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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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CONTRIBUTORS

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 .

Volume 7, Number 3, July 28, 2014

PREEMPTION

Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from certain contaminated sites.

Iowa Supreme Court Rules Pollution Suit Not Preempted by Clean Air Act

Striking a blow to defendants seeking to limit the scope of toxic tort claims based on air emissions, the Iowa Supreme Court ruled that a putative class action filed by residents asserting tort claims against a corn milling facility was not preempted by the federal Clean Air Act (CAA) or Iowa state law.

HYDRAULIC FRACTURING

Jury Awards Nearly $3 Million in First U.S. Toxic Tort Verdict Related to Fracking

Although the torrent of toxic tort litigation related to hydraulic fracturing that many predicted has not materialized, the first jury award for toxic tort claims relating to hydraulic fracturing operations has now been handed down.

EXPERTS

New York High Court Finds Expert Failed to Satisfy Causation Requirement

In a decision that reaffirms the importance of expert testimony, New York’s highest court ruled that a plaintiff’s expert had failed to establish either general or specific causation such that the plaintiff could withstand summary judgment.

New York High Court Limits Requirements for Early Medical Evidence

A recent ruling by New York’s highest court may make it somewhat easier for toxic tort plaintiffs to survive early motions practice in New York. The New York Court of Appeals ruled that lead-based paint plaintiffs were not required to have a medical professional causally connect their injuries to lead exposure in order to bring a claim.

INTERNATIONAL TOXIC TORTS

D.C. Circuit Rejects Toxic Tort Claims Based on Aerial Spraying of Herbicide

Reinforcing the importance of standing and causation in toxic tort cases, the U.S. Court of Appeals for the District of Columbia affirmed the entry of summary judgment in favor of Defendant DynCorp on key claims arising from the aerial spraying of herbicides on illegal coca crops in Colombia.

MEDICAL MONITORING

First Circuit Rejects Monitoring Due to Lack of Subcellular Evidence

Underscoring the importance of evidence to support exposure-based injury claims, the U.S. Court of Appeals for the First Circuit rejected Plaintiffs’ bid to secure medical monitoring because they did not demonstrate that they had suffered subcellular damage.

NEGLIGENCE

Wisconsin Supreme Court Finds Spraying Herbicide is “Inherently Dangerous”

While a homeowner would normally be shielded from liability based on an independent contractor’s actions, a homeowner who hired a contractor to spray herbicide on his property may be held liable for damages to his neighbor’s trees because spraying is an “inherently dangerous activity,” according to the Supreme Court of Wisconsin.

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