Mealey's Toxic Torts
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August 17, 2018
Judge Partially Dismisses Asbestos Wrongful Death Case; Negligence Claim Stands
GREENSBORO, N.C. — A federal judge in North Carolina on Aug. 16 partially granted and partially denied a motion for summary judgment dismissal of a woman’s wrongful death lawsuit, finding that her claims for negligence and failure to warn with regard to her husband’s death from exposure to asbestos were valid, but dismissing her claims for certain types of liability and punitive damages (Ann Finch, individually and as Executrix of the Estate of Frankling Delenor Finch v. BASF Catalysts LLC, et al., No. 16-1077, M.D. N.C.; 2018 U.S. Dist. LEXIS 138711).
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August 17, 2018
Jurisdictional Issue In Injury Case Needs Clarification, 10th Circuit Says
DENVER — A panel of the 10th Circuit U.S. Court of Appeals on Aug. 16 ordered a limited remand to a district court to clarify why the appeals court has jurisdiction over an appeal in which two men contend that they were injured when a lithium battery exploded on a hydraulic fracturing rig. The panel said a footnote in the district court’s ruling is “confusing” (Jacob McGehee, et al. v. Forest Oil Corp., et al., No. 17-6238, 10th Cir.).
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August 17, 2018
California High Court Denies Review Of Ruling On Cancer Listing For Glyphosate
SACRAMENTO, Calif. — The California Supreme Court on Aug. 15 denied a petition for review filed by Monsanto Co., which contended that an appellate panel erred when it ruled in favor of the California Office of Environmental Health Hazard Assessment (OEHHA), which listed glyphosate as a carcinogen (Monsanto Company v. Office of Environmental Health Hazard Assessment, et al., No. S249056, Calif. Sup.).
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August 16, 2018
New York City Housing Agency Must Face Some Lead Paint Claims, Judge Rules
NEW YORK — A federal judge in New York on Aug. 14 partially granted and partially denied a motion to dismiss a lead-based paint poisoning lawsuit against the New York City Housing Authority (NYCHA), holding that the plaintiffs’ procedural due process, substantive due process and First Amendment claims failed, but ruling that their claims under federal law could proceed (Sherron Paige, et al. v. New York City Housing Authority, No. 17-7481, S.D. N.Y., 2018 U.S. Dist. LEXIS 137238).
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August 15, 2018
Judge Partially Grants, Denies Lead Defendants’ Motions To Exclude Evidence
MILWAUKEE — A federal judge in Wisconsin on Aug. 9 partially granted and partially denied defense motions to exclude evidence in a lawsuit brought by residents who contend that they were poisoned by lead-based paint, holding that some evidence pertaining to the health effects that are attributable to lead poisoning was appropriate (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).
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August 15, 2018
Engineering Firm In Flint Case Says Claim Against It Barred By Contributory Fault
ANN ARBOR, Mich. — The engineering firm that provided consulting services to the city of Flint, Mich., with regard to its decision to get its drinking water supply from the Flint River, which led to the lead-contaminated water crisis, on Aug. 14 filed an answer in Michigan federal court denying all allegations against it and asserting 18 affirmative defenses that the claims against it are barred by contributory fault (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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August 15, 2018
Panel: Woman May Have New Trial In Lead Paint Case; Expert Disallowed
ANNAPOLIS, Md. — A panel of the Maryland Court of Special Appeals on Aug. 8 ruled that a woman who sued her landlord for injuries from exposure to lead-based paint could seek a new trial; however, her expert, who should not have been admitted in the initial trial, is still not permitted to testify (Brittany Hazelwood v. City Homes Inc., No. 923, Sept. Term 2017; 2018 Md. App. LEXIS 777).
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August 14, 2018
Split Maryland High Court: Researcher Owed Duty To Girl Poisoned In Lead Study
ANNAPOLIS, Md. — A divided Maryland Court of Appeals on Aug. 13 ruled 4-3 that the Kennedy Krieger Institute (KKI) owed a duty of care to a woman who was poisoned by lead-based paint while she was a child living in a premises that was used for a lead-poisoning research program run by KKI (Kennedy Krieger Institute v. Ashley Partlow, No. 82, Sept. Term 2017, Md. App.).
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August 14, 2018
Monsanto Lacks Standing To Bring Counterclaims Over PCB Contamination, Judge Says
SAN DIEGO — A federal judge in California on Aug. 10 dismissed counterclaims for unjust enrichment and violation of the Clean Water Act brought by Monsanto Co., Pharmacia LLP and Solutia Inc. (collectively, Monsanto) against the city of San Diego, which claims that the company is liable for polychlorinated biphenyl (PCB) contamination, finding that the defendant company lacks standing to bring its claims (City of San Diego v. Monsanto Co., et al., No. 15cv578, S.D. Calif., 2018 U.S. Dist. LEXIS 135588).
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August 13, 2018
Companies: Rehearing En Banc Needed On Class Certification Of Groundwater Case
CINCINNATI — A group of chemical companies on July 30 filed a petition for rehearing en banc in the Sixth Circuit U.S. Court of Appeals asking it to reconsider its decision that affirmed the certification of some issues for class treatment under Federal Rule of Civil Procedure 23(c)(4) for a lawsuit in which residents contend that they have been harmed by the presence of volatile organic compounds (VOCs) in their groundwater. The companies insist that the panel chose “the wrong side” of a circuit split on the issues relevant to class certification (Terry Martin, et al. v. Behr Dayton Thermal Products LLC, et al., No. 17-3663, 6th Cir.).
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August 13, 2018
Gas Station Sues Former Owner For Groundwater Contamination From Underground Tanks
PASSAIC, N.J. — A New Jersey company that owns a gas station on July 27 filed a lawsuit in state court, contending that a company should be held liable because its predecessor-in-interest abandoned underground storage tanks (USTs) containing a combined 6,000 gallons of gasoline, which rotted and leaked toxins into local groundwater (J. M. Bal Realty LLC v. OXY USA Inc., No. PAS-L-002524, N.J. Super., Passaic Co.).
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August 13, 2018
Jury Awards $289M To Cancer Victim In Bellwether Trial Against Monsanto, Roundup
SAN FRANCISCO — A California jury on Aug. 10 found that Monsanto Co. acted with malice regarding its failure to warn of the damages associated with glyphosate, the active ingredient in Roundup, and awarded $289,254,882.32 in damages in the bellwether case of a man who said his repeated exposure to the herbicide caused his cancer (DeWayne Johnson v. Monsanto Company, No. CGC 16550128, Calif. Super., San Francisco Co.).
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August 10, 2018
Panel: ‘No Justification’ For Decision, EPA Must Take Chlorpyrifos Off The Market
SAN FRANCISCO — A divided panel of the Ninth Circuit U.S. Court of Appeals on Aug. 9 ruled that there was no justification for the Environmental Protection Agency’s decision in 2017 to maintain a tolerance for the chemical chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children, and it ordered the agency to “revoke all tolerances and cancel all registrations” for chlorpyrifos within 60 days (League of United Latin American Citizens, et al. v. Andrew Wheeler, acting administrator for the U.S. Environmental Protection Agency, et al., No. 17-71636, 9th Cir.; 2018 U.S. App. LEXIS 22152).
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August 9, 2018
Attorney Seeks $412.25M From Monsanto In Bellwether Trial Over Glyphosate
SAN FRANCISCO — The attorney representing a California man who contends that he developed cancer as a result of exposure to glyphosate on Aug. 7 presented closing arguments in the first trial related to the herbicide Roundup and asked a jury to “change the world” by holding Monsanto Co. accountable for its “reckless disregard for human health,” which he said warranted an award of more than $412.25 million in combined damages (DeWayne Johnson v. Monsanto Company, No. CGC 16550128, Calif. Super., San Francisco Co.).
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August 9, 2018
State, Company Reach $119.5M Deal To Settle California Methane Leak Cases
LOS ANGELES — California Attorney General Xavier Becerra, along with other agencies and the Southern California Gas Co. (SoCal Gas), on Aug. 9 announced that the parties had reached a $119.5 million settlement in litigation stemming from the methane gas leak from a ruptured well at the company’s Aliso Canyon Natural Gas Storage Facility (Southern California Gas Leak Cases, Judicial Council Coordination Proceeding No. 4861, Nos. BC602973 and BC628120, Calif. Super., Los Angeles Co.).
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August 6, 2018
Grand Jury Indicts Arkema, CEO For Texas Plant’s Chemical Release During Hurricane
LIBERTY, Texas — The district attorney for Harris County, Texas on Aug. 3 announced that a grand jury has indicted chemical manufacturer Arkema North America, its chief executive officer and a plant manager for contamination of the air and the local water supply after the company’s plant was damaged in Hurricane Harvey and released multiple chemical and volatile organic compounds.
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August 6, 2018
Judge Dismisses Gov. Snyder, Some State Employees From Flint Water Crisis Case
ANN ARBOR, Mich. — A federal judge in Michigan on Aug. 1 dismissed Gov. Rick Snyder, the state of Michigan and some state employees from the Flint lead-contaminated water crisis litigation, ruling that the plaintiffs failed to sufficiently allege that those defendants were liable for any injuries because they were unaware of the threat posed by using the Flint River as a source of drinking water (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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August 1, 2018
U.S. Attorney General Can Intervene In MTBE Contamination Suit, Judge Says
BALTIMORE — A federal judge in Maryland on July 30 ruled that the U.S. attorney general can intervene in a suit brought by the state of Maryland against 69 sellers of gasoline containing the additive methyl tertiary butyl ether (MTBE), which allegedly contaminated water in the state, finding that the attorney general can present evidence as to whether Section 1503 of the Energy Policy Act of 2005 is constitutional (Maryland v. Exxon Mobil Corp., et al., No. ELH-18-459, D. Md., 2018 U.S. Dist. LEXIS 127475).
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July 27, 2018
Companies: Lead Paint Case Poses Due Process Issues; U.S. High Court Review Needed
WASHINGTON, D.C. — Three former makers of lead-based paint on July 16 filed two separate petitions for writs of certiorari with the U.S. Supreme Court, arguing that a California court’s decision that denied the companies’ consolidated petition for rehearing and affirmed a $1.15 billion ruling holding the companies responsible for public nuisance related to lead-based paint poses concerns in light of the due process clause of the U.S. Constitution (ConAgra Grocery Products Company v. The People of California, No. 18-84, U.S. Sup. and Sherwin-Williams v. California, No. 18-86, U.S. Sup.).
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July 27, 2018
Maryland Panel: Evidence Does Not Support Lead-Based Paint Injury Claim
ANNAPOLIS, Md. — A panel of the Maryland Court of Special Appeals on July 24 affirmed a lower court ruling and concluded that a man’s circumstantial evidence that he was poisoned by exposure to lead-based paint while living in an apartment did not establish the inference that the property contained lead-based paint (Drayon Tindall v. Stanley Rochkind, et al., No. 419, Md. Spec. App.; 2018 Md. App. LEXIS 723).