COLUMBUS, Ohio - Requiring every asbestos lung cancer plaintiff who ever smoked tobacco to provide a medical expert opinion that the person doesn't qualify as a "smoker" would produce absurd results, burden nonsmokers and is at odds with a decade of precedent and the law's intent, a man told the Ohio Supreme Court Dec. 6 (Bobby Turner, et al. v. Union Carbide Corp., et al., No. 17-0004, Ohio Sup.).
PHILADELPHIA - The exclusion of two experts did little to change the state of a case as two other experts hold the same opinions regarding asbestos-contaminated talc's role in causing mesothelioma, a woman told a Pennsylvania judge on Dec. 4 (Sally Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. 151202987, Pa. Comm. Pls., Philadelphia Co.).
SAN FRANCISCO - A California appellate panel on Dec. 6 denied a petition for rehearing filed by former makers of lead-based paint that contended that the panel previously "misstated and omitted material facts" when it found that there was "substantial evidence" that the companies promoted paints containing white lead pigments for interior residential use (The People v. ConAgra Grocery Products Company, et al., No. H040880, Calif. App., 6th Dist.).
NEW BERN, N.C. - A federal judge in North Carolina on Dec. 4 ordered Smithfield Foods Inc. to allow a consultant to have access to 11 farms to continue to investigate how to reduce groundwater contamination, finding that the work is allowed under a consent decree the company entered into with two environmental groups (Waterkeeper Alliance, Inc., et al. v. Smithfield Foods, Inc., et al., No. 01-cv-27-H, E.D. N.C., 2017 U.S. Dist. LEXIS 198537).
TRENTON, N.J. - The New Jersey Department of Environmental Protection (NJDEP) did not err when issuing a permit that allowed Princeton University to remediate a seven-acre site that was contaminated from previous pesticide use, a New Jersey appeals court ruled Dec. 1, finding that the notice provided to nearby residents was sufficient (Mark Smith, et al. v. New Jersey Department of Environmental Protection, No. A-1684-14T2, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 2970).
TALLAHASSEE, Fla. - The Florida Supreme Court on Dec. 4, without explanation, denied an Engle progeny plaintiff's petition for review in appealing a lower court's decision to vacate a $16.8 million verdict and grant a new trial in a tobacco suit (Cynthia Robinson v. R.J. Reynolds Tobacco Co., No. SC17-1130, Fla. Sup., 2017 Fla. LEXIS 2437).
DAYTON, Ohio - A federal judge in Ohio on Nov. 30 awarded summary judgment to three defendant companies in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit after finding that there was no sufficient evidence showing that they arranged for the disposal of hazardous waste at a landfill (Hobart Corporation, et al. v. The Dayton Power & Light Co., et al., No. 13-cv-115, S.D. Ohio, 2017 U.S. Dist. LEXIS 197856).
HOWELL, Mich. - Michigan residents sued General Motors LLC in state court on Nov. 30, alleging that the company contaminated their drinking water by releasing hazardous materials into the groundwater at GM's Milford Proving Grounds (MPG) facility (Terry Moore, et al. v. General Motors LLC, No. N/A, Mich. Cir., Livingston Co.).
NEW YORK - A power company's contracts with its contractors requires indemnification only after the establishment of liability, a New York justice held in denying reargument in an asbestos case in an opinion posted Nov. 30 (In re New York City Asbestos Litigation Michael Koulermos and Marian Koulermos v. A.O. Smith Water Products, et al., No. 190406/2014, N.Y. Sup., New York Co.; 2017 N.Y. Misc. LEXIS 4530).
DETROIT - One of the defendants sued in connection with the lead-contaminated water crisis in Flint, Mich., on Dec. 1 filed a brief in Michigan federal court arguing that it should be dismissed from the lawsuit brought by a class of residents for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).
NEW YORK - Coverage for underlying asbestos claims arising out of the construction of the original World Trade Center towers is triggered if the underlying claims allege that the exposure occurred during the construction of the towers even if the disease did not develop until years later, a New York County Supreme Court justice said Nov. 29, noting that the policy at issue provides coverage for any injury arising out of the construction project (American Home Assurance Co. v. The Port Authority of New York and New Jersey, et al., No. No. 651096/2012, N.Y. Sup., New York Co.).
SAN FRANCISCO - Three companies that formerly made lead-based paint on Nov. 29 filed separate briefs in a California appeals court seeking rehearing of a ruling that reversed and remanded a $1.15 billion verdict against them but that also called for the trial court to recalculate the amount of the award. The companies contend that rehearing is needed because the court actually misstated or omitted material facts when it found that there was "substantial evidence" that the companies promoted paints containing white lead pigments for interior residential use (The People v. ConAgra Grocery Products Company, et al., No. H040880, Calif. App., 6th Dist.).
HOUSTON - A Texas county's post-argument submission is improper and fails to prove that it provided workers' compensation benefits for a judge employed in its courthouse, a woman pursuing an asbestos action on behalf of the former judge told a Texas appeals court on Nov. 22 (Jefferson County, Texas v. Ellarene Farris, et al., No. 01-17-00493-CV, Texas App., 1st Dist.).
HELENA, Mont. - The Montana Supreme Court on Nov. 28 ordered the creation of an asbestos claims court to oversee pretrial proceedings in the state's more than 540 asbestos cases (In re: Asbestos Litigation, No. AC 17-0694, Mont. Sup.).
LOS ANGELES - Two environmental advocacy groups on Nov. 28 sued the Trump administration in California federal court, alleging that it has illegally enabled a private company to construct a pipeline through a national monument and other public land, which will deplete a desert aquifer and harm human health by providing water to urban areas that contains hexavalent chromium (Center for Biological Diversity, et al. v. U.S. Bureau of Land Management, et al., No. 17-08587, C.D. Calif.).
NEW YORK - The First Department New York Supreme Court Appellate Division on Nov. 28 reversed a trial court's denial of a motion to dismiss an insurer's claim seeking a declaration that no coverage is owed to its insured for an underlying contribution claim in an environmental contamination dispute because issues in the underlying suit must be litigated before the insurer's claim can be decided (National Union Fire Insurance Company of Pittsburgh, Pa., v. Compaction Systems Corporation of New Jersey, et al., No. 5066, 107838/09, N.Y. Sup., App. Div., 1st Dept., 2017 N.Y. App. Div. LEXIS 8352).
WASHINGTON, D.C. - In a case that could upend the landscape for patent litigants globally, the U.S. Supreme Court heard oral arguments Nov. 27 in a dispute over the constitutionality of inter partes review (IPR) proceedings by the U.S. Patent and Trademark Office (PTO's) Patent Trial and Appeal Board (Oil States Energy Services LLC v. Greene's Energy Group LLC, No. 16-712, U.S. Sup.).
GREENSBORO, N.C. - A distributor's sale of a bowling ball product in North Carolina does not create jurisdiction absent evidence that the manufacturer specifically targeted the state, a North Carolina federal judge held Nov. 21 (Vickie Young, et al. v. American Talc Co., et al., No. 13-864, M.D. N.C., 2017 U.S. Dist. LEXIS 192356).
ANNAPOLIS, Md. - The state's statute of repose acts prospectively and does not cover exposures occurring before enactment, and its "improvement to real property" language cannot possibly be interpreted as covering the asbestos dust in a man's lungs, a woman told Maryland's top court on Nov. 21. Oral arguments are scheduled for Dec. 1 (June Diane Duffy, et al. v. CBS Corp., et al., No. 41 September Term, 2017, Md. App.).
SAN DIEGO - The city of San Diego has standing to bring a nonrepresentative public nuisance claim against Monsanto Co. over polychlorinated biphenyl (PCB) contamination, a federal judge in California ruled Nov. 22, holding that the city sufficiently alleged that its municipal storm water system has been adversely affected by the presence of the chemical (City of San Diego, et al. v. Monsanto Company, et al., No. 15cv578, S.D. Calif., 2017 U.S. Dist. LEXIS 193570).
BALTIMORE - Testimony that a man worked on "all of" the vessels at a shipyard cannot realistically mean he worked on every ship and, even when combined with evidence of two insulation contractors' presence at the facility, is not enough to establish exposure to asbestos from their work, a Maryland appeals court held Nov. 20 (Kathryn A. Davenport, et al. v. MCIC Inc., et al., No. 1204 September Term, 2016, Md. Spec. App., 2017 Md. App. LEXIS 1162).
WEST PALM BEACH, Fla. - A jury in an Engle progeny suit was unable to come to a verdict in Florida state court and a mistrial was granted in a tobacco suit in which a woman claimed that her mother's lung cancer and death were caused by her addiction to cigarettes made by R.J. Reynolds Tobacco Co. (Julie Adamson v. R.J. Reynolds Tobacco Co., No. 2016CA008532, Fla. 15th Jud. Cir., Palm Beach Co.).
ROANOKE, Va. - A plaintiff company seeking contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) from an adjacent property owner can present testimony from an expert about drainage from mining tailings on the defendant's property, a federal judge in Virginia ruled Nov. 22, finding that the information is relevant (Dixon Lumber Co., Inc. v. Austinville Limestone Co., Inc., No. 16-cv-00130, W.D. Va., 2017 U.S. Dist. LEXIS 193189).
WILMINGTON, Del. - A court erred "in the most fundamental sense" in applying the wrong standard and relieving manufacturers of liability for take-home asbestos exposures simply because they were more distant from the exposed individual than the premises owner, amici curiae tell Delaware's top court in a Nov. 20 brief (Elizabeth Ramsey, et al. v. Georgia Southern University Advanced Development Center, et al., No. 305, 2017, Del. Sup.).
WASHINGTON, D.C. - A man awarded $6 million for his mesothelioma on Nov. 20 waived his right to respond to a drywall materials' U.S. Supreme Court petition seeking to vacate the verdict (Murco Wall Products Inc. v. Michael D. Galier, No. 17-733, U.S. Sup.).