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

LexisNexis® Mealey's™ Emerging Toxic Torts Legal News

Headline Emerging Toxic Torts Legal News from LexisNexis®


Whistleblower: Issues Remain About Protected Speech In Flint Water Crisis Case
CINCINNATI - A woman who was formerly the administrator for the city of Flint, Mich., and then became a whistleblower after the lead-contaminated water crisis in that city on Feb. 14 filed a brief in the Sixth Circuit U.S. Court of Appeals contending that a district court erred when it granted the city's motion for summary judgment because there are genuine disputes of material facts regarding her claims under state law, as well as the First Amendment (Natasha Henderson v. City of Flint, Mich., No. 17-2031, 6th Cir.).

Class, Defendants Debate Jurisdiction And Discovery In Flint Lead Water Case
DETROIT - Engineering consultants named as defendants in the lead-contaminated water crisis in Flint, Mich., and the class of plaintiffs alleging that they have been injured by that water on Feb. 9 filed briefs debating whether the federal district court has jurisdiction to order certain discovery at the current stage of the litigation (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Agency Seeks To Rescind Most Of 2016 Methane Waste Prevention Rule
WASHINGTON, D.C. - The U.S. Bureau of Land Management (BLM) on Feb. 13 announced its proposed changes to the 2016 Waste Prevention Rule, calling for the rescission of the majority of regulations on oil and gas operators who had been required to control the venting and flaring of methane produced by drilling activities.

California High Court Denies Review Of $1.15B Award In Lead Paint Lawsuit
SACRAMENTO, Calif. - The California Supreme Court on Feb. 14 denied a petition for review filed by the former makers of lead-based paint who contended that the high court should hear their appeal because an appellate court "misstated and omitted material facts" when it found that there was "substantial evidence" that the companies promoted paints containing white lead pigments for interior residential use (The People v. ConAgra Grocery Products Company, et al., No. S246102, Calif. Sup.).

Plaintiffs In Lead Case Seek Sanctions, Say Defense Counsel Withheld Evidence
MILWAUKEE - Three residents filed a brief in a Wisconsin federal court on Feb. 8 asking it to consider sanctions against the attorney of a company they sued for allegedly causing their injuries from exposure to lead-based paint, on grounds that the attorney withheld evidence concerning the successor-in-interest status of his client (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).

DuPont C8 Trial Judge Approves Payment Of More Than $1.78M To Claims Administrator
COLUMBUS, Ohio - A federal judge in Ohio on Feb. 9 granted a motion by plaintiffs in the multidistrict litigation brought against E.I. du Pont de Nemours and Co. for alleged injuries connected to exposure to perfluorooctanoic acid (known as C8), approving the interim disbursement of $1,787,500 to the claims administrator for services rendered (In re: E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).

Judge: MDL Court Applied 'Incorrect' Legal Standard; MTBE Negligence Claim Valid
SANTA ANA, Calif. - A federal judge in California on Feb. 8 granted a motion for reconsideration filed by the Orange County Water District (OCWD) in its methyl tertiary butyl ether (MTBE) groundwater contamination lawsuit against various gasoline companies, ruling that the multidistrict litigation court wrongly dismissed the OCWD's negligence causes of action by relying on "an incorrect legal standard" (Orange County Water District v. Unocal Corporation, et al., No. 03-1742, C.D. Calif.).

Chemical Injury Case Barred By Workers' Compensation Law, Companies Say
LANCASTER, Pa. - Armstrong World Industries Inc. and a German chemical company on Feb. 8 filed a joint brief in Pennsylvania state court contending that the third amended complaint filed by a former employee who says he was injured from exposure to trichloroethylene (TCE) and methylene chloride (MC) should be dismissed because the claims are barred by the Pennsylvania Workers Compensation Act (WCA) (Jose Rivera v. Armstrong World Industries Inc., et al., No. CI-15-06542, Pa. Comm. Pls., Lancaster Co.).

Winemaker Agrees To Pay $330,000 For Deadly Ammonia Leak
FRESNO, Calif. - Gibson Wine Co. on Jan. 29 entered into an agreement with the U.S. Department of Justice and U.S. Environmental Protection Agency in which it said it would pay a $330,000 civil penalty and spend $300,000 to make improvements to its facility following a deadly leak of anhydrous ammonia at its Sanger, Calif., site (United States of America v. Gibson Wine Co., No. 15-cv-1900, E.D. Calif.).

City Sues Chemical Companies For Damages To Groundwater From Fire-Fighting Foam
BOSTON - The city of Westfield, Mass., on Feb. 14 filed a lawsuit in Massachusetts federal court against 3M Co. and other chemical companies, seeking to recover costs associated with soil and groundwater cleanup due to contamination from the defendants' manufacture and use of aqueous film forming foam (AFFF) (City of Westfield, Massachusetts v. 3M, et al., No. 18-30027, D. Mass.).

Plaintiffs' Attempt To Lift Discovery Stay 'Improper,' Company Argues
SAN FRANCISCO - Pacific Gas & Electric Co. (PGE) filed a brief in California federal court on Jan. 25 arguing that the plaintiffs, who allege that the company's manufactured gas plant (MGP) has contaminated local groundwater, made an "improper" motion for an order confirming the lack of any stay of discovery in the action or, alternatively, an order lifting the stay (San Francisco Herring Association, et al. v. Pacific Gas & Electric Company, No. 14-04393, N.D. Calif.).

Groups: Review Of EPA Permit For Dumping Fracking Waste In Gulf Of Mexico Needed
NEW ORLEANS - The Center for Biological Diversity (CBD) and two other environmental advocacy groups on Feb. 13 filed a petition in the Fifth Circuit U.S. Court of Appeals contending that the Circuit Court should review an Environmental Protection Agency permit that allows oil companies to discharge toxins into the Gulf of Mexico, which the CBD argues puts coastal communities at risk (Center for Biological Diversity, et al. v. Environmental Protection Agency, et al., No. N/A, 5th Cir.).

Judge Affirms Denial Of Resident's Intervention Request In Contamination Suit
HAMMOND, Ind. - A federal judge in Indiana on Feb. 9 upheld a magistrate judge's ruling denying a motion to intervene filed by nearby residents of a Superfund site, holding that the request, which came two years after a settlement was reached between companies and the U.S. Environmental Protection Agency, was untimely (United States of America v. Atlantic Richfield Co., et al., No. 14-cv-312, N.D. Ind., 2018 U.S. Dist. LEXIS 21524).

Class Of Oil Platform, Processing Facility Workers Certified In Oil Spill Suit
LOS ANGELES - A California federal judge on Feb. 9 certified one of two proposed subclasses, comprising oil platform and processing facility workers, in a lawsuit against the operators of a Santa Barbara, Calif., pipeline that leaked into the Pacific Ocean in May 2015, finding that common questions predominate (Keith Andrews, et al. v. Plains All American Pipeline, L.P., et al., No. 15-4113, C.D. Calif.).

Shell To Pay $10M To Reduce Excessive Emissions From Industrial Flares
NEW ORLEANS - Shell Chemical LP on Feb. 12 entered into a consent decree in Louisiana federal court with the government and Louisiana Department of Environmental Quality (LDEQ) in which the company agreed to spend $10 million to reduce emissions of volatile organic compounds (VOCs) from the use of four industrial flares at its Norco, La., facility (United States of America, et al. v. Shell Chemical LP, No. 18-cv-104, E.D. La.).

Study: Fracking Fluids Alter Mice At 'Environmentally Relevant' Exposure Levels
AMHERST, Mass. - Researchers at the University of Massachusetts at Amherst and the University of Missouri-Columbia on Feb. 7 released a hydraulic fracturing study that suggests that the mammary gland in female mice is sensitive to mixtures of chemicals used in fracking at exposure levels that are "environmentally relevant." The researchers conclude that "the impact of these findings on the long-term health of the mammary gland, including its lactational capacity and its risk of cancer, should be evaluated in future studies."

When Strategies Go Awry: Part 4 In A Series On Cognitive Biases And Their Impact
By Laura A. Frase But Wait - I Remember It Differently: Cognitive Biases That Mess with Our Memories "'It's a poor sort of memory that only works backwards' the Queen remarked."

Residents: Supreme Court Should Not Hear Appeal Of Flint Water Crisis Ruling
WASHINGTON, D.C. - A group of Michigan residents on Feb. 5 filed a consolidated brief in the U.S. Supreme Court arguing that three separate petitions for writ of certiorari filed by various Michigan entities should be denied because a federal appellate panel "faithfully applied this Court's precedents" when it ruled that the residents' claims related to the lead-contaminated drinking water crisis in Flint, Mich., are not preempted by the Safe Drinking Water Act (SDWA) (Daniel Wyant, et al. v. Melissa Mays, et al., No. 17-901, Jeff Wright, et al. v. Melissa Mays, et al., No. 17-666, and City of Flint, et al. v. Beatrice Boler, et al., No. 17-989, U.S. Sup.).

City Of Flint, Mayor Argue Whistleblower's Water Crisis Appeal Is 'Without Merit'
CINCINNATI - The city of Flint, Mich., and its mayor on Jan. 17 filed a brief in the Sixth Circuit U.S. Court of Appeals arguing that the appeal of a woman who was formerly the city administrator and then became a whistleblower after the lead-contaminated water crisis in the city is "without merit" and that oral argument is "unnecessary" (Natasha Henderson v. City of Flint, Mich., No. 17-2031, 6th Cir.).

Split Michigan Appeals Court: Genuine Issues Of Fact Remain In Flint Water Case
LANSING, Mich. - A divided panel of the Michigan Court of Appeals on Jan. 25 ruled that a lower court did not err when it determined that genuine issues of material fact exist in a lawsuit brought by residents who sued the state and local defendants alleging liability for lead contamination related to the Flint water crisis (Melissa Mays, et al. v. Governor Rick Snyder, et al., No. 335555, Melissa Mays, et al. v. Governor Rick Snyder, et al., No. 335725, Melissa Mays, et al. v. Governor Rick Snyder, et al., No. 335726, Mich. App., 2018 Mich. App. LEXIS 201).

NRDC Sues EPA Over Directive Barring Some Scientists From Advisory Committees
NEW YORK - The Natural Resources Defense Council (NRDC) on Jan. 24 sued EPA Administrator Scott Pruitt in a New York federal court, alleging that he violated federal law when he issued a directive barring qualified scientists from serving on the agency's advisory committees that provide recommendation on safe drinking water and other environmental issues (Natural Resources Defense Council Inc. v. Scott Pruitt, No. 18-613, S.D. N.Y.).

Chicago Sues U.S. Steel For Discharging Toxic Chemicals Into Lake Michigan
HAMMOND, Ind. - The city of Chicago on Jan. 24 sued U.S. Steel Corp. in an Indiana federal court, contending that it is liable for "multiple excessive discharges of toxic chemicals" into Lake Michigan, which is the source of drinking water for more than 5 million people and arguing that U.S. Steel has committed "repeated and significant" violations of its permits under the Clean Water Act (CWA), 33 U.S.C. 1251-1387 (City of Chicago v. United States Steel Corporation, No. 18-33, N.D. Ind.).

California Methane Rule Case Should Not Be Moved To Different Venue, Groups Say
SAN FRANCISCO - Environmental advocacy groups on Jan. 23 filed a brief in California federal court arguing that Secretary of the Interior Ryan Zinke's decision to amend the Methane Waste Prevention Rule, which pertains to methane contamination by hydraulic fracturing companies, is "the second illegal step" in his "three step plan to ensure that oil and gas companies never have to comply with the duly promulgated" rule (Sierra Club, et al. v. Ryan Zinke, et al., No. 17-7187, N.D. Calif.).

Monsanto Lacks Standing To Assert Counterclaims Over PCB Contamination, Judge Says
SAN DIEGO - Monsanto Co. and its subsidiaries lack standing to assert counterclaims for response costs, defense costs and contingent liability, a federal judge in California ruled Jan. 30, finding that costs incurred in defending a lawsuit over polychlorinated biphenyl (PCB) contamination do not constitute an injury-in-fact (San Diego Unified Port District v. Monsanto Company, et al., No. 15cv578, S.D. Calif., 2018 U.S. Dist. LEXIS 14996).

Glass Manufacturer Seeking Permits To Remediate Groundwater Contamination
PITTSBURGH - Glass manufacturer PPG Industries Inc. on Jan. 22 filed a status report in a Pennsylvania federal court regarding its ongoing permitting activities pertaining to remedies for areas that the Pennsylvania Department of Environmental Protection (DEP) has determined are contaminated by PPG's manufacturing activities (PennEnvironment, et al. v. PPG Industries Inc., et al. v. AS America Inc., et al., No. 12-342, W.D. Pa.).

Restaurants Seek Inclusion In $151M West Virginia Water Settlement Class
CHARLESTON, W.Va. - Two restaurants affected by drinking water contamination litigation in West Virginia filed a brief in West Virginia federal court on Jan. 25, arguing that the West Virginia Hospitality and Travel Association (WVHTA) made no effort to determine if the restaurants were properly represented by counsel in decision to opt out of a $151 million class settlement, and now they want to be included (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1374, S.D. W.Va.).

Water District's Suit Over Hexavalent Chromium Levels Untimely, Judge Says
WASHINGTON, D.C. - A U.S. Court of Federal Claims judge on Jan. 31 dismissed the Sacramento Suburban Water District's inverse condemnation suit against the federal government over levels of hexavalent chromium in drinking water caused by the operation of the McClellan Air Force Base, finding that the suit was premature (Sacramento Suburban Water District v. United States of America, No. 17-860 C, Fed. Clms., 2018 U.S. Claims 44).

Camp Lejeune MDL Judge Warns Attorney About 'Borderline Frivolous' Motion
ATLANTA - A federal judge in Georgia presiding over consolidated suits concerning contaminated drinking water at two military bases in North Carolina on Jan. 29 denied a second motion to reconsider filed by a plaintiff seeking review of a ruling and warned the attorney about the filing of "borderline frivolous" motions (In re: Camp Lejeune, North Carolina Water Contamination Litigation, MDL 1845, Case No. 11-md-2218-TWT, N.D. Ga., 2018 U.S. Dist. LEXIS 14462).

Judge: Tainted Groundwater Case Not Precluded By Fracking Services Contract
PITTSBURGH - A federal judge in Pennsylvania on Feb. 1 denied a well services company's motion to dismiss a breach of contract lawsuit against it related to groundwater contamination that the company allegedly caused by failing to perform services properly on a hydraulic fracturing well site (EQT Production Company v. Terra Services LLC, No. 14-01053, W.D. Pa.).

Judge: Groundwater Lawsuit Filed Prematurely; California Regulation Not In Effect
WASHINGTON, D.C. - A judge in the U.S. Court of Federal Claims on Jan. 31 dismissed an inverse condemnation lawsuit against the federal government concerning drinking water that was contaminated with hexavalent chromium from McClellan Air Force Base on grounds that the case was filed prematurely (Rio Linda Elverta Community Water District v. United States of America, No. 17-859 C, Fed. Clms.; 2018 U.S. Claims LEXIS 47).

Judge: Settlement Cannot Be Enforced Until City Resolves Insurance Dispute
FRESNO, Calif. - A federal judge in California on Feb. 2 denied a landowner's motion to enforce a settlement agreement with a city accused of contributing to perchloroethylene (PCE) contamination, finding that the city must first resolve a dispute with its insurance carriers to obtain coverage (Gary Coppola, et al. v. Gregory Smith, et al., No. 11-CV-1257 AWI BAM, E.D. Calif., 2018 U.S. Dist. LEXIS 17769).

Panel Affirms Damages For Louisiana Residents Exposed To Multiple Toxic Chemicals
LAKE CHARLES, La. - A Louisiana appellate panel on Jan. 10 affirmed a lower court's decision that a group of plaintiffs were entitled to a combined total of $225,500 in damages from CITGO Petroleum Corp. and others for exposure to multiple toxic chemicals that were released during a flash flood in 2006 (Emma Bradford, et al. v. CITGO Petroleum Corp., et al., No. 17-296, La. App., 3rd Cir.; 2018 La. App. LEXIS 71).

Toxicologist's Opinions On Contaminated Site Upheld By Kentucky Federal Judge
LEXINGTON, Ky. - Even though a toxicology expert's opinion on what level of pollutants causes health problems is contrary to federal and Kentucky law, it is still reliable enough to help a jury determine common-law liability, a Kentucky federal judge held Jan. 25 in declining to exclude the expert's testimony (Modern Holdings, LLC, et al. v. Corning, Inc., et al., No. 5:13-cv-00405, E.D. Ky., 2018 U.S. Dist. LEXIS 11891).

Judge Says CERLCA Commencement Date Applicable In Injury Suit
BIRMINGHAM, Ala.- A federal judge in Georgia on Jan. 23 denied motions for summary judgment filed by two companies arguing that 14 lawsuits for personal injuries and property damage caused by the operation of a pipe-making facility are time-barred, holding that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) commencement date could be applied to the plaintiffs' claims (William Abner v. United States Pipe & Foundry Co., No. 15-cv-02040-KOB, N.D. Ala., 2018 U.S. Dist. LEXIS 10146).

Panel: Lead Paint Case Properly Dismissed; Sanctions Against Tenant Reversed
LANSING, Mich. - A Michigan appellate panel on Jan. 18 affirmed a trial court ruling dismissing lead-based paint allegations brought by a tenant against his landlord but reversed an award of $54,378.56 in sanctions that had been levied against the tenant for litigation costs in a consolidated appeal of six individual lawsuits (Nathaniel E. Chapman v. Zaki Jamil Alawi, et al., Nos. 331750, 334164 and 334948, Michigan Rental, et al. v. Nathaniel E. Chapman, No. 332711, Nathaniel E. Chapman v. Zaki Jamil Alawi, No. 333259 and Michigan Rental, et al. v. Nathaniel E. Chapman, No. 334165, Mich. App.; 2018 Mich. App. LEXIS 141).

Maryland Appeals Court Finds Evidence Showed Lead Paint Caused Injury
ANNAPOLIS, Md. - A trial court judge did not err when denying a landlord's motion for judgment notwithstanding the verdict (JNOV) after finding that a man provided sufficient evidence to show that the presence of lead paint in a home his mother rented when he was a child significantly contributed to his injuries, a Maryland Special Court of Appeals ruled Jan. 30 (Benjamin L. Kirson v. Devon Johnson, No. 1861 September Term, 2016, Md. Spec. App., 2018 Md. App. LEXIS 79).

Parties Debate Class Action Status At Delaware High Court In Chemical Injury Case
DOVER, Del. - Attorneys for two chemical companies and those representing a class of plaintiffs on Jan. 17 debated before the Delaware Supreme Court the question of whether a long-standing class action related to alleged injuries from chemical exposure on banana plantations was still active (Luis Antonio Aguilar Marquinez, et al., v. Dow Chemical Co., et al., No. 231, 2017, Del. Sup.).

Company: Chemical Injury Claims Barred By Statute Of Limitations
NEW YORK - A chemical company filed a brief in New York federal court on Jan. 16 arguing that the district court should reconsider its ruling that determined that personal injury claims related to chemical exposure allegedly suffered on banana plantations were not barred by the statute of limitations (Tobias Bermudez Chavez, et al. v. Occidental Chemical Corporation, No. 17-3459, S.D. N.Y.).

Fracking Groups: BLM Decision To Suspend Methane Rule Valid
SAN FRANCISCO - Hydraulic fracturing trade groups filed a brief in California federal court on Jan. 16 arguing that decision by the U.S. Bureau of Land Management (BLM) to amend the compliance deadlines for what is known as the methane waste prevention rule was valid. The groups oppose the motion for preliminary injunction sought by environmental advocacy groups on grounds that it is "an extraordinary remedy" (Sierra Club, et al. v. Ryan Zinke, et al., No. 17-7187, N.D. Calif.).

Monsanto: Roundup Claims Fail For Lack Of Evidence About Glyphosate's Toxicity
SAN FRANCISCO - Monsanto Co. filed an answer in the multidistrict litigation for Roundup in California federal court on Jan. 16 denying that exposure to the herbicide "did or could have caused" non-Hodgkin lymphoma (NHL) as alleged by a specific plaintiff (In Re: Roundup Products Liability Litigation [Kevin McNew v. Monsanto Co.], MDL No. 2741, No. 17-6858, N.D. Calif.).

Tennessee Couple: Monsanto Knew Glyphosate Could Cause Cancer; Damages Sought
KNOXVILLE, Tenn. - A couple on Dec. 11 filed a complaint in Tennessee federal court seeking damages against Monsanto Co., alleging that it knew that the chemical glyphosate, which is the active ingredient in the herbicide Roundup, could pose "significant risks to human health, including a risk of cancer" yet misrepresented it as safe (Warren Ahrent, et al. v. Monsanto Company, No. 18-65, E.D. Tenn.).

Glyphosate Warning Under Prop 65 Not 'False,' California Agencies Argue
SACRAMENTO, Calif. - The California attorney general and another state official filed an answer in California federal court on Jan. 9 denying the claim that a warning for products that contain glyphosate under the state measure known as Proposition 65 is "false, misleading and highly controversial" (National Association of Wheat Growers, et al. v. Lauren Zeise, et al., No. 17-2401, E.D. Calif.).

Lead-Poisoning Plaintiffs Fail To Assert Claims Sufficiently, Judge Rules
TRENTON, N.J. - A federal judge in New Jersey on Jan. 8 dismissed a lead-poisoning lawsuit against the School District of Newark, N.J., and Gov. Chris Christie related to contaminated drinking water in schools, contending that the plaintiffs failed to allege the personal involvement of any specific defendants in a manner sufficient to survive a motion to dismiss (Veronica Branch, et al v. Chris Christie, et al., No. 16-2467, D. N.J.; 2018 U.S. Dist. LEXIS 3381).

Special Master Fees In Lago Agrio Case Pose 'Ethical Problems,' Attorney Says
NEW YORK - The attorney representing a group of Ecuadorian residents who won an $18.5 billion judgment against Chevron Corp. for injuries, only to have it reversed, on Jan. 16 filed a letter with the presiding judge in the U.S. District Court for the Southern District of New York, arguing that the special masters in the case "have chosen to utterly ignore" the issues the attorney raised concerning fees. Moreover, he contends that there are "ethical problems" with the billing process the special masters used (Chevron Corporation v. Donziger, et al., Case No. 11 Civ. 691, S.D. N.Y.).

Residents: Company Should Be Compelled To Produce Expert's Documents In Water Case
GREENVILLE, Miss. - Mississippi residents who sued a company alleging that it is liable for groundwater contamination filed a brief in Mississippi federal court on Jan. 16 seeking to compel the production of documents related to expert testimony (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

EPA Seeks Protective Order To Limit Review In Case Over 'Fluoridation Chemicals'
SAN FRANCISCO - The Environmental Protection Agency on Jan. 15 filed a brief in California federal court seeking a protective order limiting review to the administrative record in a lawsuit brought by environmental advocacy groups that seeks to compel the agency to initiate a rule-making procedure to ban the introduction of "fluoridation chemicals" into drinking water on grounds that they cause brain damage (Food & Water Watch Inc., et al. v. United States Environmental Protection Agency, et al., No. 17-2162, N.D. Calif.).

Guardian Ad Litem: $151M Water Contamination Agreement 'Fair And Adequate'
CHARLESTON, W.Va. - The guardian ad litem in a class action lawsuit brought by West Virginia residents against a supplier of drinking water on Jan. 19 issued a report in which he said the $151 million settlement in the case is "fair and adequate" (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1374, S.D. W.Va.).

California Ballot Initiative Would Raise $2B To Address Lead, Other Hazards
SACRAMENTO, Calif. - Proponents are seeking to have a referendum put on the November ballot in California that would authorize $2 billion in bonds to fund a competitive grant program for the remediation of structural and environmental hazards such as lead-paint poisoning in homes, schools and other facilities on grounds that if the remediation is ignored, it "could impact schools and cost the State of California thousands of available housing units for low and middle income families."