January 25, 2013
477 Madison Avenue, 15th Floor
New York, NY 10022-5835
(212) 702 5417
477 Madison Avenue, 15th Floor
New York, NY 10022-5835
(212) 702-5414

Contributors:
› Mackenzie S. Schoonmaker
› Nicole B. Weinstein
› Toren M. Elsen



For more information about our firm, please visit www.bdlaw.com .

Office Locations:
› Washington, DC
› Maryland
› New York
› New Jersey
› Massachusetts
› Texas
› California

I. CLIMATE CHANGE

Federal Court Holds State Tort Claims Preempted By Clean Air Act

Answering a key question left open by the U.S. Supreme Court in American Electric Power Co. v. Connecticut , 131 S. Ct. 2527 (2011), a Western District of Pennsylvania judge held that state law tort claims based on carbon dioxide emissions are preempted by the federal Clean Air Act.

II. CLASS ACTIONS

Court Approves Deepwater Horizon Medical Benefits Settlement

In a landmark settlement that may set a benchmark for the resolution of personal injury claims in future mass toxic tort cases, the U.S. District Court for the Eastern District of Louisiana approved the medical benefits portion of a class action settlement in the Deepwater Horizon oil spill case (the “Medical Benefits Settlement”).

Environmental Tort Suit Arising from “Local Event” Not Mass Action

Striking a blow to class action defendants seeking to litigate class action claims in federal court, the U.S. District Court for the Virgin Islands remanded an environmental tort action brought by more than 400 plaintiffs back to state court.

Federal Court Finds Pollution Claims against Paper Facility Too Vague

Underscoring the importance of detailed factual allegations to support a well-pleaded complaint, a federal judge in South Carolina dismissed environmental tort claims against International Paper, finding that the allegations were too vague to support personal injury and property damage claims.

III. CAUSATION

Nevada High Court Adopts Substantial Continuing Factor Test for Asbestos Exposure

Announcing a new causation standard for Nevada asbestos suits, the Nevada Supreme Court adopted the Fourth Circuit’s substantial contributing factor causation test, under which a plaintiff’s burden of proof on liability is to establish sufficient “frequency, regularity, [and] proximity” of exposure to a defendant’s asbestos-containing products.

Virginia High Court Adopts “Multiple Sufficient Causes” Test for Asbestos Exposure

In a decision issued approximately one month after the Nevada Supreme Court adopted the Fourth Circuit’s substantial contributing factor causation test, the Virginia Supreme Court instead adopted the Restatement (Third) of Torts’ “multiple sufficient causes” standard for multiple-exposure mesothelioma cases.

IV. EXPERTS

Ninth Circuit Vacates $9M Jury Award For Lack of Daubert Hearing

Finding that the trial court failed to exercise its gatekeeping responsibility to determine whether expert testimony is relevant and reliable, the U.S. Court of Appeals for the Ninth Circuit vacated a $9.4 million mesothelioma award.

V. TRESPASS

West Virginia Court Rejects Trespass Claim For Reasonable Disposal Of Mining Waste

In a decision that eliminates a potential impediment to oil and gas drilling in West Virginia, the Northern District of West Virginia held that surface disposal of drilling waste in on-site pits does not constitute common law trespass under state law.

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