Levitas v. Christian: Standards for Expert Opinions on Exposure Pathways in Maryland

Posted in Lead paint, Maryland, Toxic Tort

Last week, the Maryland Court of Appeals (the highest state court) decided a lead paint toxic tort case of potential interest to environmental lawyers. Levitas v. Christian, No. 58 Sept. Term 2016 (Md. July 11, 2017), holds that a pediatrician may testify not only that the plaintiff’s injuries are the result of lead exposure, but also that he was exposed to lead while living in defendant’s building.  This evinces a relatively relaxed approach to expert qualification, particularly in the fate and transport or exposure pathway context.

The plaintiff lived in defendant’s building during two periods when he was an infant and a small boy; he lived elsewhere for a time as well. Born in 1990, he brought suit in 2011 ahead of the expiration of the limitations period for injuries caused by exposure to lead paint or paint chips.  His blood lead concentrations were tested as a boy, and they were elevated before he left defendant’s building, but more elevated after.  Plaintiffs offered evidence that defendant’s building contained deteriorating paint at the time, and that it was likely lead-containing.

Plaintiffs’ counsel have filed a substantial number of these lead-paint exposure cases in Baltimore City, among other places, as plaintiffs who are young enough to have had routine lead testing as children reach majority.

An expert medical doctor proposed to testify that plaintiff’s various injuries resulted from his lead exposure. He also proposed to testify that plaintiff was exposed to the lead at defendant’s building, as opposed to anywhere else.  The trial court excluded the exposure pathway evidence under Maryland Rule of Evidence 5-702.

Note that Rule 5-702 is similar to, but not exactly the same as, Federal Rule of Evidence 702, and Maryland is a Frye, not a Daubert, jurisdiction. Chesson v. Montgomery Mut. Ins. Co., 75 A.3d 932 (Md. 2013).

In this case the issue turned on whether the physician had sufficient experience, training, or education to opine as to exposure pathways, and whether he had a sufficient factual basis to support his opinion. In each case, the trial court erred, and should not have excluded the expert’s opinion.  Essentially, the Court of Appeals reasoned that a pediatrician who had experience with a lot of infant and toddler lead paint cases would know enough to be expert about how small children come to have high blood lead levels, and that he had enough facts about defendant’s building to opine that its condition was a substantial factor in plaintiff’s injury.

Experts who work on many similar cases learn a lot about complementary fields. Certainly the lawyers do.  This opinion seems to give some latitude to an expert in one field to claim a broader expertise — in paint composition or children’s ingestion habits, for example.  Think about applying this sort of acquired expertise to experts in groundwater contamination cases.  Can the geologist testify to vapor intrusion?  Can the toxicologist testify to groundwater flow?  Can either of them testify to the connection between the defendant’s historical activities and the groundwater conditions now?

Interestingly, Maryland’s Frye jurisprudence is a somewhat tight on the ability to testify. Chesson, for example, precluded a physician from testifying that mold exposure caused plaintiff’s injuries because the causal connection between mold toxins and plaintiffs’ symptoms was not generally accepted.

Maryland Rule of Evidence 5-702:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

Department of Interior’s Call for Identification of Rules for Repeal, Modification, or Replacement

Posted in EPA, Executive Order

The Department of the Interior (the Department) last week issued a Federal Register notice calling on the public to identify regulations for repeal, replacement, or modification. The Department’s action is part of President Trump’s regulatory reform agenda, as embodied in Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which outlines the new administration’s goal of alleviating unnecessary regulatory burdens.

Unlike a similar Federal Register notice issued by the Environmental Protection Agency in April, the Department’s notice has no deadline by which comments must be submitted. But the old adage, “The early bird gets the worm,” seems particularly apt here, in light of the president’s ambitious regulatory goals and the brisk pace envisioned in and frequent reporting required by E.O. 13777.

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SCOTUS Provides Guidance on the Definition of Relevant Property in a Regulatory Taking Case

Posted in Environment, Litigation, Real estate

On June 23, 2017, the U.S. Supreme Court decided Murr v. Wisconsin, No. 15-214, 2017 WL 2694699 (U.S. June 23, 2017), which presented perhaps the most important issue of regulatory takings law that the Court has never addressed – the “relevant parcel” or “parcel-as-a-whole” issue. That issue, which arises in many regulatory takings cases, is how a court should define the property at issue for purposes of assessing whether a regulatory imposition constitutes a taking of that property. The issue is important, and indeed can be determinative, because defining the relevant property narrowly will concentrate the impact of the regulatory imposition and thus make it more likely to constitute a taking. Conversely, defining the relevant property broadly will mitigate the severity of a regulation’s impact on the “parcel-as-a-whole,” making a taking of the whole parcel less likely.

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Pennsylvania Manufacturers’ Association Insurance Company v. Johnson Matthey, Inc.: Multiple Trigger Doctrine and Impacts to Superfund Litigation

Posted in Articles, Contamination, Pennsylvania

The Commonwealth Court recently held that certain Comprehensive General Liability (“CGL”) “occurrence” insurance policies issued before the institution of a blanket pollution exclusion cover latent environmental contamination that occurred during the policy period, even when such contamination does not manifest until after the policy period expires. This holding identified latent environmental contamination as falling within an exception to the longstanding rule that CGL occurrence insurance policies are triggered by the first manifestation of injury. Pennsylvania Manufacturers’ Ass’n Insurance Co. v. Johnson Matthey, Inc., (Johnson Matthey), No. 330, 2017 WL 1418401 (Pa. Commw. Ct. Apr. 21, 2017).

Determining when an “occurrence” under a CGL policy is triggered by environmental contamination can have important practical implications. Insurers take the position that the “first manifestation rule” applies.  The first manifestation rule limits the occurrence to one trigger—the time the contamination first manifested.  Insureds take the position that the “multiple trigger exception” applies, covering latent contamination over a broader period of time and giving insureds access to multiple policies for a single event.  The difference in when a policy is triggered can be significant for how insureds conduct themselves and for how other PRPs (including for example, insureds’ contribution defendants) conduct themselves.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

Beware the Public Trust: New York’s Highest Court Stops Retail Expansion On Citi Field’s Parking Lot Under Public Trust Doctrine

Posted in Litigation, New York

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses. The New York Court of Appeals showed just how strictly that doctrine is applied when, after many years of planning and litigation, it enjoined development of a retail entertainment complex known as Willets West in the Citi Field parking lot, the baseball stadium that is home to the New York Mets. The June 6 opinion showed that the public trust doctrine is alive and well in New York State and can create havoc for development projects on land that is located within a state or municipal park, regardless of its current use.

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Air Source Aggregation: Compression Station and Natural Gas Wells are Not A Single Source in Pennsylvania Merely Because they are Owned by Corporate Affiliates

Posted in Air, Pennsylvania

On Friday, June 2, a Pennsylvania intermediate appellate court held that air emissions from a natural gas gathering system compression station and a natural gas well pad served by that gathering system could not be aggregated for purposes of air emissions permitting because they were owned by different corporations, albeit corporate affiliates.  National Fuel Gas Midstream Corp. v. Dep’t of Envt’l Prot’n, No. 116 CD 2016 (June 2, 2017).  A different result would create a practical and conceptual problem:  a permit issued to the compression station owner would implicitly (or explicitly) control emissions from the wells, and the wells are operated by a different entity.

Under the Pennsylvania Air Pollution Control Act, 35 Pa. Stat. Ann. §§ 4001-4015, and the federal Clean Air Act, 42 U.S.C. §§ 7401-7671q, major sources of air pollution require plan approvals to construct and then permits to operate.  “Minor” sources may emit under state-only permits.  The Pennsylvania regulations authorize the Pennsylvania Department of Environmental Protection to exempt certain emission sources from regulation.  25 Pa. Code § 127.14.  DEP’s Exemption 38 exempts natural gas wells under certain conditions.  DEP Air Quality Permit Exemptions, Doc. No. 275-2101-003 (Aug. 10, 2013).  The wells at issue here were exempt.  The compression station was below the emissions threshold for a state-only permit, and sought approval under what is a streamlined “general permit,” GP-5.

Under federal regulations, multiple emitting activities constitute a single aggregated source if: (i) they are within the same major industrial classification, (ii) are contiguous or adjacent, and (iii) are under the control of the same person or common control.  40 C.F.R. § 52.21(b)(6); see also Alabama v. Costle, 636 F.2d 323 (D.C. Cir. 1979).  In this case, Parent owned Subsidiaries A and B.  Subsidiary B owned Indirect Subsidiary C.  Subsidiary A owned and operated the wells.  Indirect Subsidiary C owned and operated the compression station.  DEP contended that this corporate relationship satisfied the “common control” prong of the aggregation test simply because the Parent had ownership of A and C.  The Environmental Hearing Board took a somewhat less categorical approach than DEP, but found control because the Parent had the power to “influence” the operations of A and C.

The Commonwealth Court reversed and remanded.  The test for “control” is the ability to direct operations of the facility, not just the ability to influence them.  Absent piercing the corporate veil, the court concluded that one corporate affiliate does not have the ability to direct operations of another merely because they are both owned (indirectly) by their parent, citing a federal Superfund case, United States v. Bestfoods, 541 U.S. 51 (1998).  The Indirect Subsidiary C would receive a permit for the compression station, but Subsidiary C could not direct Subsidiary A to operate A’s wells differently.  Neither Subsidiary A nor the Parent would be permittees.  Therefore, aggregation merely on the basis of the ability to influence operations, said the court, would not be correct.

To read the full opinion, please click here.

The EPA’s Call for Identification of Rules to be Changed Results in a Majority of Comments in Support of EPA Regulation

Posted in Clean Water Act, EPA, Water

We write to follow up on last month’s blog post, GT Alert, and webinar on the April 13 issuance of a federal register notice by the U.S. Environmental Protection Agency (EPA) calling for submissions to identify regulations for repeal, replacement, or modification. The agency set a 30-day timeframe for response.

Despite that tight timeframe, the agency received about 35,000 written comments by the deadline, not including comments received in response to public meetings that were held. From a review of the comments, it appears that an overwhelming majority of commenters asked that the agency leave regulations in place, with only a smaller number of comments from industry and trade associations that generally requested fairly modest, technical changes.

How the EPA will prioritize the relatively small number of comments requesting regulatory changes remains to be seen. Via a number of executive orders, the president has called on the agency to undertake a number of sizeable regulatory reforms, including to the Waters of the United States (WOTUS) Rule, which sought to define which waters are jurisdictional under the Clean Water Act, and to the Clean Power Plan (CPP), which imposed greenhouse gas budgets on existing power plants.

Given the protracted process and extensive public comment that presaged WOTUS and the CPP, it is difficult to imagine that the EPA will be issuing proposed replacement rules any time soon. Meanwhile, a separate executive order (E.O. 13771) requires agencies to repeal two regulations for each new regulation issued – and to insure that the net compliance costs associated with new regulations are zeroed out by compliance cost reductions coming from changes to existing rules. This requirement necessarily complicates the EPA’s rulemaking task, at a time when significant budget cuts and staff reductions have been proposed.

The EPA regulatory landscape is changing, but how fast remains to be seen.

Developments in Recent NY Medical Monitoring Claims

Posted in Litigation, New York, Water

As readers of this blog know, we have been closely following developments regarding claims for medical monitoring.  (Medical Monitoring Claims in Illinois, Part 1; Medical Monitoring Claims in Illinois, Part 2.) A recent decision arising out of Hoosick Falls, New York, allowed Plaintiffs’ request for a medical monitoring fund to survive defendants’ motion to dismiss. On Feb. 24, 2016, Plaintiffs, on behalf of a putative class, brought suit against Saint-Gobain Performance Plastics Corp. and Honeywell International Inc., alleging that Defendants’ manufacturing facilities in the Village of Hoosick Falls, New York, caused groundwater contamination. Specifically, Plaintiffs alleged that Defendants’ manufacturing and disposal of products containing perfluorooctanoic acid (PFOA) caused PFOA to contaminate the municipal water system and private wells. PFOA is a chemical used to create water, oil, and grease repellency which can remain in soil and water for extended periods of time. Plaintiffs alleged that they experienced heightened blood levels of PFOA, which may cause cancer, as well as loss of property value due to the stigma of contaminated groundwater. The complaint asserted claims for negligence, private nuisance, trespass, and strict liability for abnormally dangerous activity. The complaint set forth two subclasses of plaintiffs based on their water source: (1) Municipal Water Property Damage – owners of real property in the village who receive drinking water from the municipal water supply; and (2) Private Well Water Property Damage – owners of real property in the village who receive drinking water from a privately-owned well.

Defendants brought a motion to dismiss for failure to state a claim.  Significantly, Plaintiffs sought to establish a medical monitoring program designed to fund future testing and treatment for diseases related to PFOA exposure. Defendants argued that Plaintiffs asserted a separate medical monitoring claim without alleging the existence of present physical injuries, a requisite under New York law. The Court disagreed, finding that Plaintiffs properly alleged an injury to both person and property. In particular, the Court adopted the reasoning of the Second Circuit in In re World Trade Ctr. Lower Manhattan Disaster Site Litig., holding that the heightened accumulation of PFOA in Plaintiffs’ blood levels permits a claim for negligence seeking medical monitoring damages. See 758 F. 3d 202, 213 (2nd Cir. 2014). Even if the accumulation of toxins in blood were not a sufficient injury, the Court relied on Caronia v. Philip Morris USA, Inc. to find that plaintiffs may seek medical monitoring as consequential damages for a tort alleging injury to property. 2011 WL 338425 (E.D.N.Y. Jan. 13, 2011) aff’d in part, question certified, 715 F.3d 417 (2d Cir. 2013), certified question accepted, 21 N.Y.3d 937 (2013), and certified question answered, 22 N.Y.3d 439 (2013), and aff’d, 748 F.3d 454 (2d Cir. 2014). However, the Court cautioned that the decision did not determine what Plaintiffs must prove at trial to recover consequential medical monitoring damages. Noting that the Defendants’ motion to dismiss raised “several complex and novel issues of New York law” which is “significantly muddled,” the Court certified the question for interlocutory appeal.  We will continue to follow this appeal closely.

Defendants also argued that the property damage claims based on injury to groundwater must be dismissed because the water is a public resource belonging to the state of New York, not individual residents. The Court agreed that Plaintiffs could not state a claim for relief if the only alleged injury was to the public groundwater; however, the Court found that Plaintiffs’ claims for negligence and strict liability based on property damage survived because they alleged the loss of their potable water, reduction in property value, and sought damages for remediation costs for property contamination and restoring their potable water supply.  Defendants moved to dismiss the trespass claim brought by the Private Well Plaintiffs on the basis that the Plaintiffs’ property was not injured by PFOA contamination. The Court rejected this argument, finding that the groundwater provided the medium through which the contamination moved into Plaintiffs’ private wells, thus injuring Plaintiffs’ private property. Defendants also moved to dismiss the private nuisance claim for failure to state a claim. Defendants argued that a private nuisance claim must affect only a small number of people, but Plaintiffs alleged a widespread injury. The Court agreed in part and dismissed the Municipal Water Plaintiffs’ nuisance claim, finding that the allegations of  harm suffered by “all renters and owners in Hoosick Falls” constituted a public nuisance, which only the state of its subdivision have standing to bring; however, the Private Well Plaintiffs suffered a “special loss” sufficient to maintain a private nuisance action where they had to install point of entry treatment systems on their property which requires ongoing maintenance. Because of this, the Court allowed the Private Well Plaintiffs’ nuisance claim to proceed.

New Delegation Centralizes Largest Superfund Cleanup Decisions

Posted in EPA, GT Alert, Superfunds

In a move designed to streamline approvals of and ensure consistency among the largest Superfund cleanups, EPA Administrator Scott Pruitt last week approved a new delegation of authority giving him and his yet-to-be-named deputy the final signature authority to approve large Superfund cleanups over $50 million. Prior to the revision, approval authority rested with EPA’s 10 regional administrators and the assistant administrator of the Office of Land and Emergency Management.

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Overview of Coal Ash Disposal, Regulation and Beneficial Use

Posted in Articles, Coal, Energy, Pennsylvania, Regulatory

According to the U.S. Energy Information Administration, the commonwealth of Pennsylvania is the largest generator of coal ash in the United States. Pennsylvania is home to roughly 100 coal ash disposal facilities, three of which have been classified as “high hazard” by the U.S. Environmental Protection Agency (EPA). Throughout the country, numerous electric generating facilities have been retiring coal-fired units in favor of natural gas combined cycle units. Still, many of those same electric generating plants find themselves undertaking large-scale coal ash mobilization projects resulting from decades of coal ash accumulation and catalyzed by new regulations from the EPA. With litigation both arising from, and in opposition to, the coal ash regulations, it is an area worth watching at the state and federal levels.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly by clicking here.