Summary Judgment Granted in Two Delaware Asbestos Cases

Marks, O’Neill’s Delaware office obtained favorable summary judgment rulings in two asbestos matters pending in the Superior Court of the State of Delaware, New Castle County. The motions were presented by Eileen Ford, Esquire with significant and substantial drafting assistance from Riley MacGray, Esquire.   

In both matters, Plaintiffs alleged exposure to asbestos from their time serving in the US Navy. Summary judgment motions were filed on the basis that there was insufficient product identification to meet the initial element of Maritime law, namely that the plaintiff was exposed to a product manufactured by the defendant (i.e. Lindstrom factors). Plaintiffs opposed both motions on the basis that the record contained adequate evidence of Plaintiffs’ work with and/or around the defendants products, however, spent the majority of their oppositions arguing that  pursuant to Air & Liquid Sys. Corp v. DeVries, the 2019 United States Supreme Court ruling, the duty to warn factors are primary  factors to be considered, before  the Lindstrom product nexus and substantial factor requirements are addressed.  The Superior Court Judge disagreed and ruled that it did not need to reach the DeVries analysis because there is insufficient evidence that Plaintiff met  the first element of Lindstrom (i.e. no evidence of exposure to defendants product).

Despite Second Bite at the Apple, Legal Malpractice Claims Remain Dismissed Now With Prejudice

Sean Kelly and Melissa Brown of Marks O’Neill’s New Jersey office were successful in obtaining dismissal of legal malpractice claims arising from our client’s representation of the plaintiff in complex commercial litigation.  Following that ruling, Plaintiff filed an amended complaint seeking to cure the causation deficiencies recognized by the District Court between our client’s representation and the alleged damages.  The Amended Complaint sought damages in excess of $50 million dollars.  We sought dismissal of the Amended Complaint arguing that Plaintiff’s claim that a court would have ruled differently but for the alleged negligence of our client failed to establish a proximate causal relationship.  The District Court agreed and dismissed the Amended Complaint with prejudice.

Common Law Negligence Claims Dismissed in Negligent Instruction Case

Melissa Brown and Jonathan Stuckel of Marks O’Neill’s New Jersey office were successful in obtaining dismissal of common law negligence claims against a fitness center and instructor.  Plaintiff alleged that she was injured while participating in an aggressive fitness class taught by our client.  Prior to purchasing her membership and participation in the class, Plaintiff executed two waivers of liability.  Relying on the waivers, we moved to dismiss Plaintiff’s common law negligence claims arguing that the claims were barred by Plaintiff’s affirmative waiver of the right to recovery.  The court agreed and dismissed Plaintiff’s common law negligence claims with prejudice.   


Karen M. Lager and Anna Mandel of Marks, O’Neill, O’Brien, Doherty & Kelly, P.C.’s New York City office secured dismissal of plaintiff’s complaint in its entirety in a legal malpractice matter venued in New York State Supreme Court, New York County. Plaintiff, a former client of the insured law firm, commenced an action for legal malpractice and breach of fiduciary duty against the insured and individually-named attorneys in connection with the insured’s representation of plaintiff in an underlying housing court proceeding and underlying Supreme Court action related to the transfer of shares appurtenant to a cooperative apartment in Manhattan. Following Marks, O’Neill’s CPLR § 3211 motion to dismiss the complaint based upon documentary evidence and for failure to state a claim, and after oral argument, Hon. Anthony Cannataro dismissed the complaint in its entirety on the grounds that plaintiff failed to plead a plausible cause of action for legal malpractice as but-for causation was lacking in that, among other things, the evidence adduced at the underlying trial demonstrated that plaintiff acquired shares by fraud, and plaintiff’s breach of fiduciary duty claim was duplicative of plaintiff’s legal malpractice claim. Therefore, the defendants’ failure to secure a favorable verdict was not actionable.