Category: Environmental and Toxic Tort Advisor - Page 3

It would not be surprising to find Mallory v. Norfolk Southern Railway Co. become mandatory class material across law schools in the future. The case presents a thought-provoking discussion of specific and general jurisdiction, the Due Process concerns faced by corporations caused by plaintiff’s forum shopping, and improper assertion of jurisdiction by state courts. Following its interpretation of the jurisdictional rules set by SCOTUS in Goodyear Dunlop Tires Oper. v. Brown[i] and Daimler AG v. Bauman,[ii] the Pennsylvania trial court ruled that Pennsylvania’s long-arm jurisdiction statute, which required foreign corporations to ‘consent’ to jurisdiction in any matter, violated the U.S. Constitution. On appeal, the Pennsylvania Supreme Court agreed with the trial court’s ruling, again declaring the statute to be in violation of the 14th Amendment’s Due Process Clause. As one of the favored jurisdictions by plaintiffs, the loss of Pennsylvania’s jurisdictional reach would have a critical impact on future cases. On further appeal, SCOTUS granted certiorari, bringing State-mandated jurisdictional consent clauses to the forefront.

Specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.[iii] General jurisdiction is asserted where there is no specific or direct act by the defendant toward the plaintiff within the jurisdiction, but the corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.”[iv]

The historic standard for general jurisdiction was set by SCOTUS in International Shoe,[v] where if ‘minimum contacts’ were established within the state, general personal jurisdiction could be exercised over a foreign corporation: “A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”[vi]

Under the International Shoe standard, general jurisdiction became an artificial ‘catch-all’ rationalization that allowed courts to assert jurisdiction over foreign corporations, despite their location or how tenuous their contacts with the forum state were. Writing for the Court in Goodyear, Justice Ginsburg opined that “under the sprawling view of general jurisdiction … any substantial manufacturer or seller of goods would be amenable to suit, on any claim for relief, wherever its products are distributed.”[vii] Sweeping assertions of general jurisdiction were challenged by Due Process arguments. “Because a state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, it is subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause, which limits the power of a state court to render a valid personal judgment against a nonresident defendant.”[viii] The assertion of jurisdiction over an out-of-state corporation must comply with traditional notions of fair play and substantial justice.[ix]

Eschewing the minimum contacts test, Ginsburg stated that “a corporation that operates in many places can scarcely be deemed at home in all of them.”[x] She followed by saying “the paradigm all-purpose forums for general jurisdiction are a corporation’s place of incorporation and principal place of business.”[xi] The holdings of Daimler and Goodyear essentially recognized three locations where jurisdiction is proper: (1) the forum where specific jurisdiction exists; (2) where the defendant corporation’s principal place of business; or (3) the business’ place of incorporation. While many courts have hammered at these three points, Mallory focuses on a fourth instance: cases where the corporation consents to or waives jurisdiction concerns.

In Mallory, suit was filed against Norfolk Southern Railway, a Virginia corporation with its principal place of business in Norfolk, Virginia. The suit arose following Mr. Mallory’s alleged exposure to asbestos while employed by Norfolk Southern Railway (“Norfolk Southern”) in Virginia and Ohio. While Mr. Mallory does not allege any harmful occupational exposures in Pennsylvania, the suit was brought in Pennsylvania under the Federal Employers’ Liability Act (“FELA”), which establishes a compensation structure for railroad workplace injuries that preempts state tort remedies and workers’ compensation statutes. Norfolk Southern objected to Mallory’s filing in Pennsylvania and sought dismissal due to lack of specific and general personal jurisdiction.

Despite being brought as a FELA claim, SCOTUS has previously declined to distinguish jurisdictional questions brought under FELA or against railroad defendants in BNSF Ry. Co. v. Tyrrell, where it found that the “due process constraint described in Daimler, however, applies to all state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary with the type of claim asserted or business enterprise sued.”[xii] Following the guidance of Goodyear and Daimler, the Pennsylvania trial court found that an of exercise general jurisdiction over a foreign corporation is proper only if the corporation’s affiliations in the state are so continuous and systematic as to render the corporation essentially at home in the forum state. Therefore, for “Pennsylvania courts to acquire general personal jurisdiction over foreign corporations under the current state of the law, the foreign corporation must be incorporate in Pennsylvania, have its principal place of business in Pennsylvania, or have consented to the exercise of jurisdiction.”[xiii]

Accepting that there was no specific jurisdiction in the present case and that Norfolk Southern was neither incorporated nor did it have its principal place of business in Pennsylvania, Mallory points to Norfolk Southern’s consent to jurisdiction by its act of registering to do business pursuant to Pennsylvania law. Each of the 50 states requires foreign corporations to register within the state as a prerequisite to conducting business within the Commonwealth’s boundaries. However, Pennsylvania’s foreign-business statute is unique in its long-arm provision, which provides that the act of registration constitutes consent to general jurisdiction over all claims against the corporation.[xiv] Both the trial court and Pennsylvania’s Supreme Court have found the provision in the Pennsylvania code requiring submission to jurisdiction to be invalid as ‘repugnant’ to the constitution and standing as a ‘Hobson’s Choice’ – where one must choose between accepting whatever is available or have nothing at all.

SCOTUS has shown a desire to guide business practices, allowing “out-of-state defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.”[xv] Should Norfolk Southern prevail, the mandatory acceptance/waiver of jurisdiction scheme, described in lower courts as a “Hobson’s choice”, would be struck down. Should Mallory prevail, it is foreseeable that more cases will be filed in Pennsylvania. Further, other states may decide to follow Pennsylvania’s lead in creating mandatory jurisdiction clauses as a condition for foreign corporations.

[i] 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011).

[ii] 571 U.S. 117, 134 S. Ct. 746, 187 L. Ed. 2d 624, 24 Fla. L. Weekly Supp. 503 (2014).

[iii] Goodyear Dunlop Tires Oper. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011) (internal citations omitted).

[iv] Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154 (1945)

[v] Id. at 317

[vi] Goodyear Dunlop Tires Oper. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011).

[vii] Id.

[viii] Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017).

[ix] Cf. Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154 (1945)

[x] Daimler AG v. Bauman, 571 U.S. 117, 134 S. Ct. 746, 187 L. Ed. 2d 624, 24 Fla. L. Weekly Supp. 503 (2014).

[xi] Goodyear Dunlop Tires Oper. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011).

[xii] BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 198 L. Ed. 2d 36 (2017).

[xiii] Pa.R.A.P. 1925(a).

[xiv] Cf. 42 Pa. C.S. § 5322.

[xv] Daimler AG v. Bauman, 571 U.S. 117, 134 S. Ct. 746, 187 L. Ed. 2d 624, 24 Fla. L. Weekly Supp. 503 (2014) at 139, internal quotations omitted.

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Our environmental law and toxic tort attorneys will provide you with news, legal updates, and commentary on environmental and toxic tort liability issues. We hope you find our content informative and helpful as you deal with the ever-changing challenges toxic tort and environmental matters pose to your organization. To receive updates directly to your inbox, click here.

Disclaimer: The information contained in this publication should not be considered legal advice, is not a substitute for legal counsel, and should not be relied on as such. In some jurisdictions, this is considered advertising. For legal advice or answers to specific questions, please contact one of our attorneys.

In a recent decision on an asbestos exposure case, a New Jersey court once again reminded us that the admissibility of an expert opinion hinges upon the substance of the opinion, rather than the conclusions of the expert alone.

A husband and wife filed a complaint in the Superior Court of New Jersey, Law Division, Essex County, alleging that they entered into a contract with a real estate holding group for the purchase of a home located in Maplewood, New Jersey. According to the complaint, a subsequent inspection of the property revealed the presence of asbestos-containing material located within the basement of the home. The plaintiffs further alleged that the holding group agreed to remediate the asbestos-containing material, subsequently subcontracting with an asbestos abatement company in order to remove the asbestos in question. According to the complaint, however, the remediation was performed improperly, resulting in asbestos contamination throughout the home. As a result, the plaintiffs asserted claims of negligence against the asbestos remediator, based upon the alleged improperly performed remediation.

Following the close of discovery in the matter, the Court granted summary judgment in favor of the remediator. The Court noted that an expert’s bare conclusions, unsupported by factual evidence or other data, are inadmissible as mere “net opinion.”[i] Under the “net opinion” rule, an expert is required to give the why and wherefore of his opinion, rather than a mere conclusion.[ii] Further, the opinion of an expert is considered a “net opinion” when the data upon which the opinion is based is perceived as insufficient, unreliable or contrary to the proponent’s theory of the case.[iii] Additionally, the admissibility of an expert opinion is contingent upon the ability of the expert to explain pertinent scientific principles and then apply those principles to the formulation of his or her opinion.[iv] Therefore, the key to admission of the opinion is the validity of the expert’s reasoning and methodology. Id.

After examining the record, the Court found that, because the opinion set forth by the plaintiffs’ industrial hygiene expert was not supported by the underlying facts of the matter, failed to exclude other potential causes for the alleged contamination and offered a mere conclusion, without providing the why and wherefore of his opinion, the report was inadmissible as mere “net opinion.” The Court also held that, because the process of safely and properly performing asbestos abatement work was outside of the ken of the average juror, the aid of an expert opinion would be required in establishing the claims of the plaintiffs. [v]As the expert opinion was ruled to be inadmissible, the Court found that the plaintiffs would be unable to prevail on their claims as a matter of law.

Subsequently, the plaintiffs moved for reconsideration of the decision granting the application for summary judgment. The application for reconsideration, however, was denied as the Court found that the plaintiffs failed to meet their burden in demonstrating that the prior decision was “based upon a palpably incorrect or irrational basis” or that the Court failed to consider “the significance of probative, competent evidence.” [vi]

[i] Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)

[ii] Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div. 2002).

[iii] Gore v. Otis Elevator Co., 335 N.J. Super. 296, 303-304 (App. Div. 2000).

[iv] Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991).

[v] State v. Kelly, 97 N.J. 178, 208 (1984).

[vi] D’Atria v. D’Atria, 242 N.J.Super. 392, 401, 576 A.2d 957 (Ch. Div. 1990).

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The recent growth of litigation involving per- and polyfluoroalkyl substances (PFAS) has focused on firefighting foam, cosmetics cases, and industrial sites using and disposing of PFAS-containing materials. Now, emboldened by the USEPA’s announcement in 2021 that it seeks to define certain PFAS as “hazardous substances” under CERCLA, plaintiff’s attorneys appear to be expanding the scope of PFAS litigation to a wider array of businesses. That widening net has now been cast to include the fast-food industry and its food containers, a move that could form a class that includes nearly every American.

On March 28, 2022, and on April 11, 2022, two class actions began against fast-food giants, McDonald’s and Burger King in Illinois and California, respectively. The cases allege similar class action theories, economic damages, compensatory damages for injury, and punitive damages. Both suits allege that the companies sold products they knew were unfit for consumption and posed a significant health risk.

Like claims against the cosmetics industry, the suits do not claim a specific bodily injury. Instead, the suits claim violations of state consumer protection statutes, violation of Consumer Fraud and Deceptive Business Practices statutes, breach of express warranties, breach of implied warranty and unjust enrichment among other things. Instead of seeking damages for bodily injury, plaintiff is seeking injunctive relief, compensatory and punitive damages, restitution, and attorney fees.

Plaintiff’s attorneys are relying on various sources for their theories, one source being Consumer Reports review of food products and PFAS. Most recently, Consumer Reports tested 100 varieties of food containers from over 24 big-name food businesses, not just McDonald’s and Burger King. They found PFAS chemicals in many types of packaging, from paper bags for french fries and wrappers for hamburgers to molded fiber salad bowls and single-use paper plates.

As studies on PFAS continue, claims against the fast-food giants may, in time, expand to include bodily injury. The lawsuits even hint at this likelihood, claiming that PFAS persist and accumulate over time and are harmful “even at very low levels.” The suits further allege that PFAS have health risks associated with various kinds of cancer, altered growth and behavioral risks to infants and children, increased cholesterol, impact on the immune system, liver disease, decreased fertility, asthma, and thyroid disease. However, the McDonald’s complaint also states that “Scientists are studying –and extremely concerned about–how PFAS affect human health and how the risk may be underestimated.” While such a statement is rather powerful wording, it also suggests a clear defense to potential bodily injury claims because a lawsuit cannot be based on hypotheses or what “may” cause injury but must be based on actual causation.

The Burger King Complaint seems to go a bit further. In the Burger King matter, the Complaint alleges the Plaintiff, and the class, are entitled to damages for injuries sustained from being exposed to high levels of PFAS. However, the damages sought only include a request for medical monitoring to safeguard the class members’ health and mitigate damages for future medical treatment. This request appears to be carefully crafted to protect class certification because, as many courts have noted, the questions surrounding a plaintiff’s injury necessarily require individualized examination of the injury and causation that tends to block class certification.

For now, experienced litigation observers can quickly surmise that the McDonald’s and Burger King lawsuits are just the beginning of litigation targeting food industries. And, should the claims expand beyond consumer protection claims into bodily injury matters, the litigation will likely expand to potentially include packaging suppliers and chemical companies. The McDonald’s suit even mentions that McDonald’s packaging for its hash-browns was developed by 3M, one of the largest producers of PFAS in the country. Although these suits represent a predicted expansion of PFAS litigation to the food packaging and fast-food industry, what comes next will likely follow the traditional mass product and mass toxic tort litigation pattern. That pattern says we can expect more of these suits across the industry and, in time, an expansion that targets manufacturers and inclusion of bodily injury claims. Considering the astronomical number of people who have eaten fast food or take-out of any kind over the past few decades, it is likely this supersizing of PFAS litigation related to food packaging has only just begun.

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For several years, there has been a growing expectation that all types of business organizations must pursue sustainability, address environmental risks such as climate change, and commit to diversity, inclusion, and equity. Not just to their employees but as members of local, national, and global communities. And, the time has passed when an organization, large or small, can passively address these concerns.

In response to these considerations has been the rapid maturation of Environmental, Social, and Governance (ESG) strategies as part of an organization’s principles and practices. In its most simple form, ESG is a snapshot of an organization’s impacts and strategies in these three crucial areas for investors, regulators, potential clients, and upstream and downstream customers. In more complex settings, such as publicly-traded companies, ESG reporting is evolving into a regulatory must that even asks organizations to account for ESG considerations of suppliers and consumers.

This article is designed to provide its own snapshot of the ESG landscape in 2022. Future articles will provide a more in-depth discussion of certain segments within that landscape, including the evolving regulatory and litigation concerns. To start, what is ESG and why should businesses, large and small, care?

What is ESG

ESG criteria are a set of guiding principles for an organization’s operations that customers, consumers, and even investors can use to screen an organization and how it fits with their own goals or even reporting requirements. ESG generally includes the following considerations:

The “E” includes the consideration of the energy an organization takes in, the resources it needs, and the way it disposes of waste. The E may also include an organization’s carbon emissions and impacts on climate change. These considerations are critical for organizations of all sizes because every company impacts, and is impacted by, the environment.
The “S” addresses the organization’s diversity, demographics, community outreach, and how it operates within the broader community in which it exists. It may also address labor standards across the supply chain, pay equity, and workplace health and safety standards.
The “G” is the internal systems, controls, and procedures an organization adopts to govern itself, make effective decisions, meet the needs of external stakeholders and clients, and comply with laws.

With so many factors in play, ESG can mean different things to different organizations, and not all the discreet items will apply or need to be addressed by every organization. Although there is no standard approach to the measuring and reporting of ESG data, there are several reporting frameworks available to companies of all sizes. Knowing the requirements for your organization (are you required to report?) is a first step in determining how your organization may approach its ESG analysis and statements to highlight awareness and action on each of the elements.

ESG is an Issue for your Legal Team

The ESG agenda is being driven not only by community consciousness but by the rapid development of laws and regulations at the state and federal levels. Accordingly, organizations’ legal teams and counsel are taking on critical roles in advancing the implementation of the ESG agenda and strategies. This is in part due to the Securities Exchange Commission’s (SEC) growing scrutiny of ESG reporting and the introduction of new proposed rules that will make elements of ESG required reporting. However, more requirements are coming to businesses of all sizes as organizations are asking their supply chain partners for disclosures on sustainability and ESG frameworks to integrate into their own reporting.

Regulatory Considerations

Regulation based on ESG is here and is growing in scope. Consider that in March 2021, the Securities and Exchange Commission announced the creation of a Climate and ESG Task Force division in the Division of Enforcement. Since then, it has become increasingly clear that ESG disclosure regulations for public companies are expected to increase. This is evidenced most recently by the SEC meeting of March 21, 2022, where a proposed rule was issued that would enhance and standardize the climate-related disclosures provided by public companies. The proposed rule would require disclosure about greenhouse gas emissions by the organization reporting, as well as consideration of “Scope 3” emissions, which are the indirect upstream and downstream activities in the organization’s supply chain and of its consumers. While these regulations are still in the public comment period, heightened scrutiny is coming to public companies and by extension, their suppliers.

Litigation Risks and “Greenwashing”

As with any developing business practice and regulation, litigation inherently follows, and this is no different in the ESG space. In fact, the litigation arising from ESG considerations even has its own name, “Greenwashing.” Greenwashing is when a business creates the impression through branding or marketing, or an erroneous or misleading ESG statement, that it and its products are environmentally friendly. Greenwashing may come from an intentional act or simply arise from poor wording or over-stating an organization’s capabilities. Suits in this space may come from a variety of sources: consumer groups; consumer class actions; private actions where a company or investor relies on an inaccurate ESG statement of an organization; or even state or federal regulators. A future article will take a deeper dive into the rise in Greenwashing claims and the different actions that an organization may need to be aware of. For now, it’s worth considering that, just like other areas of business strategy, the best defense often begins with an active review by counsel as ESG strategies are developed and implemented.

What to Take Away

For many organizations, ESG is a strategic move to keep pace as the social consciousness in business organizations continues to evolve. For others, ESG reporting is a move to promote compliance with evolving laws and regulations. Or it could be that your business falls somewhere between the two ends of the spectrum. Wherever your organization falls and whatever the motivations, actively engaging your understanding of ESG has quickly become an essential element of operating in today’s environmentally and socially conscious business environment.

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The Delaware Supreme Court ruled on March 28, 2022, that Delaware’s burden-shifting requirement, known as “Stigliano,” for deciding summary judgment is a “proper framework” in asbestos exposure cases, however, the particular facts of the case warranted denial of summary judgment for the Defendant, and therefore reversed the trial court decision.

The case before the Court involved a deceased Plaintiff who had used an arc grinder in performing brake shoe work in the 1970s in the state of Washington. The evidence led to an inference that two of the brake products the Plaintiff had used, Wagner and Bendix, were asbestos-containing brakes for several years in the early 1970s, therefore Plaintiff had satisfied her burden to survive summary judgment. Thus the Court reversed the granting of summary judgment for Hennessy, successor to AMMCO, the arc grinder manufacturer.

The burden-shifting requirement stems from a 2006 letter opinion from then-Superior Court Judge Joseph Slights in granting a motion on summary judgment for Westinghouse (CBS Corp.), which made welding rods, some that did and some that did not contain asbestos. Judge Slights stated:

When the record reveals that a defendant manufactured both asbestos-containing and non-asbestos-containing versions of a product during the time period of alleged exposure, in the absence of evidence directly or circumstantially linking the plaintiff to the asbestos-containing product, the Court cannot draw the inference of exposure and summary judgment on product nexus must be granted.

Stigliano v. Westinghouse, No. CIV.A 05C-06-0263ASB, 2006 WL 3026171, at *1 (Del. Super. Ct. Oct. 18, 2006)

In addition to upholding the Stigliano decision as a proper framework to apply Rule 56 to product identification disputes in asbestos exposure cases, the Court disagreed with Appellant/Plaintiff’s arguments that under Stigliano’s burden-shifting framework, Plaintiff is required to show exclusive use of defendant’s product to defeat summary judgment. The Court said that the Stigliano framework does not require showing exclusive use of a defendant’s asbestos-containing product, “[a]t most, the Superior Court has expanded Stigliano to different factual circumstances where product identification arises.”

The Delaware high court also held that even though the arc grinder itself does not contain asbestos, “[t]o trigger the duty to warn, [Appellant/Plaintiff] must show by direct or circumstantial evidence that [Appellant/Plaintiff’s Decedent] was exposed to asbestos dust when using the arc grinder, and the dust came from grinding asbestos-containing brake drum shoes.” Further, the Court held that the Stigliano framework does not conflict with Washington law, the applicable substantive law of the case.

The Delaware Supreme Court held:

“Under Stigliano—and as required by Rule 56—the defendant has the initial burden. It must show that it manufactured an asbestos-containing and an asbestos-free product at the time of alleged exposure. If the defendant makes this showing, the burden shifts to the plaintiff to show through direct or circumstantial evidence that a genuine issue of material fact exists whether the plaintiff was exposed to defendant’s asbestos-containing product. The Superior Court’s Stigliano decision and its burden-shifting framework in asbestos product identification disputes are consistent with Rule 56 and its focus on identifying the absence of genuine issues of material fact about the plaintiff’s exposure to a defendant’s asbestos-containing product.”

Droz v. Hennessy Ind., LLC, Del., Case No. 211,2021 (March 28, 2022).

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For as long as humanity has existed, there has been a love-hate relationship with food and diet in our daily lives. We love celebrating a big moment in our life with a Michelin-rated meal, but the next day many of us are filled with regret because of the number of calories our euphoria caused us to consume. Adding to the angst you may have after seeing the latest tally staring at you on your bathroom scale is the field of nutrigenomics. This rapidly emerging research field studies the changes induced on the genome by diet. Thus, it considers the intersection of health, diet, and genomics. The researchers who focus on nutrigenomics understand that the food we eat impacts both how our bodies look and our genome in ways that many of us never imagined to be possible. You may be asking yourself, what does this have to do with a toxic tort case?

The high rate of obesity in our country has been rapidly gaining acceptance as a risk factor for the increasing rate of cancer that we see in our country. You may be surprised to learn that being obese is linked with a higher risk of getting 13 types of cancer. These cancers make up 40% of all cancers diagnosed in the United States each year. According to research from the American Cancer Society, excess body weight is thought to be responsible for about 11% of cancers in women, about 5% of cancers in men in the United States, and about 7% of all cancer deaths. Nutrigenomics research makes it possible to not only defend a toxic tort case by pointing to the obesity of a plaintiff; it is also likely that we will soon be able to defend such a case by digging deeper with an analysis of the specific foods that a plaintiff eats.

A majority of nutrigenomics studies have centered on animals, most notably being bees. Worker bees and queen bees are genetically identical, yet we all know that their roles within a hive are drastically different. This difference is based on what bees eat. Queen bees feed on royal jelly and worker bees feed on nectar and pollen. The difference in the composition of these food sources determines what path in life bees will take, i.e. we are what we eat. Depending on the type of nutritional information, the genetic controls activated and the cell that receives them, the messages in food can influence wellness, disease risk, and even life span. Interestingly, the ability of nutrients to impact genetics can impact numerous generations seen in families. Studies show that in humans and animals, the diet of grandparents influences the genome and the disease risk and mortality of grandchildren.

Many researchers in the field of nutrigenomics believe that although you cannot completely eliminate your risk of cancer and other serious disease by controlling your diet, you can significantly reduce your risk by watching what you eat. This is because certain foods may lead to the development of genetic mutations that can put you at an increased risk of developing disease. There is no question that additional research is needed in this field, but it is clear that the composition and quantity of our diets can be key in influencing disease onset. In choosing what we eat, we choose whether we will provide our genes with the weapons that cause disease.

There is no question that this field requires a lot of maturation to fully answer the many questions that it poses, such as the mechanism by which nutrients in food trigger our genome. Still, there is no doubt that in the near-future litigators in a toxic tort case will be asking a plaintiff, “So what do you like to eat?”

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Will private landowners’ property fall under more regulation as part of the definition of “waters of the United States?” Will land near, but that does not front, a large body of water be subject to the wetlands regulations of the Clean Water Act (CWA), making development more costly? Over the last several decades, the U.S. Supreme Court (SCOTUS) and federal regulators have considered these issues but have not drawn a lasting definition for “waters of the United States.” In 2022, SCOTUS is poised to take the issue up once again. Simultaneously, the Environmental Protection Agency (USEPA) and the United States Army Corps of Engineers (Corps) have proposed a new definition for the “waters of the United States,” a move that will potentially impact the costs associated with the use of private property and the ability of property owners to build or expand on their lands.

In the Court

Of the two paths for defining “waters of the United States,” the more significant will likely be the determination from SCOTUS, which has assumed formal consideration of the wetlands definition, in Sackett v. U.S. Environmental Protection Agency.[i]

Michael and Chantell Sackett purchased a half-acre lot within 300 feet of Priest Lake, an attractive recreation location for vacationers and residents. Priest Lake is one of the largest lakes in Idaho, spanning approximately 23,000 acres of beautiful water lying within the slopes of the Selkirk Mountains. The Sackett’s lot was originally somewhat soggy but did not front the lake. The lot sits between roads to the north and the south. A large wetland drains into an unnamed tributary across the road to the north of the Sackett’s lot. To the south of the Sackett’s lot, there is another road, across which is a row of existing homes which front Priest Lake. The Sacketts obtained building permits from local authorities and began site preparation by filling parts of the lot with sand and gravel. The USEPA and the Corps stepped in to stop the site work, finding that the Sackett’s lot could not be filled without a wetlands permit under the CWA. These federal agencies found that the marshy quality of the Sackett’s property rose to the level of “waters of the United States,” and had an impact on the environment of the nearby lake. Not only did they have to stop back-filling the lot, the Sacketts were also ordered to remediate the already completed back-filled areas of their lot within five months or face penalties of $40,000 per day.

The USEPA and the Corps noted that parts of the lot which had yet to be filled with earth were either flooded or contained wetland vegetation, both factors in determining whether a property is in a wetland. The site inspection report by the USEPA stated that the Sackett’s property where no fill material had been placed was inundated and ponded with groundwater. The USEPA and the Corps determined that the Sackett’s lot contained wetlands, and the sand and gravel they deposited there constituted pollution which had to be removed.

While the Sackett’s case has suffered prolonged litigation, appeals and various positions taken by federal regulators, the issue before SCOTUS this year is whether to adopt a test which only four Justices endorsed in Rapanos v. United States.[ii] If adopted, that test would likely restrict the USEPA’s and the Corps’ authority over only those wetlands that have surface water continuously connected to regulated waters.

Regulatory Agencies

The task of interpreting “waters of the United States” rests with the USEPA and the Corps who have responsibilities relating to the enforcement and implementation of the CWA. In fulfilling their roles, these agencies have some, but not unlimited, discretion to interpret the Act. Historically, SCOTUS has explained that in order to delineate “waters of the United States,” the USEPA and the Corps had to choose to define when “water ends and land begins.”[iii] In November 2021, the USEPA and the Corps officially proposed a new definition of “waters of the United States,” and closed the public comment period for this proposal on February 7, 2022. The new definition would include the following in “waters of the United States”:

-Traditional navigable waters, interstate waters, and territorial seas, and their adjacent wetlands;

-most impoundments of waters of the United States;

-tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, and wetlands adjacent to these, that meet either the relatively permanent standard or the significant nexus standard; and

-“other waters” that meet either the relatively permanent standard or the significant nexus standard. [iv]

Large property owners like utilities, industries, and manufacturers, should be aware that while the above-proposed definitions by the USEPA and the Corps sound like legalese, clearly the proposed definitions would expand the definition of “waters of the United States.” This will make it more difficult for property owners to develop properties. Site preparation and construction for certain properties could prove cost-prohibitive under new regulations. Prior to purchasing property, environmental site assessments must consider all these issues carefully. Some sites may be prohibited from development altogether if the USEPA’s proposed changes become effective. While ongoing site work on soggy ground could be subject to fines and penalties, property owners may also be required to incur unforeseen costs to remediate the land to its original state.

Clearly, all of this makes 2022 an important year in defining “waters of the United States” moving forward. If SCOTUS can reach a majority decision in the Sackett case this year, then a more clear test for what is included in “waters of the United States,” may be issued and influence the interpretation set by the USEPA and the Corps.

[i] Sackett v. U.S. Environmental Protection Agency, U.S. Supreme Court No. 21-454 (2022 Term)

[ii] Rapanos v. United States, 547 U.S. 715 (2006)

[iii] United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985)

[iv] Section V., A., Vol. 86, Fed. Register, Dec. 7, 2021, Proposed Rule, at 69385

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Additional PFAS added to TRI Reporting

On January 24, 2022, the United States Environmental Protection Agency (EPA) took another step in the continuing expansion of PFAS regulation with the addition of four PFAS to the Toxic Release Inventory (TRI) reporting requirements. As a refresher, TRI tracks the management of certain toxic chemicals that may pose a threat to human health and the environment. Certain industrial and federal facilities are required to report annually how much of each listed chemical is released to the environment and/or managed by the facility through recycling, recovery, or treatment. The information compiled with EPA and the TRI helps support informed decision-making by facilities, government agencies, and the public.

The inclusion of PFAS in TRI is not new. In 2020, the National Defense Authorization Act listed 172 PFAS on the TRI, and required inclusion on any PFAS that may be added to the Toxic Substances Control Act inventory. The newly added chemicals for 2022 are PFBS, potassium perfluorobutane sulfonate, and two more chemicals listed by their Chemical Abstracts Service registry numbers in the TSCA inventory: CASRN 203743-03-7 and CASRN 65104-45-2.

Expansion to add these four PFAS to TRI reporting requirements is not, in and of itself, a significant expansion or restriction on the use of PFAS, but it does highlight the continued efforts of the EPA to regulate the use of PFAS. And, importantly, any business utilizing these newly listed PFAS or any of the other 172 previously listed PFAS should be certain they are tracking their use and disposal in order to maintain accurate compliance with TRI reporting requirements.

Illinois Act Restricts Use of PFAS Containing AFFF

On a more local level, Illinois’ PFAS Reduction Act became effective January 1, 2022. With the PFAS Reduction Act Illinois becomes the twelfth state to ban or restrict class B firefighting foam, also known as aqueous film forming foam (AFFF). The initial impact of the PFAS Reduction Act is the creation of a ban on the use of PFAS containing AFFF in training and testing. This ban is effective immediately, unless the facility testing the product provides a site assessment for control measures, treatment, and disposal; complies with the state’s notification requirements prior to testing; and trains workers using the AFFF on the potential hazards of exposure to the product and the appropriate measures to take while cleaning up after completion of testing.

The PFAS Reduction Act creates a few new safeguards on the use of PFAS containing AFFF that went into effect on January 1, 2022. For instance, the Act requires manufacturers of AFFF to provide warnings to users and fire departments prior to the sale of a PFAS containing AFFF. Further, the Act creates an obligation to report the proposed release or testing of PFAS containing AFFF within 48 hours of any release. The reporting requirement in the Illinois Act calls for the reporting party to provide a reason for the release, the time of the release, the location, and the quantity of the product released. The reporting party must also identify the proposed containment, treatment, and disposal measures to minimize the risk of contamination.

Finally, and perhaps most significant for future planning of any manufacturer, the Act sets forth a timetable for a ban on the manufacture, sale, and distribution of PFAS containing AFFF. This ban will become effective January 1, 2025, giving manufacturers an opportunity to phase out PFAS containing AFFF.

As we move forward in 2022, it is already clear that at the federal and state levels the regulation and restriction on the use of PFAS will be a rapidly evolving area to keep an eye on for many businesses.

About the Blog

Three years and one pandemic after the U.S. Supreme Court provided guidance in March 2019 on the bare metal defense in asbestos litigation commonly known as “DeVries,” the bare metal defense is alive and well.[i] Some predicted the DeVries decision, while limited to maritime law, would provide a basis for courts outside the maritime law context to follow that decision and effect qualifications on the liability of manufacturers for third-party components added to their products. While the full impact of the DeVries decision has yet to be determined, and there are at least two decisions that were impacted by the high court’s “middle ground” approach in DeVries, most decisions have held that DeVries is “cabined” to maritime law.

DeVries – Qualifications to the Bare Metal Defense Under Maritime Law

The U.S. Supreme Court analyzed three approaches to the bare metal defense which provides that product manufacturers should not be liable for harms caused by later-added third-party parts.[ii]

1) the more plaintiff-friendly foreseeability rule where liability attaches when it was foreseeable that the product would be used with another product or part (even if the product did not require use or incorporation of that product or part);

2) the more defendant-friendly approach of no liability if the manufacturer did not make, sell or distribute the part or incorporate the parts into the product (even if the product required incorporation of that part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses);

3) the middle approach, where there is liability for duty to warn when the product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses.

The Court then adopted the middle approach stating its ruling was only for the maritime tort context, (“We do not purport to define the proper tort rule outside of the maritime context.”).[iii] Specifically, the Court held: a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.[iv]

In limiting the ruling to the maritime tort context, the Court found that “[m]aritime law has always recognized a ‘special solicitude for the welfare’ of those who undertake to ‘venture upon hazardous and unpredictable sea voyages.’” and that “[m]aritime law’s longstanding solicitude for sailors reinforces our decision to require a warning in these circumstances.”[v]

State Court Rulings Since DeVries

Since the DeVries decision, a number of courts across the country have declined to apply it outside the maritime law context:

Georgia – Citing the U.S. Supreme Court’s limitation of the standard to the maritime context and the particular concerns for sailors, the Georgia Court of Appeals declined to follow DeVries, and upheld summary judgment for a pump manufacturer, declining to expand Georgia law to require a manufacturer to warn of the hazards in another manufacturer’s product. [vi]
Tennessee – The Tennessee Supreme Court held that the language of the Tennessee Products Liability Act controlled, and DeVries was limited to the maritime context. The manufacturer was not liable when the “end-products at issue were neither made nor sold by the Equipment Defendants.”[vii]

Delaware – Two Delaware state court decisions declined to apply the DeVries ruling in interpreting state law requirements for the bare metal defense. In In Re: Asbestos Litig. (McDermott v. ABB, Inc., et al.),[viii] Superior Court Judge Jeffrey J. Clark declined to apply DeVries to Delaware substantive law stating that decision was limited to the maritime context, and also noted that even if the court applied DeVries, Plaintiff had not established facts that the Defendants either directed or specified that asbestos replacement parts were required in their products or knew or should have known that the products would require asbestos replacement parts. He then granted summary judgment for defendants which did not provide any of the replacement internal or external asbestos-containing parts. In In Re: Asbestos Litig. (Kulla),[ix] Superior Court Judge Sheldon K. Rennie also held that DeVries was limited to the application of maritime law and declined to follow it in analyzing the defense under Minnesota causation law in granting summary judgment for the manufacturer which did not make the asbestos-containing component to which plaintiff was allegedly exposed.

However, two federal courts have analyzed and applied DeVries to interpret the bare metal defense in non-maritime cases:

Louisiana – A federal court judge in Louisiana pointed to DeVries as instructive on the standard of liability for third-party replacement parts under Louisiana law and declined to grant summary judgment for a manufacturer because the record was incomplete as to whether asbestos-containing flange gaskets were required for the product, or were merely foreseeable.[x]
Wyoming – U.S. District Court Judge Freudenthal in Wyoming found that DeVries was instructive in predicting how the Wyoming Supreme Court would apply Wyoming law. Noting the Wyoming Supreme Court had not decided the issue, Judge Freudenthal looked to a decision from prior to DeVries,[xi] which predicted the Wyoming Supreme Court would adopt the bare-metal doctrine for purposes of strict liability, but concluded that the Wyoming Supreme Court would not adopt that doctrine as to negligence and would instead adopt a middle approach similar to what DeVries later adopted. Judge Freudenthal found that Flowserve decision persuasive and predicted that the Wyoming Supreme Court would find a manufacturer has a duty when it “designed a product that required or specified the use of a known-to-be hazardous aftermarket replacement part or additional part,” and denied the manufacturer summary judgment. [xii]

These decisions provide a snapshot of how the DeVries decision has been interpreted and how it has impacted the bare metal defense over the last three years. Overall, it appears that the reach of DeVries outside of the intended maritime law context is limited.

[i] Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019).

[ii] Id., at 139 S. Ct. 986, 988.

[iii] Id., at 139 S. Ct. 986, 995.

[iv] Id.

[v] Id.

[vi] Davis v. John Crane, Inc., 836 S.E.2d 577, 583-584 (Ga. App. 2019).

[vii] Coffman v. Armstrong Int’l, Inc., 615 S.W.3d 888, 897-99 (Tenn. 2021).

[viii] C.A. No. 18C-11-148 ASB, at PP. 7-9 (Del. Super. Dec. 23, 2019) (ORDER).

[ix] C.A. No. 20C-01-264 ASB, at PP. 10-11 (Del. Super. April 8, 2021) (ORDER).

[x] Lopez v. McDermott, Inc., 2020 WL 3964989, at *2 & *8 (E.D. La. 2020).

[xi] Robinson v. Flowserve, Case No. 14-CV-161-ABJ, 2015 WL 11622965 (D. Wyo. Oct. 9, 2015).

[xii] Robinson v. Grove US, LLC, 2021 WL 5235548, *8-9 (D. Wyo. 2021).

About the Blog

In October 2021, the United States Environmental Protection Agency (EPA) introduced its PFAS Strategic Roadmap, laying out the agency’s approach to PFAS regulation in the coming years. One of the most highly anticipated actions outlined in the Roadmap is the EPA’s goal of designating certain PFAS as hazardous substances. Earlier this month, the EPA took a significant step to realizing this goal.

On January 10, 2022, EPA submitted a proposed rule for review to the White House Office of Management and Budget (OMB) to designate two of the most studied PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). OMB review typically takes 90 days, depending on the studies needed on a proposed rule. Once OMB review is complete, the EPA will be able to propose the rule for public comment, likely sometime in March or April 2022. This timing will keep finalization of the rule consistent with the stated goals of the Roadmap, which calls for a final rule on designation of PFOA and PFOS as hazardous substances be in place by summer 2023.

If completed as expected, the listing of PFOA and PFOS as CERCLA hazardous substances will have a substantial impact on a wide range of industries. Not only will this designation expose industries that have historically been involved with PFOA and PFOS to the reporting requirements of CERCLA, this rule will subject those designated as “responsible parties” at properties contaminated with PFOA and PFOS to the full range of cost recovery and enforcement actions available under CERCLA. The designation of PFOA and PFOS as hazardous substances will also likely have ramifications for those that have already entered into settlement agreements for CERCLA liabilities, as such agreements typically include reopening provisions for previously unidentified or emerging hazardous substances, and new investigations at these historic sites could trigger new liabilities.

As for what the remedial standard will ultimately turn out to be for PFOA and PFOS, this is not yet known. Current EPA guidance uses the EPA’s drinking water advisory standard of 70 parts per trillion for PFOA and PFOS for drinking water sources. However, as part of its Roadmap EPA is commissioning further study of this advisory standard, and the information in the papers currently under review suggests that EPA ultimately may seek to regulate PFOA and PFOS at concentrations below the 70 parts per trillion advisory limit. Additionally, CERCLA cleanups would also incorporate any state standards for PFOA and PFOS, which are also gaining traction in states across the country.

Further, the downstream impacts of this rule should already be under consideration for businesses acquiring other businesses and their liabilities or in the acquisition of properties. In those instances, purchasers must make certain their due diligence review fully considers the potential presence of PFOA and PFOS from historic activities of a business or at a particular property. The cost of failing to consider future liabilities for PFOA and PFOS contamination during the due diligence process could be expensive once their final designation as hazardous substances is complete.

Industries of all types should be diligent in their understanding of the regulation of PFAS moving forward. And, those businesses involved in environmental remediation projects or otherwise managing legacy liabilities may find it useful to review their projects to assess the possibility of having to conduct investigations or cleanups related to PFOA and PFOS, as well as other PFAS. Whether it is an EPA action or private litigation, like the AFFF MDL, regulation and litigation surrounding PFAS continues to advance at a rapid pace. Maron Marvel’s attorneys will continue to monitor developments in PFAS arena and continue to update you as developments unfold.

About the Author

Robert W. Petti is senior counsel at Maron Marvel Bradley Anderson & Tardy, LLC, in Chicago, Illinois, and chair of the firm’s Environmental Law Practice Group. He has experience before trial courts, appellate courts, and administrative boards on an array of environmental concerns, including CERCLA (Superfund), RCRA, EPCRA, the Clean Air Act, the Clean Water Act, and a variety of claims involving toxic tort and hazardous material claims. He can be reached at [email protected].