Toxic Tort

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Words matter, and never is that more accurate than in a breach of express warranty claim. Plaintiffs were current and former employees of Delta Air Lines who wore uniforms manufactured by defendant Lands’ End. Plaintiffs originally alleged that the uniforms were defective because they transferred dye onto clothing and other property, and because they caused…

The U.S. Supreme Court overturned the Fourth Circuit’s decision to send a local climate change case against various energy companies. BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1533 (2021).

Baltimore’s Mayor and City Council sued various energy companies in Maryland state court alleging that the companies concealed the environmental…

A federal court in Alabama recently issued an interesting decision on defendant’s motion to exclude plaintiff’s expert evidence in a medical device case.  See Lowery v. Sanofi-Aventis LLC, 2021 WL 872620 (N.D. Ala. Mar. 9, 2021).

Plaintiff advanced claims based on the allegation that he suffered injuries after Defendant’s medical device, Synvisc-One, was injected into…

Our long time readers know that medical monitoring is a frequent topic here, probably because as a young (younger?) lawyer we got an opportunity to help try a medical monitoring class action to defense jury verdict.

In the years since then, several states have weighed in on the availability of medical monitoring, which refers to future medical testing of a plaintiff who has not suffered a manifest traditional physical injury, but who has been exposed to a hazardous substance or product and claims to therefore be at increased risk of contracting a future disease or injury; the plaintiff is then monitored periodically with appropriate medical testing to facilitate early detection and diagnosis of that possible future consequence.  Medical monitoring thus turns on the notion of latency, the time between exposure and manifestation of a symptomatic or detectable injury. See Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 571 (6th Cir. 2005) (“A medical monitoring award aids presently healthy plaintiffs who have been exposed to an increased risk of future harm to detect and treat any resultant harm at an early stage.”).

The general trend has been against the recognition of the claim/remedy, and the latest word on the subject comes from the Illinois Supreme Court in a proposed proposed class action by Chicago residents claiming the city failed to warn them of lead exposure in their drinking water. Berry v. City of Chicago, 2020 IL 124999, 2020 WL 5668974  (Ill. Sept. 24, 2020).
Continue Reading Illinois Rejects Medical Monitoring Too

The Fifth Circuit affirmed summary judgment in favor of a chemical company in a toxic tort case in which plaintiff alleged the defendant engaged in a civil conspiracy to sell a component of mustard gas. Adams v. Alcolac Inc., 974 F.3d 540, 542 (5th Cir. 2020), as revised (Sept. 25, 2020).

Plaintiffs were primarily former…

The First Circuit recently affirmed the exclusion of plaintiff’s expert in a toxic tort claim, leading to summary judgment. See Milward v. Rust-Oleum Corp., No. 13-2132, 2016 WL 1622620 (1st Cir. 4/25/16).

Plaintiff Milward worked as a pipefitter and refrigerator technician for over thirty years. During the course of his employment, Milward was exposed to…