Exxon Mobil Can’t Dodge Climate Change Fraud Class Action

By Emily Cox
exxon climate change
flickr/Mike Mozart

A Texas federal judge denied Exxon Mobil Corp’s motion to dismiss a putative securities fraud class action that claims the oil company actively concealed its climate change knowledge, ruling Tuesday that investors have cited sufficient misstatements and had met the heightened pleading standard involved with bringing the suit.

Exxon argued that lead plaintiff Greater Pennsylvania Carpenters Pension Fund was trying to create a securities fraud claim out of an allegation from former New York Attorney General Eric Schneiderman’s company probe, accusing Exxon of duping investors by misleading them that it considered one set of proxy greenhouse gas emissions costs, which basically approximated government-related climate change action costs. However, the company was allegedly using a second set of lower proxy costs in its internal business planning calculations.

District Judge Ed Kinkeade concurred with the oil company’s contention that investors did not prove that one of its top officials, Jeffrey J. Woodbury, played a conscious part in the concealment conspiracy. However, he otherwise rejected Exxonmobil’s motion to nix claims against the company and other executives, including former Secretary of State Rex Tillerson.

The judge found that the pension fund brought forth adequate allegations that Exxon publicly stated a different proxy cost value than it was applying in internal calculations.

“This disparity in proxy cost values sufficiently alleges material misrepresentations arising from statements made referencing these proxy costs,” Judge Kinkeado wrote in his order. “A reasonable investor would likely find it significant that Exxonmobil allegedly applied a lower proxy cost of carbon than it publicly disclosed.”

Exxon Climate Change Investor Suit

In June 2017, Schneiderman originally tossed the lawsuit’s proxy allegations after Exxon produced compelling evidence during his investigation over the company’s investor deceptions pertaining to its climate change knowledge. Exxon vehemently fought Schneiderman’s investigation since its launch in 2015 and is taking the same aggressive attitude toward investor allegations. The company argued in its dismissal motion that the pension fund class action “parrots the baseless insinuations and irresponsible allegations raised by that office.”

Investors filed the proposed class action in November 2016, amending the complaint in July 2017 to include more details about the doctored proxy costs. According to the complaint’s amendments, Exxon publicly said that it applied proxy costs of $60 per ton of greenhouse gases (GHG) by 2030. However, the company was using a $40 per ton figure for its internal planning and budgeting.

According to the pension fund, this discrepancy constitutes clear violations of the Securities Exchange Act on the part of the company, as well as Woodbury and Tillerson, plus current Senior Vice President Andrew P. Swiger and Principal Accounting Officer David S. Rosenthal.

Exxon continues to maintain that regulatory-induced proxy costs are inherently different from the company’s own GHG costs, claiming that regulatory-induced costs aren’t directly imposed on the company. The company argued in its dismissal bid that it shouldn’t come as a surprise that GHG costs to calculate expenses on a specific project may differ from proxy costs the company uses to analyze global fossil fuel demands.

However, Judge Kinkeade rejected these assertions Tuesday, writing “whether the two differing proxy cost values represent two different costs or the same cost with different values applied internally than publicly purported to be applied is a factual dispute and cannot be determined at this motion to dismiss stage.”

Exxon Mobil Climate Change Dismissal Motion

Exxon also challenged the operative complaint’s allegation that the oil company failed to acknowledge red flags that one of its gas operations was visibly impaired. The oil giant argued that investors simply had a different opinion about the value of its assets. But, Judge Kinkeade ruled the alleged failures are “not opinion statements but create a fact question.”

“The Amended Complaint alleges the material misstatements included an embedded statement of fact that was objectively false,” the judge wrote, citing a 2015 form that indicated Exxon Mobil had valued the operation in question by applying cost of carbon. However, the investors allege this cost wasn’t actually applied.

Regarding the investors’ claim the company’s Canadian bitumen businesses were operating at a loss, while Exxon continued asserting they were making more than $5 a barrel, the judge ruled “Pension Fund sufficiently pleaded ExxonMobil made a material misstatement by failing to disclose the Canadian Bitumen Operations operated at a loss for three months.”

According to the judge, ExxonMobil’s knowledge of the misinformation was supported by investors’ claims that the company’s management committee, including Tillerson and Swinger, had signed off on a 2014 annual publication that stated different proxy costs that what was being used in business operations.

“These specific allegations of receiving regular, detailed information on carbon related risks and proxy costs as members of the Management Committee provide more than mere conclusory allegations that Defendants Tillerson and Swinger must have had knowledge based on their executive positions within ExxonMobil,” Judge Kinkeade wrote.

The judge also found the investors’ allegations that Exxon had motive to maintain that its credit rating was sufficient to support “a strong inference of scienter as to all defendants.”

Regarding pleading damages, Judge Kinkeade ruled that “it is plausible that over the course of the alleged partial corrective disclosures, the market became aware of ExxonMobil’s alleged fraud and reacted each time with ExxonMobil’s common stock falling.”

As for Woodbury, the judge found the pension found adequately pled control person liability. However, it did not “provide factual allegations” to show the former VP made misleading statements “with scienter, as opposed to mere negligence.”

New York Jumps into Purdue Pharma Opioid Battle

By Emily Cox
Purdue Pharma opioid
flickr/opiateaddictiontreatment

In its new Purdue Pharma opioid lawsuit, the state of New York echoes hundreds of cases against the opioid manufacturer in its allegations that Purdue Pharma spread opioid addiction like a virus, laying waste to lives across the country and leaving death and financial ruin in its wake by overtly lying about the benefits and risks of its signature painkiller, OxyContin.

State Attorney General Barbara Underwood filed the lawsuit Tuesday. The case alleges that Connecticut-based Purdue profited enormously from a long-term scheme of deception to depict OxyContin as a wonder drug, leading to rampant nationwide addiction, thousands of fatal overdoses, and staggering economic costs due to law enforcement and health care.

“Through its actions, Purdue and its owners obtained billions of dollars in profits, at the cost of lost lives and tens of billions of dollars in devastation inflicted on communities that are now awash in opioids and their ill effects,” the Purdue Pharma opioid lawsuit states.

Purdue officials responded immediately Tuesday, releasing a statement saying that they “vigorously deny the state’s allegations.”

“We believe it is inappropriate for the state to substitute its judgment for the judgment of the [FDA’s] regulatory, scientific and medical experts,” the officials said in their statement.

According the federal government, more than 40,000 Americans died in 2016 from overdoses involving prescription and illicit opioids. The Purdue Pharma opioid lawsuit also maintains that New York saw almost 3,100 deaths from opioids. This included 2,400 deaths involving prescription opioids.

Purdue Pharma Opioid Lawsuit

New York’s claim resoundingly echoes claims made by other states’ recent Purdue Pharma opioid cases, including North Carolina, Tennessee, Texas, Utah, and Virginia. The Empire State also maintains many of the same allegations as hundreds of cases from local governments against Purdue and other opioid companies in the sprawling multidistrict litigation (MDL) over the opioid crisis.

Among other serious allegations, New York is accusing Purdue of consciously concealing addiction risks and fraudulently claiming that OxyContin provides 12 hours of continuous pain relief. The company also falsely claimed that addicts were actually suffering from undertreatment and “pseudoaddiction.” The treatment? More OxyContin, according to Tuesday’s Purdue Pharma opioid lawsuit.

Furthermore, Purdue hired doctors on as “key opinion leaders” and funded “front groups” to add credibility to its marketing messaging. The company also continued to distribute misinformation about OxyContin even after it reached agreements with state and federal authorities to cease virtually identical misstatements.

“Despite its pledges to improve its conduct, Purdue continued to aggressively promote its drugs directly through in-person marketing visits to health care providers and facilities,” the Purdue Pharma opioid lawsuit states.

In February, Purdue stopped promoting opioids in physician offices. In June, the company laid off its entire sales force and indicated that it intended to focus less on opioids and more on developing drugs targeting cancer and central nervous system disorders.

New York’s suit has nine specific causes of action. This includes public nuisance, deceptive advertising, unjust enrichment, and “repeated and persistent fraud.” The state seeks disgorgement of ill-gotten gains, civil penalties, and additional funds for addiction treatment, and prescriber education, among other remedies.

Puerto Rico Claims Power Restoration Complete Nearly 1 Year After Hurricane Maria

By Andrew Emett

Nearly one year after Hurricane Maria left millions of Puerto Ricans without electricity, the Puerto Rico Electric Power Authority (PREPA) recently announced that power had finally been restored to all their customers. But according to recent reports, customers living in El Yunque rainforest and near damaged power lines still remain without electricity.

On September 20, Hurricane Maria struck the island of Puerto Rico and left nearly 3.4 million residents without power. Three hundred twenty-eight days later, PREPA announced that electricity has been restored across the island and to its 1.47 million power customers.

“According to our reports, all of our clients that were without service since Maria now have electricity,” said Geraldo Quiñones a spokesman for the Puerto Rico Electric Power Authority (PREPA).

On Tuesday, the utility tweeted a photo depicting a family from Ponce’s mountainous Barrio Real Anon. The tweet indicated that the family were the last customers to have their electricity restored after the devastating effects of Hurricane Maria.

But customers living in El Yunque National Forest dispute PREPA’s claims that 100 percent of the power has been restored.

“It’s something that’s not true,” resident Jose Saldaña Jr. told CNN during a recent phone interview.

According to Saldaña, his family and many others in El Yunque rainforest have lived without power since Hurricane Maria due to an authority dispute between PREPA and the U.S. Forest Service. As PREPA waits for the Forest Service to approve the installation of energy poles, Saldaña’s family is forced to spend $180 each week to run a generator for 15 hours every day.

Within weeks, two PREPA CEOs have resigned amid controversy around executive pay. Last month, five of the seven members of the board that governs PREPA resigned their positions on the same day, including the utility’s newly appointed CEO, who had only been named one day prior.

“FEMA, its federal partners and the government of Puerto Rico are undertaking one of the largest post-disaster reconstruction efforts in U.S. history,” stated Juan Rosado-Reynes, a FEMA spokesperson, on Tuesday. “Today, electricity is flowing, water systems are operating, traffic is moving, airports and seaports are operating and permanent reconstruction has already begun.”

“It’s more work, more sacrifices, more costs,” Saldaña told CNN. “It’s like they’ve forgotten us.”

Drinking Water Contamination Linked to Michigan Air Force Base

By Emily Cox
drinking water contamination
flickr/jamie white

A new report indicates that a Michigan military base may have caused local drinking water contamination, putting base workers, veterans, and other area residents at an elevated risk for cancer.

The Agency for Toxic Substances & Disease Registry (ATDSR) published a draft report July 27. The report notes contaminants in the drinking water in Oscoda, Michigan. Specifically, these contaminants are volatile organic compounds (VOCs). Formerly the home of Wurtsmith Air Force Base (WAFB), the report warns that people who drank or had skin contact with water in and around the base could face increased cancer risks.

The ATSDR came to three pertinent conclusions in the draft report. First, children and adults who used trichloroethylene (TCE) contaminated water in their homes could be at risk for dangerous non-cancer side effects. Second, people who used drinking water wells in the area could have increased risks for cancer. Third, on-base employees may have been exposed to benzene water contamination in Building 5008 for numerous years and face increased risks of both cancer and hematological side effects.

The report emphasizes that these exposures happened decades ago. The Michigan drinking water in the area is currently safe. The government decommissioned the base in 1993.

“Most of the past exposures occurred before 1980,” the report states. “Today, the majority of on-base and off-base facilities, residences, and camps receive their drinking water from the Huron Shores Regional Utility Authority, a source that is not located near WAFB and that meets all federal and state drinking water quality standards. A few wells that are still in service are being monitored by local authorities.”

TCE Drinking Water Contamination

TCE is a popular chlorinated solvent. It’s frequently used as a degreaser to clean machinery, adhesive solvent, and paint stripper, as well as etching process applications and is sometimes an ingredient in paints and varnishes. Previous studies have already shown that chemical exposure causes cancer in animals when inhaled or large quantities are absorbed through the skin.

The World Health Organization (WHO) classified TCE as a human carcinogen in 2012. However, many still believe that low levels of exposure to the chemical is unlikely to cause significant harm. Consequently, the United States continues to accept the chemical’s wide-spread use.

The ATSDR report suggests that TCE exposure from drinking water could result in heart malformations, adult immunological effects, and developmental immunotoxicity. It can also cause significant birth defects, including fetal heart malformations and cardiac heart defects even if exposure to the pregnant woman is less than three weeks.

In 2013, a study linked TCE exposure to increases in risks for liver, cervical and kidney cancer.

Benzene Drinking Water Contamination

Benzene is an industrial chemical. Studies have linked it with the development of several lethal forms of cancer, leukemia, and other conditions, including AML, acute lymphotic leukemia (ALL), chronic lymphotic leukemia (CLL), chronic myelogenous leukemia (CML), non-Hodgkin’s lymphoma, multipole myeloma, hairy cell leukemia (HCL), myelodysplastic syndrome (MDL), myeloid metaplasia, aplastic anemia, myelofibrosis, and thrombocytopenic purpura.

Elevated benzene in the environment can lead to a multitude of complications from exposure to the chemical. Benzene is a colorless or light-yellow liquid at room temperature. It has a sweet odor and is highly flammable. Benzene evaporates rapidly into the air. However, the vapor is heavier than air, causing it to sink and collect in low areas.

Benzene only partially dissolves in water. Since it floats on top, it poses a danger to drinking water, wildlife, and those who go in the water. Exposure to the chemical can occur from leaks in underground storage tanks or hazardous waste sites that contaminate well water. Those in the oil industry that make or use benzene face the highest exposure risks.

Studies have shown that long-term benzene exposure can cause anemia, as the chemical inhibits the bone marrow’s ability to produce red blood cells, which can cause immunological damage. The Department of Health and Human Services has found that long-term exposure to benzene can damage blood cells to the point that cancers like leukemia develop.

The ATSDR is accepting public comments on the draft report until September 30, 2018. Individuals are asked to submit comments in writing to ATSDRRecordsCenter@cdc.gov or by mail to:

Agency for Toxic Substances and Disease Registry
Attn: Records Center
Re: Former Wurtsmith Air Force Base (Oscoda, MI)
4770 Buford Highway, NE (MS F-09)
Atlanta, Georgia 30341

Hernia Mesh Cases Selected for Atrium C-Qur Bellwether Trial Pool

By Emily Cox

The court presiding over hundreds of lawsuits pending in the AHernia mesh cases atrium c-qurtrium C-Qur federal multidistrict litigation (MDL) has selected a group of hernia mesh cases for an initial discovery pool that will be eligible for early trial dates.

Atrium C-Qur hit the market in March 2006. Due to its unique design, involving a polypropylene mesh with an Omega-3 fatty coating, it quickly gained popularity for hernia surgery. The manufacturer aggressively marketed the coating as reducing scar tissue formation, while promoting the mesh’s fixation to the abdominal wall. However, a staggering number of individuals have reported significant problems and debilitating injuries from the mesh. These include inflammatory responses, bowel adhesions, mesh failure, and other painful complications, necessitating additional surgeries to address.

Almost 500 of these individuals have filed hernia mesh lawsuits over problems from Atrium C-Qur mesh, alleging the manufacturer consciously profited from a dangerous and defective medical device, which often requires additional complex surgical procedures to remove the mesh – sometimes within months of the original procedure.

Due to the striking similarities between the hernia mesh cases against Atrium pending throughout the federal court system, the Judicial Panel on Multidistrict Litigation (JPML) consolidated pretrial proceedings in December 2016 to expedite the dissemination of justice. The panel centralized the claims before District Judge Landya McCafferty in the District of New Hampshire to reduce duplicative discovery and avoid conflicting pretrial rulings that can further delay these types of complex litigations.

Hernia Mesh Cases Selection

The plaintiffs and defendants filed a joint notice August 9. The parties identified 16 hernia mesh cases that they had selected for the initial bellwether pool. The court will subsequently narrow down this group into a smaller collection of representative cases which will be eligible for the first Atrium C-Qur trial dates, beginning in February 19, 2020.

After initial discovery in these cases, the court will further pare down this group to eight claims by March 1, 2019. The plaintiffs will select four of these, and the defendants will select the other four. These cases will continue with case-specific and expert discovery, completing the process by September 20, 2019. Parties are to file Daubert motions on challenges to expert testimony admissibility by October 18, 2019, with responses due by November 1, 2019.

The parties meet for a status conference Thursday. The parties also filed a joint agenda late last week, indicating that they intend to address a recent motion to extend jurisdictional discovery and briefing deadlines.

States Fight Against Opioid Dismissal Bids in MDL

By Emily Cox
opioid dismissal
flickr/Find Rehab Centers

Dozens of states are attacking an opioid dismissal bid by drug manufacturers and distributor McKesson Corp. to dismiss claims that they ignited the opioid crisis, arguing to the Ohio federal judge overseeing the opioid multidistrict litigation (MDL) that the court must not restrict states’ abilities to protect its citizens’ health.

The states filed two amicus briefs. The first brief is aimed at the drug manufacturers, while the other focuses on McKesson. The companies have moved to dismiss an Alabama lawsuit in one of the bellwether cases in the massive litigation that alleges drug makers and distributors fueled the opioid epidemic by downplaying significant risks and failing to report outrageously large orders. In their McKesson brief, states attacked the pharmaceutical distributor’s assertion that it didn’t play a role in the crisis, claiming that distribution companies’ expansive role in the pharmaceutical industry negates a certain amount of responsibility on their part.

“But, more importantly for purposes of this brief, McKesson ignores the distributor’s legal duties to prevent diversion and to monitor, detect, investigate, refuse, and report suspicious orders of opioids,” the states said.

The Alabama lawsuit claims that McKesson violated specific federal Controlled Substances Act (CSA) duties to prevent the diversion of opioids and to spot suspicious orders. However, in its opioid dismissal motion, McKesson argued that the CSA prevents states from suing it.

“But states do not rely solely on the federal Controlled Substances Act to regulate distributors. State laws themselves prohibit opioid distributors from facilitating diversion and from turning a blind eye to suspicious orders,” the states said. “State attorneys general, including the attorney general of Alabama, are empowered to enforce violations of those laws.”

Opioid Dismissal Bids Within the Uniform Controlled Substances Act

Except for New Hampshire and Vermont, all the states have also adopted the Uniform Controlled Substances Act. According to the states, this requires controlled substance distributors to annually register with the appropriate state agency. This law also mandates that distributors prevent the diversion of controlled substances, like opioids, into non-legal channels.

In the brief pertaining to the drugmakers’ opioid dismissal bid, the states allege that the companies failed to recognize the role of state attorneys general as legal protectors of citizens doesn’t make them “super plaintiffs” trying to recoup individual damages of their constituents. The states insist that attorneys general are only seeking to protect the well-being and health of their citizens.

The drug makers further claim that Alabama hasn’t shown causation, as it hasn’t identified individual physicians who were allegedly influenced and acted on misrepresentations about opioid safety.

However, these arguments wrongly assume that Alabama is seeking to recover for prescriptions rather than vindicating its residents’ rights to be free from conduct that directly threatens public health, safety, and welfare by recouping the costs of abating the problem.

“State attorneys general have long been both protectors of the health and well-being of their citizens and also the primary enforcers of state consumer protection laws,” the states said.

Delaware, Illinois, New York, New Jersey, Florida, Texas, Pennsylvania, and the District of Columbia are among the states in the amicus briefs, fighting the opioid dismissal bid.

Texas Department of Insurance Announces Deadline Reminder for Hurricane Harvey Claims

By Andrew Emett

As the one-year anniversary of Hurricane Harvey’s landfall approaches, the Texas Department of Insurance (TDI) recently issued an announcement reminding victims to file any remaining insurance claims before the deadline on August 25. Although the TDI recommended that many victims should file their claims to avoid their deadlines with Texas Windstorm Insurance Association (TWIA), scores of TWIA policy holders have filed lawsuits against the insurance company for drastically underpaying their Harvey claims.

On Monday, the Texas Department of Insurance issued the following press release: “As the anniversary of Hurricane Harvey approaches, the Texas Department of Insurance is reminding Texans that some insurance policies have a one-year deadline to file claims.

“Harvey made landfall August 25. Texas Windstorm Insurance Association (TWIA) claims must be reported by the one-year anniversary of the date the damage occurred unless the policyholder can show good cause for the delay.

“To file a TWIA claim, go to www.twia.org or call 1-800-788-8247.

“Some other insurance policies also have a one-year deadline to file claims unless the policyholder can show good cause for the delay. To see if your other policies have claim deadlines, check the policy language or contact your insurance company or agent.”

According to the TDI, Harvey victims must file their insurance claims by August 25 unless they can prove extenuating circumstances. Although the press release specifically named TWIA, many TWIA policy holders have filed lawsuits against the insurance company for underpaying their claims.

During a recent interview with KHOU11, TWIA policy holder Walter Abbott asked, “Why would you buy insurance from a company that has no intentions of paying you?”

After losing part of his roof and sustaining severe damage to his house from Hurricane Harvey, Abbott met with an adjuster for TWIA who concluded that the home needed a “complete gut and remodel” and “the cost would exceed the policy limits” of $236,000. Instead of adhering to the field adjuster’s estimate, TWIA later sent out a building consultant who determined that Abbott would only receive a fraction of the initial estimate.

“They sent me a check for $46,000,” Abbott said.

“It was not even close; it was a laugh,” his wife Kathy Abbott added.

Also located in Rockport, Texas, Joey Park’s waterfront home was also severely damaged by Hurricane Harvey last year. Despite the fact that TWIA’s initial adjuster determined Park’s residence was “not repairable” and a “total loss,” Park only received $168,000 instead of his policy limit of nearly $300,000.

“They didn’t seem to care. He was trying to cut the price of this claim,” Park said. “It’s disappointing to say the least.”

Nearly a year after Hurricane Harvey, Park’s waterfront home remains without floors, walls, or fixtures.

Representing Park, the Abbott family, and several other Harvey victims, attorneys John Black and Rick Daly are suing TWIA for underpaying their policy holders. Daly told KHOU11, “The building consultants have one job and one job only, and that is to write an estimate that is as low as they can possible put on paper with a straight face.”

According to a deposition taken of a claims supervisor contracted by TWIA, the supervisor testified in 80 percent of Harvey claims initially deemed a total loss, a building consultant later wrote an estimate for a much lower payment.

“It tells me that these are people that are being cheated,” Black said. “This is not the way the system was set up to work.”

“In no way, shape or form do we use building consultants to low-ball estimates,” stated Jennifer Armstrong, TWIA vice president of communications and legislative affairs. “We’re committed to every dollar that we owe under the policy.”

TWIA staff estimates total losses from Hurricane Harvey at $1.61 billion.

Monsanto Water Pollution Counterclaims Fall Flat

By Emily Cox
san diego bay water pollution
flickr/Ben Pollard

Monsanto lost a bid Friday to turn a lawsuit over San Diego Bay water pollution on its head by placing the blame on the city’s storm water system when a California federal judge ruled that the company had no standing to bring counterclaims as it suffered no direct injury from the contamination.

San Diego brought the public nuisance claim against Monsanto three years ago over its manufacturing, claiming the company was dumping polychlorinated biphenyls (PCBs) in the bay. Monsanto filed its counterclaims in February, arguing that San Diego itself was responsible for the water pollution, violating the Clean Water act by discharging contaminated storm water into the bay. Monsanto also brought an unjust enrichment claim, asserting that it had incurred significant harm from litigation costs and that a damages award would unjustly enrich the city.

However, District Judge William Hayes ruled Friday that the company had no standing to bring counterclaims, as it had “failed to set forth factual allegations demonstrating a significant immediate injury that is directly affecting Monsanto.” Furthermore, he found that the unjust enrichment claim was founded on the “speculative” threat that Monsanto would lose the lawsuit and that the city could only win the case if it proved Monsanto was responsible for the contamination.

“Monsanto cannot be held liable to the city in this case for harm it did not cause,” Judge Hayes said in his order. “The allegations in support of Monsanto’s unjust enrichment counterclaim regarding the city’s contributions to the presence of PCBs in the bay are relevant to establish affirmative defenses and denials Monsanto has raised in its first amended answer. However, these allegations are insufficient to establish an ‘actual or imminent’ contingent liability satisfying the injury in fact requirements of Article III.”

Monsanto Water Pollution Lawsuit

In 2015, the San Diego Unified Port District and the city itself sued Monsanto and two of its former subsidiaries – Solutia Inc. and Pharmacia LLC. Eastman Chemical Co. and Pfizer Inc., respectively, now own the two companies. San Diego and its Port District allege that these companies were collectively responsible for the cleanup of PCBs in San Diego Bay. The city and the port authority allege the chemical companies produced and sold products with PCBs despite knowing the chemicals were dangerous.

The bay is listed impaired under the Clean Water Act due to the presence of PCBs. These chemicals were formerly used in transformers, capacitors, and other electrical products. The EPA has found PCBs can cause cancer and negatively affect immune and reproductive systems.

Monsanto filed its counterclaims this year, blaming the contamination on the city’s storm water system, because it drains into the bay. Monsanto based the validity of its Clean Water Act claim on its financial injury, citing investigation costs to determine the pollution origins. The company argued that it has already paid out vast sums to research the sources and amount of PCB contamination. However, Judge Hayes sided with the city Friday, finding the research was part of litigation costs, which isn’t strong enough to establish standing.

Monsanto also argued San Diego would receive unjust enrichments if it won damages from the company and if the California Commission on State Mandates grants relief to fix the water pollution.

However, the judge found that this was an invalid basis for unjust enrichment, ruling the standalone unjust enrichment claim was “not cognizable under California law,” because typically these claims are tied to related causes of action, relying on a contractual relationship between the parties.

Water Pollution Ruling Reactions

Part of the city’s legal team, John P. Fiske, says the judge made the right call because the counterclaims were “nonsensical” and “blamed taxpayers for Monsanto’s environmental calamity.”

“It’s time Monsanto stop playing games in litigation and start considering real storm water solutions for our communities and the environment,” he said.

He noted the $289 million verdict a jury awarded against Monsanto on Friday for not providing necessary warning labels on its signature Roundup herbicide and actively concealing its substantial risk factors, causing fatal lymphoma.

“Monsanto serves neither the public nor its shareholders by advancing these irresponsible strategies,” Fiske said.

Monsanto vice president Scott Partridge said that the judge may have dismissed counterclaims in the PCB case, but the company would continue to pursue the city’s liability as an affirmative defense.

“To the extent the PCBs ended up in the bay, they were either there because other parties disposed of them improperly or because the city accepted PCBs into its landfills,” he said. “Like any other substance, if PCBs are handled improperly, it shouldn’t be the manufacturer who is held responsible for their improper disposal. It should be the responsibility of the party who places that substance in a place it shouldn’t be. That’s the logic of the law, and we think it’s compelling.”

State Farm Hits Amazon with Exploding Vape Battery Suit

By Emily Cox
exploding vape battery
flickr/Garycycles8

State Farm insurance is suing Amazon along with another company for making and selling a defective vape battery that exploded, causing a $400,000 fire in the home of one of its policyholders.

According to the lawsuit, State Farm policyholder William Foley bought the LG Chem Michigan Inc. vape battery from Amazon Technologies Inc. in La Mirada, California sometime before September 11, 2016. The insurer filed the complaint originally in state court July 9; however, Amazon removed it to federal court August 10.

On September 11, 2016, the vape battery “exploded and caught fire,” causing severe damage to Foley’s house and property, necessitating the replacement of much of the latter. Consequently, State Farm ultimately paid out $401,718.80.

“[The battery] was, at the time that William Foley purchased it, defective and unsafe for its intended purpose in that said batteries exploded and caught fire, causing destruction to the Foley property,” the suit states.

State Farm further alleges that LG and Amazon failed to take proper care regarding the batteries. This includes their design, manufacturing, and distribution. However, they blatantly ignored legal requirements to take a higher level of care to ensure consumer safety, leading to the devastating fire.

As part of the lawsuit, Foley signed over his legal rights to pursue his own claim against the defendants to State Farm. State Farm is pursuing claims of subrogation, negligence, indemnity, and breach of warranty over the exploding vape battery.

Originally, the insurer filed the lawsuit in California Superior Court for the County of Los Angeles. However, Amazon quickly removed the claim to federal court on the basis of jurisdiction.

Exploding Vape Battery Death

Exploding vape batteries have claimed at least one life so far. An electronic cigarette exploded and killed a Florida man back in May.

Tallmadge D’Elia was in his St. Petersburg, Florida home May 5 when the electronic smoking device exploded. Investigators confirmed that the cause of the accidental death was a “projectile wound to the head.” Furthermore, D’Elia, 35, suffered burns to about 80 percent of his body from the explosion starting a fire in the bedroom where he was found. The manufacturer continues to maintain that its vape devices do not explode and that the problem must have stemmed from the battery.

Bard Hernia Patch Causes Irreparable Harm

By Emily Cox

Bard Hernia PatchThe polypropylene used in a Bard hernia patch caused debilitating permanent damage despite surgical intervention to remove the defective mesh.

Stanley Pliszka filed the complaint August 1 in the District of New Jersey. He indicates that CR Bard and its Davol unit continued profiting off a patently defective hernia patch despite knowing the risks, leaving him with permanently and disfiguring injuries to satiate their avarice.

In November 2009, Pliszka underwent epigastric hernia repair. His surgeon used a Bard Ventralex hernia patch during the procedure. The hernia mesh’s significant failings became painfully apparent as Pliszka began suffering significant complications. Consequently, he had to undergo revision surgery in August 2016 due to the severity and progression of his complications. Surgeons noted that the defective device had caused significant damage.

“The polypropylene mesh utilized to manufacture the Bard Mesh was in itself dangerous and defective, particularly when used in the manner intended by Defendants in the Bard Mesh,” the lawsuit states. “The particular polypropylene material used in the Bard Mesh was substandard, adulterated and non-medical grade, and was unreasonably subject to oxidative degradation within the body. When implanted as intended, adjacent internal organs, structures, nerves, arteries, and vessels, polypropylene mesh is unreasonably susceptible to adhesion formation, nerve entrapment, spermatic cord obliteration, organ perforation or erosion, fistula formation and bowel strangulation or hernia incarceration, and other injuries.”

Furthermore, plastic mesh suppliers had adamantly warned Bard and Davol that the polypropylene was not medical grade and not to use it for implantation in humans.

“Defendants’ numerous suppliers of various forms of polypropylene cautioned all users in their United States Material Safety Data Sheet that the polypropylene was not to be used for medical applications involving permanent implantation in the human body or permanent contact with internal body fluids or tissues,” Pliska’s lawsuit states.

Bard Hernia Patch Litigation

Pliszka joins a rapidly growing number of individuals coming forward with similar devastating injuries from Bard hernia patch products. His case will be consolidated with dozens of other lawsuits currently pending in the federal multidistrict litigation (MDL). The Judicial Panel on Multidistrict Litigation (JMPL) centralized all federal Bard hernia patch complaints in the Southern District of Ohio before one judge for pretrial proceedings.

The JPML has already established similar proceedings for Ethicon’s Physiomesh and Atrium C-Qur mesh lawsuits. Both MDLs already involve several hundred claims.

Given the popularity of these products and high prevalence of injuries among recipients, experts expect that as many as 10,000 injured individuals may eventually file hernia patch lawsuits against different companies that manufacture the dangerous polypropylene products.

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