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Mealey's Toxic Torts

  • March 1, 2019

    Parties Debate Remediation Program For Dry Cleaner Groundwater Contamination

    HOUSTON — The state of Texas and businesses owners on Feb. 28 presented oral arguments in a state appeals court in which they debated whether the state’s Dry Cleaner Remediation Program (DCRP) is the exclusive avenue for the state or local governments to pursue cleanup of contaminated dry cleaning sites that have tainted groundwater, when participation in that program is optional for owners of dry cleaners and their underlying properties (Harris County, Texas, et al. v. S.K. and Brothers Inc., et al., No. 14-17-00984, Texas App., 14th Dist., Harris Co.).

  • March 1, 2019

    Judge: Motion To Intervene In Groundwater Contamination Case Denied As Untimely

    DETROIT — A federal judge in Michigan on Feb. 28 denied as untimely a motion to intervene in a Resource Conservation and Recovery Act (RCRA) action related to groundwater contamination, the remediation of which is already the subject of a consent decree between a state environmental agency and the company responsible for the contamination (Michigan Department of Environmental Quality v. Ford Motor Co., No. 17-12372, E.D. Mich., 2019 U.S. Dist. LEXIS 31703).

  • February 28, 2019

    5th Circuit Panel Vacates, Remands Ruling In Silica Coverage Suit

    NEW ORLEANS — After determining that questions of fact exist regarding the coverage afforded under a policy issued to a now-bankrupt insured silica company, the Fifth Circuit U.S. Court of Appeals on Feb. 27 vacated and remanded a district court’s finding that no coverage is afforded for a judgment entered against the silica company in a wrongful death suit (OneBeacon America Insurance Co. v. Dorothy L. Barnett, et al., No. 18- 60224, 5th Cir., 2019 U.S. App. LEXIS 5904).

  • February 28, 2019

    Georgia Appeals Panel Splits On Expert Testimony In Mold Contamination Case

    ATLANTA — The question of whether a trial court properly acted as a gatekeeper when ruling on a treating physician’s expert testimony about the cause of a woman’s breathing disorder divided a Georgia appellate panel Feb. 25, with the majority finding that it did not and remanding for a full Daubert consideration (James Kershaw, et al. v. Princeton Properties Management, Inc., et al., No. A18A1842, Ga. App., Div. 5, 2019 Ga. App. LEXIS 83).

  • February 27, 2019

    Judge Sanctions Counsel $500 In Glyphosate Cancer Trial; Bad Faith ‘Intentional’

    SAN FRANCISCO — A federal judge in California on Feb. 26 sanctioned the plaintiff’s attorney in the first bellwether federal glyphosate cancer trial and ordered her to pay $500 because in her opening arguments at the start of the trial, she “committed several acts of misconduct” (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • February 26, 2019

    Monsanto Attorney: ‘Curative’ Instruction Needed Regarding Use Of Unadjusted Data

    SAN FRANCISCO — The attorney representing Monsanto Co. on Feb. 25 sent a letter to the California federal judge presiding over the first bellwether federal glyphosate cancer trial, contending that based on the plaintiff’s counsel’s opening argument and the testimony of the first witness, the judge should issued a “curative instruction” regarding the use of unadjusted data by expert witnesses to “minimize the risk that the jury will reach a verdict in this case that is based on junk science” (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • February 26, 2019

    Sanctions Based On Opening Argument Missteps ‘Unfair,’ Plaintiff’s Attorney Says

    SAN FRANCISCO — The attorney representing the plaintiff in the first bellwether federal glyphosate cancer trial on Feb. 25 filed a brief in California federal court arguing that she did not act in bad faith during her opening arguments and, therefore, imposing sanctions, which the presiding judge proposed, would be “unfair and improper” (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • February 26, 2019

    Insurer Claims It Has No Duty To Indemnify Insured For $300M Settlement

    ST. LOUIS — In a Feb. 14 motion for summary judgment, an insurer claims that it has no duty to indemnify its insured for a $300 million settlement of underlying bodily injury claims stemming from the insured’s lead-smelting operations because the underlying claims were filed after the policies at issue expired and because the claims are precluded by the policies’ pollution exclusions (Zurich American Insurance Co. v. Fluor Corp., et al., No. 16-429, E.D.  Mo.).

  • February 25, 2019

    Judge: Glyphosate Cancer Plaintiffs’ Experts May Testify On Causation

    SAN FRANCISCO — A federal judge in California on Feb. 24 issued a ruling on expert testimony pertaining to the three bellwether plaintiffs with trials pending against Monsanto Co. for allegations that glyphosate, the active ingredient in the company’s herbicide Roundup, causes cancer, in which he said the experts could testify regarding causation.  The ruling applies to all of the cases in the multidistrict litigation for Roundup products liability (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • February 25, 2019

    Groups: City Of Newark Must Provide Bottled Water Due To Lead-Tainted Tap Water

    NEWARK, N.J. — Plaintiffs who sued the city of Newark and other city agencies on Feb. 21 moved in New Jersey federal court for a preliminary injunction in their lawsuit for “dangerously high levels of lead” in their drinking water, contending that they are “suffering irreparable harm” that will continue unless there is an injunction that orders the city to provide bottled water (Newark Education Workers Caucus, et al. v. Newark, et al., No. 18-11025, D. N.J.).

  • February 22, 2019

    Former Teacher’s Complaint About Lead Did Not Result In Retaliation, Panel Says

    CINCINNATI — A panel of the Sixth Circuit U.S. Court of Appeals on Feb. 21 dismissed a whistleblower’s lawsuit against the Detroit Public Schools Community District, ruling that a former teacher did not show that she had been retaliated against after she complained to school officials that the water in the school was contaminated with lead and copper (Katrina Brown v. Detroit Public Schools Community District, et al., No. 18-1098, 6th Cir., 2019 U.S. App. LEXIS 5006).

  • February 22, 2019

    Some Tainted Groundwater Claims Valid Against Bankrupt Company, Panel Says

    SAN FRANCISCO — An appeals panel in California in a Feb. 19 unpublished opinion partially affirmed and partially reversed a groundwater contamination ruling against a bankrupt company based on evidence that was “substantively identical” to that involving one of the co-defendants. The panel said that claims for declaratory relief and violation of the state health and safety code were valid (Orange County Water District v. Radioshack Corporation, No. D075111, Calif. App., 4th Dist., Div. 1, 2918 Cal. App. Unpub. LEXIS 1179).

  • February 21, 2019

    Companies: High Court Should Hear Case To Settle Conflict Regarding Class Actions

    WASHINGTON, D.C. — A group of chemical companies on Feb. 20 filed a brief in the U.S. Supreme Court, arguing that the court should settle a conflict among federal appellate courts regarding the necessity of plaintiffs satisfying the predominance requirement to achieve class status because the groundwater contamination class action at hand is “an ideal vehicle” for addressing the issue (Behr Dayton Thermal Products LLC, et al. v. Terry Martin, et al., No. 18-472, U.S. Sup.).

  • February 21, 2019

    Flint Plaintiffs: Dismissal Wrong For Defendant They Say Drafted ‘Interim Plan’

    ANN ARBOR, Mich. — The plaintiffs in the lead-contaminated water crisis lawsuit in Flint, Mich., on Feb. 19 filed a brief in Michigan federal court contending that it should not consider the brief filed by one of the water authority defendants seeking dismissal because evidence supports the claim that he helped draft an interim plan that knowingly harmed the residents by contaminating the drinking water (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

  • February 20, 2019

    Baltimore Sues Monsanto, Says Company Liable For PCB Contaminated Stormwater

    BALTIMORE — The mayor and City Council of Baltimore on Feb. 19 sued Monsanto Co. and its subsidiaries in Maryland federal court, claiming that the companies are liable for contaminating stormwater and bodies of water in the state with polychlorinated biphenyls (PCBs) (Mayor and City Council of Baltimore v. Monsanto Co., et al., No. 19-cv-00483, D. Md.).

  • February 19, 2019

    Companies: Chemical Exposure Case Related To Aqueous Film Forming Foam Fails

    COLUMBUS, Ohio — 3M Co. and other manufacturers of toxic per- and polyfluoroalkyl substances on Feb. 14 moved in Ohio federal court to dismiss a lawsuit in which a man contends that he has been injured as a result of exposure to aqueous film forming foams (AFFF) used to fight chemical fires, contending that the court lacks jurisdiction over the matter (Kevin Hardwick v. 3M Company, et al., No. 18-1185, S.D. Ohio).

  • February 19, 2019

    Judge: Glyphosate Plaintiffs’ Evidence Limited At Phase 1 Of Monsanto Trial

    SAN FRANCISCO — A federal judge in California on Feb. 18 ruled that the plaintiffs in lawsuits against Monsanto Co. alleging that they developed cancer as a result of exposure to glyphosate, the active ingredient in the herbicide Roundup, may not introduce a report from the International Agency for Research on Cancer (IARC) as evidence in Phase 1 of their trial, which focuses solely on the issue of causation (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • February 19, 2019

    U.S. Supreme Court Will Review 9th Circuit’s Clean Water Act Ruling

    WASHINGTON, D.C. — The U.S. Supreme Court on Feb. 19 granted in part a petition for a writ of certiorari seeking review of a Ninth Circuit U.S. Court of Appeals’ ruling that upheld a summary judgment award to five environmental groups that accused the county of Maui of violating the Clean Water Act (CWA) when discharging pollutants from its wells into the Pacific Ocean, but limited its review to whether the act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater (County of Maui v. Hawaii Wildlife Fund, et al., No. 18-260, U.S. Sup.).

  • February 15, 2019

    EPA Plan Will Begin To Propose Naming Perfluoroalkyl Chemicals As ‘Hazardous’

    WASHINGTON, D.C. — The U.S. Environmental Protection Agency on Feb. 14 released an action plan in which it said it would begin the steps to propose designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as “hazardous substances” as it develops groundwater cleanup recommendations for those chemicals at contaminated sites.

  • February 15, 2019

    Study: Glyphosate-Based Herbicide Exposure Increases Cancer Risk By 41 Percent

    BERKELEY, Calif. — A team of researchers led by a scientist at the University of California Berkeley released a study on Feb. 5 that concludes that “the overall meta-relative risk” of non-Hodgkin lymphoma (NHL) in a person exposed to glyphosate-based herbicides (GBHs) is 41 percent higher than in those who are not exposed to the chemical.