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Environmental & Toxic Tort Litigation

Lawyers in our Environmental and Toxic Tort Practice focus on the defense of toxic tort personal injury actions, environmental property damage claims, environmental remediations and insurance coverage disputes arising out of environmental or toxic tort matters.

Since the inception of toxic tort litigation, we have been heavily involved in a wide variety of such matters. Beginning in the mid-1970s, we represented Johns Manville Corporation, the largest manufacturer of asbestos products in North America, in all asbestos litigation in eastern Pennsylvania and southern New Jersey. Since the establishment of the Manville Personal Injury Settlement Trust in the late 1980s, we have served as Northeast Region Consulting Counsel for the Trust.
 
Personal Injury & Property Damage Asbestos
In addition, we have represented other major corporations in both personal injury and property damage asbestos matters. We also have defended numerous clients in cases arising from exposure to:

  • TCE
  • PCBs
  • Welding fumes
  • Adhesives
  • Pesticides
  • Epoxies
  • Asphalt fumes
  • Silica
  • Lead paint
  • Toxic dusts
  • Formaldehyde
  • Gasoline
  • Commercial lubricants
  • HVAC contaminants
  • Other allegedly toxic materials

We have actively participated in class action and multi-district litigation in the toxic tort field.
 
In addition, our toxic tort litigation attorneys have handled numerous environmental matters. We have represented a great number of clients in litigation arising out of Superfund landfill clean-ups, private cost recovery actions, soil or ground water contamination, drinking water contamination, leaking underground storage tanks, indoor air pollution (sick building syndrome) and others.
 
In conjunction with our firm's Insurance Coverage and Appellate Advocacy practices, we also represent insurance carriers in insurance coverage matters which arise out of underlying environmental or toxic tort cases and in which a thorough knowledge of the environmental and toxic tort areas is crucial to proper handling of coverage issues.
 
An understandable concern of every client in significant environmental and toxic tort cases is the extent of legal fees and costs. Our firm began as an insurance defense firm, and, although we have expanded our practice areas considerably, we have never lost our sensitivity to our clients' desire to control legal expenses. This is especially true in the environmental and toxic tort areas where multi-party, complex cases make control of expenses all that more important. We always handle cases with a practical, results-oriented approach which balances strong representation of our clients with realistic cost containment.  Not only do we offer a competitive fee structure, but we also work with our clients to develop innovative, alternative approaches to normal file handling which result in considerable savings without sacrificing quality legal representation.

Results

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Dismissal with Prejudice Obtained in Remediation Case Involving Environmental Violations

We won a motion dismissing all claims with prejudice against our clients in a case involving a major remediation project for environmental violations. We filed a motion for summary judgment to dismiss the plaintiff’s complaint based on its failure to provide an affidavit of merit within the prescribed time, and because the agreed upon liability waiver clause precludes litigation against the individual defendants. We argued that public policy recognizes limitation of liability clauses when they are reasonable and when they incentivize the licensed professional to perform. Further, we argued that the affidavit of merit statute’s text and legislative purposes require the affidavit to be served within 60 days (extendable for good cause to 120 days) from the date when the licensed professional files its answer, regardless of whether the pleadings are subsequently amended to name other defendants or assert additional claims. Under New Jersey law, the plaintiff’s failure to provide an affidavit of merit confirmed that their claims must be dismissed with prejudice. The court agreed that: (1) the agreed upon exculpatory waiver clause was reasonable and not against public policy; and (2) the plaintiff’s failure to provide an affidavit of merit was fatal. The court dismissed all claims as to our client and their individual employees with prejudice.

Thought Leadership

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Case Law Alerts

Pennsylvania Supreme Court Rules that Groups Appealing Environmental Permits May Recover Legal Fees from Companies

April 1, 2023

A Pennsylvania Supreme Court decision arising from two separate cases has made it significantly easier for public and environmental groups to be reimbursed for legal fees when they successfully appeal environmental permits. The Supreme Court’s decision reverses a lower court ruling that had placed a major barrier to reimbursement of legal costs for environmental lawsuits brought by non-profits and residents. The case involves the Mariner East pipeline construction and an appeal of the Mariner East pipeline environmental permits, which began six years ago over issues with water quality. Sunoco owns the Mariner East, which carries natural gas liquids across Pennsylvania for export in Philadelphia. The construction of the Mariner East was regulated with permits from the state’s Department of Environmental Protection with two types of permits that addressed erosion and sedimentation and wetland and waterways. Following this recent ruling, members of the public harmed by permits allowing industrial activities, who are able to successfully appeal those permits, are more easily able to get reimbursement of their legal costs. The reimbursement can come not only from the state, who issued the permit, but from the company holding the permits and profiting from the permitted activity. Legal experts, fees, and other costs necessary for these cases can easily reach tens or hundreds of thousands of dollars, and the cases can go on for years or even decades, making appeals like this out of reach for most, absent the ability to recoup costs.    Case Law Alerts, 2nd Quarter, April 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Injury Claims Trends in the U.S. - What’s Up and What’s Down

August 25, 2021

In this article, Matthew S. Schorr addresses claims litigation trends related to climate change, talc, molestation, teflon, business interruption and chronic traumatic encephalopathy.

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Firm Highlights

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

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Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

graphic announcing our 6 2027 Super Lawyers & Rising Stars

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Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars