On Monday, the Missouri Supreme Court issued an order sustaining Johnson & Johnson’s (“J&J”) last-minute Petition for writ of prohibition to stay the trial in Vickie Forrest et al. v. Johnson & Johnson et al., Cause No.1522-CC00419-01, pending in the in the Circuit Court of the City of St. Louis, Missouri. Although the Supreme Court sets forth no reasoning for the stay in its one paragraph en banc order, the trial, which was set to start on January 22, 2019, will not take place until the Court weighs in on J&J’s argument that conducting a single trial of multiple claims from multiple Plaintiffs – most of whom had potentially been improperly joined – is unfair to the defendants and even potentially in violation of J&J’s constitutional due process rights. State ex rel. Johnson & Johnson et al. v. The Honorable Rex M. Burlison, Cause No. SC97637. The Forrest case is one of an onslaught of talc cancer cases brought in the St. Louis City Circuit Court on behalf of multiple plaintiffs against J&J. Forrest, and twelve other women, are alleging that their different subtypes of ovarian or gynecological cancers were caused by their use of J&J’s talcum powder products, which allegedly contained asbestos. Continue Reading MO Supreme Court Grants J& J’s Writ of Prohibition in Talc Cancer Case
California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed further amendments to clarify the new Prop 65 regulations that went into effect August 30, 2018, which focused on how to provide “clear and reasonable” warnings under Prop 65. Under the new regulations, manufacturers, producers, packagers, importers, suppliers, and distributors have primary responsibility for complying with Prop 65 requirements; and retail sellers have responsibility for placement and maintenance of consumer product exposure warnings only in limited situations. OEHHA’s latest proposed amendments clarify parties’ responsibilities along the often complex supply chain: Continue Reading California Proposes Additional Amendments for Proposition 65 Regulations
|December 18, 2018 | Editor: Jen Dlugosz | Assistant Editor: Natalie Holden|
|This will be our final Toxic Tort Monitor for 2018. Thank you for continuing to subscribe to these updates. We wish you all happy holidays. Have a joyful new year!|
|Cook County Jury Returns a Defense Verdict in Mesothelioma Trial
By Andrew Hahn
On December 14, 2018, a Cook County jury returned a verdict in favor of defendant Welco in a mesothelioma trial. Welco was the only remaining defendant at trial. Plaintiffs argued that decedent, a career member of the drywall trade, worked with Welco products for one month in 1965 in Chicago, Illinois. Plaintiffs further argued that Welco was negligent for its failure to warn its consumers of the dangers of asbestos in its joint compound. [Continue Reading]
|Department of Justice Continues to Prioritize Asbestos Trust Fraud
Over the last few months, the Department of Justice (DOJ) has signaled that fighting fraud, waste, and abuse in asbestos trusts is a priority. Our previous article on this subject highlighted DOJ’s September 13, 2018 Statement of Interest filed in the bankruptcy case of Kaiser Gypsum Company, which asserted that the proposed trust plans lack adequate safeguards and indicated that DOJ would object unless the final plan better ensures transparency and prevents fraud. Since that filing, DOJ has continued to intervene in asbestos trust proceedings. [Continue Reading]
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On Saturday, December 1, 2018, President Trump and Chinese President Xi Jinping met to discuss trade relations between the two countries. Following their meeting, President Trump indicated that he would postpone increasing the tariff rate to 25% on certain Chinese goods worth up to $200 billion currently covered under Section 301 List 3. This increase was originally slated for January 1, 2019 (see our previous post here). The 10% duties on that $200 million in goods will remain in effect, however, as will the 25% tariffs on the goods worth about $50 billion, which appear on the first and second list of additional duties. According to the White House press statement, the parties agreed to “endeavor” on a 90-day period, until March 1, 2019, to discuss the restructuring of China’s trade policies and come to an agreement. Continue Reading President Trump Holds Off on Increase of Section 301 Tariffs
The Department of Commerce published its opportunity to request annual review of Antidumping and Countervailing Duty Orders with anniversary months in December.
Immediately before the G-20 Summit Meeting on November 30, 2018 in Buenos Aires, President Trump, Canadian Prime Minister Trudeau, and Mexican President Nieto ceremonially signed the new United States-Mexico-Canada Agreement (USMCA). Although each leader signed the Agreement, this does not mean that it will go into effect, as the Agreement must now be approved by the legislature of each country. In regard to the U.S. legislative process, the next steps will be a 60 day period to submit a list of changes to U.S. law that are required for the Agreement to take effect. At the same time, the Agreement must also be reviewed by the U.S. International Trade Commission to assess the impact the agreement will have on GDP, exports and imports, employment, and U.S. consumer interests. The Commission has 105 days after the signing, or until March 15, 2019, to deliver its report to Congress.
Despite moving forward with the signature of the trade agreement, the U.S. continues to have steel and aluminum tariffs on imports from Canada and Mexico pursuant to Section 232 of the Trade Expansion Act of 1962. Prime Minister Trudeau optimistically indicated that Canada and the U.S. will work towards removing these tariffs in the near future.
In the wake of the #MeToo Movement, New York, California and a number of other jurisdictions, both local and state, have passed new laws aimed at combatting sexual harassment in the workplace. The New York laws require written sexual harassment prevention policy, assurance that all current and new employees, and even applicants for employment, receive a copy of the policy, and mandate annual sexual harassment training for all employees. In addition, New York law now provides that employers can be liable for sexual harassment of nonemployees in the workplace, such as contractors, vendors and subcontractors. Recent legislation prohibits employers from using mandatory arbitration provisions in employment contracts or nondisclosure agreements except when this is the victim preference. Let me suggest that there are some important lessons to be learned from these laws. Continue Reading Lessons From Changes to New York State’s Sexual Harassment Laws
Under the Clean Water Act
The Clean Water Act (CWA or the Act) expressly forbids the discharge of pollutants without a permit. The term “discharge of pollutants” means the “addition of any pollutant to navigable waters from any point source.” Any discharge of pollutants must be covered under a federal or state discharge permit (e.g., a U.S. Army Corps of Engineers permit for the discharge of dredged and fill material or a National Pollution Discharge Elimination System (NPDES) permit for the discharge of other pollutants); otherwise the discharge would be in violation of the CWA. If it does not constitute a discharge of pollutants, then the release does not violate the CWA.
A flurry of recent cases around the United States has created a circuit split over whether the CWA governs discharges to groundwater that eventually add pollutants to navigable waters. However, there are a few points these courts seem to agree on. Continue Reading CWA Series: Do Discharges to Groundwater Require a Permit? Depends on Who You Ask