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Showing 34 posts in Torts.

Recent PFAS Case Law – RCRA, CERCLA and Toxic Tort Claims

A new class of emerging contaminants poses challenges at remediation sites and for the protection of drinking water, and is generating new toxic tort litigation. Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are being identified at several sites in many areas of the country.  The U.S. EPA and many states are beginning to issue guidelines, advisories or in some cases, standards for PFAS in drinking water, soil, or groundwater.  At the same time, several cases are winding their way through the courts.  Below we discuss several recent cases involving PFAS contamination.  In each of these cases, some of the claims have survived a motion to dismiss, suggesting that it will be difficult to quickly dispose of such claims prior to discovery. Read More ›

DC High Court Adopts Daubert Approach to Expert Testimony

In a direct victory for mobile phone manufacturers and service providers, and with implications for any other case involving expert testimony in the District of Columbia, the District of Columbia’s highest court abandoned the nearly century-old Frye test for admitting expert testimony in favor of the Daubert approach as embodied in Rule 702 of the Federal Rules of Evidence.  See Motorola, Inc. v. Murray, No. 14-CV-1350 (D.C. Oct. 20, 2016).  The decision to adopt the federal standard—following 39 states that have done so—came in an interlocutory appeal in litigation in which Plaintiffs allege long-term exposure to mobile phone radiation causes brain tumors.  The newly adopted standard likely means an uphill battle for Plaintiffs and their causation experts in this litigation.  Read More ›

New York Court Dismisses Chemical Sensitivity Claims for Lack of Causation

Illustrating the difficulty in pursuing a multiple chemical sensitivity (MCS) claim, a New York appeals court upheld dismissal of Plaintiff’s toxic tort claim because he failed to establish a causal link between chemical exposure and his symptoms. See Abrams v. Related, L.P., 2016 BL 91070 (N.Y. App. Div. March 24, 2016). Read More ›

New York Extends Statute of Limitations for Personal Injury Damages Caused by Contamination from Superfund Sites

On July 21, 2016, New York Governor Cuomo signed into law New York State Assembly Bill No. A09568, which amends the statute of limitations for filing actions to recover damages for
personal injury caused by contamination from Superfund sites.  The legislation is a result of public concern about the discovery of water contamination in Hoosick Falls, New York, and  Flint, Michigan. Read More ›

Maryland Court of Appeals OKs Circumstantial Causation Evidence in Lead Paint Cases

In a case that may make it easier to prove causation in Maryland lead paint cases, the Maryland Court of Appeals held that neither direct evidence of the source of lead nor expert testimony was necessary when a trier of fact had sufficient circumstantial evidence to conclude that the subject property was the “reasonable probable” source of lead exposure.  See Rowhouses, Inc. v. Smith, 133 A.3d 1054 (Md. 2016) Read More ›

Expert’s Specific Causation Methodology Unreliable in Leukemia Row

In a case underscoring the importance of reliable methodologies in expert testimony, the U.S. Court of Appeals for the First Circuit upheld a trial court decision excluding specific causation testimony linking benzene exposure and acute promyelocytic leukemia (“APL”) because the expert could not properly support her conclusions.  See Milward v. Rust-Oleum Corp., No. 13-2132, 2016 WL 1622620 (1st Cir. Apr. 25, 2016). Read More ›

D.C. Water Utility Sheds Negligence, Consumer Protection Claims in Lead-in-Water Litigation

In a decision that may have implications in other cases related to alleged lead in drinking water, a District of Columbia trial court dismissed negligence and consumer protection claims against the District’s water utility, DC Water.  See Barkley v. D.C. Water & Sewer Auth., 2016 WL 184433 (D.C. Super. Ct. Jan. 13, 2016).  Plaintiffs claimed injuries stemming from their alleged exposure to lead in drinking water in the early 2000s.  DC Water, represented by Beveridge & Diamond P.C., successfully argued that the public duty doctrine – which bars negligence claims against government entities regarding services provided to the public at large – bars claims regarding drinking water distribution and related public education.  Read More ›

Tenth Circuit Bars Class Tort Claims for Failing to Plead Injury

Underscoring the importance of pleading actual injury in a toxic tort class action, the U.S. Court of Appeals for the Tenth Circuit dismissed Oklahoma class claims that were based only on “reasonable concern” of future injury and a summary statement of alleged health effects.  See Reece v. AES Corp., No. 14-7010 (10th Cir. Apr. 20, 2016).  Read More ›

Pennsylvania Federal Court Dismisses Untimely Medical Monitoring Class Claim

In a decision that may make it more difficult to sustain medical monitoring claims in Pennsylvania, a federal district court dismissed as untimely a putative class action alleging workplace chemical exposure. Blanyar v. Genova Prods., Inc., No. 3:15-1303, 2016 WL 740941 (M.D. Pa. Feb. 25, 2016). Plaintiffs alleged that their employer unlawfully and fraudulently failed to inform or warn them about alleged occupational exposures to sixteen toxic chemicals, including vinyl chloride (“VC”) and polyvinyl chloride (“PVC”). Id. at *2-3. Read More ›

Michigan Court Defers to Regulator’s Concurrent Jurisdiction in UST Cleanup

In a decision highlighting a practical challenge in pursuing tort claims against some underground storage tank (“UST”) owners and operators, the Michigan Court of Appeals held that a trial court could nix a lawsuit stemming from a leaking UST while state regulators were already involved in an ongoing cleanup.  See Carson City Hospital v. Quick-Sav Food Stores, Ltd., No. 325187, 2016 WL 1719047 (Mich. Ct. App. Apr. 28, 2016). Read More ›