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Mealey's Toxic Tort/Environmental - Judge Affirms Denial Of Agent Orange Benefits For Veteran's Daughter

WASHINGTON, D.C. - A federal judge in the U.S. Court of Appeals for Veterans Claims on Jan. 30 affirmed a Board of Veterans Appeals ruling that denied education benefits to the daughter of a veteran who died from heart disease caused by exposure to Agent Orange, concluding that the board did not fail its "duty to assist" (Torie S. Garrett v. Robert D. Snyder, No. 15-2724, U.S. App., Vet. Clms., 2017 U.S. App. Vet. Claims LEXIS 77).

Mealey's Toxic Tort/Environmental - DuPont: C8 Lawsuit Should Be Dismissed With Prejudice; Claims Are Barred

COLUMBUS, Ohio - E.I. du Pont de Nemours and Co. on Feb. 1 answered a complaint filed in the perfluorooctanoic acid (known as C8) injury multidistrict litigation, arguing that the case should be dismissed with prejudice in its entirety on grounds that the claims are barred because the plaintiff assumed a risk and/or was contributorily negligent (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 - New Jersey Governor, School: Case Alleging Lead-Tainted Drinking Water Fails

TRENTON, N.J. - New Jersey Gov. Chris Christie, members of his administration and the State-Operated School District of the City of Newark, N.J., on Jan. 30 filed two briefs in New Jersey federal court arguing that the lawsuit brought by residents who contend that the state and the school district are liable for lead-contaminated drinking water in the school district should be dismissed for lack of standing and failure to state a claim (Veronica Branch, et al v. Chris Christie, et al., No. 16-2467, D. N.J.).

Mealey's Toxic Tort/Environmental - Judge Orders New Deposition, Imposes Fees And Costs In Asbestos Witness Dispute

NEW ORLEANS - Producing an unprepared corporate witness who failed to answer almost 100 noticed matters despite months of preparation time was akin to offering no witness at all, a federal judge in Louisiana held Jan. 31 in ordering a new deposition and imposing costs and fees (Martha Denmon Storer, et al. v. Crown Cork & Seal Co., et al., No. 14-2488, W.D. La., 2017 U.S. Dist. LEXIS 13349).

Mealey's Toxic Tort/Environmental - 7th Circuit Says It Lacks Jurisdiction Over Appeals Of Discovery Rulings

CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Jan. 31 denied appeals from a company in a suit brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), finding that it lacked jurisdiction to review three rulings on motions seeking discovery from a nonparty company based in England (P.H. Glatfelter Co. v. Windward Prospects Ltd., Nos. 15-3847, 16-1197, 16-1310, 7th Cir., 2017 U.S. App. LEXIS 1707).

Mealey's Toxic Tort/Environmental - Panel Dismisses Lead Poisoning Case Because Defendants Didn't Own Premises

NEW YORK - A New York appeals panel on Jan. 31 reversed a trial court's ruling and said a lead-poisoning complaint brought against multiple defendants should be dismissed because the evidence shows that none of the defendants owned the property in question when the plaintiffs lived there (Arelie F., et al. v. Cathedral Properties LLC, et al., No. 2914, 350662/09, N.Y. Sup., App. Div., 1st Dept., 2017 N.Y. App. Div. LEXIS 585).

Mealey's Toxic Tort/Environmental - 7th Circuit: Indiana Law On E-Cigarette Manufacturing Is Unconstitutional

CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Jan. 30 found that an Indiana law that regulates the manufacturing and distribution of vapor pens and liquids used in e-cigarettes violates the dormant commerce clause of the U.S. Constitution, reversing a grant of summary judgment to the state and remanding to the trial court with instructions to declare the challenged provisions of the law unenforceable against out-of-state manufacturers (Legato Vapors LLC, et al. v. David Cook, et al., No. 16-3071, 7th Cir., 2017 U.S. App. LEXIS 1598).

Mealey's Toxic Tort/Environmental - Joinder Of Montana In Asbestos Action, Remand, Proper, Judge Says

BILLINGS, Mont. - Allegations that the state of Montana declined to act after its investigation discovered asbestos contamination at the Libby, Mont., are sufficient to keep it in a case and defeats diversity, a federal judge in Montana held Jan. 30 in adopting a magistrate judge's recommendation and remanding the case (Timothy S. McDowell, personal representative of the estate of Susan K. McDowell v. Burlington Northern Santa Fe Railway Co., et al., No. 16-67, D. Mont., 2017 U.S. Dist. LEXIS 12524).

Mealey's Toxic Tort/Environmental - Louisiana Couple Says Monsanto Fraudulently Concealed Danger Related To Glyphosate

NEW ORLEANS - A Louisiana couple on Jan 31 filed a lawsuit against Monsanto Co. in Louisiana federal court, contending that the company's negligence and fraud led to the wife's exposure to glyphosate, the active ingredient in Roundup herbicide, and caused her to develop cancer (Bennierita Smith, et al. v. Monsanto Company, No. 17-844, E.D. La.).

Mealey's Toxic Tort/Environmental - Residents Seek $722.4 Million In Damages From EPA For Flint, Mich., Water Crisis

DETROIT - A group of Flint, Mich., residents on Jan. 30 filed a lawsuit against the U.S. government, seeking $722.4 million for the Environmental Protection Agency's alleged mishandling of the lead-contaminated water crisis in Flint (Jan Burgess, et al. v. United States of America, No. 17-10291, E.D. Mich.).

Mealey's Toxic Tort/Environmental - 2nd Circuit Says Insured's Notice Of Environmental Claims Was Not Timely

NEW YORK - The Second Circuit U.S. Court of Appeals on Jan. 27 affirmed that two insurers in an environmental contamination coverage dispute did not waive their right to assert a late-notice defense because the insured's notice of the underlying environmental claims was not timely (Travelers Indemnity Co., et al. v. Northrop Grumman Corp., et al., No. 15-3117, 2nd Cir., 2017 U.S. App. LEXIS 1471).

Mealey's Toxic Tort/Environmental - Monsanto: Port Of Portland PCB Lawsuit Based On 'Insufficient Facts'

PORTLAND, Ore. - Monsanto Co. and two of its affiliates on Jan. 27 filed a brief in Oregon federal court contending that a district court should dismiss the Port of Portland's lawsuit alleging groundwater contamination from polychlorinated biphenyls (PCBs) on grounds that the allegations are barred by the state's product liability statute and there are "insufficient facts alleged to sustain a cognizable legal theory" (Port of Portland v. Monsanto Co., et al., No. 17-15, D. Ore.).

Mealey's Toxic Tort/Environmental - Bankruptcy Asset Sale Bars Take-Home Asbestos Case, Court Says

PHILADELPHIA - A "free and clear" sale of assets in a bankruptcy court auction precludes holding the purchaser liable for pre-purchase take-home asbestos exposures, a Pennsylvania appeals court held Jan. 26 (Jacqueline S. Wagner and Thomas H. Wagner v. Standard Steel LLC, et al., No. 850 EDA 2016, Pa. Super.).

Mealey's Toxic Tort/Environmental - Residents: Water Crisis Defendants' Evidence Does Not Call For Ending Injunction

DETROIT - Plaintiffs who sued Michigan state officials in the U.S. District Court for the Eastern District of Michigan on Jan. 26 filed a brief arguing that the state defendants' submissions of supplemental evidence does not support their claim that the Flint, Mich., Water System is complying with monitoring and corrosion control requirements that are part of federal regulations (Concerned Pastors for Social Action, et al. v. Nick A. Khouri, et al., No. 16-10277, E.D. Mich.).

Mealey's Toxic Tort/Environmental - New York Court Upholds Denial Of Judgment Where Man Couldn't Identify Product

NEW YORK - A man's failure to identify a defendant's product is not fatal to his asbestos case, especially in light of evidence placing the company's pumps aboard the ship on which the man served, a New York appeals court held Jan. 26 (In re New City Asbestos Litigation, Susan Krok as Adminstratrix for the estate of Raymond J. Krok Sr., etc. v. Aercto International Inc., et al., Nash Engineering Co., No. 190272/14, N.Y. Sup., App. Div., 1st Dept.).

Mealey's Toxic Tort/Environmental - Widow's Benefits Claim Related To Husband's Agent Orange Exposure Denied

WASHINGTON, D.C. - A federal judge in the U.S. Court of Appeals for Veterans Claims on Jan. 26 ruled that a veteran's widow failed to show that the Board of Veterans Appeals (the Board) erred when it denied her claim for benefits related to her late husband's death from cancer, which she claimed was connected to his exposure to Agent Orange (Diana L. Moczynski v. Robert D. Snyder, No. 15-3737, Vet. Clms., 2017 U.S. App. Vet. Claims LEXIS 59).

Mealey's Toxic Tort/Environmental - Judge Finds $3M Civil Penalty For Oil Spills Is Not Recoverable

SALT LAKE CITY - Chevron Pipeline Co. (CPL) cannot attempt to recover a portion of a $3 million civil penalty it paid to the Utah Water Quality Board (UWQB) and Salt Lake City to resolve violations of the Utah Water Quality Act (UWQA) and Oil Pollution Act of 1990 (OPA) that stemmed from two pipeline leaks in 2010, a federal judge in Utah ruled Jan. 27, holding that the money cannot be recovered from third parties under either act (Chevron Pipeline Company v. Pacificorp, d/b/a Rocky Mountain Power, No. 12-CV-287, D. Utah; 2017 U.S. Dist. LEXIS 11778).

Mealey's Toxic Tort/Environmental - Judge Denies Lone Pine Order In Tainted Groundwater Case Against Johnson Controls

SOUTH BEND, Ind. - A federal judge in Indiana on Jan. 25 denied a company's motion seeking a case management order referred to as a Lone Pine order in a trichloroethylene (TCE) groundwater contamination case, concluding that such an order should be used only in "exceptional cases" (Amos Hostetler, et al. v. Johnson Controls Inc., No. 15-226, N.D. Ind.; 2017 U.S. Dist. LEXIS 10006).

Mealey's Toxic Tort/Environmental - Judge: Report 'Sufficiently Reliable' As Evidence In Tainted Groundwater Case

CHICAGO - A federal judge in Illinois on Jan. 25 ruled that an expert opinion provided by a village that sued two companies alleging groundwater contamination from vinyl chloride that leaked into the water system was "sufficiently reliable," and he refused to exclude it from evidence (Village of Sauk Village v. Roadway Express Inc., et al., No. 15-9183, N.D. Ill.; 2017 U.S. Dist. LEXIS 10478).

Mealey's Toxic Tort/Environmental - Judge Dismisses After Finding Insufficient Support For Asbestos Fraud Claim

NEW ORLEANS - The failure to adequately support a fraud claim for the second time warrants dismissal of the claim with prejudice, a federal judge in Louisiana said Jan. 24 (Jesse Frank Sheppard v. Liberty Mutual Insurance Co., et al., No. 16-2401, E.D. La.; 2016 U.S. Dist. LEXIS 159338; 2017 U.S. Dist. LEXIS 9527).

Mealey's Toxic Tort/Environmental - Federal Judge In New York Grants Summary Judgment In Tobacco Tax Suit

ROCHESTER, N.Y. - A federal judge in New York on Jan. 23 granted summary judgment to a group of government officials and dismissed the complaints brought by two Native American nations with prejudice after finding that an amendment to a tax on Native American-made cigarettes does not violate the tribes' right to tribal sovereignty (Seneca Nation of Indians, et al. v. David Patterson, et al., No. 1:10-cv-00687, W.D. N.Y.; 2017 U.S. Dist. LEXIS 9060).

Mealey's Toxic Tort/Environmental - Court: Pennsylvania School Board Can Be Liable For Teacher's Asbestos Exposure

HARRISBURG, Pa. - A school board had a common-law duty to provide a teacher with a safe work space free from asbestos, and local agencies can be held liable for such exposure where it falls within an exception to the general government immunity, a Pennsylvania appeals court held Jan. 25 (John F. Geier, executor of the estate of Marianne M. Geier and John F. Geier v. Board of Public Education of the School District of Pittsburgh v. American Art Clay Company Inc., et al., No. 625 C.D. 2016, Pa. Cmwlth.).

Mealey's Toxic Tort/Environmental - 5th Circuit Uphold Judge's Denial Of Radiology Firm's Appeal Of Rejected Claim

NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Jan. 25 affirmed a federal judge in Louisiana's decision denying a radiology firm's appeal of the denial of its claim for benefits under the Business and Economic Loss framework (BEL) of the Deepwater Horizon Economic Loss and Property Damage Settlement Agreement, finding that the firm does not own a facility under the settlement agreement (Claimant ID 100250022 v. BP Exploration & Production Inc., et al., No. 16-30258, 5th Cir.).

Mealey's Toxic Tort/Environmental - Water District: MTBE Damages Properly Disclosed; Expert Is Qualified To Testify

SANTA ANA, Calif. - A California water district filed a brief in California federal court on Jan. 25 defending the qualifications of one of its experts to testify in a groundwater contamination case involving methyl tertiary butyl ether (MTBE). The water district also contends in a separate brief that its claim for $34 million in damages "will be amply supported" by the testimony provided (Orange County Water District v. Unocal Corporation, et al., No. 03-1742, C.D. Calif.).

Mealey's Toxic Tort/Environmental - C8 Plaintiff: Damages Phases Of Trial Against DuPont Should Not Be Bifurcated

COLUMBUS, Ohio - A man who sued E.I. du Pont de Nemours and Co. for alleged injuries connected to exposure to perfluorooctanoic acid (known as C8) on Jan. 24 filed a brief in Ohio federal court arguing that every argument asserted by the company for bifurcating the compensatory and punitive damages phases of trial has previously been rejected by the court (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).