Toxic Tort

Experience

Manning v. Arch Wood Prot., Inc., Civil Action No. 0:13-cv-00127-HRW-CJS (E.D. Ky. Sept. 27, 2017)

Won summary judgment for a wood preservative manufacturer based upon Kentucky’s one-year statute of limitations for personal injury claims, KRS 413.140. Plaintiff lineman alleged injury from exposure to treated wood poles. Federal district court found that plaintiff knew or the in the exercise of reasonable diligence should have known that his claim accrued more than one year before he filed suit. In doing so, the district court adopted the magistrate judge’s prior report and recommendations.

Brown v. Arch Wood Prot., Inc., 2017 U.S. Dist. LEXIS 157101 (E.D. Ky. Sept. 26, 2017)

Won summary judgment for a wood preservative manufacturer based upon lack of product identification evidence. Plaintiff lineman alleged injury from exposure to treated utility poles. He named six defendants – three preservative manufacturers and three wood treaters. Federal district court granted summary judgment based upon lack of direct product identification evidence and lack of evidence supporting the concert of action theory of product identification.

Product Liability Lawsuit Involving a Side-by-Side Utility Vehicle

Employee was injured on the job while riding a side-by-side utility vehicle and received substantial worker’s compensation benefits. Worker’s compensation carrier brought subrogation/product liability lawsuit against Recreational Vehicle Manufacturer. Summary judgment was granted in favor of manufacturer on statute of limitations grounds as well as lack of privity between the employee and the manufacturer. Affirmed on appeal.

Product Liability Matter Involving Fireplace Glass Front

Defense of Hearth and Grill Manufacturer in product liability lawsuit. Plaintiff’s minor son was injured when he came in contact with the hot glass front of a fireplace. The fireplace was manufactured and sold by a company that had gone bankrupt before the lawsuit was filed. Plaintiff sought to impose liability on Hearth and Grill Manufacturer because it had purchased certain assets of the bankrupt company even though those assets did not include the fireplace in question. Summary judgment granted in favor of Hearth and Grill Manufacturer on the ground that the asset purchase agreement precluded liability for products manufactured and sold by the bankrupt company prior to the asset purchase agreement.

Personal Injury Lawsuit Involving Railroad Employee

Plaintiff injured his back when he fell while carrying a 75-pound knuckle over railroad tracks, a task that fell within his job description. Summary judgment was granted in favor of Railroad Company on the grounds that plaintiff failed to provide expert testimony that the Railroad Company’s standards or practices were outside accepted railroad practices. Affirmed on appeal.

Allegations of Premises Liability

Minor plaintiff was injured after he fell from a railroad trestle adjacent to his home. Summary judgment was granted in favor of Railroad Company on the grounds that plaintiff was a trespasser to whom Railroad Company owned no duty to keep its premises safe for use.

Allegations of Unsafe Workplace

Defense verdict for Railroad Company in FELA case involving allegation of carpal tunnel syndrome caused by unsafe workplace. Defense verdict affirmed on appeal.

Adam v. Spotswood

We defended a husband and wife, homeowners, who had rented their home to the plaintiffs, a husband, wife, and infant child. Approximately 2 months after moving into the home the infant child was diagnosed with autoimmune pancytopenia a relatively rare but known blood disorder. Autoimmune pancytopenia is a depression of the blood cell lines, reds, whites, and neutrophils. At about the same time that the infant child was diagnosed with autoimmune pancytopenia, mold, including stachybotrys mold, was discovered in the home. The plaintiffs claimed that they were forced to abandon the home, destroy all of their personal property, and further that the mold exposure caused the infant child's autoimmune pancytopenia. The theories of recovery asserted against the defendant home owners were of negligence, breach of contract, and breach of the warranty of habitability. At trial plaintiffs proceeded solely on their negligence theory.

During pretrial discovery it became clear that the plaintiffs' expert on the contention that the alleged mold exposure caused the infant's autoimmune pancytopenia was not following generally accepted scientific/medical methodology to reach his causation opinion. On behalf of the home owners, we filed a Frye motion to exclude this expert. After extensive depositions of both the plaintiffs' expert and our expert as well as briefing and arguing the issue, the trial judge excluded the plaintiffs' expert's testimony that mold caused the infant son's autoimmune pancytopenia. At trial, plaintiffs proceeded on their property damage claim and also on the theory that their infant son's asthma was caused by the alleged mold exposure in the home.

Following three days of trial, the jury returned a verdict for less than 10% of the claimed property damage and a defense verdict on the asthma claim.

Plaintiffs filed post trial motions seeking to reverse the trial court's decision to exclude the plaintiffs' expert on autoimmune pancytopenia. The trial judge affirmed his decision. The plaintiffs then took an appeal to the Pennsylvania Superior Court. The Superior Court affirmed the trial court's decision to exclude the plaintiffs' expert's testimony that mold caused autoimmune pancytopenia.

Defense of Toxic Tort and Environmental Action

Successfully defended several manufacturers in toxic tort litigation and continue to serve as common counsel to over 40 potentially responsible parties (PRPs) to defend claims for alleged groundwater contamination by Kentucky Energy and Environment Cabinet. Negotiated resolution with Cabinet on behalf of 40 PRPs to monitor site for next 12 years pursuant to negotiated Agreed Order and Operations & Management Plan.

Bulk Terminals/George O’Bryan v. Atlantic Richfield, No. 2005-CA-002448-MR, 2007 Ky. App. LEXIS 78 (Ky. App. March 9, 2007). Click HERE to view the decision.

Defense of Toxic Tort Lawsuits

Worked on defense team of Fortune 300 company in toxic tort cases of national importance regarding eastern Kentucky Superfund site. Wrote briefs leadings to complete dismissals and establishing significant defense precedents in federal cases regarding the statute of limitations, discovery rule, and enforceability and interpretation of terms of releases in toxic tort actions.

Blanton v. Cooper Industries, Inc., 99 F.Supp.2d 797 (E.D. Ky. 2000). Click HERE to view the decision.
Luttrell v. Cooper Industries, Inc., 60 F.Supp.2d 629 (E.D. Ky. 1998). Click HERE to view the decision.

Joseph Boyd v. Enerfab Corporation, et al., Jefferson County Court of Common Pleas

Plaintiff brought class action intentional tort claims and product liability claims. Successfully negotiated dismissal of claims against client without payment by client.

Richard Rector, et al. v. Lincoln Electric Company, et al., Cuyahoga County Court of Common Pleas

Plaintiff brought class action intentional tort claims and product liability claims. Successfully negotiated dismissal of claims against client without payment by client.