Environmental Law Insight - Updates and Analysis from Taft's Environmental Trial Lawyers

The Vermont Supreme Court upheld summary judgment in favor of defendants, including Goodyear, in a toxic tort lawsuit in which a 49 year-old plaintiff alleged he contracted non-Hodgkins lymphoma from his exposure during years of childhood play on a ballfield allegedly contaminated with benzene.  Blanchard v. Goodyear Tire & Rubber Co., 2011 Vt. 85 (August 5, 2011). 

The plaintiff relied on three sources of evidence to claim that there was a genuine issue of material fact: (i) statements by the plaintiff and his boyhood friends that they played ball on the field in question, (ii) the report and deposition of Goodyear’s environmental expert listing benzene as a contaminant that could have been released by Goodyear’s plant to stormwater that passed through a gully at the ballfield, and (iii) the testimony of two experts: an epidemiologist who testified that benzene exposure is associated with non-Hodgkin’s lymphoma, and a neuro-oncologist who testified that plaintiff’s cancer was not caused by an immunodeficiency disorder. 

The court concluded that all of plaintiff’s evidence “falls well short of what plaintiff would be required to show in order to prevail in a jury trial,” and found that causation was “speculative.”  Plaintiff’s argument that the causation evidence was sufficient to present to a jury was rejected because the epidemiologist’s testimony amounted to “general causation”, and was therefore insufficient, particularly since plaintiff offered no evidence of the extent of benzene exposure, if any. 

The court likewise rejected the oncologist’s testimony that excluded one cause (immunological disorder) as evidence that the claimed benzene exposure caused the cancer.

Many states provide governmental entities immunity from tort liability under certain circumstances.  The Indiana Court of Appeals recently issued a decision instructive on when such immunity may exist in the context of negligence claims against municipal and sanitary sewer districts. Read about the lessons learned in an article I recently published.

In a recent decision, the Seventh Circuit Court of Appeals provided insurance companies doing business in Indiana with guidance on how to draft pollution exclusion clauses—provisions typically included in commercial general liability (“CGL”) policies that seek to exclude coverage for claims based on environmental contamination. Indiana is known for the tough standards it imposes on insurance companies with respect to withholding coverage based on policy exclusions. Since the Indiana Supreme Court’s 1996 decision in American States Insurance Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996), Indiana courts will not exclude coverage based on pollution exclusion clauses unless the language of the insurance policy explicitly excludes the “pollutant” at issue. If the policy language is vague as to whether the pollutant is included, then the pollution exclusion clause does not apply. In West Bend Mutual Insurance Company v. United States Fidelity and Guaranty Company, et al., 598 F.3d 918 (7th Cir. 2010), the Seventh Circuit Court of Appeals confirmed that clear and unambiguous language in pollution exclusion clauses is necessary in order to bar coverage for environmental contamination claims.

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