Mealey's Toxic Torts

  • December 03, 2020

    BASF Corp.:  Aqueous Film Foam Claims Fail, Plaintiffs Have Not Shown Damages

    CHARLESTON, S.C. — BASF Corp., a defendant in the multidistrict litigation for liability related to the firefighting agent aqueous film forming foam (AFFF), on Dec. 1 filed a general denial and statement of affirmative defenses contending that the plaintiffs have not sufficiently alleged grounds for relief and have not shown that they sustained any damages for which BASF is responsible (In re: Aqueous Film Forming Foam Products Liability Litigation, MDL No. 18-2873, D. S.C.).

  • December 02, 2020

    Parties Spar At Delaware High Court Over DuPont Deal To Handle PFOA Injury Claims

    WILMINGTON, Del. — Attorneys for The Chemours Co. and DowDuPont Inc. on Dec. 2 debated before the Delaware Supreme Court whether the separation agreement the companies entered when E.I. du Pont de Nemours & Co. spun off Chemours and saddled it with liability for injuries allegedly caused by exposure to perfluorooctanoic acid (PFOA) was “unconscionable.” An attorney for Chemours said the company did not give consent to the agreement, while an attorney for DowDuPont contended that Chemours’ argument is “muted” because it signed an amendment to the separation agreement two years after the spinoff was completed (The Chemours Company v. DowDuPont Inc., No. 147, 2020, Del. Sup.).

  • December 02, 2020

    Federal Environmental Council: States’ NEPA Challenge Fails, Dismissal Warranted

    SAN FRANCISCO — The Council of Environmental Quality (CEQ) on Dec. 1 moved in California federal court to dismiss a lawsuit brought by numerous state attorneys general who say the CEQ exceeded its authority then it changed the National Environmental Policy Act (NEPA), arguing that jurisdiction is lacking.  The CEQ also says that if the changes to NEPA are ever applied to a specific action and the states are harmed, they can then mount a legal challenge (California, et al. v. Council on Environmental Quality, No. 20-6057, N.D. Calif.).

  • December 01, 2020

    Group Tells 9th Circuit Hexavalent Chromium In Drinking Water Is Solid Waste

    SAN FRANCISCO — An environmental group asked the Ninth Circuit U.S. Court of Appeals in an opening brief filed Nov. 27 to reverse a federal judge in California’s ruling that hexavalent chromium that is generated as part of a city’s pumping and distribution of drinking water that remains in the city’s drinking water wells is not a solid waste under the Resource Conservation and Recovery Act (RCRA), arguing that the transporter of the chemical does not have to transport the chemical twice for the chemical to retain its identity as a solid waste under the statute.

  • December 01, 2020

    Judge Partially Dismisses Groundwater Cost Recovery Claims Due To Consent Decree

    CENTRAL ISLIP N.Y. — A federal judge in New York on Nov. 24 partially granted and partially denied a motion by certain companies seeking to avoid contributing to cleanup costs associated with remedying groundwater contamination in a plume in Nassau County, N.Y., saying that some of the claims for recovery were barred by a prior consent decree (101 Frost Street Associates LP, et al. v. United States Department of Energy, et al., No. 17-3585, E.D. N.Y., 2020 U.S. Dist. LEXIS 220691).

  • December 01, 2020

    Judge Denies City’s Costs Request After ‘Mixed Judgment’ In Drinking Water Suit

    SACRAMENTO, Calif. — The city of Vacaville, Calif.’s request for an award of costs following the resolution of an environmental group’s lawsuit accusing the city of violating the Resource Conservation and Recovery Act (RCRA) and other laws by providing public drinking water containing hexavalent chromium was denied by a federal judge in California on Nov. 30, after she found that the city was not a prevailing party because the disposition of the suit constituted a “mixed judgment.”

  • December 01, 2020

    Judge:  Injury Case Fails, Defendants Lacked Control Of Chemicals That Caused Harm

    MINNEAPOLIS — A federal judge in Minnesota on Nov. 25 dismissed with prejudice a chemical exposure injury case on grounds that the plaintiffs failed to allege facts that showed the defendants had exclusive control of the hazardous waste that was dumped and contaminated the local groundwater (Robert Michael Kennan, et al. v. Boeing Aircraft Corporation, et al., No. 19-3135, D. Minn., 2020 U.S. Dist. LEXIS 221033).

  • November 30, 2020

    Judge Sets Aside Ruling, Says Veteran’s Herbicide Exposure Connected To Injury

    WASHINGTON, D.C. — A judge in the Veterans Claims U.S. Court of Appeals on Nov. 25 set aside and remanded a decision by the Board of Veterans Appeals that denied benefits to a veteran who claimed that his herbicide exposure during the Vietnam War caused him to develop diabetes mellitus.  The judge said the board did not follow the guidance provided in rules that were established for veterans who served in Thailand, as the plaintiff did (Philip Noah v. Robert L. Wilkie, No. 19-5990, Vet. Clms., 2020 U.S. App. Vet. Claims LEXIS 2136).

  • November 30, 2020

    Lead Paint On County’s Buildings Creates Triable CERCLA Issue, Judge Says

    SACRAMENTO, Calif. — The presence of excessive levels of lead detected in soil on properties that were owned by a county that built then demolished buildings with lead paint sufficiently supports a third-party contribution claim brought by defendants in a Comprehensive Environmental Response, Compensation, and Liability Act against the county, a federal judge in California ruled Nov. 17 in denying the county’s motion for summary judgment, finding that the presence of the substance can cause the defendants to incur response costs.

  • November 24, 2020

    Cancer Victim: Glyphosate Case Against Monsanto Should Be Remanded To Alabama

    SAN FRANCISCO — A cancer victim who is suing Monsanto Co. and an Alabama business alleging that they are liable for his injury filed a brief on Nov. 19 in California federal court, arguing that his case should be remanded to Alabama state court from the multidistrict litigation for In re Roundup Products Liability Litigation because Monsanto has “has failed to timely and persuasively meet its burden of establishing diversity jurisdiction” (In re: Roundup Products Liability Litigation [Phillip Mowry v Monsanto Company, et al.], No. 20-3356, MDL 2741, N.D. Calif.).

  • November 24, 2020

    Illinois, Contractors Settle Toxic Dust Case For $370,000

    CHICAGO — Illinois Attorney General Kwame Raoul on Nov. 19 announced that his office had reached a $370,000 settlement with a group of developers over the release of toxic dust that the attorney general alleged contaminated a residential area when the developers demolished a smokestack at a former power generating station (People of Illinois, ex rel. Kwame Raoul v. Hilco Redevelopment LLC, et al., No. 2020-CH-4076, Ill. Cir., Cook Co., Chanc. Div.).

  • November 20, 2020

    Cancer Plaintiff:  Court Erred In Dismissing Case Against Mineral Spirits Supplier

    WEST PALM BEACH, Fla. — A couple on Sept. 22 filed its opening brief in Florida appeals court contending that a trial court erred when it granted summary judgment to a defendant in a chemical exposure cancer lawsuit because the company did not establish a factual dispute that the mineral spirits it provided to the husband’s workplace did not cause his illness (Robert Howell, et al. v. Sea Foam Sales Company, et al., No. 4D20-0838, Fla. App., 4th Dist.).

  • November 20, 2020

    3 Companies Say 7th Circuit Should Reverse Lead Paint Award Based On Wisconsin Law

    CHICAGO — Three companies against which plaintiffs won $700,000 for injuries from exposure to lead-based paint on Nov. 12 filed separate reply briefs in the Seventh Circuit U.S. Court of Appeals, arguing that the verdict should be reversed on grounds that the award is contrary to Wisconsin law (Glenn Burton, et al. v. Armstrong Containers Inc., et al., No. 20-1774, 7th Cir.).

  • November 20, 2020

    Groundwater Contamination Case Against Government Valid, Judge Says

    RALEIGH, N.C. — A federal judge in North Carolina on Nov. 10 denied the U.S. government’s motion to dismiss a groundwater contamination lawsuit, ruling that the claim is not barred by the Federal Tort Claims Act (FTCA) or a North Carolina statute of repose because “there are simply no policy considerations” that can account for the U.S. Department of Navy’s failure to provide uncontaminated water at Camp Lejeune (Gregory Wayne Bunting v. United States, No. 19-67, E.D. N.C., 2020 U.S. Dist. LEXIS 210416).

  • November 20, 2020

    3rd Circuit: 3M Shareholder Case Related To PFAS Liability Belongs In Minnesota

    PHILADELPHIA — A panel of the Third Circuit U.S. Court of Appeals on Nov. 18 ruled that a shareholder class action claiming that the 3M Co. and its officers concealed the truth about the company’s exposure to liability associated with per- and polyfluoroalkyl substances (PFAS) in violation of federal securities laws belongs in Minnesota federal court because claims based on false statements or omissions arise in the district where they occurred (In re 3M Co., et al., No. 20-2864, 3rd Cir.).

  • November 20, 2020

    DuPont Entities Say They Never Made Chemical For Use In Aqueous Film Foam

    CHARLESTON, S.C. — DuPont de Nemours Inc. and an affiliated company on Nov. 16 moved in South Carolina federal court for leave to file a motion to dismiss in the multidistrict litigation for aqueous film forming foam (AFFF) and attached to the motion for leave a copy of the actual dismissal motion, in which they argue that all of the cases lack personal jurisdiction (In re: Aqueous Film Forming Foam Products Liability Litigation, MDL No. 18-2873, D. S.C.).

  • November 19, 2020

    Bellwether Plaintiffs’ Roundup Case Not Filed In A Timely Manner, Monsanto Says

    SAN FRANCISCO — Monsanto Co. on Nov. 17 filed a brief in California federal court contending that one of the bellwether plaintiffs in the Roundup Products Liability Litigation multidistrict litigation should have his case dismissed because he had sufficient evidence to be on notice of a potential claim and the statute of limitations expired well before he filed his lawsuit (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • November 18, 2020

    Judge: Issues Of Material Fact Exist In Chemical Exposure Case; Dismissal Denied

    NEW ORLEANS — A federal judge in Louisiana on Nov. 16 denied a motion to dismiss a chemical exposure lawsuit against a timber company and its contractor, ruling that there are genuine issues of material fact to be resolved with regard to the plaintiffs’ claims that the defendants were negligent (Dorothy Gail Collett, et al. v. Weyerhaeuser Company, et al., No. 19-11144, E.D. La., 2020 U.S. Dist. LEXIS 210481).

  • November 18, 2020

    Amended Flint Settlement Worth $641.25M Includes Payments By Added Parties

    FLINT, Mich. — Michigan Attorney General Dana Nessel on Nov. 17 announced that an amended settlement of the litigation pertaining to the lead-contaminated water in the city of Flint worth $641.25 million, including payments by additional defendants, has been submitted to a Michigan federal court judge for approval (In re Flint Water Cases, No. 16-10444, E.D. Mich.).

  • November 17, 2020

    New Donziger Attorney: Right To Fair Trial Prejudiced, Case Should Be Reassigned

    NEW YORK — A new attorney for Steven R. Donziger, the attorney who won an $18.5 billion judgment against Chevron Corp. in a court in Ecuador for injuries only to have it reversed, on Nov. 16 sent a letter to the New York federal judge who assigned the criminal contempt case to a separate judge, and called for the reassignment of the case to yet a different judge on grounds that the district court has “gone well beyond inevitable commingling and made a series of decisions that fundamentally prejudice Mr. Donziger’s right to a fair trial” (United States v. Steven Donziger, Nos. 19-cr-561 and 11-691, S.D. N.Y.).

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