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Preview: LexisNexis® Mealey's™ Emerging Toxic Torts Legal News

LexisNexis® Mealey's™ Emerging Toxic Torts Legal News



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Company Says It Should Be Permitted To Amend Motion To Dismiss Flint Water Case
DETROIT - A company that was sued by Michigan residents who contend that it shares liability for the lead-contaminated drinking water crisis in Flint, Mich., on June 15 filed a brief in Michigan federal court, contending that it should be permitted leave to file an amended motion to dismiss the residents' class action (Frances Gilcreast, et al. v. Lockwood, Andrews & Newnam, No. 16-11173, E.D. Mich.).



Companies Seek Rehearing Of MTBE Ruling In 2nd Circuit, Say Reversal Was Incorrect
NEW YORK - A group of oil and gasoline companies on June 26 filed a petition in the Second Circuit U.S. Court of Appeals seeking rehearing of a case in the multidistrict litigation for methyl tertiary butyl ether (MTBE), arguing that a lower court's res judicata ruling was appropriate and that privity had been established between two California state agencies (In Re: Methyl Tertiary Butyl Ether Products Liability Litigation: Orange County Water District v. Texaco Refining and Marketing Inc. n/ka TMR Company, No. 15-3934, 2nd Cir.).



California High Court Refuses Review; State May List Glyphosate As A Carcinogen
SACRAMENTO, Calif. - The California Supreme Court on June 22 denied review of a case in which Monsanto Co. sought to prevent the Office of Environmental Health Hazard Assessment (OEHHA) from adding glyphosate, the active ingredient in the herbicide Roundup, to the state's list of chemicals that cause cancer (Monsanto Company v. Office of Environmental Health Hazard Assessment, No. S242595, Calif. Sup.; 2017 Cal. LEXIS 4696).



Monsanto Denies Glyphosate Exposure Could Have Caused Man's Cancer
SAN FRANCISCO - Monsanto Co. on June 16 filed its answer to one of the complaints in the multidistrict litigation for Roundup products, in which it denied that exposure to its product, which contains glyphosate, could have caused the plaintiff's alleged non-Hodgkin lymphoma (NHL) (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).



3rd Circuit Approves Class Settlement In Chrome 6 Contamination Case
PHILADELPHIA - A panel of the Third Circuit U.S. Court of Appeals on June 29 affirmed a lower court's approval of a $10,017,000 class action settlement involving property contamination by hexavalent chromium from two industrial sites in New Jersey, but it remanded the case for a reconsideration of litigation costs pursuant to federal rules of procedure (Mattie Halley, et al. v. Honeywell International Inc., et al., No. 16-2712, 3rd Cir.; 2017 U.S. App LEXIS 11594).



9th Circuit: Japanese Nuclear Reactor Radiation Case May Proceed In U.S. Court
SAN FRANCISCO - A panel of the Ninth Circuit U.S. Court of Appeals on June 22 ruled that a radiation exposure lawsuit brought by U.S. Navy sailors who assisted in relief efforts when the Fukushima Daiichi Nuclear Power Plant (FNPP) melted down in Japan could proceed in a U.S. court, despite the company's argument to the contrary (Lindsay R. Cooper, et al. v. Tokyo Electric Power Company, et al., No. 15-56424, 9th Cir.; 2017 U.S. App. LEXIS 11075).



Groups: Trump Executive Order Rescinding Federal Regulations Violates Constitution
WASHINGTON, D.C. - Organizations that oppose President Donald J. Trump's executive order that a government agency may issue a new regulation only if it rescinds at least two existing regulations on June 26 filed a brief in the U.S. District Court for the District of Columbia arguing that the order - which would affect rules governing exposure to toxic substances - "offends the separation of powers by usurping the constitutional lawmaking power assigned to Congress and violates the president's unambiguous duty to 'take Care that the Laws be faithfully executed,'" pursuant to the Constitution (Public Citizen, Inc. v. Donald Trump, No. 17-253, D. D.C.).



States Seek To Intervene To Override EPA Stay Of Methane Emissions Rule
WASHINGTON, D.C. - The attorneys general for 14 states and the attorney for the city of Chicago on June 20 moved in the District of Columbia Circuit U.S. Court of Appeals to intervene in a lawsuit brought by environmental advocacy groups against the U.S. Environmental Protection Agency in connection with the EPA's announcement that it is reconsidering rules on the fugitive emissions of methane (Clean Air Council, et al. v. Scott Pruitt, et al., No. 17-1145. D.C. Cir.).



EPA Inspector General's Office Says It Will Begin Research On Methane Emissions
WASHINGTON, D.C. - The Office of the Inspector General (OIG) for the U.S. Environmental Protection Agency on June 21 issued a memorandum indicating that it plans to begin preliminary research to assess how the EPA estimates methane emissions from the oil and natural gas production industry.



Man Sues Fracking Companies Alleging Fraud, Liability For Chemical Injuries
DENVER - A Colorado man on May 25 filed an amended complaint in Colorado federal court alleging that Halliburton Energy Services Inc. (HESI) is liable for chemical injuries he sustained while working on a hydraulic fracturing site (Jeylan Abdulkadir v. Halliburton Energy Services Inc., et al., No. 16-281, D. Colo.).



Companies Say They Owe No Duty To Workers In Lithium Battery Injury Lawsuit
OKLAHOMA CITY - A hydraulic fracturing company and a drilling company sued in connection with injuries suffered by two workers when a lithium battery exploded during a fracking operation filed a brief on June 5 in which they argue that the case against them should be dismissed because they owe no duty to the plaintiffs for the failure of the fracking tool that allegedly caused their injuries (Jacob McGehee, et al. v. Southwest Electronic Energy Corporation, et al. and Southwest Electronic Energy Corporation v. Engineered Power LP, et al., No. 15-145, W.D. Okla.).



Expert 'Unreliable,' Should Be Excluded From Groundwater Case, NL Industries Says
TRENTON, N.J. - NL Industries Inc. on June 20 filed a brief in New Jersey federal court seeking to exclude an expert for the plaintiffs who sued the company for allegedly contaminating the local groundwater, contending that the expert's opinion is "unreliable" (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).



Group: Company's Plan To Store Coal Ash Will Continue Groundwater Contamination
DURHAM, N.C. - An environmental advocacy group on June 20 filed a lawsuit in North Carolina federal court against Duke Energy Progress LLC, alleging that the company's plan to permanently store coal ash and "toxic pollutants" in unlined pits will lead to further contamination of local groundwater (Roanoke River Basin Association v. Duke Energy Progress LLC, No. 17-561, M.D. N.C.).



Federal, State Agencies Sue Company For Emissions Of Volatile Organic Compounds
DENVER - The U.S. government and the state of Colorado filed a lawsuit in Colorado federal court on June 26, alleging that a power company is in violation the Clean Air Act (CAA), 42 U.S.C. 7401, and other statutes with regard to the emission of volatile organic compounds (VOCs) (United States of America, et al. v. PDC Energy, Inc., No. 17-1552, D. Colo.).



U.S. Supreme Court Refuses To Hear Lago Agrio $18.5 Billion Fraud Case
WASHINGTON, D.C. - The U.S. Supreme Court on June 19 refused to hear the appeal of a group of Ecuadorian residents and their attorney, who challenged a fraud ruling with regard to an $18.5 billion judgment they previously won against Chevron Corp. for injuries they had alleged were caused by the company's oil field operations in Ecuador (Steven Donziger, et al. v. Chevron Corporation, No. 16-1178, U.S. Sup.).



U.S. Supreme Court Refuses To Hear Flint Water Crisis Appeal
WASHINGTON, D.C. - The U.S. Supreme Court on June 12 refused to hear a case brought by engineering firms that appealed a lower court's decision that residents of Flint, Mich., could obtain remand of their lead-contaminated water claims under the Class Action Fairness Act (CAFA) (Lockwood Andrews & Newnam P.C. v. Jennifer Mason, et al., No. 16-1092, U.S. Sup.).



Attorney General Charges 5 Officials With Manslaughter For Flint Water Crisis
LANSING, Mich. - Michigan Attorney General Bill Schuette on June 14 charged Michigan Department of Health and Human Services (HHS) Director Nick Lyon and four other state and local officials with involuntary manslaughter in connection with their failure to act in response to the water crisis in Flint, Mich., which resulted in an outbreak of Legionnaires' disease and lead contamination.



Judge: Flint, Mich., Residents' Case May Proceed Against City, Other Defendants
DETROIT - A federal judge in Michigan on June 5 ruled that a group of Flint, Mich., residents who sued the city of Flint and the State of Michigan for damages related to the lead-contaminated water crisis in the city could proceed with their claims for violation of bodily integrity against the city, its workers and employees of the Michigan Department of Environmental Quality (MDEQ). The judge also said the plaintiffs' negligence claims were viable against two firms that were consultants on the decision to use the Flint River as a source of drinking water (Shari Guertin, et al. v. State of Michigan, et al., No. 16-12412, E.D. Mich.; 2017 U.S. Dist. LEXIS 85544).



EPA Inspector General Opens Probe Into Possible Collusion On Glyphosate Review
WASHINGTON, D.C. - The inspector general of the U.S. Environmental Protection Agency on May 31 sent a letter to a member of Congress indicating that he is directing an investigation in response to the congressman's request for a probe concerning reports that an EPA employee may have colluded with Monsanto Co. to conduct a biased review of glyphosate, the active ingredient in the herbicide Roundup.



Judge Approves Administrator, Settlement Fund In DuPont C8 Contamination MDL
COLUMBUS, Ohio - The Ohio federal judge presiding over the multidistrict litigation against E.I. du Pont de Nemours and Co. for alleged injuries connected to exposure to perfluorooctanoic acid (known as C8) on May 25 issued an order appointing a lien resolution administrator (LRA) and establishing a qualified settlement fund (QSF) (In re: E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).



Panel Reverses, Remands MTBE Case; Requirements Of Res Judicata Not Met
NEW YORK - A panel of the Second Circuit U.S. Court of Appeals on June 12 vacated and remanded a summary judgment ruling in a groundwater contamination lawsuit brought by a California water district against oil and gasoline companies on grounds that a district court's res judicata ruling was not appropriate because privity was not established (In Re: Methyl Tertiary Butyl Ether Products Liability Litigation: Orange County Water District v. Texaco Refining and Marketing Inc. n/ka TMR Company, No. 15-3934, 2nd Cir., 2017 U.S. App. LEXIS 10412).



Firms: Stay Needed In Groundwater Case; Settlement May Adversely Affect Interests
CHARLESTON, W.Va. - A group of law firms representing more than 300 plaintiffs in a groundwater contamination lawsuit on June 12 filed a brief in West Virginia federal court seeking to intervene and stay the case pending the approval of a tentative settlement on grounds it may adversely affect their interests (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1374, S.D. W.Va.).



3M Denies Groundwater Claims, Even As It Maintains That No Response Is Needed
BIRMINGHAM, Ala. - 3M Co. on June 14 filed a brief in Alabama federal court denying liability for groundwater contamination and contending that the claims brought against it under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901et seq., for "imminent and substantial endangerment" do not require a response, but if it were to respond, the company denies the allegations (Tennessee Riverkeeper Inc. v. 3M Company, et al., No. 16-1029, N.D. Ala.).



Residents Voluntarily Dismiss Tainted-Groundwater Case Against Fertilizer Company
TAMPA, Fla. - The plaintiffs who brought a groundwater contamination lawsuit against a fertilizer manufacturer in Florida, contending that their private wells had been tainted, voluntarily dismissed the case June 12, with no explanation provided (Nicholas Bohn, et al. v. The Mosaic Company, et al., No. 16-02724, M.D. Fla.).



Woman Voluntarily Dismisses Lead Drinking Water Case Against School District
PITTSBURGH - A mother who sued her daughter's elementary school contending that she was poisoned by lead and copper drinking water on June 14 voluntarily dismissed her lawsuit against the school district (Jennifer Tait, et al. v. Butler Area School District, et al., No. 17-182, W.D. Pa.).



New Hampshire High Court: No Error Shown In Eviction Related To Lead Paint Hazards
CONCORD, N.H. - The New Hampshire Supreme Court on May 11 ruled that a trial court did not err when it held that a couple that was renting a premises was properly evicted in connection with lead-paint hazards because they continued to work on the premises despite not being trained to deal with lead paint (Deborah Cutler v. Daniel Knight, No. 2016-0409, N.H. Sup.; 2017 N.H. LEXIS 114).



Landlords Seek More Than $1.59M From Verizon For Alleged Property Contamination
HACKENSACK, N.J. - Property owners filed a complaint in the Bergen County Superior Court on June 12 contending that Verizon New Jersey Inc. is liable for $1,591,435 in damages because it failed to remediate contamination on property it leased from the plaintiffs in breach of its rental contract (Joan Rudnick, et al. v. Verizon New Jersey Inc., No. L-4023-17, N.J. Super., Bergen Co.).



Firms Ask High Court To Hear Flint Water Lawsuit; Residents Say Court Should Refuse
WASHINGTON, D.C. - The engineering firms asking the U.S. Supreme Court to hear their case against residents of Flint, Mich., regarding liability for the lead-contaminated water crisis in that city on May 22 filed their reply brief contending that the Sixth Circuit U.S. Court of Appeals' decision that a plaintiff may obtain remand under the Class Action Fairness Act (CAFA) without evidence of class members' citizenship results in a circuit split that is "stark and wide." The Flint residents who brought the initial lawsuit say the Supreme Court should refused to hear the case (Lockwood Andrews & Newnam P.C. v. Jennifer Mason, et al., No. 16-1092, U.S. Sup.).



Chevron: No Legal Issue In Lago Agrio Case Warrants High Court Review
WASHINGTON, D.C. - Chevron Corp. on May 15 filed a brief in the U.S. Supreme Court arguing that, with regard to the petition for writ of certiorari filed by a group of Ecuadorian residents and their attorney who challenge a fraud ruling with regard to an $18.5 billion judgment they previously won against the company, there is no legal issue warranting the Supreme Court's review (Steven Donziger, et al. v. Chevron Corporation, No. 16-1178, U.S. Sup.).



Defendant, Michigan Governor File Briefs Seeking Dismissal Of Flint Water Case
DETROIT - One of the defendants sued by Flint, Mich., residents seeking damages for lead-contaminated drinking water filed a brief in Michigan federal court on May 25, arguing that the complaint against it should be dismissed for lack of personal jurisdiction and for failure to state a cause of action. Meanwhile, Michigan Gov. Rick Snyder filed a brief insisting that the case should be dismissed because he is immune from liability (Myia McMillian, et al. v. Governor Richard D. Snyder, et al., No. 16-10796, E.D. Mich.).



Municipal Water Agency: 3M, DuPont, Others Polluted Drinking Water Source
CENTRE, Ala. - A municipal waterworks and sewer authority on May 15 filed a lawsuit against 3M Co., E.I. DuPont de Nemours & Co. and assorted other manufacturers in Alabama state court, alleging that they are liable for "negligent, willful, and wanton conduct" for the release of various toxic chemicals into the drinking water for Centre, Ala. (The Waterworks and Sewer Board of the Town of Centre v. 3M Company, et al., No. 13-CV-2017-900049.00, Ala. Cir., Cherokee Co.).



ConocoPhillips To Pay $39M To Settle MTBE Lawsuit
NEW YORK - A federal judge in New York on May 23 approved a $39 million settlement deal under which ConocoPhillips, a defendant in the multidistrict litigation for groundwater contamination from methyl tertiary butyl ether (MTBE), will be released from the litigation (In Re: Methyl Tertiary Butyl Ether Products Liability Litigation, No. 00-1898, MDL 1358, New Jersey Department of Environmental Protection v. Atlantic Richfield Company, No. 08-0312, S.D. N.Y.).



Panel Partially Reverses, Says Groundwater Claim Valid Against Northrop Grumman
SAN DIEGO - A California appeals panel on June 1 reversed a ruling on groundwater contamination liability and concluded that it was "undisputed" that manufacturing sites operated by Northrop Grumman Systems Corp. contributed to groundwater contamination in a lawsuit brought against multiple defendants by a California municipal water authority (Orange County Water District v. Alcoa Global Fasteners Inc., et al., No. D070771, Calif. App, 4th Dist., Div. 1; 2017 Cal. App. LEXIS 503).



Residents: Groundwater Case Against Fire-Suppressant Foam Makers, Sellers Valid
PHILADELPHIA - A group of Pennsylvania residents on May 22 filed a brief in Pennsylvania federal court arguing that their groundwater contamination lawsuit against a group of chemical companies should not be dismissed because their claims are "proper" and are not barred by the doctrine of primary jurisdiction (Hanah Bates, et al. v. 3M Company, et al., No. 16-4961, E.D. Pa.).



Company Drops Request For Protective Order; Inspection Chemical Tower Permitted
CONCORD, N.H. - A plastics manufacturer on May 17, pursuant to an agreement among the parties, voluntarily withdrew its motion seeking a protective order regarding the inspection of a decommissioned coating tower in connection with a lawsuit brought by residents who contend that the company contaminated their drinking water with perfluorooctanoic acid (also known as C8) (Kevin Brown, et al. v. Saint-Gobain Performance Plastics Corporation, et al., No. 16-242, D. N.H.).



Judge: Some New Evidence Allowed In Property Contamination Case
BATON ROUGE, La. - A federal judge in Louisiana on May 31 partially granted and partially deferred pretrial evidence motions in a lawsuit brought by homeowners against a developer that they allege is responsible for contaminating their properties with raw sewage, finding that there was no basis to exclude from evidence certain medical documents related to the alleged pollution (Cedar Lodge Plantation LLC, et al. v. CSHV Fairway View I LLC, et al., No. 13-129, M.D. La.; 2017 U.S. Dist. LEXIS 83690).



6th Circuit: Toxicology Expert Properly Excluded For Lack Of Reliability
CINCINNATI - An Ohio federal court properly excluded expert testimony that people living near a steel mill "will suffer harm to their health" due to elevated levels of manganese on their properties because the expert failed to provide "any actual proof" to support his opinion, the Sixth Circuit U.S. Court of Appeals held May 25 (Michael Abrams, et al. v. Nucor Steel Marion, Inc., No. 15-4422, 6th Cir., 2017 U.S. App. LEXIS 9323).



School Officials: Lead Case Related To Drinking Water Should Be Dismissed
PITTSBURGH - Two Pennsylvania school district officials on June 1 filed a brief in federal court arguing that a lawsuit filed against them and the school district by a mother who alleges that her daughter was poisoned by lead and copper drinking water at the child's elementary school should be dismissed (Jennifer Tait, et al. v. Butler Area School District, et al., No. 17-182, W.D. Pa.).



Panel Reverses, Says Tenants In Lead-Paint Case May Compel Discovery From Landlord
NEW YORK - An appeals panel in New York on May 23 reversed a lower court's ruling and concluded that tenants who sued their landlord alleging injuries from exposure to lead-based paint had made a valid request to compel discovery pertaining to potential lead violations in the entire building where their apartment was located (Z.D., by her mother and natural guardian Zaimah A. v. MP Management LLC, No. 3436N, 26043/14, N.Y. Sup., App. Div., 1st Dept.; 2017 N.Y. App. Div. LEXIS 3989).



Maryland High Court Reverses Lead Paint Ruling, Says Causation Evidence Sufficient
ANNAPOLIS, Md. - A divided Maryland Court of Appeals on May 30 reversed and remanded a lead-paint poisoning lawsuit, finding that the plaintiff had provided sufficient evidence of causation (Terrence Rogers v. Home Equity USA Inc., No. 57 Sept. Term, Md. App.; 2017 Md. LEXIS 387).



Appeals Court: Tenant Fails To Show Causation In Lead Paint Poisoning Lawsuit
INDIANAPOLIS - The Indiana Court of Appeals on May 30 ruled that a woman who sued the owner of her rental house failed to establish causation that his negligence in allowing lead-paint hazards on the premises caused her grandson's injuries, which she contended included autism (Myra Duby v. Christopher Woolf, No. 84A05-1612-CT-2815, Ind. App.; 2017 Ind. App. LEXIS 224).



Judge: Agent Orange Benefits Properly Denied, But Veteran's PTSD Claim Valid
WASHINGTON, D.C. - A federal judge in the U.S. Court of Appeals for Veterans Claims on May 23 remanded a ruling by the Board of Veterans Appeals regarding a veteran's claims for post-traumatic stress disorder (PTSD), but ruled that his claim for injury from exposure to the herbicide Agent Orange was properly denied (Robert L. Federico v. David J. Shulkin, No. 16-0507, U.S. App., Vet. Clms.; 2017 U.S. App. Vet. Claims LEXIS 744).



Judge Remands Agent Orange Case, Says Inferences From Medical Evidence Not Proper
WASHINGTON, D.C. - A federal judge in the U.S. Court of Appeals for Veterans Claims on May 19 remanded a decision by the Board of Veterans Appeals that denied a veteran's claim for benefits related to exposure to the herbicide Agent Orange on grounds that the board "is not free to make its own inferences from the medical evidence" (Jerry E. Van Es v. David J. Shulkin, No. 16-943, Vet. Clms.; 2017 U.S. App. Vet. Claims LEXIS 724).