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Toxic Tort & Product Liability Quarterly

EDITORS

Daniel M. Krainin

Principal

(212) 702-5417

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Mackenzie S. Schoonmaker

Associate

(212) 702-5415

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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues, including the defense of toxic tort and product liability claims. Learn more at www.bdlaw.com .

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Volume 7, Number 2, April 28, 2014

MASS TOXIC TORTS

West Virginia Chemical Spill Prompts Wave of Lawsuits

The January 9th, 2014 chemical release at a Freedom Industries, Inc. facility in West Virginia has shown, yet again, that major environmental releases are likely to prompt major environmental lawsuits. As a result of the spill of 7,500 gallons of 4-MCHM, a chemical foam used to wash coal, 300,000 residents of nine counties were told not to use tap water for anything other than toilet-flushing or firefighting, area businesses were forced to close, and hospitals took emergency measures to conserve water.

CLASS ACTIONS

Seventh Circuit Reverses Class Certification in Groundwater Case

In a victory for toxic tort defendants facing putative class actions and underscoring the “rigorous analysis” that district courts must perform prior to certifying a class, the Seventh Circuit reversed a district court’s certification of a class of Illinois property owners who claimed that benzene and other contaminants from Defendants’ oil refinery had leaked into the groundwater under their homes. See Parko v. Shell Oil Co ., Nos. 13-8023 & 12-8024 (7th Cir. Jan. 17, 2014). The court held that the district court judge had not adequately analyzed the question of predominance, a requirement for class certification, and remanded the issue for further factual development. Parko , slip op. at 9.

INTERNATIONAL TOXIC TORTS

California Court of Appeals Dismisses $3.3M Award Due to Fraud

Based on the lower court’s post-trial findings of fraud, a California Court of Appeals affirmed the dismissal of a $3.3 million award to Plaintiffs who claimed they were injured from exposure to the pesticide dibromochloropropane (DBCP) while working on banana farms under contract with Dole Food Company. The ruling, Laguna v. Dole Food Co. , No. B233497 (Cal. App. 2d Dist. Mar. 07, 2014) (unpublished opinion), was from an appeal of an order granting Dole’s petition to vacate the judgment in Tellez v. Dole Food Company , No. BC312852 (L.A. Sup. Ct.).

EXPERTS

Ninth Circuit Calls for Closer Scrutiny of Expert Testimony

In a decision that demonstrates the importance of challenging questionable expert testimony, the Ninth Circuit in an en banc decision has called for courts to more closely scrutinize the qualifications and theories of expert witnesses. See Estate of Barabin v. Asten Johnson, Inc. , 740 F.3d 457 (9th Cir. 2014) (en banc).

MEDICAL MONITORING

New York Appellate Panel Bars Medical Monitoring Damages Absent Injury

Implementing a recent ruling by New York’s highest court that limits the availability of medical monitoring claims, a New York Appellate Division panel barred medical monitoring damages in a groundwater contamination and vapor intrusion case absent a showing of physical injury. See Ivory v. IBM , No. 516276 (N.Y. App. Div. Feb. 20, 2014). The court found that medical monitoring damages could be recovered by Plaintiffs only where sought as consequential damages stemming from an existing tort.

PRODUCTS LIABILITY

Federal Court Rejects Tuna Manufacturer's Failure to Warn Defense

Rejecting Defendants’ argument that the federal government’s decision not to adopt a warning requirement was fatal to Plaintiff’s claim, a federal court in New York allowed Plaintiff’s failure to warn claim regarding the presence of mercury in tuna to proceed to trial. See Porrazzo v. Bumble Bee Foods LLC and Stop & Shop Supermarket Co. , No. C10-4367-TSZ (S.D.N.Y. Feb. 26, 2014).

PROPERTY DAMAGE CLAIMS

Federal Court Nixes Stigma Claims from "Cancer Cluster" Suit

Finding that Ohio law does not permit claims for environmental “stigma” damages, a federal district court in Ohio rejected those claims but allowed Plaintiffs’ primary claims to proceed in a case involving numerous alleged cancers due to exposure to hazardous substances. The court rejected Defendant Whirlpool Corporation’s motion to dismiss as to the bulk of Plaintiffs’ claims, which seek damages for alleged personal injury and wrongful death based on allegations that Whirlpool dumped toxic waste that leached into groundwater and released harmful chemicals into the air. See Brown v. Whirlpool Corp. , No. 3:13-CV-01092 (N.D. Ohio Feb. 10, 2014).

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