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."
BOSTON - The tort trustee for the fungal meningitis settlement on Dec. 18 told a Massachusetts federal court that her office has received 2,353 claims and has paid out $149.4 million of the $200 million settlement (In Re: New England Compounding Pharmacy, Inc. Products Liability Litigation, MDL Docket No. 2419, No. 13-md-2419, D. Mass.).
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).
CHARLOTTE, N.C. - How a judge instructed the jury made possible a verdict finding that automobile product defendants' negligence was a proximate cause of a man's mesothelioma and that a third party's negligence was an intervening cause, a divided Fourth Circuit U.S. Court of Appeals panel held Dec. 14 (Erik Ross Phillips, et al. v. Pneumo Abex LLC, et al., No. 16-1508, 4th Cir., 2017 U.S. App. LEXIS 25252).
NEW YORK - In a coverage dispute over asbestos litigation costs, the New York Court of Appeals on Dec. 14 ruled that one of its previous rulings did not establish a general rule that a reinsurance contract's total liability cap encompasses both indemnity and defense costs incurred by an insurer (Global Reinsurance Corporation of America v. Century Indemnity Co., No. CTQ-2016, 0005, N.Y. App., 2017 N.Y. LEXIS 3723).
CENTRAL ISLIP, N.Y. - A federal judge in New York on Dec. 15 ruled that a solvent maker cannot pursue third-party claims for cost recovery and contribution under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) against 58 companies that entered into a consent decree with the state of New York over contamination at a landfill, holding that the agreement bars the solvent maker's claims (State of New York, et al. v. Pride Solvents & Chemical Co., et al., No. 15-CV-6569, E.D. N.Y., 2017 U.S. Dist. LEXIS 206678).
WASHINGTON, D.C. - A federal judge in the District of Columbia on Dec. 15 reversed and remanded a decision by the Board of Veterans Appeals that denied coverage to a veteran who alleged that he was exposed to the herbicide Agent Orange, concluding that the board erred in its treatment of the evidence (Mark Young v. David J. Shulkin, No. 16-2196, Vet. Clms.; 2017 U.S. App. Vet. Claims LEXIS 1800).
PHILADELPHIA - A federal judge in Pennsylvania on Dec. 15 granted a hotel's motion for summary judgment to a hotel after finding that a woman who claims that she was assaulted by a massage therapist employed by a gym in the hotel did not provide a cause of action to "hold the hotel liable for the torts of the independent contractor gym" (Elena Myers Court v. Loews Philadelphia Hotel, Inc., et al., No. 16-4848, E.D. Pa., 2017 U.S. Dist. LEXIS 206378).
WILMINGTON, Del. - Imposing liability for take-home asbestos exposures on manufacturers would make no sense given Delaware's precedent and would open those defendants up to a flood of potentially limitless liability and litigation, a group of amicus parties told the Delaware Supreme Court on Dec. 15 (Elizabeth Ramsey, et al. v. Georgia Southern University Advanced Development Center, et al., No. 305, 2017, Del. Sup.).
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Dec. 14 affirmed a New Jersey federal judge's ruling in favor of an insurer in an environmental contamination dispute after determining that the insurer's failure to exclude coverage to certain parties involved in the contamination dispute clearly was a mistake or scrivener's error (Indian Harbor Insurance Co. v. NL Environmental Management Services Inc., et al., Nos. 16-3262, 16-3293, 3rd Cir., 2017 U.S. App. LEXIS 25277).