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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®


Panel Reverses, Remands To Adjust $1.15B Verdict In California Lead Paint Case
SAN FRANCISCO - A California appeals panel on Nov. 14 reversed and remanded a $1.15 billion verdict against the former makers of lead paint in a public nuisance lawsuit brought by the state of California, concluding that "substantial evidences does not support causation as to residences built after 1950." Upon remand, the panel directed the trial court to recalculate the amount of the award to limit it to the amount necessary to cover the cost of remediating pre-1951 homes (The People v. ConAgra Grocery Products Company, et al., No. H040880, Calif. App., 6th Dist.).

Monsanto, Farm Groups Sue California Agency For Listing Glyphosate As Carcinogenic
SACRAMENTO, Calif. - Monsanto Co. and numerous agricultural trade groups on Nov. 15 filed a lawsuit in California federal court against two state agencies and their directors, seeking declaratory and injunctive relief to prevent them from "mandating false, misleading, and highly controversial cancer warnings concerning the herbicide glyphosate" (National Association of Wheat Growers, et al. v. Lauren Zeise, et al., No. 17-at-1224, E.D. Calif.).

Monsanto: Glyphosate Cancer Evidence Is 'Unreliable,' Constitutes 'Junk Science'
SAN FRANCISCO - Monsanto Co. on Nov. 10 filed a brief in the multidistrict litigation for the herbicide Roundup in California federal court, arguing that the evidence offered by the plaintiffs' expert concerning the carcinogenic properties of Roundup's active ingredient glyphosate is "unreliable" and constitutes "junk science" (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

Flint Water Defendants: Involuntary Manslaughter Charges Are Inaccurate
DETROIT - Two employees of the Michigan Department of Environmental Quality (MDEQ) on Nov. 10 moved in Michigan federal court to strike portions of an amended complaint filed by residents of the city of Flint, Mich., contending that the plaintiffs "inaccurately allege that Defendants have been charged with involuntary manslaughter" in connection with the lead-contaminated water crisis in that city (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Judge Orders Evidentiary Hearing In Groundwater Contamination Lawsuit
ASHEVILLE, N.C. - A federal judge in North Carolina on Nov. 6 ordered a hearing on evidentiary issues in a groundwater contamination lawsuit, as a North Carolina resident and the company he contends dumped toxic chemicals in his water supply continue to debate what evidence is admissible in the case (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

Panel Grants Company's Motion To Change Venue In Chemical Injury Case
SAN FRANCISCO - A California appellate panel on Nov. 6 vacated a trial court's decision and ruled that a lawsuit filed by an environmental advocacy organization against Dow Agrosciences LLC related to alleged exposure to chemicals that cause cancer should be moved to a different venue, as requested by the company (Dow Agrosciences LLC v. The Superior Court of Alameda County, No. A150854, Calif. App., 1st Dist., Div. 4).

Groups Seek Ruling That EPA Must Grant Or Deny Permit Petitions By March 1, 2018
WASHINGTON, D.C. - Environmental advocacy groups on Nov. 3 filed a brief in District of Columbia federal court seeking summary judgment and a declaration that the administrator of the Environmental Protection Agency has violated federal law by failing to perform his "nondiscretionary duty to grant or deny" the groups' petitions, which challenge approval of a permit for a petrochemical manufacturing facility operated by ExxonMobil (Environmental Integrity Project, et al. v. Scott Pruitt, No. 17-1439, D. D.C.).

Parties Send Letters To Judge Arguing Standing In Tainted Groundwater Lawsuit
TRENTON, N.J. - NL Industries Inc. on Nov. 14 sent a letter to the New Jersey federal judge presiding over a groundwater contamination lawsuit, contending that the plaintiffs' argument that a ruling from the Ninth Circuit U.S. Court of Appeals is relevant to the case at hand is "clearly distinguishable from the present case and has little relevance" (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).

Judge Remands Groundwater Case; Defendants Failed To Show Fraudulent Joinder
BIRMINGHAM, Ala. - A federal judge in Alabama on Nov. 7 remanded a groundwater contamination lawsuit to Alabama state court, ruling that it lacked jurisdiction over the case and finding that the defendants failed to demonstrate that the plaintiff fraudulently joined a local defendant (The Waters Works and Sewer Board of the Town of Centre v. 3M Company, et al., No. 17-1026, N.D. Ala.; 2017 U.S. Dist. LEXIS 184161).

Class Certification Not 'Ripe' For Decision In Drinking Water Case, Judge Says
FORT WAYNE, Ind. - A federal judge in Indiana on Nov. 16 ruled that a group of plaintiffs asserting claims of personal injury from exposure to trichloroethylene (TCE), vinyl chloride, benzene and other chemicals is not entitled to class certification (Opal Millman v. United Technologies Corporation, et al., No. 16-312, N.D. Ind.; 2017 U.S. Dist. LEXIS 189638).

MTBE MDL Judge Recommends Remanding Water District's Suit To California Court
NEW YORK - The federal judge in New York presiding over litigation stemming from groundwater contamination caused by the gasoline additive methyl tertiary butyl ether (MTBE) on Nov. 13 recommended remanding the Orange County Water District's (OCWD) lawsuit to California federal court, finding that all consolidated pretrial proceedings in the suit have been completed (In re: Methyl Tertiary Butyl Ether (MTBE) Products liability Litigation, MDL 1358, Orange County Water District v. Unocal, et al., No. 04 Civ. 4968, S.D. N.Y., 2017 U.S. Dist. LEXIS 187458).

New York Investigation Reveals Housing Authority Falsified Lead-Hazard Reports
NEW YORK - The New York Department of Investigation (DOI) on Nov. 15 issued a report indicating that the New York City Housing Authority (NYCHA) failed to conduct mandatory safety inspections for lead paint during a four-year period beginning in 2013 but falsified reports to the U.S. Department of Housing and Urban Development stating that the NYCHA was in compliance with federal laws pertaining to those inspections.

North Carolina County Sues DowDuPont For Contaminating Groundwater, Seeks Damages
WILMINGTON, N.C. - A county in North Carolina on Oct. 31 sued DowDuPont Inc., seeking an unspecified amount of punitive damages for allegedly contaminating the local groundwater supply by dumping toxic substances into the Cape Fear River while "assuring the EPA and state agencies that they were doing no such thing" (Brunswick County, North Carolina v. DowDuPont Inc., et al., No. 17-209, E.D. N.C.).

Amended Complaint In Flint Water Crisis Seeks Unnamed Amount Of Punitive Damages
DETROIT - A class of plaintiffs who sued Michigan Gov. Rick Snyder, members of his administration, state environmental workers, and other parties associated with the lead-contaminated water crisis in Flint, Mich., on Oct. 27 filed an amended complaint in Michigan federal court seeking an unspecified amount of punitive damages for allegedly exacerbating the crisis (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Glyphosate Exposure Causes Non-Hodgkin Lymphoma, Plaintiffs Say
SAN FRANCISCO - The plaintiffs in the multidistrict litigation for the herbicide Roundup on Oct. 27 filed a brief in California federal court, contending that there is "overwhelming evidence - whether it be the epidemiology, toxicology, or mechanistic data - that exposure to glyphosate-based formulations (GBFs) causes" non-Hodgkin lymphoma (NHL) (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

Argentine Judge Refuses To Recognize Ecuadorian Award In Lago Agrio Case
BUENOS AIRES, Argentina - A judge in Argentina on Oct. 31 rejected and refused to recognize a $9.5 billion judgment against Chevron Corp. for remediation damages, which was handed down in an Ecuadorian court in a case brought by an attorney representing a group of residents who contend that the company injured them while conducting oil operations in the Lago Agrio region of Ecuador (Aguinda Salazar Maria, et al. v. Chevron Corporation, No. 97260/2012, Nat. Civ. Ct. No. 61, Buenos Aires, Argentina).

Judge Rejects Chevron's Request That Ecuadorian Claimants Post Security Costs
TORONTO - The Ontario Court of Appeals on Oct. 31 found that in the interests of justice, a group of Ecuadorian claimants, who are attempting to enforce a $9.5 billion environmental damage ruling in their favor, should not be required to post security costs and denied a request by Chevron Corp. and its subsidiary seeking costs (Yaiguaje v. Chevron Corporation, No. 2017 ONCA 827, Ontario App.).

Judge: Alternative Burden For Remediation Of MTBE-Tainted Water 'Not Supported'
TRENTON, N.J. - A federal judge in New Jersey on Nov. 1 denied ExxonMobil Corp.'s and ExxonMobil Oil Corp.'s motion for partial summary judgment regarding damages associated with remediation costs pertaining to groundwater contamination caused by methyl tertiary butyl ether (MTBE), concluding that the defendants' proposed alternative burden for determining proper remediation was "not supported by good cause" (New Jersey Department of Environmental Protection v. Amerada Hess Corporation, No. 15-6468, D. N.J.; 2017 U.S. Dist. LEXIS 180986).

Company: Allowing Plaintiff's Evidence At This Stage Would Be 'Highly Prejudicial'
ASHEVILLE, N.C. - A company sued for allegedly contaminating a man's groundwater supply filed a brief on Oct. 13 in North Carolina federal court, arguing that the plaintiff's "newly disclosed evidence and expert opinion" should be excluded because it would be "highly prejudicial" to allow that evidence to be admitted at this stage of the litigation (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

Plaintiffs In Groundwater Case Say Expert's Deposition Changes Should Be Permitted
GREENVILLE, Miss. - Mississippi residents who sued a company alleging that it is liable for groundwater contamination filed a brief in Mississippi federal court on Oct. 18, arguing that their expert's errata sheet testimony changes should be permitted. However, if they are not permitted, the plaintiffs' expert has offered to withdraw his changes and file a supplemental report instead (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

4th Circuit Affirms Dismissal Of Groundwater Case Against U.S. Government
RICHMOND, Va. - A panel of the Fourth Circuit U.S. Court of Appeals on Oct. 20, in an unpublished opinion, affirmed a ruling that a group of residents lacked standing to sue the U.S. Army for allegedly contaminating their groundwater supply with waste that was dumped from a military installation (Angela Pieper v. United States of America, No. 16-2035, 4th Cir.; 2017 U.S. App, LEXIS 20796).

Glass Manufacturer: Claims Of Tainted Groundwater 'Inadmissible Speculation'
PITTSBURGH - Glass manufacturer PPG Industries Inc. on Oct. 16 filed a brief in a Pennsylvania federal court, contending that "several of the Plaintiffs' purported material facts consist of inadmissible speculation" in relation to groundwater contamination claims that environmental groups have brought against the company (PennEnvironment, et al. v. PPG Industries Inc., et al., No. 12-342, W.D. Pa.).

Men Injured By Lithium Battery On Fracking Rig May Appeal Dismissal, Judge Says
OKLAHOMA CITY - A federal judge in Oklahoma on Oct. 24 ruled that two men who were injured by a lithium battery that exploded during a hydraulic fracturing operation could appeal a ruling dismissing negligence claims against the fracking companies because the order was final according to federal rules of procedure (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.).

Company: Lead Injury Case Should Be Dismissed; Plaintiff Did Not Mitigate Damages
MILWAUKEE - American Cyanamid Co., which is one of the companies being sued by plaintiffs who contend that they are liable for lead-paint poisoning, on Nov. 3 filed a brief in Wisconsin federal court responding to one of the plaintiffs' statement of facts and arguing that the claims "are barred in whole or in part due to a failure to mitigate his damages" (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).

Maryland Appeals Panel Affirms Man's Damages For Lead-Paint Injuries
ANNAPOLIS, Md. - A Maryland appeals panel on Nov. 1 affirmed a trial court's ruling that awarded damages to a man who contended that he was poisoned by lead paint while living in an apartment, concluding that the evidence indicated a causal relationship between lead exposure and the injuries the plaintiff demonstrated (Stanley Sugarman, et al. v. Chauncey Liles, Jr., No. 1460, Md. Spec. App., Sept. Term 2016; 2017 Md. App. LEXIS 1091).

Power Company To Pay $22.2M To Reduce Volatile Organic Compound Emissions
DENVER - The U.S. Environmental Protection Agency on Oct. 31 announced that the federal government, state of Colorado and PDC Energy Inc. reached an agreement in Colorado federal court, wherein the company would spend $22.2 million to resolve allegations that its emissions contained excessive levels of volatile organic compounds (VOCs) that violated the Clean Air Act (United States of America, et al. v. PDC Energy, Inc., No. 17-1552, D. Colo.).

North Dakota: EPA Documents Call For Change In Cases Pertaining To Waste Disposal
WASHINGTON, D.C. - The state of North Dakota on Oct. 26 filed a notice of supplemental authority in District of Columbia federal court contending that Environmental Protection Agency Administrator Scott Pruitt has issued documents that "represent a significant change" regarding litigation pertaining to the nondiscretionary duty under the Resource Conservation and Recovery Act (RCRA) to review and, if necessary, revise regulations for wastes associated with the exploration, development or production of crude oil, natural gas or geothermal energy (Environmental Integrity Project, et al. v. Scott Pruitt, No. 17-5010, D.C. Cir.).

6th Circuit Revives Residents' Class Action Over Oil Company's Emissions
DETROIT - A class action brought by residents who claim a nearby oil company's emissions are contaminating their properties was revived by a Sixth Circuit U.S. Court of Appeals panel on Oct. 26 after it found that the plaintiffs' claims are timely because the allegedly harmful emissions have continued to occur within the last three years (Gregory Cole, et al. v. Marathon Oil Corporation, et al., No. 16-2660, 6th Cir.)

Agent Orange Injury Class Action May Proceed, Judge Says
WASHINGTON, D.C. - A judge in the U.S. Court of Federal Claims on Oct. 25 denied a motion filed by the U.S. government seeking to dismiss a class action brought by the surviving spouses of servicemen who died from injuries allegedly caused by exposure to Agent Orange (Patricia Haddock, et al. v. The United States, No. 16-1423, Fed. Clms.; 2017 U.S. Claims LEXIS 1333).

When Strategies Go Awry: Part I In A Series On Cognitive Biases And Their Impact
By Laura A. Frase We make decisions every day. With simple questions, we normally rely upon intuition, feelings, instincts or automatic reactions to make a decision (ex: do I turn left or right?). Our brains make thousands, if not millions, of these types of decisions, with seemingly little effort or analysis. "Judgment pervades human experience."1 These intellectual shortcuts save time, take less effort and allow us to choose quickly. We do not take the time, for example, to decide which foot to put forward when we walk; we decide automatically or on "gut instinct". If we fully analyzed every simple decision, we would be paralyzed and unable to function in our daily lives. We traditionally believe that we make rational and logical decisions; we "absorb information, process it, and come up with an optimal answer of solution."2 Yet, the fact that we err is undisputed. Our missteps sometimes come when we use these same intuitive shortcuts (known as heuristics) to make complex decisions, particularly when we are dealing with uncertain or unknown information. Countless qualitative studies demonstrate that our ability to analyze intricate facts or numbers is involuntarily thwarted by various cognitive, social and emotional responses which may ultimately force us toward illogical reasoning. As lawyers, we are not immune. Why, for example, do some parties reject generous offers? Why do we invest significant resources into "losing" cases? How does the first demand, even if it is outrageous, tilt negotiations? Why do our brains play these games?

6th Circuit Mediation Office Dropped From Flint Lead Crisis Whistleblower Case
CINCINNATI - The Sixth Circuit Court of Appeals on Oct. 5 announced that its Mediation Office is no longer involved in an appeal brought by 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, which she contended resulted in the termination of her employment (Natasha Henderson v. City of Flint, Mich., No. 17-2031, 6th Cir.).

Parties In Flint Water Case Debate Jurisdiction Before 6th Circuit
CINCINNATI - An attorney representing employees of the Michigan Department of Environmental Quality (MDEQ) on Oct. 6 argued before a panel of the Sixth Circuit U.S. Court of Appeals that a lawsuit pertaining to the lead-contaminated water crisis in Flint, Mich., brought against the employees belongs in federal court (Tamara Nappier v. Richard Snyder, et al., No. 17-1401, 6th Cir.).

Putative Class Of 100,000 Files Flint Water Complaint In Michigan Federal Court
DETROIT - A putative class of residents and other individuals affected by the lead-contaminated water crisis in the city of Flint, Mich., on Sept. 29 filed a consolidated class action in Michigan federal court, contending that multiple state and local authorities caused a public health crisis by exposing the plaintiffs to contaminated water and exacerbated the crisis by concealing and misrepresenting its scope (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Monsanto: Roundup MDL Cases Fail For Lack Of Causation Between Cancer, Glyphosate
SAN FRANCISCO - Monsanto Co. on Oct. 6 moved in California federal court for dismissal of the multidistrict litigation related to the herbicide Roundup on grounds that the plaintiffs have not satisfied their burden to present expert testimony that is "scientifically reliable and relevant" and that is sufficient to prove general causation concerning whether glyphosate - the active ingredient in Roundup - is capable of causing cancer (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

Judge: Motion Redacted To Protect 'Vulnerabilities' In Tainted Groundwater Case
CHARLESTON, W.Va. - A federal judge in West Virginia on Sept. 26 ruled that portions of a motion to exclude expert testimony in a groundwater contamination lawsuit should be redacted because the document contains information that "substantially risks exposing vulnerabilities" in the water supply system and the means by which the water company which is the defendant in the lawsuit would respond to an attack on the system (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1374, S.D. W.Va.).

Groundwater Plaintiffs Lack 'Sufficient Evidence' To Show Standing, Company Says
TRENTON, N.J. - NL Industries Inc. on Sept. 29 filed a brief in New Jersey federal court arguing that the environmental groups that sued it for allegedly contaminating groundwater "still have not produced sufficient evidence to establish that they have standing" after more than eight years of litigation (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).

Plaintiff: Protective Order Needed In Water Lawsuit; Depositions 'Thwart' Rights
SANTA ANA, Calif. - One of the plaintiffs in a chemical injury and groundwater contamination lawsuit against Pacific Gas & Electric (PGE) on Oct. 2 filed a memorandum of points and authorities supporting a request for a protective order, arguing that the company and its attorney are liable for "unjustifiable acts" because their attempt to take oral depositions is designed to "thwart" the plaintiffs' rights to "justice, due process of law and constitutional protection" (Barbara A. Vinson v. Pacific Gas & Electric Company, No. 16-514, C.D. Calif.).

Judge OKs $1.09M Deal For Remediation, Future Costs Due To Tainted Groundwater
FRESNO, Calif. - A federal judge in California on Oct. 13 ruled that a $1.09 million settlement in a lawsuit involving the release of perchloroethylene (PCE) into the groundwater supply was "fair and equitable" because it will provide remediation and future oversight costs for an area that was contaminated by a dry-cleaning business (Viola Coppola, et al. v. Gregory Smith, et al., No. 11-cv-01257, E.D. Calif.; 2017 U.S. Dist. LEXIS 170002).

Court Should Deny Company's Attempt To Exclude Evidence In Benzene Case, Man Says
ASHEVILLE, N.C. - A North Carolina man who sued a company for allegedly contaminating his groundwater with benzene filed a brief Oct. 6 in North Carolina federal court opposing the company's motion in limine to exclude newly discovered evidence. The man argues that the disclosure of the allegedly "new" evidence is not new and it is "substantially justified" (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

Company: Battery Maker Has Duty To Indemnify In Fracking Injury Lawsuit
OKLAHOMA CITY - A hydraulic fracturing company on Oct. 9 filed a brief in an Oklahoma federal court arguing that the company that made a lithium battery pack that exploded on a fracking rig and injured a worker has a direct duty under Oklahoma law to indemnify the fracking operator because the explosion was caused by an allegedly defective design (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.).

Company May Not Avoid Risk-Contribution In Lead Paint Case, Plaintiffs Say
MILWAUKEE - The plaintiffs suing the former makers of lead-based paint on Oct. 6 filed a brief in Wisconsin federal court contending that it should not permit one of the defendants, American Cyanamid Co., "to end run around the established law of risk-contribution by repackaging arguments that have already been rejected by the Wisconsin Supreme Court and the Seventh Circuit" (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).

Plaintiffs: Alter-Ego Theory Of Liability Applies To Lead Injury Lawsuit
ST. LOUIS - A group of plaintiffs who contend that a lead-smelting company is liable for personal injuries and groundwater contamination from lead at a mining facility in Peru on Oct. 2 filed a brief in Missouri federal court opposing a motion to dismiss that was filed by companies that are non-Missouri defendants. The plaintiffs contend that an alter-ego theory of liability imposes jurisdiction over the non-Missouri defendants (J.Y.C.C., et al. v. Doe Run Resources Corporation, et al., No. 15-1704 [consolidated], E.D. Mo.).

Justice Rules Lead-Paint Case Against Landlord Is Viable
NEW YORK - A New York justice on Oct. 2 ruled that a man who alleges that his former landlord is liable for injuries caused by his exposure to lead-based paint has a viable case, but the justice dismissed a third-party action filed by the landlord, who contended that the plaintiff's elevated blood-lead levels were caused by lead hazards at a separate premises (Christopher Brown v. Wendy Webb-Weber, No. 159252/2014, and Wendy Webb-Weber v. Steven Thau, No. 595628/2016, N.Y. Sup., New York Co.; 2017 N.Y. Misc. LEXIS 3754).

At Risk: Our Nation's Drinking Water Supply
By Susan E. Smith and George H. Buermann The fragile state of the United States drinking water system is making waves (and headlines) across the country. The public drinking water systems in Flint, Michigan; Fresno, California; Corpus Christie, Texas; St. Joseph, Louisiana; East Chicago, Indiana; and Hoosick Falls, New York-to name a few-have experienced disruptions in the past several years due to combinations of infrastructure problems and intrusion of potentially toxic contaminants. The events in Flint, Michigan put a spotlight on the issue, and it has since become clear that the problems go far beyond just that one community. How our water authorities obtain, treat, and distribute drinking water, and what is in the water before and after treatment, is capturing national attention. The National Primary Drinking Water Regulations address ninety different chemicals, microorganisms, and radioactive isotopes that are subject to exposure limits on the basis of U.S. Environmental Protection Agency (EPA) risk assessments.1 Concerns about contamination are focused on both regulated contaminants and emerging and unregulated contaminants. The broad array of substances that exist in drinking water would surprise most of us. That colorless, odorless H20 is anything but simply H20.