Mealey's Toxic Torts : Mealey's : Legal News & Analysis

Mealey's Toxic Torts

May 24, 2024
Magistrate Will Not Reconsider Redacted Document Ruling, Says Privilege Inapplicable

ANN ARBOR, Mich. — A federal magistrate judge on May 23 refused to reconsider a ruling in which she determined that an engineering firm that is a defendant in litigation stemming from the lead-contaminated water crisis in Flint, Mich., must provide 40 documents in response to a motion to compel compliance with a discovery order, saying that the firm did not show that the documents were protected by the attorney-client privilege.
May 24, 2024
Norfolk Southern To Pay $311M To Settle Federal Claims Over Ohio Tran Derailment

YOUNGSTOWN, Ohio — The U.S. government on May 23 lodged a proposed consent decree in Ohio federal court under which Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) agree to pay $311,175,000 to settle claims related to the release of toxic chemicals from the train derailment in East Palestine, Ohio. The payment includes a $15 million civil penalty as well as money to improve rail safety and pay for health monitoring in the community.
May 23, 2024
Plaintiff: Monsanto Is Liable For Wrongful Death From Negligence Involving Roundup

SAN FRANCISCO — The executor of an estate filed an amended complaint in California federal court on May 22 arguing that Monsanto Co. is liable for the wrongful death of a man who had cancer as the result of “negligent, willful, reckless and wrongful conduct” in the manufacturing and selling of the herbicide Roundup, which contains the active ingredient glyphosate.
May 23, 2024
BASF Corp., Water Suppliers Reach $312.5M Deal To Settle AFFF Contamination Claims

CHARLESTON, S.C. — Plaintiffs’ attorneys and BASF Corp. have released statements confirming a $312.5 million settlement to resolve water contamination claims related to per- and polyfluoroalkyl substances (PFAS), which is an ingredient in the firefighting agent known as aqueous film forming foam (AFFF), against BASF brought by public water service companies that have PFAS in their water supplies. The settlement resolves some claims in the multidistrict litigation for AFFF in South Carolina federal court.
May 22, 2024
Judge Preliminarily Approves $600M Settlement In Ohio Train Derailment Litigation

YOUNGSTOWN, Ohio — A federal judge in Ohio on May 21 granted preliminary approval to a $600 million settlement to resolve the class action against Norfolk Southern Railway Co. and Norfolk Southern Corp. (Norfolk Southern, collectively) pertaining to alleged injuries from the release of toxic chemicals at the 2023 train derailment in East Palestine, Ohio, ruling that the proposed agreement is “fair, reasonable, and adequate, entered into in good faith, and free from collusion.” A third-party lawsuit among Norfolk Southern and railcar companies continues.
May 22, 2024
Flint Bellwether Plaintiffs Insist Expert Is Qualified, Evidence Rule Satisfied

ANN ARBOR, Mich. — The Bellwether III plaintiffs in the Flint water crisis litigation filed a response brief in Michigan federal court on May 21 arguing that a pediatrician they intend to call as an expert witness is qualified to testify and that her opinions satisfy the requirements of Federal Rule of Evidence 702.
May 22, 2024
Pursuant To Consent Decree, EPA Proposes Plan To Clean Up PCBs In Spokane River

WASHINGTON, D.C. — To satisfy the terms of a consent decree it entered into with two environmental groups, the Environmental Protection Agency announced a proposed plan to reduce the amount of polychlorinated biphenyls (PCBs) in the Spokane and Little Spokane rivers by setting new total maximum daily loads (TMDLs) for PCBs.
May 21, 2024
Government: Flint FTCA Case Fails Under The Discretionary Function Exception

DETROIT — The U.S. government filed a reply brief on May 20 in Michigan federal court in support of its motion to dismiss a $722.4 million Federal Tort Claims Act (FTCA) lawsuit against it related to the lead-contaminated water crisis in Flint, Mich., arguing that the record demonstrates that policy makers at the highest level of the U.S. Environmental Protection Agency “balanced difficult and competing social, economic, environmental, public health, and federalism factors in responding to this crisis, which satisfies the second prong of the discretionary function exception.”
May 21, 2024
Operators Of Manufacturing Site Settle TCE Discharge Claims For $14 Million

HACKENSACK, N.J. — Several companies that operated a manufacturing site where trichloroethylene (TCE) and other hazardous substances were discharged into soil and groundwater agreed to settle state and federal environmental law claims brought against them by New Jersey officials for more than $14 million in a consent judgment entered in New Jersey state court.
May 20, 2024
Judge Bars Some Questions, Allows Others On Monsanto’s Knowledge Of PCBs Post-1977

BURLINGTON, Vt. — A federal judge in Vermont on May 17 ruled that Monsanto Co.’s motions to quash and for a protective order related to certain testimony in a lawsuit over polychlorinated biphenyls (PCBs) brought by a Vermont school were partially granted. The judge said that he would not bar questions pertaining to matters within the corporation’s knowledge after 1977 but that communication between Monsanto and affiliated companies about potential liability stemming from PCBs was privileged.
May 07, 2024
COMMENTARY: EPA Announces First Federal PFAS Drinking Water Standards

By Joo Cha Webb and Derek Smith
May 16, 2024
Seattle PCB Plaintiffs Object To Monsanto’s Bid For Relief From $857M Verdict

SEATTLE — The plaintiffs who won an $857 million in combined damages against Monsanto Co. for injuries from exposure to polychlorinated biphenyls (PCBs) at a Seattle area school filed a brief on May 15 in response to Monsanto’s motion for relief from the judgment, objecting to Monsanto’s attempt to obtain substantive relief by combining four distinct motions in one pleading.
May 16, 2024
Parties Say Their Roundup Case Was Wrongly Dismissed, Claims Were ‘Misunderstood’

SAN FRANCISCO — On May 15, four people who contend that the herbicide Roundup causes cancer filed an appeal brief in the Ninth Circuit U.S. Court of Appeals arguing that reversal of a lower court’s decision dismissing the case is needed because the lower court “misunderstood the claims,” which are “fundamentally different” from an exposure case.
May 15, 2024
Parties Debate Amount Of Penalty Owed In Glass Maker’s Water Pollution Case

PITTSBURGH — A glass manufacturer that is a defendant in a long-running groundwater contamination lawsuit has filed a trial brief in Pennsylvania federal court arguing that, on the record and under the law, it is not appropriate to impose any penalty on the company in excess of the $1.2 million penalty it has already paid. The same day, the environmental group bringing the case filed its trial brief contending that the court should impose a civil penalty of $50 million in excess of the economic benefit the glass maker has enjoyed as a result of its violations.
May 15, 2024
California City Sues Dow, Shell For TCP Pollution In Drinking Water Wells

LOS ANGELES — Pomona, Calif., has sued the Dow Chemical Co. and Shell USA Inc. in California federal court arguing that they are liable for groundwater contamination from 1,2,3-trichloropropane (TCP), which they “knowingly and willfully manufactured” when they knew or should have known that the toxic chemical pollutes drinking water supplies.
May 15, 2024
Judges Say Camp Lejeune Plaintiffs Not Entitled To Appeal Jury Trial Ruling

RALEIGH, N.C. — Four federal judges in North Carolina have issued a combined order and denied a bid by the plaintiffs in the Camp Lejeune water crisis litigation to certify an appeal of a decision of the U.S. District Court for the Eastern District of North Carolina denying immediate appellate review on the issue of whether the Camp Lejeune Justice Act (CLJA) authorizes jury trials for plaintiffs bringing claims under the statute.
May 14, 2024
Judge Threatens Sanctions Related To Verbal Attacks On Flint Plaintiffs’ Counsel

ANN ARBOR, Mich. — A federal judge in Michigan on May 13 ruled that she will impose sanctions on an engineering firm that is a party to the $25 million class settlement in the Flint, Mich., lead-contaminated water litigation and will refer its attorney to the State Bar of California for disciplinary reasons if the firm fails to comply with an order the judge issued previously requiring the firm to answer questions about its relationship with a public relations company that has been engaged in verbal attacks against a plaintiff attorney.
May 13, 2024
Jury Awards $725.5M To Couple Suing ExxonMobil For Injuries From Benzene Exposure

PHILADELPHIA — A Pennsylvania state court jury has awarded a man with cancer and his wife $725.5 million against ExxonMobil Corp. for injuries related to exposure to benzene the husband says occurred while he worked at gas stations in New York and Pennsylvania.
May 13, 2024
Quartz Countertop Defendant Denies Claims, Says Alleged Injury ‘An Act Of God’

SANTA ANA, Calif. — One of several defendants sued by workers who say they developed pulmonary injuries from exposure to crystalline silica while cutting stone countertops has filed an answer in California state court, denying all allegations on grounds that the plaintiffs fail to state a claim and asserting 97 affirmative defenses, including that “all injuries, losses or damages” were the result of “an unavoidable incident or condition and, as such, were an act of God.”
May 10, 2024
Plaintiffs Seek Rehearing En Banc In Cancer Cluster Case, Raise Daubert Issues

ATLANTA — Plaintiffs on May 9 filed a petition for rehearing en banc in the 11th Circuit U.S. Court of Appeals, arguing that a panel of the 11th Circuit overlooked “express misstatements of law” in the lower court’s verdict form that caused jury confusion, particularly related to the admissibility of expert opinion under the standard set in Daubert v. Merrell Dow Pharmaceuticals Inc., which resulted in a defense verdict in a cancer cluster lawsuit.
May 09, 2024
Harvard University Says 3M’s Bid To Add It To PFAS Case Is ‘Substantively Infirm’

BOSTON — Harvard University filed a brief in Massachusetts federal court on May 8 arguing that it should not be added as a party to a lawsuit alleging drinking water contamination from per- and polyfluoroalkyl substances (PFAS), saying that the 3M Co.’s attempt to do so is “procedurally and substantively infirm.”
May 09, 2024
Kimberly-Clark Seeks Dismissal Of ‘Illogical’ Claims It Caused PFAS Contamination

NEW HAVEN, Conn. — Kimberly-Clark Corp. has moved in Connecticut federal court to dismiss a putative class action on grounds that the plaintiffs’ allegations that the company is the source of per- and polyfluoroalkyl substances (PFAS) contamination in the local groundwater supply are “illogical and contradictory on their face.”
May 09, 2024
11th Circuit Denies Monsanto’s Bid For Rehearing En Banc In Roundup Labeling Case

ATLANTA — The 11th Circuit U.S. Court of Appeals on May 8 issued a one-paragraph order denying Monsanto Co.’s second petition for hearing en banc in a long-running dispute over the labeling of the herbicide Roundup and the preemption provision of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The Circuit Court said no judge in regular active service on the court requested that the court be polled on the petition.
May 08, 2024
COMMENTARY: A Primer On PFAS/Forever Chemical Claims: Regulation, Litigation, Large Losses & Insurance Coverage Issues

By Scott M. Seaman and Gar N. Lauerman
May 08, 2024
Insurers Say Coverage Barred In AFFF PFAS Cases Because Harm Arises Out Of ‘Waste’

CHARLESTON, S.C. — A group of insurers has filed a sur-reply brief in South Carolina federal court arguing that the majority of lawsuits against a maker of the firefighting agent known as aqueous film forming foam (AFFF), for which the insurers are being asked to provide coverage, allege harm arising out of “waste,” rather than harm associated with a product put to its intended use, and, therefore, coverage is not owed.