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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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City, State Defendants Seek Supreme Court Review Of Flint Water Crisis Rulings
WASHINGTON, D.C. - A group of Michigan Department of Environmental Quality (MDEQ) employees on Dec. 22 filed a petition for writ of certiorari in the U.S. Supreme Court, contending that it should reinstate the ruling of a Michigan federal judge who dismissed the complaint brought against the MDEQ by residents of Flint, Mich., who contended that the MDEQ employees were liable for the lead-contaminated water crisis in that city (Daniel Wyant, et al. v. Melissa Mays, et al., No. 17-901, U.S. Sup.).



Flint Water Defendant: U.S. Supreme Court Review Of Drinking Water Law Needed
WASHINGTON, D.C. - A defendant in one of the lead-contaminated water crisis lawsuits regarding Flint, Mich., on Nov. 7 filed a petition for writ of certiorari with the U.S. Supreme Court seeking review of a Sixth Circuit U.S. Court of Appeals decision that federal drinking water law did not preclude the initial lawsuit (Jeff Wright v. Melissa Mays, et al., No. 17-666, U.S. Sup.).



Ruling On Causation Expert In Nuclear Facility Injury Case Disputed In High Court
WASHINGTON, D.C. - A federal appeals court used the wrong standard in ruling on a trial court's admission of expert testimony, 137 residents of a Pennsylvania town say in their Dec. 20 U.S. Supreme Court petition seeking review of their claims that illegal releases from a nuclear materials processing plant caused their cancers and the deaths of their family members (Michelle McMunn, et al. v. Babcock & Wilcox Power Generation Group, Inc., et al., No. 17-907, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 5119).



Flint Lead Crisis Whisteblower Says Her Case Is Valid And Her Speech Was Protected
CINCINNATI - A former administrator for the city of Flint, Mich., who sought damages for defamation and sought protection under the state's whistleblower act in relation to actions she took during the Flint lead-contaminated water crisis filed a brief in the Sixth Circuit U.S. Court of Appeals on Dec. 19, arguing that a lower court erred when it dismissed her case because she engaged in protected speech made as a private citizen and not pursuant to her official duties (Natasha Henderson v. City of Flint, Mich., No. 17-2031, 6th Cir.).



Defendants In Flint Water Case Say They Are Entitled To A Stay Of Discovery
DETROIT - A group of defendants in the lawsuit brought by residents of Flint, Mich., alleging injuries from exposure to lead-contaminated drinking water on Dec. 15 filed a brief arguing that if the district court grants a stay to other defendants in the case, it should "properly" stay discovery as to all of the defendants to avoid unfair prejudice to the private corporate defendants that would be forced to provide discovery at a time when they cannot obtain critical discovery (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).



50 Californians Sue Monsanto, Allege Injuries From Glyphosate Exposure
SAN FRANCISCO - A group of California residents comprising 50 plaintiffs on Dec. 13 filed five separate lawsuits against Monsanto Co. in California state court, seeking damages allegedly caused by exposure to glyphosate, the active ingredient in the herbicide Roundup (John Aiton, et al. v. Monsanto Company, et al., No. CGC-17- 563100, Calif. Super., San Francisco Co.).



EPA Report: Glyphosate Not Likely To Be Carcinogenic To Humans
WASHINGTON, D.C. - The U.S. Environmental Protection Agency on Dec. 18 released a draft risk assessment for glyphosate, which is the primary chemical ingredient in the herbicide Roundup, concluding that "glyphosate is not likely to be carcinogenic to humans."



Groups Sue Federal Agency Over Amendment To Methane Rule For Energy Companies
SAN FRANCISCO - A collection of environmental advocacy groups on Dec. 19 filed a lawsuit in California federal court against Secretary of the Interior Ryan Zinke and two federal agencies contending that they are violating federal law with regard to the U.S. Bureau of Land Management's (BLM) final decision to amend the compliance deadlines for what is known as the methane waste prevention rule (Sierra Club, et al. v. Ryan Zinke, et al., No. 17-7187, N.D. Calif.).



Panel Says Agency Violated Code In The Way It Set 'Specific Criteria' For Water
TRENTON, N.J. - A New Jersey appellate panel on Dec. 19 reversed and remanded a ruling by the New Jersey Department of Environmental Protection (DEP) regarding specific groundwater quality criteria for perfluorononanoic acid (PFOA), concluding that the state administrative code expressly limits the DEP's authority to establish "specific criteria" with the expectation that they "shall be replaced with specific criteria as soon as reasonably possible by rule" (Chemistry Council of New Jersey v. New Jersey Department of Environmental Protection, No. A-1439-15T4 and Solvay Specialty Polymers USA LLC v. New Jersey Department of Environmental Protection, No. A-1442-15T1 and Arkema Inc. v. New Jersey Department of Environmental Protection, No. A-1917-15T1, N.J. Super., App. Div.).



Panel: Silica Rule 'Arbitrary And Capricious'; Further Consideration Needed
WASHINGTON, D.C. - A panel of the District of Columbia Circuit U.S. Court of Appeals on Dec. 22 remanded for further consideration the Occupational Safety and Health Administration's rule regulating workplace exposure to silica because the initial rule was "arbitrary and capricious" (North America's Building Trades Unions v. Occupational Safety & Health Administration, et al., No. 16-1105, D.C. Cir.; 2017 U.S. App. LEXIS 26315).



Oregon Sues Monsanto, Seeks Over $100M For PCB Cleanup
PORTLAND, Ore. - The state of Oregon on Jan. 4 filed suit in state court against Monsanto Co., Pharmacia Corp. and Solutia Inc., seeking more than $100 million in damages to clean up contamination in the state's groundwater and soil resulting from the companies' manufacturing of polychlorinated biphenyls (PCBs) (State of Oregon v. Monsanto Co., et al., No. 18CV00540, Ore. Cir., Multnomah Co.).



Montana High Court Finds CERCLA Does Not Preempt Restoration Damages Claim
HELENA, Mont. - A 6-1 Montana Supreme Court on Dec. 29 found that property owners who live near the Anaconda Smelter Superfund site can seek restoration damages for arsenic contamination on their properties after finding that the cause of action is not preempted by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Atlantic Richfield Co. v. Montana Second Judicial District Court, Silver Bow County, et al., No. 16-0555, Mont. Sup., 2017 Mont. LEXIS 730).



Men Injured By Lithium Battery Explosion Appeal Dismissal To 10th Circuit
OKLAHOMA CITY - Two men who contend that they were injured when a lithium battery exploded while they were working on a hydraulic fracturing rig on Dec. 29 filed a notice of appeal in the 10th Circuit U.S. Court of Appeals (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.).



Lawsuit Seeking To Compel EPA To Ban Fluoride In Drinking Water Stands, Judge Says
SAN FRANCISCO - A federal judge in California on Dec. 21 refused to dismiss a complaint against the Environmental Protection Agency brought by environmental advocacy groups seeking to compel the agency to initiate a rulemaking 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.).



Split 9th Circuit: EPA Is Compelled To Develop Lead Paint Standards
SAN FRANCISCO - A divided panel of the Ninth Circuit U.S. Court of Appeals on Dec. 27 granted a petition for writ of mandamus sought by advocacy groups seeking to compel the Environmental Protection Agency to act on a rule-making petition concerning lead-dust hazards and lead-paint standards (In re: A Community Voice, et al. v. U.S. Environmental Protection Agency, No. 16-72816, 9th Cir.).



Veterans Board's Reasons For Denying Agent Orange Benefits Lacking, Judge Says
WASHINGTON, D.C. - A judge in the U.S. Court of Appeals for Veterans Claims on Dec. 28 vacated a ruling that denied a veteran's request for benefits in connection with alleged exposure to Agent Orange on grounds that the Board of Veterans Appeals "provided an inadequate statement of reasons or bases for its conclusion" (William Anglin v. David J. Shulkin, No. 16-3883, Vet. Clms.; 2017 U.S. App. Vet. Claims LEXIS 1850).



Judge Remands Agent Orange Benefits Case To Consider Evidence Regarding Dementia
WASHINGTON, D.C. - A judge in the U.S. Court of Appeals for Veterans Claims on Dec. 28 partially affirmed and partially reversed a ruling on a veteran's entitlement to benefits related to exposure to the herbicide Agent Orange, concluding that he was not eligible to benefits for Parkinson's disease but that further proceedings are needed to determine his right to coverage for Lewy body dementia disorder (Shirley A. Kast v. David J. Shulkin, No. 16-3224, U.S. App., Vet. Clms.; 2017 U.S. App. Vet. Claims LEXIS 1840).



When Strategies Go Awry: Part 3 In A Series On Cognitive Biases And Their Impact
By Laura A. Frase Loss Aversion and its Collaborators or



Defendant In Flint Water Case: Safe Drinking Water Is Not A Right, Claims Fail
DETROIT - One of the defendants in the lawsuit brought by residents of Flint, Mich., alleging injuries from exposure to lead-contaminated drinking water on Dec. 8 filed a brief opposing the plaintiffs' amended complaint on grounds that there is no constitutional right to safe drinking water and she is entitled to immunity (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).



Flint Water Crisis Defendants: 'Preservation Subpoenas' Should Be Denied
DETROIT - Engineering consultants who have been named as defendants in the lead-contaminated water crisis in Flint, Mich., on Dec. 12 filed a brief in Michigan federal court, arguing that the plaintiffs' request for "preservation subpoenas" to preserve evidence should be denied (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).



Glyphosate Warning 'Factually Controversial'; Injunction Needed, Monsanto Says
SACRAMENTO, Calif. - Monsanto Co. and numerous agricultural trade groups on Dec. 6 moved in California federal court for a preliminary injunction to prevent the state of California from compelling them to publish a warning on products containing glyphosate on grounds that under the First Amendment, the state cannot force them to "broadcast a warning that is - at best - factually controversial, and is also literally false on its face" (National Association of Wheat Growers, et al. v. Lauren Zeise, et al., No. 17-at-1224, E.D. Calif.).



Panel Denies Rehearing Sought By Companies In California Lead-Based Paint Lawsuit
SAN FRANCISCO - A California appellate panel on Dec. 6 denied a petition for rehearing filed by former makers of lead-based paint that contended that the panel previously "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. H040880, Calif. App., 6th Dist.).



Man Dismisses Benzene Case Despite Recent Attempt To Reopen Discovery
ASHEVILLE, N.C. - A North Carolina man who had recently sought to reopen discovery in his lawsuit against a company that he said was liable for contaminating his groundwater with benzene on Dec. 4 voluntarily dismissed his lawsuit with prejudice in a one-paragraph document filed in federal court. The stipulation of dismissal did not provide a reason for the man's decision to drop the case (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).



Parties In Groundwater Case Jointly Move For Appointment Of Guardian Ad Litem
CHARLESTON, W.Va. - The settlement class and the defendants in a lawsuit over contaminated groundwater on Dec. 4 filed a brief in support of a joint motion to appoint a guardian ad litem because the settlement reached in the lawsuit will "affect the interests of minors and incompetents" (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1374, S.D. W.Va.).



Halliburton Must Provide Information In Groundwater Case, Plaintiffs Say
OKLAHOMA CITY - Residents who argue that Halliburton Energy Services Inc. (HESI) is liable for contaminating their drinking water supply with perchlorate on Dec. 6 filed a brief in an Oklahoma federal court contending that HESI should be compelled to produce documents and other information (Albin Family Revocable Living Trust, et al. v. Halliburton Energy Services Inc., No. 16-910, W.D. Okla.).



Sierra Club, Company Briefs Dispute Liability For Groundwater Contamination
RICHMOND, Va. - The Sierra Club and a Virginia power company filed competing briefs on Dec. 7 in the Fourth Circuit U.S. Court of Appeals, arguing that a lower court erred in its ruling on the environmental group's groundwater contamination claim. The Sierra Club contends that the company should pay penalties and is liable for violations of federal law, while the company says it is not liable for any pollution (Sierra Club v. Virginia Electric & Power Company f/k/a Dominion Virginia Power, No. 17-1895, 4th Cir.).



1st Circuit: Company Could Not Foresee Risk Of PCB-Containing Caulk
BOSTON - Pharmacia Corp. could not have foreseen that an additive it manufactured containing polychlorinated biphenyl (PCB) that was used in caulk would have posed a risk to human health at the time the product was used in a Massachusetts middle school in 1969, a First Circuit U.S. Court of Appeals panel ruled Dec. 8 in affirming a federal judge's dismissal of a town's claims for breach of warranty and negligent marketing (Town of Westport, et al. v. Monsanto Co., et al., No. 17-1461, 1st Cir., 2017 U.S. App. LEXIS 24827).



Third Party In Injury Case: Questions Should Be Certified To Oklahoma High Court
OKLAHOMA CITY - A third-party defendant in a lawsuit brought by two men who were injured by a lithium battery that exploded during a hydraulic fracturing operation on Dec. 11 filed a brief in Oklahoma federal court, arguing that the court should certify its questions of procedure to the Oklahoma Supreme Court (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.).



Proximity To Fracking Sites Linked To Damage To Fetuses, Researchers Find
WASHINGTON, D.C. - A study published in the journal "Science Advances" on Dec. 13 concludes that there is evidence that there are negative effects of in utero exposure to hydraulic fracturing sites when they are located within 1.86 miles of a mother's residence based on the detection of nonmethane hydrocarbons, which cause personal injury - especially to fetuses.



EPA Seeks Input On Revisions To Drinking Water Rule Regarding Lead And Copper
WASHINGTON, D.C. - The Environmental Protection Agency on Dec. 14 sent a letter to local and state officials seeking input as the agency looks to make revisions to the Lead and Copper Rule (LCR)m which applies to all community public water systems.



Insurer's Failure To Exclude Parties Was A Mistake, 3rd Circuit Says In Affirming
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Dec. 14 affirmed a New Jersey federal judge's ruling in favor of an insurer in an environmental contamination dispute after determining that the insurer's failure to exclude coverage to certain parties involved in the contamination dispute clearly was a mistake or scrivener's error (Indian Harbor Insurance Co. v. NL Environmental Management Services Inc., et al., Nos. 16-3262, 16-3293, 3rd Cir., 2017 U.S. App. LEXIS 25277).



Judge Reverses Agent Orange Benefits Denial; Board Erred In Treatment Of Evidence
WASHINGTON, D.C. - A federal judge in the District of Columbia on Dec. 15 reversed and remanded a decision by the Board of Veterans Appeals that denied coverage to a veteran who alleged that he was exposed to the herbicide Agent Orange, concluding that the board erred in its treatment of the evidence (Mark Young v. David J. Shulkin, No. 16-2196, Vet. Clms.; 2017 U.S. App. Vet. Claims LEXIS 1800).



Companies Seek Rehearing Of Lead Paint Ruling, Say They Lacked Knowledge Of Harm
SAN FRANCISCO - Three companies that formerly made lead-based paint on Nov. 29 filed separate briefs in a California appeals court seeking rehearing of a ruling that reversed and remanded a $1.15 billion verdict against them but that also called for the trial court to recalculate the amount of the award. The companies contend that rehearing is needed because the court actually misstated or 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. H040880, Calif. App., 6th Dist.).



Companies: Lead Paint Expert Should Be Excluded Due To Missing Discovery Deadline
MILWAUKEE - Three of the companies being sued by plaintiffs who contend that they are liable for lead-paint poisoning on Nov. 15 moved to exclude one of the plaintiffs' experts, contending that his opinions were submitted past the deadline for expert disclosures and after the close of discovery (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).



Michigan Residents Sue GM In State Court For Fraud Related To Tainted Groundwater
HOWELL, Mich. - Michigan residents sued General Motors LLC in state court on Nov. 30, alleging that the company contaminated their drinking water by releasing hazardous materials into the groundwater at GM's Milford Proving Grounds (MPG) facility (Terry Moore, et al. v. General Motors LLC, No. N/A, Mich. Cir., Livingston Co.).



Flint Water Crisis Defendant Says Case Against It Fails For Lack Of Jurisdiction
DETROIT - One of the defendants sued in connection with the lead-contaminated water crisis in Flint, Mich., on Dec. 1 filed a brief in Michigan federal court arguing that it should be dismissed from the lawsuit brought by a class of residents for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).



Flint Water Crisis Defendants Want Manslaughter Charges Stricken From Complaint
DETROIT - Two employees of the Michigan Department of Environmental Quality (MDEQ) on Nov. 21 filed a brief in Michigan federal court arguing that the district court should strike allegations of involuntary manslaughter and order sanctions against the class of residents suing them in connection with the lead-contaminated water crisis in the city of Flint, Mich. (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).



Roundup MDL Plaintiffs: Monsanto's Experts Not Using 'Sound Science'
SAN FRANCISCO - The plaintiffs in the multidistrict litigation for the herbicide Roundup on Nov. 20 filed a brief in California federal court contending that "the methodology applied by Monsanto's experts turns not on sound science but rather on whether the evidence at issue is favorable or unfavorable to Monsanto's position" (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).



Discovery In Benzene Case Should Be Reopened, Man Says; More Witnesses Exist
ASHEVILLE, N.C. - A North Carolina man who contends that a company is liable for contaminating his groundwater with benzene on Nov. 27 filed a brief in North Carolina federal court seeking to reopen discovery on grounds that there is evidence that was "in large part" available during discovery in the form of witness testimony the defendants failed to pursue (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).



Groups: Pipeline For Drinking Water 'Illegal'; Drinking Water Contains Carcinogens
LOS ANGELES - Two environmental advocacy groups on Nov. 28 sued the Trump administration in California federal court, alleging that it has illegally enabled a private company to construct a pipeline through a national monument and other public land, which will deplete a desert aquifer and harm human health by providing water to urban areas that contains hexavalent chromium (Center for Biological Diversity, et al. v. U.S. Bureau of Land Management, et al., No. 17-08587, C.D. Calif.).



Groundwater Class Action Should Stay In Federal Court, Magistrate Judge Says
CENTRAL ISLIP, N.Y. - A magistrate judge in New York federal court on Nov. 20 issued a report and recommendation denying remand of a groundwater contamination class action to state court, determining that the plaintiffs failed to demonstrate that a sufficient number of class members are citizens of the state of New York (Isaac Green, et al. v. The 3M Company, et al., No. 17-2566, E.D. N.Y.; 2017 U.S. Dist. LEXIS 192795).



Glass Maker: Trial Not Warranted On Groundwater Contamination Allegations
PITTSBURGH - Glass manufacturer PPG Industries Inc. on Nov. 21 filed a pretrial statement in Pennsylvania federal court, arguing that a trial is not needed in a groundwater contamination lawsuit brought by environmental groups (PennEnvironment, et al. v. PPG Industries Inc., et al. v. AS America Inc., et al., No. 12-342, W.D. Pa.).



Chicago Files Notice Of Intent To Sue U.S. Steel Over 2 Spills
CHICAGO - Chicago Mayor Rahm Manuel announced Nov. 20 that the city filed a notice of intent to sue U.S. Steel for contamination to drinking water as a result of two spills from the company's Portage, Ind., facility that reached Lake Michigan earlier this year.



City Sufficiently States Public Nuisance Claim For PCB Contamination, Judge Says
SAN DIEGO - The city of San Diego has standing to bring a nonrepresentative public nuisance claim against Monsanto Co. over polychlorinated biphenyl (PCB) contamination, a federal judge in California ruled Nov. 22, holding that the city sufficiently alleged that its municipal storm water system has been adversely affected by the presence of the chemical (City of San Diego, et al. v. Monsanto Company, et al., No. 15cv578, S.D. Calif., 2017 U.S. Dist. LEXIS 193570).



When Strategies Go Awry: Part 2 in a Series on Cognitive Biases and Their Impact
By Laura A. Frase Anchoring Effect: "Draggin the Line"1 in Litigation and Negotiation One of the most well researched cognitive bias is the Anchoring Effect; "the human tendency to adjust judgments or assessments higher or lower based on previously disclosed external information - the anchor."2 This mental short-cut involves starting with an initial known number or information (explicitly or implicitly conveyed) and then adjusting to generate the final answer for which we are searching. Once we believe we have reached the realm of a plausible answer, we stop adjusting from the initial reference point. For example, we want to purchase a quart of cream. We know the price of a quart of milk so we adjust from that number to estimate the cost of the same amount of cream. If we want to buy a particular car, we may recall prices for similar makes and models and use those numbers to estimate the cost of the car we want to purchase. The numbers or information we start with and use as comparisons are anchors.