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This document is also available as a PDF. MEALEY'S
Emerging Toxic Torts Volume 8, Issue #6
June 25, 1999 CLASS ACTIONS
U.S. Supreme Court Reverses Ahearn Class Settlement
In a 7-2 decision, the court held that $1.5 billion settlement did not meet requirements
$1.5 million settlement reached in Ohio radiation class action suit
California proposed class asserts medical monitoring claim in chemical exposure suit
Defendants in Redlands litigation seek to overturn medical monitoring classes MOLD / FUNGI
125 new lawsuits filed, claiming mold contamination caused personal injury, property damage
$818,390 awarded on apartment residents' mold contamination claims CONTAMINATION
$43.7 Million Settlement Reached In Alabama PCB Contamination Suit
At issue were claims that PCB contamination diminished the value of properties
$2 million settlement reached with Ohio Waste Management Co.
Massachusetts appeals court finds real estate agent not liable in oil fume case
Louisiana appeals court holds herbicide suit time-barred CHEMICALS / FUMES
10th Circuit: Formal Chemical Warning Could Be Modified By Verbal Statement
Court held that verbal statement at a carbon dioxide plant modified formal exposure warnings
Defense verdict for HVAC contractor in Indiana RADS case
U.S. Judge: Leukemia lawsuit sought more than $75,000 damages, removal untimely
Louisiana federal court allows Jones Act Amendment in oil rig worker's lawsuit
New York judge finds benzene exposure action time-barred
Michigan court reverses venue decision in benzene wrongful death action
Connecticut federal court: No link between manufacturer's actions and beryllium exposure
Carbon monoxide exposure suit time-barred, Wisconsin court affirms
Louisiana federal court allows failure to warn claim in fume exposure case
California appeals court upholds product liability claim in hair coloring dispute
Opinion based on differential diagnosis is reliable, 4th Circuit rules
Kansas court finds causation testimony unreliable, dismisses Rabon exposure suit
Louisiana court: Class actions barred in workers' comp suits STRAY VOLTAGE / EMF
Finds testimony properly admitted in a case where stray voltage allegedly damaged dairy herd
NIH study finds no evidence that EMFs cause cancer STORAGE TANKS
Court agreed that EPA cannot impose civil administrative penalty for UST violations against federal facility
New York appeals court says tank action is `timely'
Connecticut oil storage company, corporate officers held liable for tank spills
Illinois court finds gas station owner liable for migrated contamination
Expert testimony unnecessary when jury is capable of determining `reasonable' conduct, Oregon court says
EPA issues leaking storage tank data, updating the number of active and closed underground storage tanks TOXIC EXTRAS
Also, other news from asbestos, breast implant, drugs and medical device, fen-phen and insurance litigation 1 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html U.S. Supreme Court
Reverses Ahearn Class
Settlement In 7-2 Decision WASHINGTON, D.C. - The U.S. Supreme Court in a 7-2 decision June 23 reversed and remanded the Fifth
Circuit U.S. Court of Appeals' decision affirming the global class action Ahearn settlement of Fibreboard Corp.'s
asbestos personal injury liabilities (Esteban Ortiz, et al. v. Fibreboard Corp., et al., No. 97-1704, U.S. Sup.). (Text of Decision in Section A. Mealey's Document #01-990702-101.) Writing for the majority, Justice David H. Souter said the $1.5 billion settlement did not meet the requirements of
Federal Rule of Civil Procedure 23 (b)(1)(B) for certifying a mandatory settlement class on a limited fund theory.
Certification failed on the issues of inclusiveness of the class and fairness of distributions to class members, said the
justice. The class definition did not include those with present and future claims, such as people with unfiled present claims,
people with present claims withdrawn without prejudice or people who previously settled with Fibreboard while
retaining the right to sue upon development of an asbestos-related disease. "It is a fair question how far a natural class may be depleted by prior dispositions of claims and still qualify as a
mandatory limited fund class," the majority opinion said, "but there can be no question that such a mandatory
settlement class will not qualify when in the very negotiations aimed at a class settlement, class counsel agree to
exclude what could turn out to be as much as a third of the claimants. . . ." Regarding intraclass equity, the settlement treats claims of the immediately injured the same as those with
projected future injuries, the opinion said. "The very decision to treat them all the same is itself an allocation
decision with results almost certainly different from the results that those with immediate injuries or claims of
indemnified liability would have chosen," wrote Justice Souter. The justice noted that the settlement provided for a fund smaller than the assets available for payment of the
mandatory class members' claims. "With Fibreboard retaining nearly all its net worth, it hardly appears that such a
regime is the best that can be provided for class members," he wrote. Also addressed were the "potential for gigantic fees" inherent in class action settlements and conflict of interest.
"Any assumption that plaintiffs' counsel could be of a mind to do their simple best in bargaining for the benefit of the
settlement class is patently at odds with the fact that at least some of the same lawyers representing plaintiffs and
the class had also negotiated the separate settlement of 45,000 pending claims," wrote Justice Souter. "The resulting incentive to favor the known plaintiffs in the earlier settlement was, indeed, an egregious example of
the conflict noted in Amchem resulting from divergent interests of presently injured and future claimants," he added. Dissenting were Justices Stephen G. Breyer and John Paul Stevens. Justice Breyer wrote he would uphold the Fifth
Circuit's finding that settlement could be certified under Rule 23(b)(1)(B) "as long as the there was a significant `risk'
that the total assets available to satisfy the claims of the class members would fall well below the likely total value of
those claims. . . ." Justice Breyer pointed out that asbestos litigation is unique in the volume of claims, not the nature, and that many
plaintiffs may not have an alternative to a class action settlement because of the cost and length of litigating
individual claims. $1.5 Million Settlement Reached In Radiation
Class Action Suit DAYTON, Ohio - Employees at a nuclear weapons production facility, the facility contractors and the U.S.
Department of Energy have agreed this month to settle a radiation exposure class action suit for more than $1.5
million, which includes medical insurance for any disease related to the site (Katherine E. Levell v. Monsanto
Research Corp., et al., No. C3-95-312, S.D. Ohio, Western Div.). 2 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html (Text of Settlement Agreement in Section C. Mealey's Document #15-990625-107.) Katherine E. Levell, a representative of the class, asserted claims for negligence, fraud, negligence per se, and
injunctive relief against Monsanto Research Corp. (MRC) and EG&G Mound Applied Technologies Inc. Level
maintained before the U.S. District Court for the Southern District of Ohio, Western Division that the defendants
failed to properly monitor workers' radiation exposure and concealed information regarding workplace hazards and
worker exposures to radioisotopes. The class includes two subclasses: (1) Class A consists of all people presently employed by EG&G at the Mound
facility who were exposed to any radioactive element or isotope and (2) Class B consists of all people who formally
worked at the Mound facility for either EG&G or Monsanto who were exposed to any radioactive element or isotope. MRC was the prime contractor at the Mound facility from the date it opened in 1948 through 1988. EG&G Mound
was the prime contractor at the Mound facility from 1988 through 1997. MRC and EG&G deny any wrongdoing and
believe that they have affirmative defenses to each of the claims alleged against them. The Mound facility has
always been owned and controlled by the U.S. Department of Energy (DOE) and its predecessor agencies. Diseases Defined Lists of occupational diseases as defined by the settlement agreement include leukemia, female breast cancer,
thyroid cancer, bladder cancer, bone cancer, lung cancer, pancreatic cancer, digestive cancer, multiple myeloma,
non-hodgkins lymphoma, pharynx oral cancer and brain/nervous system cancer. Under the terms of the settlement agreement, DOE will provide primary insurance to cover the cost of medical care
services for any disease related to the site. DOE will provide initial funding not to exceed $200,000 to cover the
anticipated costs of coverage for the first three years of the policy, according to the agreement. After that time,
coverage will continue to be provided subject to availability of funds. The settlement terms also stipulate that DOE will enhance the Radiation Protection Program that was in place at
the Mound facility in June 1996 by installing personnel contamination monitors, among other things. Additionally,
DOE agreed to provide up to $250,000 for an independent expert to recommend improvements as necessary. "DOE and defendants agree to pay a lump sum payment not to exceed $926,000 to establish a `Settlement Fund'
that shall be distributed to members of Group 2 of settlement subclass A and for incentive fees for class
representatives as approved by the court. Group 2 of settlement subclass A consists of the active prime contractor
employees as of March 1, 1997," the agreement says. "Class representatives will receive an amount not to exceed
$16,500 per person for their time, effort, and expenses as class representatives." DOE and the defendants also agreed to pay a lump some payment of $180,000 for attorney fees and $32,000 for
administrative costs. A fairness hearing has been scheduled for July 2. The DOE is represented by Mary Anne Sullivan of the Office of General Counsel for the DOE in Washington, D.C.
MRC and EG&G are represented by Richard D. Schuster of Vorys, Sater, Seymour and Pease in Columbus, Ohio.
The plaintiffs are represented by Rueben Guttman of Provost & Umphrey in Washington, D.C., Robert Laufman of
Laufman, Raugh and Gerhardstein in Cincinnati, John M. Elliott and Timothy T. Myers of Elliot, Reihner,
Siedzikowski & Egan in Blue Bell, Pa., and Kathleen Hostetler of Oil, Chemical and Atomic Workers International
Union of Lakewood, Colo. Calif. Proposed Class Asserts
Medical Monitoring Claim
In Chemical Exposure Suit LOS ANGELES - California residents filed a proposed class action suit on April 9, arguing that a spontaneous
chemical explosion caused personal injury and property damage and they are entitled to the establishment of a
medical monitoring program (Manuel Santana, et al. v. Santa Clarita Greenwaste and Construction Recycling
Facility, et al., No. PC023279, Calif. Super., Los Angeles Co.). 3 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Manuel Santana says that he was diagnosed as having excessive levels of arsenic and other hazardous substances
in his blood, bone and tissue. The proposed class action includes all people who have been exposed to hazardous
contaminants requiring medical monitoring, and people in the Santa Clarita Valley, Calif., who claim that their
property has been damaged. Defendants include Santa Clarita Greenwaste and Construction Recycling Facility, Ray & Sons Recycling Co.,
Santa Clarita Greenwaste Inc., Henry Arklin, Chevron Oil, County of Los Angeles, Calif., and City of Santa Clarita,
Calif. Santana claims that one or more stockpiles maintained at the recycling facility spontaneously combusted in August
1998 and released arsenic, lead, chloromethane, phenols, benzene, and toluene into the soil, air, surface water
runoff and groundwater. Additionally, Santana maintains that in September of 1998 there was a second spontaneous combustion at the
facility, which released more hazardous contaminants. Santana further alleges that as a result of the hazardous
contaminant releases, contamination plumes have migrated through various areas of neighborhoods of Santa
Clarita City. Claims Asserted The complaint, filed in the California Superior Court for Los Angeles County, asserts claims of negligence,
continuing trespass, permanent trespass, negligence per se, absolute liability for ultrahazardous activity, fraudulent
concealment, battery, unfair business practices, and breach of mandatory duties. "Plaintiffs and all others similarly situated have been, and continue to be, significantly exposed to hazardous, toxic,
and carcinogenic substances and materials. By reason of this exposure, plaintiffs and all others similarly situated
have suffered a reasonable and significant risk of contracting serious latent diseases including, but not limited to,
cancer. As a result, medical monitoring and surveillance are reasonable and medically necessary to protect the
present and future health of plaintiffs," the complaint asserts. Santana adds that the defendants' acts and omissions constitute numerous and repeated violations of state and
federal environmental and health statutes and regulations, including the Resource Conservation and Recovery Act,
the Comprehensive Environmental Response, Compensation and Liability Act, the California Health and Safety
Code and the California Fish and Game Code. Santana seeks an unspecified lump sum for the medical monitoring fund, compensation for property damages and
punitive damages. The plaintiffs are represented by Barry I. Goldman, David A. Rosen and Christopher P. Ridout of Rose, Klein &
Marias in Los Angeles. [Editor's Note: The complaint is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-017. 55 pages. Subscriber price: $1 per page, plus $15.] Defendants In Redlands
Litigation Seek To Overturn
Medical Monitoring,
Punitive Damage Classes SAN DIEGO - A state court judge erred in certifying medical monitoring and punitive damage classes in a
groundwater contamination case because there is no evidence establishing the existence of an ascertainable class,
individual issues predominate, and the class representatives are inadequate, three defendants say in a petition for
review to the Fourth District California Court of Appeal (Lockheed Martin Corp., et al. v. Superior Court of California,
Calif. App., 4th Dist., Div. 2; See 6/4/99, Page 12). Lockheed Martin Corp., Highland Supply Corp. and FMC Corp. filed a petition for alternative and peremptory writs of 4 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html mandamus, prohibition and review on June 3. In April, San Bernardino County Superior Court Judge Ben T. Kayashima, ruling in the Redlands Tort Litigation,
certified medical monitoring and punitive damage classes of all individuals within a defined area of the City of
Redlands, Calif., who were exposed to water contaminated with trichloroethylene, ammonium perchlorate or other
chemicals "at levels at or in excess of the dose equivalent" of regulatory maximum contaminant levels "or in excess
of the safe dose" for some part of a day, for more than half a year, for one or more years from 1955 to the present. The defendants say this action is not an exception to the California Supreme Court's pronouncement in Jolly v. Eli
Lilly & Co. (44 Cal. 3d 1103, 1123 [1988]) that mass tort, personal injury actions are frequently not appropriate for
class certification due to the variety of individual issues presented. "The proliferating and predominating individual issues extant in personal injury claims are multiplied in a claim
seeking medical monitoring damages for up to an estimated 50,000 to 100,000 individuals because each claimant
must satisfy the strict and highly individualized standards set forth in Potter v. Firestone Tire & Rubber Co., 6 Cal.
4th 965 (1993) and Gutierrez v. Cassiar Mining Corp., 64 Cal. App. 4th 148 (1998) before liability to pay for medical
monitoring of an individual may be imposed on a defendant," the companies say. Additionally, even before the Potter issues can be reached, thousands of highly individualized inquiries, such as
determination of dosage, must be conducted to ascertain class membership, the defendants argue. The trial court, the defendants say, certified the class based upon an erroneous conclusion that proof of dosage is
unnecessary at this stage of the proceedings. Not only did plaintiffs present no evidence of dosage, but defendants
presented uncontradicted evidence that most of the geographic class area received no contaminated water from
taps and that it was highly doubtful that any identifiable class member received contaminated water for as much as
half a year during the 40-year period, defendants say. Inadequate Representatives The defendants also point to the alleged inadequacy of the class representatives who, unlike most of the class
members, are simultaneously pursuing individual damage claims against the defendants. "Given that medical monitoring is simply part of the damages for invasion of a single primary right, the actions of the
class representatives in this mandatory class will likely have the effect of waiving any other damages claims
potentially possessed by members of the class," the defendants say, arguing that such "claim splitting" violates
California Supreme Court precedent. In addition, certification of the punitive damage class cannot stand because the medical monitoring class was
improperly certified and punitive damages can only be assessed after compensatories have been awarded, the
companies argue. Furthermore, since this litigation involves dissimilarly situated plaintiffs, several defendants and
conduct occurring over a 40-year period, "the analysis required under California law before punitive damages can
be properly imposed cannot be performed on a class-wide basis." The trial court's certification is unprecedented in the state and poses a severe risk of harm to litigants as well as to
residents of the class area and the state's justice system, the defendants contend. "Government authorities have identified a large number of ground water plumes in the State," the defendants say.
"If this Court does not promptly address the trial court decision here, it is obvious that the plaintiffs' bar will seek to
replicate these `medical monitoring classes' throughout the State." Lockheed Martin and Highland Supply are represented by Robert S. Warren, Robert W. Loewen and Daniel S.
Floyd of Gibson, Dunn & Crutcher of Los Angeles and Linnea Brown of Holme Roberts & Owen of Denver. FMC is
represented by John D. Dwyer and Anthony S. Thomas of Bowman & Brooke of Torrance, Calif. [Editor's Note: The defendants' petition is available 24 hours a day by fax from Mealey's Document Service. FedEx
or mail requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-027. 49 pages. Subscriber price: $1 per page plus $15.] 5 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html New York Building Owners
Face $8 Billion In Claims For
Mold, Fungi Contamination NEW YORK - Two New York apartment building owners face approximately 125 new lawsuits which seek $8
billion and assert that mold and fungi contamination caused personal injury and property damage, plaintiff sources
told Mealey Publications. Among those suits is a complaint filed on behalf of a family which seeks more than $136 million and claims that
fungi and mold have damaged personal property and created conditions which required detoxification (Ellia Munoz,
et al. v. Henry Phipps Plaza South, et al., No. 109895/99, N.Y. Sup., N.Y. County). (Text of Munoz Complaint in Section B. Mealey's Document #15-990625-103.) Ellia Munoz and members of his family claim that from 1996 through the present, his apartment has had continuing
water leaks, toxic mold and fungi. Defendants Phipps Plaza South (Plaza South) and Phipps Housing Services Inc. own the apartment building. Plaza
South operated, maintained, managed and controlled the common areas, the building structure, and was
responsible for the overall building maintenance. Phipps Housing was responsible for the maintenance and upkeep
of the building. In his May 12 complaint, Munoz maintains that the Phipps defendants have been notified of the water and fungi
conditions. Munoz further claims that the fungi and mold conditions have caused interior structural damage in the
apartment, created conditions which required detoxification and damaged personal property. Munoz asserts negligence, carelessness and recklessness claims against the Phipps defendants. Other claims
against the Phipps defendants include personal injury, loss of consortium, pain and suffering, and reimbursement
for money spent on health care. The total amount sought on behalf of the Munoz plaintiffs is more than $136
million, with $50 million designated as punitive damages. According to the source, the 125 complaints are filed on behalf of families that include an average of three to five
people. Among the personal injury claims are approximately 100 asthma claims, the source said. The source added
that there is a possibility that the complaints could be consolidated for trial purposes, but said that there is no
movement towards class certification. The plaintiffs are represented by Steven F. Goldman of Goldman & Goldman in New York and Paul H. Maloney in
New York. Counsel for the Phipps defendants include Nancy Ledy-Gurren of Leddy-Gurren & Blumenstock in New
York. $818,390 Awarded On
Apartment Residents'
Mold Contamination Claims Delaware Case name and number: Elizabeth Stroot, et al. v. New Haverford Partnership, et al., No. 95C-05-074 HLA Plaintiff(s)/Decedent(s): Elizabeth Stroot, Joletta Watson, Angela McCarthy, Lois Schindler Verdict(s): $818,390 total compensatory damages after reductions for comparative negligence, which ranged from
22 percent to 41 percent (Text of Original Verdict Form in Section E. Mealey's Document #15-990625-110.) Date: May 11 Court: Del. Super., New Castle Co. 6 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Judge: Haile L. Alford Defendant(s): New Haverford Partnership, MidAtlantic Realty, Edward Davidson, Richard Deery Claim: personal injuries and breach of habitability caused by mold and fungi contamination of apartments Background: Plaintiffs are former residents of a low-rent, three-story garden apartment complex in Delaware. The
apartments had a long history of various water problems and the property's owner and management company
failed to properly remediate the water problems, which resulted in pervasive microbial contamination, plaintiffs
alleged. Stroot and Watson had personal injury claims, alleging the mold and fungi contamination made them sick. Stroot
alleged aggravation of pre-existing asthma, cognitive deficits and osteopenia, which she blamed on her use of
prednisone to control her asthma. Watson alleged she suffered from bronchitis and immune system abnormalities. Stroot, McCarthy and Schindler brought landlord-tenant claims, asserting the contamination made the apartments
uninhabitable. Defense: Disputing causation, defendants argued Watson was not sick and conditions at the apartment complex did
not worsen Stroot's asthma or cause her cognitive deficits. Defendants also filed Daubert-type challenges to
plaintiffs' expert causation testimony. Defendants argued the apartments were not uninhabitable and were not
contaminated. Also, they asserted the plaintiffs failed to establish that defendants breached a local standard of care
under the Landlord-Tenant Code. Plaintiff Expert(s): Eckardt Johanning, M.D., occupational and environmental medicine, Albany, N.Y.; Cecile Rose,
M.D., internal medicine, pulmonologist, occupational and environmental medicine, Denver; Chin S. Yang, Ph.D.,
mycologist, Cherry Hill, N.J.; Michael Lynn, architect, Washington, D.C.; Wayne Gordon, Ph.D., neuropsychologist,
Mt. Sinai Hospital, New York Defense Expert(s): Arnold Lentnek, M.D., infectious disease specialist, Atlanta; Gerald Cooke, Ph.D., forensic
neuropsychologist, Plymouth Meeting, Pa.; Paul Epstein, M.D., pulmonologist, Philadelphia; Fred Quercetti, expert
on building ownership and management, local standard of care and fact witness, Claymont, Del. Other: Deery and Davidson were partners in New Haverford Partnership, which owned the apartment complex.
MidAtlantic Realty was the management company. The claims of two other plaintiffs were withdrawn on the first day
of trial. The jury found for the plaintiffs on claims of common law negligence, breach of lease agreement, and violations of
the New Castle County Housing Code and the Landlord-Tenant Code. The jurors found the defendants' negligence
proximately caused Stroot's and Watson's personal injuries, awarding them $1 million and $40,000, respectively.
The jurors, however, failed to award Stroot, McCarthy or Schindler any damages for breach of lease agreement.
Finding for the plaintiffs on claims that the defendants failed to properly maintain the rental units, the jury awarded
Stroot $5,000, McCarthy $1,500 and Schindler $3,700. The jurors assessed contributory negligence as follows: Stroot and Watson, 22 percent each; Schindler, 35 percent;
McCarthy, 41 percent. The jury did not award punitive damages. Defendants filed post-trial motions to reduce the amount of the damages awarded to Stroot and Watson. A source
said the defendants will also appeal the whole verdict. Plaintiff Attorney(s): Guy Keith Vann of New York, Susan Parker and Kathleen Miller of Smith, Katzenstein & Furlow
of Wilmington, Del. Defense Attorney(s): James F. Kipp and William Doerler of Trzuskowski, Kipp, Kelleher & Pearce of Wilmington,
Del. $43.7 Million Settlement Reached In Alabama 7 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html PCB Contamination Suit PELL CITY, Ala. - Alabama property owners who claimed that polychlorinated biphenyl (PCB) contamination
diminished the value of their property reached a $43.7 million settlement June 9 with the owners of a manufacturing
facility (Thomas C. Dyer, et al. v. Monsanto Co., et al., No. CV-93-250, and Shelter Cove Management, et al. v.
Monsanto Co., et al., No. CV-94-50PH, Ala. Cir., St. Claire Co.). Class representative Donna N. Rosendahl and other riparian property owners claim that PCB contamination caused
diminution of property value and interfered with the use and enjoyment of the property. Rosendahl asserted claims
based upon theories of negligence, wantonness, international misconduct, public and private nuisance and strict
liability. Rosendahl also asserted a punitive damages claim. Settling defendants are Monsanto Co., Solutia Inc. and William L. DeFer, who is a former plant manager
(collectively, Monsanto). Solutia was formerly the chemical businesses of Monsanto. The PCB contamination stems
from the manufacturing facility and adjoining properties previously or presently owned and operated by Monsanto
and Solutia in Alabama. Monsanto denied all claims, but say that it has spent more than $30 million on a
comprehensive program of environmental investigation and remediation. Settlement Terms According to the terms of the settlement agreement, a general fund will be established in which Monsanto will pay
$22.7 million into an interest bearing account within 30 days of the court's approval of the settlement. The general
fund will be used to compensate the class representatives and to pay attorneys' fees and other costs incurred by the
class. Additionally, the settlement agreement provides that Monsanto will pay $21 million for PCB investigation and
remediation activities. The parties agreed that a credit will be given for money spent by Monsanto on PCB
investigation and remediation, including a $3.1 million credit for work performed prior to April 1999 and a credit for
all amounts to be spent on behalf of Monsanto between April 1999 and the date on which the remediation fund is
established. A fairness hearing has been set for July 30 before the Alabama Circuit Court for St. Claire County, Alabama Pell
City Division. Plaintiffs' counsel include D. Frank Davis of Burr & Forman in Birmingham, Ala., A. Dwight Blair III of Blair &
Parsons in Pell City, Ala., and William J. Trussell of Trussell & Funderberg in Pell City, Ala. Defense counsel
include Warren B. Lightfoot, Adam Peck, Jere F. White, Harlan Parter, William Cox and Suzanne Alldredge of
Lightfoot, Franklin & White in Birmingham, Ala., and Billy L. Church of Church & Seay in Pell City, Ala., Walter W.
Kennedy in Pell City, Ala., and Mike Kelly of Smith Helms Mills & More in Charlotte, N.C. [Editor's Note: The settlement agreement is available 24 hours a day by fax from Mealey's Document Service.
FedEx or mail requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610)
768-7800. Document number 15-990625-023. 33 pages. Subscriber price: $1 per page, plus $15.] $2 Million Settlement Reached With Ohio
Waste Management Co. CINCINNATI - An Ohio waste management company reached a $2 million settlement agreement on June 1 with
an environmental group that claimed a waste disposal site emitted pollutants, contaminants, odors, fumes and gas
into the air, water and soil (Communities United For Action, et al. v. Waste Management of Ohio, et al., No.
C-1-96-1129, S.D. Ohio). Defendant Waste Management of Ohio Inc. (WMO), a wholly owned subsidiary of Waste Management Inc., is in the
business of solid waste disposal and is the owner and operator of the now closed ELDA Recycling and Disposal
Authority in Cincinnati. Plaintiff Communities United for Action (CUFA) is a nonprofit organization dedicated to protecting the environment
whose memberships include groups, churches and neighborhood development corporations in the immediate 8 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html vicinity of the ELDA site. CUFA and five residents sued WMO in the U.S. District Court for the Southern District of Ohio, alleging that the
ELDA site has emitted and will continue to emit pollutants, contaminants, odors, fumes, gas and other hazardous
substances into the air, water and soil. However, WMO countered that there is no imminent or substantial
endangerment to health or environment, and that the ELDA site is in compliance with applicable federal, state and
local laws. Settlement In a June 1 settlement agreement, WMO and CUFA agreed that a portion of the settlement money will be used to
perform a landfill assessment which will allow CUFA to determine whether the ELDA site is releasing chemical
substances through migration. The agreement also provides that WMO will design and install a barrier or additional extraction wells to reduce gas
migration from the ELDA landfill. Additionally, the agreement provides that WMO will submit quarterly progress
reports of any environmental corrective measures performed. Under the agreement, WMO will develop an operation and maintenance manual which will provide a description of
the methods used to contain the release of landfill gas, including the subsurface migration of gas and its release
into the air. Further, the agreement stipulates that a significant portion of the settlement funds will be used for health exams for
people in designated areas, providing that CUFA will not use information developed from those examinations for
any purpose other than the medical diagnosis, treatment or prevention of illness. The agreement adds that the
funds are not to be used to carry out any study linking illness or disease to the operation of the ELDA site. Under the settlement agreement, WMO will pay legal fees and expenses to the plaintiffs of $350,000. The
agreement also provides that WMO will pay an additional $150,000 to D. David Altman Co. L.P.A. Trust Account for
future legal fees and expenses to be provided by plaintiffs' counsel in connection with the settlement agreement. CUFA is represented by Kevin Patrick Braig of Dinsmore & Shohl in Cincinnati, Amy Jo Leonard Altman & Calardo
Co. in Cincinnati, Stephen Paul Calardo in Cincinnati and Dennis David Altman of D. David Altman Co. in Cincinnati. WMO is represented by Stephen Joseph Butler of Thompson, Hine & Flory in Cincinnati and Robert E. Leininger of
WMO in Livonia, Mich. [Editor's Note: The settlement agreement is available 24 hours a day by fax from Mealey's Document Service.
FedEx or mail requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610)
768-7800. Document number 15-990625-001. 30 pages. Subscriber price: $1 per page, plus $15.] Mass. Appeals Court Finds
Real Estate Agent Not
Liable In Oil Fume Case BOSTON - After finding that a real estate agent did not make any misrepresentations that influenced a woman to
buy a mobile home that had an ongoing problem with oil fumes, The Massachusetts Court of Appeals on June 3
affirmed that the real estate agent is not liable (Lois E. Augustine v. Raymond A. Rogers, et al., No. 97-P-0311,
Mass. App.). The appeals court further affirmed the reduction of a damages award against the former property owner. After purchasing a mobile home in 1988, Lois Augustine sued her real estate agent and the former property owner
for failure to disclose that the mobile home had an ongoing problem with fumes from an oil burner on the premises.
Raymond Rogers is the former property owner, and Donald Vieira and Vieira Realty Inc. are the real estate agents. The case was tried to an advisory Superior Court jury over a three-day period. The jury found that the defendants
were liable for intentional misrepresentation and assessed damages at $60,000. The judge, exercising the rights the 9 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html parties had reserved to him by agreement, rejected the jury's conclusions on the liability of Vieira and reduced the
damages against Rogers to $20,064. Upon receipt of Augustine's notice of appeal, Rogers filed a petition to pay the judgment amount into the court to
stop the incurring of interest during any period of appeal. Augustine opposed the motion, but did not request that the
funds deposited be held in an interest bearing account. The trial judge allowed the motion with no provision for
interest. Augustine appealed to the Massachusetts Court of Appeals. Agent's Liability Addressing the real estate agent's liability, the appeals court noted that the judge found that Vieira did not make any
misrepresentations that influenced the buyer. The court further found that Vieira did not receive any information
regarding the home heating fuel oil contamination at the mobile home. "Although, as plaintiff argues, there was evidence from which a fact finder could have found liability against Vieira,
and the advisory jury did so, there was also evidence to the contrary, which the judge was entitled to credit," the
appeals court ruled. The appeals court further decided that the exclusion of Augustine's expert environmental consultant testimony on
the minimum cost of remediation was proper. "The plaintiff also argues that the judge erred in not granting her the recession she sought in her complaint," the
court continued. "That recession was an available remedy does not lead to the conclusion that it was required,
particularly here where, after requesting such relief in her complaint, the plaintiff never raised the issue again until
her brief on appeal. . . . There was no abuse of discretion here." Regarding Augustine's opposition to Rogers' petition to pay the judgment into court, the appeals court decided not
to address the issue on the merits because neither party has raised issues on this matter. Vieira is represented by Bernardo J. Cabral of New Bedford, Mass. Augustine is represented by Douglas A. Hale of
Wynn & Wynn in Raynham, Mass. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-003. 3 pages. Subscriber price: $1 per page, plus $15.] Louisiana Appeals Court Holds
Herbicide Suit Time-Barred LAKE CHARLES, La. - The Third Circuit Louisiana Court of Appeals ruled June 2 that a plantation owners' action
against an herbicide manufacturer is properly barred by the state's one-year statute of limitations (Louis J. Cornay,
et al. v. FMC Corp., et al., No. 98-1312, La. App., 3rd Cir.). Louis and Jeanne Cornay sued a herbicide manufacturer and a herbicide application company, alleging that the
spraying of the herbicide Command on an adjacent farm damaged several oak trees on their plantation. The
plaintiffs seek damages for property damage and mental anguish. The action was filed in May 1992, but the alleged damage occurred from Command applications that occurred in
1988 and 1989. The trial court granted the defendants' motion to dismiss based upon the one-year statute of
limitations. Knowledge Of Damage On appeal, the Cornays argued they were not fully aware that the damage to their oak trees was caused by
Command until June 1991, when they received a report from arborist Jim Foret, who had inspected their property.
Foret's report linked the damage to the oak trees to the herbicide. FMC Corp., the manufacturer of Command, argued that the Forays had ample information in 1990 and at the latest 10 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html in April 1991 that the damage to their oak trees may have been attributable to Command. Looking at the evidence, the appeals court agreed with FMC. The Cornays noticed a white film over some of its
trees and on its property following the Command applications, the appeals court said. The appeals court further found that the Cornays raised concerns over possible exposure to Command to the
Department of Agriculture in 1989. Additionally, the court found that an inspector was sent out to look at their
plantation and he noticed some chemical exposure but was unable to assess whether damage would result. The appeals court noted that in April 1991, the inspector again examined the Cornays' property and advised in his
report that the Cornays contact FMC to determine if Command was killing their trees. The appeals court found that the evidence supports the trial court's ruling that the limitations period began to run no
later than April 1991 when the Cornays received the second report from the Department of Agriculture. `Sufficient Notice' "While the plaintiffs urge this court to conclude that the record supports only a finding that the cause of action
accrued when Mr. Cornay was privy to Foret's June-July 1991 findings, we disagree. Our review of the
above-related evidence demonstrates that, at the latest, Mr. Cornay had information providing evidence of sufficient
notice of chemical exposure in April 1991," the appeals court held. Additionally, the appeals court rejected the Cornays' argument that the doctrine of contra non valentem applies and
tolled their limitations period until July 1991. The Cornays argued the doctrine applies because of statements by an
FMC employee that Command did not cause the type of damage the Cornays incurred. The appeals court said that the Cornays have not produced any evidence indicating FMC's assurances were
misrepresentations or that FMC concealed any information that the herbicide could cause the type of damage
alleged. "Further," the appeals court ruled, "it appears that even if these statements were misrepresentations, which we do
not find they were, the plaintiffs had sufficient outside information which would have also given notice that there
could be some problem with the herbicide application." Counsel for FMC include John G. Gomila Jr. of Jones, Walker, Waechter, Poitevent, Currence & Denegre in New
Orleans. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-009. 8 pages. Subscriber price: $1 per page, plus $15.] 10th Circuit: Formal Chemical
Warning Could Be Modified
By Employee's Verbal Statement DENVER - A federal appeals court on June 16 reversed a dismissal decision after finding that an employee's
statement at a carbon dioxide recovery plant may be considered to have modified prior, more formal chemical
exposure warnings and creates a factual dispute regarding the adequacy of the plant's warnings (Gilbert Ybarra, et
al. v. Amoco Production Co., No. 98-2189, 10th Cir.). (Text of Decision in Section D. Mealey's Document #15-990625-113.) Amoco Production Co. operates a carbon dioxide recovery plant in Texas and hired Hydroblast Corp. in 1994 to
pressure test the tubes in the heat exchanger system to find any leaks in the system. Selexol, manufactured by
Union Carbide Corp., is a chemical solvent used in the heat exchangers to maximize carbon dioxide recovery. Hydroblast employees Gilbert Ybarra and Michael Bownds (collectively, Ybarra) were part of a crew sent to the
plant. In 1996, the employees brought a diversity action against Amoco and Union Carbide, raising strict liability and 11 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html negligence claims involving the design, manufacture and sale of the chemical. The employees also asserted a
negligence claim for failure to adequately warn of the danger posed by the chemical. Subsequently, Union Carbide settled, and the employees dropped their claims involving the design, manufacture
and sale of Selexol. Amoco moved for summary judgment on the remaining failure to warn claim, which the trial
court granted. The trial court held that Amoco provided adequate warnings to Tom Miller, the owner and manager
of Hydroblast, regarding the danger posed by Selexol and, therefore, was relieved from further burden of warning
Ybarra directly. Before the 10th Circuit U.S. Court of Appeals, Ybarra did not contest the trial court's finding that Amoco adequately
warned Miller of the dangers associated with the Selexol system at the Amoco facility. Instead, Ybarra maintained
that there is a factual dispute regarding whether those warnings were invalidated or modified by statements made
by an Amoco employee to Randy Hinds, Hydroblast's crew foreman, when the crew arrived at the facility to begin
the testing. In an unpublished opinion, the appeals court noted that Hinds testified that when the Hydroblast crew arrived at the
site, an Amoco employee told him that there was nothing within the tubes that could cause harm. According to the
appeals court, Hinds testified in his deposition that he had neither been warned of the dangers of Selexol nor even
heard of the chemical prior to the accident. The court further noted that Hinds testified that had he known of the
dangers associated with the use of Selexol, he would have required the crew to wear protective slicker suits. The court ruled the Amoco employee's statement at the facility may be considered to have modified the prior, more
formal warnings Amoco gave to Miller and creates a factual dispute regarding the adequacy of Amoco's warnings.
Therefore, the court ruled that Amoco has not met its burden of showing that there are no factual disputes
regarding what proximately caused plaintiffs' injuries. Ybarra is represented by James W. Klipstine Jr. in Lovington, N.M., and Orlando A. Quintana in Clovis, N.M. Amoco
is represented by Kenneth L. Harrigan and Donald A. Decandia of Mordrall, Sperling, Roehl, Harris & Sisk in
Albuquerque, N.M. Defense Verdict For
HVAC Contractor
In RADS Case Indiana Case name and number: Gwenith A. Surber v. Freyn Brothers Inc., No. 49D12-9509-CT-1470 Plaintiff(s)/Decedent(s): Gwenith A. Surber Verdict(s): defense Date: Feb. 5 Court: Ind. Super., Marion Co. Judge: Susan Macey Thompson Defendant(s): Freyn Brothers Inc. Claim: pulmonary injuries leading to development of Reactive Airways Dysfunction Syndrome (RADS) Background: Gwenith Surber was working as a manager of a Railroadmen's Bank branch in Indianapolis on Oct. 6,
1993, when some substance entered the air at the bank, causing Surber and other employees to cough and
experience other symptoms. Surber and her co-workers were transported to the hospital. All employees were
released that day except Surber, who stayed for three days complaining of respiratory difficulties. She was
eventually diagnosed with RADS. 12 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Surber sued Freyn Brothers Inc., which serviced and repaired the heating, ventilation and air conditioning system in
the bank building. Surber alleged Freyn negligently repaired the HVAC system, creating a weakened solder joint in
the refrigerant line. Plaintiff alleged the solder joint broke on the date of the incident, releasing refrigerant which
decomposed when it came into contact with the backup electric heating elements of the HVAC system. Surber
alleged the decomposition products of the refrigerant, including hydrogen chloride, caused her injuries. Defense: disputed that it improperly serviced or repaired the HVAC system and disputed that a leak of refrigerant
occurred in the system on Oct. 6, 1993; disputed the theory that refrigerant can be decomposed by the backup
electric heating elements of the HVAC system, creating sufficient amounts of harmful products that would harm
bank employees; disputed extent of plaintiff's alleged medical and economic damages. Plaintiff Expert(s): J. Jeff Berty, C.P.A., Indianapolis; Michael Blankenship, vocational rehabilitation expert,
Indianapolis; David Cook, M.D., pulmonologist, internist, Indianapolis; Mark Farber, M.D., pulmonologist,
Indianapolis; Michael Freeman, environmental specialist, Zionsville, Ind.; David Huffer, emissivity expert, chemist,
Muncie, Ind.; Karl Muszar Jr., P.E., metallurgist, Indianapolis; Robert Pribush, Ph.D., chemist, Butler University,
Indianapolis; Jerome Schreier, thermal photography expert, Carmel, Ind. Defense Expert(s): Joe G.N. Garcia, M.D., F.A.C.P., pulmonologist, Johns Hopkins University, Baltimore; Jack E.
Leonard, Ph.D., toxicologist, Indianapolis; William Murphy, C.P.A., economist, Indianapolis; Cliff Nicholson,
meteorologist, Indianapolis; John C. Ramsey, M.D., urologist, Indianapolis; Charles C. Roberts Jr., P.E., emissivity
expert, Big Rock, Ill.; James Wood, HVAC expert, Indianapolis Other: No post-trial motions were filed and no appeal was filed by the deadline, sources said. Freyn Brothers was insured by Zurich/Maryland Casualty. Plaintiff Attorney(s): Thomas A. Deal of Speedway, Ind., and Margaret Lois Jansen of Indianapolis Defense Attorney(s): Patricia Polis McCrory and Thomas G. Safley of Harrison & Moberly of Indianapolis U.S. Judge: Leukemia
Lawsuit Sought More
Than $75,000 Damages,
Removal Untimely GALVESTON, Texas - It was readily apparent that a state court lawsuit for leukemia caused by chemical exposure
sought more than $75,000 in damages and should have been removed to federal court within 30 days of initial filing,
a Texas federal court has ruled, remanding the case for untimely removal (William L. Carleton, et al. v. CRC
Industries Inc., et al., No. G-99-094, S.D. Texas, Galveston Div.). William and Jane Carleton sued CRC Industries Inc., Berwind Industries Inc. and Berwind Corp., alleging that
William contracted leukemia from exposure to defendants' toxic chemicals and carcinogenic products. The
Carletons brought claims for negligence, gross negligence, strict products liability, loss of consortium and punitive
damages. The Carletons' lawsuit was originally filed on Nov. 9, 1998, in Texas state court. On Feb. 12, 1999, the defendants,
asserting diversity jurisdiction, removed the lawsuit to federal court. The Carletons sought remand, arguing the removal was untimely because defendants failed to file a notice of
removal within 30 days of the initial pleading's filing. Defendants argued that their removal was timely because they were unaware the action was removable until they
received the Carletons' responses to discovery requests, which revealed that the amount in controversy exceeded
the federal jurisdictional minimum of $75,000. Damages `Apparent' In a May 14 opinion, Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas said that 13 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html although plaintiffs' initial pleading did not announce a dollar amount of damages sought or affirmatively state the
damages exceeded the minimum federal amount in controversy, "it is readily apparent from any reasonable
analysis of Plaintiffs' allegations that such was the case." Citing the claimed medical injury of leukemia, as well as the numerous causes of action alleged and the request for
punitive damages, Judge Kent said it was "undeniably facially apparent" that plaintiffs sought damages exceeding
$75,000. "Defendants' arguments to the contrary are utterly specious," the judge said. "Preliminary diagnostic testing alone in
cancer cases can often exceed $75,000, and it is a matter of common knowledge that damage awards in cases
involving fatal illnesses far exceed that amount." Finding removal untimely, the judge remand-ed for lack of subject matter jurisdiction. The Carletons are represented by David H. Burrow of Burrow and Parrott of Houston. Defendants are represented
by Vic Houston Henry of Henry Oddo Austin and Fletcher of Dallas. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-99-0625-022. 2 pages. Subscriber price: $1 per page plus $15.] Jones Act Amendment
Allowed In Oil Rig
Worker's Lawsuit NEW ORLEANS - An oil rig worker should be allowed to amend his exposure lawsuit to add a Jones Act claim in
the event he qualifies for status under the federal law, a Louisiana federal judge ruled June 2 (Ryan Jenkins v. Bill
Lawrence Inc., et al., No. 97-2777 Section E/3, E.D. La.; See 6/4/99, Page 19). Ryan Jenkins alleged he suffers from severe and permanent injuries resulting from chronic and acute exposure to
benzene and other hazardous and toxic chemicals while employed by Bill Lawrence Inc. (BLI) as an oil rig platform
operator. Jenkins contends that in October 1996, his supervisor instructed him to wade out into the water to find a
defect in rigging equipment from which a chemical release was emanating. Following his supervisor's orders,
Jenkins was soaked with toxic chemicals, including benzene, the complaint alleged. Jenkins asserted an intentional act claim against BLI, as well as claims against North Central Oil Inc., Forcenergy
Inc. and Ashlawn Energy Inc. Jenkins moved for leave to file an amended and restated complaint, adding claims against BLI under the Jones Act
for negligence and unseaworthiness. Defendant American National Fire Insurance Co., which is the Jones Act insurer for BLI, opposed the motion,
arguing that Jenkins cannot qualify as a Jones Act seaman and that the amendment comes 16 months after the
original complaint. Time On Vessels Jenkins argued that although he was an oil field worker, during the course of his employment he spent a substantial
amount of time on vessels performing various duties and, at one time, spent most of his day servicing outlying wells
accessible only by boat. Noting that discovery has been ongoing, Judge Marcel Livaudis Jr. of the U.S. District Court for the Eastern District
of Louisiana said Jenkins has not unduly delayed filing the amendment or acted in bad faith. "Nor has plaintiff repeatedly failed to cure deficiencies or prejudiced the defendant," the judge said. "Likewise, the
Court does not find that the amendment is futile, but recognizes that in the end, plaintiff may not succeed in
establishing Jones Act status." 14 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html The judge continued: "While defendant objects to the amendment because the suit has been pending over 16
months, trial is not set until October, 1999. If the allegations of a Jones Act claim are truly baseless, defendant can
seek Rule 11 sanctions. However, considering the rules allowing for liberal amendment of pleadings, the plaintiff
should be allowed to amend his complaint." Jenkins is represented by Stephen G. Lindsey and Veronica Angela Collins of Fine & Associates of New Orleans.
American National is represented by Christopher E. Carey of Montgomery, Barnett, Brown, Read, Hammond &
Mintz of New Orleans. New York Judge Finds
Benzene Exposure
Action Time-Barred NEW YORK - A New York trial court on June 17 held that a wrongful death action is time-barred because the
decedent knew that benzene exposure was a potential cause of his illness seven years before suit was filed
(Creighton E. Miller v. Acheson Industries, et. al., IA Part 9, N.Y. Sup., N.Y. Co.). Creighton E. Miller sued on behalf of decedent Richard L. Dickens in 1997, claiming that the decedent suffered and
died from chronic lymphocytic leukemia as a result of exposure to benzene and other chemical carcinogens while
he sailed as a merchant mariner aboard various vessels. Miller's action is based upon the Jones Act, general
admiralty law and maritime law. The Miller case is one of seven benzene cases brought in New York by the
Jacques Admiralty Law Firm. Defendants American Trading & Production Corp., General Gulf Lines Inc., Eastern Enterprises, Marine Transport
Lines Inc. and Puerto Rico Maritime Shipping Authority moved for summary judgment on the grounds that Miller's
claim is barred by the applicable statute of limitations under the Jones Act or general maritime law. Other
defendants later joined the summary judgment motion. The trial court first noted that the Jones Act incorporates and makes available to seamen the recovery provisions of
the Federal Employers Liability Act (FELA). The court further noted that actions under the Jones Act, FELA, and
general maritime law must be brought within three years from the day the cause of action accrued. Leukemia Link Recognized "Defendants have presented convincing authority to show that, in September 1990, when decedent was diagnosed
with leukemia, the potential link between benzene and leukemia was already recognized in the legal and medical
communities," the court found. "Plaintiff's survival and wrongful death causes of action are time-barred because
Dickens died more than three years after being diagnosed with leukemia, without commencing a personal injury
lawsuit." The court added that the undisputed evidence showed that Dickens was diagnosed with leukemia more than three
years before he died, and at a time when the Jacques Admiralty Law Firm was already representing him in
prosecuting all claims for the maritime-related occupational afflictions. "Even if the 1989 retainer was intended, as plaintiff claims, to be limited to illnesses caused by Dickens' exposure to
asbestos only, the retainer demonstrates that, commencing as early as 1989, Dickens suspected that he suffered
from occupationally caused illness(es)," the court said. "On September 4, 1990, Dickens knew of his injury and
knew or had reason to know that benzene was a potential cause. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-016. 6 pages. Subscriber price: $1 per page, plus $15.] Michigan Court Reverses
Venue Decision In Benzene
Wrongful Death Action 15 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html DETROIT - The Michigan Court of Appeals held June 4 that because manufacturers of benzene and benzene
products failed to waive applicable statute of limitations defenses, a trial court incorrectly dismissed a wrongful
death action on the ground of forum non conveniens (Creighton E. Miller, et al. v. Allied Signal Inc., et al., No.
203395, Mich. App.). Creighton E. Miller, an Ohio resident, filed a wrongful death action alleging causes of action under general maritime
and admiralty law. The decedent, a California resident, died from multiple myeloma. Miller asserts numerous
theories of liability and maintains that the decedent's benzene exposure was the cause of death. Named as defendants are the manufacturers of benzene or benzene products: Allied Signal Inc., a/k/a Allied
Chemical; Amerada Hess Corp.; Amoco Corp., a/k/a Standard Oil of Indiana; Arco Chemical Co.; Atlantic Richfield
Co. Inc.; Chevron Chemical Co., a/k/a Gulf Oil Chemicals Co.; Chevron U.S.A. Inc., a/k/a Gulf Oil Corp.; Citco
Petroleum, a/k/a Cities Service Co.; Dow Chemical U.S.A.; Drew Chemical Co.; E.I. du Pont de Nemours & Co.;
Exxon Chemical Americas; Exxon Co. U.S.A.; Exxon Corp.; Fina Oil & Chemical Co., a/k/a Fina Oil; Hess Oil Virgin
Islands Corp.; Marathon Oil Co.; Mobil Oil Corp.; Monsanto Co.; Pennzoil Products Co.; Phillips Petroleum Co.;
Shell Oil Co.; Southwestern Refining Co. Inc.; Sun Oil Co.; Texaco Inc.; Union Carbide Corp.; and Unocal, a/k/a
Union Oil Co. of California (collectively, Allied Signal). Allied Signal moved to dismiss on improper venue and forum non conveniens, arguing that there were no
allegations that the decedent was exposed to benzene in Michigan, sustained injury in Michigan, or had any
connection to Michigan whatsoever. The Michigan Circuit Court for Wayne County dismissed the action on the
ground of forum non conveniens. No Michigan Residence The Michigan Court of Appeals noted that the decedent's widow, treating physicians, employers and co-workers do
not reside in Michigan. The court further noted the Miller himself does not reside in Michigan, and the decedent's
employment records and medical records are not in Michigan. "In spite of the lack of interest in the forum, plaintiff filed suit in Michigan on the last day of the limitations period.
Thus, when the court was presented with and ruled on the issue of forum non conveniens, there was no other
available forum for plaintiff to refile his suit, and defendants refused to waive any statute of limitations defenses they
would have if the suit was filed elsewhere. Because defendants failed to waive applicable statute of limitations
defenses and because there was no other forum available, we are bound to hold that the court abused its discretion
in dismissing the case on this ground," the court held. The appeals court further decided that it is unnecessary to determine whether the dismissal of a case for improper
venue is permissible because there was sufficient information in Miller's amended complaint to allow the trial court
to transfer venue out of Wayne County. "Defendants contend that it is impossible to determine which Michigan county provides proper venue for this action,
and therefore, dismissal is the only appropriate remedy. We disagree with defendants and find that plaintiff's
amended complaint provided sufficient information to transfer venue out of Wayne County once the trial court
determined that Wayne County provided an improper venue," the court held. After finding that Miller alleged that Dow Chemical has its principle place of business in Midland, Mich., the court
decided that Midland County is an appropriate venue for this action. Miller is represented by Michael J. Connor of the Jaques Admiralty Law Firm in Detroit. Counsel for Allied Mutual
include Jill M. Wheaton of Dykema Gossert in Detroit. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-004. 6 pages. Subscriber price: $1 per page, plus $15.] Federal Court: No Link
Between Manufacturer's Actions, Exposure Claims 16 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html HARTFORD, Conn. - A beryllium exposure action is time-barred and failed to establish a link between a beryllium
product manufacturer's actions and alleged personal injuries, a Connecticut federal court said in a May 3 decision
(Cipriano Pinto Sr. v. Texas Instruments Inc., et al., No. 3:96-CV-01575 (WWE), D. Conn.). Cipriano Pinto Sr. worked for Handy & Harmom, a precious metal refinery, from 1973 to 1987 and from June 1989
to the present. Pinto maintains that Texas Instruments Inc. (TII) manufactured and sold products containing
beryllium alloys and sold or consigned its product to Hand & Harmon for refining. Pinto claims that he sustained injuries as a result of being exposed to beryllium dust and particles from TII's
products. His injuries were allegedly not diagnosed until June 1995. He sued TII in 1996, and TII maintained that
Pinto's claims were time-barred. Before the U.S. District Court for the District of Connecticut, TII argued that the time limit for brining a claim pursuant
to Connecticut's Product Liability Act is set forth in Section 52-577a of the General Statutes. The court noted that the
statute sets a three-year statute of limitation and a 10-year statute of repose. The court further noted that if Pinto is
entitled to workers' compensation benefits, the 10-year limitation runs from the date TII last parted with possession
or control of the product. "Pinto has acknowledged in his memorandum of law in opposition to TII's summary judgment motion that (1) he is
eligible for workers' compensation benefits and (2) TII parted with possession of the product more than ten years
before the suit was filed," the court said. Appropriate Statute However, the court noted that Pinto argued that the appropriate statute of limitations is not Section 577a, but instead
is Section 52-577c of the act, which applies to claims in which the damages are caused by exposure to hazardous
chemical substances or mixtures of hazardous pollutants. TII countered that it hired Handy & Harmon to refine gold scrap, and that the gold scrap material was shipped to
Handy & Harmon in the form of a hard metal. The court said that in the hard metal form in which the scrap product
was provided to Handy & Harmon by TII, it is impossible for it to release beryllium dust or particles. "If it was the refining/processing procedures performed by Handy & Harmon which exposed Pinto to beryllium dust
and particles, there is no legal causation between TII's actions and Pinto's claimed injuries and the claim against TII
is time-barred. Inasmuch as Pinto has not disputed this affidavit or . . . [disputed] that his claim is time-barred
pursuant to Section 52-577a, the court holds that the appropriate statute is Section 52-577a and that Pinto's claim
against TII is untimely," the court decided. TII is represented by Peter C. Schwartz and Doreen West Amata of Gordon, Muir & Foley in Hartford, Conn. Pinto is
represented by Michael A. Stratton of Koskoff & Bieder in Bridgeport, Conn. [Editor's Note: The order is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-005. 3 pages. Subscriber price: $1 per page, plus $15.] Carbon Monoxide Exposure
Suit Time-Barred,
Wisconsin Court Affirms MADISON, Wis. - A Wisconsin appeals court on May 19 ruled that a carbon monoxide exposure action was
time-barred because the alleged injuries and cause were known no later than the filing date of a workers'
compensation claim (Lee Neerhof v. R.J. Albright Inc., et al., No. 98-1611, Wis. App., Dist. II). Lee Neerhof worked for Velvet Products Inc., a stain and varnish producer. Velvet moved into a newly constructed
building in 1990. R.J. Albright Inc. was the general contractor on the construction of the building. Central Heating
Service Inc. installed the building's heating, ventilating and air conditioning system, which was designed by
Temperature Systems Inc. 17 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Neerhof began suffering from respiratory and other problems, which he suspected were caused by the new
building's faulty furnace and ventilation system. Neerhof sued in 1997, claiming that the HVAC system was
negligently completed and unsafe for occupants of the building because it emitted carbon monoxide. R.J. Albright, Central Heating and Temperature Systems (collectively, Albright) sought summary judgment on the
grounds that Neerhof discovered, or should have discovered, his alleged injuries three years prior to his March 1997
complaint. The Wisconsin Circuit Court for Winnebago County decided that Neerhof's complaint was barred by the
statute of limitations. Complaints Since 1992 The District II Wisconsin Court of Appeals noted that in 1992, Neerhof consulted a doctor and complained that his
workplace had a faulty furnace and ventilation system. The court further noted that from 1992 forward, Neerhof
visited several physicians and specialists in pursuit of his contention that his memory problems and other ailments
were related to carbon monoxide levels in his workplace. Additionally, the court found that in 1992, Neerhof had the gas company come to the workplace to check for carbon
monoxide. Moreover, the court found that Neerhof asserted a workers' compensation claim, in which he said that
1994 was his injury date and that his injury was caused by carbon monoxide poisoning. "In 1992, Neerhof had an objective basis for believing that he had been injured by the faulty HVAC system. In any
event, Neerhof certainly knew of his injury and its cause no later than February 1, 1994, when he filed a workers'
compensation claim on those grounds," the court said. "Neerhof's March 4, 1997, action was commenced outside
of the three-year statute of limitations period and was properly dismissed." Central Heating is represented by Donald M. Lieb of Otjen, Van Ert, Stangle, Lieb & Weir in Milwaukee. Neerhof is
represented by Daniel J. Hoff of Glen & Hoff in Appleton, Wis. [Editor's Note: The decision is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-006. 3 pages. Subscriber price: $1 per page, plus $15.] La. Federal Court Allows
Failure To Warn Claim
In Fume Exposure Case NEW ORLEANS - A Louisiana federal court on June 14 allowed a failure to adequately warn claim in a noxious
fume exposure suit to stand, and rejected a manufacturer's argument that causation evidence fails to establish that
a portable Plasmarc cutting package caused the release of the fumes (Pamela Breshears, et al. v. Florida Power
Corp., et al., No. 98-114 Section C, E.D. La.). Pamela Breshears and others claim that while using a portable Plasmarc cutting package, called an L-Tec, to
dissemble magnetohydronamic (MDH) units, the plasma-arc torch contacted compounds coating the MHD units
and released a neurotoxic gas which caused permanent and disabling injuries. Breshears sued The ESAB Group
Inc., which manufactures the L-Tec unit. Before the U.S. District Court for the Eastern District of Louisiana, ESAB moved for summary judgment. The court
noted that Breshears only opposed the motion on the claim for inadequate warning under the Louisiana Products
Liability Act. The court found that the adequacy of the warnings on the L-Tec unit is a triable issue. "The clarity of the language is sufficiently controverted for purposes of summary judgment, especially as to the
severity of the resulting injury," the court said. "Here, there is no evidence of a pictogram on the L-Tec unit. Although
the language in the manual is more descriptive of the danger, the determination whether a warning provided in an
owner's manual is adequate or should have been placed on the product itself requires consideration of a number of
factors including the nature and severity of the danger to be warned against, the likelihood that the product will be 18 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html used by persons who have not read the manual, the practicality and the effectiveness of placing the warning on the
product itself, and any other relevant factors." Additionally, the court denied summary judgment as to the causation issue, noting that ESAB argued that
Breshears' causation proof fails to establish that the L-Tec unit caused the release of the noxious fumes. The court
reasoned that whether or not the oxy-acetylene torch or the L-Tec unit was being used when the fumes were
released is an issue of fact for the jury. Therefore, the court dismissed all claims except for the adequacy of warning claim, and held that summary
judgment as to the causation issue is inappropriate. Breshears is represented by Leonard A. Radlauer of Radlauer & Bernstein in New Orleans. ESAB is represented by
Michael Mossy Christobich and Lisa Cuittito Winter of Deutsch, Kerrigan & Stiles in New Orleans. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-019. 2 pages. Subscriber price: $1 per page, plus $15.] Product Liability Claim
Upheld In California
Hair Coloring Dispute LOS ANGELES - Upon rehearing a dispute between a group of men and two manufacturers of hair coloring
containing lead acetate, a California appeals court concluded June 16 that all claims but one were barred by the
doctrine of res judicata or the Food, Drug and Cosmetics Act (FDCA). The court affirmed its previous decision in upholding the products liability claim (American International Industries, et
al. v. The Superior Court of Los Angeles County, et al., No. B121824, Calif. App., 2nd Dist., Div. 3; See 5/7/99, Page
13). American International Industries (AII) and Combe Inc. petitioned for a writ of mandate directing the Los Angeles
County Superior Court to vacate its Feb. 18 order denying the motion for judgment on the pleadings. The Second District California Court of Appeal in March held that all claims filed by six men against the two
manufacturers are barred except for a product liability allegation. Certain claims were barred by the doctrine of res
judicata because a settlement with the same defendants was previously reached, the court said. Matthew Urbach and five other plaintiffs filed a proposed class action in the trial court over the marketing and sale of
hair coloring products that did not contain warnings about lead acetate, a color additive. AII and Combe
manufacture and distribute Grecian Formula and other hair coloring products. The suit accused the companies of violating the Consumers Legal Remedies Act, fraud by concealment, false and
misleading advertising, and violating the Safe Drinking Water and Toxic Enforcement Act (Proposition 65) and the
Business and Professions Code. A failure to warn claim was later added and personal injury claims were
specifically excluded. AII and Combe moved for judgment on the pleadings in February 1998, arguing that the suit should be dismissed
because a judgment made in a separate action in San Francisco barred the claims under the doctrine of res
judicata. In the San Francisco action, California Attorney General Daniel Lungren negotiated a settlement agreement
between the Center for Environmental Health (CEH) and the companies that resulted in a stipulated judgment in
January 1998. Among other concessions, the defendants agreed to reformulate their products and reduce the
amount of lead acetate by 50 percent. According to the agreement, settlement terms could not be disclosed until
after the reformulation was completed. Res Judicata Requirements 19 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html The appeals court agreed March 29 to rehear the dispute. Judge Bruce E. Mitchell wrote res judicata requirements are met in that the San Francisco judgment was a final
judgment and that, while the Urbach plaintiffs were not party to the settlement, privity existed between them and
CEH and the attorney general because the San Francisco action was brought in the public interest. Regarding the identity of issues requirement, the judge said that the Urbach plaintiffs' allegations under Business
and Professions Code Section 17200 and the Toxic Enforcement Act are the same as those resolved in the
settlement. Also barred is the false advertising claim because although CEH did not raise that claim, it could have
done so, he wrote. Because the res judicata requirements were met, the Urbach plaintiffs' interests were adequately protected in the
Los Angeles action, according to Judge Mitchell. However, the judge said that three other claims were not barred by res judicata: allegations of fraud by
concealment, products liability and violation of the Consumers Legal Remedies Act because CEH did not and could
not litigate those claims. A consumer may recover damages under the Consumers Legal Remedies Act, but CEH was not a consumer,
Judge Mitchell noted. Also, the other two claims "were beyond the scope of the San Francisco action," and
therefore were not barred by the settlement, he added. FDCA The judge also examined the effect of the FDCA on the claims not barred by res judicata. He said there was no
private right of action, writing that "the Urbach plaintiffs improperly seek to enforce FDCA requirements by way of
state law claims." If the fraud by concealment and violation of the Consumers Legal Remedies Act claims were
allowed to proceed, the court would "intrude into an area of federal regulation within the expertise of the Food and
Drug Administration," wrote Judge Mitchell. Because the FDA has statutory responsibility for interpreting the FDCA, those claims are barred, the judge held. However, the product liability claim is not barred by the FDCA under the preemption provision of 21 U.S. Code
Section 379s, which says that no state may establish packaging or labeling requirements that differ from federal
regulations. The Urbach plaintiffs are represented by Gary J. Sodikoff of Santa Ana, Calif., and Louis M. Marlin of Marlin &
Saltzman of Los Angeles. Gene Livingston and Rebecca M. Ceniceros of Livingston & Mattesich in Sacramento,
Calif., represent AII and Combe. [Editor's Note: The decision is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 14-990625-002. 20 pages. Subscriber price: $1 per page plus $15.] Opinion Based On
Differential Diagnosis
Is Reliable, 4th Cir. Rules RICHMOND, Va. - Expert opinions offered in a chemical exposure case were based on a reliable differential
diagnosis and a strong temporal relationship between exposure and the onset of symptoms and should therefore
have been admitted, the Fourth Circuit U.S. Court of Appeals ruled June 14 (Hannelore Anderson v. Quality Stores
Inc., et al., No. 98-2240, 4th Cir.). Relying on its own three-week-old ruling in Westberry v. Gislaved Gummi (No. 98-1540[L]; See 6/4/99, Page 14),
the panel reversed and remanded a ruling by Judge Frederick P. Stamp Jr. of the U.S. District Court for the
Northern District of West Virginia entering summary judgment for Quality Stores Inc. in a suit brought by the estate
of Wesley G. Anderson. 20 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Anderson began experiencing breathing difficulties after using black flat spray paint purchased from Quality Stores
on April 26, 1995. He was admitted to the hospital on April 29, suffering from generalized weakness in his legs and
arms, chest congestion and indigestion and was diagnosed with acute respiratory distress syndrome (ARDS). He
died three weeks later. Anderson's wife, Hannelore Anderson, acting on her own behalf and on behalf of his estate, sued in federal court,
alleging that his death resulted from inhalation of toluene in the paint and asserting causes of action for strict
liability, negligence and breach of warranty. At trial, the estate sought to offer testimony by two experts that Anderson's condition was caused by exposure to the
paint. The District Court entered summary judgment for Quality, holding that the experts' opinions were not reliable
because there was no evidence quantifying the level of exposure and finding that in the absence of additional
testimony on causation, the evidence was not sufficient to raise a genuine issue of fact. The estate appealed. Reversing and remanding, the Fourth Circuit cited its holding in Westberry. "In Westberry v. Gislaved Gummi AB, No. 98-1540(L) [4th Cir. May 20, 1999], we held that an expert's opinion
based upon a reliable differential diagnosis and a strong temporal proximity between the exposure and the onset or
worsening of symptoms is sufficiently trustworthy to satisfy the reliability prong of Rule 702," the panel said. "It is
undisputed that the Material Data Safety Sheet and medical literature supported a conclusion that the presence of
significant amounts of chemicals from the spray pain in the lungs could result in pulmonary problems and that
Anderson painted 22 shutters with spray paint; thus, his exposure was substantial. Because the expert opinions
proffered by Anderson were based on a reliable differential diagnosis and a strong temporal relationship between a
substantial exposure to the paint fumes and the onset of Anderson's symptoms, the district court abused its
discretion in rejecting the opinions as unreliable." Anderson is represented by David B. Rodes of Goldberg, Persky, Jennings & White in Pittsburgh. Quality Stores is
represented by James R. Miller of Dickie, McCamey & Chilcote in Pittsburgh. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-020. 6 pages. Subscriber price: $1 per page, plus $15.] Kansas Court Finds
Causation Testimony
Unreliable, Dismisses
Rabon Exposure Suit TOPEKA, Kan. - Holding that expert testimony offered on the issue of causation is unreliable, a federal judge has
dismissed a suit alleging that exposure to the larvicide Rabon caused a farmer and his family personal injury and
caused his cattle to die (Charles Koch, et al. v. Shell Oil Co., et al., No. 92-4239-DES, D. Kan.; See 10/9/98, Page
22). U.S. Judge Dale E. Saffels of the District of Kansas held May 4 that absent the disallowed expert testimony, Charles
Koch has failed to establish a prima facie case against Shell Oil Co., Occidental Chemical Corp. and Feed
Specialties Inc. From April 1979 thorough October 1981, Koch fed his dairy cows Rabon Oral Larvicide Premix (R.O.L. Premix), a
feed additive containing Rabon. Rabon is made and sold by Shell and Occidental; R.O.L. Premix is distributed by
Feed Specialties. A significant number of Koch's cattle died between May 1979 and July 1986. Koch sued in November 1991, alleging that Rabon exposure was responsible for the death of his cattle and for
health problems which he and his family suffered. All three defendants moved for summary judgment and to
exclude Koch's expert witnesses as unreliable under Daubert. Finding the expert testimony inadmissible, Judge
Saffels granted the summary judgment motions and denied the Daubert motions as moot. The Experts 21 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Specifically, Judge Saffels held that testimony by Dr. James Ruth about the presence of Rabon in a sample from
one of Koch's cattle is unreliable because his technique has not been tested, his methodology was not subject to
peer review, the rate of error is not sufficiently precise and the there is no evidence that the theory has general
acceptance in the scientific community. Testimony by Dr. Harvey Loomstein regarding the cause of brain damage
suffered by Koch is "relevant to illustrate Mr. Koch's current medical condition for the issue of damage," but "is not
scientifically reliable nor relevant on the issue of causation," the judge said. Further, testimony by Dr. Aristo Vojdani on damage to the immune systems of members of the Koch family is not
relevant to the issue of causation because Vojdani "had no way of knowing to which chemicals the plaintiffs may
have been exposed," Judge Saffels said. Finally, Judge Saffels said, testimony offered by Dr. Gunnar Heuser is unreliable because he admitted during
deposition that he had not asked Koch what other chemicals he used during the relevant time period. Without the expert testimony, the court ruled, Koch is unable to make out a prima facie case. As a result, the
defendants are entitled to summary judgment and the motions to exclude the evidence under Daubert are rendered
moot, the judge said. Koch is represented by Robert V. Eye of Irigonegaray & Associates in Topeka, Kan., and Ronald P. Hein and
Stephen P. Weir of Hein & Weir in Topeka. Shell is represented by Hal D. Meltzer and Gregory N. Pottorff of Turner
& Boisseau in Overland Park, Kan. Feed Specialties is represented by James P. Nordstrom of Fisher, Patterson,
Sayler & Smith in Topeka. Occidental is represented by Bryce A. Abbott of Martin, Churchill, Blair, Hill, Cole &
Hollander in Wichita, Kan. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990618-024. 12 pages. Subscriber price: $1 per page plus $15.] La. Court: Class
Actions Barred In
Workers' Comp Suits BATON ROUGE, La. - Louisiana's regulation barring class actions in workers' compensation cases does not
violate state law, The First Circuit Louisiana Court of Appeal held May 14 in a chemical exposure case (Brenton P.
Johnson v. Louisiana Department of Labor, Office of Workers' Compensation, No. 98-CA-0690, La. App., 1st Cir.). Brenton Johnson filed a workers' compensation claim in October 1995, alleging injuries from on-the-job exposure to
toxic substances while working at Southern Scrap Material Co. In August 1996, Johnson requested class certification of his compensation case on behalf of all present and former
employees of Southern Scrap with similar claims. Several days later, the director of the Office of Workers'
Compensation (OWC) issued an emergency rule stating no class actions are permitted in workers' compensation
cases. Relying on the emergency rule issued by the OWC, the compensation judge denied John-son's motion to request
class certification. The emergency rule was later replaced with a permanent rule to the same effect. Johnson sued the OWC in 1997, alleging the emergency rule was invalid. Johnson argued that the permanent rule
is inconsistent with Louisiana law and violates the Louisiana Constitution. The trial court granted the OWC summary
judgment and Johnson appealed. Regulation Valid The appeals court held that the regulation barring class actions in workers' compensation cases does not violate
state law and that the OWC had the power to deviate from traditional case law. "Many of the procedures applicable to workers' compensation cases differ from other provisions of Louisiana law, in
recognition of the unique relationship between the employee and employer, and in order to effectuate the prompt 22 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html and equitable handling of such claims," the appeals court said. Louisiana Statute 23:1317[A] allows a workers'
compensation judge to deviate from "technical rules of procedure," the appeals court held. If the Legislature intended for workers' compensation cases to apply the provisions of the Louisiana Code of Civil
Procedure, it would not have granted the director of the OWC authority over workers' compensation law, the
appeals court said. "The legislature has granted the OWC the power to make procedural law governing workers' compensation
proceedings, and has not reserved that power solely to itself. Moreover, the limitation in the challenged rule does
not `repeal' the class action provisions in any way; it merely makes those provisions unavailable to workers'
compensation claimants," the appeals court ruled. Ex Parte Communication The appeals court also rejected Johnson's arguments that his due process rights had been violated by ex parte
communication between the OWC and representatives of Southern Scrap. The appeals court held that the bar
against ex parte communication does not extend beyond those actually charged with making findings of fact and
conclusions of law in pending cases. Additionally, the appeals court said any alleged irregularities in the creation of the emergency rule were cured by the
actions taken in the promulgation of the permanent rule, where all parties are given opportunities to comment on
the proposed regulation. "These procedures exist so those who have legitimate concerns about the proposed rule can voice them," the
appeals court held. Johnson is represented by John B. Lambremont, L. Stephen Rastanis and Frederick A. Stolzle Jr. of Baton Rouge,
La., and John L. Grayson of Fleming, Hovenkamp & Grayson of Houston. The OWC is represented by Kim M.
Hoffman of the Office of the Attorney General of Baton Rouge, La. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-008. 5 pages. Subscriber price: $1 per page, plus $15.] Louisiana Court Affirms
$1.5 Million Award To Dairy
Farmer In Stray Voltage Case LAKE CHARLES, La. - After finding that expert testimony was properly admitted in a case where a dairy farmer
claimed that stray voltage injured his dairy herd, a Louisiana appeals court on June 11 affirmed a $1.5 million award
against an electric company (Charles R. James v. Beauregard Electric Cooperative Co., No. 99-71, La. App., 3rd
Cir.). Beauregard Electric Cooperative Inc. provided electricity to the Charles R. James dairy farm. James sued
Beauregard, claiming that stray voltage from 1989 to 1991 adversely affected his dairy herd and caused him
economic losses. After a seven-day trial, a jury found that the stray voltage exposure to the dairy cows caused James damage and
that Beauregard was 55 percent at fault, with James 45 percent at fault. The jury awarded damages of $770,000.
Subsequently, the trial court granted James' motion for judgment notwithstanding the verdict (JNOV), increasing the
award to $1.5 million. Beauregard appealed to the Third Circuit Louisiana Court of Appeal. On appeal, Beauregard argued that the jury erred in finding it liable, the trial court erred by not granting its JNOV
motion on liability, and that the trial court erred in denying its motion for directed verdict. Beauregard also argued
that the trial court erred when it granted James' motion for JNOV, and objected to the admission of certain expert
testimony. Expert Testimony 23 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html The appeals court first addressed the deposition testimony of Dr. Charles Griffin, who was the first person who
informed James of the stray voltage exposure. Griffin testified as an expert in animal science, specializing in dairy
herd management. "As an expert in dairy herd management, Dr. Griffin was aware that stray voltage can cause problems at dairies.
Admittedly, he was not an expert on stray voltage, but he was the first person to discover this potential problem at
the James dairy," the court said. "We agree with the trial court that Dr. Griffin did not express any opinions that were
beyond his expertise. Furthermore, it was made quite clear that Dr. Griffin was not an expert in electricity, much less
stray voltage, other than the fact that it could affect somatic cell count." Turning next to the testimony of Gerald Bodman, the court noted that Bodman testified for James as an expert
agricultural engineer. The court noted that trial courts have broad latitude in the application of Daubert factors,
including peer review. The court added that testimony should not be excluded just because an expert's expertise is
based purely on experience. "Although Bodman's field research has not been peer reviewed, we find that his credentials are impressive enough
which, when combined with the vast amount of research that he has done, lends to the reliability of his testimony,"
the appeals court held. "The trial court correctly limited his testimony to the effect of stray voltage on the dairy side
since this is where he did his field research." Concerning the nine photographs taken by Bodman when he examined James' dairy that were introduced into
evidence, the court held that while the trial court erred in admitting the photographs, it was harmless error. The
court reasoned that the photographs were not relevant to the controversy at issue. Jury Instructions After finding that Beauregard failed to object at the trial court level to the jury instruction that electric companies owe
a high degree of care to protect persons who may be harmed by electricity, the trial court held that it is not properly
before the appeals court. However, the court found that Beauregard did properly object to other jury instructions, including the trial court's
failure to instruct that it could consider whether an expert's opinion was in the mainstream of his field. Beauregard
argued that this instruction would have aided the jury in evaluating Bodman's testimony. For the same reasons
which it held that Bodman's testimony was properly admitted, the court held that the trial court did not err in its jury
instructions. "The majority of the testimony at trial centered around James' cows being exposed to stray voltage on the milk
pipeline. The jury was aware that it was James' contention that the exposure of the cows to stray voltage caused his
economic loss. The jury instructions as a whole made it clear that James had to prove that the cows had to be
damaged by the stray voltage and that Beauregard Electric was responsible," the court said. "We have reviewed the
jury instructions in this case and find that they are correct statements of the law and were sufficient for the purposes
of this case." Additionally, the trial court found that there was sufficient evidence for the jury to conclude that Beauregard was 55
percent at fault in causing economic damage to James because stray voltage affected the health of his herd which
eventually caused him to shut down his dairy. Therefore, the court held that the trial court was correct in denying
Beauregard's JNOV motion and directed verdict motion. Regarding the trial court's decision to increase the damages award to $1.5 million, the appeals court noted that the
trial judge is in a better position to make a damages assessment than the appeals court. "It appears from the testimony that the jury believed that James lost little more than his cows as a result of the stray
voltage. However, we agree with the trial court that this is an unreasonable figure. Without the dairy cows, the dairy
could not operate which would result in substantially more losses including lost profits and the inability to pay debts,"
the court said. "The trial court's award of $1,500,000 as damages resulting from the presence of stray voltage which
affected James' dairy herd was not an abuse of discretion." James is represented by John Anderson and Scott Westerchil of Tillman and Anderson in Leesville, La. Beauregard
is represented by William Nolen of Jones, Tete, Nolen, Hanchey, Fonti & Belf in Lake Charles, La. 24 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-026. 13 pages. Subscriber price: $1 per page, plus $15.] NIH Study Finds
No Evidence That
EMFs Cause Cancer BETHESDA, Md. - The National Institute of Environmental Health Sciences (NIEHS) released a study June 15
finding that there is little evidence showing a risk of cancer and other human diseases from electromagnetic fields
(EMFs) around power lines. The study, called "Health Effects From Exposure to Power-Line Frequency Electric & Magnetic Fields," determined
that the scientific evidence suggesting that EMF and extremely low frequency (ELF) exposures pose any health risk
is weak. "The strongest evidence for health effects comes from associations observed in human populations with two forms
of cancer: childhood leukemia and chronic lymphocytic leukemia in occupationally exposed adults. While the
support from individual studies is weak, the epidemiological studies demonstrate, for some methods of exposure, a
fairly consistent pattern of a small, increased risk with increasing exposure that is somewhat weaker for chronic
lymphocytic leukemia than for childhood leukemia," the study said. The NIEHS concluded that ELF-EMF exposure cannot be recognized as entirely safe because of weak scientific
evidence. "In our opinion, this finding is insufficient to warrant aggressive regulatory concern. However, because virtually
everyone in the United States uses electricity and therefore is routinely exposed to ELF-EMF, passive regulatory
action is warranted such as a continued emphasis on educating both the public and the regulated community on
means aimed at reducing exposures," the report said. EPA Lacks RCRA Authority
To Assess UST Penalties
Against Federal Facility,
Hearing Board Rules WASHINGTON, D.C. - An administrative law judge ruled on May 19 that the U.S. Environmental Protection
Agency lacks statutory authority to impose proposed administrative penalties against Tinker Air Force Base, Okla.,
for alleged violations of underground storage tank laws (In the Matter of United States Air Force Tinker Air Force
Base, No. UST-6-98-002-AO-1, EPA Hearing Board). EPA filed a complaint in January 1998 under Section 9006 of the Solid Waste Disposal Act under RCRA, charging
that the Air Force, at Tinker AFB, violated the act, as well as the Oklahoma Corporation Commission's General
Rules and Regulations Governing Underground Storage Tanks. The agency proposed a compliance order and civil
administration penalty of $96,703. The Air Force filed a motion to dismiss on the ground that the hearing board and the Administrative Law Judge
(ALJ) lacked jurisdiction to resolve a legal dispute between two federal agencies and that the Office of the Attorney
General is the mandatory forum for such resolution pursuant to Executive Order 12146. In the alternative, the Air
Force moved for summary judgment - or an accelerated decision - on the basis that the waiver of sovereign
immunity in RCRA Section 9006 does not authorize the EPA to impose administrative penalties against federal
facilities. The ALJ, while denying the Air Force's motion to dismiss, agreed that the agency lacks the statutory authority under
RCRA to impose administrative penalties. 25 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Summary Judgment The court agreed with the Air Force that the EPA has no statutory authority to impose a civil administrative penalty
for the UST violations against a federal facility, saying there are concerns about separation of powers among the
branches. The legislative history of RCRA Section 6001(a) shows that Congress clearly included a waiver of sovereign
immunity as to penalties, both coercive and punitive, to federal facilities. However, the application of Section 6001(a)
to EPA administrative enforcement actions is not clear. The Air Force successfully argued that EPA's authority to commence an administrative enforcement action against
a federal agency pursuant to the UST provisions of RCRA do not provide the EPA with plenary authority to impose a
monetary penalty against a federal agency, the ALJ said. Relying upon a U.S. Supreme Court decision in U.S. Department of Energy v. Ohio (503 U.S. 607, 615 [1992]),
which held that any waiver of the government's sovereign immunity must be unequivocal and "must be construed in
favor of the sovereign" and "not enlarged . . . beyond what the language requires," the ALJ said that the Supreme
Court in that case compelled Congress to enact clear and express language that addressed fully the issues and
concerns as to the governing provisions in RCRA. The ALJ found that Sections 6001, 9001, 9006 and 9007 of RCRA do not contain clear and concise language from
Congress authorizing the EPA to assess punitive penalties against Federal agencies for UST violations. First, the judge found that statutory text of RCRA and the UST provisions failed to provide a strong basis for finding a
clear statement from Congress that the EPA is authorized to assess penalties against federal facilities. Also, the
legislative history failed to support the conclusion that Congress expressed such authority, the ALJ said. While Section 6001(b) could be construed as authorizing penalties in administrative enforcement actions, the court
said that "such plausible construction . . . does not meet the requisite standard requiring a `clear' or `express'
statement of Congressional intent authorizing the EPA to administratively assess civil penalties against a Federal
agency," the ALJ said. "Such constrained conclusion does little to assuage the frustration of dealing with the
problematic question of separation of powers or accepting the well-established principle of sovereign immunity
especially when applied to the EPA's daunting task of protecting the environment." Motion To Dismiss Tinker AFB argued that the sovereign immunity is a jurisdictional issue in this case, and that the ALJ cannot resolve
disputes about sovereign immunity since the attorney general is the appropriate forum. The Air Force added that the
interpretation of a waiver of sovereign immunity is a matter of constitutional law and that administrative venues are
not appropriate to resolve such questions. The ALJ disagreed, saying that although Executive Order 12146 confers to the attorney general, at the request of
appropriate officials, the authority to resolve disputes between executive agencies, Congress has given the EPA the
primary responsibility for interpreting RCRA through promulgations of rules and regulations and administrative
adjudication. Here, an ALJ's ruling on the issue of the EPA's authority to impose on a department penalties for UST violations is
not contrary to the executive order, the judge said. "Such a ruling within the Executive Branch does not preclude the EPA or [Defense Department] from seeking an
opinion from the Attorney General at the relevant time," the ALJ said. The judge added that the executive order says that agencies, such as the EPA and the Defense Department, submit
to a dispute "prior to proceeding in any court." However, the hearing board is not considered a "court" since its
powers are limited. The ALJ said that the board cannot grant injunctive relief, as can state and federal courts of law. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-018. 31 pages. Subscriber price: $1 per page plus $15.] 26 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html New York Appeals Court
Says Tank Action Is `Timely' ALBANY, N.Y. - The Third Department of the New York Supreme Court Appellate Division on June 10 said that a
leaking underground storage tank cleanup action is "timely" pursuant to New York's three-year statute of limitations
for such actions (Walter E. Christy, d/b/a/ Luke's Fix-N-Wash v. Ed J. Harvey, d/b/a Harvey Construction Co., et al.,
No. 83781, N.Y. Sup., App. Div., 3rd Dept.). The appeals court affirmed a trial court's ruling denying a construction company's motion to dismiss upon the basis
that the action was time-barred by the six-year statute of limitations applicable for claims for breach of contract. The
appeals court said that, actually, since the plaintiff is seeking to recover for damage to his property caused by the
leak, Civil Practice Law and Rules (CPLR) 214-c applies with its three-year limitations period. CPLR 214-c provides
that the limitations period to recover damages for an injury to property caused by the latent effects of exposure to a
substance must begin on the date of discovery of the injury, or from the date when through due diligence, the injury
should have been discovered. Leaking Tanks Walter E. Christy, doing business as Luke's Fix-N-Wash, a gas station and automotive repair business, sued
SUNYS Petroleum Corp., a distributor of petroleum products, and a construction company for breach of contract
and negligence, seeking to recover for the cost of cleanup and diminution of property value after an underground
storage tank the defendants installed leaked. SUNYS and Christy made arrangements to install three USTs at the service station in 1988. While there is some
dispute in the record, the appeals court said that it appeared that the actual installation of the tanks was done by Ed
J. Harvey, doing business as Harvey Construction Co. The tanks were installed by November 1989. In February 1997, Christy discovered a significant amount of gasoline leaking from a line near or at one of the new
tanks. Harvey and SUNYS filed the motion to dismiss pursuant to the six-year breach of contract limitations period.
The trial court denied the motion, saying there was a question of fact as to privity of contract between Christy and
Harvey. CPLR 214-c The appeals court affirmed the trial court ruling, however, for different reasons. The court said that it is in fact CPLR
214-c which applies to this suit, since Christy is seeking to recover for damage to his property caused by a fuel leak. Section 214-c was "enacted to `provide relief to injured New Yorkers whose claims would otherwise be dismissed
for untimeliness simply because they were unaware of the latent injuries until after the limitation period had
expired,'" the court said, citing Jensen v. General Elec. Co. (82 N.Y.2d 77, 84, 603 N.Y.S.2d 420, 623 N.Y.2d 547,
quoting Mem. of Senator R.B Stafford, 1986 NY Legis Ann. at 287). In this suit, Christy alleged that the discovery of the leak happened in February 1997 and unlike in previous cases
where a plaintiff's reconciliation process and personal observations showed a leak years before actual discovery,
"there is nothing in the record here to suggest that plaintiff should have been on notice of such a problem prior to
February 1997," the court said. Richard P. James of MacKenzie, Smith, Lewis, Michell & Hughes in Syracuse, N.Y., represents Harvey and SUNYS.
Frank A. Bersani of Syracuse represents Christy. [Editor's Note: The opinion is available 24 hours a day by fax from Mealey's Document Service. FedEx or mail
requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 768-7800.
Document number 15-990625-012. 2 pages. Subscriber price: $1 per page plus $15.] Connecticut Oil Storage
Company, Corporate Officers 27 of 35 9/4/99 4:49 PM Emerging Toxic Torts http://www.mealeys.com/tox.html Held Liable For Tank Spills NEW BRITAIN, Conn. - The Hartford/New Britain District of the Connecticut Superior Court on May 3 upheld a
final order from the state's Department of Environmental Protection (DEP) which found that two corporate officers
were personally responsible for polluting their facility, as well as state waters and soil (BEC Corp., et al. v. The
Department of Environmental Protection of Connecticut, No. CV 980492627S, Conn. Super., Hartford/New Britain
Dist.). The order also found that BEC Corp., as owner of the site, discharged pollutants into state waters without a permit.
The property has been used by BEC and its predecessors as an oil storage and distribution facility since 1944 until
about 1995. The site includes a barge docking area for unloading oil barges, aboveground oil storage tanks, loading
racks and piping to carry the oil from the docking facility to the oil storage tanks. BEC argued that the evidence was insufficient to support the final decision; that the hearing officer erred in using the
burden of proof standard; that the DEP erred in imposing personal liability on the owners/operators of BEC, Irvin
and Michael Shiner; and that the DEP erred in submitting certain evidence at the reopened hearing in October 1997. Site Conditions The oil storage tanks held between 5,000 and 15,000 barrels of oil. The tanks were in a tank farm which had an
intermittent spring run through it. The court said that the floor of the tank farm is often wet and frequently covered in
water from the spring water and precipitation. Another tank farm was close to the West River and was surrounded
by several inches of water during high tide, the court said. The court said that there is a history of oil spills at the site. In one, approximately 900 gallons of oil spilled onto the
floor of one of the tank farms when a tank overflowed. Another spill involved leaching of oil into the West River.
While a private contractor was hired to clean up the spill, it wasn't until the U.S. Coast Guard became involved that
the source of the spill and the spill were eventually remediated, the court said. Several other overflows or leaks were detected during the history of the site until, in 1995, the Shiners decided to
have the tanks removed from the site. Irvin Shiner was president of the BEC predecessor, Connecticut Refining Co., from 1968 until it merger with
Benzoline Energy Co. Benzoline eventually changed its name to BEC. Michael Shiner served as vice
president/secretary of CRC and then Benzoline from 1975 until 1995. In the 1980s, Michael Shiner took over more
responsibility for the site, including overseeing the company's environmental compliance tasks. In that capacity,
Michael Shiner coordinated the response to spills. DEP Order The DEP issued its order under Connecticut General Statutes 22a-432, which provides that when "any person has
established a facility or created a condition . . . or is maintaining any facility or condition which reasonably can be
expected to create a source of pollution to the waters of the state," the DEP may issue an order to that person to
take necessary steps to correct the source of pollution. The court said it found substantial evidence to support the issuance of the order. The record, the court said,
established a history of oil spills directly into the water and into the soil at the site. The court added that little, if any,
remediation was undertaken to clean up the site and the evidence established that the site is in fact polluted. Also, according to the state's Clean Water Act, the DEP is authorized to issue an order to "any person" who has
established or created a condition that would create a source of pollution, thus the court agreed that assigning
personal liability to Irvin and Michael Shiner was appropriate. Personal Liability The Shiners, however, argued that t |