Tuesday, April 26, 2016

April 25, 2014: Switch to Flint River Water Supply, Flint, MI; 1926: New York Harbor a Menace | This Day in Water History

0425 Flint uses Flint River

April 25, 2014: Switch to Flint River Water Supply, Flint, MI; 1926: New York Harbor a Menace | This Day in Water History

April 25, 2014: Switch to Flint River Water Supply, Flint, MI. An article published onlinememorialized the change earlier that day from treated water from Detroit, Michigan, to the raw water supply of the Flint River and the activation of the Flint Water Plant. The photo from that article reproduced above shows local and state officials toasting each other with water from the Flint plant. I am certain that most of them would be happy to have their images removed from that and similar photographs.
About a month after the change, residents of Flint began to complain about discolored water and odors from the new water supply. The water coming out of city taps was orange, red, yellow and brown. City and State officials tried to assure Flint citizens that the water was safe to drink even after repeated failures of primary drinking water regulations: Total Coliform Rule and the trihalomethane regulation. But the worst was yet to come.
Once the water from the Flint River was demonstrated to be more corrosive to iron and steel than water from Detroit, someone in the water department, treatment plant staff, City administration or Michigan Department of Environmental Quality (MDEQ, drinking water regulatory agency) should have asked the question, “What about corrosion of the 15,000 lead service lines serving water to homes in the City?”
Some stories about what happened in Flint state that the USEPA asked MDEQ if optimized treatment was being applied to prevent corrosion of lead service lines (LSLs). The MDEQ representative assured the USEPA that everything was just fine.
What we now know is that the treated Flint River water was highly corrosive to lead and levels greater than 10,000 ug/L have been found in some home samples. Hundreds of samples have been found to contain lead above the 15 ug/L State and federal action level. Young children who are most susceptible to the toxic effects of lead were exposed at high concentrations, which ultimately showed up as elevated blood lead levels in thousands of children.
It took the persistence of one mother in town, a smart, courageous doctor and an activist engineering professor to blow the whistle and get everyone to start paying attention to a public health emergency. Citizens of Flint owe a great deal to LeeAnne Walters, Dr. Mona Hanna-Attisha and Marc Edwards. Miguel Del Toral of the USEPA did everything that he could to ring alarm bells once he understood what was happening. Later reporting by Rachel Maddow of MSNBC brought the crisis to national attention and helped start a national discussion of the solutions needed.

Friday, April 22, 2016

RJ Reynolds Hit With $13M Verdict In Smoker Death Trial - Law360

RJ Reynolds Hit With $13M Verdict In Smoker Death Trial - Law360

Law360, Los Angeles (April 22, 2016, 1:47 PM ET) -- A Florida jury on Friday awarded $13 million against R.J. Reynolds to the children of a heavy smoker who died of lung disease, saying the tobacco company hid the dangers of cigarettes from her until she was hopelessly addicted.

The case against R.J. Reynolds centered on the chronic obstructive pulmonary disease death of smoker Virginia Wilkinson. (Credit: AP)
The verdict included $10 million in punitive damages awarded Friday morning, and $3 million in compensatory damages awarded a day earlier.

The case centered on the chronic obstructive pulmonary disease death of smoker Virginia Wilkinson. She smoked at least one pack every day for more than 40 years, beginning at age 14, according to her attorney, Eric Rosen of Kelley Uustal.

Rosen told jurors Friday morning that $8.8 million would be an appropriate award in this case.

"They [R.J. Reynolds] need to feel it," Rosen told jurors during the punitive damages phase of the trial. "That will get their attention. They will feel that."

R.J. Reynolds attorney Cory Hohnbaum of King & Spalding LLP told jurors that amount was extreme.

The tobacco giant has changed dramatically since it famously denied that cigarettes caused cancer in previous decades.

"A punitive damages award anywhere near the excessive amount Mr. Rosen suggested to you is simply not warranted under the facts of this case," Hohnbaum said. "Considering how the world has change[d] and how R.J. Reynolds has changed, you do have the discretion here not to award punitive damages."

The lawsuit was filed by Wilkinson's children, Vivian Turner and Eugene Wilkinson, alleging that her decades-long habit of smoking caused her chronic obstructive pulmonary disease and, eventually, her death.

They alleged she tried to quit numerous times, even throwing out her cigarettes, lighters and ash trays, only to resume smoking just a couple of days later.

She cried when she talked about quitting, and she continued smoking even after she was diagnosed with COPD in 1993, they said.

R.J. Reynolds, however, argued that there was no evidence of which brand she smoked prior to the 1960s, and that there was evidence she had COPD as early as the 1980s. If she did have COPD in the 1980s and should have known, the son and daughter would be barred by the statute of limitations from pursuing their claims.

Jurors on Friday awarded Vivian Turner and Eugene Wilkinson each $1.5 million in non-economic compensatory damages.

Thursday, April 14, 2016

NYC~segregation obstacle for DeBlasio Affordable Housing Plans

Segregation Issue Complicates de Blasio’s Housing Push http://nyti.ms/1WtaIgd

Wednesday, April 13, 2016

Louisiana ready to move forward with restoration now that BP oil spill is settled | Louisiana Record

Louisiana ready to move forward with restoration now that BP oil spill is settled | Louisiana Record

Louisiana ready to move forward with restoration now that BP oil spill is settled | Louisiana Record

by Karen Kidd

BATON ROUGE – With the $20 billion BP oil spill settlement now a 

by Karen Kiddreality, Louisiana can move forward with long-expected restoration plans, a state spokeswoman said during a recent interview. 

"Next steps for funds associated with natural resource damages include drafting the first in a series of project-specific restoration plans for public review and approval," Outreach and Engagement Director Jenny Kurz, of the Coastal Protection and Restoration Authority of Louisiana, said in an email interview with the Louisiana Record. "Similarly, projects to be funded with dollars subject to the RESTORE Act will be identified and publicly vetted."

Kurz said plans for the funds have been in the works since long before the settlement agreement was reached.

"Discussions with the public and partner agencies regarding potential projects for inclusion in oil spill restoration have been underway since 2013 and have continued to be refined as additional information was received," she said. "We ar

Saturday, April 9, 2016

Court Confirms BP Settlement with U.S, States in $20.8 billion Deal

With the filing this week of final judgment adopting the consent decree the litigation between BP Exploration and the United States, and the States of Alabama, Florida, Louisiana, Mississippi and Texas has come to an end.

Some, like the Providence Journal lament the $20.8 billion settlement find treatment of BP to be too mild.  But those sums are aside from the massive Deepwater Horizon Settlement Program - a separate class action by private parties.

The governmental settlements sums consist of civil penalties and natural resource damages suffered by the States and the United States.  They include

without limitation: (i) the costs of assessing injury, destruction, loss
of, or loss of use of Natural Resources and the resulting damages; (ii) the costs of restoration,
rehabilitation, or replacement of injured, destroyed, or lost Natural Resources and natural
resource services or of acquisition of equivalent resources; (iii) the costs of planning and
monitoring such restoration activities; and (iv) any other compensation for diminution in value or
loss of use or non-use values of Natural Resources. 
The $5.5 billion civil penalties payable to the U.S. in equal installments over fifteen years - as are the natural resource damages totaling $7.1 billion. Both accrue interest at market rate on 2-3 year government securities.  There is a five year $350 million nine year payment schedule for past due natural resource damage. $250 million additional payments are to be made in annual instalments over eight years.

It is easy to imagine a tougher result but thoughts of criminal prosecution have mostly been put to rest by the difficulty of finding criminal intent.


Editorial: Billions from BP - Opinion - providencejournal.com - Providence, RI

  Roughly six years after it was physically stanched, the BP oil spill came to a quiet official conclusion last week. On Monday, a federal judge in New Orleans gave final approval to a settlement estimated at $20.8 billion. Of that amount, $5.5 billion consists of penalties under the Clean Water Act. Much of the rest will be spent on compensation and repairs for environmental damage. Some will go toward reimbursing government costs.
In 2010, millions of gallons of oil spilled into the Gulf of Mexico following a drilling-rig explosion that killed 11 workers. Under the settlement with BP, five Gulf states and numerous local governments will receive payments over the next dozen years. The funds will enable them to ramp up vital restoration work in coastal areas.
The Justice Department has described the agreement, initially announced last July, as the largest environmental settlement in U.S. history.
For a long-suffering region of the country, the settlement’s clearing of the way for environmental repairs is certainly a great step forward. Many Americans well recall scenes of soiled beaches, damaged fisheries and injured wildlife. Hotels, restaurants and related businesses suffered as tourists stayed away for months. Under a separate but uncapped 2012 agreement, BP continues to settle claims from business owners and residents who say they were harmed.
Yet only a handful of BP employees were criminally charged in the spill; they were either acquitted or received light punishment. The company itself paid $4 billion in criminal penalties tied to the rig workers’ deaths. But for the most part, individuals were not held accountable.

Thursday, April 7, 2016

GM Settles 3rd Ignition-Switch Bellwether Before Trial - Law360

Pursuing a strategy of try the weak ones, settle the strong, GM has settled the third bellwether trial in the ignition defect litigation. The problem for plaintiffs lawyers is that a reasonable offer should be accepted, depriving them of the opportunity to show how powerful is their claims against GM on liability.- gwc

BREAKING: GM Settles 3rd Ignition-Switch Bellwether Before Trial - Law360

Law360, New York (April 7, 2016, 1:27 PM ET) -- General Motors has settled the third in a series of bellwether trials over an ignition-switch defect that could make cars stall and lose power while driving, a potential setback for remaining plaintiffs in the multidistrict litigation in New York.
In a letter to U.S. District Judge Jesse Furman, GM lawyers Richard Godfrey and Andrew Bloomer of Kirkland & Ellis LLP said Thursday that plaintiff Nadia Yingling has entered into a confidential term sheet and a final settlement is expected to follow soon.

Yingling's husband, James, died in December 2013 from injuries suffered in a car accident in Pennsylvania on his way to work, and she claims an out-of-place ignition key caused him to lose control of the vehicle.

The settlement is a setback for plaintiffs in the MDL as they try to gain leverage against GM in potential settlement negotiations and prove that the pool of remaining cases is strong.

Each side had chosen three trials in the six-bellwether process; one of the plaintiffs' choices ended abruptly without a verdict, one has now settled, and GM won another. That leaves three bellwethers to go, and two of them are GM's choices, meaning they'll likely be weaker cases overall.

April 6, 1916: Typhoid Lawsuit and Reservoir Damage Lawsuit | This Day in Water History

0406 Milwaukee typhoid fever

John Snow established in 1854 that cholera was transmaitted not by foul vapors but by water plluted with human sewage.  He could not identify the organism but he established the causal link. Sixty years later transmission of typhoid was recognized as caused by contaminated drinking water - among other mechanisms.  Two years before these lawsuits the New York Court of Appeals in Stubbs v. City of Rochester dealt with the complex problem of how to prove causation in an individual case.  There were other possible sources - such as shellfish, unwashed vegetables, etc.

April 6, 1916: Typhoid Lawsuit and Reservoir Damage Lawsuit | This Day in Water History

Three Sue City for Typhoid Deaths. Milwaukee, Wis.-Three suits brought against the city of Milwaukee as a result of the recent typhoid epidemic, have been filed in circuit court, by two men for the deaths of their sons, and by a woman for the death of her husband. They are for $10,000 each. The complainants claim that the victims contracted the disease from the use of lake water, alleged to be unfit to drink because of the sewage which is being constantly emptied into the lake. The suits charge negligence in allowing the water to become polluted and at the same time supplying it to drink. It is claimed that at various times during the last ten years the city officials have been notified of the condition of the water, but that no attention has been paid to the warnings.”

“City Wins Reservoir Damage Suit. Fort Worth, Tex.-The second court of civil appeals has reversed and remanded the reservoir damage case against the city of Fort Worth, in which a jury in the sixty-seventh district court had awarded the plaintiff $39,867.88 for damage to her land flooded by the backwaters of Lake Worth and alleged damage to adjoining uplands. This is the first of four big reservoir damage suits that have gone against the city under the present administration to be submitted to the higher court. It was appealed on the grounds that the court erred in admitting certain testimony and of misconduct of the jury in considering matter that was not in evidence. The jury awarded $75 an acre for 361 acres of lowlands and $9 an acre for 839 acres of uplands. City witnesses appraised the lowlands at from $35 to $50 an acre and testified the uplands were not damaged. By the reversal the city also saves the interest on $39,867.88 from April 28, 1915.”

Reference: Municipal Journal. 1916. 40:14(April 6, 1916): 489.

Commentary: The typhoid fever epidemic in Milwaukee was caused by a city employee turning off the chlorine disinfection system for about 10 hours. The epidemic resulted in 513 cases and 59 deaths from typhoid fever. As filtration and chlorination became more widely installed to protect water supplies, it became harder for cities to claim that contaminated water supplies were not responsible for typhoid fever deaths. The combination of engineers wanting to do the right thing and lawsuits resulted in an accelerated introduction of the new technologies.

Cahill Can't Dodge Asbestos Victims' Spoliation Claims - Law360

 Cahill Can't Dodge Asbestos Victims' Spoliation Claims - Law360

by Aebra Coe

Law360, New York (April 6, 2016, 2:58 PM ET) -- A New Jersey federal judge on Wednesday shut down Cahill Gordon & Reindel LLP’s efforts to escape a proposed fraud class action accusing it of conspiring with former client BASF to destroy evidence and conceal the fact that the company’s products contained asbestos.

U.S. District Judge Jose L. Linares rejected Cahill’s and BASF Catalysts LLC’s motions to dismiss fraud and fraudulent concealment claims brought against them over the alleged plot to suppress future asbestos lawsuits against the multinational chemical manufacturing corporation by destroying and manipulating evidence, rejecting their contention thatasbestos victims had failed to properly plead their case.

“Defendants had a clear duty to preserve that ran to a specific civil plaintiff, and then allegedly destroyed the evidence that would be required by similar individuals in the numerous lawsuits that were reasonably foreseeable,” Judge Linares said.

The matter of whether the plaintiffs’ allegations are true or not is yet to be seen, but, according to the court, discovery should proceed in order to determine the factual aspects of the case.

The Third Circuit ruled in September 2014 that a New Jersey federal judge had improperly dismissed the claims of fraud and fraudulent concealment against BASF and Cahill, after finding allegations surrounding the mid-1980s destruction of testing records showing asbestos in talc mined in Virginia were well-pled.

After the plaintiffs in the case filed their amended complaint in the district court litigation, the defendants renewed their motions for dismissal, arguing that the claims should be dismissed outright for lack of support.