Last week, the Court of Appeals of New York (the state’s highest court) definitively ruled that under New York law, a plaintiff cannot assert an independent cause of action for medical monitoring.  Rather, medical monitoring in New York is only available as an element of consequential damages for another tort where a plaintiff has suffered physical injury or property damage. Read More »

Share | Email| Comments|  Topics: Cancer, Class Actions, Medical Monitoring, New York, Toxic Torts

Last Friday, the Sixth Circuit upheld a $250,000 sanction award levied against the attorneys representing a large group of plaintiffs in an Ohio federal environmental contamination suit, on the basis that plaintiffs’ medical monitoring claims were objectively unreasonable.   The case – Baker et al. v. Chevron U.S.A., Inc. et al., Nos. 11-4369, 12-3995 (6th Cir., Aug. 2, 2013) – was on appeal from the Southern District of Ohio, which had granted Chevron’s motion for sanctions after plaintiffs had failed to meet the legal and factual burdens for establishing a medical monitoring claim under Ohio law.  Federal Rule of Civil Procedure 11 (“Rule 11”) provides litigants with a mechanism to attack claims that are “not well grounded in fact . . . [and/or] not warranted by existing law or a good faith argument for extension, modification, or reversal of existing law.”  Generally, Rule 11 sanctions are limited to those circumstances where an attorney’s conduct was unreasonable under the circumstances.  Read More »

Share | Email| Comments|  Topics: Cancer, Causation, Class Actions, Decisions of Note, Federal Procedure, Medical Monitoring, Sixth Circuit, Toxic Torts

In May, we reported on the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218 (Denver Co. Dist. Court  May 9, 2012), in which a state trial court issued a Lone Pine order requiring the plaintiffs to show, prior to the initiation of discovery, that there was a prima facie basis for associating their personal injury claims with the defendants’ hydraulic fracturing activities.  The court subsequently dismissed the case when the plaintiffs failed, in the court's view, to meet this initial burden.  The dismissal was appealed and in Strudley v. Antero Resources Corp., Court of Appeals No. 12CA1251 (Co. Ct. Appeals, 1st Div., July 3, 2013), reversed.   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

Counsel and courts continue to adapt to the “new world” of class certification following the United States Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, and the recent case of Ratner v. Georgia-Pacific Consumer Products, LP, Case No. SU11CV343-W (Effingham County Ga. July 5, 2012), is a good example.  Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Nuisance, Procedure, Real Estate, Toxic Torts, Trespass

Back in October, we reported on a Complaint filed in California, in the case of Center for Community Action & Environmental Justice v. Union Pacific Corporation, No. CV11-8609 (C.D. Cal.) that contended that particulate matter in diesel fuel combustion exhaust is a hazardous waste which is “disposed of” when emitted and therefore is subject to the requirements of Resource Conservation and Recovery Act (RCRA).  Creative as it might have been, on a Motion to Dismiss, the Honorable S. James Otero threw out the case without leave to amend. Read More »

Share | Email| Comments|  Topics: Air, Cancer, Case Update, Cases to Watch, Clean Air Act, Emissions, RCRA, Toxic Torts, Waste

Plaintiffs continue to struggle in their attempts to obtain class certification in toxic tort cases, the most recent example being the May 14, 2012 decision in Earley v. Village of Crestwood, No. 09-CH-32969 (Cook County Ill).   In Earley, Plaintiffs brought suit ostensibly on behalf of the residents of Crestwood Village, contending that the municipality had been providing them with tap  water from a contaminated well for some twenty plus years.  In an opinion that does not even reach three pages in length, the trial court made quick work of their class action claims, focusing on proximate cause.  Relying on Smith v. Illinois Central RR, 223 Ill, 2d 441 (2006), which rejected class certification in mass toxic torts because of the complex and individual nature of establishing that the alleged contamination proximately caused each class members’ alleged injuries, the trial judge in Earley found that the necessity for each plaintiff “to establish the amount and type of their damages proximately caused by Defendants” would “overwhelm any common issues,” thus dooming certification.

Share | Email| Comments|  Topics: Cancer, Class Actions, Illinois, Toxic Torts, Water

With increasing frequency, courts around the country are using their inherent power to control the proceedings before them in order to structure environmental and toxic tort cases in such a way as to reduce, as much as possible, cases to their essence and, more importantly, ensure that the time and resources of parties are not needlessly wasted on discovery or lengthy proceedings when spurious claims are brought.  And that’s exactly what has happened in the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218 (Denver Co. Dist. Court  May 9, 2012), where the Court dismissed plaintiffs’ claims against companies involved in drilling natural gas wells when the plaintiffs failed to show, prior to the initiation of discovery, that there was a prima facie basis for associating their personal injury claims with the defendants’ activities. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Drilling, Marcellus Shale, Medical Monitoring, Multi-District Litigation, Oil and Gas, Procedure, Real Estate, Toxic Torts

Yes, the per curium opinions in Exxon Mobil Corp. v. Ford, et al., No. 1804, September Term, 2009 (Md. Spec. App Feb. 9, 2012) are over a month old, but at 309 pages, it isn’t light reading.  It takes a while to digest the five different opinions and try to reconcile, in any reasonable fashion, what they say.  And while several issues were addressed by the court, we’re going to focus here on a favorite tort – medical monitoring. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Maryland, Medical Monitoring, Toxic Torts

This week, the Supreme Court of the State of Montana took a look at statute of limitations issues in the context of state law claims for trespass and nuisance in contamination cases in the case of Burley v. Burlington Northern & Santa Fe Railway Co., 2012 MT 28 (Feb. 7, 2012).  The issue, which was certified to the Court from the United States District Court for the District of Montana was the following: Read More »

Share | Email| Comments|  Topics: Cleanup, Montana, Nuisance, Real Estate, Statute of Limitations, Toxic Torts, Trespass

We previously reported on Powell v. Tosh, No. 5:09-CV-121-R (W.D. Ky. Oct. 12, 2011), a case in which the U.S. District Court for the Western District of Kentucky certified a class action filed on behalf of a group of homeowners for damages allegedly suffered as a result of odors migrating from a nearby hog farm.   As Suzanne suggested in her previous post, Powell quite possibly may have been the first decision granting class certification in an environmental toxic tort case since the Supreme Court’s June 2011 decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011) – a decision that many speculated would be the death knell to class actions in this arena.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, Kentucky, Nuisance, Toxic Torts, Trespass