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Showing 13 posts in Medical Monitoring.

Last week, the United States Court of Appeals for the Third Circuit resurrected two separate lawsuits filed by residents living near the Willow Grove Naval Air Reserve Station in Horsham Township, Pennsylvania and the Naval Air Development Center in Warminster Township, Pennsylvania, which both seek to have the Navy fund medical monitoring programs for exposure to drinking water impacted by two emerging contaminants – perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) – attributable to operations at the two Naval facilities.  In two parallel cases that were joined for appeal – Giovanni et al. v. U.S. Dep’t of the Navy and Palmer et al. v. U.S. Dep’t of the Navy, 2018 WL 4702222 (3d Cir. Oct. 2, 2018) – the Third Circuit held that the residents’ claims for medical monitoring under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”) were not barred by the Navy’s ongoing investigation and remediation at the sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), because a request for medical monitoring “does not interfere with or alter the ongoing cleanup efforts.”  In contrast, the Third Circuit affirmed the dismissal of the residents’ separate claim that sought to have the Navy perform a government-led health assessment or health effects study, which was barred as a challenge to the Navy’s ongoing response actions at the sites. Read More »

In Rice v. First Energy Corporation, a putative class of plaintiffs living near a former landfill filed trespass, nuisance, negligence, and medical monitoring claims against First Energy Corporation and NRG Energy, Inc., alleging that each Defendant was liable for claims arising from their respective subsidiaries’ disposal of coal ash in the landfill. No. 2:17-cv-489-LPL, 2018 WL 4282850, at *1 (W.D. Pa. Sept. 7, 2018). Though it frequently noted Plaintiffs’ lackluster efforts to pursue discovery and their heavy reliance on conclusory, minimalistic arguments, U.S. Magistrate Judge Lisa Pupo Lenihan nevertheless dug deep into the parties' arguments to issue a thorough and strong opinion highlighting the difficulty of piercing a corporate veil in an environmental case and concluding that the Defendants were neither corporate successors nor alter egos of their respective subsidiaries. Id. at *13. Read More »

A putative class of plaintiffs who allege to have lived in a defined geographic area around a manufacturing plant in Merrimack, New Hampshire, or have been served by the town’s municipal water supply, sued the manufacturer in federal court, alleging property damage claims and exposure to perfluorooctanoate (AFPO) and perfluorooctanoic acid (PFOA) that warrants medical monitoring.  Brown v. Saint-Gobain Performance Plastics Corp. et al., No. 16-cv-242, 2017 WL 6043956 (D.N.H. Dec. 6, 2017).  The plaintiffs’ claims were styled as common law claims for negligence, trespass, nuisance, and negligent failure to warn, as well as an equitable claim for “negative unjust enrichment” on the theory that the manufacturer was unjustly enriched by avoiding costs associated with preventing the release of contaminants.  The Court dismissed the unjust enrichment count but allowed the remaining claims to proceed. Read More »

Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.  Read More »

In the recent decision of Cole v. Marathon Oil Corporation, Case No. 16-10642 (E.D. Mich. Oct. 25, 2016), a district court in the Eastern District of Michigan dismissed, in its entirety, a putative class action lawsuit against a refinery operated by the Marathon Oil Corporation (“Marathon”).  The court dismissed two of the complaint’s three common law claims as time-barred under Michigan law because the complaint failed to plead a “plausible” basis for the court to infer that the claims accrued within the limitations period, and the third cause of action, strict liability, was dismissed on the ground that it is not an independently-recognized cause of action in Michigan.  The decision suggests that, at least under Michigan law, plaintiffs in tort cases must allege more than mere ongoing harm when the allegations on the face of the complaint do not anticipate and provide a plausible basis to avoid an obvious, although unstated, statute of limitations problem. Read More »

This week, in the case of Smith v. ConocoPhillips Pipe Line Co., No. 14-2191 (8th Cir.  Sept. 15, 2015), the Eighth Circuit overturned a district court’s grant of a certification to a class comprised of property owners who alleged that the contamination of a neighboring property, and their fear of its spread, was a nuisance.  The Eighth Circuit held that the plaintiffs did not provide evidence that their own properties were contaminated and thus denied class certification based on the plaintiffs’ failure to demonstrate a common injury. Read More »

In November 2009, a group of 44 plaintiffs, including the Ely family, filed suit against Cabot Oil & Gas Corp. for personal injuries and property damages that allegedly resulted from Cabot’s hydraulic fracturing operations in Dimock Township, Susquehanna County, Pennsylvania. The case is pending in the Middle District of Pennslyvania, captioned as Ely et al. v. Cabot Oil & Gas Corp., et al., Dkt. No. 3:09-cv-2284 (M.D. Pa.) (J. Carlson). After a number of parties settled out of the lawsuit, Cabot filed a motion for summary judgment on the Elys’ claims for breach of contract and lost royalties on an oil and gas lease, fraudulent inducement, negligence and negligence per se, medical monitoring, and violations of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”).   On Monday, nearly all of the Elys’ claims were dismissed. Read More »

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 »

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 »

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 »