LexisNexis® Legal Newsroom
Mealey's Toxic Tort/Environmental - Place Of Injury Dictates Applicable State Law, Federal Judge Says

BOSTON - While some factors weigh in favor of applying Massachusetts law to an asbestos wrongful death action, the fact that the injury occurred in Maine, a state where the defendant enjoyed a longstanding relationship, warrants applying the latter state's laws, a federal judge in Massachusetts held May 9 (Ruth Burleigh, et al. v. Alfa Laval Inc., et al., No. 16-11030, D. Mass., 2018 U.S. Dist. LEXIS 77891).

Mealey's Toxic Tort/Environmental - Washington County Says Oil Companies Withheld Dangers Of Climate Change

SEATTLE - A Washington county on May 8 sued five oil companies in state court, contending that they "borrowed the Big Tobacco playbook" when failing to disclose that the burning of fossil fuels is linked to global warming and climate change that has adversely affected public and private property (King County v BP Plc., et al., No. n/a, Wash. Super., King Co.).

Mealey's Toxic Tort/Environmental - Expert Can Offer Limited Testimony On Impacts Of Sediment Runoff, Judge Says

GULFPORT, Miss. - A coastal services professor designated as an expert for an environmental group claiming that a contractor's road construction project is violating the Clean Water Act by disposing of excessive amounts of sediment in the Biloxi Back Bay can offer limited testimony regarding how the sediment flows from the project to the waterway, a federal judge in Mississippi ruled May 9, finding that the some of his opinions were based on inadequate data (Gulf Restoration Network v. Oscar Renda Contracting Inc., No. 17CV130-LG-RHW, S.D. Miss., 2018 U.S. Dist. LEXIS 77907).

Mealey's Toxic Tort/Environmental - JPMDL Transfers Cases Against DuPont To C8 Injury MDL, For A Total Of 3,423

WASHINGTON, D.C. - The Judicial Panel on Multidistrict Litigation (JPMDL) on May 10 transferred seven cases to the multidistrict litigation in the U.S. District Court for the Southern District of Ohio (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 - 2nd Circuit Vacates Reinsurer's Judgment On Liability Cap For Asbestos Litigation Costs

NEW YORK - In a coverage dispute over asbestos litigation costs, the Second Circuit U.S. Court of Appeals on May 9 vacated a lower court's entry of summary judgment for a reinsurer and remanded for reconsideration of the reinsurance contracts applying a New York high court ruling on the per-occurrence liability cap (Global Reinsurance Corporation of America v. Century Indemnity Co., No. 15-2164, 2nd Cir., 2018 U.S. App. LEXIS 12121).

Mealey's Toxic Tort/Environmental - Company: Groundwater Ruling Should Not Be Reconsidered; Groups Lack Standing

TRENTON, N.J. - NL Industries Inc. on May 7 filed a supplemental brief in New Jersey federal court arguing that the court should deny environmental groups' motion for reconsideration of its prior ruling that they failed to produce sufficient evidence to show that NL and other companies violated the Clean Water Act (CWA) when they discharged pollutants in levels that exceeded federal permits and contaminated local groundwater (Raritan Baykeeper, et al. v. NL Industries Ind., et al., No. 09-4117, D. N.J.).

Mealey's Toxic Tort/Environmental - Texas Panel Reverses $6.98M Benzene Ruling, Says Causation 'Legally Insufficient'

DALLAS - A Texas appellate panel on May 8 reversed a trial court judgment of $6,985,535.25 and rendered a take-nothing judgment in favor of E.I. DuPont de Nemours and Co. after the panel determined that the evidence of causation regarding the company's liability for a man's cancer diagnosis related to benzene exposure was "legally insufficient" (E.I. DuPont de Nemours & Company v. Virgil Hood, et al., No. 05-16-00609-CV, Texas. App., 5th Dist.; 2018 Tex. App. LEXIS 3228).

Mealey's Toxic Tort/Environmental - Florida Panel Sides With Tobacco Plaintiff, Upholds $20 Million Award

WEST PALM BEACH, Fla. - In a May 9 ruling, Florida's Fourth District Court of Appeal rejected efforts by R.J. Reynolds Tobacco Co. to undo a $20 million punitive damage award issued by jurors to the widower of a smoker who died from chronic obstructive pulmonary disease (COPD) (R.J. Reynolds Tobacco Co. v. Alan Konzelman, No. 4D16-4310, Fla App., 4th Dist.).

Mealey's PI/Product Liability - Panel 'Regretfully' Finds Suit Over Lieutenant's Death Is Barred By Feres Doctrine

SEATTLE - The Ninth Circuit U.S. Court of Appeals on May 7 affirmed a lower court's finding that a tort lawsuit brought against the United States for the death of a Navy lieutenant due to a complication following childbirth is barred by the jurisdictional bar recognized in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), noting that "if ever there were a case to carve out an exception to the Feres doctrine, this is it," but only the U.S. Supreme Court has the tools to do that (Walter Daniel v. United States, No. 16-35203, 9th Cir., 2018 U.S. App. LEXIS 11862).

Mealey's Toxic Tort/Environmental - Co-Liaison Counsel In Flint Water Case: Class Counsel Should Be Removed

DETROIT - The co-liaison counsel that represents some of the individual plaintiffs in the lead-contaminated water crisis lawsuit brought against the city of Flint, Mich., on May 7 filed a reply brief in Michigan federal court contending that joint representation of the class and thousands of individuals constitutes a conflict of interest that supports removal of the co-lead class counsel (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Mealey's Toxic Tort/Environmental - Agency Amends Beryllium Exposure Rule, Adopts General Industry Standard

WASHINGTON, D.C. - The U.S. Department of Labor (DOL) on May 7 amended its final rule adopting a comprehensive general industry standard for exposure to beryllium and beryllium compounds.

Mealey's Toxic Tort/Environmental - Subcontractor Waived Argument Over Jurisdiction In Defects Suit, Panel Finds

ST. PAUL, Minn. - A subcontractor accused of construction defects waived its argument that it was not properly served with a third-party complaint by a general contractor and an amended complaint from a homeowners association, a Minnesota Court of Appeals panel ruled May 7, holding that the subcontractor waived its argument because it did not pursue it as a means to dismiss the actions (Village Homes of Grandview Square II Association, et al. v. R.E.C. Inc., et al., No. A17-1747, Minn. App., 2018 Minn. App. Unpub. LEXIS 342).

Mealey's Toxic Tort/Environmental - Appeals Court Agrees Couple's Suit Over Roof Trusses Is Time-Barred

SPOKANE, Wash. - A couple could have determined that the trusses installed on their custom-built home were defective in 2007 after receiving the engineer-stamped designs, a Washington appeals court ruled May 8, upholding a trial court's decision that the plaintiffs' breach of warranty and Washington Consumer Protection Act (CPA) claims were barred by the four-year statute of limitations (Terry Schilling, et al. v. ProBuild Co. LLC., et al., No. 34435-5-III, Wash. App., 3rd Div., 2018 Wash. App. LEXIS 1102).

Mealey's Toxic Tort/Environmental - Some Claims For Groundwater Contamination May Proceed Against New GM, Judge Says

NEW YORK - A judge in the U.S. Bankruptcy Court for the Southern District of New York on May 4 partially granted an injunction sought by debtor General Motors LLC, known as New GM, and concluded that some groundwater contamination claims asserted by Michigan residents could proceed, but only with regard to assumed liability for compliance with statutory based environmental laws for violations that occurred after the bankruptcy asset sale (In re: Motors Liquidation Company, f/k/a General Motors Corp., et al., No. 09-50026, Chapter 11, S.D. N.Y. Bkcy.).

Mealey's Toxic Tort/Environmental - 4th Circuit Upholds Shipping Companies' Convictions Over Illegal Discharges

RICHMOND, Va. - A Fourth Circuit U.S. Court of Appeals panel on May 7 affirmed the convictions of two shipping companies accused of being vicariously liable for the two head crew members' obstruction of justice, failure to accurately maintain a ship's Oil Record Book and making false statements to the U.S. Coast Guard because the employees were acting on behalf of the companies and because the companies were aware that the Oil Record Book was not being maintained accurately (United States of America v. Oceanic Illsabe Ltd., No. 17-4061, United States of America v. Oceanfleet Shipping Ltd., No. 17-4062, 4th Cir., 2018 U.S. App. LEXIS 11877).

Mealey's Toxic Tort/Environmental - Dismissal Of Man's Clean Water Act Suit Upheld By 4th Circuit

RICHMOND, Va. - A federal judge in Maryland did not err when dismissing a man's lawsuit accusing a funeral home of allegedly violating the Clean Water Act (CWA) by not obtaining the required permit, a Fourth Circuit U.S. Court of Appeals panel ruled May 7, finding that the plaintiff's only sufficient allegation was based on a past violation that cannot form the basis of a CWA citizen suit because the defendant obtained a permit before the suit was filed (Alan J. Schneider v. Donaldson Funeral Home P.A., et al., No. 17-1183, 4th Cir., 2018 U.S. App. LEXIS 11884).

Mealey's Toxic Tort/Environmental - Attorneys Debate Flint Water Crisis Retaliation Claims At 6th Circuit

CINCINNATI - Attorneys for the city of Flint, Mich., and those for the woman who was formerly the city administrator before she became a whistleblower presented arguments on May 4 before the Sixth Circuit U.S. Court of Appeals debating the validity of the woman's claim for retaliation under the Michigan Whistleblowers Protection Act (WPA), and the U.S. Constitution (Natasha Henderson v. Flint, Mich., No. 17-2031, 6th Cir.).

Mealey's Toxic Tort/Environmental - Litigation Group Warns Of Impact From Punitive Damage, Asbestos Negligence Ruling

AUSTIN, Texas - An appellate court's ruling in an asbestos case blurs the line between negligent conduct and conduct warranting punitive damages and threatens to send employees into the tort system, an amicus curiae group tells the Texas Supreme Court in a May 3 brief (The Goodyear Tire & Rubber Co. v. Vicki Lynn Rogers, et al., No. 18-0056, Texas Sup.).

Mealey's Toxic Tort/Environmental - FDA Tells D.C. Circuit: Deeming Rule Within Agency's Discretion

WASHINGTON, D.C. - A District of Columbia federal judge did not err in rejecting assertions by an e-cigarette manufacturer that the U.S. Food and Drug Administration should have taken a different approach to the premarket review of new e-cigarettes, the agency tells the District of Columbia Circuit U.S. Court of Appeals in a May 2 brief (Nicopure Labs LLC v. U.S. Food and Drug Administration, No. 17-5196, D.C. Cir.).

Mealey's Toxic Tort/Environmental - Justice: Notice's 1973 Allegations Can't Cover Late-1970s Asbestos Exposures

NEW YORK - A woman's notice of asbestos exposure occurring "approximately" in 1972 and 1973 while working at a Port Authority of New York & New Jersey airport cannot be stretched to cover the late-1970s exposures described in deposition testimony, a New York justice held in an opinion posted May 2 (Tatjana Pogacnik, et al. v. A.O. Smith Water Products Co., et al., No. 190340/2015, N.Y. Sup., New York Co., 2018 N.Y. Misc. LEXIS 1522).

Mealey's Toxic Tort/Environmental - Pipeline Company To Pay $1.9M For Violating Consent Decree

DETROIT - A Canadian pipeline company on May 2 agreed to pay $1.9 million for violating the terms of a $177 million agreement entered in 2016 that required the company to allow the U.S. Environmental Protection Agency to inspect one of its pipelines to ensure that it complies with the Pipeline and Hazardous Materials Safety Administration's standards (United States v. Enbridge Energy L.P., et al., No. 16-cv-914, W.D. Mich.).

Mealey's Toxic Tort/Environmental - 5th Circuit: Warnings, Safety Measures Not Covered By Navy Asbestos Contract

NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on May 1 once again affirmed that claims involving workplace warnings and safety measures fall outside the scope of U.S. Navy contracts requiring the use of asbestos and affirmed remand of an asbestos case (Robert J. Templet Sr. v. Huntington Ingalls Inc., et al., No. 17-30676, 5th Cir., 2018 U.S. App. LEXIS 11214).

Mealey's Toxic Tort/Environmental - R.J. Reynolds Rehearing Request Rejected In Appeal Of $7.5 Million Verdict

ATLANTA - In a May 3 order, the 11th Circuit U.S. Court of Appeals denied a motion for panel rehearing or rehearing en banc by R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. of a recent affirmance by the court of a $7.5 million verdict in an Engle progeny suit (Pauline Burkhart v. R.J. Reynolds Tobacco Co., et al., No. 14-14708, 11th Cir., 2018 U.S. App. LEXIS 11579).

Mealey's Toxic Tort/Environmental - Frustrated Federal Judge Won't Reconsider Daubert Ruling Excluding Asbestos Expert

MILWAUKEE - A plaintiff's "deluge" of nearly 2,000 pages of documents in support of a "second kick at the cat" raises no new evidence warranting reconsideration of a Daubert ruling, but rather seems to be an attempt to overwhelm the court with paper in hopes it simply gives in, a federal judge in Wisconsin held May 2 in excluding an asbestos expert (Beverly Ahnert, et al. v. Brand Insulation Inc., et al., Nos. 10-156, 13-1456, E.D. Wis.).

Mealey's Toxic Tort/Environmental - California Jury Awards $6.8M In Asbestos Plastic Cement Case

ALAMEDA, Calif. - A California jury on May 2 awarded $6,811,189 in a former freelance construction worker's asbestos case, finding gun plastic cement manufacturer Amcord Inc. 20 percent liable for a man's mesothelioma (Kenneth Kramer v. 3M Co., No. RG16799603, Calif. Super., Alameda Co.).