New York Court To Review Whether Mold Testimony Should Be Excluded

    NEW YORK - A New York justice on Aug. 16 granted a request filed by a landlord and apartment manager for a hearing to determine whether the testimony of a tenant's expert, who opined that mold exposure caused her to suffer a hypersensitivity condition, should be excluded (Helena Albuquerque, et al. v. Joao Sintra, et al., No. 104439/05, N.Y. Sup., New York Co.; 2013 N.Y. Misc. LEXIS 3641).

    Pennsylvania Superior Court Affirms Summary Judgment For Natural Gas Well Company

    HARRISBURG, Pa. - A unanimous Pennsylvania Superior Court panel on Aug. 20 affirmed judgment for a natural gas extraction company and construction contractor hired to build an 11-acre impoundment for hydraulic fracturing water over the objections of the landowners on the grounds the mineral estate owners have the right under the lease and Pennsylvania law to use the surface as necessary to develop the Marcellus shale gas (Paul F. Humberston, et al. v. Chevron USA, et al., No. 12-1270, Pa. Super.; 2013 Pa. Super. 2638).

    3rd Circuit Revives Claims Coal-Fired Electric Utility Causes Class Property Damage

    PHILADELPHIA - In an opinion of first impression, a unanimous Third Circuit U.S. Court of Appeals panel ruled Aug. 20 that the property damage claims of a western Pennsylvania class against the owner of a coal-fired electricity generation plant are not barred by the Clean Air Act (Kristie Bell, et al. v. Cheswick Generating Station, GenOn Power Midwest, No. 12-4216, 3rd Cir.; 2013 U.S. App. LEXIS 17283).

    Bankruptcy Judge Denies Specialty Products' Bid To Stay Estimation Ruling

    WILMINGTON, Del. - A Delaware federal bankruptcy judge on Aug. 20 refused a request by Chapter 11 debtors Specialty Products Holding Corp. and Bondex International Inc. to stay a decision establishing the companies' asbestos personal injury liability at more than $1 billion pending the debtors' appeal of the ruling (In re: Specialty Products Holding Corp., et al., No. 10-11780, D. Del. Bkcy.).

    Australian Court Affirms Asbestos Verdict For Estate, Increases Damages For Pain

    ADELAIDE, South Australia - An Australian court on Aug. 15 affirmed a $232,704 asbestos-related verdict for an electrician's estate, but found that the trial judge's award for pain and suffering was manifestly inadequate and increased the amount (BHP Billiton Ltd. v. Hamilton & Anor, No. $(2013$) SASCFC, South Australia Sup.).

    Federal Judge Finds Nondischargeability Issue Can Be Heard In State Court

    INDIANAPOLIS - A federal bankruptcy judge on Aug. 16 refused to stay a state court action filed by the purchasers of a home who sought compensation from the bankrupt sellers of the property for mold remediation, finding that the issue of nondischargeability did not have to be heard in a bankruptcy court (In re: Aaron Muir and Stephanie Muir, No. 12-4065, Aaron Muir, et al. v. Matthew McWilliams, et al., Adv. No. 13-50136, S.D. Ind. Bky.; 2013 Bankr. LEXIS 3347).

    Delaware High Court Seeks Reliability Ruling Before Considering Sufficiency Debate

    DOVER, Del. - The Delaware Supreme Court on Aug. 16 remanded an action alleging that birth defects were caused by workplace chemical exposure in order for the trial judge to determine a causation expert's reliability under Delaware law (Wendolyn Tumlinson, et al. v. Advanced Micro Devices, No. 672, 2012, Del. Sup.; 2013 Del. LEXIS 399).

    Panel: No 'Good Faith' Ground For Excluding Dying Man's Declaration

    LOS ANGELES - A judge erred in excluding a dying man's signed declaration submitted two days prior to a hearing on summary judgment based on plaintiff's counsel's positions in other litigation, a California appeals court held Aug. 15 (James Lester David, et al. v. Slakey Brothers Inc., No. B244802, Calif. App., 2nd Dist.; 2013 Cal. App. Unpub. LEXIS 5747).

    Federal Judge Says Engle Class Doesn't Preserve Consortium Claims

    JACKSONVILLE, Fla. - Thirty-seven cases asserting claims for loss of consortium were dismissed as untimely on Aug. 16 by a Massachusetts federal judge, who said Engle v. Liggett Group Inc. (945 So. 2d 1246 $(Fla. 2006$)) did not include consortium claims and therefore did not toll them (In re: Engle Cases, No. 3:09-cv-10000-J-32JBT, M.D. Fla., Jacksonville Div.).

    New York Justice Extends Time For Service After Sheriff's Failure

    NEW YORK - Both "good cause" and "interest of justice" standards warrant extending the time to serve an asbestos defendant after a sheriff initially served the complaint naming it on an improper party, a New York justice held in an opinion posted Aug. 14 (Murray N. Walker Sr. v. ABB, No. 190433/11, N.Y. Sup., New York Co.).

    South Carolina Supreme Court Answers Questions Of Law From Offensive Odor Lawsuit

    COLUMBIA, S.C. - The South Carolina Supreme Court issued an opinion Aug. 14 answering certified questions from the U.S. District Court for the District of South Carolina in an offensive landfill-odor case that ended in March 2012 with a verdict for the neighbors of the landfill and a jury award of $835,000 in damages (Perrin Babb, et al. v. Lee County Landfill SC, No. 12-212741, S.C. Sup.; So13 S.C. LEXIS 204).

    New York Justice Finds Man Used Name Brand 'Bakelite' As Generic Term

    NEW YORK - A man pursuing asbestos claims used the brand name "Bakelite" as a generic term, a New York justice held in granting summary judgment to Union Carbide Corp. on Aug. 13 (John E. Cisler and Carol Cisler v. A.O. Smith Water Products Co., et al., No. 190044/12, N.Y. Sup., New York Co.).

    3rd Circuit Panel Reverses In Part Summary Judgment In Toluene Exposure Suit

    PHILADELPHIA - A unanimous Third Circuit U.S. Court of Appeals panel issued an opinion Aug. 14 overturning in part an order granting summary judgment to a print shop accused by an industrial laundry truck driver of exposing him to toluene in print shop towels; negligence and loss-of-consortium claims against the print shop for causing kidney failure were revived and remanded to the U.S. District Court for the District of New Jersey (Brian Steele, et uxor v. Aramark Corp., et al., No. 12-3942, 3d Cir.; 2013 U.S. App. LEXIS 16989).

    Justice: Deposition Provides Sufficient Allegations Of Exposure From Boilers

    NEW YORK - A man's deposition testimony to the effect that he worked around and was exposed to asbestos from a company's boilers creates a genuine issue of material fact, a New York justice held in an opinion filed Aug. 13 (Luis Acevedo and Susan Acevedo v. A.P. Green Industries Inc., et al., No. 116194/02, N.Y. Sup., New York Co.).

    Corporation Is Not An Indian Regarding Taxation, Idaho High Court Rules

    BOISE, Idaho - A corporation is not a person when the person in question is a Native American and the corporation is seeking immunity from state taxation on that basis, the Idaho Supreme Court ruled Aug. 15 (State of Idaho, et al. v. Native Wholesale Supply Company, No. 38780 2013 Opinion No. 87, Idaho Sup.; 2013 Ida. LEXIS 246).

    D.C. Court Reverses Dismissal Of Mold-Related Condo Claims Against Agency

    WASHINGTON, D.C. - A District of Columbia appellate panel on Aug. 15 partially reversed a trial court's dismissal of claims asserted by condo owners who alleged that defects resulted in mold growth and water damage, finding that they sufficiently pleaded their fraud claims and causes of action for violations of the District of Columbia Consumer Protection Procedures Act (CPPA) (Adam Lee Wetzel, et al. v. Capital City Real Estate LLC, No. 12-CV-1218, D.C. App.; 2013 D.C. App. LEXIS 492).

    Federal Judge Dismisses Toxic Exposure Claims Against Correctional Center

    EAST ST. LOUIS, Ill. - After finding that a plaintiff failed to assert any allegations of individual involvement in relation to his alleged toxic exposure and other claims, an Illinois federal judge on Aug. 13 dismissed a correction center as the only defendant in the case (Byron McShan v. Vienna Correctional Center, No. 13-cv-00712, S.D. Ill.; 2013 U.S. Dist. LEXIS 113868).

    Judge Finds 8 Years Of Alleged Exposure Provides Basis For Venue

    RALEIGH, N.C. - While the majority of a decedent's alleged asbestos exposure occurred elsewhere during his 40-year career, his eight years of alleged exposure in North Carolina "is not immaterial" and provides adequate basis for venue in the state, a federal judge held Aug. 14 (Jane E. Miller, et al. v. 3M Co. a/k/a Minnesota Mining & Manufacturing Co., et al., No. 12-620, E.D. N.C.; 2013 U.S. Dist. LEXIS 114859).

    Magistrate Judge Finds Defendants Not Responsible For Holdover Rent During Cleanup

    SAN JOSE, Calif. - Defendants accused of breaching the terms of subleases on a property in San Jose by allegedly retaining possession of the premises during remediation of contamination caused by the storage of diesel fuel tanks are not responsible for holdover rent, a federal magistrate judge in California ruled Aug. 13, finding that the cleanup activities occurred where the tanks were stored outside the building rather than the space that could be rented (Silicon Valley Telecom Exchange LLC v. Verio Inc., et al., No. C12-00899, N.D. Calif.; 2013 U.S. Dist. LEXIS 114379).

    Florida Appeals Court Vacates Punitive Damages, Allows Compensatories

    WEST PALM BEACH, Fla. - A Florida appeals court vacated $50,000 in punitive damages in a smoking wrongful death case Aug. 14, but allowed a compensatory damages award of approximately $957,000 to stand (R.J. Reynolds Tobacco Company v. Pamela Ciccone, No. 4D11-3807, Fla. App., 4th Dist.; 2013 Fla. App. LEXIS 12726).

    Ohio Plaintiffs Fail To Carry Local Controversy Burden To Remand Whirlpool Action

    TOLEDO, Ohio - Claims against the owner of a recreational park joined as a defendant in a putative class action pursued in the U.S. District Court for the Northern District of Ohio by neighbors of a Whirlpool Inc. factory in Clyde, Ohio, do not satisfy the Class Action Fairness Act local controversy exception for remand, the presiding judge ruled Aug. 13 (Tim Lagrou, et al. v. Whirlpool Corp., No. 13-947, N.D. Ohio).

    Louisiana Appellate Panel Reverses Summary Judgment In Natural Gas Lease Dispute

    SHREVEPORT, La. - A divided Second Circuit Louisiana Court of Appeal sitting for rehearing of a summary judgment order in a disputed mineral rights transfer case on Aug. 14 reversed itself and the trial court on the grounds that the disputed trust deed is ambiguous; a panel of the court sustained summary judgment for the former owner of the mineral rights in an opinion issued in May (Claudia Simone Franklin v. Camterra Resource Partners Inc., et al., No. 48,021, La. App., 2nd Cir.).

    Florida Court Finds Tenant's Insurance Policy Excludes Mold Coverage

    WEST PALM BEACH, Fla. - A Florida appeals court on Aug. 13 affirmed a trial court's decision granting summary judgment in favor of an insurer, finding that a tenant's mold-related claims were excluded under his insurance policy (David Abraham v. Universal Insurance Company of North America, a foreign insurance company, No. 4D12-2742; Fla. App., 4th Dist.; 2013 Fla. App. LEXIS 12647).

    West Virginia Landowners Fail To Adequately Plead Claim Against Natural Gas Company

    WHEELING, W.Va. - Claims of statutory violation against a natural gas well company were dismissed Aug. 13 in a U.S. District Court for the Northern District of West Virginia lawsuit alleging methane contamination of a domestic water well; the laws cited by the landowners do not grant the plaintiffs a right of action, according to the presiding judge (Jeremiah N. Magers, et uxor v. Chesapeake Appalachia, et al., No. 12-49, N.D. W.Va.; 2013 U.S. Dist. LEXIS 114157).

    New York Appeals Court Affirms Dismissal Of Tenants' Mold Claims

    NEW YORK - A New York appeals court on Aug. 9 affirmed the dismissal of tenants' mold-related claims against an individual defendant and a decision granting their landlords summary judgment, finding that certain sanctions in relation to the spoliation of evidence against the tenants were warranted (Agnese Ines Theodoli & Phillips H. Clarke III v. 170 East 77th 1 LLC, et al., No. 570128/13, N.Y. Sup., App. Div., 1st Dept.; 2013 NY Slip Op 51310$(U$)).