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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 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 PI/Product Liability - 4th Circuit Panel Affirms Dismissal Of Negligence Suit Against United States

RICHMOND, Va. - A panel of the Fourth Circuit U.S. Court of Appeal on Jan. 4 affirmed a district court order dismissing a negligence suit brought against the United States by a sheriff's deputy who was injured on a Navy base after jumping off of a second-story training ship because the United States is shielded from tort liability under the Federal Tort Claim Act (FTCA) (Laurie L. Wood v. United States of America, No. 15-2106, 4th Cir.; 2017 U.S. App. LEXIS 106).

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 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 PI/Product Liability - Judge: Window Components Maker Not Liable For Indemnification, Contribution

MINNEAPOLIS - A window components manufacturer need not indemnify or contribute to an arbitration award a plaintiff company must pay to a school district for windows that needed to be remediated, a federal judge in Minnesota ruled Dec. 30, finding that the manufacturer was not liable under contract or tort law (All Metro Glass v. Tubelite Inc., No. 15-140, D. Minn.; 2016 U.S. Dist. LEXIS 180520).

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).

Mealey's Toxic Tort/Environmental - 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 - Judge: Navy Specifications Keep Asbestos Case In Florida Federal Court

TAMPA, Fla. - Evidence that a company complied with the U.S. Navy's precise specifications for products it ordered from private contractors keeps an asbestos case in federal court, a federal judge in Florida held Dec. 27 (Marc Killam v. Air & Liquid Systems Inc., et al., No. 16-2915, M.D. Fla.; 2016 U.S. Dist. LEXIS 178637).

Mealey's Toxic Tort/Environmental - New Jersey Panel Upholds Ruling Dismissing Suit Over Remediation Obligations

TRENTON, N.J. - A New Jersey appellate panel on Dec. 29 affirmed a chancery court judge's decision to dismiss a company's declaratory judgment suit against the New Jersey Department of Environmental Protection (NJDEP), finding that the plaintiff company is required to comply with the requirements of the Site Remediation Reform Act (SRRA) (Drytech Inc. v. State of New Jersey, Department of Environmental Protection, No. A-5619-14T4, N.J. Super., App. Div.; 2016 N.J. Super. Unpub. LEXIS 2750).

Mealey's Toxic Tort/Environmental - Judge: Vermont's Standard For Drinking Water Not 'Essential' To Contamination Case

RUTLAND, Vt. - A federal judge in Vermont on Dec. 28 denied a motion to dismiss a groundwater contamination lawsuit against a plastics manufacturer, ruling that a dispute over the state's groundwater contamination standards was not "essential" to the case (James D. Sullivan, et al. v. Saint-Gobain Performance Plastics Corporation, No. 16-125, D. Vt.; 2016 U.S. Dist. LEXIS 180405).

Mealey's Toxic Tort/Environmental - Judge Rules Sanctions In Groundwater Contamination Case Not Warranted

SOUTH BEND, Ind. - A federal judge in Indiana on Dec. 22 denied a couple's motion for sanctions against a company for allegedly making false statements and denying the existence of evidence as part of a groundwater contamination lawsuit, concluding that "the motion is not well-taken" (Amos Hostetler, et al. v. Johnson Controls Inc., No. 15-226, N.D. Ind.).

Mealey's Toxic Tort/Environmental - Judge Improperly Granted Judgment, Rejected Amendment, Woman Claims In Appeal

MADISON, Wis. - A judge erred both in rejecting a motion to amend or add findings to a ruling and in the original order granting judgment to an asbestos-insulation manufacturer after a bench trial, a woman claims in Dec. 19 filing with the Seventh Circuit U.S. Court of Appeals (Gary Souja, et al. v. Owens-Illinois Inc., No. 16-4177, 7th Cir.).

Mealey's Toxic Tort/Environmental - Chevron: Photos Should Not Be Admitted Into Evidence In Oil Rig Explosion Case

SAN FRANCISCO - Chevron Corp., which is being sued by Nigerian residents who contend that they have been injured as a result of an oil rig explosion, on Dec. 20 filed a brief in California federal court, arguing that the plaintiffs' motion to add photographs into evidence and file them under seal should be denied because they have not shown good cause to supplement the record (Natto Iyela Gbarabe v. Chevron Corporation, No. 14-173, N.D. Calif.).

Mealey's Toxic Tort/Environmental - Flint, Mich., Residents: Agency Director Admitted Violations In Lead Water Crisis

DETROIT - Michigan residents who have sued Michigan Gov. Rick Snyder and other state officials for the lead-contaminated drinking water crisis in Flint, Mich., filed a brief on Dec. 21, arguing that the former director of the Michigan Department of Environmental Quality (MDEQ) "cannot seek refuge behind a shield of immunity" (Luke Waid, et al. v. Gov. Richard D. Snyder, et al., No. 16-10444, E.D. Mich.).

Mealey's Toxic Tort/Environmental - Jury Awards $2M To Man Who Sued DuPont For Cancer Related To C8 Exposure

COLUMBUS, Ohio - A jury in Ohio on Dec. 21 awarded $2 million to a man who had sued E.I. du Pont de Nemours and Co. seeking damages 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 Toxic Tort/Environmental - Glyphosate Injury Case Related To Monsanto's Roundup Moved To MDL

WASHINGTON, D.C. - The Judicial Panel on Multidistrict Litigation on Dec. 21 transferred another glyphosate injury lawsuit to the multidistrict litigation in the U.S. District Court for the Northern District of California, adding another case in which the plaintiff alleges that his exposure to the Roundup herbicide caused him to develop non-Hodgkin's lymphoma (NHL) (In Re: Roundup Products Liability Litigation, No. 2741, JPMDL).