SteveK July 17th, 2010

On July 13, 2010, in Commissioner of the Department of Planning and Natural Resources v. Century Alumina, LLC, et.al., the Federal District Court from the St. Croix division of the Virgin Islands, held that an action to recover natural resource damages (NRD) must be commenced within 3 years of the constructive knowledge of the injury by the trustee.

The plaintiff trustee brought the claim against a number of industrial entities for the release of contaminants onto a number of industrial tracts at various times which injured the land as well as groundwater and the Caribbean Sea.  The defendants moved for summary judgment seeking dismissal of the claims under CERCLA’s limitation of actions provision, which provides that an action for NRD must be commenced within 3 years following “the date of the discovery of the loss and its connection with the release in question.” Although the statute does not state what is meant by “discovery” the court relied upon numerous prior decisions as to other statutes and other aspects of CERCLA to conclude that it is based upon the constructive knowledge of the trustee. The court went on to clarify that the knowledge of the agency, including the knowledge of any prior trustee, would be imputed to the present trustee.  Accordingly, the determination of whether there was NRD related to the discharges would require an analysis of when the trustee knew or should have known that there was an injury to the natural resource related to the discharges, which would commence the running of the time for bringing an action. With this ruling in hand, the court analyzed the facts as to each site and each defendant, dismissing some claims and allowing others to continue.

This case demonstrates that there courts will take a rational approach in considering the relationship between knowledge of a discharge of contaminants and the commencement of NRD claims. The interests of the government to pursue recovery of NRD, while important, will not allow the government to be inattentive to their statutory obligation to act promptly to seek to enforce these rights.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

Tags: CERCLA, Contamination, Environmental Law, Ground water, Groundwater, Natural Resource Damages, NRD, Pollution, Statute of Limitations

• Defense Litigation , Environmental Law , Natural Resource Damages
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SteveK July 16th, 2010

On June 12, 2010, in Mereno v. American Home Products, Inc., the New Jersey Appellate Division affirmed the dismissal of a claim by Mark Moreno and his mother of defectively manufactured oral polio vaccine (OPV) which had been administered to plaintiff resulting in a brain tumor and permanent disabilities. It was claimed that the vaccine used was defective because the manufacturer failed to screen for infective Simian Virus 40 (SV40).  Since plaintiffs were unable to identify the responsible manufacturer, they named all the companies licensed to manufacture OPV at the relevant time. The Court affirmed that summary judgment was appropriate even though discovery was not complete, because the plaintiff could not show that the outstanding discovery would supply information relevant either to lead to the identity of the manufacturer or to any theory of collective liability.

In analyzing the plaintiffs’ claims of collective liability, the court first considered whether the law of New Jersey or the law of New York applied as evidence indicated that the OPV was administered in New York; however, the plaintiffs have resided in New Jersey for over 35 years. The Court reviewed the various theories of collective liability and concluded that under the laws of both states, they could not be applied in this case.  The court distinguished a New York decision applying market-share liability to the manufacturers of another drug, DES, because the injury did not result from the defective design of the drug, as with DES, but was due to the failure of a manufacturer to comply with federal regulations relevant to screening and neutralization of SV40 and “and produced a defective or deviant vaccine.” The Appellate Court, therefore, concluded that the failure of a single manufacturer to comply with proper manufacturing processes and procedures did not warrant imposition of liability on all the manufacturers of the same product.

This decision continues to reinforce the requirement of proper product identification, and the need for the plaintiff to prove causation-in-fact, and further reviews the limited grounds where a court will shift the burden to defendants to distinguish their product or actions from that of other defendants.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

Tags: collective liability, drug liability, Environmental Law, insurance law new jersey, OPV, oral polio vaccine, Products Liability Defense, SV40, Toxic Torts

• Bodily Injury Defense , Defense Litigation , Environmental Law , Toxic Torts
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SteveK July 9th, 2010

On June 2, 2010, in United States v. Aerojet, the Court of Appeals for the 9^th Circuit allowed non-settling PRPs to intervene, by right, to challenge a CERCLA settlement. By this decision, the 9^th circuit joined the 10^th circuit (See, the December 8^th post reporting on U.S. v. Albert Investment) and the 8^th circuit (U.S. v. Union Electric, a decision from 1995) in ruling that a non-settling PRP has a right to contribution under CERCLA that satisfies the requirements for intervention under the federal rules.

The case involved the U.S. reaching a settlement with a group of PRPs to contribute $8.1 million towards an $87 million cleanup. As usual, the consent decree provided contribution protection to the settling PRPs. As is required, the Department of Justice filed a suit filed to perfect the settlement by a consent decree. After posting the consent decree in the Federal Register, a group of non-settling PRPs filed objections to the settlement. As they were not satisfied that their interests were properly addressed, the non-settling group filed a motion to intervene. The trial court denied the motion which was appealed to the 9^th Circuit and reversed.

The focus of the 9^th Circuit’s decision was whether the settlement would extinguish the non-settling PRP’s contribution rights under Section 113(f)(2) of CERCLA. In evaluating the right to intervene under Federal Rules of Civil Procedure 24(a)(2) and Section 113(i) of CERCLA, the court identified the interest at issue as the PRP’s contribution rights and  ensuring that the consent decree “embodies a fair and reasonable allocation of liability.” The court determined that entering the consent decree would cut off the non-settling parties’ contribution rights against those that settled. This, the court held, provided the non-settling parties a protectable interest. In addition, the court noted that settlement may result in the non-settling PRPs becoming responsible for the remaining amount of the cleanup costs.  This would bring into question the defined interest of an appropriate allocation of liability.

This decision brings the majority view to one that favors intervention.  This approach will likely encourage the government to seek global settlements of CERCLA matters, provide encouragement for parties to develop settlements that include all the major parties or groups, and provide greater leverage to certain parties or groups of parties in CERCLA settlement negotiations.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

Tags: CERCLA, Environmental Law

• Environmental Law
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SteveK July 7th, 2010

Retired Judge Harriet Derman, who heads our alternative dispute resolution team, was named by Governor Chris Christie to his newly constituted Judicial Advisory Panel.  The mission of the seven person  Panel is to provide the Governor with “independent and objective counsel… regarding the suitability of candidates under consideration for judicial appointment.”  Judge Derman will assist in the vetting of judicial candidates for the trial court.

Tags: ADR, Arbitration

• Alternate Dispute Resolution (ADR) , Mediation , Special Master
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