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Mealey's Toxic Torts

November 29, 2023
Monsanto: Glyphosate Expert Warrants Exclusion, Affidavit Is Not An Expert Report

SAN FRANCISCO — Monsanto Co. filed a reply brief in California federal court on Nov. 28 contending that a plaintiff’s expert in a glyphosate cancer lawsuit should be excluded because the plaintiff has failed to provide information required by the Federal Rules of Civil Procedure and it is “undisputed” that the expert’s affidavit is not an expert report.
November 28, 2023
Panel Remands PFAS Exposure Case For Dismissal On Grounds Jurisdiction Is Lacking

CINCINNATI — A panel of the Sixth Circuit U.S. Court of Appeals on Nov. 27 ruled that a firefighter who sued the makers of the agent known as aqueous film forming foam (AFFF), which contains per- and polyfluoroalkyl substances (PFAS), had failed to allege “any plausible pathway” by which PFAS got into his bloodstream, and it vacated the class certification order and remanded the case with instructions to dismiss it for lack of jurisdiction.
November 28, 2023
Judge Says Motion To Compel Documents In Flint Tort Claims Act Case Is ‘Moot’

DETROIT — A federal judge in Michigan has denied a motion to compel production of unredacted versions of documents in litigation seeking $722.4 million under the Federal Tort Claims Act (FTCA) related to the Flint water crisis, ruling that the motion is moot because the U.S. government produced an unredacted version of one of the documents at issue, and the plaintiffs failed to comply with pre-filing requirements with regard to the other documents.
November 28, 2023
Man With Parkinson’s Disease Says Companies Concealed Dangers Of Paraquat

EAST ST. LOUIS, Ill. — A man with Parkinson’s disease on Nov. 27 sued the makers of the pesticide paraquat in Illinois federal court, arguing that they are liable for his injury because they had knowledge of the relationship between paraquat exposure and Parkinson’s disease but they “actively and fraudulently concealed this information” from the public.
November 27, 2023
Monsanto Says Glyphosate Case Fails For Plaintiffs’ Lack Of Reliable Evidence

SAN FRANCISCO — Monsanto Co. on Nov. 24 filed an answer in California federal court denying allegations brought by a group that claims that they were injured by exposure to glyphosate, the active ingredient in the herbicide Roundup. The company also maintains that the plaintiffs’ claims are barred because they “cannot proffer any scientifically reliable evidence that the products at issue were defective or unreasonably dangerous.”
November 22, 2023
Norfolk Southern: Rail Car Owners Liable For Chemical Spill From Train Derailment

YOUNGSTOWN, Ohio — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) filed a brief in Ohio federal court arguing that it should deny a motion to dismiss the third-party complaint Norfolk Southern has filed against rail car owners in relation to the train derailment in East Palestine, Ohio. Norfolk Southern contends that it is a common carrier and is entitled to seek cost recovery from rail car owners under federal law that imposes liability on rail car owners when their rail cars dispose hazardous substances into the environment.
November 22, 2023
Deepwater Horizon Defendants Deny Liability, Say Plaintiffs Fail To State A Claim

JACKSON, Miss. — BP Exploration & Production Inc. and its affiliates connected to the Deepwater Horizon oil spill have filed an answer to an injury lawsuit in Mississippi federal court, denying all allegations and arguing that the complaint fails to state a claim upon which relief can be granted.
November 22, 2023
Georgia Court Stays Release Of PFAS Settlement As DuPont Claims Trade Secrets

ATLANTA — The Georgia Court of Appeals stayed an order by a trial court that called for the terms of a per- and polyfluoroalkyl substances (PFAS) settlement to be published and granted an emergency motion filed by E.I. du Pont de Nemours & Co. and its affiliates seeking to keep the terms of the agreement private on grounds that it contains trade secrets.
November 22, 2023
Government: Flint Parties’ Bid To Compel Documents In Tort Claims Act Case ‘Moot’

DETROIT — The U.S. government has filed a brief in Michigan federal court contending that it should deny a plaintiffs’ motion to compel production of unredacted versions of documents in litigation seeking $722.4 million under the Federal Tort Claims Act (FTCA) related to the Flint water crisis because the motion is “moot” in light of what it has provided previously in the litigation.
November 22, 2023
Residents Seek Emergency Remand Of PFAS Case, Say Federal Issues Not At Play

HARTFORD, Conn. — Residents have filed a brief in Connecticut federal court seeking expedited consideration of their motion to remand their lawsuit alleging drinking water contamination from per- and polyfluoroalkyl substances (PFAS) in light of the defendants’ attempt to move forward as part of a multidistrict litigation before the district court has a chance to rule on jurisdiction. The residents argue that they do not assert any causes of action under federal law and, therefore, the case belongs in state court.
November 21, 2023
Jury Awards More Than $1.56B Against Monsanto In Roundup Cancer Litigation

JEFFERSON CITY, Mo. — A Missouri state court jury has awarded three plaintiffs a combined total of $1,561,100,000 in damages against Monsanto Co. for injuries caused by exposure to glyphosate, the active ingredient in the herbicide Roundup. The plaintiffs had filed separate petitions, but the cases were heard together at trial.
November 21, 2023
Government Admits Camp Lejeune Water Is Tainted, Denies It Is ‘Necessarily Unsafe’

RALEIGH, N.C. — The U.S. government filed an answer in North Carolina federal court on Nov. 20 saying that while it admits that U.S. Marine Corps Base Camp Lejeune “may have provided contaminated water” to people who used the base between 1953 and 1987, it denies that the extent of the contamination is “undisputed and well-documented” or “that a measured or simulated concentration above” a maximum contaminant level (MCL) “is necessarily unsafe.”
November 21, 2023
Jury Awards More Than $165M Against Monsanto For PCB Injuries At Seattle School

SEATTLE — A Washington state jury on Nov. 20 awarded a combined total of $165,082,000 in compensatory and punitive damages to former teachers and staff at a Seattle area school for injuries stemming from exposure to polychlorinated biphenyls (PCBs), finding that Pharmacia LLC, a successor to Monsanto Co., was negligent when it supplied a product that was not safe and that Monsanto misrepresented facts about the dangers of PCBs.
November 21, 2023
Additional Exhibits In Water Case Do Not Support Sanctions, Government Says

HONOLULU — The U.S. government on Nov. 20 filed a brief in Hawaii federal court arguing that it should deny plaintiffs’ motion for discovery sanctions because they failed to meet the requirements for an adverse inference under Federal Rule of Civil Procedure 37(e)(2) in their claim that the government destroyed text message electronic evidence related to drinking water contamination issues at a military facility that stores jet fuel.
November 21, 2023
Insurers Say Contribution To Lead Abatement Fund Is Not Damages Under Policies

COLUMBUS, Ohio — An Ohio appellate court erred in determining that an insured’s obligation to contribute to a lead paint abatement fund constitutes damages under insurance policies because the language of the policies establishes that there were no damages for which coverage is afforded, the insurers reiterate in an appellant reply brief filed in the Ohio Supreme Court.
November 20, 2023
Norfolk Southern: Schools’ Train Derailment Case Fails To Plausibly Allege Facts

PITTSBURGH — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) on Nov. 17 filed a motion to dismiss in Pennsylvania federal court contending that Pennsylvania school districts that have sued Norfolk Southern in connection with the train derailment in East Palestine, Ohio, that led to the release of toxic chemicals in the air and groundwater fail to plausibly allege facts supporting their claims, which it says are preempted by federal law.
November 20, 2023
Man: ‘Unreasonably Dangerous Condition’ Of Paraquat Caused His Parkinson’s Disease

EAST ST. LOUIS, Ill. — A man sued the makers of the pesticide paraquat in Illinois federal court on Nov. 17 contending that he developed Parkinson’s disease “as a direct and proximate result of the defective and unreasonably dangerous condition” of paraquat and that the manufacturers breached their warranty to him as a customer because the product was “not of merchantable quality.”
November 20, 2023
Supreme Court, Amid Dissent, Refuses To Hear DuPont’s Appeal Of $40M PFAS Verdict

WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 20 refused to hear a case brought by E.I. du Pont de Nemours & Co. in which the company contended that a lower court’s decision affirming a $40 million per- and polyfluoroalkyl substances (PFAS) verdict against it is “deeply flawed” because it misapplies Supreme Court precedent by allowing the results of “a handful of early trials to preclude trial on key issues across an entire” multidistrict litigation. Justice Clarence Thomas authored a dissent, saying he would have granted review because “expansive use of nonmutual offensive collateral estoppel in the MDL context raises serious due process concerns.”
November 17, 2023
Judge Stays Discovery Pending Appeal Of Immunity Ruling In Drinking Water Case

GRAND RAPIDS, Mich. — A federal judge in Michigan has granted a stay of discovery pending an appeal in a lead-contaminated water lawsuit, ruling that whether the defendants are entitled to qualified immunity is “an abstract issue of law suitable for appellate review.”
November 17, 2023
Leasing Company Says It Had No Role In Chemical Release From Ohio Train Derailment

YOUNGSTOWN, Ohio — A railcar leasing company has filed a reply brief in Ohio federal court seeking dismissal of the amended master complaint filed by residents of Ohio, Pennsylvania and West Virginia related to a train derailment in East Palestine, Ohio, arguing that the leasing company played no role in the derailment or the subsequent actions in which railroad operators Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) vented and burned the toxic chemicals.
November 14, 2023
Maryland Appeals Court Upholds Expert Testimony In Lead Exposure Case

BALTIMORE — A Maryland appeals court affirmed a more than $2 million jury verdict for lead exposure in paint after finding that the expert who opined that a man’s injuries were caused by his early childhood exposure was properly admitted.
November 06, 2023
La. Federal Judge Denies Summary Judgment Motion In Creosote Contamination Row

LAKE CHARLES, La. — A railroad company is not entitled to summary judgment on claims that it contributed to contamination of a property because there are genuine issues of fact regarding whether it was aware of the contamination and whether creosote-soaked wooden poles were loaded onto its rail cars, a Louisiana federal judge found on Nov. 3 in denying the company’s motion for summary judgment.
November 06, 2023
Residents: DuPont Liable For Injuries, ‘Reckless’ Dumping Of PFAS In N.C. River

NEW BERN, N.C. — Residents have sued Corteva Inc. and other affiliates of the company formerly known as E.I. DuPont de Nemours & Co. in North Carolina federal court contending that they are liable for “a nearly four decades-long history” of discharging per- and polyfluoroalkyl substances (PFAS) into the Cape Fear River, polluting the primary source of local drinking water in conduct that was “so reckless as to demonstrate a substantial lack of concern for whether injury would result.”
November 03, 2023
Couple Says Paraquat Makers Are Liable For Husband’s Parkinson’s Disease

EAST ST. LOUIS, Ill. — A couple has sued the makers of the pesticide paraquat in Illinois federal court contending that the husband developed Parkinson’s disease as a result of exposure to the chemical and that the companies knew it was “inherently defective and unreasonably dangerous.”
November 03, 2023
8th Circuit Vacates Ban On Chlorpyrifos, Says EPA Had ‘Narrow View’ Of Its Authority

ST. LOUIS — A panel of the Eighth Circuit U.S. Court of Appeals on Nov. 2 vacated the U.S. Environmental Protection Agency’s rule banning the use of the pesticide chlorpyrifos in agriculture, ruling that the agency had a “too-narrow view of its own authority” and had an obligation to anticipate the effects of its actions. The panel remanded the matter to the EPA for further consideration.