PHILADELPHIA - Asbestos defendants waived personal jurisdiction defenses when they fought transfer to a different jurisdiction for pretrial management, the Third Circuit U.S. Court of Appeals held Dec. 28 (In re: Asbestos Products Liability Litigation, Joseph Blue, et al., No. 16-4148, 3rd Cir., 2017 U.S. App. LEXIS 26849).
PHILADELPHIA - Pennsylvania law all but eradicating joint and several liability applies to strict liability asbestos cases, a state appellate court held in remanding for a new trial on the issue of liability Dec. 28 (William Roverano, et al. v. John Crane Inc. et al., Nos. 2837 EDA 2016, 2847 EDA 2016, Pa. Super.).
COLUMBUS, Ohio - Only by requiring those who use to tobacco products to submit medical reports indicating whether they qualify as "smokers" can Ohio courts give the General Assembly's choice of words meaning, a company told the Ohio Supreme Court on Dec. 22 (Bobby Turner, et al. v. Union Carbide Corp., et al., No. 17-0004, Ohio Sup.).
MIAMI - A panel of the Third District Florida Court of Appeal on Dec. 27 denied the request of two Engle progeny plaintiffs to quash an order from the trial court disqualifying their counsel because the firm representing them had an attorney who previously worked representing tobacco companies in similar suits and had access to previous trial strategies for Philip Morris USA Inc. (David Canta, et al. v. Philip Morris USA Inc., et al., No. 3D17-1959, Fla. App. 3rd Dist., 2017 Fla. App. LEXIS 19761).
INDIANAPOLIS - The Indiana Court of Appeals on Dec. 29 dismissed an insurer's appeal in an environmental contamination coverage dispute after determining that the insurer cannot appeal the trial court's denial of its motion for summary judgment because the trial court ultimately issued a decision in the insurer's favor when it later dismissed all the claims against the insurer (United States Fidelity & Guaranty Insurance Co., et al. v. Crawfordsville Square LLC, et al., No. 54A05-1704-PL-874, Ind. App., 2017 Ind. App. Unpub. LEXIS 1729).
CHICAGO - The First District Illinois Appellate Court on Dec. 29 affirmed a trial court's ruling that an insured seeking coverage for underlying environmental contamination lawsuits proved the existence of missing insurance policies under which it seeks coverage (The Travelers Indemnity Co., et al. v. Rogers Cartage Co., No. 1-16-0780, Ill. App., 1st Dist., 2017 Ill. App. LEXIS 829).
LEXINGTON, Ky. - A federal judge in Kentucky on Dec. 28 dismissed with prejudice a claim brought by two environmental groups contending that Kentucky Utilities Co. (KU) is violating the Clean Water Act by allowing storm water containing pollutants from its coal-ash settlement ponds to migrate into a navigable waterway, holding that the discharges are not subject to the act's National Pollutant Discharge Elimination System (NPDES) permit requirements (Kentucky Waterways Alliance, et al. v. Kentucky Utilities Co., No. 17-cv-292-DCR, E.D. Ky., 2017 U.S. Dist. LEXIS 212329).
WASHINGTON, D.C. - A panel of the District of Columbia Circuit U.S. Court of Appeals on Dec. 22 remanded for further consideration the Occupational Safety and Health Administration's rule regulating workplace exposure to silica because the initial rule was "arbitrary and capricious" (North America's Building Trades Unions v. Occupational Safety & Health Administration, et al., No. 16-1105, D.C. Cir.; 2017 U.S. App. LEXIS 26315).
OAKLAND, Calif. - A judge misconstrued portions of testimony in concluding that a deposition contradicted a previous declaration, and the apparent belief that the testimony was lacking because the witness did not testify to directly witnessing asbestos exposures is contrary to the law, a California appeals court held Dec. 22 (Keith Turley and Joy Ann Turley v. Familian Corp., No. A149752, Calif. App., 1st Dist.).
TRENTON, N.J. - The New Jersey Department of Environmental Protection (NJDEP) did not err when imposing a $180,000 penalty against a company for illegally storing hazardous waste in violation of New Jersey's Solid Waste Management Act and Spill Compensation and Control Act, a state appeals panel ruled Dec. 20, finding that there was no evidence disputing that the defendant company was liable for the violations (New Jersey Department of Environmental Protection v. Yates Foil USA Inc., et al., No. A-0874-15T1, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 3129).
ST. LOUIS - The U.S. Supreme Court on Dec. 29 gave an asbestos plaintiff more time to respond to a petition urging the court to use a $10 million verdict to clarify the proper standard for evaluating punitive damages awards under existing due process and award ratio precedent (Crane Co. v. Jeanette G. Poage, No. 17-900, U.S. Sup.).
HELENA, Mont. - A 6-1 Montana Supreme Court on Dec. 29 found that property owners who live near the Anaconda Smelter Superfund site can seek restoration damages for arsenic contamination on their properties after finding that the cause of action is not preempted by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Atlantic Richfield Co. v. Montana Second Judicial District Court, Silver Bow County, et al., No. 16-0555, Mont. Sup., 2017 Mont. LEXIS 730).
SAN FRANCISCO - A federal judge in California on Dec. 21 refused to dismiss a complaint against the Environmental Protection Agency brought by environmental advocacy groups seeking to compel the agency to initiate a rulemaking procedure to ban the introduction of "fluoridation chemicals" into drinking water on grounds that they cause brain damage (Food & Water Watch Inc., et al. v. United States Environmental Protection Agency, et al., No. 17-2162, N.D. Calif.).
OLYMPIA, Wash. - The Washington Supreme Court on Dec. 21 found that a couple can attempt to recover the costs they incurred when investigating lube oil contamination on their property pursuant to the Model Toxic Control Act (MTCA), but a trial court judge must determine the amount, if any, a paving company must reimburse them (Harlan D. Douglass, et al. v. Shamrock Paving Inc., No. 94087-8, Wash. Sup., 2017 Wash. LEXIS 1149).
TRENTON, N.J. - A New Jersey appellate panel on Dec. 19 reversed and remanded a ruling by the New Jersey Department of Environmental Protection (DEP) regarding specific groundwater quality criteria for perfluorononanoic acid (PFOA), concluding that the state administrative code expressly limits the DEP's authority to establish "specific criteria" with the expectation that they "shall be replaced with specific criteria as soon as reasonably possible by rule" (Chemistry Council of New Jersey v. New Jersey Department of Environmental Protection, No. A-1439-15T4 and Solvay Specialty Polymers USA LLC v. New Jersey Department of Environmental Protection, No. A-1442-15T1 and Arkema Inc. v. New Jersey Department of Environmental Protection, No. A-1917-15T1, N.J. Super., App. Div.).
KANSAS CITY, Mo. - Whether a 2014 law providing enhanced workers' compensation benefits for mesothelioma victims retroactively upsets vested interests is a constitutional question for the state's top court, the Missouri Court of Appeals held Dec. 19 (Accident Fund Insurance Co., et al. v. Robert Casey, et al., Nos. WD80470, WD80481, WD80525, Mo. App., 2017 U.S. Dist. LEXIS 207148).
NEW YORK - A jury's verdict against a company that exposed a man to asbestos both as a manufacturer and an employer covers only the liability as a products manufacturer, making it impossible to guess how it would calculate any liability the company faced as an employer, a New York justice held in an opinion posted Dec. 19 (Phyllis Brown, et al. v. Bell & Gossett Co., et al., No. 190415/12, N.Y. Sup., New York Co.).
LAKE CHARLES, La. - An oil company that was ordered to remediate a property owned by a school board cannot have access to native format Excel spreadsheets the school board submitted in support of its request for attorney fees, a Louisiana appeals panel ruled Dec. 20, holding that while it is burdensome for the company to convert the files for searching, it is not clear how it would use the metadata to defend against the school board's request (State of Louisiana, et al. v. Louisiana Gas & Exploration Co., et al., No. 17-755, La. App., 3rd Cir., 2017 La. App. LEXIS 2381).
NEW YORK - A federal bankruptcy judge in New York on Dec. 15 denied Rapid-American Corp.'s request to make details of a proposed sale of claims on defunct insurance company, Midland Insurance Co., confidential, saying it had not even tried to give reason for the secrecy (In re: Rapid-American Corp., Chapter 11, No. 13-10687, S.D. Bkcy. N.Y., 2017 Bankr. LEXIS 4266).
WILMINGTON, Del. - A scheduling order governed motions for summary judgment on only product identification and causal nexus and does not make a motion involving a remaining conspiracy claim untimely, a federal magistrate judge in Delaware held Dec. 15 (Marguerite MacQueen v. Warren Pumps LLC, et al., No. 13-831, D. Del., 2017 U.S. Dist. LEXIS 206223).
DALLAS - Texas law governing sealed court records permit any one, at any time, to challenge whether such documents should remain out of the public's eye, the state's attorney general told an appeals court Dec. 15 in urging it to remand a case for a determination of the merits of a case challenging the sealing of a lawyer's deposition in an asbestos case (Christine Cole Biederman v. Beverly Jean Brown, et al., No. 01-07-00263-CV, Texas App., 1st Dist.).
SAN FRANCISCO - A collection of environmental advocacy groups on Dec. 19 filed a lawsuit in California federal court against Secretary of the Interior Ryan Zinke and two federal agencies contending that they are violating federal law with regard to the U.S. Bureau of Land Management's (BLM) final decision to amend the compliance deadlines for what is known as the methane waste prevention rule (Sierra Club, et al. v. Ryan Zinke, et al., No. 17-7187, N.D. Calif.).
WASHINGTON, D.C. - The U.S. Environmental Protection Agency on Dec. 18 released a draft risk assessment for glyphosate, which is the primary chemical ingredient in the herbicide Roundup, concluding that "glyphosate is not likely to be carcinogenic to humans."
UTICA, N.Y. - A jury in a New York federal court on Dec. 15 awarded an insurer more than $64 million after finding that a reinsurer is liable under seven reinsurance agreements for sums the insurer paid to an insured in an asbestos claims settlement (Utica Mutual Insurance Co. v. Fireman's Fund Insurance Co., No. 09-00853, N.D. N.Y.).
BIRMINGHAM, Ala. - An inaccurate date on a notice of intent submitted by two environmental groups to the owner of a decommissioned landfill before filing a lawsuit under the Clean Water Act was fatal to their claims, a federal judge in Alabama ruled Dec. 18, holding that the notice requirements must be strictly adhered to (Black Warrior Riverkeeper Inc., et al. v. Metro Recycling Inc., No. 17-cv-01050-LSC, N.D. Ala., 2017 U.S. Dist. LEXIS 207011).