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Showing 33 posts in Toxic Torts.

Rule 23(c)(4) of the Federal Rules of Civil Procedure provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). Rule 23(b)(3), on the other hand, provides that a class action may be maintained only where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” R. 23(b)(3). The Second, Fourth, Seventh, and Ninth Circuit have adopted a “broad view” of class certification, permitting a district court to certify a class on particular issues under Federal Rule 23(c)(4), even where the traditional predominance requirements of Rule 23(b)(3) have not been met for the case as a whole. Only two circuits, the Fifth and Eleventh, ascribe to the more “narrow view” in which Rule 23(b)(3)’s predominance requirement is applied to prevent district courts from certifying particular issues under Rule 23(c)(4), without certifying an entire claim. In a recent case brought my homeowners alleging contamination to groundwater, Martin v. Behr Dayton Thermal Products LLC et al., No. 17-3663, --- F.3d ---, 2018 WL 3421711 (6th Cir. July 18, 2018), the Sixth Circuit has now joined the majority of circuits addressing this issue by endorsing the “broad view” of issue-based class certification. 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 a 2-1 decision last week, the Michigan Court of Appeals declined to dismiss a lawsuit against Dow Chemical in connection with dioxin contamination in the soils of the Tittabawassee River flood plain. Henry v. Dow Chemical Co., LC No. 03-047775-NZ (Mich. Ct. App. June 1, 2017).  Affirming the lower court’s denial of Dow’s motion for summary disposition, the Court of Appeals rejected the argument that the plaintiffs’ claims for negligence and nuisance were barred by the applicable statute of limitations even though the public was made aware of potential dioxin contamination in the river from Dow’s operations as early as 1984.  The Court’s analysis, which was accompanied by a dissenting opinion, turned on the fact that Dow failed to support its motion with evidence that the floodplain soils on the plaintiffs’ property were contaminated as far back as the 1980s.  Read More »

In a unanimous decision of a three judge panel last week, the Second Circuit decided that it lacked jurisdiction to overturn a S.D.N.Y. judge’s order enforcing the terms of the Tronox bankruptcy settlement against a group of more than 4,000 Pennsylvania state court plaintiffs. Tronox, Inc. v. Kerr-McGee Corp., No. 16-343, 2017 U.S. App. LEXIS 6949 (2d Cir. Apr. 20, 2017).  Both the district court’s decision and the Second Circuit’s decision protected Kerr-McGee, bankrupt Tronox’s corporate parent, from a Pennsylvania toxic tort suit related to contamination surrounding a wood treatment plant in Avoca, Pennsylvania. 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 »

In a toxic tort class action involving a chemical spill that may have affected thousands of individuals in an immediate geographic area, the Eighth Circuit held that class action plaintiffs’ expert report definitively alleging damages greater than $5 million triggered defendant’s 30-day removal period under the Class Action Fairness Act (“CAFA”), but held that an earlier letter from plaintiffs’ counsel “recommending” a settlement over $5 million did not.  Gibson v. Clean Harbors Environmental Services, Inc., No. 16-8012, 2016 U.S. App. LEXIS 19073 (8th Cir. Oct. 24, 2016).  CAFA was enacted in 2005 and expanded federal diversity jurisdiction to include a greater number of class actions and other multi-plaintiff actions.  Among other things, CAFA provides that where a putative class includes greater than 100 members seeking greater than $5 million, the defendant may remove the action, regardless of traditional diversity requirements. Read More »

Earlier this month, a Michigan federal judge refused to dismiss a lawsuit brought by a coalition of plaintiffs seeking to force multiple city and state defendants to fix the city of Flint, Michigan’s water supply system.  The lawsuit arose from the crisis regarding lead contamination in Flint’s water supply, which has garnered national attention.  In the decision, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), U.S. District Judge David M. Lawson rejected numerous attacks asserted by the defendants in a motion to dismiss.  Perhaps most notably, the judge rejected the argument that the federal court should defer to the U.S. Environmental Protection Agency’s (EPA) primary jurisdiction under the Safe Drinking Water Act (SDWA).    Read More »

Yesterday, Judge Corbett O’Meara, of the United States District Court for the Eastern District of Michigan, dismissed a proposed class action complaint filed by a group of residents in Flint, Michigan regarding the drinking water contamination crisis against the City of Flint and several City employees, local politicians, Michigan’s Governor Snyder, the Michigan Department of Environmental Quality, and the Michigan Department of Health.  The proposed class action included various state statutory and common law claims, as well as a constitutional claim asserted under 42 U.S.C. § 1983, a civil rights cause of action that allows private parties to recover monetary damages from state and local government entities for deprivation of constitutional rights.  The plaintiffs did not include a Safe Drinking Water Act claim in their complaint, possibly as a tactical maneuver, since the sole remedy available in a citizen suit filed under the Safe Drinking Water Act is injunctive relief, rather than monetary damages which are available for a § 1983 constitutional claim.   Read More »

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 »