Category Archives: Toxic Tort

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District of Columbia Adopts Rule 702 Standard in Cell Phone Brain Tumor Cases

On October 20, 2016, the District of Columbia Court of Appeals abandoned the long-used Dyas/Frye test to govern the admissibility of expert testimony in favor of the standards embodied in Rule 702 of the Federal Rules of Evidence. The court issued its decision after the lower court permitted plaintiff expert opinions linking cell phone use to brain tumors under the then-existing Dyas/Frye standard. In the matter of Motorola Inc. v. Henry, plaintiffs in thirteen cases had sued numerous cell phone manufacturers, service providers…

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Talc Defendant Found to Have Consented to Personal Jurisdiction in Denial of its Motion to Dismiss

Nancy Bors, as administrator of the Estate of Maureen Milliken, brought this action against Imerys Talc America Inc. and Johnson and Johnson for claims in negligence for their “design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of Johnson and Johnson baby powder” Milliken allegedly developed and died from ovarian cancer. Imerys moved to dismiss and argued that the court lacked jurisdiction or in the alternative for failure to state a claim. Specific to its argument, Imerys took the position that it had…

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The Federal Rules of Civil Procedure Amended to Address Proportionality of Discovery

Relief may be in sight for the discovery costs of large corporate defendants involved in toxic tort litigation. As happens all too often in  toxic tort cases, a single plaintiff (or a group of similarly situated individuals) asserts claims against one or more large corporations that have been in business for many years. Due to the length of the corporation’s existence, there is a voluminous amount of corporate information and documents. When the plaintiff’s predicatably requests the entirety of these documents in the discovery process,…

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New Jersey Rules No Scientific Connection Between Talc and Ovarian Cancer

This year, an emerging legal and scientific battle is brewing across the country as to whether use of talc products by women in the perineal area can lead to ovarian cancer. While the FDA has stated there is no established casual connection and those products remain on the market, two St. Louis courts permitted plaintiffs’ experts to testify as to a causal connection, which resulted in juries awarded $72 million and $55 million against Johnson and Johnson. Those verdicts have led to a spike in…

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New Regulations for the Prevention of Legionnaires’ Disease: Implications for Product Manufacturers

Legionnaires’ disease, or legionellosis as it is known in medical circles, is a severe form of bacterial pneumonia first identified in 1976 following an outbreak among those attending an American Legion convention held at the historic Bellevue Stratford Hotel in Philadelphia. Research has since proven legionellae bacterium to be ubiquitous, occurring naturally in lakes and streams as well as potable water distribution systems. Studies have established that legionellae is present in virtually all municipal water supplies at some level. Given a proper food source, stagnant…

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New Jersey’s High Court Opens Door for Toxic Tort Liability to Individuals Other Than Spouses in Take-Home Exposure Cases

In a recent decision, the New Jersey Supreme Court unanimously ruled that the premise liability of a landowner can go beyond the spouse of an exposed person of a toxic substance on the landowner’s property. In its ruling, the court would not set a limitation as to how far the duty could extend, but stressed each case would have to be determined on its own facts. In the case, the plaintiffs, Paul and Brenda Ann Schwartz, claimed that Mr. Schwartz was exposed to beryllium that…

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Simply Naming Defendants in Interrogatory Responses Held Insufficient For Plaintiff to Prevent a Shifting of Burden of Proof on Summary Judgment In New York, Erie County Case

On May 26, 2016 a decision and order in Blamowski v. Air & Liquid Systems, Inc., et al., Index No. 808655/2014 came down granting summary judgment to several defendants in a take-home deceased mesothelioma case. In this case, it was alleged that the decedent was exposed to asbestos from laundering her husband, Eugene Blamowski’s, work clothes. Mr. Blamowski worked as a laborer at Bethlehem Steel from 1955-84, with the exception of his Army service from 1958–62. He and the decedent were married in 1965…

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California Supreme Court Tackles Sophisticated Intermediary Doctrine

Raw suppliers that place their products in the stream of commerce face a dilemma regarding the uncertainty of their duty to warn of the potential hazardous nature of their products. The sophisticated intermediary doctrine is one weapon a raw supplier has against the presumption that a supplier of a hazardous raw material has a general duty to warn all downstream users. The sophisticated intermediary doctrine originated in the Restatement Second of Torts in an attempt to define the duty of a supplier. The doctrine allows…

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Does a Recent Vermont Supreme Court’s Affirmation of Trial Court’s Dismissal of State’s Claims Against Groundwater Defendants Based on Limitations Really Mean Additional Claims?

Potential groundwater contamination defendants may want to watch for additional claims after a recent Vermont Supreme Court decision affirming the dismissal of claims against groundwater defendants based on limitations. This case involved alleged contamination of Vermont’s groundwater. The plaintiff was the State of Vermont and the defendants included at least 27 energy companies. After years of alleged contamination as a result of Methyl tertiary butyl ether (MTBE) leaking into groundwater, the State of Vermont brought claims based on public nuisance, private nuisance, trespass, negligence, strict…

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New York Court of Appeals Clarifies Term “Reside,” Affirms Summary Judgment in Lead Case

On April 5, 2016, the Court of Appeals of New York handed down a decision that clarifies the definition of “reside” as that term is used in Administrative Code § 27-2013[h][1] [Local Law 1], which governs a building owner’s duty to remove certain surface-coating material (e.g., lead) from the inside of apartment spaces. Local Law 1 states that “The owner of a multiple dwelling shall remove or cover in a manner approved by the Department any paint or other similar surface-coating material having a reading…

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