Toxic Torts Updates

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Texas Court Requires Expert Testimony to Support Toxic Tort Personal Injury Claims

Reinforcing the requirement for expert testimony to support toxic tort personal injury claims under Texas law, a Texas appellate court held that claims for damages due to “symptoms caused by discomfort” do not fall within the...more

New Jersey Supreme Court Reaffirms Restatement Approach to Nuisance, Trespass

In a ruling that further delineates the threshold for maintaining private nuisance and trespass claims in New Jersey, the state’s highest court held that defendant landowners were not liable for contamination to neighboring...more

Third Circuit Affirms First-Filed Rule to Nix Toxic Tort Forum Shopping

Chastising the Plaintiffs for forum shopping, the United States Court of Appeals for the Third Circuit upheld a district court’s decision to dismiss a matter with prejudice on the grounds that the Plaintiffs had previously...more

Seventh Circuit Affirms Exclusion of Plaintiffs’ Causation Experts in Vinyl Chloride Case

Underscoring the importance of sound science in expert opinions, the United States Court of Appeals for the Seventh Circuit upheld the exclusion of expert testimony that did not adequately draw or extrapolate from reliable...more

Suppliers of Inherently Dangerous Raw Materials Remain Excluded from the Protections of the Component Parts Doctrine

In Brady v. Calsol, Inc. 2015 No. B262028, the California Court of Appeal, Second District, reversed summary judgment for a raw materials supplier where there was a triable issue of fact as to whether the benzene levels...more

Environmental Baseline and Remediation Requirements under the EU Industrial Emissions Directive; New Cleanup Obligations for...

Companies conducting transactions and financings involving industrial facilities in the European Union (“EU”) should be aware of new guidance and policy making it clear that invasive sampling will be required pursuant to the...more

Florida Supreme Court Protecting the Rights of Citizens

In another victory for the injured victims of our State, yesterday the Florida Supreme Court issued an opinion in a products liability case, Aubin v. Union Carbide, which reversed an appellate court’s adoption of more...more

Waste on land: a warning for landowners

Fly-tipping continues to cause problems for businesses, governments and communities. Defra recently assessed the number of fly-tipping incidents during 2014-2015 at around 900,000 in England alone.1 It comes as a surprise to...more

Illinois Court: Multi-year Policy Limits Applied To Entire Policy Period, Not Annually, And Payments For Potentially Covered...

An Illinois trial court recently addressed the issue of whether an insurer exhausted its limits of liability in paying nearly $90 million for an insured’s defense and indemnity associated with asbestos bodily injury claims. ...more

Texas Appellate Court Sides with Energy Industry by Requiring Personal Injury Plaintiffs to Submit Expert Testimony in Nuisance...

In a significant victory for the energy industry, on October 7, 2015, the San Antonio Court of Appeals affirmed summary judgment in favor of Marathon Oil Corporation, Marathon Oil EF, LLC (together “Marathon”) and Plains...more

Plaintiff’s Mere Presence in Area Where Asbestos is Present Insufficient to Establish Bystander Exposure

In Schiffer v. CBS Corporation (filed 9/9/15; modified 9/30/15), the California Court of Appeal, First Appellate District, affirmed summary judgment in favor of the defendant asbestos insulation manufacturer finding...more

Federal Court Allows Sealing Of A Petition Seeking Confirmation Of Arbitral Award

On August 14, 2015, a federal district court in New York entered an order allowing a petition to confirm an arbitration award to be filed in redacted form with the arbitration award to be filed under seal. The case is pending...more

September 2015: Product Liability Litigation Update

Ninth Circuit Restricts Scope of CAFA’s “Local Single Event” Exception. In Allen v. Boeing Co., 784 F.3d 625 (9th Cir. 2015), the Ninth Circuit recently held that a case did not fall within the Class Action Fairness Act’s...more

Settlement – Recovering Costs Under CCP § 998 – Multiple Defendants’ Settlement Offer

Brian Kahn v. The Dewey Group, et al. - California Court of Appeal, Second Appellate District (September 8, 2015) - Code of Civil Procedure section 998 (§ 998) is a tool that allows litigants to further settlement...more

California Attorney General Targets Prop. 65 Plaintiffs’ Settlement Terms

The California Office of the Attorney General is seeking to limit certain payment provisions common in Prop. 65 plaintiffs’ settlements with defendants. The proposed rulemaking, published September 25, 2015, would limit the...more

Better Late Than Never: The California Supreme Court Reverses Itself, Holding That Corporate Policyholders May Assign Insurance...

Asset purchase and sale transactions are a preferred structure for many corporate deals. For a variety of reasons, it may be prudent for businesses or product lines to be transferred through these transactions, and an asset...more

Yaiguaje v Chevron Corporation: Supreme Court releases leading decision on the enforcement of foreign judgments in Canada

Summary - - Supreme Court of Canada favours a relaxed approach to the recognition and enforcement of foreign judgments in Canada. - For a Canadian court to recognize and enforce a foreign judgment, a judgment...more

Offensive Discovery after Strudley and Changes to the Colorado Rules of Civil Procedure

Toxic tort cases often involve real property, especially in areas with large mining and energy sectors like the West and Southwest. The cases frequently have large potential damage values and require extensive discovery....more

EPA To Hold Public Meeting on Biotechnology Algae

On August 25, 2015, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register announcing a Public Meeting and Opportunity for Public Comment on Considerations for Risk Assessment of Genetically...more

Court Of Chancery Grants Stay Of Derivative Case

A stay of derivative litigation is hard to get even when there is another case pending elsewhere. But when, as here, the other litigation may expose the company to significant liability, a stay of the derivative action...more

Insurance Code §520 Requires Reversal of Prior Supreme Court Decision Upholding Insurance Policy Language Barring Post-Loss...

Fluor v Superior Court (Hartford) California Supreme Court (August 20, 2015) In 2003, the California Supreme Court ruled in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Ca.4th, 934, that a...more

“Not the Stuff of Science”: “Differential Etiology” Causation Opinions Fail Daubert in 7th Circuit Toxic Tort Case

The Seventh Circuit Court of Appeals has affirmed a district court’s grant of summary judgment in an environmental toxic tort case, holding that the testimony of all three of plaintiffs’ causation experts – James Dahlgren,...more

In Reversal, California Supreme Court Allows Assignment of Coverage for Liability Claims

California’s Supreme Court has reversed its own heavily criticized decision from 2003 in Henkel Corp. v. Hartford Accident & Indem. Co. (2003) 29 Cal. 4th 934. In Fluor Corp. v. Superior Court, the Court announced that its...more

California Declares New Rules for Assignment of Long Tail Claims

Last week, in a unanimous decision, the Supreme Court of California changed the law governing anti-assignment provisions in liability insurance policies. Twelve years ago, in Henkel Corp. v. Hartford Accident & Indemnity...more

It’s All Good – New Jersey Judge Approves NJDEP’s Controversial $225 Million Settlement with ExxonMobil

After months of controversy, public comments, response to public comments, motions to intervene, amicus briefs, oral arguments, editorials and a sustained flurry of activity in social media, the decision we have been waiting...more

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