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MK&C Press Release

April 28, 2017

On April 17th the civil defense litigation firm McGivney & Kluger, P.C. elevated its partner Kerryann M. Cook to the masthead and the name of the firm became McGivney, Kluger & Cook, P.C.   

Ms. Cook has been with the firm for 12 years and is the managing attorney for the firm's large New York City mass tort and class action litigation involving asbestos.  In addition to those duties, Ms. Cook is also responsible for substantial  national accounts and will now take a more active role in crafting strategy, negotiation and assisting in the managing of the firm's national asbestos litigation practice.  

Our partner will continue to serve as a member of the New York City Asbestos Litigation Case Management Committee.  As liaison counsel for active docket cases, she is also a member of the defense medical liaison group.  Ms. Cook is a leader in the insurance defense arena; advising carriers of innovative methods of strategy and resolving matters for significant values.  She has and will continue to be a guest lecturer on the subject of asbestos personal injury claims for the American Conference Institute (ACI), Defense Resource Institute (DRI), Harris Martin and Perrin Conferences.  

Ms. Cook is not only savvy counsel for the insurance community but is passionate in her advocacy for equality.  Ms. Cook  founded the annual Women's Conference at Perrin Conferences for New York City in 2014, empowering and encouraging women to seek leadership roles in the field of litigation. The leadership series is regularly attended by members of the judiciary, insurance industry and private corporations to mentor and encourage young women as litigators and future decision makers at the executive level. She plans on continuing this annual event and will bring similar programs to other cities where the firm operates offices.  A tireless advocate for the LBGTQ community, she will continue to serve in a leadership capacity as co-chair of New York's LGBT Center's annual Women's Event while serving as a member of the Center's Young Leader's Council.     

McGivney, Kluger & Cook, P.C. is proud to celebrate the accomplishments of its trail blazing partner and will continue to expand its national reach by also announcing the opening of new offices in St. Louis, Missouri and Los Angeles, California as of May of 2017.  The firm is at the forefront of developing new, innovative experts and will continue to zealously defend its clients whenever and wherever the need arises.  With the elevation of Kerryann M. Cook and with the opening of new offices, the firm is poised to continue its growth as a leader in the defense of product liability actions throughout the country.  

McGivney & Kluger & Cook, P.C., is a proven national civil defense firm dedicated to the representation of corporate and insurance clients and individuals. Their key practice areas include asbestos litigationtoxic torts/hazardous substances, construction defect, employment and general liability. Over time, the firm has grown from four attorneys in 1994 to a nationwide practice of approximately 100 lawyers serving clients coast to coast from our 11 locations, including New Jersey, New York, Pennsylvania, Delaware, Connecticut, California, Missouri and Florida.  More information on the firm, its lawyers, offices and areas of practice can be found at its website, www.mkclaw.us.com.

We are pleased to report that Justice Moulton denied Weitz & Luxenberg’s motion to restore in the McKim matter to the New York City Asbestos Litigation (“NYCAL”) docket.  Mr. McKim served as an electrician’s mate in the U.S. Navy for five years—he was stationed at bases and shipyards in New York, Illinois, and Virginia for short periods of time throughout his naval career.  Subsequently, he spent the remainder of his career working in Tennessee and Mississippi, alleging substantial exposure to asbestos.  The case was initially brought in New York in 2012, after Mr. McKim’s death.  After depositions were held, in 2014, our firm made a motion to dismiss, based on forum non conveniens, arguing that the wholly tenuous connection to New York was insufficient to tether the case to New York state.  Instead, we argued that either Tennessee or Mississippi would be a proper forum, as the Decedent alleged nearly thirty years of exposure to asbestos in those two states.  
 
The prior NYCAL judge, Justice Heitler, agreed with our position, and dismissed the case.  Her order of dismissal was conditional—it required all defendants to “stipulate in writing to waive any jurisdictional and statute of limitations defenses in any action ‘commenced by plaintiffs in a different more suitable forum.’”  Plaintiffs had 120 days (later extended to 150 days) from the service of the order to file such an action.  Pending the filing of such an action, the New York case was stayed.   
 
Plaintiffs re-filed this action in Illinois; however, it was plagued with the same forum issues as the New York action.  Accordingly, several defendants moved to dismiss the Illinois action pursuant to forum non conveniens.  Instead of adjudicating this matter, Plaintiffs voluntarily dismissed the Illinois action and refiled the case in Mississippi—499 days after Justice Heitler’s order, completely failing to comply with the 150-day condition Justice Heitler had placed upon her dismissal of the case in New York.  As such, defendants moved to dismiss the Mississippi action as being time-barred per the statute of limitations.  The Mississippi court agreed, holding that Plaintiffs violated the terms of Justice Heitler’s order, by not filing in a proper forum within 150 days, and dismissed the action.
 
In September of 2016, Plaintiffs moved to restore this action in New York, arguing that Mississippi misinterpreted Justice Heitler’s order and New York law.  Our firm took the lead in drafting the papers and arguing same on behalf of defendants.  We argued that Plaintiffs’ counsel woefully failed to comply with Justice Heitler’s original order, by first filing in Illinois, an inappropriate forum, and subsequently filing in Mississippi, completely blowing the statute of limitations.  Refiling in New York now, we argued, would be Plaintiffs’ fourth bite at the apple.
 
Justice Moulton agreed with our analysis, citing large portions of our papers in his decision, denying Plaintiffs’ motion to restore.  As Plaintiffs had 150 days to file in an appropriate forum, and failed to do so, Justice Moulton found no reason to deviate from the Mississippi court’s ruling.  
 

On Tuesday, February 7, 2017, a Hudson County jury rendered a defense verdict in favor of Tilcon New York Inc. and ExxonMobil.   Tilcon New York Inc. was represented by Robert Baum and Pooja Patel of McGivney, Kluger and Cook.  Plaintiff, Mrs. Dawn McAdam, alleged that her husband, David McAdam, developed acute myeloid leukemia (AML) as a result of work he performed for the Secaucus Department of Public Works (DPW) over the course of 22 years.  Mr. McAdam worked as a laborer/driver from 1988 to 2010.   He worked with gasoline, diesel, hot mix asphalt and tar, which his estate claimed exposed him to benzene, which led to the development of his AML.   Mr. McAdam passed away in 2011 at the age of 53.

The Honorable Joseph Isabella presided over the five-week trial that began on January 3, 2017.    Plaintiff presented testimony from three of Mr. McAdam’s coworkers who testified as to the type of work performed by laborers/drivers.  The tasks included weed whacking, landscaping, filling potholes and road cracks, creating sidewalks, and recycling.   They identified the sources of the gasoline, diesel, hot mix asphalt and tar used by the DPW, among which was hot mix asphalt manufactured by Tilcon New York Inc. 

Plaintiff called Dr. Robert Laumbach and Dr. Steven Gore as their occupational and medical experts.  Dr. Gore testified that Mr. McAdam worked with gasoline, diesel fuel and hot mix asphalt on a frequent, regular, and proximate basis, such that it substantially contributed to his development of AML.  Dr. Gore testified that each and every molecule of benzene Mr. McAdam was exposed to, contributed to the development of the disease.   

Dr. Laumbach expounded on the levels of exposure to benzene from the various products.  As to hot mix asphalt, Dr. Laumbach conceded he was unable to quantify the amount of benzene exposure from same, however, he determined it was a substantial contributing factor nonetheless.   

To establish economic loss, Plaintiff presented Dr. Leo Turcotte, who testified about the estate’s lost wage claim, fringe benefits loss and loss of services.   Dr. Turcotte testified that the estate suffered a loss of up to $1,196,874.00 as a result of Mr. McAdam’s AML and subsequent death.   Plaintiff also alleged that the medical costs for Mr. McAdam’s treatment were $1,156,413.13.  

Mrs. McAdam and the couple’s daughter also testified about the type of man Mr. McAdam was, their relationship and his pain and suffering.   Plaintiff even called Tilcon New York Inc.’s person most knowledgeable in their own case to establish a case against Tilcon New York Inc.

In addition to the Tilcon New York Inc. witness called by Plaintiff, Tilcon New York Inc.  called the asphalt general manager to discuss what exactly hot mix asphalt is, how it is made, and the procedure for purchasing and picking up same.   Tilcon New York Inc. also presented testimony from toxicologist Dr. Laura Green, who testified there is absolutely no literature linking hot mix asphalt work with the development of AML. 

The jury of eight people was charged on February 7, 2017, and in a little over an hour rendered a verdict in favor of Defendants.   The jury found in a vote of 8 to 0 that hot mix asphalt did not contribute to Mr. McAdam’s development of AML.  

Kerryann Cook to Speak at Perrin’s New York Asbestos Litigation Conference
McGivney, Kluger & Cook, P.C.  Partner and Director of our New York Asbestos Department, Kerryann Cook, will present at Perrin Conferences' New York Asbestos Litigation Conference on December 6, 2016 at The Roosevelt Hotel New York.
 
This prestigious annual conference assembles leaders in New York asbestos litigation, including prominent plaintiffs' and defense attorneys, judges, insurance professionals and in-house counsel. This year's forum will offer balanced panel presentations regarding recent and on-going trials in the NYCAL and nationally, insights on future trends, case management updates, and much more. Ms. Cook will be participating at the Women's Breakfast, and speaking on a panel entitled "New York Overview: Update on Current Trends, Statistics and Dynamics Impacting NYCAL."
 
CLE credits will be offered to conference attendees, and in-house counsel and insurance professionals receive complimentary registration.
 
To view the full agenda, and learn more about this Perrin Conferences' event, please visit www.perrinconferences.com.
MK&C Welcomes Derrick A. Grant DERRICK GRANT, ESQ.

McGivney, Kluger & Cook, P.C. is proud to announce that Mr. Grant has joined the firm as an Associate in MK&C's Florham Park, NJ, office.

Mr. Grant focuses his practice on a variety of civil litigation matters, including general liability, toxic tort and insurance coverage cases.
 
Mr. Grant graduated cum laude from Seton Hall Law School in 2015 and summa cum laude from Centenary College in 2012. Before joining McGivney, Kluger & Cook, Mr. Grant served as law clerk to The Honorable Michael F. O'Neill in the Law Division, Civil Part of the Superior Court of New Jersey, Hunterdon County. During law school, Mr. Grant also served as a third-year student attorney in the Seton Hall Law School Center for Social Justice, Family Law Clinic. He is currently admitted to practice in New Jersey
 
Please join us in welcoming Mr. Grant to our firm.

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