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Mealey's Toxic Tort/Environmental - New York Court Finds Control Over Worksite, Reinstates Asbestos Verdict

NEW YORK - A power company's specification that contractors use asbestos and its ability to prevent the related injuries allow it to be held liable under New York Labor Law Section 200, a divided New York appellate court held Jan. 10 (Phyllis Brown, et al. v. A.O. Smith Water Products, et al., No. 190415/12, 206, 205, N.Y. Sup., App. Div., 1st Dept.; 2017 N.Y. App. Div. LEXIS 98).

Mealey's Toxic Tort/Environmental - New York Justice Denies Motion Seeking Exclusion Of Every-Exposure Testimony

NEW YORK - Experts in an asbestos case may make qualitative evaluations regarding exposure and need not precisely identify the quantity of exposure, a New York justice held in a Jan. 9 opinion denying defendants' wide-ranging motion (In re New York City Asbestos Litigation, Geraldine Andrews, et al. v. A.O. Smith Water Products, et al., No. 190034/15, N.Y. Sup., New York Co.; 2017 N.Y. Misc. LEXIS 12).

Mealey's Toxic Tort/Environmental - Judge Orders Discovery Into Canadian Companies' Contacts With New Jersey

TRENTON, N.J. - Additional discovery is needed into two Canadian companies' contacts with New Jersey so that a woman can fairly contest motions to dismiss her asbestos action on jurisdictional grounds, a federal judge in New Jersey said Jan. 9 (Estelle Grimes, et al. v. AT&T Corp., et al., No. 15-8466, D. N.J.; 2016 U.S. Dist. LEXIS 181534).

Mealey's Toxic Tort/Environmental - Judge In DuPont C8 Case Rules Cancer Phobia Damages Valid; Some Experts Excluded

COLUMBUS, Ohio - The judge presiding over the multidistrict litigation against E.I. du Pont de Nemours and Co. for alleged injuries connected to exposure to perfluorooctanoic acid (known as C8) on Jan. 10 issued a group of orders pertaining to punitive damages, damages related to cancer phobia and the admissibility of expert testimonies (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).

Mealey's Toxic Tort/Environmental - Monsanto Co. Denies Exposure To Roundup Could Have Caused Man's 'Alleged' Cancer

SAN FRANCISCO - Monsanto Co. on Jan. 6 filed an answer in one of the cases that is part of the multidistrict litigation pending in California federal court related to injuries allegedly caused by Roundup, denying that exposure to the herbicide "did or could have caused" the plaintiff's "alleged" non-Hodgkin lymphoma (NHL) (In Re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

Mealey's Toxic Tort/Environmental - 3 Glyphosate Injury Cases Transferred To Roundup Products Liability MDL

WASHINGTON, D.C. - The Judicial Panel on Multidistrict Litigation (JPMDL) on Jan. 6 transferred three more glyphosate-injury lawsuits to the Roundup products litigation MDL pending in the U.S. District Court for the Northern District of California (In Re: Roundup Production Liability Litigation, MDL No. 2741, JPMDL).

Mealey's Toxic Tort/Environmental - Monsanto Misrepresented Safety Of Roundup, Man Says; Exposure Resulted In Cancer

DENVER - A Colorado man on Jan. 6 filed a lawsuit against Monsanto Co. in the U.S. District Court of the District of Colorado, alleging that he developed non-Hodgkin lymphoma (NHL) from exposure to glyphosate, the active ingredient in the herbicide Roundup, and that the company knowingly misrepresented that the product was safe (John Holm v. Monsanto Co., No. 17-56, D. Colo.).

Mealey's Toxic Tort/Environmental - Native American-Owned Tobacco Company Settles Suit With Tobacco Distributor

ATLANTA - A Native American-owned tobacco company on Jan. 9 dismissed its suit in Georgia federal court against a cigarette distributor that sold expired cigarettes to retailers without the manufacturer's permission after the parties agreed to a confidential settlement (Grand River Enterprises Six Nations LTD., et al. v. National Distributors Inc., et al., No 1:16-cv-423, N.D. Ga.).

Mealey's Toxic Tort/Environmental - Judge Finds Navy Guidelines Sufficiently Precise For Removal Of Asbestos Case

TAMPA, Fla. - Experts' testimony that the U.S. Navy issued reasonably precise specifications for private manufacturers to meet sufficiently demonstrates control over the products in question, and Crane Co. need not show that the government would not have permitted additional warnings, a federal judge in Florida said Jan. 9 in denying remand of an asbestos case (Ralph Donson v. Air and Liquid Systems Inc., No. 16-3022, M.D. Fla.).

Mealey's Toxic Tort/Environmental - Judge: Government Owes Oil Companies $99M For Breach Of Avgas Contracts

WASHINGTON, D.C. - A U.S. Court of Federal Claims judge on Jan. 6 ruled that the federal government owes more than $99 million to companies that it contracted with for the production of aviation fuel (avgas) during World War II, finding that all of the acid waste disposed of at a site in Fullerton, Calif., was "by reason of" the agreements (Shell Oil Company, et al. v. United States of America, No. 06-141-C, Fed. Clms.).

Mealey's Toxic Tort/Environmental - Split 6th Circuit: Kentucky Never Adopted Every-Exposure Causation Theory

LOUISVILLE, Ky. - The state of Kentucky never clearly adopted the every-exposure asbestos causation theory, a divided Sixth Circuit U.S. Court of Appeals panel held Jan. 10 in affirming summary judgment for a joint compound maker (Carol Lee Stallings, et al. v. Georgia-Pacific Corp., et al., No. 15-6387, 6th Cir.).

Mealey's Toxic Tort/Environmental - Divided 6th Circuit Panel Reinstates Government's Suit Over Boiler Construction

DETROIT - A 2-1 panel of the Sixth Circuit U.S. Court of Appeals on Jan. 10 reinstated an enforcement action brought by the federal government against DTE Energy Co., finding that a federal judge in Michigan erred by failing to consider the panel's earlier ruling instructing it to consider whether the company submitted sufficient information to the agency before modifying a unit at its coal-fired power plant in Monroe, Mich. (United States of America v. DTE Energy Company, et al., Nos. 14-2274, 14-2275, 6th Cir.; 2017 U.S. App. LEXIS 416).

Mealey's Toxic Tort/Environmental - Beneficiaries May Pursue Jones Act Survival Claim, Asbestos MDL Judge Rules

PHILADELPHIA - Surviving beneficiaries of a Merchant Marine's Jones Act survival action originally filed in 1989 should not be penalized simply because the court lacked the resources to quickly resolve asbestos cases, a federal judge in Pennsylvania held Jan. 6 (Creighton E. Miller (administrator for estate of Joseph F. Braun v. Manville Corporation Asbestos Disease Compensation Fund, et al., No. MDL 875, 11-33896, E.D. Pa.; 2017 U.S. Dist. LEXIS 1975).

Mealey's Toxic Tort/Environmental - Groundwater Contamination Cost Recovery Suit Not Time-Barred, Judge Says

GRAND RAPIDS, Mich. - A federal judge in Michigan on Jan. 6 denied a motion for summary judgment in a cost recovery lawsuit for groundwater contamination allegedly caused by a landfill, ruling that the case was not barred by a statute of limitations (Charter Township of Lansing, et al. v. Lansing Board of Water and Light, No. 14-514, W.D. Mich.; 2017 U.S. Dist. LEXIS 2280).

Mealey's Insurance - No Coverage Owed For Environmental Contamination, Federal Magistrate Judge Says

HAMMOND, Ind. - Insureds seeking coverage for environmental contamination discovered on a property they purchased are not entitled to coverage because the policy bars coverage for known or unknown property damage and for property damage that began before the policy's inception, an Indiana federal judge said Jan. 5 in granting the insurer's motion for summary judgment (Atlantic Casualty Insurance Co. v. Juan and Maria Garcia, No. 15-66, N.D. Ind.; 2017 U.S. Dist. LEXIS 1861).

Mealey's Toxic Tort/Environmental - 5th Circuit: Bona Fide Payee Need Not Return Settlement Fund Payment

NEW ORLEANS - A company that received $20,000 from a claimant that received money from the Deepwater Horizon Economic and Property Damages Settlement to repay a loan does not need to return the money to the settlement fund, a Fifth Circuit U.S. Court of Appeals panel ruled Jan. 6, holding that the company was not unjustly enriched (In re: Deepwater Horizon, Woodbridge Baric Pre-Settlement Funding LLC v. Louis J. Freeh, No. 15-30599, 5th Cir.).

Mealey's Toxic Tort/Environmental - Judge Finds Asbestos Complaint Overly Broad, But Allows Plaintiff Chance At Remedy

BALTIMORE - "Formulaic" allegations of asbestos exposure failing to distinguish between defendants or time periods fall short of pleading standards, but the plaintiff may amend in an effort to cure the deficiencies, a federal judge in Maryland held Jan. 3 (Esther Rhodes, et al. v. MCIC Inc., et al., No. 16-2459, D. Md.; 2017 U.S. Dist. LEXIS 89).

Mealey's Toxic Tort/Environmental - Judge: Company Cannot Relitigate Allocation Of Natural Resource Damages

GREEN BAY, Wis. - A federal judge in Wisconsin on Jan. 3 granted the federal government's motion in limine to preclude a defendant company from arguing that allocations for natural resource damages in consent decrees between the government and parties that contributed to contamination at the Lower Fox River Superfund site were too high, holding that the company was over-reading the Comprehensive Environmental Response, Compensation, and Liability Act's section on double recovery (United States of America v. NCR Corporation, et al., No. 10-C-910, E.D. Wis.; 2017 U.S. Dist. LEXIS 257).

Mealey's Toxic Tort/Environmental - 4th Circuit Affirms Ruling Finding Permit Does Not Shield Company From Liability

RICHMOND, Va. - A federal judge in West Virginia did not err when finding that a National Pollutant Discharge Elimination System (NPDES) permit issued to a mining company did not shield it from liability for violations of the Clean Water Act (CWA), a Fourth Circuit U.S. Court of Appeals panel ruled Jan. 4 (Ohio Valley Environmental Coalition, et al. v. Fola Coal Company, LLC, No. 16-1024, 4th Cir.; 2017 U.S. App. LEXIS 108).

Mealey's Toxic Tort/Environmental - New York Appeals Panel Affirms Public Vaping Ban In New York City

NEW YORK - A New York appellate panel on Jan. 3 affirmed the constitutionality of a ban on e-cigarettes or vaping devices in schools, restaurants and outdoor public spaces in New York City because the "one-subject rule" in the state's constitution does not apply to local laws (NYC CLASH v. City of New York, No. 152723/142014, N.Y. Sup., App. Div.; 1st Dept.; 2017 N.Y. App. Div. LEXIS 41).

Mealey's Toxic Tort/Environmental - Florida Appeals Panel Remands Tobacco Suit With Order To Reduce Damages

FORT LAUDERDALE, Fla. - A Florida appellate panel on Jan. 4 found that a trial court erred in not reducing the compensatory award by the comparative fault the jury found in an Engle progeny suit brought by a man whose wife died from lung cancer related to her smoking (R.J. Reynolds Tobacco Co. v. Jan Grossman, No. 4D13-3949, Fla. App., 4th Dist.; 2017 Fla. App. LEXIS 50).

Mealey's Toxic Tort/Environmental - Jury Awards $10.5M In Punitive Damages To Man Injured By C8 From DuPont Plant

COLUMBUS, Ohio - A jury in the U.S. District Court for the Southern District of Ohio on Jan. 5 awarded a man $10.5 million in punitive damages plus attorney fees against E.I. du Pont de Nemours and Co. for cancer he said he had developed as a result of exposure to perfluorooctanoic acid (known as C8) (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).

Mealey's Bankruptcy - Judge Erred When Dismissing Asarco's CERCLA Contribution Claim, 10th Circuit Says

DENVER - A federal judge in Utah erred when awarding summary judgment against Asarco LLC on its claim for contribution under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against Noranda Mining Inc., a 10th Circuit U.S. Court of Appeals panel ruled Jan. 3, holding that the plaintiff company did not make misrepresentations to a bankruptcy court when a company representative stated that $7.4 million was a fair share of its cleanup costs at Richardson Flat Superfund site in Utah (Asarco LLC v. Noranda Mining Inc., No. 16-4045, 10th Cir.; 2017 U.S. App. LEXIS 11).

Mealey's Toxic Tort/Environmental - Federal Magistrate Judge Finds No Evidence Exposures Were Substantial Cause

WILMINGTON, Del. - A federal magistrate judge in Delaware recommended granting four motions for summary judgment, saying Dec. 30 the plaintiffs, who had not responded, failed to show that exposure to the products in question were a substantial factor in the man's mesothelioma (In re: Asbestos Litigation, Charlevoix, et al. v. CBS Corp., et al., No. 15-726, D. Del.; 2016 U.S. Dist. LEXIS 180138).

Mealey's Toxic Tort/Environmental - Federal Judge Finds Submarines' Construction Doesn't Warrant Maritime Law

WILMINGTON, Del. - Submarines under construction are not vessels under maritime law, a federal judge in Delaware held Dec. 30 in finding that Connecticut law applies to the asbestos case (Ralph Elliott Shaw and Joan Sanderson Shaw v. Andritz Inc., et al., No. 15-725, D. Del. 2016 U.S. Dist. LEXIS 180137).