FREIER v. WESTINGHOUSE ELEC. CORP.

Docket Nos. 00-7724(L), 00-7728(XAP).

303 F.3d 176 (2002)

Raymond FREIER, Individually, as Administrator of the Estate of Rose Freier, deceased, and as surviving spouse of Rose Freier, Arthur L. Phillips, Administrator of the Estate of Leo Phillips, deceased, and Dorothy Phillips, as the surviving Spouse of Leo Phillips, Tab Fuqua, Charlotte Mucha, individually, as Executrix of the Estate of Alfred G. Mucha, deceased, and as surviving spouse of Alfred Mucha, John Farino, Administrator of the Estates of Mary Jane Farino and Robert Farino, deceased, Grace Astor, individually, and as surviving spouse of Evo T. Astor, Harry Basinski, Sr., Ellen Basinski, his spouse, Kathy Kaminski, Administratrix of the Estate of Joseph Inzinna, deceased, Mary Ylmar, Marie Manolis, Executrix of the Estate of Louis Manolis, deceased, and individually as the surviving spouse of Louis Manolis, legal representative of the Estate of Leo Ott, deceased, and Administratrix of Mary M. Sturm, deceased, William Neilsen, Betty Barabasz, Executrix of the Estate of George Pagels, deceased, Gloria Pagels, Individually as the surviving spouse of George Pagels, Joseph Grandillo, executor of the Estate of Stephen Grandillo, deceased, Shirley Kuczka, Executrix of the Estate of Henry Kuczka, deceased, and individually as the surviving spouse of Henry Kuczka, Mary Ann Boxhorn, Executrix of the Estates of Leo and Annabel Foisset, deceased, Eileen Folts, Administratrix of the Estate of Helen Hancock, deceased, Franklin Mueller, Flora Mueller, his spouse, Robert S. Fiels, Delores Fiels, his spouse, Irene M. Marino, legal representative of the Estate of Anthony J. Marino, deceased, and individually as the surviving spouse of Anthony J. Marino, deceased, Nancy Forman, Carl P. Forman, Sr., her spouse, Joseph J. Wiedenbeck, Jr., legal representative of the Estates of Isabelle A. Wiedenbeck and Joseph J. Wiedenbeck, Sr., deceased, Linda Kistka, legal representative of the Estate of Nelson M. Hirsch, deceased, Nelly Anthony, legal representative of the Estate of Diane Anthony, deceased, Eleanor Jasinski, legal representative of the Estate of Leocadia Jasinski, deceased, George Scherrer, Jr., legal representative of the Estate of George Scherrer, Sr., deceased, Marie Scherrer, individually as the surviving spouse of George Scherrer, Sr., deceased, Veronica A. Zawatski, legal representative of the Estate of Robert Zawatski, deceased, and individually as surviving spouse, Michael Lamancuso, Marlene Lamancuso, his spouse, Thomas Szyplman, legal representative of the Estate of Victoria Szyplman, deceased, Geraldine Davies, Morley P. Davies, her spouse, Kevin Batt, individually, as Administrator of the Estate of Charles W. Batt, deceased, and Executor of the Estate of Rose E. Batt, deceased, Patricia Batt, his spouse, Donna McKowan, Donald McKowan, her spouse, Norman Wagner, Patricia Wagner, his spouse, Eileen Ewert, Administratrix of the Estate of Evo T. Astor, deceased, Thomas F. Hewner, public Administrator of the Estate of Lorraine E. Brzezicki, deceased, Lawrence Heaney, legal representative of the Estate of Gretchen Heaney, deceased, Marie Martzolf, Executrix of the Estate of Robert Martzolf, deceased, and individually as surviving spouse, and Jacqueline Mongiovi, Executrix of the Estate of Vincent Mongiovi, deceased, and individually as his surviving spouse, Plaintiffs-Appellants-Cross-Appellees, v. WESTINGHOUSE ELECTRIC CORPORATION, Allied Waste Systems, Inc., formerly known as Laidlaw Waste Systems, Inc., Dresser Industries, Inc., American Standard, Inc., Carborundum Company, and E.I. Dupont de Nemours & Co., Inc., Defendants-Appellees-Cross-Appellants, General Motors Corporation, Curtiss-Wright Corporation, Warner-Lambert Company, and Ford Motor Company, Defendants-Third-Party-Plaintiffs-Appellees-Cross-Appellants, Litton Systems, Inc., Defendant-Third-Party-Defendant-Appellee-Cross-Appellant, Browning-Ferris Industries, Inc., Defendant-Cross-Appellant, Trico Products Corporation, Occidental Chemical Corporation, Waste Management of New York, Inc., Niagara Mohawk Power Corporation, and New York State Electric & Gas Corporation, Third-Party-Defendants-Cross-Appellants, Howden Fan Company, formerly known as Buffalo Forge Company, Defendant-Appellee, W.S. Tyler Inc., Defendant, Lancaster Stone Products Corp., Paul M. Pfohl, Pfohl Brothers, Pfohl Enterprises, Bryan Pfohl, and Town of Cheektowaga, Third-Party-Defendants. United States of America, Intervenor.

United States Court of Appeals, Second Circuit.

Decided: August 15, 2002.


Attorney(s) appearing for the Case

Steve Jensen, Dallas, TX (Laura J. Van Pelt, Baron & Budd, Dallas, TX, on the brief), for Plaintiffs-Appellants-Cross-Appellees.

Laurie Styka Bloom, Buffalo, N.Y. (Mark A. Molloy, Nixon, Peabody, Buffalo, NY, on the brief), for all Cross-Appellants.

R. Justin Smith, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC (Lois Schiffer, Assistant Attorney General, Stephen J. Sweeney, Attorney-Advisor, Environmental Protection Agency, John A. Bryson, Environment & Natural Resources Division, United States Department of Justice, on the brief), for Intervenor.

Herzfeld & Rubin, New York, N.Y. (Michael Hoenig, Noreen M. Giusti, New York, NY, Hugh F. Young, Jr., The Product Liability Advisory Council, Inc., Reston, VA, of counsel), filed a brief on behalf of Amicus Curiae The Product Liability Advisory Council, Inc., in support of Appellees.

Before: KEARSE, LEVAL, and KATZMANN, Circuit Judges.


Judge LEVAL concurs, in a separate opinion.

KEARSE, Circuit Judge.

Plaintiffs Raymond Freier et al. appeal from a judgment entered in the United States District Court for the Western District of New York pursuant to Fed. R.Civ.P. 54(b), Richard J. Arcara, Judge, dismissing certain of their state-law tort claims alleging that personal injuries to themselves and their decedents were caused by toxic substances transported to and maintained in a...

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