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from MEALEY'S Emerging Toxic Torts November 3, 2003 4th Circuit Panel Affirms Cell Phone Cancer Opinion Exclusion Satisfies Daubert RICHMOND, Va. -- A unanimous Fourth Circuit U.S. Court of Appeals panel said Oct. 22 that excluding evidence of a link between cellular phone use and brain cancer was not an abuse of discretion (Christopher J. Newman, et uxor v. Motorola Inc., et al., No. 02-2424, 4th Cir.). In an unsigned per curiam opinion, the panel said U.S. Judge Catherine C. Blake of the District of Maryland did not err when she excluded epidemiologist Lennart Hardell, M.D., after finding that his proposed testimony lacked relevance and reliability (No. 00-2609). (Opinion. Document #15-031103-101Z.) The most significant weakness of Hardell's testimony was that his research "fails to show that users of cellular phones face an increased risk of developing malignant brain tumors," the panel said. Hardell concluded that cell phone use increases the risk of developing brain tumors in general. But he reached that conclusion only after including the occurrence of benign acoustic neurinomas in his research. "The district court questioned the relevance of research linking the use of cellular phones to the development of acoustic neurinomas because [plaintiff] Dr. [Christopher J.] Newman does not have an acoustic neurinoma; he has a malignant astrocytoma," the panel said. Judge Blake also questioned the reliability of Hardell's research "because it failed to demonstrate a dose-response relationship; that is, it failed to show that with a greater use of cellular phones, a person faces a greater risk of developing a tumor," the panel said. "Showing a dose-relationship is, as Dr. Hardell agreed, an important factor in establishing causation," it said. Judge Blake ruled in September 2002 that Hardell did not meet the Daubert standard for admission. The defendants were granted summary judgment in October 2002. Newman, a neurologist, alleged in his complaint that he used his cell phone 343 hours between October 1992 and when he was diagnosed with a malignant astrocytoma in March 1998, according to the record. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S LITIGATION REPORT: Asbestos November 3, 2003 Louisiana Appeals Court Overturns Asbestos Judgment In Favor Of Premises Owner NEW ORLEANS -- In a divided opinion, a Louisiana appeals court on Oct. 1 overturned a ruling in favor of a premises owner after finding that genuine issues remain as to whether the owner should have known about the dangers of asbestos in its buildings (Mamie Jefferson v. Cooper/T. Smith Corp., et al., No. 2002-CA-2136, La. App., 4th Cir.; 2003 La. App. LEXIS 2878). (Opinion. Document #01-031103-102Z.) Edward Jefferson died from mesothelioma after years of working as a longshoreman along the Mississippi River in New Orleans. His wife, Mamie Jefferson, sued multiple defendants, including Cooper/T. Smith Stevedoring Co., her husband's employer, in the Orleans Parish Civil District Court. She later amended the petition to add the Port of New Orleans, which owned the premises where some of the decedent's exposure occurred. Jefferson contended that the port had knowledge of the hazards of asbestos, knowledge of unsafe handling practices, knowledge of repacking asbestos products and knowledge of actual hazardous asbestos atmosphere but did not warn anyone or remedy the problems. The port moved for summary judgment, which the trial court granted. Jefferson appealed to the Fourth Circuit Louisiana Court of Appeal. Judge Leon A. Cannizzaro Jr. wrote for the majority that the control of all cargo stored on the premises remained with the various companies leasing space but as owner or operator of the facility, the port has a duty to exercise reasonable care for the safety of people on its premises and a duty to not expose them to unreasonable risks of injury or harm. The majority continued that genuine issues of material fact exist as to whether the port knew or should have known of the dangers posed by asbestos, whether it knew or should have known the facilities were inadequate for handling and storing asbestos and whether it could have refused hazardous cargo. Because the resolution of some or all of these unresolved issues is essential to Jefferson's negligence or strict liability cause of action, summary judgment should not have been granted, the majority said. Judge Joan Bernard Armstrong dissented, saying she would have affirmed the trial court decision. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc. All Rights Reserved. This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S LITIGATION REPORT: Lead November 5, 2003 Chicago Will Appeal Dismissal Of Nuisance Claim Against Lead Industry CHICAGO -- The City of Chicago said Oct. 8 it would "definitely" appeal a state court judge's dismissal of its lawsuit against the former makers of lead paint (City of Chicago v. American Cyanamid Co., et al., No. 02CH16212, Ill. Cir., Cook Co., Chanc. Div.). (Opinion. Document #14-031105-101Z.) Cook County Chancery Court Judge Nancy J. Arnold dismissed the case Oct. 7, saying the lawsuit "does not allege a causal connection to any particular injury to any particular city resident." The city sued American Cyanamid Co., Atlantic Richfield Co., BP Corporation North America Inc., BP America Inc., ConAgra Foods Inc., ConAgra Grocery Products Company, E.I. du Pont de Nemours & Co., Millennium Chemicals Inc., Millennium Inorganic Chemicals Inc., NL Industries Inc., The Sherwin-Williams Co. and the Chicago Paint & Coatings Association, alleging public nuisance because of lead paint in old housing stock throughout the city. The city sought monetary damages to compensate it for unidentified costs associated with remediating the nuisance of lead paint and punitive damages. The defendants contended that Illinois courts had "squarely" rejected complaints such as the city's that seek to impose tort liability without identifying a defendant or the product that allegedly caused injury to the plaintiff. Moreover, the defendants maintained that the city's claim does not fit within the boundaries of Illinois public nuisance law, instead of being a product liability claim targeting the manufacturers of lead paint based on injuries arising decades after the paint has been used and allowed to deteriorate by others. "In the present case, the city has deliberately framed its case as a public nuisance action rather than a product liability suit in an attempt to imitate the recent success of two cases in which the appellate court allowed public nuisance claims to proceed against a group of manufacturers of handguns," Judge Arnold said. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S Pollution Liability Report October 13,
2003 PHILADELPHIA -- The Third Circuit U.S. Court of Appeals on Sept. 16 reversed and remanded a ruling in favor of pipeline company sued for contribution to the cleanup of mercury contamination at a New Jersey Superfund site. The court left it to the lower court to decide if a customer could be held liable as an arranger for shipping mercury to a plant to be processed (Morton International Inc., et al. v. A.E. Staley Manufacturing Co., et al., No. 01-4259, 3rd Cir.; 2003 U.S. App. LEXIS 19152). (Opinion. Document #08-031013-103Z.) Morton International Inc. appealed the granting of summary judgment to Tennessee Gas Pipeline Co. (Tenneco) in a suit seeking contribution toward environmental cleanup costs at the Ventron/Velsicol Superfund site in Wood Ridge, N.J. Between 1929 and 1974, a mercury processing plant was operated at the Wood Ridge site. Among other operations, the plant cleaned mercury that had been contaminated and turned it into intermediate compounds. F.W. Berk & Co. owned the plant until 1960, when it transferred it to Wood Ridge Chemical Corp., which transferred the plant to Ventron Corp. The plant closed in 1974, and Ventron merged into Thiokol, which merged into Morton. Tenneco purchased red and yellow oxides of mercury from 1963 until the early 1970s. The New Jersey Department of Environmental Protection sued Ventron, Morton and other defendants for cleanup and removal of mercury at the site in the 1970s. Morton was held strictly liable, jointly and severally, for cleanup at the site. After the enactment of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) in 1980, the property was listed as a Superfund site. As the owner of the property, Morton was required to perform a remedial investigation/feasibility study at the site. Morton sued Tenneco and numerous other defendants in 1996 for contribution under CERCLA and the Resource Conservation and Recovery Act (RCRA). The District Court denied the motion regarding CERCLA but agreed to dismiss the RCRA claim. On a renewed motion for summary judgment, the court ruled in favor of Tenneco on all claims. On appeal, Morton argued that Tenneco should be held responsible for some of the cleanup costs under CERCLA's "arranged for" provision, Section 107(a)(3), because Tenneco had arranged for the processing of mercury at the plant for years. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S LITIGATION REPORT: Tobacco October 27, 2003 Arkansas Federal Judge Reinstates $15 Million Punitive Award In Tobacco Case LITTLE ROCK, Ark. -- Reversing a previous ruling that punishing a tobacco company for successor liability does not act as a deterrent to future conduct, an Arkansas federal judge on Sept. 15 reinstated a $15 million punitive damage award (Henry W. Boerner, et al. v. Brown & Williamson Tobacco Co., No. 98-427, E.D. Ark.). (Plaintiff Motion to Amend Judgment and Opposition. Document #04-031027-114B. Orders Ruling on Motion for Rehearing, Substituting Judgment, and Staying Execution Pending Appeal. Document #04-031027-115R.) Mary Boerner sued Brown & Williamson Tobacco Co. in 1998, alleging that it failed to warn her that Pall Mall cigarettes were hazardous and that a product defect caused her lung cancer. She died in 1999, and her husband, Henry, prosecuted the claims as administrator of her estate. Before trial, U.S. Judge James M. Moody of the Eastern District of Arkansas denied B&W's motion as a matter of law on the failure to warn claim and reserved decision on the defective design claim. Both claims were submitted to the jury. On May 23, the jury found in favor of B&W on the failure to warn claim. However, the jury found in favor of Boerner on the defective design claim. The jury awarded $500,000 on Boerner's loss of consortium claim, $1 million on Boerner's mental anguish claim, $25,000 on the mental anguish claim for family member Gary Boerner and $2.5 million to the estate. Additionally, the jury awarded Boerner $15 million in punitive damages. On July 3, the judge vacated the $15 million punitive damages award, reasoning that punishing a tobacco company for successor liability does not act as a deterrent to future conduct. On July 27, Boerner filed a motion for rehearing and to amend the final judgment, noting that the Arkansas statute at issue is Arkansas Code Annotated Section 4-26-1005(b)(6). (Additional documents available: Order denying B&W's motion for new trial on compensatory damages. Document #04-031027-016R. Motion for new trial. Document #04-031027-017M.) Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S LITIGATION REPORT: MTBE October 10, 2003 New Hampshire Alleges Doctrine Creates Standing To Sue In MTBE Case CONCORD, N.H. -- New Hampshire accuses the gasoline industry in a Sept. 30 complaint of introducing MTBE into the stream of commerce knowing that it would be released into the environment and would interfere with the state's "interest in protecting and preserving surface and groundwaters" (New Hampshire v. Amerada Hess Corp., et al., No. 03-C-550, N.H. Super., Merrimack Co.). Some 22 refiners, retailers and wholesalers are accused of threatening the public health and welfare by marketing gasoline with MTBE in New Hampshire. The state alleges that the industry is strictly liable for creating a public nuisance and for causing the discharge of MTBE into the waters of the state. (Complaint. Document #40-031010-101C.) The state alleges negligence and unfair and deceptive business practices. Contamination of the waters of New Hampshire "constitutes an injury to the environment and to property held in trust," the state says. The state seeks damages for the injury "in its capacity as parens patriae." New Hampshire argues that the attorney general is expressly authorized to file legal or equitable action to recover remediation costs and civil penalties related to the discharge of petroleum products of any kind under New Hampshire Revised Statutes Annotated (RSA) 146-A:9 and RSA 146-G:3. The suit names Amerada Hess Corp., ChevronTexaco Corp., Chevron U.S.A. Inc., Citgo Petroleum Corp., ConocoPhillips Co., El Paso Merchant Energy-Petroleum Co., ExxonMobil Corp., ExxonMobil Oil Corp., Gulf Oil Limited Partnership, Irving Oil Corp., Lyondell Chemical Co., Motiva Enterprises, Shell Oil Co., Statoil Marketing and Trading (US) Inc., Sunoco Inc., Texaco Refining and Marketing Inc., Ultramar Energy Inc., Ultramar Energy Ltd., Unocal Corp., Valero Energy Corp. and Valero Marketing and Supply Co. as defendants. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S LITIGATION REPORT: Mold October 13, 2003 Maine High Court Says Mold, Carbon Monoxide Claims Not Time-Barred PORTLAND, Maine -- The Maine Supreme Judicial Court on Sept. 16 ruled that a student's personal injury claims stemming from mold and carbon monoxide exposure are not time-barred, citing recent amendments in state legislation (Patricia McLaughlin o/b/o Joseph McLaughlin v. Superintending School Committee of Lincolnville, No. Wal-02-674, Maine Sup.; 2003 Me. LEXIS 128). (Opinion. Document #42-031016-101Z.) Patricia McLaughlin is the next best friend to her grandson Joseph, who enrolled in Lincolnville Central School in November 1995, in his first-grade year. During his third-grade year, Joseph began to complain of various health problems, including persistent headaches, confusion, memory loss, back pain, muscle weakness and fatigue. In the fourth and fifth grades, Joseph developed problems with his motor skills, including the inability to hold and use a pencil. In April 2000, a routine indoor air quality assessment revealed the presence of mold contamination and carbon dioxide levels above recommended levels. The assessments were disclosed to the media and the public at a public meeting that evening. After the disclosure of the air quality results, McLaughlin removed Joseph from the Lincolnville School. The school held a third public meeting in May 2000 and provided the public with presentations from various officials, including the Maine Department of Education and the Maine Pesticide Board. McLaughlin filed a notice of claim to the school in November 2000, as required by the Maine Tort Claims Act (MTCA). In March 2001, McLaughlin sued the Superintending School Committee of Lincolnville, and the school moved for summary judgment. The Waldo County Superior Court granted summary judgment to the school after finding that McLaughlin failed to comply with the 180-day notice requirement of the MTCA and that the September 2001 amendments to 14 Maine Revised Statutes Annotated Section 8107(2) (2003) did not extent the deadline for her notice of the claim. However, the Supreme Judicial Court decided that the amendment to Section 8107 extended the deadline for McLaughlin's notice of claim. The high court reasoned that the amendment provides that a minor whose statute of limitations has not run out by the effective date of the act would have 180 days after attaining 18 years of age to give notice of an action and two years after attaining 18 years of age to bring the action. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S Asbestos Bankruptcy Report November 5, 2003 3rd Circuit Judge Issues Stay Of Proceedings In Owens Corning Bankruptcy Case PHILADELPHIA -- A Third Circuit U.S. Court of Appeals judge on Oct. 30 issued an order halting proceedings in Owens Corning's Chapter 11 case until the Third Circuit rules on a petition asking it to recuse the judge presiding over Owens Corning's bankruptcy proceedings (In re: Kensington International Limited and Springfield Associates LLC, No. 03-4212, 3rd Cir.; In re: Owens Corning, No. 00-03837, D. Del. Bkcy.). (Order available. Document #48-031105-025R. Motion to Recuse. Document #48-031105-101M.) Judge Julio M. Fuentes stayed all substantive proceedings in Owens Corning's bankruptcy case in the U.S. Bankruptcy Court for the District of Delaware, effective 12 p.m. Oct. 30. The judge said the stay will remain effective until the Third Circuit rules on a petition filed by certain creditors seeking to force U.S. District Judge Alfred M. Wolin to step down from overseeing Owens Corning's bankruptcy proceedings. Judge Fuentes set a Nov. 6 deadline for objections to the petition. The recusal motion was sought by creditors Kensington International Ltd. and Springfield Associates LLC in Delaware Bankruptcy Court on Oct. 10. The creditors allege that court-appointed advisers C. Judson Hamlin and David R. Gross, in their capacity to advise Judge Wolin on the Owens Corning case and four other cases under his direction, including In re: G-I Holdings Inc. (No. 01-30135, D. N.J. Bkcy.), have a conflict of interest because they also represent future asbestos personal injury claimants with cases against debtors under Judge Wolin's direction. The creditors contend that this "dual role" by the advisers casts a shadow on Judge Wolin's impartiality to oversee the cases in an unbiased manner. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________ from MEALEY'S LITIGATION REPORT: Silica October 24, 2003 Minnesota Supreme Court Set To Review Gray Silica Case MINNEAPOLIS -- The Minnesota Supreme Court is set to review the applicability of the sophisticated purchaser defense to sand suppliers in silica cases (Lawrence B. Gray v. Badger Mining Corp., No. C4-02-2052, Minn. Sup.). The court granted review of a July Minnesota Court of Appeals decision holding that the defense is valid in nonpharmaceutical contexts. (Order available. Document #62-031024-006R.) After working more than 40 years at the Smith Foundry in Minneapolis, Lawrence B. Gray developed silicosis, allegedly resulting from exposure to silica and anthracite dust. He sued Badger Mining Corp. and others, but Badger became the only remaining defendant after the others settled. Gray alleged negligence and strict liability for failure to warn of the hazards associated with silica exposure and breach of warranties of merchantability and fitness for intended purpose. Badger moved for summary judgment based on the sophisticated purchaser defense. Smith knew of the perils of exposure to silica and assumed a duty to warn him of the potential for contracting silicosis because of its special relationship with him as an employee. The trial court denied the motion, after which Badger stipulated to entry of judgment as to liability and damages, with the amount to be determined pending Badger's appeal of the summary judgment denial. Reversing on appeal, the Minnesota Court of Appeals panel noted that the trial court had followed the Court of Appeals' guidance in Todalen v. U.S. Chem. Co. (424 N.W.2d 73 [Minn. App. 1988]), which distinguished use of the sophisticated purchaser defense in a pharmaceutical setting from use in an industrial one, holding a chemical supplier liable for failure to warn. Todalen was distinguishable, however, the panel said, because the employee in that case was misusing the product, the chemical was contained in drums that could have carried warning labels and the employee handled the drums directly; Gray, by contrast, was using Badger's sand, which was shipped in bulk without a container on which to affix a label, for its intended purpose and never received or unloaded the sand. The foundry was a sophisticated purchaser of the sand and, as such, assumed the duty to warn Gray of the hazards associated with its use, the panel concluded. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
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