Toxic Tort and Environmental Law Section Case Law Update. Federation of Insurance and Corporate Counsel. March 5, Marco Island, Florida

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1 Federation of Insurance and Corporate Counsel March 5, 2005 Marco Island, Florida Thomas K. Hanekamp Marcos Cancio TRESSLER, SODERSTROM, MALONEY & PRIESS Sears Tower, 22nd Floor 233 South Wacker Drive Chicago, Illinois (312) This update is for general information only and is not intended to give, and should not be relied on for, legal advice in any particular circumstance or fact situation. The reader is advised to consult with an attorney to address any particular situation.

2 Thomas K. Hanekamp 233 South Wacker Drive Sears Tower, 22nd Floor Chicago, Illinois / Fax 312/ J.D., DePaul University College of Law B.A., Indiana University Highest Rating in Martindale-Hubbell Thomas Hanekamp is a partner in the Chicago office of Tressler, Soderstrom, Maloney & Priess. His practice is focused on litigation of complex insurance coverage matters nationwide, including those involving directors' and officers' liability, asbestos, toxic tort and environmental issues. He is also experienced in the areas of regulatory compliance, reinsurance, bad faith, and commercial litigation. Tom is a frequent author and has spoken at numerous seminars addressing such topics as the use of experts in coverage litigation, presenting the corporate witness for deposition, proper investigation of insurance claims, and allocation of continuous loss claims. Tom is a member of the Federation of Defense and Corporate Counsel, the Defense Research Institute, Illinois Association of Defense Trial Counsel and the Federal Trial Bar for the United States District Court for the Northern District of Illinois. He is licensed to practice in Illinois, and has been admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Seventh Circuit, the United States District Court for the Northern District of Illinois, the United States District Court for the Central District of Illinois, the United States District Court for the Western District of Michigan, and the Supreme Court of the State of Illinois. Tom has also been admitted to practice before numerous courts across the United States on a pro hac vice basis. He received his undergraduate degree from Indiana University and his J.D. from DePaul University College of Law.

3 Marcos G. Cancio 233 South Wacker Drive Sears Tower, 22nd Floor Chicago, Illinois / Fax 312/ J.D., Loyola University Chicago School of Law B.A., Indiana University Marcos Cancio is an associate in our Chicago office. He is licensed in Illinois and before the U.S. District Court for the Northern District of Illinois. Marcos' practice is focused on litigation of complex insurance coverage matters. Marcos received his undergraduate degree in Psychology and Criminal Justice from Indiana University. He obtained his law degree from Loyola University Chicago School of Law where he received a CALI Award of Excellence in Transnational Litigation. Marcos competed and received an award for Best Brief at the Loyola Intra-School Moot Court Competition, and was selected to represent Loyola at the National Hispanic Moot Court Competition. Prior to joining the firm, Marcos served as a judicial extern to the Honorable Michael T. Mason of the U.S. District Court for the Northern District of Illinois. Born in San Juan, Puerto Rico, Marcos is a native Spanish speaker and is member of the Chicago Bar Association, Hispanic National Bar Association and the Hispanic Lawyers Association of Illinois.

4 TABLE OF CONTENTS I. INTRODUCTION...1 II. CASE SUMMARIES...1 A. Liability...1 a. Asbestos Jury Verdict Of No Asbestosis Affirmed Because Defendant Provided Evidence That Even Though Plaintiff Was Exposed To Low-Levels Of Asbestos She Did Not Have Asbestosis Stewart v. CSX Transportation Inc., 268 Ga. App. 434, 602 S.E.2d 665 (Ga. App. 2004) Claimant Exposed to Cerawool Was Permanently and Totally Disabled. Moriarty v. Treasurer of the State of Missouri, 141 S.W.3d 69 (Mo. App. 2004) Under Louisiana Comparative Fault Law, Relevant Event was Victim s Death In Asbestos Wrongful Death Action. Landry v. Avondale Industries, Inc., et al., 877 So. 2d 970 (La. 2004) Welding Rod Manufacturer Held Liable for Negligently Exposing Worker to Asbestos. Yencho v. A.W. Chesterton, Inc., et al., No , Pa. Comm. Pls. Philadelphia Co. (May 21, 2004) General Contractor Defense: General Electric Failed to Include Warnings of Asbestos Dangers Product did not Conform to Specifications. Chicano v. General Electric Co., et al, 2004 WL , U.S. Dist. Ct. E.D. Penn. (October 5, 2004) b. Silica...4 Page i

5 6. Silica Supplier Had No Duty to Warn Customers Because Silica Dangers Widely Known. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 47 Tex. Sup. Ct. J (Tex. 2004) Silica Sand Supplier not Strictly Liable Because the Product Underwent a Substantial Change. Haase v. Badger Mining Corp., 682 N.W.2d 389 (Wis. 2004) c. Mold County Was Immune From Suit Because CGL Policy s Exclusion Provided for Non-Waiver of Immunity. Satorre v. New Hanover County Board of Commissioners, 598 S.E.2d 142 (N.C. App. 2004) Institute Of Medicine Study Finds That Mold May Not Be Responsible For a Wide Array Of Illnesses. IOM Committee on Damp Indoor Spaces and Health, Board on Health Promotion and Disease Prevention, Damp Indoor Spaces and Health, (2004), available at #pagetop...6 d. Miscellaneous Defense Expert on Glue Sniffers Allowed to Testify Regarding Toxicology and Exposure to C-13 Solvent. Hatton v. CSX Transportation, Inc., 2004 WL , (Tenn. App. 2004) Wrongful Death Action Borrowing Statute Applied Because the Wrongful Act that Lead to the Death Occurred in a State Other Than Where the Claim was Filed. Mayor v. Ford Motor Co., et al., 2004 WL (Ohio App. 8 Dist. 2004) No Causal Link Between Scrap Metal Suppliers and Toxic Chemical Release at Smelter. Page ii

6 Martin v. Commercial Metals Co., et al., 138 S.W.3d 619 (Tex. App. 2004) New York Toxic Tort Discovery Rule Did Not Apply to Carbon Monoxide Release. Manhattanville College v. Romeo Consulting Engineer, P.C., 5 A.D.3d 637, 774 N.Y.S.2d 542, 2004 N.Y.Slip.Op (N.Y. App. Div. 2004) Doctor s Testimony Regarding Non-Fire Fighting Risk Factors Enough To Rebut Statutory Presumption Regarding Cause of Occupational Heart Disease. Dillon v. Workers Compensation Appeal Board (City of Philadelphia), 853 A.2d 413 (Pa. Commw. 2004) Jury Finds that Butter Flavoring Manufacturer Was Not Liable For Lung Disease Florida Water Quality Assurance Act Does Not Require Proof Of Causation. Aramark Uniform and Career Apparel, Inc. v. Easton, So.2d, 2004 WL (Fla. 2004) Manufacturer of Welding Blanket Had No Duty To Warn Welding Contractor That Blanket May Not Protect Against Fires. Koken v. Auburn Manufacturing, Inc. et al, 2004 WL , Slip Op. (D. Me. 2004) U.S. Supreme Court Held That Company That Voluntarily Cleaned Up Polluted Site Could Not Sue For Contribution Under CERCLA. Cooper Industries, Inc. v. Aviall Services, Inc., S.Ct., 2004 WL (U.S. 2004) B. Coverage a. Allocation Fourth Circuit Adopts Pro Rata Allocation and Imposes One Aggregate Limit To Completed Operations Claims. Page iii

7 In re Wallace & Gale Co., 385 F. 3d 820 (4th Cir. 2004) New Jersey Court Rules On All Sums Allocation, Set-off/Credit, Trigger, Non-Cumulation, and Other Insurance In An Asbestos and Welding Rods Case. Westinghouse Electric Corp. v. American Home Insurance Co., et al., 2004 WL , N.J. Super., App. Div. (July 8, 2004) b. Bankruptcy Bankruptcy Code 105(a) Injunctions Cannot Extend Channeling Injunctions to Non-Debtors When Requirements of 524(g) Were Not Met. In re: Combustion Engineering, Inc., 391 F.3d 190 (3rd Cir. 2004) c. Deductibles New Jersey Supreme Court Holds That Each Triggered Policy s Deductible Must Be Satisfied Before Coverage Becomes Available. Benjamin Moore & Co. v. Aetna Casualty & Surety Co., 843 A.2d 1094 (N.J. 2004) d. Discovery Court Denied Insured s Claim for Discovery of Other Insureds Claim Files Under Colonial Life, But Nonetheless Allowed Insured to Obtain Other Insureds Claim Files. Permanent General Assurance Corp. v. Superior Court of California, 2004 Cal. App (4th Dist. 2004) e. Duty to Defend Ninth Circuit Holds That Insurers Had Duty to Defend Cell Phone Manufacturers Because Alleged Adverse Cellular Reaction/ Dysfunction Was Present Bodily Injury. Page iv

8 Voicestream Wireless Corp. v. Federal Insurance Co., 112 Fed.Appx. 553, 2004 WL (9th Cir. 2004) Insurers Owed Duty to Defend Because Underlying Claims Alleged Damages Because of Bodily Injury. Motorola, Inc. v. Associated Indemnity Corp., 878 So. 2d 824 (La. App. 2004) Insurer Did Not Breach Duty To Defend Home Builder Against Mold Claims. Ramsey v. Lee Builders, Inc., 95 P.3d 1033 (Kan. App. 2004) Business Risk Exclusions Bar Coverage For Faulty Workmanship Allegations. B&T Masonry Construction Co. v. Public Service Mutual Insurance Co., 382 F.3d 36 (1st Cir. 2004) f. Pollution Exlcusion Absolute Pollution Exclusion Barred Coverage for Claims Against the Chicago Housing Authority. Housing Authority Risk Retention Group, Inc., v. Chicago Housing Authority, 378 F.3d 596 (7th Cir. 2004) Lloyds Pollution Exclusion Held Ambiguous. Mahogany Run Condominium Association, Inc. v. Certain Underwriters At Lloyds, 2004 WL (D. Virgin Islands 2004) Pollution Exclusion Did Not Bar Coverage For Contamination Related To Heating Oil. Atlantic Casualty Insurance Co. v. Epstein, 2004 WL (E.D. Pa. 2004) Pollution and Saline Endorsements Provided Coverage Despite Pollution Exclusion. Page v

9 Primrose Operating Co., Cada Operating Inc. v. National American Insurance Co., 382 F.3d 546 (5th Cir. 2004) Pollution Exclusion Only Barred Coverage For Traditional Environmental Claims. Auto-Owners Insurance Co. v. Potter, et al., 105 Fed. Appx. 484, 2004 WL (4th Cir. 2004) Pollution Exclusion Ambiguous As Applied to Asbestos Released Inside a Home. National Grange Mutual Insurance Company v. Caraker, 2004 WL , 37 Conn. L. Rptr. 616 (Conn. Super. 2004) g. Products/Completed Operations Aggregate Fourth Circuit Adopts Pro Rata Allocation and Imposes One Aggregate Limit To Completed Operations Claims. In re Wallace & Gale Co., 385 F. 3d 820 (4th Cir. 2004) h. Trigger Arizona Adopts The Continuous Injury Trigger For Personal Injuries Arising From TCE. Associated Aviation Underwriters v. Wood, et. al, 98 P.3d 572 (Ariz. App. Ct. 2004) III. CONCLUSION Page vi

10 I. INTRODUCTION The purpose of this article is to summarize recent liability and insurance coverage decisions in the toxic tort and environmental fields. There have been several significant rulings in the past 6 months. For example, the U.S. Supreme Court recently ruled in Cooper Industries, Inc. v. Aviall Services, Inc., 2004 WL (U.S. 2004) that a party that voluntarily cleaned up contamination from a site could not seek contribution from other potentially responsible parties under CERCLA. The Wisconsin Supreme Court held that a supplier of raw silica was not strictly liable for silicosis suffered by a worker because the raw silica underwent a substantial change after it left the suppliers control in Haase v. Badger Mining Corp., 682 N.W.2d 389 (Wis. Sup. Ct. 2004). In a case of first impression in Connecticut, National Grange Mutual Insurance Company v. Caraker, 2004 WL , 37 Conn. L. Rptr. 616, (Conn. Super. 2004), the court held that a pollution exclusion was ambiguous with regards to release of asbestos inside a home. The Fourth Circuit adopted pro rata allocation and ruled on the completed operations aggregate issue. In re Wallace & Gale Co., 385 F.3d 820 (4th Cir. 2004). The New Jersey Supreme Court ruled that the deductible for each triggered policy must be satisfied before coverage is available for lead paint claims. Benjamin Moore & Co. v. Aetna Casualty & Surety Co., 843 A.2d 1094 (N.J. 2004). These are only some of the highlights of the recent developments over the past six months. II. CASE SUMMARIES A. Liability a. Asbestos 1. Jury Verdict Of No Asbestosis Affirmed Because Defendant Provided Evidence That Even Though Plaintiff Was Exposed To Low-Levels Of Asbestos She Did Not Have Asbestosis. Stewart v. CSX Transportation Inc., 268 Ga. App. 434, 602 S.E.2d 665 (Ga. App. 2004). Plaintiff was an injured employee who brought suit against her former employer under the Federal Employers Liability Act (FELA). Plaintiff alleged that she inhaled airborne asbestos fibers during her employment and later contracted asbestosis as a result of her employer s negligence. At trial, the former employer presented evidence and testimony from physicians demonstrating both that the plaintiff was exposed to only Page 1

11 low levels of asbestos and that she did not have asbestosis. The jury concluded that the plaintiff had not contracted asbestosis. On appeal, the Georgia Court of Appeals affirmed the jury s verdict, and held that the jury had been presented with ample evidence to support its verdict that, even though there may have been low-level exposure to asbestos, the plaintiff did not have asbestosis. The court also rejected the plaintiff s claim that the trial court should not have excluded her claim for pain and suffering due to the fear that she would develop cancer since fear of cancer damage was predicated upon proof that she had asbestosis. The trial court also properly admitted evidence of airborne asbestos fiber counts under the business records exception to the hearsay rule. The fiber counts were conducted routinely by an independent testing laboratory and did not lack the requisite reliability. 2. Claimant Exposed to Cerawool Was Permanently and Totally Disabled. Moriarty v. Treasurer of the State of Missouri, 141 S.W.3d 69 (Mo. App. 2004). Plaintiff was exposed to Cerawool, a replacement product for asbestos, while working as an employee for Cardinal Environmental Operations, Inc. Plaintiff brought a Workers Compensation claim asserting that he experienced shortness of breath and chronic coughing, allegedly caused by his exposure to Cerawool. The Missouri Labor and Industrial Relations Commission awarded the plaintiff permanent total disability benefits and permanent partial disability benefits for two separate exposures to Cerawool. The employer appealed arguing that the Commission erred in issuing two separate awards for the plaintiff s injuries because the evidence showed that his disability was actually a result of just one injury. The Missouri Court of Appeals held that the plaintiff failed to prove the nature and extent of each separate pending disability claim beyond the fact that his two exposures were work-related and sustained while he was an employee of the same employer. Thus, the Court of Appeals held that the Commission s award of permanent partial disability on the earlier claim was not supported by competent and substantial evidence. However, the Court of Appeals did affirm the Commission s finding that the plaintiff was permanently and totally disabled because testimony was offered that as a result of the plaintiff s exposures to Cerawool he was not employable in the open market. 3. Under Louisiana Comparative Fault Law, Relevant Event was Victim s Death In Asbestos Wrongful Death Action. Landry v. Avondale Industries, Inc., et al., 877 So. 2d 970 (La. 2004). Page 2

12 The wife and children of the decedent brought a wrongful death action against the decedent s former employer and many other distributors and manufacturers of asbestos products seeking damages resulting from his mesothelioma, which he allegedly contracted from exposure to asbestos while at work. One of the defendants filed a motion for summary judgment arguing that the Louisiana Comparative Fault Law applied to the plaintiff s wrongful death claims. The Act provided in pertinent part that the provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective. Although the exposure to asbestos occurred before the Act s effective date, the Louisiana Supreme Court found that the law was applicable to this action. Specifically, the Louisiana Supreme Court explained that the relevant event giving rise to a claim for wrongful death for purposes of applying the comparative fault law was the victim s death. Because the decedent died in 2002, long after the effective date of 1980, the provisions of Louisiana s Comparative Fault Law applied to the wrongful death action. 4. Welding Rod Manufacturer Held Liable for Negligently Exposing Worker to Asbestos. Yencho v. A.W. Chesterton, Inc., et al., No , Pa. Comm. Pls. Philadelphia Co. (May 21, 2004). A Pennsylvania Common Pleas Court jury awarded a former welder $500,000 against two welding rod company manufacturers, Airco and Lincoln Electric Company. The jury found that the manufacturers negligently exposed him to defective products containing asbestos which caused his lung cancer. The jury exonerated other defendants including General Electric, Bendix, and Westinghouse. 5. General Contractor Defense: General Electric Failed to Include Warnings of Asbestos Dangers Product did not Conform to Specifications. Chicano v. General Electric Co., et al, 2004 WL , U.S. Dist. Ct. E.D. Penn. (October 5, 2004). Plaintiff brought suit against General Electric ( GE ) claiming that it failed to warn him of the dangers posed by exposure to the asbestoscontaining materials he worked with as a sheet metal mechanic for the United States Navy. GE moved for summary judgment relying in part on the Government Contractor Defense. Liability for design defects in military equipment cannot be imposed, pursuant to state law, when: 1) the United Page 3

13 States approved reasonably precise specifications; 2) the equipment conformed to those specifications; and, 3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. If a contractor such as GE meets all three prongs, the government contractor defense is established and the defendant manufacturer is immune from liability under state tort law. The court held that there was a genuine issue of material fact with regard to whether GE satisfied the second prong of the test because GE did not include any notes, cautions, warnings, or safety notices regarding the hazards associated with asbestos-containing products. Therefore, the court denied GE s motion for summary judgment. b. Silica 6. Silica Supplier Had No Duty to Warn Customers Because Silica Dangers Widely Known. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 47 Tex. Sup. Ct. J (Tex. 2004). Gomez sued Humble Sand, a supplier of flint products, claiming that he developed silicosis while working as a sandblaster for six years for one of Humble Sand s customers. Humble Sand placed warnings on bags regarding the dangers of inhaling silica dust. At trial, Gomez received a $2 million verdict, which Humble Sand appealed. Humble Sand argued that the danger of inhaling silica was so commonly known throughout the industry that it had no duty to warn its customers. The Supreme Court of Texas agreed, and held that Humble Sand had no duty to warn of the widely known danger of inhaling silica dust. The Supreme Court of Texas reasoned that: When the foreseeable users of a product have special training, a supplier has no duty to warn of risks that should be obvious to them, even if persons without such training would not appreciate the risks. Humble Sand owed no duty to warn its customers, abrasive blasting operators, that inhaling silica dust could be disabling and fatal and that workers had to wear air-fed hoods because that information had been commonly known throughout the industry. 7. Silica Sand Supplier not Strictly Liable Because the Product Underwent a Substantial Change. Haase v. Badger Mining Corp., 682 N.W.2d 389 (Wis. 2004). Page 4

14 The plaintiff was diagnosed with silicosis as a result of exposure to harmful silica particles while employed as a foundry worker for 39 years. The plaintiff sued Badger, a supplier, and respirator manufacturers. This case primarily focused on whether there was a change in the silica sand after leaving Badger s control, which would warrant a dismissal of the strict liability allegations. Both the Circuit Court and the Court of Appeals concluded that Badger had not produced a defective product because the sand it supplied underwent a material change after leaving its control, and would thus not be held strictly liable. The Wisconsin Supreme Court agreed and noted that the very characteristic that made Badger s silica sand dangerous, its respirability, did not arise until the employer fractured the sand into dust during the foundry process. The Court stated, manufacturers or sellers cannot be held strictly liable if the condition of the product substantially changes in a way that is material to the accident after the product leaves their control. The Court explained that substantial and material change is defined as a change in the design, function or character of the product linked to the accident. Ultimately, the Wisconsin Supreme Court held that Badger could not be held strictly liable under Restatement (Second) of Torts 402A because the silica sand it sold underwent a substantial and material change after leaving its possession. c. Mold 8. County Was Immune From Suit Because CGL Policy s Exclusion Provided for Non-Waiver of Immunity. Satorre v. New Hanover County Board of Commissioners, 598 S.E.2d 142 (N.C. App. 2004). Employees who worked in a courthouse sued the New Hanover County Board of Commissioners, the County Manager, and the County Health Director, alleging that they were exposed to mold, carbon monoxide, and other chemicals while on the job. The county participated in a risk pool administered by the North Carolina Counties Liabilities and Property Insurance Fund ( Fund ), which issued a general package insurance policy containing a number of separate coverages for the county, including general liability and environmental impairment liability (EIL). The county filed a motion for summary judgment arguing that it would be immune from plaintiffs claims under the doctrine of sovereign immunity after the EIL limits were paid. The trial court denied the motion for summary judgment and held that the county was not protected by the doctrine of sovereign immunity. Page 5

15 The North Carolina Appeals Court reversed. The court noted that the county waived sovereign immunity by purchasing liability insurance, but such waiver was only limited to the extent the county was indemnified by the insurance policy. The court held that the public officials liability exclusion in the policy excluded the type of negligence claims alleged by the employees. Therefore, the court concluded that the county retained sovereign immunity from the claims asserted by the employees because the exclusion barred the coverage for those claims. 9. Institute Of Medicine Study Finds That Mold May Not Be Responsible For a Wide Array Of Illnesses. IOM Committee on Damp Indoor Spaces and Health, Board on Health Promotion and Disease Prevention, Damp Indoor Spaces and Health, (2004), available at The study found that there was scientific evidence to link mold (and other factors related to damp conditions) to asthma in people who are sensitive to mold and coughing, wheezing, and other upper respiratory symptoms to otherwise healthy people. However, the report noted that current available evidence on mold and its effects do not support other health ailments that have been attributed to exposure to mold. An exhaustive review of the scientific literature made it clear to us that it can be very hard to tease apart the health effects of exposure to mold from all the other factors that may be influencing health in the typical indoor environment. d. Miscellaneous 10. Defense Expert on Glue Sniffers Allowed to Testify Regarding Toxicology and Exposure to C-13 Solvent. Hatton v. CSX Transportation, Inc., 2004 WL , (Tenn. App. 2004). Plaintiff was a railroad worker who claimed to have suffered neurological injuries, including mood swings and memory problems, as a result of working with solvents used to degrease locomotive parts. At issue was the solvent C-13, a noxious-smelling combination of trichloroethane and perchloroethylene or trichloroethane and mineral spirits used to remove grease from generators, traction motors and other electrical locomotive components. The plaintiff brought suit under the Federal Employers Liability Act ( FELA ) against his employer alleging that he was negligently exposed to toxic chemicals in the workplace. The district court found for the employer, and the plaintiff appealed. One of the issues on appeal was Page 6

16 whether the district court erred in allowing a defense expert to testify on behalf of the employer. The plaintiff argued that the defense expert s experience and expertise did not qualify him to offer the opinions expressed at trial, his opinions were based almost exclusively on a model that was entirely dissimilar to the plaintiff s case, and his testimony failed to meet the standards of Tennessee Rules of Evidence 702 and 703. Additionally, the plaintiff argued that the defense expert never treated anybody that was exposed to the solvents at issue in the case, never published in the area of solvent encephalopathy, and his clinical experience involved only glue and paint sniffers. The Tennessee Court of Appeals affirmed the district court s holding that the expert had ample qualifications to testify. The court considered the expert s qualifications presented by defendant, including the many chapters he had authored in medical text books on toxicological topics, the completion of a medical textbook on brain injury, his many years of clinical experience in treating thousands of people who claimed brain damage as a result of solvent exposure, and his methodology recognized by the American Psychiatric Association developed over thirty years of practice. Ultimately, the Tennessee Court of Appeals affirmed the district court s holding that the defense expert should be allowed to testify on the effects of solvent exposure on the brain. 11. Wrongful Death Action Borrowing Statute Applied Because the Wrongful Act that Lead to the Death Occurred in a State Other Than Where the Claim was Filed. Mayor v. Ford Motor Co., et al., 2004 WL (Ohio App. 8 Dist. 2004). Plaintiff s husband died allegedly as a result of occupational exposure to vinyl chloride in Michigan automobile factories. Plaintiff brought several wrongful death suits in Ohio against various defendants. The trial court granted motions to dismiss in favor of the defendants on statute of limitations grounds, and the plaintiff appealed. On appeal, the plaintiff argued, inter alia, that her wrongful death claim was not time barred because the borrowing provision of the Ohio wrongful death act did not apply, and in the alternative, if the borrowing provision applied, the action was not time barred under Michigan s statute of limitations. The borrowing provision directed Ohio courts to apply the statute of limitations of another state in circumstances where the particular wrongful act in question was committed in a state other than Ohio. The Ohio Court of Appeals held that since the injury occurred in Michigan where the decedent was employed, the Ohio Wrongful Death Act borrowing provision applied. The plaintiff s claims were thus governed by the Michigan wrongful death statutes. The Court of Appeals affirmed Page 7

17 the dismissal of the plaintiff s action holding that the complaint was not timely filed under Michigan s statute of limitations (eight years after plaintiff s husband s death), and that Michigan s discovery rule did not apply. 12. No Causal Link Between Scrap Metal Suppliers and Toxic Chemical Release at Smelter. Martin v. Commercial Metals Co., et al., 138 S.W.3d 619 (Tex. App. 2004). Plaintiff alleged that he was injured from soot, gas, and other toxic substances released from a smelter that recovered lead from scrap metals. The various defendants were suppliers of raw materials -- scrap metal containing lead -- to the smelter. Plaintiff s claims were dismissed by the district court, which held that the claims were barred by both the statute of limitations and the fact that the plaintiff did not establish the necessary causal connection between the defendants conduct and his injuries. The Texas Court of Appeals held that to establish the necessary causal connection, the plaintiff had to show that there was a causal link between selling scrap metal to the smelter s operators and the release of toxic byproducts into the environment. Here, the plaintiff relied on the consent decree under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) as evidence of causation. However, the Court of Appeals found this reliance to be misplaced because CERCLA was directed toward the unique ends of clean up, and its standards were very different from the standard of common law negligence in Texas. The Court of Appeals further reasoned that the mere selling of raw materials was not the kind of control necessary to establish a causal connection between the supplier and the emission of toxic materials. Thus, the Court of Appeals affirmed the district court s decision in holding that the sale of the scrap metal did no more than furnish a condition that made the injury possible, which was insufficient to establish cause in fact. 13. New York Toxic Tort Discovery Rule Did Not Apply to Carbon Monoxide Release. Manhattanville College v. Romeo Consulting Engineer, P.C., 5 A.D.3d 637, 774 N.Y.S.2d 542, 2004 N.Y.Slip.Op (N.Y. App. Div. 2004). In 1991, Defendant replaced Manhattanville College s central steam heating system with decentralized systems made up of 42 boilers and hot water heaters. In 1999, a release of carbon monoxide in a college dormitory resulted in an evacuation and the hospitalization of two students Page 8

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