October 25, 2012
477 Madison Avenue, 15th Floor
New York, NY 10022-5835
(212) 702 5417
477 Madison Avenue, 15th Floor
New York, NY 10022-5835
(212) 702-5414


› Daniel M. Berner
› Daphne A. Rubin-Vega
› Sara L. Vink
› Toren M. Elsen

For more information about our firm, please visit www.bdlaw.com.

Office Locations:
› Washington, DC
› Maryland
› New York
› New Jersey
› Massachusetts
› Texas
› California



Ninth Circuit Further Limits Climate-Nuisance Suits

Further limiting available grounds for plaintiffs to seek redress for injuries allegedly due to climate change, on September 21st, the Ninth Circuit Court of Appeals upheld the dismissal of an action brought by the Native Village of Kivalina and the City of Kivalina (collectively “Kivalina”) against multiple oil, energy and utility companies (the “Energy Companies”). 

Two State Courts Allow Greenhouse Gas Claims to Proceed on Public Trust Theory

In a new wave of climate change litigation that could pave the way for state-level regulation of greenhouse gas emissions, at least two courts have extended the “public trust” doctrine to include protection of the air and atmosphere. 


Maryland Appellate Court Rejects “Any Exposure” Theory

Providing another blow to a favorite theory of plaintiffs in toxic tort cases – that exposure to any amount of a hazardous substance can cause an injury – the Maryland Court of Special Appeals vacated a $3 million judgment awarded to a plaintiff, concluding that plaintiff’s expert failed to quantify the probability of causation or provide a meaningful assessment of the risk imparted by the exposure at issue. 

New Jersey Court Finds Expert Cannot Link Cancer to Cleaning Products

Rejecting expert opinion testimony not founded on facts, a New Jersey appellate court affirmed a lower court ruling granting defendants summary judgment on plaintiffs’ product liability and negligence claims. 


Texas Recognizes Migration of Injectate as Basis for Subsurface Trespass Claim

On a case of first impression in Texas, a Texas appellate court held that an owner of land may assert a claim of trespass for the migration of subsurface wastewater injectate from an injection well on adjacent property. 

Minnesota High Court Holds Pesticide Drift Cannot Constitute Trespass

Striking a blow to landowners who may wish to sue over pesticide drift onto their land, the Minnesota Supreme Court held that such an invasion does not constitute trespass. 


Kansas High Court Rejects Special Rule for Water Contamination Cases

Rejecting a special rule that would have imposed strict liability for any activity resulting in the contamination of “water resources,” the Kansas Supreme Court reversed a trial court’s ruling that Defendant was strictly liable because its activities, which allegedly resulted in groundwater contamination at a former refinery location, were abnormally dangerous as a matter of law.


Colorado Court Rejects Anticipatory Claims to Enjoin Fracking

Further limiting plaintiffs’ ability to assert potential claims related to hydraulic fracturing or “fracking,” a Colorado trial court granted a motion to dismiss plaintiffs’ claim that was, in essence, an “anticipatory nuisance” claim. 


California Court Dismisses Non-Residents’ Decades-Old Toxic Exposure Claims

California’s preferential treatment towards its own residents was put to the test recently when thousands of Filipino citizens sought redress in California courts for 30-year-old products liability claims. Dismissing plaintiffs’ action, a state trial court held that their claims were not timely filed nor did they meet the requirements under the equitable tolling doctrine to extend the statute of limitations period. 

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