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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®


Judge: Jurisdiction Exists For Engineering Firm In Flint Lead-Water Lawsuit
DETROIT - A federal judge in Michigan on April 5 ruled that personal jurisdiction exists over an engineering consulting company named as a defendant in the lead-contaminated water lawsuit brought by the residents of Flint, Mich., because evidence indicates that the company has performed other work in Michigan, which means it has a presence in the state (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Motion To Replace Flint Co-Liaison Counsel Is 'Smear Campaign,' Attorney Says
DETROIT - The co-liaison counsel that represents some of the individual plaintiffs in the lead-contaminated water crisis lawsuit brought against the city of Flint, Mich., on April 9 filed a brief in Michigan federal court contending that a motion filed by interim co-lead class counsel, which represents the entire class of plaintiffs, seeking replacement of the co-liaison counsel is "nothing but a retaliatory smear campaign" against the co-liaison counsel (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Plaintiffs' Counsel: Motion To Exclude Lead Expert's Testimony 'In Error'
MILWAUKEE - One of the attorneys representing residents who sued paint companies alleging injuries from exposure to lead-based paint on April 3 sent a letter to Wisconsin federal judge presiding over the case, contending that defendant Atlantic Richfield Co.'s (ARCO) motion to exclude the testimony of the plaintiffs' experts is "in error" (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).

14 States, Others Sue EPA For Failure To Curb Methane Emissions From Fracking
WASHINGTON, D.C. - Fourteen states, the District of Columbia and the city of Chicago on April 5 sued the Environmental Protection Agency and EPA Administrator Scott Pruitt in the U.S. District Court for the District of Columbia, seeking to compel Pruitt to comply with the nondiscretionary duty under federal law to establish guidelines for limiting methane emissions from existing sources in the oil and natural gas sector (New York, et al. v. E. Scott Pruitt, et al., No. 18-773, D. D.C.).

Judge: Third Party Had Proper Permits, Not Liable For Groundwater Contamination
PITTSBURGH - A federal judge in Pennsylvania on April 13 dismissed charges against a third-party plaintiff in a lawsuit brought by an environmental group that contends that glass-polishing activities contributed to local groundwater contamination. The glass manufacturer sued the third party, contending that it shared liability, but the judge said the third party produced evidence that it possessed the proper permits to conduct its operations (PennEnvironment, et al. v. PPG Industries Inc., et al. v. AS America Inc., et al., No. 12-342, W.D. Pa.).

Town, Authorities Reach Deal To Make Drinking Water Comply With Federal Law
ALBANY, N.Y. - The U.S. Department of Justice (DOJ) on April 12 announced that it has entered into a consent decree with the Town of Ticonderoga, N.Y., under which the town will switch the source of some of the drinking water it provides to bring the town into compliance with federal law pertaining to safe drinking water, as well as state code (United States of America, et al. v. Town of Ticonderoga, N.Y., No. 18-442, N.D. N.Y.).

Split 4th Circuit: Groups Have Valid Claim For Water Tainted By Ruptured Pipeline
RICHMOND, Va. - A divided panel of the Fourth Circuit U.S. Court of Appeals on April 12 vacated and remanded a ruling by a district court, concluding that conservation groups have a valid claim against a company whose pipeline leaked 369,000 gallons of gasoline into local groundwater and other water sources (Upstate Forever, et al. v. Kinder Morgan Energy Partners LP, et al., No. 17-1640, 4th Cir.).

Judge: Tainted Groundwater Claims Not Ripe; Plaintiffs Lack Standing
DURHAM, N.C. - A federal judge in North Carolina on March 29 dismissed a coal ash groundwater contamination lawsuit against an energy company on grounds that the environmental group bringing the case failed to establish that it suffered a concrete injury that is "fairly traceable" to the company's alleged violation of law (Roanoke River Basin Association v. Duke Energy Progress, LLC, No. 17-561, M.D. N.C., 2018 U.S. Dist. LEXIS 52991).

6th Circuit Finds Corporate Successor Not Indirectly Liable For Cleanup Costs
CINCINNATI - The corporate successor to two companies that operated a manufactured gas facility in Florida is not indirectly liable to contribute to a plaintiff company's response costs to clean up groundwater contamination under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a Sixth Circuit U.S. Court of Appeals panel ruled April 10 in affirming the defendant's award of summary judgment (Duke Energy Florida LLC v. FirstEnergy Corp., No. 17-3024, 6th Cir., 2018 U.S. App. LEXIS 8932).

Chemical Exposure Plaintiffs: Attempt To Exclude Discovery Infringes On Rights
LANCASTER, Pa. - A Pennsylvania woman who is also the executrix for the estate of a man who died following chemical exposure in his workplace filed a brief in state court on April 3, contending that the defendants' attempt to exclude discovery that is reasonably calculated to lead to admissible evidence "impermissibly infringes on" her due process right to discovery (Kimberly Williams, as Executrix of the Estate of Robert Whetts Jr., et al. v. Armstrong World Industries Inc., et al., No. CI-16-10715, Pa. Comm. Pls., Lancaster Co.).

8th Circuit Reverses; New Trial Needed On Damages In Chemical Exposure Case
ST. LOUIS - A panel of the Eighth Circuit U.S. Court of Appeals on April 5 reversed a $13 million punitive damages ruling in a chemical exposure case and held that a new damages trial was appropriate because a lower court erroneously concluded that judicial estoppel applied based on an inconsistent position taken by the defendants in a separate case related to successor-in-interest liability (Jodelle L. Kirk v. Schaeffler Group USA Inc., et al., No. 16-3417, 8th Cir.; 2018 U.S. App. LEXIS 9012).

Judge: Case Against Monsanto For Injuries From Water Tainted By PCBs Survives
ANNISTON, Ala. - A federal judge in Alabama on April 5 denied Monsanto Co.'s motion to dismiss a chemical exposure case against it brought by a man who contends that he developed leukemia as a result of drinking water contaminated with polychlorinated biphenyls (PCBs) that were manufactured by Monsanto (Carl R. Arrington v. Monsanto Chemical, No. 17-1585, N.D. Ala.; 2018 U.S. Dist. LEXIS 58092).

Judge Tosses Couple's Suit Saying Demolition Caused PCB Contamination, Injuries
MADISON, Wis. - A federal judge in Wisconsin on March 30 awarded summary judgment to defendants in a lawsuit brought by a couple alleging that demolition of an industrial facility on a nearby property caused their land to be contaminated with polychlorinated biphenyls (PCBs), finding that the plaintiffs failed to produce any evidence to show that the contamination occurred as a result of the demolition (William Liebhart, et al. v. SPX Corp., et al, No. 16-cv-700-jdp, W.D. Wis., 2018 U.S. Dist. LEXIS 54994).

Claim That Benzene Caused Leukemia Falls With Dismissal Of Experts, Panel Rules
DENVER - The 10th Circuit U.S. Court of Appeals on April 10 agreed with a trial court that opinions of two experts that long-ago exposure to benzene caused a woman's leukemia failed due in part to a lack of reliability in their methods and that without the expert's testimony, summary judgment on causation to defendant oil companies is appropriate (Samantha Hall v. Conoco Inc., et al., No. 17-6086, 10th Cir., 2018 U.S. App. LEXIS 8944).

When Strategies Go Awry: Part 6 In A Series On Cognitive Biases And Their Impact
By Laura A. Frase Refining Our Thinking About Thinking: Battling the Sway of Cognitive Biases "They will get it straight one day at the Sorbonne. We shall return at twilight from the lecture pleased that the irrational is rational." - Wallace Stevens (1942)1

Man Sues Railroad Company For COPD From Chemical Exposure, Seeks More Than $75,000
URBANA, Ill. - A former railroad worker on March 20 filed a lawsuit in Illinois federal court seeking damages in excess of $75,000 for chronic obstructive pulmonary disease (COPD) he contends was caused by exposure to "harmful, hazardous and toxic chemicals" of various kinds while on the job (Scott Tague v. Illinois Central Railroad Company, No. 18-2089, C.D. Ill.).

Residents: Apartment Complex, Others Liable For Carbon Monoxide Poisoning
WILMINGTON, Del. - Two residents of an apartment complex in Delaware on March 23 sued the apartment management company, the company that provides air conditioning to the complex and others in state court, contending that they are liable for injuries causes by inhalation of carbon monoxide (Kiameisha Hall, et al. v. A-1 Air Conditioning, Heating & Refrigeration Service Inc., et al., No. N18C-03-223, New Castle Co., Del. Super.).

Florida Residents Sue Town For Sludge Dump That Tainted Groundwater With Arsenic
FORT MYERS, Fla. - A group of Florida residents on March 23 filed a putative class action against the city of Fort Myers in Florida federal court, contending that it is liable for the contamination of local groundwater with arsenic (Deretha Miller, et al. v. Fort Myers, et al., No. 18-195, M.D. Fla.).

Multiple Defendants Say Flint Water Crisis Case Should Be Dismissed
DETROIT - Multiple defendants who were sued by a class of residents of Flint, Mich., who seek punitive damages for injuries allegedly caused by the lead-contaminated water crisis in that city on March 20 filed several, largely similar briefs contending that the case should be dismissed because the plaintiffs fail to plead a valid cause of action for violation of their bodily integrity, among other claims (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Companies: Stay In Tainted Groundwater Case Should Not Be Reconsidered
PHILADELPHIA - A group of chemical companies on March 16 filed a brief in Pennsylvania federal court arguing that it should not reconsider a stay it issued last month in a groundwater contamination lawsuit involving allegations that individuals were exposed to toxic chemicals from aqueous film forming foam (AFFF) (Hanah Bates, et al. v. 3M Company, et al., No. 16-4961, E.D. Pa.).

Agency: En Banc Review Needed Of 2nd Circuit Water Contamination Ruling
NEW YORK - A municipal water district on March 7 filed a petition for rehearing en banc with the Second Circuit U.S. Court of Appeals, contending that an opinion issued by a Second Circuit panel is "rooted in a misinterpretation of the relevant water contamination-related precedents" that apply to the groundwater contamination case brought by the water district against Northrop Grumman Corp. (Bethpage Water District v. Northrop Grumman Corporation, et al., No. 16-2592, 2nd Cir.).

Pennsylvania High Court: Water Law Not Violated By 'Mere Presence' Of Contaminant
HARRISBURG, Pa. - A divided Pennsylvania Supreme Court on March 28 affirmed a lower court's ruling in a groundwater contamination case and concluded that "the mere presence" of a

Order Compelling Discovery In Groundwater Case Should Be Reversed, Company Says
GREENVILLE, Miss. - A company sued by residents who allege that it is liable for groundwater contamination on March 22 filed a brief in a Mississippi federal court contending that the court should reverse its order compelling the company's expert to provide discovery on grounds that it is based on a "mistaken factual premises" that renders its legal analysis "flawed" (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

Residents Allege Conspiracy, Seek Damages Regarding Groundwater Contamination
DENVER - A group of Colorado residents on March 26 sued 3M Co. and the manufacturers of aqueous film-forming foam (AFFF) in Colorado federal court, contending that the companies are liable for contaminating drinking water and damaging the residents' properties with AFFF, which is used in firefighting operations (Claudia Adams, et al. v. The 3M Company f/k/a Minnesota Mining & Manufacturing Co., et al., No. 18-705, D. Colo.).

Monsanto Liable For Fraud In Glyphosate Exposure That Caused Cancer, Woman Says
ST. LOUIS - An Alabama woman on March 28 sued Monsanto Co. in the U.S. District Court for the Eastern District of Missouri, seeking damages for fraud and misrepresentation, contending that her exposure to glyphosate, the active ingredient in the herbicide Roundup, caused her to develop non-Hodgkin lymphoma (NHL) (Betty L. Bolyard v. Monsanto Company, No. 18-469, E.D. Mo.).

Plaintiffs: 3 Cases Against Former Makers Of Lead Paint Should Be Consolidated
MILWAUKEE - Residents who sued paint companies alleging injuries from exposure to lead-based paint on March 14 filed a brief in Wisconsin federal court arguing that their three individual cases should be consolidated and the court should deny the defendants' motion for briefing on the issue (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).

Judge: Lago Agrio Attorney Must Show Cause Why He Shouldn't Be Held In Contempt
NEW YORK - A federal judge in New York on March 19 issued an order for 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, to show cause why he should not be held in contempt for failing to comply with a previous court order (Chevron Corporation v. Donziger, et al., Case No. 11 Civ. 691, S.D. N.Y.).

EPA Administrator: Record For Advisory Council Directive Not Relevant; Case Fails
WASHINGTON, D.C. - Environmental Protection Agency Administrator Scott Pruitt on March 29 filed a brief in the U.S. District Court for the District of Columbia, arguing that an administrative record index is not necessary for the court to rule on his motion to dismiss a lawsuit brought by physicians who seek review of an EPA directive that bars recipients of EPA grants from serving on that agency's federal advisory committees (Physicians for Social Responsibility, et al. v. Scott Pruitt, No. 17-2742, D. D.C.).

Company Seeks Sanctions Against Couple, Counsel In Chemical Exposure Case
LANCASTER, Pa. - The chemical company sued by a Pennsylvania couple who contend that the husband developed cancer as a result of being exposed to trichloroethylene (TCE) and methylene chloride (MC) in his workplace on March 15 filed a brief in state court arguing that the state court should sustain the company's objections to the couple's third amended complaint and impose sanctions on the couple and their counsel (Paul Rogers, et al. v. Brenntag Northeast Inc., et al., No. 16-05583, Pa. Comm. Pls., Lancaster Co.).

Judge: Groups Have Standing To Bring RCRA Claim, Not Clean Water Act Claim
TRENTON, N.J. - A federal judge in New Jersey on March 27 found that two environmental groups have standing under Article III of the U.S. Constitution to bring claims that NL Industries Inc. and others violated the Resource Conservation and Recovery Act (RCRA) by disposing of chemicals into Raritan River and that they failed to produce sufficient evidence to show that the defendants violated the Clean Water Act (CWA) by discharging pollutants in levels that exceeded those allowed by National Pollutant Discharge Elimination System (NPDES) permits (Raritan Baykeeper, et al. v. NL Industries Ind., et al, No. 09-4117, D. N.J., 2018 U.S. Dist. LEXIS 52297).

9th Circuit: CERCLA's Petroleum Exception Bars Woman's Contamination Suit
SAN FRANCISCO - A Ninth Circuit U.S. Court of Appeals panel on March 15 upheld a federal judge in California's dismissal with prejudice of a woman's lawsuit accusing Chevron Corp. of contaminating her property, finding that the suit was barred by the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA) petroleum exception (Hong Jacqueline Nguyen Gardner v. Chevron Capital Corp., No. 16-1691, 9th Cir., 2018 U.S. App. LEXIS 7081).

Judge Denies Monsanto's Motion To Stay Remand Of PCB Suit Pending Appeal
SEATTLE - A federal judge in Washington on March 23 denied Monsanto Co.'s request to stay the remand of a lawsuit brought by the state seeking damages for contamination caused by the company's manufacture and sale of products containing polychlorinated biphenyls (PCBs), finding that the company would not suffer any irreparable harm if the case were allowed to proceed in state court while it is appealing the ruling granting the motion (State of Washington v. Monsanto Co., et al., No. C17-53RSL, W.D. Wash., 2018 U.S. Dist. LEXIS 48501).

U.S. Supreme Court Refuses To Hear Flint Water Crisis Cases Related To Federal Law
WASHINGTON, D.C. - The U.S. Supreme Court on March 19 denied certiorari in three consolidated cases involving the Flint, Mich., lead-contaminated water crisis, in which the petitioners had contended that the claims brought by residents who said they had been injured were preempted by the Safe Drinking Water Act (SDWA), 42 U.S.C. 300f (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.).

Woman: Governor, Officials Caused 'Catastrophic' Health Crisis In Flint, Mich.
DETROIT - A woman on March 2 sued Michigan Gov. Rick Snyder, his administration and a local hospital in Michigan federal court, seeking declaratory relief and monetary damages for causing "a catastrophic public health crisis" that led to the death of her mother, by exposing her and all of the residents of the city of Flint, Mich., to drinking water that was contaminated with Legionella bacteria (Cholyonda Brown v. Governor Rick Snyder, et al., No. 18-10726, E.D. Mich.).

Monsanto: Directed Verdict 'Premature' In Case Transferred To Roundup MDL
SAN FRANCISCO - Monsanto Co. on March 9 filed a brief in the Roundup multidistrict litigation in California federal court, arguing that an individual plaintiff's motion for a directed verdict should be denied because it is "premature" at this stage of the litigation (In re: Roundup Products Liability Litigation [Ralph Applegate v Monsanto Co.], MDL 2741, No. 18-663, N.D. Calif.).

Monsanto: Evidence Glyphosate Causes Cancer Is Not Reliable
SAN FRANCISCO - Monsanto Co. on March 13 filed nine answers to individual cases in the multidistrict litigation for the herbicide Roundup, arguing that claims that glyphosate, the herbicide's active ingredient, causes cancer are barred and that the plaintiffs cannot show "any scientifically reliable evidence" that Roundup is "defective or unreasonably dangerous" (In re: Roundup Products Liability Litigation [Gwendolyn Wilson, et al. v. Monsanto Co.], MDL No. 2741, No. 18-00992, N.D. Calif.).

3 Companies Pay $196.5M Combined To Settle MTBE Claims With State Of New Jersey
TRENTON, N.J. - New Jersey Attorney General Gurbir S. Grewal on March 12 announced that three petroleum companies that are defendants in a lawsuit brought by the New Jersey Department of Environmental Protection (DEP) will pay a combined $196.5 million to settle claims that they are liable for contaminating the state's groundwater with methyl tertiary butyl ether (MTBE) (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.).

Inspector General: EPA Did Not Use Flawed Studies In Setting Methane Standards
WASHINGTON, D.C. - The EPA Office of Inspector General (OIG) issued a report on March 16 stating that its investigation concluded that the U.S. Environmental Protection Agency did not use allegedly flawed studies to estimate methane emissions or set new source performance standards for oil and natural gas production.

Texas Sues Chemical Company For Contamination During Hurricane Harvey
LIBERTY, Texas - The state of Texas and the county in which a chemical plant that was damaged in Hurricane Harvey was located filed a lawsuit in state court on March 8, seeking more than $1 million in damages from the company that operated the plant due to chemical contamination of the air and local water supply (Liberty County, Texas, et al. v. Arkema Inc., No. CV1813081, Texas Dist., 253rd Jud. Dist., Liberty Co.).

Delaware High Court: Class Action Tolling In Banana Plantation Case Ended In 2010
DOVER, Del. - The Delaware Supreme Court on March 15 ruled that a longstanding class action over alleged injuries from chemical exposure on banana plantations was not still active because class action tolling was ended when the Texas state court denied class action certification in 2010 in a case related to the one at hand, which involved some of the same plaintiffs (Luis Antonio Aguilar Marquinez, et al. v. Dow Chemical Co., et al., No. 231, 2017, Del. Sup.; 2018 Del. LEXIS 108).

Pennsylvania Couple: Company Liable For Cancer From Workplace Chemical Exposure
LANCASTER, Pa. - A Pennsylvania couple filed a brief in state court on March 4 contending that their complaint against a chemical company asserts material facts that the husband was exposed to trichloroethylene (TCE) and methylene chloride (MC), which caused him to develop a form of cancer known as multiple myeloma (Paul Rogers, et al. v. Brenntag Northeast Inc., et al., No. 16-05583, Pa. Comm. Pls., Lancaster Co.).

Groundwater Plaintiffs: Stay Must Be Reconsidered To 'Prevent Manifest Injustice'
PHILADELPHIA - A group of Pennsylvania residents on March 2 filed a brief in Pennsylvania federal court arguing that "in order to prevent manifest injustice," the district court should reconsider a previous ruling in the plaintiffs' groundwater contamination lawsuit against a group of chemical companies because "the Plaintiffs are the victims of an indefinite stay . . . for which there is no basis" (Hanah Bates, et al. v. 3M Company, et al., No. 16-4961, E.D. Pa.).

Maryland Panel: Lead Case Properly Dismissed Based On Prior Release Of Claims
ANNAPOLIS, Md. - A panel of the Maryland Court of Special Appeals on March 7 affirmed the dismissal of a lead-based paint lawsuit against a property owner on grounds that a release signed in a prior, related case between the same parties applies to the lawsuit at hand (William Harvey v. City Homes Inc., et al., No. 1232, Sept. Term 2013, Md. Spec. App.; 2018 Md. App. LEXIS 229).

Judge Denies Injunction In Lead-Paint Claim Against Housing Authority
NEW YORK - A federal judge in New York on March 9 denied plaintiffs' motion for a preliminary injunction and the appointment of an independent monitor in a lead-paint poisoning lawsuit against the New York City Housing Authority (NYCHA), ruling that the plaintiffs failed to establish a likelihood of success on the merits of their disparate impact claim (Sherron Paige, et al. v. New York City Housing Authority, No. 17-7481, S.D. N.Y.; 2018 U.S. Dist. LEXIS 39168).

When Strategies Go Awry: Part 5 In A Series On Cognitive Biases And Their Impact
By Laura A. Frase I Gotta Be Me! Self-Enhancing Cognitive Biases "I hate to go on tryin' your patience like this - but well, I'm either dead right or I'm crazy."