Lishman v. Air & Liquid Sys. Corp - Asbestos Case Tracker
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No Shepard’s Signal™
As of: April 12, 2022 12:59 PM Z
Lishman v. Air & Liquid Sys. Corp.
United States District Court for the Northern District of Illinois, Eastern Division
April 11, 2022, Decided; April 11, 2022, Filed
Case No. 21-cv-001570
Reporter
2022 U.S. Dist. LEXIS 66120 *
GEORGE LISHMAN and VICKI LISHMAN, Plaintiffs, v. For Crane Co., Defendant: James Billings Walton,
AIR & LIQUID SYSTEMS CORPORATION, et al., LEAD ATTORNEY, Gunty & Mccarthy, Chicago, IL;
Defendants. Edward M Newsom, PRO HAC VICE, Taylor English
Duma LLP, Atlanta, GA; Stephen Richard Ayres, Gunty
Core Terms & McCarthy, Chicago, IL.
For Flowserve US Inc., Defendant, Counter Defendant,
personal jurisdiction, motion to dismiss, manufactured,
Cross Defendant: Christopher Michael Dely, LEAD
forum state, plaintiffs', asserting, exposure, products,
ATTORNEY, [*2] Christopher M. Dely, Hinckley Allen,
merits
Chicago, IL.
Counsel: [*1] For George Lishman, Vicki Lishman, For Goulds Pumps, York International Corporation,
Plaintiffs: Dana C. Simon, PRO HAC VICE, Flint Law Defendants: Julia Yasmin Tayyab, Morgan, Lewis &
Firm, LLC, Dallas, TX; Demetrios T Zacharopoulos, Bockius LLP, Chicago, IL; Undray Wilks, Morgan Lewis
PRO HAC VICE, Flint Cooper, LLC, Dallas, TX; Ethan & Bockius LLP, Chicago, IL.
Flint, Edwardsville, IL; Harold Harvey Hunter, PRO HAC
For Grinnell LLC, Defendant: Julia Yasmin Tayyab,
VICE, The Hunter Law Group PLLC, Dallas, TX;, Klint
LEAD ATTORNEY, Morgan, Lewis & Bockius LLP,
Lee Bruno, The Bruno Firm, Chicago, IL; Michael Loren
Chicago, IL; Undray Wilks, Morgan Lewis & Bockius
Silverman, The Bruno Firm, Chicago, IL; Troyce G.
LLP, Chicago, IL.
Wolf, PRO HAC VICE, Flint Law Firm, Edwardsville, IL.
For Metropolitan Life Insurance Company, Defendant,
For Air & Liquid Systems Corporation, Defendant, Cross
Counter Defendant, Cross Defendant: Robert Leonard
Defendant: Tobin J Taylor, LEAD ATTORNEY, Heyl
Shuftan, LEAD ATTORNEY, Steptoe & Johnson LLP,
Royster Voelker & Allen, P.C., Chicago, IL; Andrew J
Chicago, IL; Amartya Bagchi, Steptoe & Johnson, Llp,
Roth, Heyl, Royster, Voelker & Allen, Chicago, IL; Brady
Chicago, IL; Gregory H. Berman, Steptoe & Johnson
Lee Green, PRO HAC VICE, Wilbraham Lawler & Buba
LLP, Chicago, IL.
PC, Philadelphia, PA; Brett Michael Mares, Heyl
Royster Voelker & Allen, Chicago, IL; Edward Joseph For Tate Andale, Inc., Defendant: James Billings
White, PRO HAC VICE, Wilbraham Lawler & Buba, Walton, LEAD ATTORNEY, Gunty & Mccarthy,
Philadelphia, PA. Chicago, IL; Louis E. Grenzer, Jr., PRO HAC VICE,
Bodie, Dolina, Hobbs, Friddell & Grenzer, P.C., Towson,
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2022 U.S. Dist. LEXIS 66120, *2
MD; Stephen Richard Ayres, Gunty & McCarthy, Demetrios T Zacharopoulos, PRO HAC VICE, Flint
Chicago, IL. Cooper, LLC, Dallas, TX; Ethan Flint, Edwardsville, [*4]
IL; Harold Harvey Hunter, PRO HAC VICE, The Hunter
For Warren Pumps, LLC, Defendant: Meggie Francine
Law Group PLLC, Dallas, TX;, Klint Lee Bruno, The
Hogan, Swanson, Martin & Bell, Chicago, IL.
Bruno Firm, Chicago, IL; Michael Loren Silverman, The
For Weir Valves & Controls, Inc., d/b/a Atwood & Morrill
Bruno Firm, Chicago, IL; Troyce G. Wolf, PRO HAC
Co., Inc., Defendant, Counter Defendant, Cross
VICE, Flint Law Firm, Edwardsville, IL.
Defendant: Justin A. Borawski, The Cook Group, PLLC,
For For Tate Andale, Inc., Cross Claimant, Cross
Chicago, IL.
Defendant: Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs,
For York International Corporation, [*3] Cross Claimant,
Friddell & Grenzer, P.C., Towson, MD.
Cross Defendant: Julia Yasmin Tayyab, Morgan, Lewis
For John Crane Inc., Cross Claimant: Mark I. Tivin,
& Bockius LLP, Chicago, IL.
LEAD ATTORNEY, Manning Gross Massenburg,
For Alfa Laval Inc., Cross Defendant: Merideth Snow
Chicago, IL; Anthony David Danhelka, Manning, Gross
Daly, PRO HAC VICE, Hunton Andrews Kurth LLP,
Massenburg, LLP, Chicago, IL; Pamela Rose Gamble,
Richmond, VA.
Manning Gross Massenburg, LLP, Chicago, IL.
For Caterpillar, Inc., Cross Defendant: Julie Ann
For Alfa Laval Inc., Counter Defendant, Cross
Simaytis, PRO HAC VICE, LEAD ATTORNEY, Baker
Defendant: Charles Matthew Alva, LEAD ATTORNEY,
Sterchi Cowden & RIce, St. Louis, MO; Michael B
Swanson, Martin & Bell, Chicago, IL; Rick C Shea,
Hunter, PRO HAC VICE, Baker Sterchi Cowden & Rice
LEAD ATTORNEY, Swanson, Martin & Bell, Chicago,
LLC, Saint Louis, MO.
IL; Alexandra Brisky Cunningham, Hunton & Williams,
For IMO Industries Inc., Warren Pumps, LLC, Cross Llp, Riverfront Plaza, East Tower, Richmond, VA;
Defendant: Meggie Francine Hogan, Swanson, Martin & Merideth Snow Daly, Hunton Andrews Kurth LLP,
Bell, Chicago, IL. Richmond, VA.
For John Crane Inc., Cross Defendant: Anthony David For Crane Co., Counter Defendant, Cross Defendant:
Danhelka, Manning, Gross Massenburg, LLP, Chicago, Edward M Newsom, Taylor English Duma LLP, Atlanta,
IL. GA.
For Tate Andale, Inc., Cross Defendant: Louis E. For Goulds Pumps, Counter Defendant: Julia Yasmin
Grenzer, Jr., PRO HAC VICE, Bodie, Dolina, Hobbs, Tayyab, Morgan, Lewis & Bockius LLP, Chicago, IL;
Friddell & Grenzer, P.C., Towson, MD. Undray Wilks, Morgan [*5] Lewis & Bockius LLP,
Chicago, IL.
For The J.R. Clarkson Company, Cross Defendant:
Joseph Philip Rejano, Foley & Mansfield, Chicago, IL. For Grinnell LLC, Counter Defendant, Cross Defendant:
Julia Yasmin Tayyab, LEAD ATTORNEY, Morgan,
For Velan Valve Corp., Cross Defendant: Richard Evan
Lewis & Bockius LLP, Chicago, IL; Undray Wilks,
Daniels, LEAD ATTORNEY, Gordon Rees Scully
Morgan Lewis & Bockius LLP, Chicago, IL.
Mansukhani, Llp, Chicago, IL.
For Tate Andale, Inc., Cross Defendant: Louis E.
For George Lishman, Cross Defendant: Dana C. Simon,
Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer,
PRO HAC VICE, Flint Law Firm, LLC, Dallas, TX;
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2022 U.S. Dist. LEXIS 66120, *5
P.C., Towson, MD. mesothelioma, a form of cancer caused by asbestos,
which he asserts he was exposed to through
For York International Corporation, Counter Defendants:
defendants' products On January 26, 2021, George filed
Julia Yasmin Tayyab, Morgan, Lewis & Bockius LLP,
an action on these grounds in Cook County, Illinois.
Chicago, IL; Undray Wilks, Morgan Lewis & Bockius
LLP, Chicago, IL. On March 22, 2021, defendant ViacomCBS, Inc.
For IMO Industries Inc., Warren Pumps, LLC, Cross removed this action to federal court. Three months later,
Defendant: Meggie Francine Hogan, Swanson, Martin & plaintiffs filed their Third Amended Complaint, which
Bell, Chicago, IL. added facts about George's exposure to mesothelioma-
causing asbestos specific to Alfa Laval. Specifically, the
Judges: SHARON JOHNSON COLEMAN, United Third Amended Complaint alleged that Sharples, to
States District Judge. which Alfa Laval serves as successor-in-interest,
manufactured lube oil purifiers which exposed George
Opinion by: SHARON JOHNSON COLEMAN
to asbestos during his time in the Navy. Alfa Laval
thereafter filed its answer to assert an affirmative
Opinion
defense that plaintiffs had not established facts
sufficient to support the Court's exercise of [*7]
personal jurisdiction over Alfa Laval.
MEMORANDUM OPINION AND ORDER
Though it asserted that the Court lacked personal
George Lishman and Vicki Lishman ("plaintiffs") filed jurisdiction, Alfa Laval waited four months to file a
their complaint against Alfa Laval Inc., ("defendant" or motion to dismiss on those grounds. After Alfa Laval
"Alfa Laval") in addition to other defendants, alleging filed its answer and before it moved to dismiss the
that George Lishman developed mesothelioma resulting complaint, Alfa Laval participated in status hearings
from exposure to the defendants' products. Before the before the Court, participated in the filing of joint status
Court is Alfa Laval's motion to dismiss plaintiffs' Fourth reports, responded to plaintiffs' discovery request,
Amended Complaint [229] under Federal Rule of Civil served its Rule 26(a)(1) initial disclosures, and served
Procedure 12(b)(2). For the following reasons, the Court amended and supplemental discovery responses and
grants Alfa Laval's motion. objections. Further, in October 2021, Alfa Laval initiated
the scheduling of its Rule 30(b)(6) deposition, and in
November 2021, it attended 30(b)(6) depositions of its
Background
co-defendants. Prior to plaintiffs' Third Amended
The following facts are [*6] taken from the Fourth Complaint, Alfa Laval also questioned George about his
Amended Complaint and accepted as true for the exposure to asbestos-containing products, but the
purpose of ruling on this motion. George Lishman parties agreed defendant did not waive objections
("George") is a life-long Illinois resident. Alfa Laval is a through its participation. Other than this motion to
New Jersey corporation with its principal place of dismiss, Alfa Laval did not seek any affirmative relief.
business in Virginia and serves as successor-in-interest
to the Sharples Corporation ("Sharples"). In 2020,
Legal Standard
George discovered that he had developed
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2022 U.S. Dist. LEXIS 66120, *7
A motion to dismiss under Rule 12(b)(2) tests whether a asserting [*9] the affirmative defense of jurisdiction, and
federal court has personal jurisdiction over a defendant. (2) defendant's involvement in the case. See Mold-A-
Curry v. Revolution Labs., LLC, 949 F.3d 385, 392 (7th Rama Inc., 451 F. Supp. 3d at 887-88. The Seventh
Cir. 2020). Although the plaintiff bears the burden of Circuit's holding in American Patriot illustrates these
establishing personal jurisdiction, when ruling on a Rule factors working in tandem. There, the court held that a
12(b)(2) motion to dismiss [*8] based on the submission nine-month lapse between the filing of the complaint
of written materials, a plaintiff need only make a prima and motion to dismiss did not constitute waiver where
facie showing of personal jurisdiction. Id.; Matlin v. Spin the defendant engaged only in settlement negotiations
Master Corp., 921 F.3d 701, 705 (7th Cir. 2019). "In and responded to discovery requests. American Patriot.,
evaluating whether the prima facie standard has been 364 F.3d at 888; cf. Cont'l Bank, N.A. v. Meyer, 10 F.3d
satisfied, the plaintiff 'is entitled to the resolution in its 1293, 1295 (7th Cir. 1993) (finding waiver after
favor of all disputes concerning relevant facts presented defendants fully participated in the litigation on the
in the record.'" Curry, 949 F.3d at 393 (citation omitted). merits for over two years).
Also, when analyzing a Rule 12(b)(2) motion without
Plaintiffs contend that Alfa Laval's untimeliness in filing
conducting an evidentiary hearing, courts accept the
its motion and involvement in the litigation both weigh in
well-pleaded, undisputed facts in the complaint as true.
favor of its waiver personal jurisdiction. Alfa Laval
Matlin, 921 F.3d at 705.
responds that it did not become aware of its personal
jurisdiction defense until plaintiffs filed the Third
Discussion Amended Complaint in June 2021. Alfa Laval contends
it did not delay in asserting a personal jurisdiction
First, plaintiffs argue that Alfa Laval waived its defense
defense in its answer. Thereafter, Alfa Laval contends
to personal jurisdiction by failing to raise it at an earlier
that it was neither untimely in filing this motion nor did it
point in the litigation. The Court must first determine the
actively participate in the litigation of the case's merits.
question of waiver before proceeding to an analysis of
the merits. See, e.g., Mold-A-Rama Inc. v. Collector- Alfa Laval's argument highlights the important distinction
Concierge-Int'l, 451 F. Supp. 3d 881, 889 (N.D. Ill. 2020) between general personal jurisdiction and specific
(Wood, J.). "To waive or forfeit a personal jurisdiction personal [*10] jurisdiction, as discussed below. At no
defense, a defendant must give a plaintiff a reasonable point did Alfa Laval believe, it asserts, that the Court
expectation that it will defend the suit on the merits or could exercise general jurisdiction over it because Alfa
must cause the court to go to some effort that would be Laval is not incorporated in Illinois nor does not have its
wasted if personal jurisdiction is later found lacking." principal place of business in Illinois. Plaintiffs do not
Mobile Anesthesiologist Chi., LLC v. Anesthesia contest this. Rather, plaintiffs' original complaint lacked
Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 443 sufficient detail to put Alfa Laval on notice that George's
(7th Cir. 2010) (citing Am. Patriot Ins. Agency, Inc. v. alleged exposure to its product occurred outside of
Mut. Risk Mgmt., 364 F.3d 884, 887-88 (7th Cir. 2004) Illinois. Through the pretrial litigation and plaintiffs' Third
(hereinafter American Patriot)). Amended Complaint, Alfa Laval learned that the alleged
exposure occurred during George's time in the Navy
A plaintiff may demonstrate this reasonable expectation
outside Illinois and concerning products neither
through: (1) the defendant's untimeliness in
manufactured nor sold in Illinois. Twenty-one days
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2022 U.S. Dist. LEXIS 66120, *10
thereafter, it asserted a personal jurisdiction defense in ("Even where [*12] a defendant's conduct is
its answer. Alfa Laval's delay in asserting the defense is purposefully directed at the forum state, the plaintiff
therefore excusable. must also show that his injury 'arises out of' or 'relates
to' the conduct that comprises the defendant's
The Court additionally holds that Alfa Laval preserved
contacts."). It is clear that George was not exposed to
its defense though it waited four months after its answer
the to the lube oil purifiers in Illinois. Plaintiffs contend
to file a motion to dismiss. Much like in American
that Sharples possessed manufacturing plants in Illinois,
Patriot, Alfa Laval did not actively participate in the
but the record shows that its Illinois manufacturing
litigation during these four months, but rather engaged
efforts were not for the product at issue here. The lube
in preliminary pretrial litigation. Further, Alfa Laval did
oil purifiers were only manufactured in Pennsylvania.
not test the [*11] waters, as the Court made no
(See Dkt. 263-1, at 54:7-55:2.) Further, plaintiffs argue
substantive rulings during the waiting period. See Am.
that Sharples maintained a sales office in Oak Brook,
Patriot Ins. Agency, Inc., 363 F.3d at 889. For these
Illinois, but do not show that the sales were for the type
reasons, Alfa Laval did not waive personal jurisdiction.
of product at issue. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 931, n. 6, 131 S. Ct. 2846
The Court next turns to the merits of the personal
(2011) ("[E]ven regularly occurring sales of a product in
jurisdiction defense. As discussed, personal jurisdiction
a State do not justify the exercise of jurisdiction over a
is either general or specific. See Ford Motor Co. v.
claim unrelated to those sales.").
Montana Eight Judicial District Court, 141 S. Ct. 1017,
1024, 209 L. Ed. 2d 225 (2021). There are three
Plaintiffs point to Ford Motor Co. v. Montana Eight
essential requirements to establish personal jurisdiction:
Judicial District Court, 141 S. Ct. 1017, 1024, 209 L. Ed.
(1) the defendant must have purposefully availed itself
2d 225 (2021), in support of their argument. This case,
of the privilege of conducting activities in the forum
however, is factually distinct. There, the Court found
state; (2) the alleged injury must arise from or relate to
personal jurisdiction in a products liability case over an
the defendant's forum-related activities; and (3) the
automobile manufacturer though the specific cars at
exercise of jurisdiction must comport with the traditional
issue were not sold or manufactured in the forum state.
notions of fair play and substantial justice. See
The Court reasoned that the plaintiffs need not
Lexington Ins. Co. v. Hotai Ins. Co., Ltd., 938 F.3d 874,
show [*13] a "strict causal relationship between
878 (7th Cir. 2019). The analysis here focuses on the
defendant's in-state activity and the litigation," but rather
second prong—whether George's injury arose from or
an "affiliation between the forum and the underlying
was related to Alfa Laval's (or more Sharples') forum-
controversy..." Id. at 1031. Because the accident
related activity.
occurred in the forum state where the company
extensively marketed, sold, and supported repairs of the
Plaintiffs argues that Alfa Laval purposefully availed
same model vehicle involved in the accident, the Court
itself of the benefits of its activities in Illinois, and
found personal jurisdiction. In contrast, the Court found
therefore George's injuries arise out of Alfa Laval's
no personal jurisdiction in another recent case where
forum-related conduct. But plaintiffs fail to make the
the offending product did not malfunction in the forum
connection between Alfa Laval or Sharples' interaction
state and the plaintiffs did not suffer injuries from
with the forum and its relation to George's injuries.
products in the forum. Bristol-Myers Squibb Co. v.
Felland v. Clifton, 682 f.3d 665, 676 (7th Cir. 2012)
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2022 U.S. Dist. LEXIS 66120, *13
Superior Court of California, 137 S. Ct. 1773, 1779-87,
198 L. E. 2d 395 (2017). Here, plaintiffs have failed to
show an affiliation between Illinois and the underlying
controversy. Therefore, this action is dismissed against
Alfa Laval for lack of personal jurisdiction.
Conclusion
For the foregoing reasons, the Court grants defendant
Alfa Laval's motion to dismiss [229].
IT IS SO ORDERED.
Date: 4/11/2022
Entered: /s/ Sharon Johnson Coleman
SHARON JOHNSON COLEMAN
United States District Judge
End of Document
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