Toxic Tort



  • Illinois Prejudgment Interest Update: Motion Challenges in the Circuit Court of Cook County

    Illinois Prejudgment Interest Update

    August 30, 2022

    Constitutional challenges to llinois’s prejudgment interest statute, 735 ILCS 5/2-1303(c), were consolidated for decision by Judge Marcia Maras and on May 27, 2022, Judge Maras held that the statute is unconstitutional. In response to Judge Maras’s ruling, which has not yet been addressed by a reviewing court, the Circuit Court of Cook County established a protocol for handling further motions challenging the statute on constitutional grounds or with respect to its application in a particular case.

  • Illinois Prejudgment Interest Update: Prejudgment Interest Statute Held Unconstitutional

    Illinois Prejudgment Interest Statute Held Unconstitutional

    June 1, 2022

    Since the Illinois prejudgment interest statute took effect on July 1, 2021, numerous constitutional challenges were raised in cases pending in the Circuit Court of Cook County. These challenges were consolidated for decision by Judge Marcia Maras, and on May 27, 2022, Judge Maras held that the prejudgment interest statute is unconstitutional.

  • Journal of Emerging Issues in Litigation (Fastcase): Waters Authors Litigation Section of PFAS Article

    Journal of Emerging Issues in Litigation (Fastcase)

    July 29, 2021

  • Illinois Prejudgment Interest – June Update

    Illinois Prejudgment Interest – June Update

    June 7, 2021

    Pursuant to Illinois Public Act 102-0006 ‒ signed into law by Governor J.B. Pritzker on May 28, 2021 ‒ the Illinois judgment interest statute now imposes prejudgment interest in all actions brought to recover damages for personal injury or wrongful death.

  • Illinois Prejudgment Interest Legislation – UPDATE

    UPDATE on Illinois Prejudgment Interest Legislation

    March 29, 2021

    While Illinois Senate Bill 72 is an improvement over House Bill 3360, vetoed by Governor J.B. Pritzker on March 25, 2021, it is still problematic. If enacted into law, Senate Bill 72 would impose prejudgment interest on noneconomic damage awards for pain and suffering. Non-economic awards can never be anticipated with mathematical precision and often comprise the lion’s share of a personal injury or wrongful death verdict.

  • Maryland Adopts Daubert Standard for Expert Testimony: Fallout from Jurisprudential Drift

    Maryland Adopts Daubert Standard for Expert Testimony

    September 30, 2020

    In a four-three majority opinion, the Court of Appeals of Maryland adopted the Daubert standard for admitting expert testimony, holding that Maryland will now “implement a single standard by which courts evaluate all expert testimony: Daubert.” In so doing, the court reasoned that Maryland has been drifting toward the Daubert factors and that application of a single, uniform test for the admissibility of expert testimony would provide trial courts with clearer guidance and instruction.

  • Vaping and COVID-19: Expect a Wave of Litigation Based on Unsubstantiated Public Concern and Studies with Uncertain Validity

    Vaping & COVID-19: A Wave of Litigation Based on Uncertain Science

    May 15, 2020

    Past litigation has taught us that unsubstantiated public concern may expose an entire industry to waves of product liability lawsuits and settlement payments in the range of billions of dollars. It is therefore important that producers and companies in the chain of distribution of vaping liquid and devices closely monitor the scientific developments on any possible associations between vaping and COVID-19, and consider making risk management arrangements in anticipation of future lawsuits.
  • Colorado Court of Appeals Permits Evidence of Billed Workers’ Compensation Benefits at Trial

    CO Court on Admissibility of Evidence of Past Medical Expenses

    June 24, 2019

    A recent decision by the Colorado Court of Appeals might be viewed as creating a windfall in favor of injured employees and rendering pre-suit settlement negotiations with workers’ compensation carriers significantly less meaningful. Nonetheless, this decision appears to be in line with Colorado courts’ propensity for providing unavoidable windfalls to an injured plaintiff rather than insurance carriers or tortfeasors.

  • Glyphosate Update

    DAC Beachcroft | Legalign Global

    June 5, 2019

  • IME "Watchdog" Companies: Challenging the Scope of Their Services and Ability to Testify at Trial

    Observer’s Role in Independent Medical Examinations

    August 28, 2018

    The Appellate Division has found that the essential function of a watchdog is to observe the examination and take notes, and be available to testify about the observation at trial. In contrast, if a plaintiff’s attorney would not be able to offer similar testimony without the risk of becoming a fact witness, such attorney is disqualified from representation.

  • California Supreme Court Imposes Broad Liability for Employers and Premises Owners in “Take-Home” Toxic Exposure Cases

    Liability in “Take-Home” Toxic Exposure Cases

    December 19, 2016

    After a December 1, 2016, ruling by the California Supreme Court, defendants in “take-home” cases may now anticipate that “no duty” defenses at the pleadings or summary judgment stages will be significantly more difficult to prevail upon. The analysis now turns on a fact-dependent “reasonable foreseeability” test, as opposed to the bright-line “no duty” rules permitted by prior cases.

  • NJ Supreme Court Opens Door to More Take-Home Exposure Claims against Landowners

    NJ: Expansion of Take-Home Exposure Claims

    August 1, 2016

    A recent ruling by the New Jersey Supreme Court will mean that defendant landowners will now have more difficulty in early dismissals of take-home chemical exposure claims filed by non-spouses. The defendant landowners will be barred from filing Motions to Dismiss at the start of the litigation since the question of liability to a non-spouse is no longer a question of law but a fact question for which discovery is needed. 

  • Will the Ancient Document Exception to the Hearsay Rule become Ancient History?

    “Ancient Document” Exception to the Hearsay Rule

    June 27, 2016

    Will the Ancient Document Exception to the Hearsay Rule become Ancient History? The proposed abrogation of the Federal Rule of Evidence regarding the “ancient documents” exception to the hearsay rule, if enacted, would be effective December 1, 2017.  While enactment would have minimal or no effect on many areas of the law, it would profoundly affect other areas such as prosecution of sexual or child predators and war criminals. Additionally, it would have implications in the environmental and coverage arena where documents more than 20 years old are frequently used to establish liability and coverage.

  • An Overview of Asbestos Litigation in California

    California Litigation, the Journal of the Litigation Section, State Bar of California - Vol. 29 | No. 1 2016

    March 28, 2016

  • Southern District of Illinois Court Denies Motion to Exclude “Every Exposure” Opinion

    “Every Exposure” Theory Given Credence

    November 18, 2015

    In a recent opinion, Judge Staci M. Yandle of the Southern District of Illinois found that information on which the plaintiff’s expert based his report – an examination of the plaintiff, a review of his occupational and medical records, and a review of his history of military service as well as his smoking history and a chest x-ray – was sufficient to support his “every exposure” theory.

  • Illinois Supreme Court Decision Bars Employee from Bringing a Direct Civil Action against Employer for Alleged Asbestos Exposure Injuries

    Illinois Workers’ Compensation Exclusivity Provisions

    November 12, 2015

    In a recent decision, the Illinois Supreme Court held that exclusivity provisions of the Workers’ Compensation Act bar recovery against employers in direct action lawsuits arising from asbestos exposures, even though no recovery can be obtained under the Workers’ Compensation Act due to the expiration of the statute of repose.

  • Connecticut Expands Loss of Consortium Claims to Minor Child

    Connecticut Expands Loss of Consortium Claims

    October 5, 2015

    The Connecticut Supreme Court has joined the majority of jurisdictions that recognize the right of minor children to bring parental consortium claims, which are likely to become commonplace under the decision to be officially released on October 6, 2015. However, the Court placed certain restrictions on the ability to bring suit and right of recovery.

  • Natural Contaminants Exceed Human-Made Contaminants in California’s Groundwater

    Source of Contaminants in California’s Groundwater

    July 29, 2015

    A recent study by the U.S. Geological Survey analyzed geographical areas and population centers as indicators of groundwater quality in California to capture a more accurate regional picture of water resources, an approach that could help water providers, regulatory authorities and policy makers relate groundwater quality to health outcomes.

  • Proposed California Legislation Would Mandate Asbestos Bankruptcy Trust Disclosures Statewide

    CA Bill on Asbestos Bankruptcy Trust Disclosure

    July 13, 2015

    California’s proposed Asbestos Tort Claim Trust Transparency Act, if passed, would require asbestos plaintiffs to disclose all asbestos bankruptcy trust claim documents in asbestos tort actions. In addition, plaintiffs would be required to submit a sworn statement identifying the status of each claim, including all monies requested and received.

  • Colo. Lone Pine Case Is Setback for Fracking


    May 19, 2015

  • Summary Judgment Appropriate in PA Where Frequent Exposure to and Breathing of Asbestos Dust Is Absent

    Model for Defending Asbestos Products Cases in PA

    April 29, 2015

    The Superior Court of Pennsylvania recently affirmed summary judgment in a case certain to be cited in future asbestos summary judgment cases. The Court clearly stated standards requiring the plaintiff to prove he actually inhaled dust from the defendant's particular products; to produce evidence sufficient to show frequency, regularity and proximity to the asbestos products; and to provide certainty as to the content of the dust.

  • Los Angeles Asbestos Court Ramps up Plaintiffs’ Bankruptcy Trust Disclosure Requirements

    Bankruptcy Trust Disclosure in Asbestos Litigation

    April 27, 2015

    On April 7, 2015, the Superior Court of the State of California for the County of Los Angeles issued its “Case Management Order Requiring Disclosure of Bankruptcy Trust Claims, Claims-Related Materials, and Asbestos Exposure Facts.” Coupled with a 2014 North Carolina decision, unprecedented in its scope and detail about the secrecy shrouding asbestos bankruptcy submissions, the case management order gives defendants a powerful new argument in support of transparency regarding plaintiffs’ asbestos bankruptcy claims.

  • Pennsylvania Superior Court Reverses $14.5 Million Asbestos Verdict Based on Improper Admission of Expert Testimony

    Expert Testimony on Any-exposure Theory Disallowed in PA

    March 20, 2015

    A December 2014 decision by the Pennsylvania Superior Court confirmed the ruling of the Pennsylvania Supreme Court that the “any-exposure theory” of causation in asbestos cases is not allowed in Pennsylvania by holding that an expert must quantify an opinion as to the precise exposure and actual products involved in the case.

  • New Jersey Supreme Court Rules No Time Bar for Spill Act Contribution Claims

    New Jersey Supreme Court Rules No Time Bar for Spill Act Contribution Claims

    February 5, 2015

    On January 26, 2015, the Supreme Court of New Jersey overturned two lower-court decisions and held that the six-year statute of limitations for damage to real property does not apply to Spill Act private contribution claims.

  • Chicago Federal Court Bars Expert Testimony Espousing the “Any Exposure” Theory

    “Any Exposure” Theory in Illinois Federal Court Asbestos Case

    January 12, 2015

    In a recent pre-trial ruling, the U.S. District Court for the Northern District of Illinois barred perennial plaintiff’s expert Dr. Arthur Frank and other experts for the plaintiff from providing opinions espousing the “Any Exposure” theory of causation.  Subject to this preclusion, however, the ruling leaves the door open for the plaintiff’s experts to provide case-specific causation opinions against defendants if such opinions are based on the experts’ analysis of the fact witnesses’ asbestos exposure testimony.  

  • Illinois Appellate Court Finds Defendant Not Liable for “Speculative” Workplace Asbestos Exposure

    Liability for “Speculative” Workplace Asbestos Exposure

    December 30, 2014

    In a recent case before an Illinois Appellate Court, the plaintiff appealed the jury’s verdict for the defense, which denied her claim of asbestosis resulting from repair work or damage to insulation in her place of employment. In affirming the jury’s verdict, the Court made it clear there were many potential gaps in the plaintiff’s proof and that the jury could have easily concluded that her contacts with potentially harmful asbestos insulation were either so brief or in such small amounts that the threshold exposure discussed by the plaintiff’s expert had not been met.

  • New Jersey Seeks to Ban the Use of “Microbeads” in Consumer Care

    NJ Seeks Ban on Microbeads” in Consumer Care Products

    October 30, 2014

    New Jersey’s Legislature has approved a bill that is expected to come before the Governor’s Office in November 2014. If enacted, the bill’s prohibition against the production or manufacture of personal care products containing microbeads would commence January 1, 2018. The measure prohibits the sale, offer for sale or promotion of these items on or after January 1, 2019. In addition, no person will be able to sell, offer for sale or offer for promotion over-the-counter drugs containing synthetic plastic microbeads in the state beginning January 1, 2020.

  • Maryland Court Reconsiders a Company’s Duty to Warn of Asbestos-containing Replacement Parts It Did Not Manufacture or Otherwise Introduce into the Stream of Commerce

    Duty to Warn on Replacement Parts Containing Asbestos

    October 22, 2014

    A recent holding by Maryland’s Court of Special Appeals reaffirms the principle previously set forth by the same court that, despite the alleged foreseeability of harm from defective replacement parts that are made or manufactured by others, an entity generally is liable only for harm caused by products that it manufactured or otherwise introduced into the stream of commerce.

  • NJ Supreme Court to Rule on Application of General Six-year Statute of Limitations to Spill Act Claims

    NJ Supreme Court to Rule on Statute of Limitations for Spill Act Claims

    October 20, 2014

    The NJ Supreme Court is poised to open arguments surrounding a 2013 decision by the Appellate Division not only accepting a six-year statute of limitations for private contribution actions under the NJ Spill Act but also applying it retroactively. If upheld, parties that have been performing remediation activities for years may encounter hurdles in recovering all of their costs. Likewise, parties beginning to perform remediation activities may face time limitations for investigating and filing their claims.

  • Public Policy and Preemption Percolate in Asbestos Litigation

    New Jersey Lawyer Magazine

    August 28, 2014

  • The Wait Is Over: Liable Parties Can Now Seek Early Contribution Claims Without New Jersey Department of Environmental Protection Approval

    Concurrent Jurisdiction Shared by Courts and NJ DEP

    August 26, 2014

  • Texas Supreme Court Enforces Medical Criteria for Claims Involving Asbestos and Declares the Application of Chapter 90 Constitutional

    Texas CPRC Title 4, Chapter 90, Asbestos & Silica Claims

    July 24, 2014

    The Emmites alleged that exposures to asbestos at Union Carbide caused Mr. Emmite to develop asbestosis, which was a cause of his death. When Mr. Emmite died in 2005, it was before Chapter 90 took effect. When his family filed their wrongful death lawsuit in 2007, Chapter 90 was the law in Texas. The Texas Supreme Court majority held that the Emmites failed to comply with Chapter 90’s safety valve provisions, to the medical criteria requirements and rejected their argument that Chapter 90 as applied was unconstitutionally retroactive.

  • Texas Supreme Court Holds That Requirement to Provide Evidence of Approximate Dose Applies to Mesothelioma Cases as Well as Asbestosis Cases

    Texas Issues Decision on Causation in Asbestos Cases

    July 22, 2014

    The Texas Supreme Court confirmed that the requirement to provide evidence of “approximate dose” applies in mesothelioma cases, not just asbestosis cases. Although the Texas Supreme Court expressly rejected the Court of Appeals statement that plaintiffs have the burden of proving that exposure to the defendant’s product was a “but for” cause of his mesothelioma, the Court held that proof of causation in multiple-source exposure cases still requires comparison of the causal role played by each source of exposure.

  • Law360 Cites Carl Pernicone on Whether the Clean Air Act Preempts State Common Law Tort Suits


    July 11, 2014

  • Round Three: California Appellate Courts Home in on Duty of Care in Household Asbestos Exposure

    Duty of Care in Second-hand Asbestos Exposure

    July 1, 2014

    A recent decision by the California Court of Appeal for the Second District holds that a landowner owes no duty of care to a third party who was exposed to asbestos through a person who worked on the landowner’s premises, where the only cause of action is for premises liability. This decision came just over two weeks after the First District held that an employer owed a duty of care to a third party for exposure to asbestos through contact with its employee where the foreseeability of harm was substantial, based on negligence and products liability.

  • New York Court of Appeals Sustains Anti-hydrofracking Zoning Regulations as Permissible Exercise of Municipal Authority Under Home Rule Law

    New York Anti-hydrofracking Zoning Regulations

    July 1, 2014

    In a recent case before the New York Court of Appeals, energy company defendants argued that the state’s oil and gas law contained a so-called “supersession clause” that preempted all local zoning laws, such as the anti-hydrofracking rules at issue. The municipalities countered that zoning regulations were lawfully enacted pursuant to the home rule authority provided them by the state constitution. The court sided with the municipalities.

  • How Courts Have Ruled on the Still-open Issue of Whether the Clean Air Act Preempts State Common Law Tort Suits

    Does the Clean Air Act Preempt State Tort Suits?

    June 24, 2014

    To date, only four reported decisions have addressed whether state laws are preempted in the wake of the U.S. Supreme Court’s landmark 2011 decision holding that the Clean Air Act preempts “any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired plants.” Three of those decisions have rejected state law preemption and one has embraced it.

  • Statute of Repose: A New Weapon in Environmental Defense Counsel’s Arsenal

    Statute of Repose a Weapon in Environmental Defense

    June 12, 2014

    The Supreme Court recently held that the Federal Superfund law does not preempt state statutes of repose, representing a victory for companies and landowners with legacy environmental liabilities in states with a statute of repose applicable to tort claims.

  • California Court of Appeal Overturns Nonsuit Granted in Household Exposure Asbestos Case Where Trial Court’s Decision Was Based on Campbell v. Ford Motor Co.

    Duty of Care to Third Party for Exposure to Asbestos

    June 3, 2014

    In weighing the foreseeability of harm as a significant factor, the California Court of Appeal found that there is a high degree of foreseeability of harm from take-home asbestos exposure to those whose contact with an employer’s workers “is not merely incidental, such as members of their household or long-term occupants of the residence.”

  • Ruling on Specific Causation in Toxic Tort Cases


    May 13, 2014

  • New Jersey’s Appellate Division Finds Manufacturer Has a Duty to Warn of Asbestos Risk in Foreseeable Replacement Component Parts

    Duty to Warn of Asbestos Risk in Replacement Parts

    April 25, 2014

    Following a recent finding by New Jersey’s Appellate Division, equipment manufacturers sued in New Jersey may now be subject to liability for failure to warn of asbestos in replacement component parts neither manufactured nor required by them years after their original sale. The court found it is reasonably foreseeable that component parts would be replaced regularly as part of routine maintenance.

  • New York’s Highest Court Reaffirms Specific Causation Rule under Parker in Toxic Tort Cases

    NY Reaffirms Specific Causation Rule in Toxic Tort Cases

    April 9, 2014

    A recent decision by New York’s Court of Appeals reaffirms that an assessment of specific causation is required in the scientific community and in the courts. A waiver of such assessment would require jurors to speculate whether a plaintiff’s personal injuries claims are the result of exposure to certain alleged toxins. Where scientists cannot establish a causal connection, a jury should not be asked to do so.

  • Illinois District Court Rejects Strict Application of the “Bare Metal” Asbestos Defense

    Illinois Takes Middle Path in “Bare Metal” Defense Opinion

    March 13, 2014

    A recent decision by the U.S. District Court for the Northern District of Illinois in a case of first impression rejected strict application of the “bare metal” defense, under which defendants cannot be held liable for the dangers of asbestos-containing parts supplied by third parties. The court instead favored a middle path, holding that a defendant owes a duty to warn in certain circumstances.

  • Pennsylvania Effectively Eliminates Workers’ Compensation Act as Source of Protection for Employers from Suits Arising Out of Latent Occupational Disease Lawsuits

    PA Supreme Court Denies Reargument of Tooey v. AK Steel

    February 18, 2014

    The Pennsylvania Supreme Court has concluded that claims for occupational disease that manifest outside the 300-week period prescribed by section 301(c)(2) of the Workers’ Compensation Act do not fall within the purview of the Act, and therefore, that the exclusivity provision of section 303(a) does not apply to preclude an employee from filing a claim against an employer. 

  • Pennsylvania Supreme Court Declares Portions of Marcellus Shale Act Unconstitutional, Upholds Local Regulation of Oil and Gas Operations

    Pennsylvania Restores Ability of Municipalities to Limit Drilling

    January 15, 2014

    In a recent decision, Pennsylvania’s Supreme Court confirmed municipalities’ constitutional right to limit gas drilling activities through local zoning rules and imposed a more structured state decision-making process to grant waivers from setbacks required for certain bodies of water.

  • California Court of Appeal Holds Intermediary’s Sophistication Not Sufficient, as a Matter of Law, to Avoid Supplier’s Liability for Injury to Product User

    “Intermediary’s Sophistication” versus Supplier’s Liability

    November 7, 2013

    While a recent decision by the California Court of Appeal is unfavorable to defendants, it does not completely close the door to the viability of the “sophisticated intermediary” defense. The Court says it is not enough for a supplier defendant to simply show the plaintiff was an employee of a sophisticated intermediary to avoid liability. The supplier must also show it had sufficient reason to believe the ultimate user knew or should have known of the hazards.

  • Maryland Court of Appeals Upholds the Frye-Reed “General Acceptance” Test for Admissibility of Expert Testimony

    MD Court Upholds Frye-Reed Test for Admissibility

    October 23, 2013

    Maryland Court of Appeals Upholds the Frye-Reed “General Acceptance” Test for Admissibility of Expert Testimony

    Trial courts could view the recent decision by the Maryland Court of Appeals as a convincing directive to deny admission of an expert’s testimony based on the mere existence of scientific or medical literature stating an opposing proposition, especially when the expert is the author of that literature. This finding will be particularly relevant in cases where parties seek to introduce expert opinions regarding novel or experimental procedures and techniques.

  • Expert Testimony in Maryland—Maintaining the Frye-Reed Standard: Unanimity Not Required for Exclusion, as the Existence of a Genuine Controversy is Enough

    The Defense Line: A Publication from the Maryland Defense Counsel, Inc.

    Fall 2013

  • Fault Allocation in Maryland Remains Undisturbed

    The Defense Line: A Publication from the Maryland Defense Counsel, Inc.

    Fall 2013

  • Six-Year Statute of Limitations Applies to Spill Act Contribution Claim

    Statute of Limitations on Spill Act Contribution Claim

    September 23, 2013

    In a recent decision, the New Jersey Appellate Division held that the general six-year statute of limitations for property damage applies to a private claim for contribution under the Spill Compensation and Control Act.

  • Maryland Court of Appeals Narrows Manufacturer’s Duty to Warn Worker’s Household about Risks of Asbestos-containing Products

    Duty to Warn Worker’s Household of Asbestos Exposure

    July 26, 2013

    Foreseeability alone may not be sufficient to trigger a duty to warn, especially in cases involving manufacturers and suppliers of asbestos-containing products. Now, courts will need to consider the feasibility and burden of providing warnings to household members.

  • An Echo of Boomer: DC Court Nixes Plaintiffs’ Adaptation of Expert Testimony to Fit Boomer Sufficiency Test

    DC Rejects Attempt to Reconfigure Expert Testimony

    May 23, 2013

    On May 14, the U.S. District Court for the District of Columbia rejected the plaintiff’s attempt to reconfigure experts’ substantial factor testimony to satisfy the sufficiency standard for causation recently adopted by the Virginia Supreme Court in Ford Motor Co. v. Boomer.  

  • Ill.'s Unclear Endorsement for Asbestos-Injury Losses


    May 20, 2013

  • Florida Poised to Scrap Frye and become a Daubert Jurisdiction

    Florida Poised to Shift from Frye to Daubert

    May 9, 2013

    If Florida H.B. 7065 – passed by both houses of the Florida Legislature – is signed into law, the changeover to the Daubert standard for evaluating the admissibility of expert witness testimony will go into effect July 1, 2013, and would likely apply to pending cases.

  • Recent Decisions Bolster Emerging National Trend, Signaling Trouble for the Each-and-Every-Exposure Theory in Asbestos Litigation

    Asbestos Defense Reshaped by Two Recent Cases

    February 21, 2013

    In a series of recent opinions, courts in various jurisdictions have shown an increasing skepticism toward the plaintiffs’ each-and-every-exposure theory and have excluded expert testimony based upon it. Defense challenges to the admissibility of the expert testimony and the legal sufficiency of the testimony to establish causation are being granted more frequently.

  • Illinois Supreme Court Shapes Forum non Conveniens Debate on Plaintiff’s State of Residence and Location Where Asbestos Exposure Occurred

    IL Supreme Court Analyzes Forum non Conveniens in Pending Asbestos Cases

    January 10, 2013

    A recent Illinois Supreme Court ruling expands the options for the defense of non-resident asbestos cases pending in Illinois. Illinois is often considered one of the country's most attractive jurisdictions due to its plaintiff-oriented substantive law and the ability for plaintiffs diagnosed with a malignant disease to get a trial date as early as nine months from the date of filing. In its ruling, the Illinois Supreme Court emphasized that the plaintiff must have a connection with Illinois. While each forum non conveniens case is unique and must be considered on its own facts, the ruling may result in the transfer of hundreds of pending asbestos cases where the non-resident plaintiff was never exposed to asbestos in Illinois.

  • Dig Deep: An Overview of Legal Issues in Hydrofracking Claims

    CLM Litigation Management Magazine

    Winter 2013

  • Insurers Are Subject to Liability Arising from Hydraulic Fracturing in New York under Direct-Action Statute

    The National Forum for Environmental & Toxic Tort Issues (FETTI): Summer/Fall 2012 Case Law Update Newsletter

    September 2012

  • Pennsylvania Supreme Court Upholds Grant of Frye Motion in Asbestos Matter, Rejects “Each and Every Exposure” Theory as Support for Substantial-Factor Causation

    May 31, 2012

    The Pennsylvania Supreme Court reversed the Superior Court and held that the Court of Common Pleas did not abuse its discretion in granting defendants’ Frye motion to preclude expert testimony on the basis that the “any exposure” theory is novel and invalid.

  • CDC’s “Lead Poisoning” Guideline Levels Lowered by Half

    May 24, 2012

    The Centers for Disease Control has lowered the “at risk” levels for children, even though some experts do not believe there can be any demonstrable effects from exposure to lead at levels below 10 ug/dL and there will be limited funds to enforce the new guidelines.

  • Indiana High Court: Absolute Pollution Exclusion Applies Only to Contaminants Specified within the “Pollutant” Definition

    April 23, 2012

    Under Indiana law, to successfully disclaim coverage based on an absolute pollution exclusion, an insurer must demonstrate that the defined term pollutant “obviously includes” the contaminant for which the insurer is seeking to disclaim coverage.
  • DRI Publishes Article on Section III of the MMSEA Authored by Wilson Elser Toxic Tort Team

    April 20, 2012

    DRI - the Defense Research Institute – has published an article on Section III of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) written by Meg Gambino, Steve Joffe and Maria Caruana in the April 2012 issue of For The Defense.

  • Madison County, IL, Judge Eliminates Advance Trial Date Reservations for Asbestos Plaintiffs

    April 2, 2012

    The newly assigned judge to the asbestos docket in Madison County, IL, has ended the ability of local plaintiffs’ firms to “market” trial dates for mesothelioma cases, thereby changing the way plaintiffs’ counsel practice law in Madison County. Judge Clarence Harrison entered an order on March 29, 2012, stating that trial dates will be assigned on a case-by-case basis rather than by pre-assigned trial settings given to specific plaintiffs’ counsel.
  • Supreme Court Rejects Case from First Circuit on Junk Science

    February 9, 2012

    The U.S. Supreme Court declined to review a First Circuit Court of Appeals decision that seems at odds with the high court’s decision in Daubert, which required trial courts to serve as the gatekeepers of scientific expert testimony by assessing the reliability of such testimony before admitting it.
  • Toxic Tort Newsletter

    Hydraulic Fracturing & Asbestos Litigation

    February 2012

    This edition of Wilson Elser’s Toxic Tort Newsletter examines issues relating to important industry developments and notable cases. These include litigation exposure from hydraulic fracturing and formulating strategies to assess and respond to non-party subpoenas in asbestos litigation.

  • Wilson Elser Attorneys Co-Author Article on Hydrofracking in the Marcellus Shale – One of the Largest Liability Exposures Emerging in the U.S. Today

    January 18, 2012

    Wilson Elser attorneys co-author article on hydrofracking in the Marcellus Shale.

  • California Supreme Court Upholds the “Replacement Part Defense” and Changes the Face of California Asbestos Litigation

    January 13, 2012

    The California Supreme Court held that the doctrine of strict liability was never intended to impose absolute liability, which would place an excessive and unrealistic burden on product manufacturers who should not be required to insure and warrant against the potential risks involved with another manufacturer’s product.

  • Virginia’s High Court Finds No “Occurrence” in Global Warming Case

    October 2011

    In The AES Corp. v. Steadfast Ins. Co., the Virginia Supreme Court focused its opinion on what constitutes an accident and what are the “natural and probable consequences” of actions. The Court may have chosen a high-profile litigation theme such as global warming to clearly articulate that, at least in Virginia, liability insurance is designed to cover only losses caused by “true accidents.”

  • Duty to Protect Employees’ Families at Issue: Is Employer Liable for Secondhand Asbestos Exposure at Premises?

    July 2011

    Amid disagreement among Illinois appellate courts, the Illinois Supreme Court will hear and should ultimately rule on employer liability in secondhand asbestos cases.
  • Texas Court of Appeals: Portions of Texas Asbestos Medical Criteria Law Unconstitutional When Applied Retroactively

    July 2011

    The Texas Court of Appeals held that the statutory medical requirements for asbestos claims enacted by the 2005 Texas Legislature (Chapter 90) cannot be constitutionally applied to a claim that existed but was not filed before the statute took effect.

  • Florida Supreme Court: Asbestos and Silica Compensation Fairness Act Cannot Be Retroactively Applied

    July 2011

    The Florida Supreme Court ruled that retroactive application of the Asbestos and Silica Compensation Fairness Act to plaintiffs who “had accrued causes of action for asbestos-related disease pending on the effective date of the Act,” is “impermissible because it violates the due process clause of the Florida Constitution.”

  • U.S. Supreme Court Reverses Decision, Dismissing Federal Climate Change Claim

    June 2011

    On June 20, 2011, the United States Supreme Court reversed the decision of the United States Court of Appeals for the Second Circuit in American Electric Power Co. Inc., et al. v. Connecticut et al., and dismissed the federal common law nuisance climate change claim brought by several states, the City of New York and three land trusts against four private power companies and the Tennessee Valley Authority.

  • Coordination Proposed for Southern California Asbestos Cases

    May 2011

    On May 19, 2011, the presiding judges of Los Angeles, Orange and San Diego counties filed a petition with the chair of the Judicial Council of California to have all asbestos cases in those counties coordinated. To support this petition, the presiding judges pointed to a sea change in asbestos litigation in recent years. If approved, what impact will the petition have on procedures and legal rulings in asbestos cases?

  • 9th Circuit Case Limits "Owner" Liability under CERCLA

    April 2011

    The 9th U.S. Circuit Court of Appeals recently decided a dispute over who should pay the costs of cleanup of hazardous substances in a berth in Los Angeles Harbor. The case centered on the definition of an "owner."

  • U.S. Supreme Court Denies Petition in Climate Change Case

    March 2011

    Recently, the U.S. high court denied a request for review in Comer, et al. v. Murphy Oil U.S.A., et al. That denial, in essence, reinstated the District Court's dismissal of Comer. For all practical purposes, therefore, the Comer case is "dead," without the prospect of further appellate review.

  • Carl Pernicone Contributes to Business Insurance White Paper on Hydrofracking

    February 2011

    Partner Carl Pernicone contributed to the Business Insurance white paper entitled “Underground liability: Hydraulic Fracturing Raises Environmental Concerns."

  • Toxic Tort Newsletter

    High Profile Toxic Tort Cases

    February 2011

    Wilson Elser continues to monitor developments and trends in high-profile toxic tort cases. Most notably, these include the massive litigation that continues beyond the nine-year anniversary of the World Trade Center attacks and landmark filings that signal likely improvements for defendants in cases of asbestos personal injury trusts. Read about these and other cases in the Toxic Tort Newsletter.

  • U.S. Supreme Court Will Review Climate Change Nuisance Case

    December 2010

    In our November 2010 Environmental Alert, we reported on the three nuisance-based climate change lawsuits that have been proceeding in the federal courts. On December 6, 2010, the U.S. Supreme Court granted certiorari to review one of those cases – American Electric Power Co. v. State of Connecticut (AEP).

  • Court Defines "Current Owner" for Purposes of CERCLA Liability

    December 2010

    In California v. Hearthside Residential Corp., the U.S. Court of Appeals for the 9th Circuit determined an issue of first impression: at what specific time is land "ownership" determined for purposes of clean-up liability under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

  • Nuisance Climate-Change Litigation Proceeds as Senate Drops Climate Bill and EPA Advances Limited Emission Regulation

    November 2010

    This is the latest in a series of alerts on the federal government's efforts to curb greenhouse-gas emissions and on pending nuisance-based climate-change litigation.

  • Federal MDL Court Dismisses Scores of Asbestos Claims Judge Grants Motion Filed by Wilson Elser Attorneys

    October 2010

    In a case governed by Texas law, the judge presiding over the federal asbestos multidistrict litigation ("MDL") recently granted a motion by Wilson Elser to dismiss 85 claims against two of the firm's clients. The plaintiffs had failed to comply with Chapter 90 of the Texas Civil Practice & Remedies Code, which requires asbestos claimants to file medical reports establishing that they satisfy criteria for impairment and causation. The court held, contrary to the plaintiffs' argument, that these criteria constitute a substantive legal rule that must be applied in a federal action governed by Texas law. This ruling carries significance beyond Chapter 90 and the federal asbestos MDL. For example, it will be useful in urging the federal MDL Court to apply similar criteria enacted by other states.

  • $7.5 million verdict upheld in 'dual persona' asbestos exposure suit

    September 2010

    On August 20, 2010, the New Jersey Appellate Division affirmed a multimillion-dollar take-home asbestos verdict against Exxon Mobil in its role as a premises owner in the case Anderson v. A.J. Friedman, 2010 N.J. Super. LEXIS 173 (App Div). The plaintiff, who worked at one of Exxon's facilities in New Jersey, had sued the company, claiming she developed the lung disease mesothelioma as a result of exposure to asbestos. There was evidence available that the plaintiff experienced dual, but separate, exposures to asbestos – as an employee of Exxon and/or as a spouse who laundered the work clothes of her husband, who also worked at Exxon.

  • Employer asbestos defendant owes duty of care to families of employees

    July 2010

    On June 10, 2010, the Fifth District Illinois Appellate Court ruled in Simpkins v. CSX Corporation and CSX Transportation that employers owe a duty to protect their employees' immediate family members against take-home asbestos exposure even though no relationship exists between the employer and the family member.

  • Toxic Tort and Environmental Newsletter

    Asbestos, Environmental Law and EPA

    June 2010

    This Toxic Tort and Environmental newsletter discusses the status of the component parts defense in asbestos litigation, developments in environmental law, and new EPA lead rules.

  • Fifth Circuit grants en banc review in Comer, but recent administrative and legislative developments increase risk of climate change nuisance lawsuit

    March 2010

    In several recent alerts, we have advised our clients of two federal appellate decisions, Connecticut v. American Electric Power Co., Inc. (582 F.3d 309 [2d Cir. 2009]) and Comer v. Murphy Oil USA (585 F.3d 855 [5th Cir. 2009]) that have allowed lawsuits seeking damages for global warming based on the federal common law of nuisance to go forward, and one district court decision, Native Village of Kivalina v. Exxon Mobil Corp. (663 F.Supp.2d 863 [N.D.Cal. 2009]) that has dismissed such a claim.

  • First-in-the-nation statewide mandatory green building standards code; expected to generate future construction and design claims

    March 2010

    On January 12, 2010, Governor Arnold Schwarzenegger announced that the California Building Standards Commission unanimously adopted the first-in-the-nation mandatory Green Building Standards Code (CALGREEN).  These mandatory building regulations will apply to all new construction in California including, but not limited to, all residential and commercial buildings.  The CALGREEN Code will take effect on January 1, 2011, and will become the baseline for regulating green construction statewide.

  • Texas Court of Appeals adopts "chrysotile defense" as to specific causation in mesothelioma case

    March 2010

    In a potentially far-reaching decision, the Texas Court of Appeals (Ft. Worth Division) recently held that a plaintiff's failure to offer competent scientific evidence of the minimum exposure level of chrysotile asbestos necessary to increase the risk of mesothelioma entitled the defendant joint compound manufacturer to a summary judgment on the issue of specific causation.  2010 Tex. App. LEXIS 1367 (Feb. 25, 2010).

  • Global warming litigation: Native Village of Kivalina

    January 2010

    Following our December 2009 advisory, "The Application of Nuisance Law to Greenhouse Gas Emissions," this is the latest in a series of client advisories concerning climate change-related liability.

    Plaintiffs who had made claims for alleged global warming damages received a recent setback in the Northern District of California U.S. District Court. In Native Village of Kivalina et al vs. ExxonMobil Corporation et al. ((2000 N.D. Cal) 2009 U.S. Dist Lexis 99563), Judge Saundra Brown Armstrong granted a motion to dismiss the complaint filed against 24 oil, energy and utility companies alleging that their greenhouse gas emissions created a public nuisance and contributed to climate change brought on by global warming. This decision focuses on the fundamental problems with such claims and foretells a potential split between federal circuits and an issue that will ultimately need to be decided by the United States Supreme Court.

  • The application of nuisance law to greenhouse gas emissions

    December 2009

    This is the latest in a series of client advisories concerning climate change-related liability.

    In two recent decisions, the U.S. Courts of Appeals for the Second and Fifth Circuits have held that climate change lawsuits based on the common law of nuisance may proceed. Although the principal issues before the courts in each case were standing and justiciability, the courts' acceptance of the notion that the principles of nuisance law may give rise to liability for greenhouse gas emissions is telling, and may make it more likely that significant litigation on that basis will follow. The breadth of the courts' analyses further suggests that future claims may not be limited to major emitters, and that liability for damages allegedly resulting from climate change may follow.

  • EPA lead law to impose new requirements on contractors and landlords

    December 2009

    The U.S. Environmental Protection Agency (EPA) has enacted the Renovation, Repair and Painting (RRP) Rule, developed under the Toxic Substances Control Act, going into effect on April 22, 2010, which imposes a new set of requirements for contractors and property owners and managers who renovate, repair or prepare surfaces for painting in pre-1978 rental housing or space rented by child care facilities.

  • Be aware of open-ended remediation contracts

    August 2009

    In today's tough economic times, many municipalities are seeking to enter into contracts with insurers for the environmental remediation of contamination caused by an insured's negligence, i.e. an excavating company.  Often, these agreements seek to saddle insurers with open-ended responsibility for remediation work.  As discussed below, insurers can avoid these types of agreements and still provide the remediation that the municipality is seeking.

  • Site Remediation Reform Act

    August 2009

    A significant change has come to the process of environmental investigations and cleanups in New Jersey with the March 16, 2009, passage by the New Jersey State Senate and Assembly of a highly important piece of legislation – the Site Remediation Reform Act (S.1897/A.2962) (the "SRRA").  On May 7, 2009, Governor Corzine signed the SRRA into law.  This new law will dramatically change the site remediation process in New Jersey, as well as the role of the New Jersey Department of Environmental Protection ("NJDEP") and environmental consultants.

  • Premises liability asbestos defendant is not liable for second-hand exposure

    June 2009

    Second-hand or bystander asbestos exposure litigation has been increasing in Illinois, but a recent Illinois Appellate Court opinion has held that premises defendants cannot be found liable under a second-hand exposure theory.  On May 29, 2009, the Second District Appellate Court ruled in Nelson, et al. v. Aurora Equipment Company, in a case of first impression, that an asbestos defendant is not liable for alleged asbestos injuries under the theory of premises liability to a plaintiff who was never present on the defendant's premises.

  • Federal efforts to reduce greenhouse-gas emissions

    May 2009

    On April 17, 2009, the Obama administration's Environmental Protection Agency ("EPA") issued two proposed findings regarding the following greenhouse gases ("GHGs"): carbon dioxide; methane; nitrous oxide; hydrofluorocarbons; perfluorocarbons; and sulfur hexafluoride.

  • Nolan v. Weil-McLain decision changes legal landscape

    April 2009

    On April 16, 2009, the Illinois Supreme Court issued its long-awaited decision in Nolan v. Weil-McLain, providing some relief to defendants who have been barred from introducing evidence of other asbestos exposure.