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Preview: LexisNexis® Mealey's™ Lead Legal News

LexisNexis® Mealey's™ Lead Legal News

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Maryland Appeals Court Overturns Default Judgment Due To Process Of Service Failure
ANNAPOLIS, Md. - The Maryland Court of Special Appeals on May 27 overturned a default judgment against a Baltimore City landlord for failure to follow requirements in the state's "Reduction In Lead Risk in Housing" law. The appeals court held that the administrative law judge failed to correctly determine whether the landlord had been properly served papers by the Maryland Department of the Environment's (MDE) administrative complaint, order and penalty (Keith N. Wilson v. Maryland Department of the Environment, No. 2551, Md. Spec. App., Sept. Term, 2012; 2014 Md. App. LEXIS 48).

Pennsylvania Magistrate Judge Rules Associations Have Standing In Clean Water Suit
PITTSBURGH - A federal magistrate judge in the Western District of Pennsylvania on May 28 held that three individuals living in Ford City, Pa., as well as two environmental associations have standing to proceed with several consolidated actions filed under the federal Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) against the Borough of Ford City, Pa., PPG Industries Inc. and the Buffalo & Pittsburgh Railroad Inc. (BPRI) for failure to file permits for discharges into the Allegheny River (PennEnvironment, et al. v. PPG Industries Inc., et al., Nos. 13-342, 12-527, 13-1395, 13-1396 and 14-229, W.D. Pa.; 2014 U.S. Dist. LEXIS 72335).

Pennsylvania Federal Judge Dismisses Administrative Claim In Lead Dust Suit
PITTSBURGH - A federal judge in the U.S. District Court for the Western District of Pennsylvania on June 4 dismissed claims against the U.S. Environmental Protection Agency and an EPA employee for violations of the Freedom of Information Act (FOIA), the Administrative Procedure Act (APA), as well as for negligence and due process violations, saying the EPA and its employee are protected under sovereign immunity and that the claims lack subject matter jurisdiction and fail to state a cognizable cause of action (Jacquelyn V. N'Jai v. U.S. Environmental Protection Agency, et al., No. 13-1212, W.D. Pa.; 2014 U.S. Dist. LEXIS 75712).

Panel Upholds Denial Of Apportioning Defense To Insolvent Insurer
NEW YORK - A trial court justice correctly declined to apportion defense to an insolvent insurer not named in an insured's lawsuit regarding coverage for an infant's lead poisoning, a New York appeals panel affirmed April 3 (Karen Manor Associates LLC, et al. v. Virginia Surety Company Inc., et al., No. 11701 307128/09, N.Y. App. Div., 1st Dept.).

EPA Settlement Will Fund Blood-Lead Testing For Children In Hawaii
HONOLULU - The U.S. Environmental Protection Agency Region 9 announced in a press release on June 4 that a settlement with Destination Maui Inc. valued at $55,000 will fund blood-lead testing for 350 children at health clinics operated by Malama I Ke Ola Health Center that serve low-income and homeless residents in Maui.

EPA Penalizes Missouri Renovation Firm For Violations Of Lead-Paint Rules
LENEXA, Kan. - The U.S. Environmental Protection Agency Region 7 said in a press release issued June 2 that it has ordered a Missouri renovation company to pay $9,548 in civil penalties to settle allegations it violated the agency's Renovation, Repair and Painting (RRP) Rule.

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Maine High Court Overturns Defense Verdict, Reinstates Punitive Damages Claim
PORTLAND, Maine - The Maine Supreme Judicial Court on May 6 overturned a trial court's judgment in a lead exposure lawsuit and remanded the action for a new trial based on the trial court's error in excluding plaintiff expert testimony, in jury instructions on proximate cause and liability and in dismissing claims of intentional infliction of emotional distress and the related punitive damages (Paula Bratton, et al. v. Halsey McDonough, No. Som-12-400, Maine Sup.; 2014 ME LEXIS 70).

New York Court: Realty Company May Be Liable For Lead Exposure
NEW YORK - A New York justice on April 30 denied a motion for summary judgment to defendant J&M Realty Services Corp. in a lead exposure cause of action, saying there remain questions about how and when a plaintiff child was exposed to lead while living in an apartment it owned and operated. The trial court further found that while the child had only one slightly elevated lead-blood level, it is well known that exposure to lead in any amount by a child can leave lasting damage (Jean Carlos Peralta, an infant under the age of fourteen years, by his father, Carlos Peralta, et al., v. J&M Realty Services Corp., No. 102053/2008, N.Y. Sup., New York Co.; 2014 N.Y. Misc. LEXIS 1996).

New York Justice Denies Lead Plaintiff Leave To Amend Suit To Include City
BRONX, N.Y. - A New York justice on March 4 denied a plaintiffs' motion for leave to interpose a belated notice of claim asserting claims against nonparty New York City and two of its agencies, as well as a motion for leave to amend their complaint to name the city and its agencies as defendants in a lead exposure cause of action (Mohammad Gaye, et al., v. Haanh N. Pham, et al., No. 350189/2013, N.Y. Sup., Bronx Co.; 2014 N.Y. Misc. LEXIS 986).

Santa Clara Judge Denies New Trial, Motions To Vacate In Public Nuisance Suit
SAN JOSE, Calif. - The trial court judge in the statewide California public nuisance lawsuit on March 24 denied motions for a new trial filed by lead manufacturing defendants The Sherwin-Williams Co., NL Industries and ConAgra Grocery Products Co. The defendants sought a new trial following the trial court's order creating a $1.1 billion inspection and abatement fund (Santa Clara County, et al. v. Atlantic Richfield Co., et al., No. 00-788657, Calif. Super., Santa Clara Co.; See March 2014, Pages 4 and 6).

Panel: Act-Of-War Defense Bars Claim Seeking Recovery Of Toxic Dust Cleanup Costs
NEW YORK - The Second Circuit U.S. Court of Appeals on May 2 affirmed a federal court's finding that the attacks on the World Trade Center (WTC) on Sept. 11, 2001, constituted an act of war, allowing the defendants in a Comprehensive Environmental Response, Compensation, and Liability Act lawsuit to raise the defense against claims seeking reimbursement for cleanup costs of toxic dust, including lead dust (In Re: September 11 Litigation: Cedar & Washington Associates, LLC v. The Port Authority of New York and New Jersey, et al., No. 10-4197, 2nd Cir.; 2014 U.S. App. LEXIS 8293).

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Maryland Jury Awards $1.3 Million To Lead Exposure Plaintiff
BALTIMORE - A jury in the Baltimore City, Md., Circuit Court on March 18 awarded $1.36 million to a lead exposure plaintiff in her negligence lawsuit against city landlord Stanley Rochkind, S&S Partnership and Dear Management & Construction Co. Inc., a source told Mealey Publications (Starlena Stevenson v. S&S Partnership, et al., No. 24-C-11-008722, Md. Cir., Baltimore City).

Maryland High Court Finds Lead Plaintiff Had 'Good Cause' To Delay Notice Of Suit
ANAPOLIS, Md. - The Maryland Court of Appeals on March 26 held that a trial court erred in finding that a lead exposure plaintiff substantially complied with the 180-day notice requirement of the Maryland Local Government Tort Claims Act (LGTA) but that the court was within its discretion to find that there was "good cause" for the plaintiff's family to fail to give timely written notice of her potential claim of lead exposure to the defendant (Amafica Woodland v. Housing Authority of Baltimore City, No. 18 September Term, 2013, Md. App., 2014 Md. 162; See May 2012, Page 4).

California Appeals Court Overturns Dismissal Of Workplace Exposure Suit
LOS ANGELES - The Second District California Court of Appeal, Division Two, on March 11 overturned a trial court summary judgment in a workplace lead exposure cause of action brought by a company's former employee who alleged that he was terminated due to a disability caused by lead toxicity while working for the company (Ronnie Owens v. American Cable Services, et al., No. BC441242, Calif. App., 2nd Dist., Div. Two; 2014 Cal. App. LEXIS 1737).

South Dakota High Court Remands Insurance Dispute For Review Of Lead Exclusion
PIERRE, S.D. - The South Dakota Supreme Court on March 12 reversed and remanded a trial court order granting summary judgment to two defendant insurance companies, saying there remains a question of fact as to whether the insurers have a duty to indemnify or defend an underlying lead exposure lawsuit filed against a policyholder (Jonathan "Jon" Quinn, et al., v. Farmers Insurance Exchange, et al., No. 26680, S.D. Sup.; 2014 S.D. LEXIS 15).

New York Appeals Court Affirms No Coverage Owed For Underlying Lead Suit
ALBANY, N.Y. - An insurer has no duty to defend its insured against an underlying personal injury suit arising out of lead exposure because the insurer submitted sufficient evidence that it properly notified its insured of the addition of a lead exclusion to the policy, the New York Court of Appeals said April 3 (Preferred Mutual Insurance Co. v. John Donnelly, et al., No. 128 SSM 6, N.Y. App.; 2014 N.Y. LEXIS 660; See December 13, Page 11).

Judge Adopts Magistrate's Finding That Cost-Recovery Claim Is Timely
BUFFALO, N.Y. - A federal judge in New York on March 31 adopted a magistrate judge's report and recommendation finding that NL Industries Inc.'s claim for cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is timely because a second phase of work to remove contamination from the Village of Depew, N.Y., Superfund site was a continuation of the initial remedial action (NL Industries Inc. v. ACF Industries, et al., No. 10-CV-89, W.D. N.Y.; 2014 U.S. Dist. LEXIS 43979).

Missouri Federal Judge Certifies Class Of Residents Near 1960s Pipeline Leak
ST. LOUIS - A Missouri federal judge on March 31 certified a class of West Alton, Mo., residents within a quarter mile of a 1960s pipeline leak but said the plaintiffs had failed to show actual exposure to benzene or lead necessary to justify medical monitoring (Bruce Smith, et al. v. ConocoPhillips Pipe Line Company, No. 4:11-CV-2040, E.D. Mo., Eastern Div.; 2014 U.S. Dist. LEXIS 43172).

Pennsylvania Federal Judge Excludes Experts Designated To Identify Fly Ash Source
PITTSBURGH - The U.S. District Court for the Western District of Pennsylvania judge presiding over consolidated lawsuits alleging personal injury and property damage claims against the operator of a coal-fired electricity plant in western Pennsylvania entered orders March 13 excluding the expert testimony of a geologist and an environmental scientist designated by the plaintiffs to identify the fly ash on their properties; the opinions would not help the trier of fact because they are unable to determine when the fly ash was deposited on the plaintiffs' properties, according to the judge (David Patrick, et al v. FirstEnergy Generation Corp., et al., No. 08-1025, W.D. Pa.; Robert Price, et al. v. FirstEnergy Generation Corp., No 08-1030, W.D. Pa.; 2014 U.S. Dist. LEXIS 32338; 2014 U.S. Dist. LEXIS 32340; See related stories in this issue).

Diminution Opinion Granted In Part In Stack Ash Action
PITTSBURGH - The judge presiding over lawsuits alleging personal injury and property damage claims against the operator of a coal-fired electricity plant in western Pennsylvania entered an order March 31 in U.S. District Court for the Western District of Pennsylvania granting in part motions to exclude the conclusions of experts designated by the parties to offer opinions about the effects of so-called white rain and black rain on property values in the putative class area (Michael Hartle, et uxor v. FirstEnergy Generation Corp., No. 08-1019, W.D. Pa.; 2014 U.S. Dist. LEXIS 43033; See related stories in this issue)

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