, Foster-Wheeler also moved for dismissal based on a separate legal defense known as the “government contractor defense”. But the Court denied Foster-Wheeler’s motion on this ground as well, concluding that “Foster Wheeler has failed to provide relevant evidence that the Navy prohibited it from providing warnings on its boilers or in the accompanying instruction manual.” See Order at p. 18.

Both companies also moved to strike the testimony of Dr. Steven Markowitz, a New York physician specializing in occupational and environmental medicine. Specifically, the defendants challenged Dr. Markowitz’s opinion that Mr. Osterhout’s cumulative exposure to asbestos caused his mesothelioma. The Court, however, concluded that “Dr. Markowitz’s ‘cumulative exposure’ theory is sufficiently reliable to meet the admissibility standard of Rule 702 and Defendants’ arguments to the contrary are more appropriately reserved for cross examination.” See Order at p. 45.

Jerome H. Block, a partner with Levy Konigsberg LLP and his asbestos litigation team represent Mrs. Pearl Osterhout, who is continuing the lawsuit on behalf of herself and the estate of her husband.

In 2008, Mr. Block previously won a $ 5 million jury verdict on behalf of another man, Douglas Pokorney, who also served aboard the same Navy ship, the U.S.S. Roan. (Douglas Pokorney v. Foster Wheeler, No. 2006-3087, N.Y. Sup. Ct., Onondaga County). Mr. Block also represents the family of another man, Arthur Hammell, who served on the U.S.S. Roan and died from mesothelioma. The case of Mr. Hammell is currently being considered by the U.S. Court of Appeals for the Third Circuit (Linda Hammell, Individually and as Executrix of the Estate of Arthur Hammell v. CBS Corp., et al., 15-2643).