BALTIMORE - An expert in a mesothelioma case may not testify regarding his opinion that a man's previous kidney cancer also arose from the asbestos exposures in question, a federal judge in Maryland held June 22 in granting unopposed summary judgment on numerous claims (Jeffrey Rockman and Sonja Rockman v. Union Carbide Corp., et al., No. 16-1169, D. Md., 2017 U.S. Dist. LEXIS 96227).
SAN FRANCISCO - A law firm retained privilege over a former asbestos attorney's work product and was not required to obtain his permission before disclosing emails between him and a scientific consulting firm, a California appeals court held June 21 (Tucker Ellis v. The Superior Court of City and County of San Francisco, Evan C. Nelson, No. A148956, Calif. App., 1st Dist., 2017 Cal. App. LEXIS 571).
NEW YORK - A pollution exclusion precludes coverage for an environmental damage claim with an insolvent insurer, the First Department New York Supreme Court Appellate Division affirmed June 22 (In re Midland Insurance Co.; ASARCO LLC, v. The Superintendent of Financial Services of the State of New York, in her capacity as liquidator of Midland Insurance Co., No. 41294/86, N.Y. Sup., App. Div., 1st Dept., 2017 N.Y. App. Div. LEXIS 5065).
WEST PALM BEACH, Fla. - A Florida appellate panel on June 21 affirmed a trial court's decision to grant summary judgment to a tobacco company in a wrongful death suit because a man who died from smoking related diseases was not an Engle class member and therefore the woman representing his estate cannot be considered an Engle class member and she filed the suit after the statute of limitations for a wrongful death claim had expired (Donna Fanali v. R.J. Reynolds, No. 4D16-67, Fla. App., 4th Dist., 2017 Fla. App. LEXIS 8987).
RICHMOND, Va. - A boiler maker did not need to show that the U.S. Navy specifically rejected additional warnings related to asbestos to successfully remove a case, a Fourth Circuit U.S. Court of Appeals panel held June 22, but on remand, the judge must determine whether Foster Wheeler LLC's removal was timely (Janya Sawyer, et al. v. Union Carbide Corp., et al., No. 16-1530 4th Cir., 2017 U.S. App. LEXIS 11081).
BOSTON - In a dispute over environmental claims, an insurer argues in a June 21 brief filed in a Massachusetts federal court that it should not be forced to accept an umpire proposed by a group of insurance syndicates in arbitration because of "shenanigans" in the appointment process (Certain Underwriters at Lloyd's, London v. Transport Insurance Co., No. 17-10618, D. Mass.).
SAN FRANCISCO - A panel of the Ninth Circuit U.S. Court of Appeals on June 22 ruled that a radiation exposure lawsuit brought by U.S. Navy sailors who assisted in relief efforts when the Fukushima Daiichi Nuclear Power Plant (FNPP) melted down in Japan could proceed in a U.S. court, despite the company's argument to the contrary (Lindsay R. Cooper, et al. v. Tokyo Electric Power Company, et al., No. 15-56424, 9th Cir.; 2017 U.S. App. LEXIS 11075).
NEW YORK - New York asbestos plaintiffs may pursue punitive damage claims going forward under a newly instituted case management order (CMO) that also includes changes to hearsay rules designed to help offset the negative impact such a change will have on defendants, the coordinating justice said June 20 (In re: New York City Asbestos Litigation, All Asbestos Cases., No. 40000/88, N.Y. Sup., New York Co.).
BATON ROUGE, La. - Deposition testimony and not the transcript itself triggers the "other paper" removal clock, a federal judge in Louisiana held June 21 in remanding an asbestos action (Curtis D. Morgan v. Dow Chemical Co., et al., No. 17-269, M.D. La., 2017 U.S. Dist. LEXIS 95308).
DURHAM, N.C. - An environmental advocacy group on June 20 filed a lawsuit in North Carolina federal court against Duke Energy Progress LLC, alleging that the company's plan to permanently store coal ash and "toxic pollutants" in unlined pits will lead to further contamination of local groundwater (Roanoke River Basin Association v. Duke Energy Progress LLC, No. 17-561, M.D. N.C.).
SAN DIEGO - A federal judge in California on June 20 granted a motion filed by two companies accused of contaminating two sites in the San Diego Port to approve a settlement to resolve claims brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) seeking to recover response costs incurred in investigating and remediating the properties (San Diego Unified Port District v. General Dynamics Corporation, No. 07-cv-01955-BAS, San Diego Unified Port District v. Lockheed Martin Corporation, No. 16-cv-02026-BAS, S.D. Calif., 2017 U.S. Dist. LEXIS 95076).
WASHINGTON, D.C. - The Office of the Inspector General (OIG) for the U.S. Environmental Protection Agency on June 21 issued a memorandum indicating that it plans to begin preliminary research to assess how the EPA estimates methane emissions from the oil and natural gas production industry.
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on June 21 denied BP Exploration & Production Inc.'s request for en banc review of a May 23 ruling that four Industry Specific Methodologies (ISMs) for calculating claimant compensation under the Court Supervised Settlement Program for the Deepwater Horizon Economic and Property Damages Class Action Settlement are inconsistent with the agreement (In re: Deepwater Horizon, No. 15-30377, 5th Cir., 2017 U.S. App. LEXIS 11040).
NEW ORLEANS - Asbestos plaintiffs' claims that a shipyard negligently failed to warn about the dangers of asbestos on its premises do not create a colorable defense or causal nexus required for removal, a federal judge in Louisiana held June 19. The shipyard filed a notice of appeal on June 20 (Victor J. Blouin Sr., et al. v. Huntington Ingalls Inc., et al., No. 17-2636, E.D. La., 2017 U.S. Dist. LEXIS 93537).
NEWARK, N.J. - NVR Inc., doing business as Ryan Homes, on June 15 agreed to pay a $425,000 civil penalty and agreed to obtain National Pollutant Discharge Elimination System (NPDES) permits to resolve allegations from the federal government that the home builder was violating the Clean Water Act (United States of America v. NVR, Inc., No. 17cv4346, D. N.J.).
WASHINGTON, D.C. - The attorneys general for 14 states and the attorney for the city of Chicago on June 20 moved in the District of Columbia Circuit U.S. Court of Appeals to intervene in a lawsuit brought by environmental advocacy groups against the U.S. Environmental Protection Agency in connection with the EPA's announcement that it is reconsidering rules on the fugitive emissions of methane (Clean Air Council, et al. v. Scott Pruitt, et al., No. 17-1145. D.C. Cir.).
TULSA, Okla. - A federal judge in Oklahoma on June 20 ruled that the successors to the owner of a former zinc smelting facility can face liability under the Comprehensive Environmental Response, Compensation, and Liability Act for fugitive air emissions that resulted in contamination at a nearby town (Cyprus Amax Minerals Company v. TCI Pacific Communications, Inc., No. 11-CV-0252-CVE-PJC, N.D. Okla., 2017 U.S. Dist. LEXIS 94682).
SEATTLE - A federal judge in Washington on June 19 denied a man's request for a new trial over his alleged violation of the Clean Water Act (CWA), finding that the prosecution did not engage in misconduct during closing arguments and that the evidence supported the jury's verdict (United States of America v. Bingham Fox, et al., No. 16-cr-100-RSL, W.D. Wash., 2017 U.S. Dist. LEXIS 93985).
SAN FRANCISCO - Monsanto Co. on June 16 filed its answer to one of the complaints in the multidistrict litigation for Roundup products, in which it denied that exposure to its product, which contains glyphosate, could have caused the plaintiff's alleged non-Hodgkin lymphoma (NHL) (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).
WILMINGTON, Del. - Evidence that a company did not manufacture the type of fully assembled brake product a witness identified frees the company from an asbestos action, a judge in Delaware held June 14 (Amanda Dullinger and Stephen Dullinger v. American Honda Motor Co., et al., No. N15C-04-281, Del. Super., New Castle Co.).
AUSTIN, Texas - The Texas Supreme Court on June 16 declined to wade into whether a nine-year delay in accepting the terms of settlement resolving asbestos claims was appropriate under the terms of the agreement or constituted unreasonable delay (Union Carbide Corp. v. Perry Jones, Rosemary Allegria, et al., No. 16-0648, Texas Sup.).
BOSTON - An environmental group's Clean Water Act (CWA) lawsuit against a company that crushes brick, concrete and asphalt for construction projects was dismissed by a federal judge in Massachusetts on June 16 after he found that the group failed to allege how the company was illegally discharging storm water into the Bogastow Brook (Conservation Law Foundation, Inc. v. American Recycled Materials, Inc., No. 16-12451-RGS, D. Mass., 2017 U.S. Dist. LEXIS 92803).
CLEVELAND - Expert testimony attributing a man's mesothelioma to cumulative exposure to asbestos in automobile brakes simply dresses up the theory that every exposure leads to disease in new clothing and is inadmissible under Ohio law, a manufacturer and its amici curiae told the state's highest court on June 15 (Mark Schwartz, et al. v. Honeywell International Inc., et al., No. 2016-1372, Ohio Sup.).
NEW YORK - A company waived privilege over a redacted attorney-client memo providing advice involving the asbestos-cement pipe business due to its repeated disclosure concessions, but the company's more strenuous efforts regarding an unredacted version keeps it privileged, a New York appeals court held June 15 (Richard Warren v. Amchem Products Inc., et al., No. 4297, 190281/2014, N.Y. Sup., App. Div., 1st Dept., 2017 N.Y. App. Div. LEXIS 4808).
WASHINGTON, D.C. - The U.S. Supreme Court on June 19 refused to hear the appeal of a group of Ecuadorian residents and their attorney, who challenged a fraud ruling with regard to an $18.5 billion judgment they previously won against Chevron Corp. for injuries they had alleged were caused by the company's oil field operations in Ecuador (Steven Donziger, et al. v. Chevron Corporation, No. 16-1178, U.S. Sup.).