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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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DuPont Says It Should Not Be Forced To Disclose Documents In C8 Injury Litigation
COLUMBUS, Ohio - E.I. du Pont de Nemours and Co. on Nov. 21 filed a brief in the perfluorooctanoic acid (known as C8) injury multidistrict litigation, arguing that the MDL court should deny the plaintiffs' motion to compel the production of underlying data the company used to create witness summaries for a cancer registry used in the first bellwether trial (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).



Federal Judge: Officials Must Deliver Bottled Water To Flint Residents; Stay Denied
DETROIT - A federal judge in Michigan on Dec. 2 denied a motion filed by Michigan state officials and refused to stay a district court ruling that the defendants provide bottled water to every house in Flint, Mich., in response to the lead-contaminated water crisis (Concerned Pastors for Social Action, et al. v. Nick A. Khouri, et al., No. 16-10277, E.D. Mich.).



Divided 6th Circuit Remands Flint Lead Water Crisis Class Action To State Court
CINCINNATI - A divided panel of the Sixth Circuit U.S. Court of Appeals on Nov. 16 remanded to state court a class action lawsuit brought by residents of Flint, Mich., against engineering firms that were involved in making the decision to switch the city's drinking water source to the Flint River, resulting in lead-contaminated drinking water, finding that the local controversy exception to the Class Action Fairness Act of 2005 (CAFA) requires the case to be tried in state court (Jennifer Mason, et al. v. Lockwood, Andrews & Newnam PC, et al., No. 16-2313, 6th Cir.; 2016 U.S. App. LEXIS 20554).



Flint Water Crisis Plaintiffs: Defense Motion To Change Venue Should Be Denied
GRAND RAPIDS, Mich. - Michigan residents who allege that state employees are liable for the lead-contaminated water crisis in Flint, Mich., on Nov. 22 filed a brief in Michigan federal court arguing that the court should deny the defendants' motion to stay proceedings pending a final decision on their motion to change venue because the defendants' "purported concerns" do not justify a stay (Tamara Nappier v. Richard Snyder, et al., No. 16-636, W.D. Mich.).



State Employees: Flint Water Crisis Venue Decision Needed Before Dismissal Ruling
DETROIT - Employees of the Michigan Department of Environmental Quality (MDEQ) on Nov. 28 filed a brief asking a Michigan federal court to rule on their motion to change venue before it rules on pending motions to dismiss a lawsuit brought by residents of Flint, Mich., who allege that the employees are liable for the city's lead-contaminated water crisis (Frances Gilcreast, et al. v. Lockwood, Andrews & Newnam, No. 16-11173, E.D. Mich.).



Illinois Wrongful Death Case Sent To Roundup MDL In Northern California
WASHINGTON, D.C. - The U.S. Judicial Panel on Multidistrict Litigation (JPMDL) on Nov. 28 issued an order transferring another case to the multidistrict litigation for injuries allegedly caused by exposure to the weed killer Roundup, stating that the wrongful death lawsuit brought against Monsanto Co. by an Illinois man involves questions of fact common to other actions already sent to the MDL (In Re: Roundup Products Liability Litigation, No. 2741, JPMDL).



3 Cities Say Their Cases Against Monsanto Sufficiently Demonstrate Standing
SAN FRANCISCO - Three California cities that are suing Monsanto Co. and its affiliates seeking to recover the costs of removing polychlorinated biphenyl (PCB) contamination from storm water on Nov. 14 filed a joint brief in California federal court, arguing that the defendants' motion to dismiss should be denied because they allege a property interest sufficient to demonstrate standing to bring a public nuisance claim (City of San Jose v. Monsanto Co., et al., No. 15-03178; City of Oakland v. Monsanto Co., et al., No. 15-05152; and City of Berkeley v. Monsanto Co., et al., No. 16-00071, N.D. Calif.).



Monsanto: City Of Spokane's PCB Contamination Case Fails To State A Claim
SPOKANE, Wash. - Monsanto Co. and its affiliates on Nov. 23 filed an answer against the city of Spokane, contending that the city's attempt to collect remediation costs for alleged contamination of its groundwater with polychlorinated biphenyls (PCBs) should be denied because the plaintiff fails to state a claim (City of Spokane v. Monsanto Company, et al., No. 15-00201, E.D. Wash.).



Plaintiff: Good Cause Exists For Expert Substitution In Oil Rig Explosion Case
SAN FRANCISCO - Nigerian residents who contend that they have been injured as a result of an oil rig explosion on Nov. 30 filed a brief in California federal court, contending that their motion to substitute a fisheries expert in place of the expert they originally scheduled is based on good cause under Federal Rule of Civil Procedure (FRCP) 16 (Natto Iyela Gbarabe v. Chevron Corporation, No. 14-173, N.D. Calif.).



Judge: New Hampshire C8 Contamination Case Belongs In Federal Court
CONCORD, N.H. - A federal judge in New Hampshire on Nov. 30 ruled that residents who contend that a company contaminated their drinking water with perfluorooctanoic acid (known as C8) did not satisfy the local-exception requirement to the Class Action Fairness Act (CAFA) and therefore were not entitled to have the case remanded to state court (Kevin Brown, et al. v. Saint-Gobain Performance Plastics Corp., et al., Nos. 16-242 and 16-243, D. N.H.).



Fertilizer Maker: Tainted Groundwater Case Fails; Jurisdiction Lacking
TAMPA, Fla. - Fertilizer manufacturers who are being sued for groundwater contamination allegedly connected to an incident at their plant moved in federal court in Florida on Nov. 21, contending that the case should be dismissed because the plaintiffs' complaint "does not contain a single allegation that" contaminants have been detected beyond the borders of the property where the plant is located and because jurisdiction is lacking (Nicholas Bohn, et al. v. The Mosaic Company, et al., No. 16-02724, M.D. Fla.).



EPA Drinking Water Plan Seeks Equity In Infrastructure, Reduction Of Lead Risks
WASHINGTON, D.C. - The U.S. Environmental Protection Agency on Nov. 30 released its drinking water action plan, which the agency refers to as "a national call to action" that urges all levels of government to work to promote equity for drinking water infrastructure and reduce lead contamination risks, along with other priorities.



2nd Circuit Hears Arguments On Injunction Relating To Creosote Injury Claims
NEW YORK - Attorneys for the parties in a creosote-injury lawsuit on Nov. 16 presented oral arguments before the Second Circuit U.S. Court of Appeals debating whether the plaintiffs are prohibited from amending their complaint to assert certain toxic tort claims that the defendants argue are barred by an injunction and are claims that belong in the bankruptcy estate for the chemical company responsible for the plaintiffs' exposure (Avoca Plaintiffs v. Kerr-McGee Corporation; In Re: Tronox Inc., No. 16-343, 2nd Cir.).



3rd Circuit Hears Arguments On Radiation Exposure At Pennsylvania Power Plant
PHILADELPHIA - Attorneys for a group of Pennsylvania residents and a power plant presented oral arguments before the Third Circuit U.S. Court of Appeals on Nov. 10, debating the causation of the residents' injuries, including cancer, which the residents allege stem from exposure to radioactive materials emitted from the power plant. The plaintiffs' attorney argued that qualitative differential diagnosis was a valid means of showing that the residents had been exposed to radiation, while attorneys for the company argued that the plaintiffs had failed to establish exposure (Michelle McMunn, et al. v. Babcock & Wilcox Power Generation Group Inc., et al, No. 15-3506 [consolidated], 3rd Cir.).



Judge Remands Agent Orange Benefits Case, Says Claim May Be Substantiated
WASHINGTON, D.C. - A federal judge in the U.S. Court of Appeals for Veterans Claims on Nov. 30 vacated and remanded a ruling that denied benefits to a veteran's widow for his cancer and subsequent death in connection with exposure to Agent Orange, finding that the Board of Veterans Appeals failed to determine if the veteran's cancer could substantiate a claim for benefits (Anita Gauldock v. Robert A. McDonald, No. 15-2893, Vet. Clms.; 2016 U.S. App. Vet. Claims LEXIS 1846).



Parties Reach $151M Settlement In West Virginia Drinking Water Contamination Case
CHARLESTON, W.Va. - Parties engaged in a groundwater contamination lawsuit related to the chemical spill of 4-methylcyclohexane methanol (MCHM) have reached a $151 million settlement agreement in which $76 million in payments are guaranteed, one of the attorneys representing the plaintiffs told Mealey Publications Nov. 2 (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1374, S.D. W.Va.).



Judge Denies DuPont's Request For Summary Judgment On Causation In C8 Litigation
COLUMBUS, Ohio - The federal judge in Ohio presiding over the multidistrict litigation brought by residents against E.I. du Pont de Nemours and Co. pertaining to alleged injuries from exposure to perfluorooctanoic acid (known as C8) on Nov. 7 denied the company's motion for summary judgment on specific causation related to the first non-bellwether trial on grounds that the plaintiff's disease was listed as a "linked disease" for the purpose of the litigation (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).



Plaintiff: Court Should Deny DuPont's Summary Judgment Motion On Punitive Damages
COLUMBUS, Ohio - A man who contends that he was injured as a result of exposure to perfluorooctanoic acid (known as C8) from a plant operated by E.I. du Pont de Nemours and Co. on Nov. 7 filed a brief in Ohio federal court in one of the cases included in the multidistrict litigation, arguing that the court should deny the company's motion for summary judgment because the issue of the availability of punitive damages has been determined (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).



City Of Flint, Mich., Opposes Venue Transfer In Lead Water Crisis Litigation
DETROIT - The city of Flint, Mich., on Nov. 11 filed a brief in the U.S. District Court for the Eastern District of Michigan opposing a motion filed by state employees who want the lawsuit brought by residents for injuries from lead-contaminated drinking water transferred to a different venue (Myia McMillian, et al. v. Gov. Richard Dale Snyder, et al., No. 16-10796, E.D. Mich.).



Michigan State Employees: Water Case Should Be Stayed Pending Decision On Venue
DETROIT- Employees with the Michigan Department of Environmental Quality (MDEQ) on Nov. 7 filed a brief in Michigan federal court contending that it should stay all proceedings in the lead-contaminated water case brought by residents of Flint, Mich., against the state pending a final decision on a prior motion for change of venue (Melissa Mays, et al. v. Gov. Rick Snyder, et al., No. 15-14002, E.D. Mich.).



Judge: State Officials Must Provide Bottled Water To Every House In Flint, Mich.
DETROIT - A federal judge in Michigan on Nov 10 granted a preliminary injunction to residents of Flint, Mich., who sued the city and state officials related to the lead-contaminated drinking water crisis in Flint, ordering the defendants to provide door-to-door delivery of bottled water (Concerned Pastors for Social Action, et al. v. Nick A. Khouri, et al., No. 16-10277, E.D. Mich.).



Roundup Plaintiff's 'End-Run Around' MDL Court Should Be Denied, Monsanto Says
SAN FRANCISCO - Monsanto Co. filed a brief in a California federal court on Oct. 27, arguing that a plaintiff whose case is already included in the multidistrict litigation for alleged injuries related to the herbicide Roundup is making "an improper end-run around" the MDL court by filing a separate brief in the initial case he filed against the company (Edwin Hardeman v. Monsanto Co., No. 15-525, N.D. Calif.).



City Of San Jose: Ruling In Similar Case Supports Action Against Monsanto
SAN JOSE, Calif. - The city of San Jose, Calif., on Nov. 1 filed a notice of supplemental authority in its lawsuit against Monsanto Co. and two of its affiliates concerning the city's action seeking damages for alleged polychlorinated biphenyl (PCB) contamination, contending that based on a ruling in a similar case, there is an adequate causal connection for the case to proceed (City of San Jose v. Monsanto Company, et al., No. 15-03178, N.D. Calif.).



Chevron: Report On Impact Of Oil Rig Explosion Should Not Be Admitted As Evidence
SAN FRANCISCO - Chevron Corp., which was sued by Nigerian residents who contend that they have been injured as a result of an oil rig explosion, on Nov. 4 filed a brief in California federal court arguing that the court should exclude from evidence a research report regarding the impact of the explosion on grounds that it is inadmissible under federal evidentiary rules (Natto Iyela Gbarabe v. Chevron Corporation, No. 14-173, N.D. Calif.).



Judge Will Not Change Briefing Schedule In Halliburton Radioactive Materials Case
OKLAHOMA CITY - A federal judge in Oklahoma on Nov. 10 ruled that plaintiffs who sued Halliburton Energy Services Inc. (HESI) for injuries from radioactive waste contamination could not modify the scheduling order in the case because they had enough time to submit an expert report yet failed to do so (Amanda Alexander, et al. v. Halliburton Energy Services Inc., No. 11-1343, W.D. Okla.; 2016 U.S. Dist. LEXIS 155978).



Judge Denies Veteran Benefits, Says Evidence Of Exposure To Agent Orange Lacking
WASHINGTON, D.C. - A federal judge in the Court of Appeals for Veterans Claims on Nov. 4 denied a veteran's claim for damages stemming from exposure to Agent Orange, ruling that he failed to establish that he had been exposed to the chemical during his service in the military (Gerald Brown v. Robert A. McDonald, No. 14-4427, Vet., Clms.; 2016 U.S. App. Vet. Claims LEXIS 1704).



Judge: Board Properly Denied Benefits To Veteran Related To Agent Orange Exposure
WASHINGTON, D.C. - A federal judge in the U.S. Court of Appeals for Veterans Claims on Nov. 4 ruled that a veteran's claim for benefits related to exposure to Agent Orange was not supported by a medical examination and affirmed a decision that denied the veteran benefits (Ray S. Goldston v. Robert A. McDonald, No. 15-3538, U.S. App., Vet. Clms.; 2016 U.S. App., Vet Claims LEXIS 1708).



Judge: Some Of Flint, Mich., Water Crisis Plaintiffs' Claims Survive Dismissal
GRAND RAPIDS, Mich. - A judge in Michigan on Oct. 26 partially dismissed and partially upheld causes of action brought by residents of Flint, Mich., against the state's governor and other employees related to the lead-contaminated water crisis, concluding that the plaintiffs' claims for injury to bodily integrity and inverse condemnation were valid (Melissa Mays, et al. v. Gov. Rick Snyder, et al., No. 16-000017, Mich. Clms.).



Flint, Mich., Residents: State Department Of Education Liable in Lead Water Crisis
DETROIT - A class of Michigan residents on Oct. 18 filed a putative class action lawsuit against the Michigan Department of Education (MDE), seeking declaratory and injunctive relief "to vindicate the rights" of school-age children residing in Flint, Mich., who currently have disabilities, or who are at risk of developing them, due to elevated levels of lead in the drinking water (D.R., as a minor through parent and next friend Dawn Richardson, et al. v. Michigan Department of Education, et al., No. 16-cv-13694, E.D. Mich.).



Lawmakers: State's Efforts To Block Flint Water Crisis Lawsuits Should Be Probed
WASHINGTON, D.C. - Five Michigan Democrats in the U.S. House of Representatives on Oct. 26 sent a letter to U.S. Attorney General Loretta Lynch asking her to investigate a series of concerns pertaining to lawsuits involving the lead-contaminated water crisis in Flint, Mich., including the way in which the State of Michigan is applying its emergency manager law (EML) to block the City of Flint from suing the state.



Flint Water Case Should Be Transferred To Ensure Fair Trial, Defendants Say
DETROIT - Employees of the State of Michigan on Oct. 27 filed a brief in Michigan federal court arguing that the lawsuit brought against it by residents of Flint, Mich., in relation to the lead-contaminated water crisis should be moved to a venue in another state because "the adverse publicity pervading the state jeopardizes" their right to a fair trial by an impartial jury (Frances Gilcreast, et al. v. Lockwood, Andrews & Newnam, No. 16-11173, E.D. Mich.).



2nd Circuit Denies Rehearing In $18.5B Fraud Case Related To Lago Agrio Contamination
NEW YORK - The court clerk for the Second Circuit U.S. Court of Appeals on Oct. 27 issued an order denying a petition for rehearing sought by a group of Ecuadorian residents and their attorney in the fraud case surrounding the $18.5 billion judgment the residents had won against Chevron Corp., which was reversed, pertaining to alleged injuries related to the company's involvement with an oil consortium (Chevron Corporation v. Steven Donziger, No. 14-826 [consolidated with] Chevron Corporation v. Hugo Gerardo Camacho Naranjo, No. 14-832, 2nd Cir.).



DuPont: C8 Lawsuit Should Be Dismissed For Plaintiff's Lack Of Causation
COLUMBUS, Ohio - E.I. du Pont de Nemours and Co. on Oct. 24 filed a brief in Ohio federal court, arguing that one of the cases included in the multidistrict litigation regarding alleged injuries from exposure to perfluorooctanoic acid (known as C8) should be dismissed because the plaintiff cannot establish that C8 from DuPont's Washington Works facility was the proximate and specific cause of his testicular cancer (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).



Legislator Questions EPA's Ability To Assess Glyphosate Based On 'Sound Science'
WASHINGTON, D.C. - The chairman of the House Committee on Science, Space and Technology wrote a letter to the administrator of the U.S. Environmental Protection Agency on Oct. 25 stating that the committee has obtained information that "appears to contradict" the administrator's responses to questions the committee posed regarding the EPA's oversight of the herbicide glyphosate. In the letter, the chairman indicates that in light of the contradictions, the EPA's decision to delay official review of glyphosate does not "instill confidence that EPA will fairly assess glyphosate based on sound science."



Monsanto: San Jose's PCB Contamination Complaint 'Defective'; Dismissal Sought
SAN JOSE, Calif. - Monsanto Co. and two of its affiliates on Oct. 14 filed a brief in California federal court arguing that it should take judicial notice of evidence that the City of San Jose's polychlorinated biphenyl (PCB) contamination lawsuit was already ruled "defective" as it considers the defendants' motion to dismiss that lawsuit (City of San Jose v. Monsanto Company, et al., No. 15-03178, N.D. Calif.).



Judge: City Has Valid Claim Against Monsanto For PCB Groundwater Contamination
SPOKANE, Wash. - A judge in Washington state on Oct. 26 ruled that the City of Spokane, Wash., sufficiently alleged claims against Monsanto Co. and its affiliates for contamination of the city's groundwater with polychlorinated biphenyls (PCBs); therefore, it had standing to seek remediation costs from the company (City of Spokane v. Monsanto Company, et al., No. 15-00201, E.D. Wash.; 2016 U.S. Dist. LEXIS 148436).



Judge: Most Of Settlement Transcript In Train Derailment Case Should Not Be Sealed
CAMDEN, N.J. - The federal judge in New Jersey presiding over claims brought by residents who say they were injured as a result of a vinyl chloride spill into Mantua Creek on Oct. 17 ruled that the majority of a transcript pertaining to settlement transactions could not be sealed (In re: Paulsboro Derailment Cases [Karen Armistead v. Consolidated Rail Corp., et al., No. 13-2358], Master Docket No. 13-784, D. N.J.).



Residents: Chemical Companies Liable For Groundwater Contamination
PHILADELPHIA - A group of plaintiffs filed a lawsuit on Oct. 13 in the U.S. District Court for the Eastern District of Pennsylvania against 3M Co. and other defendants, contending that their products contaminated drinking water with toxic chemicals when they were used at two U.S. Naval facilities near Philadelphia and migrated into the groundwater (Leonard Grande, et al. v. 3M Company, et al., No. 16-5380, E.D. Pa.).



Zinc Smelter Operator Seeks Communication With Nonrepresented Plaintiffs
OKLAHOMA CITY - The operator of a zinc smelter on Sept. 22 filed a brief in Oklahoma federal court seeking approval to engage in proposed communications with 18 nonrepresented putative class members regarding the eligibility of their properties for soil remediation related to a groundwater contamination lawsuit (Helen Briggs, et al. v. Freeport McMoran Copper & Gold Inc., No. 13-1157, W.D. Okla.).



Judge: Injunction Not Needed In Groundwater Contamination Lawsuit
CHARLESTON, W.Va. - A federal judge in West Virginia on Oct. 26 ruled that the injunction sought by some businesses that had been contacted by class counsel seeking information on damages in a contaminated groundwater lawsuit was unwarranted (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1347, S.D. W.Va.).



Judge Says Inmate's Drinking Water Complaint States A Valid Claim
CHICAGO - A federal judge in Illinois on Oct. 26 ruled that a prison inmate had sufficiently alleged that the drinking water in the facility where he is incarcerated contains toxins and may be the cause of his health problems (Jerrold Davis v. Tarry Williams, et al., No. 15-8130, N.D. Ill.; 2016 U.S. Dist. LEXIS 148065).



EPA Issues White Paper Proposing Revisions To Lead And Copper Rule
WASHINGTON, D.C. - The U.S. Environmental Protection Agency released a white paper in October that proposes revisions to the federal Lead and Copper Rule (LCR), including the possible replacement of all water service lines containing lead.



Residents Affected By Toxic Chemical Spill Seek Class Status
KNOXVILLE, Tenn. - A group of residents on Oct. 14 filed a brief in a Tennessee federal court arguing that it should certify a class action against CSX Transportation Inc. and another railroad company related to a spill of toxic chemicals that resulted from a train derailment based on the need to evacuate the residential area surrounding the site (Charles Tipton, et al. v. CSX Transportation Inc., et al., No. 15-311, E.D. Tenn.).