Joseph W. Hovermill

Federal Superfund Litigation – U.S. District Court, District of Rhode Island/U.S. Court of Appeals (1st Circuit): Multiyear litigation tried and decided in separate “phases” (each culminating in a multiweek or multimonth trial) involving different issues and parties in connection with the Centredale Manor Superfund Site located in North Providence, Rhode Island. 

• Superfund Liability Divisibility Defense Trial: Lead defense attorney in two-month trial in case brought by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice. Trial involved over a dozen expert witnesses and over 20 fact witnesses testifying live or by deposition. Emhart Industries, Inc. v. United States Department of the Air Force v. Black & Decker, Inc. (C.A. No. 11-023 S)
• Superfund Remedy Selection Challenge Trial: Lead counsel in a six-week trial against the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) challenging a remedy selected by EPA for the site and defending fine and penalties enforcement claim for failure to comply with administrative order. Emhart Industries, Inc. v. United States Department of the Air Force v. Black & Decker, Inc. (C.A. No. 11-023 S)
• Superfund Remedy Appellate: Lead appellate counsel in a consent decree challenge.  (Consent decree negotiated after successful remedy challenge.) After coordinated briefing and argument with the DOJ, the 1st Circuit affirmed the District Court’s entry of the consent decree. Emhart Industries, Inc., et al. v. United States Department of the Air Force, et al., 988 F.3d 511 (1st Cir. 2021).
• Superfund Contribution Trial: Lead trial attorney in contribution CERCLA liability litigation against 14 companies alleged to have contributed to site contamination. Six-week trial against four remaining defendants resulting in finding of CERCLA liability against all of them. Trial involved over 20 expert witnesses.

Superfund Litigation – Rockets, Fares and Fireworks Superfund Site, Rialto, California: Lead litigation counsel for a client pursued for perchlorate groundwater contamination in the Rialto-Colton Groundwater Basin in San Bernardino County, California. This multi-year litigation involved state judicial and administrative proceedings, as well as federal judicial and administrative proceedings. The parties included the cities of Rialto, California, and Colton, California, the County of San Bernardino, the Santa Anna Regional and State Water Board, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Defense, and over a dozen other alleged PRPs. The team extensively litigated CERCLA liability/divisibility defenses and a variety of corporate successor liability issues for multiple historic entities under the laws of multiple states.

After a court-deferred resolution of successor liability issues for trial, we negotiated a favorable settlement for the client limited to implementation of an interim remedial action, utilizing a trust funded by other PRPs, including the Department of Defense, with continuing cost-sharing by the Department of Defense in capital and O&M costs. The interim action was negotiated with significant limits on scope of remedial action and re-openers and no past or future EPA oversight costs. (City of Colton v. American Promotional Events, et al., USDC, Central District California (5:09-cv-01864-SG-SS)).

National Multi-Purpose Power-Tool Dust Exposure Litigation: Lead national counsel defending manufacturer of multi-purpose power tools through three waves of mass tort litigation asserting claims for exposure to dust containing a variety of allegedly hazardous materials (asbestos, silica, wood and metal dusts) contained in work pieces and materials manufactured by other companies. Developed comprehensive, coordinated assertion of “no legal duty to warn” defense as a variation of evolving “component parts” and “bare metals’ defenses in state and federal claims asserted in multiple jurisdictions over nearly a decade.

This strategy resulted in dozens of dismissals without payment in cases across the country and successful summary judgment decision eliminating litigation in certain jurisdictions and providing a basis for subsequent dismissals without payment in other jurisdictions. (Summary Judgment Decision – Abate v. Advanced Auto Parts, et al., Connecticut Superior Court, Bridgeport (FBT-CV10-6005674))

Plumbing Fixture Manufacturer Asbestos Liability, Indemnity and Successor Liability Litigation: Lead national counsel defended a plumbing fixture manufacturer in connection with asbestos claims brought in multiple jurisdictions around the country. Conducted a forensic product-line investigation that established product defenses for the client on the merits, pursued indemnity claim against a corporate predecessor based on transaction documentation and successfully established an asset purchases defense to future cases (demonstrating direct liability of corporate predecessor). Obtained dismissals without payment on early asbestos claims on the merits.

After unsuccessful indemnity litigation in California State Court with the predecessor, successfully asserted successor liability defense in future cases and obtained summary judgment (opposed by the predecessor) for the client establishing no liability for the client for product line, and direct liability of the predecessor for such claims. (Whelan v. A.O. Smith, et al., Superior Court of New Jersey, Middlesex County (L-7161-12AS))

Federal Securities Fraud Litigation – U.S. District Court, District of Delaware: Lead trial counsel in a federal securities claim arising out of a failure to disclose fees due to financial advisers in connection with the purchase of a publicly traded healthcare information management company. The purchaser was required to reimburse undisclosed financial advisors millions of dollars in fees due as a result of the acquisition. Coordinated claims and parties to access predecessor D&O coverage for officers and a director for failure to disclose financial advisors in representations and warranties for transaction. Favorable settlement reached after successful opposition to motions to dismiss and extensive negotiation involving complex D&O coverage issues. (Stanley Black & Decker v. Gulian, et al., USDC, District of Delaware (1:12-cv-01342))

Successor Liability Defense, Industrial Equipment Manufacturer – Asbestos Litigation: Lead national counsel for an industrial equipment manufacturer sued in multiple asbestos claims in multiple jurisdictions. Conducted a forensic product-line investigation to develop product defenses to the claims on the merits and developed comprehensive and coordinated assertion of the client’s asset purchaser successor liability defense. Thoughtful assertion of defense, after filing, after discovery, by motion or before trial resulted in aggregating track record of dismissals without payment from dozens of cases in most active asbestos dockets nationally. Momentum of accumulated dismissals has diminished new filings for the client and allowed for agreements to dismiss client in new cases, avoiding unnecessary defense expense.