LexisNexis® Legal Newsroom
    Magistrate Refuses To Stay Consideration Of Government's Motion To Amend Suit

    TRENTON, N.J. - A federal magistrate judge in New Jersey on July 2 denied a defendant company's motion to stay consideration of the U.S. government's motion to amend a lawsuit brought under the Comprehensive Environmental Response, Compensation, and Liability Act, ruling that the government would be prejudiced if its request to add six companies as defendants to the lawsuit was delayed until after the defendant's motion for summary judgment was ruled upon (United States of America v. Pechiney Plastic Packaging Inc., No. 09-5692, D. N.J.; 2013 U.S. Dist. LEXIS 92664).

    Special Master Rejects New York As Proper Forum For Plaintiffs Without Exposure

    NEW YORK - Two plaintiffs with absolutely no evidence of exposure to asbestos in one of New York City's five boroughs do not belong in the New York City Asbestos Litigation (NYCAL), a special master held July 1 (Robert Stitt v. Burnham Corp., et al., Patricia Berkowitz v. Asbestos Corp. Nos. 190478/12, 190007/13, N.Y. Sup., New York Co.).

    Judge: Defendant's Settlement With Government Bars Plaintiff's Contribution Claim

    OMAHA, Neb. - Union Pacific Railroad Co.'s $25 million settlement with the federal government to resolve liability stemming from contamination at the Omaha Lead Superfund (OLS) site in Nebraska protects the company from a claim for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) brought by Asarco LLC, a federal judge in Nebraska ruled July 1 (Asarco LLC v. Union Pacific Railroad Company, No. 12CV416, D. Neb.; 2013 U.S. Dist. LEXIS 92037).

    Attorney Claims Asbestos Firm Failed In Duty As Self-Insured Malpractice Carrier

    SAN FRANCISCO - In a complaint filed July 1, an attorney claims that asbestos plaintiffs' law firm's conduct and errors resulted in legal malpractice claims against him and that the firm violated the California's unfair competition law (UCL) by failing to properly defend him from the charges (Christopher Andreas v. Brayton Purcell; Alan R. Brayton; and DOES 1-10, No. 532536, Calif. Super., San Francisco Co.).

    Texas Appeals Panel Affirms Statute Of Repose Defense Unavailable In Refinery Suit

    HOUSTON - A unanimous First District Texas Court of Appeals panel on July 1 denied a defense motion for reconsideration of its February opinion reversing a statute of repose take-nothing judgment granted to the former owner of a chemical plant in an acetic acid personal injury lawsuit, after concluding that the statute of repose does not apply to the defendant as a matter of law (Jason Jenkins v. Occidental Chemical Corp., et al., No. 09-1140, Texas App., 1st Dist.).

    Judge Denies Motion To Vacate Remand In Asbestos-Tainted Talcum Powder Case

    BALTIMORE - A Maryland federal judge on June 26 declined to vacate or strike his order remanding an asbestos action against a talcum powder maker, saying such orders are not reviewable. The judge found the "sharp conflict" in plaintiffs' counsels' statements "troubling," but said they did not warrant other sanctions. Defendant Colgate-Palmolive Co. filed a notice of appeal on July 1 (Joyce Barlow v. John Crane-Houdaille Inc., et al, Clara Mosko v. John Crane-Houdaille Inc., et al., Nos. 12-1780, 12-1781, D. Md.).

    Oil Production Platform Owner Unable To Shake Clean Water Act Claims

    NEW ORLEANS - A federal judge in Louisiana on July 1 denied an oil production platform owner's attempt to dismiss claims for violating the Clean Water Act (CWA) and Outer Continental Shelf Lands Act (OCSLA) for excessive discharges of oil in wastewater, finding that two exclusions to CWA liability are inapplicable (United States of America v. ATP Oil & Gas Corporation, et al., No. 13-0262, E.D. La.; 2013 U.S. Dist. LEXIS 91946).

    Ark. Court: Causative Agent Change Puts Action Under Workers' Compensation Statute

    LITTLE ROCK, Ark. - A man pursuing a tort action after a workers' compensation commission denied his asbestos-related bladder cancer claim must again go before the board because he now alleges that exposure to coal tar pitch caused his disease, a divided Arkansas Supreme Court held June 27 (Reynolds Metal Co. v. Circuit Court of Clark County and Billy C. Kirksey, No. 12-922, Ark. Sup.; 2013 Ark. LEXIS 324).

    Defense Motion To Exclude Expert Reports Denied In New York Fracking Case

    ROCHESTER, N.Y. - Natural gas extraction companies sued in the U.S. District Court for the Western District of New York by Big Flats, N.Y., residents alleging that their domestic water wells are contaminated with explosive gases and chemicals used by natural gas extraction companies in hydraulic fracturing on June 27 were denied motions to exclude expert reports characterized by the defendants as untimely and lacking in detail (Jason Baker, et al. v. Anschutz Exploration Corp., et al., No. 11-6119, W.D. N.Y.).

    Ohio Appeals Court Affirms Defense Summary Judgment In Fipronil Exposure Lawsuit

    AKRON, Ohio - A unanimous Ninth District Ohio Court of Appeals panel on June 28 affirmed the exclusion of a general causation expert and no-evidence summary judgment against a plaintiff alleging personal injury claims from alleged exposure to a fipronil termiticide (Larry Cooper, et vir v. BASF Inc., et al., No. 26324, Ohio App., 9th Dist.; 2013 Ohio 2790; 2013 Ohio App. LEXIS 2836).

    Ohio Court Finds Sellers Had No Duty To Disclose Sump Pump Malfunction

    DAYTON, Ohio - An Ohio appeals court on June 28 affirmed a trial court's ruling granting judgment in favor of the sellers of a home, finding no evidence to support a claim that the sellers had a duty to disclose a malfunctioning sump pump and that flooding in the basement caused mold growth (Brent Schroeder, et al. v. Douglas Henness, et al., No. 2012-18, Ohio App., 2nd Dist.; 2013 Ohio App. LEXIS 2811).

    Judge Dismisses Plaintiffs' Cost Recovery Claim, Allows Request For Contribution

    EAST ST. LOUIS, Ill. - A federal judge in Illinois on June 28 dismissed a claim for cost recovery under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act brought by two plaintiff companies, finding that they could seek contribution pursuant to Section 113(f) of the act (Arkema Inc., et al. v. Ammin Holdings Inc., No. 12-cv-1022-DRH-DGW, S.D. Ill.; 2013 U.S. Dist. LEXIS 90991).

    Wisconsin Appeals Court Affirms Causation Judgment As Sanction For Spoliation

    MADISON, Wis. - A unanimous Wisconsin Court of Appeals District IV panel affirmed a causation judgment June 27 against a retailer defendant as an appropriate sanction for spoliation of evidence in a personal injury lawsuit alleging exposure to unknown chemicals in a merchandise box (Cheryl Cody, et al. v. Target Corp, et al., No. 11-2831, Wis. App., Dist. IV; 2013 Wis. App. LEXIS 545).

    2nd Circuit Panel Affirms Defense Summary Judgment In Bhopal Contamination Suit

    NEW YORK - The summary judgment granted in June 2012 in the U.S. District Court for the Southern District of New York to Union Carbide Corp. and its former chief executive officer against plaintiffs alleging personal injury nuisance claims for exposure to contaminated groundwater from the Bhopal, India, pesticide mill was affirmed June 27 by summary order from the Second Circuit U.S. Court of Appeals (Janki Bai Sahu, et al. v. Union Carbide Corp., et al., No. 12-2983, 2nd Cir.; 2013 U.S. App. LEXIS 13357).

    Texas Top Court Agrees To Hear Challenge To Pulmonary Testing Case

    HOUSTON - The Texas Supreme Court on June 28 granted a petition for review in a case in which an asbestos plaintiff allegedly could not satisfy the pulmonary testing requirements due to physical and mental limitations, according to the docket (Union Carbide Corp. v. Daisy E. Synatzske and Grace Annette Webb, et al., No. 12-0617, Texas Sup.).

    Judge Denies Indemnitor's Request To Reconsider Ruling Dismissing CERCLA Claim

    MILWAUKEE - A federal judge in Wisconsin on June 25 refused to reconsider a 2008 ruling dismissing Appleton Paper Inc.'s (API) claim under Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), finding that as an indemnitor for NCR Corp., API did not incur response costs (Appleton Papers Inc., et al. v. George A. Whiting Paper Co., et al., No. 08-C-16, E.D. Wis.; 2013 U.S. Dist. LEXIS 89085).

    Georgia Court Finds City Is Not Liable For Sewer Malfunction

    ATLANTA - A Georgia appeals court on June 27 affirmed a decision granting summary judgment in favor of a city, finding no evidence to support a finding that it was liable for remediation costs associated with damage caused by a sewer line backup into a commercial property (J.N. Legacy Group Inc. v. City of Dallas, Georgia, No. A13A0729, Ga. App., 3rd Div.; 2013 Ga. App. LEXIS 543).

    New York Justice Rejects Substandard Testing Evidence In Asbestos Case

    NEW YORK - An asbestos supplier has not demonstrated that testing done on the joint compound and wall board in a home satisfy testing standards or sufficiently countered claims that it was the sole supplier for the region, a New York justice held in an opinion posted June 25 (John Logan and Gail Logan v. A.P. Mollero-Maersk Inc., et al., No. 190203/12, N.Y. Sup., New York Co.; 2013 N.Y. Misc. LEXIS 2590).

    Federal Judge Finds Homeowner's Faulty Work Claims Are Time-Barred

    HOUSTON - After finding that a homeowner's claims that a repair company's faulty work caused water leaks and mold were barred by a two-year statute of limitations, a Texas federal judge on June 27 granted summary judgment in favor of the service firm (Lupe Pena v. American Residential Services LLC, No. 12-2588, S.D. Texas; 2013 U.S. Dist. LEXIS 90363).

    Louisiana Appeals Panel Affirms Judgment For Workers Exposed To NORM On Oil Pipe

    NEW ORLEANS - A Louisiana Fifth Circuit Court of Appeal panel in an opinion issued June 26 affirmed the award of compensatory and punitive damages for oil pipe workers for occupational exposure to naturally occurring radioactive materials (NORM) at a pipe maintenance yard (Warren Lester, et al. v. ExxonMobil Corp., et al., No. 10-743, La. App. 5th Cir.; 2013 La. App. LEXIS 1324).

    Judge: Request For Investigation Did Not Trigger Duty To Indemnify

    NEW YORK - A federal judge in New York on June 25 awarded summary judgment to Sunoco Inc. in a suit brought by a plaintiff company seeking indemnification and recovery of remediation costs for a gasoline spill in 2010, finding that the New York State Department of Environmental Conservation's (NYSDEC) request to have the current owner of the site investigate the spill did not trigger Sunoco's contractual duty to indemnify (82-11 Queens Boulevard Realty Corp. v. Sunoco Inc., No. 11-CV-05144, E.D. N.Y.; 2013 U.S. Dist. LEXIS 88855).

    Ohio Court To Decide Admissibility Of Deposition In Workers' Comp Action

    COLUMBUS, Ohio - The Ohio Supreme Court on June 26 agreed to decide whether state evidentiary rules allow a video deposition taken in a tort action against sellers of asbestos-containing materials to be admitted in a workers' compensation action against an employer not party to the prior action (Mary Lou Burkhart v. H.J. Heinz Co., et al., No. 2013-0580, Ohio Sup.).

    Illinois Appeals Court Finds Indecipherable Asbestos Verdict Requires New Trial

    CLEVELAND - Saying it would take an "absolute guess" to decipher a jury's intent in awarding an asbestos plaintiff no compensatory award but then imposing punitive damages of $700,000, an Illinois appeals court on June 26 remanded for a new trial on negligence claims (Larry Dunham and Mary Venturini Dunham v. Honeywell International Inc., et al., No. 4-12-0608, Ill. App., 4th Dist.).

    Judge: Dangers Of Household Asbestos Exposure Weren't Known To 1950s Employer

    SEATTLE - An employer did not have knowledge of the risks asbestos posed to household members until at least the 1960s, a Washington federal judge held June 26. The widow pursuing the claims filed a notice of appeal June 27 (Loretta Hoyt v. Lockheed Shipbuilding Co., No. 12-1648, W.D. Wash.).

    Settlement Reached In Actions Alleging Pets Injured By Topical Flea Treatments

    NEWARK, N.J. - A settlement in the topical flea and tick treatment products liability class actions coordinated in the U.S. District Court for the District of New Jersey was announced June 26 in a minute order issued following the third settlement conference since June 18 (Aundria Arlandson, et al. v. Hartz Mountain Corp., et al., No. 10-1050 [coordinated], D. N.J.).