Earlier this month, a Michigan federal judge refused to dismiss a lawsuit brought by a coalition of plaintiffs seeking to force multiple city and state defendants to fix the city of Flint, Michigan’s water supply system.  The lawsuit arose from the crisis regarding lead contamination in Flint’s water supply, which has garnered national attention.  In the decision, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), U.S. District Judge David M. Lawson rejected numerous attacks asserted by the defendants in a motion to dismiss.  Perhaps most notably, the judge rejected the argument that the federal court should defer to the U.S. Environmental Protection Agency’s (EPA) primary jurisdiction under the Safe Drinking Water Act (SDWA).    Read More »

Share | Email| Comments|  Topics: Citizen Suit, Declaratory Relief, Drinking Water, EPA, Federal Procedure, Michigan, Safe Drinking Water Act, Subject Matter Jurisdiction, Toxic Torts, Water

Yesterday, Judge Corbett O’Meara, of the United States District Court for the Eastern District of Michigan, dismissed a proposed class action complaint filed by a group of residents in Flint, Michigan regarding the drinking water contamination crisis against the City of Flint and several City employees, local politicians, Michigan’s Governor Snyder, the Michigan Department of Environmental Quality, and the Michigan Department of Health.  The proposed class action included various state statutory and common law claims, as well as a constitutional claim asserted under 42 U.S.C. § 1983, a civil rights cause of action that allows private parties to recover monetary damages from state and local government entities for deprivation of constitutional rights.  The plaintiffs did not include a Safe Drinking Water Act claim in their complaint, possibly as a tactical maneuver, since the sole remedy available in a citizen suit filed under the Safe Drinking Water Act is injunctive relief, rather than monetary damages which are available for a § 1983 constitutional claim.   Read More »

Share | Email| Comments|  Topics: Cases to Watch, Class Actions, Contamination, Damages, Drinking Water, Michigan, Preemption, Toxic Torts, Water

In 2014, we covered the United States Supreme Court’s decision in CTS Corp. v. Waldburger et al., 134 S. Ct. 2175 (June 9, 2014).  In Waldburger, the Court overturned a decision by the Fourth Circuit, and held that while CERCLA preempts state statutes of limitations in toxic tort personal injury and property damage actions, it does not preempt state statutes of repose, like the North Carolina statute of repose at issue, from barring similar actions.    Last week, in Stahle v. CTS Corp., No. 15-1001 (March 2, 2016), the Fourth Circuit addressed an even more basic question, whether the statute of repose at issue in Waldburger is even applicable in such cases.  Read More »

Share | Email| Comments|  Topics: Cancer, Case Update, Contamination, Eleventh Circuit, Fourth Circuit, North Carolina, Preemption, Statute of Limitations, Statute of Repose, Toxic Torts

In a dispute that once generated the “largest environmental bankruptcy award ever,” the United States District Court for the Southern District of New York this month issued a decision further clarifying the effects of the monumental 2014 bankruptcy settlement agreement.  The February 1, 2016 decision in In re Tronox Incorporated, No. 1:14-cv-5495, determined that beneficiaries of the 2014 settlement agreement could not reignite their toxic tort claims against the debtors’ surviving corporate parent, Kerr-McGee Corporation (“(new) Kerr-McGee”), in the underlying settlement agreement. Read More »

Share | Email| Comments|  Topics: Bankruptcy, Class Actions, Contamination, New York, Pennsylvania, Residential, Toxic Torts

This week, in the case of Smith v. ConocoPhillips Pipe Line Co., No. 14-2191 (8th Cir.  Sept. 15, 2015), the Eighth Circuit overturned a district court’s grant of a certification to a class comprised of property owners who alleged that the contamination of a neighboring property, and their fear of its spread, was a nuisance.  The Eighth Circuit held that the plaintiffs did not provide evidence that their own properties were contaminated and thus denied class certification based on the plaintiffs’ failure to demonstrate a common injury. Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Eighth Circuit, Medical Monitoring, Negligence, Nuisance, Oil and Gas, Real Estate, Residential, Toxic Torts

We’ve been following the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218, since May, 2012, when a Colorado trial court dismissed the action following plaintiffs’ failure to establish, pursuant to a Lone Pine order, a prima facie case showing that the defendant, a natural gas drilling company, was responsible for plaintiffs’ personal injuries.  The Lone Pine order required the Strudleys to submit to the Court, before it would allow any discovery, sufficient expert opinions, scientific testing results, and personal medical information to support their claims.  In July, 2013, a Colorado Court of Appeals reversed, finding that Lone Pine orders were not permitted under Colorado law and thus the plaintiffs could not be shut out of the courthouse at such an early stage. Read More »

Share | Email| Comments|  Topics: Case Update, Causation, Contamination, Discovery, Drilling, Due Process, Marcellus Shale, Natural Gas, Oil and Gas, Procedure, Real Estate, Toxic Torts

In November 2009, a group of 44 plaintiffs, including the Ely family, filed suit against Cabot Oil & Gas Corp. for personal injuries and property damages that allegedly resulted from Cabot’s hydraulic fracturing operations in Dimock Township, Susquehanna County, Pennsylvania. The case is pending in the Middle District of Pennslyvania, captioned as Ely et al. v. Cabot Oil & Gas Corp., et al., Dkt. No. 3:09-cv-2284 (M.D. Pa.) (J. Carlson). After a number of parties settled out of the lawsuit, Cabot filed a motion for summary judgment on the Elys’ claims for breach of contract and lost royalties on an oil and gas lease, fraudulent inducement, negligence and negligence per se, medical monitoring, and violations of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”).   On Monday, nearly all of the Elys’ claims were dismissed. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Contamination, Cost Recovery, Dimock, Drilling, Exploration, Leases, Medical Monitoring, Natural Gas, Negligence, Nuisance, Oil and Gas, Pennsylvania, Real Estate, Residential, Toxic Torts, Trespass

Last summer we reported on Bell v. Cheswick Generating Station, 903 F. Supp. 2d 314 (3rd Cir. 2013), a Third Circuit decision which held that the Clean Air Act does not preempt state law claims for personal and property damage caused by air pollutants.  And in March, we noted, not unsurprisingly, that defendant GenOn Power had filed a Petition for Cert to the U.S. Supreme Court.  On June 2, that Petition was denied, which may have been the impetus for the Supreme Court of Iowa to release its decison in Freeman v. Grain Processing Corp., No. 13-0723 (June 13, 2014), holding that neither the Clean Air Act nor Iowa's analogous state act pre-empted similar state law claims.  The decision is a hefty one, providing a historical overview of the Clean Air Act and preemption law and an in-depth discussion leading to the Court's final determination.  Put this one aside for one evening when you're sitting in the recliner with a glass of wine at your side.   

Share | Email| Comments|  Topics: Air, Case Update, Clean Air Act, Iowa, Nuisance, Preemption, Third Circuit, Toxic Torts, Trespass

In a 7-2 opinion issued today, the United States Supreme Court held that CERCLA does not preempt state law statutes of repose that foreclose causes of action for personal injury and property damage claims asserted after a statutorily-prescribed time period has elapsed, effectively absolving potential defendants from liability.

The case – CTS Corp. v. Waldburger et al, 573 U.S. ___ (2014) (slip op) – involves a 2011 state-law nuisance action against the former property owner, CTS Corp., which in 1987 sold property contaminated with TCE and DCE, which it had characterized as “environmentally sound.”  More than 20 years after CTS Corp. sold the property, EPA informed subsequent property owners and adjacent landowners that their groundwater was contaminated and that the source of the contamination was the former electronics manufacturing facility operated by CTS Corp. on the property. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, Cost Recovery, Decisions of Note, Discovery Rule, EPA, Fourth Circuit, New Jersey, Nuisance, Pennsylvania, Preemption, Real Estate, Remediation, Spill Act, Statute of Limitations, Statute of Repose, Superfund, Supreme Court, Tolling, Toxic Torts

Since the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), plaintiffs in contamination cases have struggled to meet the raised bar for class certification.  And that bar was certainly not lowered by the Seventh Circuit in its decision in Parko v. Shell Oil Co., Nos. 13-8023 & 13-8024 (7^th Cir. Jan 17, 2014).  Parko involved a putative class comprised of property owners in the town of Roxana, Illinois, who claimed that their property values had been diminished by benzene contamination of the groundwater from an adjacent oil refinery which had been in operation for nearly 100 years.  In checking off the certification requirements, the district court held that the question of whether the multiple defendants who owned and operated the refinery during the preceding 90 plus years failed to “contain petroleum byproduct [resulting] in contamination to Roxana property” predominated.   The Seventh Circuit panel unanimously disagreed.  Judge Posner, writing for the Court, described the opinion as necessary for clarification of a trial court’s responsibility to conduct a “rigorous analysis” of whether common issues predominate; in doing so, he did not hesitate to take the district judge to task for “treat[ing] predominance as a pleading requirement” rather than an evidentiary one.  Read More »

Share | Email| Comments|  Topics: Causation, Certification, Class Actions, Contamination, Dukes, Expert Witness, Illinois, Procedure, Real Estate, Residential, Seventh Circuit, Toxic Torts, Water