CAUSATION

California Appellate Court Upholds "Every Exposure" Theory

Deferring to the role of a jury in resolving questions of competing scientific theories, a California appeals court upheld a trial court’s ruling allowing expert testimony based on the “every exposure” theory, calling it “the subject of legitimate scientific debate.” See Davis v. Honeywell Int’l Inc., 199 Cal.Rptr.3d 583 (Cal. Ct. App. 2016).

Fifth Circuit Affirms Exclusion of Expert Testimony Tying Gasoline to AML

The U.S. Court of Appeals for the Fifth Circuit upheld a trial court’s decision to exclude expert testimony that exposure to gasoline caused acute myeloid leukemia (“AML”) in a former gas station attendant and mechanic, highlighting the importance of the distinction between a product and its component parts in exposure cases. See Burst v. Shell Oil Co., 2016 WL 2989261 (5th Cir. May 23, 2016). (Our prior coverage of the trial court ruling is available here.)

Union Carbide Corp. Not Liable for Property Damage From 1984 Bhopal Leak

In the most recent case stemming from the 1984 chemical plant leak in Bhopal, India, the U.S. Court of Appeals for the Second Circuit further clarified the circumstances in which an entity other than the owner or operator of a site may be liable at common law for a chemical release at that site. See Sahu v. Union Carbide Corporation, No. 14-3087-cv (2d Cir. May 24, 2016). Plaintiffs claimed property damage from leaks from a waste storage facility at the Union Carbide India Limited (“UCIL”) plant in Bhopal, and sued Union Carbide Corporation (“UCC”), a majority stockholder in UCIL, for nuisance, trespass, strict liability, and negligence.

New York Court Dismisses Chemical Sensitivity Claims for Lack of Causation

Illustrating the difficulty in pursuing a multiple chemical sensitivity (MCS) claim, a New York appeals court upheld dismissal of Plaintiff’s toxic tort claim because he failed to establish a causal link between chemical exposure and his symptoms. See Abrams v. Related, L.P., 2016 BL 91070 (N.Y. App. Div. March 24, 2016).

CLASS ACTIONS

Eighth Circuit Rejects Bifurcated TCE Class Certification

In a case that highlights the complexity of structuring class actions, the U.S. Court of Appeals for the Eighth Circuit reversed a trial court’s decision to certify a class claiming damages from trichloroethylene (TCE) contamination. See Ebert v. Gen Mills, Inc., 823 F.3d 472 (8th Cir. 2016). The Eighth Circuit held that the trial court abused its discretion by narrowing the putative class and the issues before the court.

STATUTE OF LIMITATIONS

Vermont’s Statewide MTBE Claims Time-Barred

In an opinion that reinforces the importance of the statute of limitations to defendants, the Vermont Supreme Court upheld a trial court’s decision that the State’s claims of a “generalized injury” from methyl tertiary butyl ether (“MTBE”) groundwater contamination were time-barred under Vermont law. See State of Vermont v. Atlantic Richfield Co., 2016 VT 61 (May 27, 2016). The State brought suit in 2014, alleging that gasoline refiners and marketers were liable for knowingly distributing gasoline containing the oxygenate, which then leaked into groundwater across the state.

Nuisance Claims for Injunctive Relief Not Barred by New York’s Statute of Limitations

In a case that highlights the importance of careful pleading in toxic tort cases, a New York federal court revived a landowner’s nuisance claim related to gasoline contamination, to the extent the Plaintiff sought injunctive relief. See Plumbing Supply, LLC v. ExxonMobil Oil Corp., 14-cv-3674 (S.D.N.Y. May 27, 2016).

JURY VERDICT

Missouri Federal Jury Awards $20.6 Million for TCE Exposure; No New Trial

A Missouri federal court denied a ball bearings manufacturer’s request for a new trial after a jury hit it with $20.6 million in compensatory and punitive damages in a trichloroethylene (“TCE”) exposure case, and the Court denied Defendants’ request for a new trial. Kirk v. Schaeffler Group USA, Inc., No. 3:13-cv-5032 (W.D. Mo. July 13, 2016).