Asbestos lawsuit to stay in federal court

By Nicholas Malfitano | Jun 27, 2015

Judge Gerald J. Pappert  

ALLENTOWN – An asbestos lawsuit will not be returning to the Philadelphia County Court of Common Pleas, according to a recent order from a federal judge.

Judge Gerald J. Pappert ruled June 10 an action brought by Clayton, N.J., residents Kenneth E. McAfee and Shirley McAfee against a number of corporations, including Morton Grove, Ill.-based John Crane Inc., would remain in the U.S. District Court for the Eastern District of Pennsylvania.

The McAfees first filed a lawsuit against 49 defendants in November 2013 in the Philadelphia County Court of Common Pleas, believing Kenneth was exposed to asbestos-containing products from all defendants, through his 41-year work history as a member of the U.S. Navy, laborer, assembler, mail carrier, rigger foreman, clerk and honor guard.

Due to the diversity of citizenship between the many parties involved, the damages sought being in excess of $75,000, and defendants such as Westinghouse and General Electric utilizing the government contractor defense (raising federal questions), the case was removed to the U.S. District Court for the Eastern District of Pennsylvania. Due to numerous dismissals pursuant to settlement or other circumstances, John Crane, Inc. remains the only defendant in the litigation.

The McAfees filed a motion to remand the case addressing claims against John Crane, Inc. to the Philadelphia County Court of Common Pleas on April 29.

“The plaintiffs filed a motion to remand on two bases. First, they ask the Court to decline to exercise supplemental jurisdiction over their remaining claims against John Crane because the jurisdiction-conferring federal defendants have been dismissed,” Pappert said. “Plaintiffs then reassert their challenges to the Court’s original jurisdiction. Because Judge [Eduardo C.] Robreno already considered and rejected plaintiffs’ attacks on the Court’s original subject matter jurisdiction, the Court considers only plaintiffs’ new argument.”

Pappert explained in their motion to remand, the plaintiffs conceded the Court has supplemental jurisdiction, pursuant to federal law, over claims directed at defendants like John Crane, who have not asserted the government contractor defense. Pappert then rendered his final decision.

“The dismissal of the removing defendants does not eliminate the Court’s subject matter jurisdiction over the remaining claims. Despite the fact that the federal defendants have been dismissed and John Crane will not raise the government contractor defense, the considerations of judicial economy, convenience, and fairness all weigh heavily in favor of the Court maintaining jurisdiction. After nearly two years, the parties are firmly entrenched in the federal courts. Discovery has been completed, summary judgment motions have been resolved, and the case is ready for trial,” Pappert said.

“Remanding the parties to state court to start the process anew hardly enhances judicial economy. Moreover, plaintiffs’ claims arise under general maritime law, ‘regardless of whether they were filed in state court, filed in federal court, or as here, removed from state court to federal court.’ Finally, the Court notes that the remaining defendant, John Crane, would satisfy the elements of [federal law]. Plaintiffs’ motion to remand is accordingly denied,” Pappert concluded.

The plaintiffs are seeking a sum in excess of $50,000, along with compensatory damages and interest, and a separate sum in excess of $50,000 for punitive damages.

The plaintiffs are represented by Robert E. Paul of Paul, Reich & Myers, in Philadelphia.

The defendant is represented by Mark I. Tivin of O’Connell Tivin Miller & Burns in Chicago, Ill., Tiffany F. Turner and William J. Smith of Dickie McCamey & Chilcote in Philadelphia and Haddonfield, N.J., respectively.

U.S. District Court for the Eastern District of Pennsylvania case 5:13-cv-06856

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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