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 »

Share | Email| Comments|  Topics: Air, Class Actions, Emissions, Hazardous Air Pollutants, Medical Monitoring, Michigan, Negligence, Nuisance, Statute of Limitations, Tolling, Toxic Torts

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 »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Eighth Circuit, Medical Monitoring, Negligence, Nuisance, Oil and Gas, Real Estate, Residential, Toxic Torts

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 »

Share | Email| Comments|  Topics: Breach of Contract, Contamination, Cost Recovery, Dimock, Drilling, Exploration, Leases, Medical Monitoring, Natural Gas, Negligence, Nuisance, Oil and Gas, Pennsylvania, Real Estate, Residential, Toxic Torts, Trespass

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 »

Share | Email| Comments|  Topics: Cancer, Class Actions, Medical Monitoring, New York, Toxic Torts

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 »

Share | Email| Comments|  Topics: Cancer, Causation, Class Actions, Decisions of Note, Federal Procedure, Medical Monitoring, Sixth Circuit, Toxic Torts

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 »

Share | Email| Comments|  Topics: Decisions of Note, Drilling, Marcellus Shale, Medical Monitoring, Multi-District Litigation, Oil and Gas, Procedure, Real Estate, Toxic Torts

Yes, the per curium opinions in Exxon Mobil Corp. v. Ford, et al., No. 1804, September Term, 2009 (Md. Spec. App Feb. 9, 2012) are over a month old, but at 309 pages, it isn’t light reading.  It takes a while to digest the five different opinions and try to reconcile, in any reasonable fashion, what they say.  And while several issues were addressed by the court, we’re going to focus here on a favorite tort – medical monitoring. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Maryland, Medical Monitoring, Toxic Torts

In one of the first lawsuits seeking personal injuries and medical monitoring in connection with natural gas drilling in the Marcellus Shale – one of the largest and most recent natural gas plays in North America – the first blow has been dealt to the plaintiffs, who have been ordered by a Special Master tasked with overseeing discovery to produce all of their medical records to the defendants. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Class Actions, Decisions of Note, Dimock, Marcellus Shale, Medical Monitoring, Oil and Gas, Toxic Torts

As mentioned a few months ago, this coming Thursday, December 8, Kate and I will be participating in an ALI-ABA webcast on medical monitoring claims in a Post-Dukesworld.  It’s a great panel including Kate, plaintiff’s attorney Tom Morrone, Former Rohm and Haas associate general counsel Ellen Friedell, and public health expert Dr. Phillip Lewis.   With a variety of different viewpoints and approaches, we’re expecting a lively discussion on both law and policy.  A good opportunity to get in those end-of-the-year CLE hours.  More Details:  ALI-ABA Medical Monitoring Webcast

Share | Email| Comments|  Topics: Class Actions, CLE, Medical Monitoring, Speaking Engagements, Toxic Torts