July 16, 2013
477 Madison Avenue, 15th Floor
New York, NY 10022-5835
(212) 702 5417
477 Madison Avenue, 15th Floor
New York, NY 10022-5835
(212) 702-5415

Contributors:
› Benjamin E. Apple
› Edward M. Grauman
› Sarah E. Wegmueller
› Nicole B. Weinstein
› Toren M. Elsen



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

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I.   CAUSATION

Colorado Appeals Court Rejects Lone Pine Order in Fracking Case

In a decision that may make it easier for certain plaintiffs to maintain a toxic tort case in Colorado, a Colorado appellate court ruled that a trial court could not order a small number of plaintiffs in a toxic tort case to present prima facie evidence before discovery begins in support of their claims of exposure due to hydraulic fracturing (or “fracking”) operations.

California Trial Court Rejects Defense Argument That State Must Establish Locations with Specificity in Statewide Lead Paint Suit

Refusing to require plaintiffs in a state-wide action to identify specific sites at issue, a California Superior Court judge denied summary judgment to certain paint manufacturers in a pending nuisance action for abatement of lead-based paint in homes and buildings throughout the State of California.

Los Angeles County Nuisance Claim Survives on Grounds that Defendant Cities “Generated” Stormwater Runoff

In a decision that may facilitate certain nuisance suits against municipalities, a California appellate court held that the County of Los Angeles may pursue its nuisance claim against two municipalities for discharging a “toxic soup” of urban and stormwater runoff into County waters.

Testimony that Worker Used Product Sufficient to Defeat Manufacturer’s Summary Judgment Motion in Exposure Case

Testimony by a coworker that he personally observed Plaintiff’s husband using Defendant’s products at work was sufficient to survive a summary judgment motion in an action alleging that a worker’s exposure to such product caused leukemia, according to a California appeals court.  

II.   PRODUCTS LIABILITY

Indiana Court Presumes Lack of Defect Due to Manufacturer’s Compliance with Federal Pesticide Law

Compliance with federal pesticide law and state labeling requirements entitles a pesticide registrant to a presumption that the product is not defective under Indiana law, according to the Indiana Court of Appeals.

III.   CLIMATE CHANGE

Fifth Circuit Upholds Dismissal of Katrina Global Warming Suit on Res Judicata Grounds

Continuing a spate of rulings against plaintiffs claiming injury from climate change, the U.S. Court of Appeals for the Fifth Circuit on May 14 affirmed a lower court’s dismissal of a lawsuit brought by a group of Mississippi Gulf Coast residents and property owners who alleged that greenhouse gas emissions from defendant energy companies’ facilities contributed to global warming, which intensified Hurricane Katrina, which, in turn, damaged their property.

IV.   CLASS ACTIONS

State Corporation Website Insufficient to Establish Citizenship of Corporate Class Members in Pollution Class Action

Striking a blow to plaintiffs trying to remand an action back to state court, the Northern District of Georgia found that office address information from a state’s corporation website is not sufficient to establish citizenship of corporations or partnerships for the purposes of showing class members’ residency under the “local controversy” provision of the Class Action Fairness Act (CAFA).

Third Circuit Finds Continuous Release of Hazardous Chemicals To Be an “Event or Occurrence” Sufficient for Remand under Class Action Fairness Act

In a victory for plaintiffs seeking to keep their mass tort actions in state court, the U.S. Court of Appeals for the Third Circuit held the continuous release and dispersal of hazardous or toxic chemicals qualifies as an “event or occurrence” under the Class Action Fairness Act (“CAFA”), allowing a federal District Court to remand a mass action to a state trial court.

V.   LEGISLATION

Oklahoma Supreme Court Finds Comprehensive Tort Reform Law Unconstitutional

To the chagrin of tort reform advocates, the Oklahoma Supreme Court found, by a 7-2 majority, a comprehensive tort reform law unconstitutional on the grounds that the 90-section law violated the state single-subject rule, which prevents the legislature from crafting “veto-proof” bills that combine unrelated subjects.

 
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