In a recent en banc decision out of the Eleventh Circuit, the Court found that the panel had used an improper standard in holding that a state law failure to warn cause of action was not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and after clarifying the appropriate inquiry, sent the matter back to the panel for further consideration.  In the case, the plaintiff averred that after years of using the popular weedkiller, Roundup, he developed cancer, which he claims Monsanto failed to adequately warn consumers was a risk of using that product.  Carson v. Monsanto Company, 72 F.4th 1261 (11th Cir. 2023).  Monsanto responded that plaintiff’s Georgia state law claims were expressly or impliedly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) because the United States Environmental Protection Agency (“EPA”) approved a label for Roundup which lacked a cancer warning, and classified Roundup’s principal ingredient, glyphosate, as “not likely to be carcinogenic.”     Read More »

Share | Email| Comments|  Topics: Eleventh Circuit, Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA, Georgia, Preemption, Toxic Torts

On Tuesday, February 8, 2022, the Eleventh Circuit affirmed the Southern District of Alabama’s dismissal of admiralty claims against the United States for oil-removal damages holding first that Oil Pollution Act of 1990’s (“OPA”), 33 U.S.C.S. § 2701 et. seq., does not authorize a claim against the federal government, and second, the OPA’s comprehensive remedial scheme displaced the Government’s sovereign immunity waiver in the Suits in Admiralty Act of 1920 (“SAA”). See Savage Servs. Corp. v. United States, Slip Op. No. 21-10745 (11th Cir. Feb. 8, 2022). Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Contribution, Eleventh Circuit, Oil and Gas, Oil Pollution Act

Earlier this week the Eleventh Circuit issued a published decision in Pinares v. United Technology Corporation, No. 18-15104, slip op. (11th Cir. Aug. 31, 2020), affirming the United States District Court for the Southern District of Florida’s grant of summary judgment in favor of Pratt & Whitney, dismissing the plaintiffs’ claims as time-barred. In doing so, the Court held that the personal injury tolling provision in the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) does not apply to public liability actions brought pursuant to the Price-Anderson Act (“PAA”) or to claims styled under state law based on injuries from radiation exposure. Thus, the lawsuit pursued by Joselyn and Steve Santiago alleging that Pratt & Whitney was liable for their deceased daughter Cynthia Santiago’s cancer was time barred. Read More »

Share | Email| Comments|  Topics: Cancer, CERCLA, Contamination, Discovery Rule, Eleventh Circuit, Florida, Negligence, Price-Anderson Act, Statute of Limitations, Superfund, Toxic Torts, Trespass

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

Although CERCLA has been around for many years, courts are still interpreting both its parts and its whole.  In recent years, the Supreme Court has tried to direct traffic between Section 107(a), which permits PRPs to bring cost recovery actions against other PRPs for “any necessary costs of response incurred” by the PRP bringing suit, and Section 113(f), which permits PRPs who have been sued under section 106 or 107(a) or have entered into a judicially-approved settlement with a federal or state government resolving CERCLA liability to bring actions for contribution against other PRPs to recover amounts paid in excess of their equitable share of liability.   Because these two provisions have differing limitations periods, burdens of proof, and allow for different forms of recovery against multiple defendants, the distinction is often significant. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Eleventh Circuit, Enforcement Action, Statute of Limitations, Superfund, Waste