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Showing 24 posts by Eric L. Klein.

Pennsylvania Federal Court Applies Expanded “Take-Home” Toxic Tort Liability

A Pennsylvania federal court applied a New Jersey Supreme Court opinion expanding the scope of potential workplace-exposure liability and allowed a beryllium exposure case to move forward. Schwartz v. Accuratus Corp., No. 12-cv-06189 (E.D. Pa. March 30, 2017).  As previously reported, the New Jersey Supreme Court held that an employer may be liable for toxic exposures not just to the spouse of an employee, but potentially to people with more attenuated relationships as well.  Under some circumstances, the so-called “take-home” liability of an employer may extend to people with whom an employee may live with or interact with regularly. Read More ›

Pennsylvania Federal Court Vacates Jury Award, Orders New Trial in Tort Lawsuit Against Natural Gas Producer

Illustrating the importance of expert testimony in establishing a factual basis for private nuisance claims and damages in tort actions, a Pennsylvania federal judge vacated a $4.24 million jury verdict and granted a new trial in a case about alleged contamination from natural gas production operations. See Ely v. Cabot Oil & Gas Corp., Civil No. 3:09-CV-2284 (M.D. Pa. Mar. 31, 2017) Read More ›

North Carolina Legislature Limits Nuisance Lawsuits, Reducing Potential Liability for Hog Farming Industry

Overriding a gubernatorial veto, on May 11 the North Carolina legislature significantly limited the liability of hog farms in any future nuisance lawsuits. See 2017 N.C. Sess. Laws 11. The new law caps the compensatory damages that may be awarded to a plaintiff bringing a private nuisance action to either the reduction in fair market value of a property, if the nuisance is permanent, or to the diminution of the property’s fair rental value, if the nuisance is temporary. Read More ›

New York Municipality Not Immune in Negligent Lead Abatement Suit

Illustrating the limits on the governmental immunity defense, a New York appeals court denied summary judgment to the City of Buffalo and City of Buffalo Urban Renewal Agency in a lead paint abatement negligence suit.  See Moore v. Del-Rich Properties, Inc., No. 16-02130, 2017 WL 2604503 (N.Y. App. Div. June 16, 2017). Read More ›

Iowa Supreme Court Upholds Class Certification in Corn Mill Nuisance Suit

Endorsing a degree of flexibility in devising classes in nuisance suits, the Iowa Supreme Court permitted the certification of a two-tier class action in a nuisance suit filed against the owner of a corn milling plant by nearby residents.  See Freeman v. Grain Processing Corp., 895 N.W.2d 105 (Iowa 2017).  Read More ›

D.C. Circuit Invalidates Part of the RCRA Definition of “Solid Waste,” Altering the Regulatory Framework for Recycling of Hazardous Secondary Materials

On July 7, 2017, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or the “Court”) issued a decision invalidating two key elements of the regulatory definition of solid waste under the Resource Conservation and Recovery Act (“RCRA”), as amended by the U.S. Environmental Protection Agency (“EPA” or the “Agency”) in 2015, and rejecting efforts to impose additional conditions on existing exclusions in the hazardous waste program.  See American Petroleum Institute v. EPA, 2017 WL 2883867, No. 09-1038 (D.C. Cir.); 80 Fed. Reg. 1694 (January 13, 2015) (EPA’s “Final Rule” revising the definition of solid waste). The definition is a cornerstone of the RCRA hazardous waste regulatory program, inasmuch as it specifies when recyclable materials may be classified as solid wastes and thus potentially hazardous wastes subject to the hazardous waste regulatory program promulgated by EPA under RCRA Subtitle C.  The Court decision upends a significant part of the RCRA regulatory scheme, has broader implications for the hazardous waste program and beyond, and creates implementation issues at the federal and state level that will likely take years to sort out.  Don Patterson of Beveridge & Diamond (“B&D”) presented oral argument on behalf of the National Mining Association and other Industry Intervenors in opposition to Environmental Petitioners’ challenge, and Eric Klein, another B&D principal, joined Don on the Industry Intervenors’ brief.    Read More ›

Federal Court Dismisses Some of Seattle’s PCB Tort Claims

In a blow to the efforts of municipal plaintiffs to pursue environmental damages through product liability theories, a Washington federal court granted Monsanto’s motion to dismiss Seattle’s design defect and failure to warn claims for damages to the city’s waterways and lands caused by polychlorinated biphenyls (PCBs). See City of Seattle v. Monsanto Co., 16-cv-00107 (W.D. Wash. Feb. 22, 2017). The court, however, allowed the city’s negligence and public nuisance claims to proceed. Read More ›

Illinois Appellate Court Allows Rare “Prospective Nuisance” Claim to Proceed Against Mining Facility

Addressing the relatively uncommon “prospective nuisance” claim, an Illinois appeals court found a group of landowners pleaded sufficient facts to show that a new sand mining operation would result in a nuisance if constructed. See Whipple v. Vill. of N. Utica, 3-15-0547 (Ill. App. Ct., Mar. 9, 2017). The court reversed the trial court’s decision and found that the landowners could proceed with a claim to enjoin construction of the facility Read More ›

Applying Product Liability Theory, Washington State Sues for PCB Damages

In an effort to use product liability theories to hold manufacturers culpable for environmental releases, the Attorney General of Washington State sued PCB manufacturer Monsanto in state court in December.  See Complaint, Washington v. Monsanto, No. 16-2-29591-6 (King Co. Super. Ct. Dec. 16, 2016).  The suit is the first to apply product liability theories honed in more than a decade of MTBE litigation to allegations of statewide PCB contamination in waterways. Read More ›

No Exception for Latent Disease in N.C. Statute of Repose

Highlighting an area of unsettled law in North Carolina toxic tort litigation, a federal district court in the Eleventh Circuit held that the pre-2014 North Carolina statute of repose contained no exception for latent disease, barring disease-based toxic tort suits ten years after they accrue. Specifically, the U.S. District Court in Georgia held that North Carolina's ten-year statute of repose barred the claims of U.S. Marine Corps service members and their families in a multidistrict litigation (MDL) based on personal injury allegedly resulting from exposure to contaminated drinking water. See In re: Camp Lejeune North Carolina Water Contamination Litigation, No. 1:11-MD-2218, 2016 WL 7049038 (N.D. Ga. Dec. 5, 2016). Read More ›