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Court Crier: Toxic Torts and Environmental

In Stearns v. Metropolitan Life Insurance Company, the Supreme Judicial Court of Massachusetts held that the six-year statute of repose set forth in G.L. c. 260, §2B, operates to bar tort claims arising from diseases with extended latency periods where the defendants had knowing control of the injurious improvement to real property at the time of the plaintiff’s exposure. The court acknowledged that, because of the long latency period of asbestos-related illnesses, the ruling effectively bars all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits. (March 1, 2019)

In Smyth v. Conservation Commission of Falmouth, the Appeals Court of Massachusetts addressed whether a landowner asserting a regulatory taking is entitled to a jury under either the Fifth Amendment to the United States Constitution or art. 10 of the Massachusetts Declaration of Rights. At issue was the denial of the landowner’s variance requests from a wetlands protection bylaw. The court concluded that the jury right does not attach to regulatory takings (as it is not analogous to any common law claim entitled to trial by jury in 1780), and further determined that the facts presented did not support a claim of regulatory taking as a matter of law. (February 19, 2019)

In Union Pacific Corporation v. Clean Harbors, Inc., the Supreme Court of Delaware considered the propriety of jury instructions in a suit regarding the “reasonableness” of the amount expended to perform a required environmental cleanup. The court held that the jury instruction–which asked the jury to determine “the total reasonable cost of the environmental cleanup”–although not perfectly clear, was not so deficient as to constitute reversible error. (January 7, 2019)

In Terranova and New Land Holdings, LLC v. General Electric Pension Trust, the Superior Court of New Jersey, Appellate Division,considered a conflict between current and former property owners regarding contribution towards cleanup costs and removal of toxic substances under the New Jersey Spill Compensation and Control Act. The court determined that a prior matter regarding this same contamination barred the current owners’ claims based on the doctrine of judicial estoppel. In a prior action, the current owners represented, and the court accepted, that the contamination was solely the responsibility of a different previous owner. The court held that judicial estoppel was a recognized defense to the New Jersey Spill Compensation and Control Act and that the current owners’ claims against the previous owners were barred. (January 4, 2019)

In Pennsylvania Independent Oil & Gas Association v. Pennsylvania Public Utility Commission, the Supreme Court of Pennsylvania addressed whether producers of natural gas from certain vertical wells are subject to an assessment of the yearly impact fee established by Chapter 23 of the Oil and Gas Act. The court held that the impact fee will only be imposed on such wells if their production exceeds 90,000 cubic feet of natural gas per day for one month of the year, as found by the Public Utility Commission. (December 28, 2018)

In Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, LLC, the United States Court of Appeals for the Third Circuit considered whether a landowner is liable for the costs of an environmental cleanup that occurred before the owner acquired the property. In finding that the landowner was liable, the court found that the phrase “all costs” found in the text of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) included costs incurred both before and after a current owner acquired the property. In addition, as the owner was liable under CERCLA, he was also liable under the Pennsylvania Hazardous Sites Cleanup Act. (October 5, 2018)

In Giovanni v. United States Department of the Navy, the United States Court of Appeals for the Third Circuit determined that claims under the Pennsylvania Hazardous Sites Cleanup Act (HSCA) seeking an order requiring the Navy to conduct health assessment studies were barred by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as challenges to ongoing cleanup efforts. However, a claim for medical monitoring under HSCA was not barred under CERCLA because medical monitoring would not interfere with or alter ongoing cleanup efforts. (October 2, 2018)

In Trinity Industries, Inc. v. Greenlease Holding Company, the United States Court of Appeals for the Third Circuit addressed how to allocate the costs of land remediation in a CERCLA suit. The current owner of an industrial property and the former owner contested how to allocate the expenses relating to cleaning up the contaminated land. The court ultimately stated that when using a “volumetric” approach to assess liability the court needs to parse the individual remediation activity and determine how much each party was responsible for that particular remediation in order to assign a percentage of the costs. (September 11, 2018)

In New England Power Generators Association, Inc. v. Department of Environmental Protection, the Supreme Judicial Court of Massachusetts held that the state’s environmental protection department could cap greenhouse gas emissions emitted by the electric sector under Section 3(d) of the Global Warming Solutions Act, even though that sector is also regulated in Section 3(c) of the Act, because nothing in either section limits the department’s power to cap emissions and both sections contribute to the statute’s central purpose of decreasing greenhouse gases released within the state. (September 4, 2018)

In Miramar Park Association, Inc. v. Town of Dennis, the Supreme Judicial Court of Massachusetts addressed whether the town’s dredging and beach nourishment projects violated Massachusetts environmental regulations by requiring that the dredged materials be deposited on a publicly-owned beach rather than on an adjacent, privately owned beach. The owners of the private beach believed that a regulation designed to protect beaches downdrift from jetties from the loss of sediment applied, and required that the dredged materials be deposited on the private beach. The court concluded that the dredging activity did not implicate the regulation regarding extension of jetties, and that the town was not required to deposit the materials on the private beach. (August 30, 2018)

In Whelan v. Armstrong International, Inc., the Superior Court of New Jersey, Appellate Division, held that a product manufacturer has a duty to warn about the risk of harm from exposure to asbestos-containing replacement parts when the product’s integral components contain asbestos and the manufacturer is aware that maintenance of its product will require replacement of those components with other asbestos-containing parts. (August 6, 2018)

In the City of Taunton v. United States Environmental Protection Agency, the United States Court of Appeals for the First Circuit reviewed the limit imposed by the Environmental Protection Agency (EPA) through the National Pollutant Discharge Elimination System (NPDES) permit on the amount of nitrogen that the city’s wastewater treatment plant may discharge. The court found that EPA’s calculations in determining a nitrogen limit for the plant fell within a “zone of reasonableness” and was not arbitrary and capricious. The court further held that the city could not supplement the administrative record with new materials that were not considered by EPA, nor would the court consider new scientific and factual averments in an amicus brief submitted in support of EPA’s decision. (July 9, 2018)

In Ramsey v. Georgia Southern University, the Supreme Court of Delaware held that a household member who regularly launders an employee’s asbestos-covered clothing, has a cause of action for take-home asbestos exposure against the employer for failure to provide warnings and safe-laundering instructions. Likewise, that household member also has a viable claim against a product manufacturer who fails to give warnings and safe-laundering instructions to the employer. (June 27, 2018)

In Walsh v. BASF Corporation, the Superior Court of Pennsylvania addressed the admissibility of expert opinion under the Frye standard. The court explained that the Frye standard only applies to whether the relevant scientific community has generally accepted the principles and methodology the scientist employs, not the conclusions the scientist reaches. The court, therefore, held that where an expert uses a generally accepted scientific methodology, the Frye standard does not bar the expert, regardless of the conclusions. The court noted that the fact that experts reach different conclusions goes to the weight of the evidence, not to its admissibility. (June 20, 2018)

In B&R Resources, LLC v. Department of Environmental Protection, the Commonwealth Court of Pennsylvania addressed whether a corporate officer was liable under the participation theory because he had knowledge of environmental violations, had the authority to address the violations and intentionally neglected to remedy them. The court held that the officer was liable under the participation theory because he intentionally and knowingly failed to act. The court also found, however, that the officer’s liability was limited to the number of violations the company had the financial resources to remedy. (March 15, 2018)

In New Jersey Department of Environmental Protection v. Exxon Mobil, the Superior Court of New Jersey, Appellate Division, held that various environmental groups and individuals could not intervene at trial because they lacked standing. The court then determined that the Appellate Division alone can decide whether these individuals and groups have standing to appeal since the trial court lacks authority to make this determination. The court held that the environmental groups did have standing to appeal the consent order. In affirming the consent order, the court held that the appropriate standard of review under the Spill Act is whether the trial judge made a material error of law or a meaningful error of judgment in concluding a settlement was fair, reasonable, consistent with the Spill Act's goals, and in the public interest. (February 12, 2018)

In Graftech International, Ltd. v. Pacific Employers Insurance Companythe Court of Appeals of Ohio addressed whether a pollution exclusion in an aluminum manufacturer’s policy precluded coverage for personal injury lawsuits brought by workers who allege they were injured by a hazardous substance introduced into the work environment during the smelting process. In approving the application of the exclusion, the court found that a localized release of substances in one part of a plant is sufficient to constitute a fouling of the “environment” as defined in the exclusion. The court noted that “environment” was defined to include a “structure or the air therein,” which would include the air inside a manufacturing plant. (December 28, 2017)

In W.C. v. Janssen Pharmaceuticals, Inc., the Superior Court of Pennsylvania reversed and remanded a jury verdict in favor of the manufacturer of a prescription drug alleged to cause certain side effects in pre-pubescent males. The court held that the trial court erred in permitting a physician’s assistant who treated the plaintiff prescription drug user to testify as to the cause of the plaintiff’s medical condition. The court noted that while the physician’s assistant had qualifications that could have met the standard for an expert witness, the trial court failed to determine if the witness was qualified as an expert witness. (November 13, 2017)

In In re Asbestos Products, the United States Court of Appeals for the Third Circuit addressed whether the “bare-metal defense” under maritime law is available as a defense in asbestos cases. The court held that, in the context of a negligence action, a manufacturer of a bare-metal product can be held liable for asbestos-related injuries when circumstances indicate that the injury was a reasonably foreseeable result of the manufacturer’s actions. (October 3, 2017)

In Elazar v. Macrietta Cleaners, Inc., the Supreme Court of New Jersey addressed whether the 90-day notice requirement under the New Jersey Tort Claims Act barred suit against a township when the facts implicating the township were not known until after the 90 days had expired. The court held that, when the claimant had no reason to believe that the township was implicated, the discovery rule applied to toll the accrual of the claim under the Act. (July 26, 2017)

In Delaware Riverkeeper Network v. Pennsylvania Department of Environmental Protection, the United States Court of Appeals for the Third Circuit considered whether the New Jersey Department of Environmental Protection and the Pennsylvania Department of Environmental Protection properly issued permits to expand a gas pipeline. The court determined that neither entity acted arbitrarily or capriciously because they both examined the relevant data and articulated a satisfactory explanation for their decisions. Accordingly, the permit issuance was upheld. (March 27, 2017)

In N.L. Industries, Inc. v. State of New Jersey, the Supreme Court of New Jersey addressed whether amendments to the New Jersey Spill Compensation and Control Act allowed a private contribution action against the State of New Jersey for activities that occurred before the act became effective. The court held that the amendments did not contain a “clear expression of legislative intent to waive the State’s sovereign immunity retroactively to cover periods of State activity prior to the [act’s] enactment.” (March 27, 2017)

In Geier v. Board of Public Education of the School District of Pittsburgh, the Commonwealth Court of Pennsylvania addressed whether an employer is entitled to governmental immunity under the Tort Claims Act for injuries to employees caused by workplace exposure to asbestos-containing products used for the maintenance of steam and water pipe coverings. The court held that the employer could be held liable to the employee for workplace exposure to asbestos dust because the condition causing exposure fell within the utility service facilities exception to governmental immunity. (January 25, 2017)

In Papp v. Fore-Kast Sales Company, Inc., the United States Court of Appeals for the Third Circuit reversed a remand to state court by holding that the federal officer removal statute applied to asbestos exposure claims against the defendant government contractor. The court further held that the government contractor had a colorable federal defense to the plaintiff’s failure-to-warn claim in the form of the military contractor defense, which asserts that: (1) the government approved specifications for a product; (2) the equipment conformed to those specifications; and (3) the contractor warned the government about dangers known to the contractor but unknown to the government. (November 22, 2016)

In Cumberland Farms v. New Jersey Department of Environmental Protection, the Superior Court of New Jersey, Appellate Division, addressed the enforceability of an alleged settlement between a polluting company and the New Jersey Department of Environmental Protection (DEP) under a voluntary settlement directive the DEP initiated to encourage self-reporting of pollution and early resolution of potential claims under the New Jersey Spill Act, which permits the DEP to seek damages against a responsible party for the loss of use of natural resources adversely affected by the party’s discharge of hazardous substances. The court held that although the company and the DEP had engaged in protracted negotiations regarding 54 polluted sites, no final settlement was ever entered; accordingly, the DEP was permitted to join the company in a separate lawsuit seeking compensation for public contamination related to the 54 sites at issue. (November 2, 2016)

In Chavez v. Dole Food Company, the United States Court of Appeals for the Third Circuit considered the applicability of the federal First Filed Doctrine. Foreign agricultural workers filed suit in the District of Delaware against their employers and chemical companies alleging that they were knowingly exposed to toxic pesticides while laboring on foreign banana plantations. The plaintiffs had filed earlier actions in Louisiana Federal Court, and the Delaware Federal Court was asked to consider whether its later-filed action could proceed. The court found that the federal First-Filed Doctrine applied and dismissed the second-filed case with prejudice. The Third Circuit reversed, finding that, a stay is ordinarily favored over dismissal when the First-Filed Doctrine applies since the case was properly filed before the Delaware federal court and the court improperly relinquished its jurisdiction rather than merely abstaining from it. However, given the long history and the unique procedural posture of the case, the Third Circuit remanded to the District of Delaware to consider whether the plaintiffs’ claims were timely under Delaware law. (September 2, 2016)

In Schwartz v. Accuratus Corporation, the Supreme Court of New Jersey addressed whether someone other than a spouse may bring a viable take-home toxic tort suit. A take-home toxic tort suit occurs when a household member is exposed to and damaged by hazardous materials brought home by an employee on his clothes or person. The court found that in some circumstances someone other than a spouse may bring such a suit. In determining whether a non-spouse may bring suit, the trial court should consider several factors including the relationship of the parties, foreseeability, the employer’s knowledge of the dangerousness of exposure at that time it took place, fairness to the parties, and predictability of the result. (July 6, 2016)

In Peterborough Oil Company, LLC v. Department of Environmental Protection, the Supreme Judicial Court of Massachusetts addressed whether a spill of leaded gasoline falls within the definition of “oil” under an exemption promulgated by the environmental protection agency, relieving companies from undertaking specific cleanup actions if oil is discharged. The court held that the definition of oil in the regulation refers only to petroleum hydrocarbons naturally occurring in oils, but not additives such as lead and, therefore, the spill of leaded gasoline could not be exempted from further remediation. (June 6, 2016)

In Hochendoner v. Genzyme Corporation, the United States Court of Appeals for the First Circuit addressed whether various patients, afflicted with Fabry Disease, had standing to sue a pharmaceutical company for reducing production of the Fabrazyme drug. The court held that most of the plaintiffs had no standing because they did not plausibly allege an injury in fact as a result of accelerated disease progression, or receipt of a contaminated drug, but one plaintiff had sufficiently alleged such an injury, and was allowed to continue in his claim. (May 23, 2016)

In Milward v. Rust-oleum Corporation, the United States Court of Appeals for the First Circuit addressed whether, in a suit by a pipe-fitter/refrigerator technician for exposure to benzene, a judge could properly exclude the testimony of the expert offered to prove causation. Here, the testimony was excluded because expert’s “differential diagnosis” methodology was not sufficiently reliable. The court determined that deeming such expert testimony unreliable is within a judge’s discretion. (April 25, 2016)

In Group Against Smog and Pollution, Inc. v. Shenango Incorporated, the United States Court of Appeals for the Third Circuit addressed whether the diligent prosecution bar under the Clean Air Act (Act) is a jurisdictional bar to a citizen’s suit under the Act.  The diligent prosecution bar provides that a citizen suit may not commence “if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order.”  The court held that diligent prosecution bar is not jurisdictional, because the text of the Act does not explicitly identify it as a jurisdictional bar. However, a citizen’s suit may be dismissed for failing to state a claim if the violations claimed in the civil suit are being diligently prosecuted by a State or the Administrator. (January 6, 2016)

In American Farm Bureau Federation v. EPA, the United States Court of Appeals for the Third Circuit addressed whether the EPA exceeded its scope of authority and violated states’ rights by enacting a total minimum daily load of certain chemicals for pollution reduction in the Chesapeake Bay that, when implemented, went beyond regulating the allowable sum of pollutants in the Bay. The court held that in implementing the total minimum daily load the EPA’s interpretation of the Clean Water Act was reasonable and did not violate states’ rights because the plan was to clean up a channel of interstate commerce. (July 6, 2015)

In Department of Environmental Protection v. Delaware Riverkeeper Network, the Commonwealth Court of Pennsylvania addressed whether the Department of Environmental Protection’s (DEP) sample data underlying DEP’s Technologically-Enhanced Naturally-Occurring Radioactive Material Study is exempt from disclosure. The court held that the collection of the sample data was the result of “a systematic or searching inquiry, a detailed examination, or an official probe” in the course of DEP’s official duties and therefore exempt from disclosure and is not a public record. (April 10, 2015)

In Wygant v. General Electric Co., the Superior Court of Pennsylvania addressed the statute of limitations applicable to asbestos wrongful death actions.  The court held that the statute of limitations period is two years for all asbestos claims, including wrongful death actions, running from the plaintiff’s first diagnosis of an asbestos-related disease. (March 19, 2015)

In Amato v. Bell & Gossett, the Superior Court of Pennsylvania addressed whether expert testimony on human memory by a psychologist was admissible to refute the identification of an asbestos-containing product 40 years after the fact. The court held that the testimony was inadmissible because expert testimony may not address questions of credibility and because a lay juror is capable of assessing the passage of time on witness credibility and reliability. (April 17, 2015)

In Sterling v. P&H Mining Equipment, Inc., the Superior Court of Pennsylvania addressed whether evidence that a worker was exposed to asbestos from a manufacturer’s cranes while working on, under, and inside the cranes was sufficient to prove a causal connection between the cranes and the worker’s lung cancer. The court held that the evidence did not satisfy the frequency, regularity, and proximity standard of causation because no witness testified that the worker actually inhaled any asbestos or dust from the manufacturer’s equipment. (April 17, 2015)

In Com., Dept. of Environmental Protection v. Spangler, the Commonwealth Court of Pennsylvania addressed whether section 503 of the Hazardous Sites Clean-up Act (HSCA) applied to certain above-ground containers of home heating oil because the Storage Tank and Spill Prevention Act of 1989 (the Tank Act) exempts “above ground storage tanks” from regulation.  Comparing the HSCA and the Tank Act, the court determined that materials falling under exceptions to the Tank Act are still subject to regulation under the HSCA.  (January 23, 2015)

In Morristown Associates v. Grant Oil Co., the Supreme Court of New Jersey addressed whether the general six-year statute of limitations applied to private claims for contribution made pursuant to the New Jersey Spill Compensation and Control Act (Spill Act).  The court held that based on the language of the Spill Act and the legislative history, the general six-year statute of limitations was not applicable to private claims of contribution made pursuant to the Spill Act. (January 26, 2015)

In Krauss v. Trane US Inc., the Superior Court of Pennsylvania held that an affidavit from a layperson that provides information upon “knowledge and belief” that certain boilers, turbines and pumps were insulated with asbestos without providing specific evidence upon which he based this determination is insufficient to create a question of material fact sufficient to survive a motion for summary judgment.  Specifically, the evidence failed to demonstrate the frequency, regularity, and proximity of exposure of plaintiff’s decedent to asbestos in products manufactured by the defendants. (October 22, 2014)

In Magic Petroleum Corporation v. Exxon, the Supreme Court of New Jersey ruled that property owners may file claims in Superior Court for contribution under the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24, and the court may allocate liability before the final resolution of a site remediation plan by the New Jersey Department of Environmental Protection. (July 28, 2014)

In R.T. Vanderbilt, Inc. v. Galliher, the Supreme Court of Delaware reviewed a plaintiff’s verdict in a wrongful death claim involving asbestos exposure. At trial, the defendant-manufacturer presented evidence that the plaintiff’s employer was at fault for failing to provide a safe work environment. The Delaware Supreme Court reversed and remanded for a new trial because the trial court failed to instruct the jury on the employer’s duty of care to the plaintiff and the trial court erroneously admitted hearsay testimony, not subject to cross-examination, that the defendant-manufacturer’s employees were “liars” and that defendant had spent millions of dollars “buying senators.”  (July 25, 2014)

In Frances/Graver v. Foster Wheeler Corporation, LLC, the Superior Court of Pennsylvania addressed whether the statute of repose for improvements to real property bars asbestos personal injury claims against designers and contractors. The plaintiff was exposed to asbestos via a large boiler at his workplace which the court held was an improvement to the property within the meaning of the statute of repose. (June 26, 2014)

In Pinelands Preservation Alliance v. State of New Jersey Department of Environmental Protection (NJDEP), the Superior Court of New Jersey addressed whether the NJDEP violated requirements of the state’s Coastal Area Facilities Review Act, when it issued a permit for the development of a Wal-Mart retail store in a protected wetland.  The court found that the revised application for the project, which included new proposals for on and off-site mitigation areas to reverse the potential impacts to endangered or threatened species habitats, qualified the project for approval under the state’s new methodology for evaluating impacts on these areas. (June 3, 2014)

In IMO Adoption of Amendments to the Northeast Upper Raritan,the Superior Court of New Jersey, Appellate Division, addressed whether amendments to the New Jersey Department of Environmental Protection’s Northeast, Upper Raritan, Sussex County, and Upper Delaware Water Quality Management Plans (WQMPs), which established total maximum daily loads limiting the amount of phosphorus discharged into the Passaic River, were institutionally practicable to require strict compliance by upstream treatment facilities from May through October only. The DEP Commissioner determined that an off-season, as-needed treatment plan was practicable.  The court agreed.  After giving the required deference to the Commissioner's expertise, the court found that his decision was not arbitrary, capricious, or unreasonable, and it that it was supported by substantial credible evidence in the record as a whole. (May 15, 2014)

In Wassenar v. Department of Environmental Protection, the Massachusetts Appeals Court considered whether the filing of an affidavit of indigency pursuant to M. G. L. c. 261, §§ 27A-27G also satisfied M. G. L. c. 21A, § 16, which sets forth the requirements for a person who challenges the final assessment of a civil administrative penalty from the Department of Environmental Protection on the grounds of indigency.  The court reasoned that, because M. G. L. c. 261 §§ 27A-27G only addresses a person’s waiver of ordinary costs and filing fees in civil actions, the filing of an affidavit pursuant to M. G. L. c. 261 §§ 27A-27G does not foreclose the indigency issue in the context of M. G. L. c. 21, § 16. (March 5, 2014)

In Martinez v. E.I. Dupont De Nemours and Company, Inc,. the Supreme Court of the State of Delaware addressed venue over a cause of action for asbestos exposure that occurred at the defendant’s plant in Argentina.  Based on the doctrine of forum non conveniens,the court dismissed the cause of action, finding it would cause overwhelming hardship to litigate the case in Delaware, especially given the importance of the foreign sovereign’s right to decide the novel issues of law at stake. (February 20, 2014)

In Gnagey Gas & Oil Co., Inc. v. Pennsylvania Underground Storage Tank Indemnification Fund, the Commonwealth Court of Pennsylvania held that the plaintiff gas company failed to cooperate in the removal of underground storage tanks (USTs) making it ineligible for remediation funds and rendering it liable for funds already paid by the Fund under the Storage Tank and Spill Prevention Act of 1989.  The court held that the Fund had statutory authority to require payment of these funds in the event of fraud by an UST owner.  The court further held that res judicata did not bar re-litigation of plaintiff’s entitlement to funds as the prior decision in plaintiff’s favor was procured by fraud. (December 6, 2013)

In Tumlinson v. Advanced Micro Devices, Inc., the Supreme Court of Delaware addressed whether expert testimony in a birth defects case was unreliable under Delaware Rule of Evidence 702.  Two former employees, who alleged that exposure to chemicals in the Advanced Micro Devices, Inc.’s semiconductor plants led to birth defects in their children, argued that the lower court misapplied the admissibility standards when it excluded the testimony of their expert witness, an epidemiologist.  The court held that the expert testimony failed to meet the reliability factor because the expert was unable to identify which specific chemicals allegedly led to the birth defects; the expert did not account for the employees’ different work environments; and the expert’s methods and conclusions had not been subjected to a scientific journal before the case. (November 21, 2013)

In Tooey v. AK Steel Corporation, the Supreme Court of Pennsylvania held that, where an employee contracts an occupational disease that manifests itself more than 300 weeks after his/her last date of occupational exposure, the Workers’ Compensation Act does not afford the employer immunity and does not bar the employee from filing a common law claim against the employer. (November 22, 2013)

In Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection, the Supreme Judicial Court of Massachusetts addressed whether an individual being fined for improper handling and disposal of asbestos was entitled to a notice of noncompliance and an opportunity to cure violations under the Massachusetts Administrative Penalties Act before a penalty was imposed.  The court determined that the individual knew or should have known about the asbestos, and that the disposal had therefore been willful and not the result of error.  Because the violation had been willful, no notice or opportunity to cure was required before imposition of a fine. (September 16, 2013)

In Morristown Associates v. Grant Oil Company, the Superior Court of New Jersey, Appellate Division, addressed whether the six-year statute of limitations for property damage applies to a private claim for contribution pursuant to New Jersey’s “Spill Act.”  The court also addressed whether the discovery rule he permits one with notice of possible contamination to pursue claims which arose outside of the six-year limitation period.  The court held that the six-year statute of limitations does apply to these claims, and the discovery rule did not toll the statute of limitations because a landowner with sufficient indications of environmental contamination must investigate further. (August 23, 2013)

In United States v. EME Homer City Generation, L.P., the United States Court of Appeals for the Third Circuit addressed a claim brought by the Environmental Protection Agency (EPA) against former owners and current owners of a coal-fired power plant for failing to obtain a preconstruction permit to install pollution control technology, before making changes to the plant, over a decade prior. The court held that the EPA’s claims were properly dismissed as the relief sought would require disturbing the statutory text, and therefore the former owners would not be required to obtain a the missing preconstruction permit on a plant they no longer owned or operated. (August 21, 2013)

In Bell v. Cheswick Generating Station, the United States Court of Appeals for the Third Circuit evaluated whether the Clean Air Act (42 U.S.C. § 7401 et seq.) preempts state law tort claims brought by private property owners against a source of pollution located within the state.  Based on the plain language of the Clean Air Act and controlling Supreme Court precedent, the court concluded that such source state common law actions are not preempted. (August 20, 2013)

In Trinity Industries, Inc. v. Chicago Bridge & Iron Co., the United States Court of Appeals for the Third Circuit considered the extent to which a settlement of state liability for environmental contamination affects the contribution scheme provided by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 and whether injunctive relief under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901, et seq. is available when a remediation plan is already underway.  The court found that CERCLA does not require that a party have settled its liability under CERCLA in particular to be eligible for contribution.  It also found that a denial of a request for injunctive relief was appropriate where it was not demonstrated that the opposing party’s future participation was “necessary” as RCRA  § 7002(a)(1)(B) requires, when the conditions of a consent order were in place and appeared to be effective. (August 20, 2013)

In Interfaith Community Organization v. Honeywell International, Inc., the United States Court of Appeals for the Third Circuit addressed whether offers of judgment pursuant to Federal Rule of Civil Procedure 68 may be made in the context of a dispute for attorney’s fees under the fee shifting provisions of the Resource Conservation and Recovery Act (RCRA). The court held that such offers of judgment are applicable to citizen suits brought under the RCRA, finding that 1) nothing in Fed. R. Civ. P. 68 expressly exempts any type of civil action; and 2) application of Fed. R. Civ. P. 68 in this context does not violate the Rules Enabling Act because it does not abridge any substantive right. In so holding, the court further noted that the intent of an offer of judgment is to encourage settlement, a particularly important objective in attorney fee disputes given the law’s disdain for them. (July 8, 2013)

In Mostyn v. Department of Environmental Protection, the Appeals Court of Massachusetts addressed a dispute regarding a condominium association that has stored kayaks on coastal dunes that belong to a neighboring landowner.  After proceedings that began when the neighbor complained to the town conservation commission that the foot traffic violated the Wetlands Protection Act, the Department of Environmental Protection (DEP) eventually concluded that kayak storage could resume with certain conditions. The court reviewed whether the DEP correctly concluded that the boat storage could resume, or whether boat storage was forbidden where environmental regulations only listed three kinds of projects that “may be permitted” on dunes, of which boat storage is not one. The court held that the DEP was not arbitrary or capricious in concluding that the three approvable uses mentioned by regulation were intended to be illustrative rather than exhaustive. (June 24, 2013)

In In Re: Asbestos Products Liability Litigation, the United States Court of Appeals for the Third Circuit affirmed the dismissal of the claims of three asbestos litigation plaintiffs based on a failure to comply with an administrative order, and a finding that dismissal was proper for noncompliance with the order. The administrative order required plaintiffs to submit a medical report or opinion to support their claim that was capable of withstanding a dispositive motion. Without such compliance, dismissal pursuant to Rule 41(b) for noncompliance with a court order was proper. (May 31, 2013)

In Caronia v. Phillip Morris, the United States Court of Appeals for the Second Circuit addressed whether a plaintiff may maintain an independent cause of action for medical monitoring under New York law where the plaintiff has been tortiously exposed to toxic substances but has not yet exhibited symptoms of cancer.  The court reasoned that while New York intermediate appellate courts have ruled that where plaintiffs have alleged tortious exposure to toxic substances but have not alleged that they suffered physical injuries, the cost of medical monitoring may be awarded as consequential damages, no New York courts have directly addressed the question of whether the state recognizes an independent cause of action for medical monitoring.  Because of the importance of the issue, the court certified the following two questions to the New York Court of Appeals: (1) Whether, under New York law,  a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, can pursue an independent equitable cause of action for medical monitoring for such a disease; and (2) if New York recognizes an independent cause of action for medical monitoring: (a) what are the elements of that cause of action and (b) the applicable statute of limitations and when that cause of action accrues. (May 3, 2013)

In Christopher Heavens v. Department of Environmental Protection, the Commonwealth Court of Pennsylvania addressed whether the Department of Environmental Protection (DEP) properly withheld information under the exceptions to the Right to Know Law (RTKL).  The requestor sought information stemming from an accident. The DEP, while providing some information, exerted numerous exceptions to the RTKL which were found acceptable by the Office of Open Records thus preventing the disclosure of the information sought. The court determined that the DEP showed by a preponderance of the evidence that the exceptions were proper and affirmed the determination of the Office of Open Records. (April 9, 2013)

In Decker  v. Northwest Environmental Defense Center, the United States Supreme Court addressed the interpretation of a regulation promulgated by the Environmental Protection Agency (EPA) implementing the Clean Water Act.  The United States Court of Appeals for the Ninth Circuit had concluded that the EPA’s interpretation of the regulation, regarding the scope of the Industrial Stormwater Rule and whether it applies to the logging industry, was erroneous.  In reversing that decision, the Supreme Court found that when an agency interprets its own regulation, the Court as a general rule, defers to it unless the interpretation is plainly erroneous or inconsistent with the regulation. (March 20, 2013)

In In Re: Diet Drugs, the United States Court of Appeal for the Third Circuit enjoined an individual class member’s lawsuit after the defendant entered into a nationwide class action settlement agreement with users of a certain diet drug since, as part of the settlement agreement, class members were enjoined from suing the drug maker for all diet drug-related injuries.  The class member sought a limited exception when a certain medical marker was exceeded under the settlement agreement.  The court held that, since that marker was not exceeded, the subsequent claim was enjoined. (January 29, 2013)

In Cooper v. Breentag Northeast, Inc., the Superior Court of Pennsylvania addressed whether alleged fraudulent concealment of the effects of a chemical could toll the statute of limitations.  Because an allegation of fraudulent concealment creates an issue of fact as to when a plaintiff discovered that his or her alleged injury may have been caused by a chemical, such an allegation may act to toll the statute of limitations. (January 31, 2013)

In Oviedo v. CSX Transportation, Inc., the Superior Court of Pennsylvania addressed whether expert testimony was indispensable to establishing a standard of care owed by a railroad engineer who allegedly caused a wildfire destroying a large portion of a party’s land.  Because the operation of a locomotive engine is specialized, the common experience of jurors was insufficient to enable them to properly determine the standard of care, and as a result, expert opinion was necessary. (January 31, 2013)

In Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., the United States Supreme Court addressed whether the Los Angeles City Flood Control District (District) violated its permit to discharge storm water into navigable waters due to pollutants flowing out of District-controlled, concrete channels. The Court held that the District did not violate its permit as the upstream flow of polluted water through the concrete channels is not considered a “discharge of pollutants” under the Clean Water Act. (January 8, 2013)

In Arkansas Game and Fish Commission v. United States, the Supreme Court of the United States addressed whether government induced temporary flooding could constitute a taking.  Here, the Army Corps of Engineers, at the request of local farmers, would release quantities of water—controlled by a dam—greater than that authorized by an administrative plan.  This, in turn, caused flooding of the petitioners Wildlife Management Area.  In so holding, the Court reiterated that takings claims turn on situation-specific factual inquiries and the Court found that seasonally recurring flooding can constitute a taking, which may be compensable. (December 5, 2012)

In Hawes Realty Inc. v. Cupo, the Superior Court of New Jersey, Appellate Division, addressed claims of trespass, nuisance, and a right to a prescriptive easement based upon the deposit of asbestos on the plaintiff’s property. The trial court entered summary judgment in favor of the defendant and dismissed the plaintiff’s claims. The plaintiff appealed and the court affirmed that (1) the claim of trespass based on the alleged deposit of asbestos on the plaintiff's property failed because the claims arising from the alleged trespass prior to February 2002 was time-barred, and evidence of any more recent trespass of asbestos-containing materials was wholly speculative, given the other potential sources of such material, including the plaintiff’s own property; and (2) the claim of a prescriptive easement failed because the record showed none of the adversity required to establish a right to a prescriptive easement. (August 2, 2012)

In Delaware Department of Natural Resources and Environmental Control v. U.S. Army Corps of Engineers, the United States Court of Appeals for the Third Circuit addressed whether the Army Corps of Engineers (Corps) could deepen the main channel of the Delaware River by five feet, enabling river ports to be economically competitive, while at the same time complying with environmental protection statutes, including NEPA, the Clean Water Act (CWA) and the Coastal Zone Management Act (CZMA). The court held that the Corps did not act arbitrarily or capriciously in its decision to proceed with the project, and that the agency’s actions were consistent with NEPA, the CWA, and the CZMA. (July 3, 2012)

In Betz v. Pneumo Abex LLC, the Supreme Court of Pennsylvania addressed the admissibility of expert opinion testimony that any exposure to asbestos – no matter how small – contributes substantially to the development of mesothelioma. The defendant-brake manufacturers challenged the testimony as an impermissible novel scientific opinion pursuant to Frye v. United States,293 F. 1013 (D.C. Cir. 1923). The court first held that “novel” does not necessarily mean “new” but applies when an expert has not applied accepted scientific methodology in a conventional fashion. Applying the Frye test to the challenged opinion, the court concluded that the “any exposure theory of causation” was not scientifically reliable and was properly excluded by the trial court. (May 23, 2012)

In Animal Protection League of New Jersey v. New Jersey Dept. of Envtl. Prot. (NJDEP), the Superior Court of New Jersey, Appellate Division considered whether the NJDEP’s Comprehensive Black Bear Management Policy (CBBMP), which permits an annual black bear hunt in New Jersey, was invalid due to the agency’s alleged misrepresentation of findings supporting the CBBMP.  The court held the CBBMP was valid because the agency’s findings were based on sufficient evidence in the record and because the NJDEP had not acted arbitrarily, capriciously, or in bad faith. (December 1, 2011)

In Ravert v. A.W. Chesterton Company, the Superior Court of Pennsylvania decided whether the plaintiff in a mesothelioma case adequately established exposure to asbestos fibers under the Pennsylvania Supreme Court’s frequency, regularity and proximity test despite his admission that he inhaled no visible asbestos-containing dust.  The court held that the test does not require proof of the same regularity, frequency, and proximity in all asbestos cases, but must be adapted to the circumstances of each case.  In allowing the plaintiff’s case to proceed, the court emphasized that mesothelioma is a disease that can be caused by only a small amount of exposure. (October 28, 2011)

In United States v. Donovan, the United States Court of Appeals for the Third Circuit addressed whether land classified as “wetlands” is subject to the Clean Water Act (CWA) for purposes of a government enforcement action seeking remediation of a pollutant discharge by a property owner.  The court held that property is considered “wetlands” subject to the CWA if the wetlands have a continuous surface connection with “waters of the United States” or if the wetlands significantly affect the chemical, physical, and biological integrity of “waters of the United States.” (October 31, 2011)

In Raritan Baykeeper v. NL Industries, the United States Court of Appeals for the Third Circuit addressed whether a lawsuit seeking remediation of contaminated sediment under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA), was properly dismissed based on the doctrine of primary jurisdiction whereby the judicial process is suspended when the claim “requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” The court held that the lawsuit should not have been dismissed because it did not amount to a collateral attack on New Jersey Department of Environmental Protection decision or conflict with any agency order. (October 3, 2011)

In Andreoli v. State Insulation Corporation, the Superior Court of New Jersey, Appellate Division addressed whether a defendant identified two years after the expiration of the statute of limitations was entitled to dismissal despite the plaintiff’s use of fictitious-party practice under Rule 4:26-4 in an asbestos case.  The court held that the defendant would be prejudiced if fictitious pleading was allowed and the statute of limitations defense warranted dismissal. (October 5, 2011)

In Department of Environmental Protection v. Cumberland Coal Resources, LP, the Commonwealth Court of Pennsylvania reviewed whether the Department of Environmental Protection (DEP) had the authority under the Bituminous Coal Mine Safety Act (the Act) to issue certain compliance orders for the failure of coal mining companies to report accidents in accordance with the Act.  The court held that the DEP’s orders exceeded its interpretive authority under the Act, and constituted a prohibited legislative function. (September 20, 2011)

In Minard Run Oil Co. v. United State Forest Service, the United States Court of Appeals for the Third Circuit addressed a dispute between the U.S. Forest Service and private owners of mineral rights in the Allegheny National Forest.  After decades of allowing access on a cooperative basis, the Forest Service decided to effectively halt drilling pending the completion of an Environmental Impact Study.  The court affirmed an injunction against the Forest Service, holding that the Forest Service does not have the broad authority it claimed over private mineral rights owners’ access to surface lands and that the regulatory scheme does not impose a permit requirement for owners to access surface lands. (September 20, 2011)

In Price v. E.I. DuPont, the Supreme Court of Delaware addressed whether an employer owed a duty to the spouse of a former employee sufficient to support a cause of action for injuries relating to asbestos exposure. The court held that the employer owed no duty to the spouse of an employee who was exposed to asbestos on the employee's clothing even though the employer provided health insurance to the spouse and the spouse attended company outings. (July 11, 2011).

In Chalfont-New Britain Joint Sewage Authority v. Department of Environmental Protection, the Commonwealth Court of Pennsylvania addressed the recoverability of attorneys' fees and costs under the Clean Streams Law. The court held that such fees are recoverable and reversed an Order of the Environmental Hearing Board denying such fees after the petitioners appealed EPA approval of Total Maximum Daily Load Assessments (TMDL). The court found that the DEP's subsequent withdrawal of the TMDL was not a temporary benefit, as it advanced the statutory goal of ending water pollution and petitioners attempted to settle their appeal with the DEP and therefore the petitioners were entitled to attorneys' fees and costs. (June 15, 2011)

In Linster v. Allied Signal, the Superior Court of Pennsylvania addressed the identification evidence required for a plaintiff's asbestos claims to survive summary judgment. The court held that there was sufficient evidence to establish a causal connection between the plaintiff's mesothelioma and the product in question where the evidence included testimony that a defendant's product was on site and the plaintiff's co-workers who had worked in the same specific areas as the plaintiff recalled dust from the defendant's products in the area. (April 21, 2011)

In Reeser v. NGK North American, the Superior Court of Pennsylvania held that an engineering firm could not be liable to a personal injury plaintiff based its failure to report the results of its testing of emissions from a beryllium plant to any government agency or to the neighboring community. (January 24, 2011)

In Betz v. Pneumo Abex LLC., et. al., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider a question related to the admissibility of expert testimony in a friction-product asbestos case. The question that the court agreed to consider is: "Did the Superior Court err in reversing the trial court's decision to exclude the testimony of Plaintiff's expert in this friction-product asbestos case?" (December 1, 2010)

In Betz v. Pneumo Abex, the Superior Court of Pennsylvania addressed the admissibility of expert testimony supporting the "each and every breath" theory in asbestos cases. The defendants moved to preclude the plaintiffs' experts, arguing that the experts' theory that continuous exposure to low levels of asbestos resulted in pulmonary disease is not generally accepted by the scientific community. The trial court agreed with the defendants, and precluded the testimony of the plaintiffs' medical experts. The Superior Court reversed, holding that the record did not contain any evidence that called the experts' methodology into question. (April 30, 2010) 

In Estate of Louise A. Hicks v. Dana Companies, LLC, et al., the Superior Court of Pennsylvania addressed a number of issues associated with its grant of reargument en banc in an asbestos case. The court granted reargument principally to determine the impact of the Supreme Court's decision in Gregg v. V-J Auto Parts Company, 596 PA. 274, 943 A.2d 216 (2007), a case that addressed the appropriate application of the "frequency, regularity, proximity" criteria in asbestos product liability litigation . The defendants in Hicks argued that pursuant to Gregg, the plaintiff's expert's testimony, to the effect that each and every exposure to asbestos is significant in the causation of mesothelioma because each and every exposure adds to the asbestos burden, was insufficient to establish causation. The court rejected the argument, and distinguished cases against defendants charged with only isolated exposures from those where the defendant is charged with repeated, low-level exposures over an extended work history. The court read Gregg "as recognizing that the amount of evidence needed to satisfy the frequency, regularity and proximity test so as to survive summary judgment will differ from case to case due to the various diseases which are associated with asbestos exposure, the medical evidence presented, the types of asbestos involved, the manner in which the products are handled, and the tendency of those asbestos products to release asbestos fibers into the air." Because the plaintiff presented evidence that the decedent inhaled dust from the defendants' asbestos-containing gaskets and packing over a substantial period, as well as evidence that this cumulative exposure, even if only at low-dose levels each time, was a substantial contributing factor in the decedent's development of malignant mesothelioma, there was no basis for entering judgment notwithstanding the verdict in the defendants' favor.

Another issue addressed by the court was whether the trial court erred in excluding evidence of government safety standards to disprove the existence of a defect, or to disprove causation. The court clarified its prior conflicting case law, and held that evidence of government regulations is inadmissible in strict liability cases because introducing such evidence has the effect of shifting the jury's attention from the existence of a defect, to the reasonableness of the manufacturer's conduct.

The court also addressed the propriety of the trial court's jury instruction on causation. The trial court's instruction to the jury indicated that the plaintiff had the burden of proving that he inhaled asbestos fibers, that the defendants manufactured the defective product, and that the defective product was a factual cause of the plaintiff's harm. Regarding factual cause, the court instructed the jury that a defective condition is a factual cause of the harm if the harm would not have occurred absent the defect. In other words, a defective condition in a defendant's asbestos-containing product is the factual cause of mesothelioma if the mesothelioma would not have occurred without exposure to the defendant's product. The Superior Court held that, although the trial court's initial factual cause instruction may have been confusing, the trial court's subsequent, clarifying instructions, correctly stated the law. (November 18, 2009)

The Supreme Court of Pennsylvania, in Johnson v. American Standard, et. al., granted a petition for allowance of appeal in consolidated cases to decide the following question: "Whether petitioners have standing to raise constitutional challenges to 15 Pa.C.S. § 1929.1 based upon its alleged violation of the Commerce Clause and Equal Protection Clause." Section 1929.1 limits asbestos-related liabilities relating to certain mergers or consolidations. (November 4, 2009)

In Abrams v. Pneumo Abex Corp, et al., the Supreme Court of Pennsylvania addressed the application of the "two disease" rule in an asbestos case. The court held that a prior recovery of damages for increased risk and fear of developing cancer due to asbestos exposure, awarded under the "one disease" rule, did not preclude the plaintiff from recovering damages in a second action, against a party not previously sued, for cancer that developed and was diagnosed after the "two disease" rule was adopted. The court cited the "two disease" rule adopted in Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa. Super. 1992), and modified in Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996). (October 21, 2009) 

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