|Environmental Law & Toxic Tort Newsletter ||Spring 2009 |
|Editor's Welcome |
irst, we're proud to announce that Lewis Brisbois was recently ranked as the number 1 law firm in the nation for diversity by Multicultural Law Magazine.
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In this issue of the L
ewis Brisbois Environmental Law & Toxic Tort Newsletter, we report on several major Supreme Court decisions, some favoring claimants and some favoring defendants. In the Burlington
case the Supreme Court has significantly narrowed CERLA’s application to mere
vendors of hazardous chemicals used for industrial purposes, as well as eroded “joint and several” liability for response costs. Defendants did not fare so well in Wyeth v. Levine
where the Supreme Court rejected a FDA preemption defense in a failure to warn case. A preemption defense also went up in smoke in an important tobacco liability case, Altria v. Good
. On the state law front, a California appeals court ruled in Taylor v. Elliott
that a manufacturer who incorporates asbestos containing components has no liability for failure to warn of asbestos-related risks. Finally, we discuss some practical pointers in minimizing punitive damage liability in environmental litigation with governmental entities.
R. Gaylord Smith, Esq. & Jon P. Kardassakis, Esq., Editors
Supreme Court Issues Pro-Defense Opinion in CERCLA Case By R. Gaylord Smith, Esq.
n May 4 the US Supreme Court rendered its opinion in Burlington Northern v. United States
which confirms that a defendant in CERLA cases can avoid joint and several liability by producing evidence of its share of responsibility based upon volumetric or similar evidence. In addition, the decision narrows “arranger” liability to preclude liability for mere vendors of hazardous chemicals.
The California Department of Toxic Substance Control and US EPA spent $8 million to clean up soil and groundwater contamination at a site operated by Brown & Bryant (“B&B”), an agricultural chemical distributor. That site included a small parcel owned by two railroads who leased it back to B&B, which became insolvent. The Governments sued the railroads, and Shell Oil, the manufacturer of the chemicals purchased by B&B, to recover the remediation costs. The Supreme Court reversed the Ninth Circuit's rejection of the trial judge's allocation analysis, holding: (Click the Read More link below to read the conclusion of this article.)
Click here for the complete opinion issued by the United States Supreme Court in the matter of Burlington Northern v. United States.
Wyeth v Levine: Failure To Warn Claims Not Preempted Against Drug Manufacturer
By Jon P. Kardassakis, Esq.
n Wyeth v Levine
, 129 S.Ct.1187 (decided March 4, 2009), the United States Supreme Court in a 6-3 decision affirmed judgment in favor of the plaintiff based on the jury’s finding that Wyeth, the manufacturer of the name brand drug Phenergan, failed to provide an adequate warning of the risk of catastrophic injury if the drug was injected directly into a vein. The court rejected Wyeth’s arguments that plaintiff’s state-law failure-to-warn claim was preempted because (1) it was impossible for Wyeth to comply with a state-law duty to modify the labeling without violating federal law; and/or (2) because recognition of the state tort action created an unacceptable obstacle to the accomplishment and execution of the full purposes and objectives of Congress in that it substituted a lay jury’s decision about drug labeling for the expert judgment of the FDA. The court reaffirmed the rule that the Congressional purpose is the ultimate touchstone in every preemption case, and the court started with the assumption that the state’s police powers are not to be superseded by a federal Act unless that is the clear and manifest purpose of Congress. (Click the Read More link below to read the conclusion of this article.)
Divided Supreme Court
Smokes Preemption Defense
in Altria Group, Inc. v. Good
By Jon P. Kardassakis, Esq.
y a 5-4 decision, the United States Supreme Court in Altria Group, Inc. v. Good
, 129 S.Ct. 538 (decided December 15, 2008), rejected the defendants’ argument that the Federal Cigarette Labeling Advertising Act (“Labeling Act”) preempted a state law claim under the Maine Unfair Trade Practices Act alleging that the defendants fraudulently advertised that their “light” cigarettes delivered less tar and nicotine than regular brands. The suit is premised on allegations that cigarette manufacturers misled consumers into believing that smoking light cigarettes would be healthier for them than smoking regular cigarettes. The significance of this decision is not limited to cigarette cases, but rather adds to the growing evidence that the court remains split along ideological lines on the question of how broadly federal preemption should be applied. (Click the Read More link below to read the conclusion of this article.)
| | Huge California Appellate Court Victory for the Defense: Equipment Manufacturers Have No Duty to Warn of Asbestos-Containing Products Supplied by Third Parties
By Mark Lizarraga, Esq.
& John Knadler, Esq.
On February 25, 2009, the First Appellate District in San Francisco issued a published opinion in Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, holding that under either a negligence or strict liability theory, manufacturers are not liable for failure to warn of the dangers arising from the use of their products in conjunction with third parties’ asbestos-containing products.
Taylor involved various equipment manufacturers that made and sold valves, pumps, and other equipment to the Navy, some of which were used in the propulsion system of the U.S.S. Hornet during its original commission in 1943. Decedent Reginald Taylor (“Mr. Taylor”) came into contact with this equipment while serving aboard the Hornet as a fireman apprentice, fireman, and machinist mate in the mid-1960s. Mr. Taylor worked in the aft engine room for over three years repairing and maintaining various pieces of equipment. He testified at his deposition to working with asbestos-containing gaskets, packing and blanket insulation from respondents’ equipment--although he did not know the name of the entity that manufactured or supplied any of the asbestos-containing parts. (Click the Read More link below to read the conclusion of this article.)
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Strategies for Defending Public Entity Punitive
By R. Gaylord Smith, Esq.
& Ernest Slome, Esq.
Increasingly, public entities are seeking punitive damages from corporate defendants in environmental contamination cases as an in terrorem tool to extort higher settlements. This article reviews three basic attacks which corporate defendants may wage against punitive damage claims by public entities.
1. Public Entity Standing to Bring a Tort Claim
Public entities often append a punitive claim to a common law tort such as nuisance or trespass. Sometimes over-looked is that these torts require that the plaintiff actually own or possess the contaminated soil or water. Where the public entity is suing in a representative capacity, the public entity may lack standing to bring these torts.
Recently a federal court applying California law held in Santa Clara Valley Water District v. Olin Corporation, (2007) U.S. Dist. LEXIS 76117 (N.D. Cal. 2007) that a water district's statutory right to manage groundwater did not confer standing upon the water district to sue for nuisance. The water district sued Olin for money damages under a nuisance theory for contaminating the groundwater with perchlorate. The Court dismissed the nuisance claim, rejecting the water district's argument that it had standing to sue for nuisance because "[t]he State 'owns' the groundwater in a regulatory, supervisory sense, but it does not own it in a possessory, proprietary sense." Id. at p. 1033. (Click the Read More link below to read the conclusion of this article.)
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|For over 30 years Lewis Brisbois Bisgaard & Smith LLP has had one of the preeminent environmental law practices throughout the nation with experience and expertise in a wide range of litigation and counseling services, including toxic tort, Federal and State Superfund, Environmental Quality Acts of various states and related matters. We have assembled an impressive team of experienced attorneys who are intimately familiar with environmental laws, the defense of toxic tort lawsuits and state and federal statutes and regulations. In addition, the firm provides a full range of environmental and product counseling services for our clients. |
Resumes are available at www.lbbslaw.com. The information contained in this Newsletter is for informational purposes only and not for the purpose of offering legal advice or a legal opinion on any matter. The information contained is confidential and is intended only for the individual named. Published by the Environmental Law & Toxic Tort Practice of Lewis Brisbois Bisgaard & Smith LLP.
©2009 Lewis Brisbois Bisgaard & Smith LLP
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