Mealey's Toxic Torts
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April 19, 2019
EPA: Clean Water Act Does Not Apply To Pollutants Released Into Groundwater
WASHINGTON, D.C. — The Environmental Protection Agency on April 15 issued an interpretive statement clarifying the application of the Clean Water Act (CWA) and concluded that releases of pollutants into groundwater are “categorically excluded” from the CWA’s permitting requirements because Congress “explicitly left regulation of discharges to groundwater” to the states and to the EPA under other statutory authorities.
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April 19, 2019
Municipality: Sherwin-Williams Preemptive Lawsuit Against It Must Be Dismissed
PHILADELPHIA — A Pennsylvania county on March 7 filed a reply brief in Pennsylvania federal court contending that Sherwin-Williams Co.’s lawsuit attempting to prevent several counties from filing lead-based paint injury lawsuits against the company should be dismissed with prejudice because Sherwin-Williams fails to state a case upon which relief can be granted (The Sherwin-Williams Company v. The County of Delaware, Pennsylvania, et al., No. 18-4517, E.D. Pa.).
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April 19, 2019
U.S. Government: Tribes’ Pipeline Lawsuit ‘Moot,’ Should Be Dismissed
SAN FRANCISCO — The U.S. Government on April 8 filed a brief in the Ninth Circuit U.S. Court of Appeals arguing that it should remand for dismissal as moot a lawsuit brought by Native American tribes who contend that the construction of the Keystone XL Pipeline would threaten their land and water because it would transport hydraulically fractured oil (Indigenous Environmental Network, et al. v. U.S. Department of State, et al., No. 18-36068, 9th Cir.).
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April 19, 2019
Attorneys Debate Meaning Of ‘Injury’ In Toxic Exposure Case Before 2nd Circuit
NEW YORK — Attorneys representing residents and those representing manufacturers presented oral arguments before the Second Circuit U.S. Court of Appeals on April 17, debating the definition of “injury” under New York state law as it pertains to exposure to perfluorooctanoic acid (PFOA) and the residents’ rights to medical monitoring related to groundwater contamination (Michele Baker, et al. v. Saint-Gobain Performance Plastics Corp., et al., No. 17-3942, 2nd Cir.).
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April 19, 2019
Judge: DuPont May Depose Cancer Victim’s Wife, But Not Compel More Discovery
BUFFALO, N.Y. — A federal magistrate judge in New York on March 27 ruled that E.I. DuPont de Nemours & Co. could depose the wife of a man who claims that the company is liable for causing his cancer as a result of chemical exposure, but the judge said DuPont could not compel the production of more documents from the plaintiffs’ experts (James H. Sarkees, et al. v. E.I. DuPont de Nemours and Company, et al., No. 17-651, W.D. N.Y., 2019 U.S. Dist. LEXIS 52200).
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April 19, 2019
Attorneys Present Opening Arguments In California Glyphosate Cancer Trial
OAKLAND, Calif. — Attorneys for a couple and those representing Monsanto Co. on March 28 delivered opening arguments in California state court in a glyphosate cancer trial in which the couple contends that Monsanto is liable for their injury, while the company maintains that glyphosate does not cause cancer (Alva Pilliod, et al. v. Monsanto Company, No. RG17862702, Calif. Super., Alameda Co.).
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April 19, 2019
Financial Officer’s Testimony Should Be Excluded, Flint Whistleblower Says
DETROIT — A woman who became a whistleblower during the lead-contaminated water crisis in the city of Flint, Mich., on April 10 filed a reply brief in Michigan federal court arguing that the court should exclude the testimony of the city’s former chief financial officer concerning why the whistleblower was fired (Natasha Henderson v. Flint, et al., No. 16-11648, E.D. Mich.).
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April 19, 2019
Armstrong Containers, Sherwin- Williams Oppose Phases In Lead Paint Trial
MILWAUKEE — Armstrong Containers Inc. on April 11 moved in Wisconsin federal court to join a brief filed by the Sherwin-Williams Co. opposing bifurcation of a lead-based paint injury lawsuit. Sherwin-Williams contends that the plaintiffs’ plan is “somewhat unclear” but it would exclude evidence of the “predominant role” played by National Lead Co. in supplying white lead carbonate, therefore it would give the plaintiffs “an unfair advantage” (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).
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April 18, 2019
Groups: Supreme Court Review Of Groundwater Case, Clean Water Act Exemption Needed
WASHINGTON, D.C. — Two environmental groups on April 15 filed a petition for a writ of certiorari in the U.S. Supreme Court contending that a lower court’s ruling that held that there is an exemption to the Clean Water Act (CWA) related to the protection of navigable waters from pollutants added from a point source via groundwater is not supported by the text and structure of the CWA (Tennessee Clean Water Network, et al. v. Tennessee Valley Authority, No. 18-1307,
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April 17, 2019
Groundwater Plaintiffs Amend Complaint Against City Of Fort Myers, Fla.
FORT MYERS, Fla. — The plaintiffs in a putative class action against the city of Fort Myers on April 15 filed an amended complaint in Florida federal court, contending that the venue for their groundwater contamination lawsuit is appropriate and they have complied with the pre-suit requirements of the Resource Recovery and Conservation Act (RCRA) (Deretha Miller, et al. v. Fort Myers, et al., No. 18-195, M.D. Fla.).
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April 17, 2019
Chevron: Lago Agrio Attorney’s Contempt Is ‘Beyond Doubt’ Regarding Discovery
NEW YORK — Chevron Corp. on April 15 filed a brief in New York federal court contending that “it is now beyond doubt” that 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, is in contempt of the district court’s orders regarding the discovery of data on the attorney’s electronic devices (Chevron Corporation v. Steven Donziger, No. 11-691, S.D. N.Y.).
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April 16, 2019
Dutch High Court Refuses Ecuador’s Attempt To Enforce $9.5B Judgment
THE HAGUE, Netherlands — Chevron Corp. on April 15 announced that the Supreme Court of the Netherlands denied a request filed by the Republic of Ecuador to annul international arbitration awards in which a tribunal held that a $9.5 billion Ecuadorian decision violated Chevron’s rights and should not be enforced anywhere.
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April 16, 2019
Plaintiffs: ‘Wrong Standard’ Applied On Civil Rights Claim In Flint Water Case
ANN ARBOR, Mich. — The plaintiffs in the city of Flint, Mich., lead-contaminated water litigation on April 15 moved in Michigan federal court for reconsideration of the district court’s ruling in which, despite granting their motion to add claims for violation of bodily integrity, the judge “applied the wrong liability standard” under the Elliott Larsen Civil Rights Act (ELCRA) (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).
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April 16, 2019
Judge Vacates Trial Date In Glyphosate Cancer Case, Orders Confidential Mediation
SAN FRANCISCO — The judge presiding over the multidistrict litigation for the herbicide Roundup on April 11 vacated the trial date for the next bellwether case and ordered the parties to go to confidential mediation (In re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).
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April 11, 2019
Judge: Company Not Entitled To Third-Party Defense In Tainted Groundwater Case
HATO REY, Puerto Rico — A federal judge in Puerto Rico on March 25 ruled that a company that is liable for groundwater contamination could not assert a third-party defense and ordered the U.S. government, which is in charge of remediating the chemical hazard, to specify which response actions underlie the costs it says the chemical company is liable for paying (United States v. Puerto Rico Industrial Development Company, No. 15-2328, D. Puerto Rico, 2019 U.S. Dist. LEXIS 52194).
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April 10, 2019
Judge Denies City’s Request For Injunction Requiring Contamination Investigation
CHICAGO — A federal judge in Illinois on April 9 denied a city’s request for a temporary injunction that would require two utility companies to investigate and remediate manufactured gas waste oil (MG waste oil), methane and polycyclic aromatic hydrocarbons (PAH) contamination at a former manufactured gas station and found that experts proffered by the parties are qualified to testify about the migration of the contamination (Evanston, Ill. v. Northern Illinois Gas Company, et al., No. 16-C-5692, N.D. Ill., 2019 U.S. Dist. LEXIS 60707).
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April 8, 2019
Paulsboro Derailment Court Properly Excluded Experts, 3rd Circuit Decides
PHILADELPHIA — Two experts for a business allegedly damaged by the 2012 Paulsboro, N.J., train derailment and chemical spill failed to provide reliable, relevant opinions on the damage caused by the wreck, the Third Circuit U.S. Court of Appeals held April 5 in affirming summary judgment to the train operator (Ace Pallet Corporation, et al. v. Consolidated Rail Corporation, et al., No. 18-2746, 3rd Cir., 2019 U.S. App. LEXIS 10105).
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April 5, 2019
Judge: Donziger Not Entitled To Extension, Must Respond To Contempt Motions
NEW YORK — A federal judge in New York on April 4 ruled that 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, failed to show good cause for an extension of time to respond to Chevron’s motions against him for civil contempt, and he ordered Donziger to respond (Chevron Corporation v. Steven Donziger, No. 11-691, S.D. N.Y.).
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April 3, 2019
Judge: Flint Residents’ Bodily Integrity Claim Valid; Some Defendants Dismissed
ANN ARBOR, Mich. — A federal judge in Michigan on April 1 granted the plaintiffs in the city of Flint, Mich., lead-contaminated water litigation leave to amend their complaint and add claims for violation of bodily integrity. The judge also partially granted and partially denied various motions to dismiss filed separately by multiple defendants (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).
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April 3, 2019
Insurer’s Motion Denied On Issues Of Allocation, Exposure In Lead Coverage Dispute
BALTIMORE — A Maryland federal judge on March 31 denied an insurer’s motion for summary judgment on the issues of allocation and the length of exposure to lead paint after determining that the parties failed to adequately brief the issues in their motions for summary judgment (Allstate Insurance Co. v. Stanley Rochkind et al., No. 17-3400, D. Md., 2019 U.S. Dist. LEXIS 55822).