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

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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.



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?