October 28, 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:
› Alexander B. Horning
› Jessalee L. Landfried
› Gayatri M. Patel
› Meghan E. Grissler



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

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PREEMPTION

Third Circuit Finds Clean Air Act Does Not Preempt State Tort Claims

In a decision that may make it easier for plaintiffs to maintain tort claims against certain facilities permitted under the federal Clean Air Act, the U.S. Court of Appeals for the Third Circuit held that property owners could bring nuisance, negligence, and trespass claims against a power plant allegedly releasing particulates onto their properties.

TRESPASS

South Carolina High Court Finds Odors and Intangibles Do Not Constitute Trespass

Calling into question a jury’s multi-million dollar award to the neighbors of a landfill, the South Carolina Supreme Court sided with the minority of states and determined that South Carolina law does not recognize a cause of action for trespass solely from odors.

Fourth Circuit Rejects Surface Owners’ Trespass Claim Against Drilling Operator

In a victory for hydraulic fracturing interests, the Fourth Circuit held that Chesapeake Energy Corp. did not commit common law trespass upon surface owners’ rights by developing natural gas wells below their farmland.

DAMAGES

Texas Jury Declines to Award Damages in $10B Toxic Flaring Case

In the first test case in a series of actions involving about 48,000 plaintiffs, a Texas jury declined to award damages in an action against Defendant BP Products North America’s Texas City Refinery, despite finding that the refinery had negligently flared approximately 500,000 pounds of noxious chemicals.

MEDICAL MONITORING

Sixth Circuit Upholds Rule 11 Sanctions for “Meritless” Medical Monitoring Claims

In a decision that may discourage the assertion of certain medical monitoring claims, the U.S. Court of Appeals for the Sixth Circuit upheld $250,000 in sanctions on Plaintiffs’ counsel for filing “meritless” medical monitoring claims against Chevron, USA, Inc.

CAUSATION

Sixth Circuit Requires Expert Testimony to Prove Causation in Paper Mill Nuisance Case

Bolstering the defense view that competent expert testimony is typically required to prove causation in toxic tort actions, the U.S. Court of Appeals for the Sixth Circuit granted summary judgment dismissing property owners’ claims that the Defendant paper mill’s effluent interfered with their right to use and enjoy property.

Maryland High Court Allows “Every Exposure” Testimony in Asbestos Case

Overturning what some commentators had considered a leading opinion rejecting the so-called “any exposure” theory, Maryland’s highest court ruled that an expert may testify that “every exposure to asbestos is a substantial contributing cause” of mesothelioma.

Iowa Supreme Court Strikes "Exposure Estimate" Testimony in Pesticide Suit

Striking a blow to toxic tort plaintiffs who rely on estimates, as opposed to actual data, the Iowa Court of Appeals found that expert testimony relying on such “exposure estimates” was insufficient to prove causation of birth injuries associated with use of a pesticide.

CLASS ACTIONS

Georgia High Court Certifies Landowner Class in Noxious Fumes Suit

Although courts often decline to certify classes in environmental exposure or contamination cases due to differing circumstances among the plaintiffs, the Georgia Court of Appeals found that a group of property owners claiming hydrogen sulfide gas emissions from a paper mill had damaged their property had demonstrated sufficient commonality to warrant class certification.

 
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