National Mass Torts: 2025 Year in Review

Harris Beach Murtha attorneys Abbie Fuchs, Dan Strecker and Alessandra Ash review and analyze key judicial holdings and legal developments in federal court and tort hot spots across the country that have affected the industry and may shape the years ahead. To assist clients and lawyers to prepare the best defense strategies in these suits, they share potential implications for future cases on these topics:

Plaintiffs Cannot Defeat Federal Removal Jurisdiction by Artful Pleading

A plaintiff’s framing of the complaint does not necessarily control removal; courts must credit the defendant’s well-pled theory of the case when assessing whether the alleged conduct relates to federal work.

In State of Maryland v. 3M Company, No. 24 1218, and State of South Carolina v. 3M Company, No. 24 1270 130 F.4th 380 (4th Cir. 2025), the Fourth Circuit held that, although the plaintiff states purported to limit their remediation claims to per- and polyfluoroalkyl substances (PFAS) from non Aqueous Film-Forming Foam (AFFF) sources, the defendants’ removal allegations plausibly established a nexus between the claims and their federally controlled production of AFFF for the military. The court therefore reversed the remand orders and returned the cases to federal court.

Background

Maryland and South Carolina sued 3M and others for allegedly contaminating waterways through PFAS containing products. PFAS appear in numerous products, including AFFF purchased by the U.S. military under detailed Department of Defense specifications (“MilSpec AFFF”). Although the states brought separate AFFF related actions, the complaints at issue targeted non AFFF PFAS products and expressly disclaimed AFFF related remediation.

Removal and Lower Court Decision

Removal is proper when a defendant plausibly alleges that (1) it acted under a federal officer, (2) it has a colorable federal defense, and (3) the charged conduct was carried out for, or related to, federal authority. The nexus requirement is satisfied where a defendant shows it is being sued for acts done under — or related to — federal direction, consistent with Congress’s intent to ensure federal contractors may defend federal work in a federal forum.

Defendants removed the cases under § 1442(a)(1) based on the government contractor defense, alleging that PFAS from their non AFFF products commingled with PFAS from MilSpec AFFF such that the asserted harms necessarily related to federally directed work. The district courts rejected removal, concluding the states’ disclaimers of liability for AFFF eliminated any federal defense.

Fourth Circuit Reversal

The Fourth Circuit vacated the remand orders. Emphasizing the statute’s purpose and broad construction, the court held that a defendant’s theory in its notice of removal must be credited even when the complaint is cast in “nonfederal” terms. Here, the defendants plausibly alleged PFAS from MilSpec AFFF and non AFFF products commingle such that their sources cannot be distinguished once in waterways. Because the states’ disclaimers could not resolve that factual question, and because MilSpec AFFF could “plausibly” have contributed to at least part of the alleged contamination, the nexus requirement was met.

The court remanded for consideration of the remaining removal elements — whether defendants acted under a federal officer and whether they asserted a colorable federal defense.

SCOTUS Opens Door to Treble Economic Damages Under RICO in Personal Injury Cases

Although enacted to combat organized crime, the Racketeer Influenced and Corrupt Organizations Act (“RICO”) has long been applied more broadly. Civil RICO allows plaintiffs injured by a “pattern of racketeering activity” to recover damages for injuries to “business or property,” including treble damages under 18 U.S.C. § 1964(c). While civil RICO claims are now common in business disputes, their use in personal injury cases has been limited because RICO does not permit recovery for traditional personal injuries such as pain and suffering. The statute’s “business or property” language has generally been understood to restrict claims to economic injuries.

The Supreme Court’s recent decision in Medical Marijuana, Inc. v. Horn, 604 U.S. 593 (2025), may shift that landscape. In a 5–4 decision, the Court held that although RICO does not provide remedies for ordinary personal injuries, § 1964(c) does not bar recovery of economic harms that result from personal injuries.

Because economic damages — most notably lost wages — are frequent components of personal injury claims, Horn may significantly expand civil RICO exposure. Where a personal injury case contains sufficient elements of racketeering, treble damages may now be available, potentially driving increased RICO filings and heightened damages demands.

Background

Before Horn, the federal circuits were split on whether economic loss “derived from” a personal injury could constitute an injury to “business or property.” The Sixth, Seventh, and Eleventh Circuits held such damages were barred; the Ninth Circuit held they were not. The Second Circuit deepened the split when it aligned with the Ninth Circuit and allowed recovery of economic losses tied indirectly to personal injury.

Plaintiff Douglas Horn, a commercial truck driver injured in a car accident, later used Dixie X CBD drops advertised as containing 0% THC. After consuming the product, he failed a random drug test and was fired, losing wages and benefits. Independent testing later confirmed the product contained THC.

Horn sued in the Western District of New York, asserting state law claims and a civil RICO claim. He alleged defendants operated a RICO enterprise that marketed and sold Dixie X using false representations amounting to mail and wire fraud, which directly caused his job loss. The district court granted summary judgment for defendants, holding his lost wages were derivative of the antecedent personal injury (the car accident) and thus not compensable under RICO. The Second Circuit reversed, finding no textual basis to exclude economic losses simply because they stem from a personal injury. The Supreme Court granted certiorari.

The Decision

The Supreme Court addressed whether RICO bars recovery for business or property harms that arise from a personal injury. Justice Barrett, writing for the majority, held that it does not. Interpreting “injured” in § 1964(c) according to its ordinary meaning — “harmed” or “damaged” — the Court concluded the phrase “injured in business or property” limits the type of injury recoverable, not the origin of that injury. While RICO still excludes damages for personal injuries themselves, it does not exclude economic harms that result from them.

The majority emphasized its ruling does not open the floodgates to RICO based personal injury suits, identifying three constraints that will naturally limit such claims:

Direct relationship requirement: Plaintiffs must show a direct causal connection between the racketeering acts and the business/property injury.
Pattern requirement: RICO requires a pattern of racketeering activity, which is rare in ordinary tort cases.
Business or property limitation: Economic losses must still meet the statute’s definitions of “business” or “property” injury—questions the Court expressly declined to resolve here.

Justice Kavanaugh, joined by Chief Justice Roberts and Justice Alito, dissented, arguing that “injury” requires invasion of a business or property right and that personal injury–based losses can never satisfy that definition.

Takeaways

The Court did not decide whether consuming a falsely marketed cannabis product constitutes a personal injury, nor whether lost wages qualify as a business or property injury under RICO. Those questions remain open. But Horn confirms that economic losses arising from personal injuries are not categorically precluded.

As a result, defendants facing personal injury claims may see more RICO allegations in both federal and state actions. Defense strategies may need to adapt, including earlier challenges to speculative racketeering theories, expansion of discovery readiness into areas traditionally irrelevant to personal injury cases (e.g., fraud or money laundering allegations), broader witness preparation, and internal reviews aligned with the “constraints” emphasized in Horn.

Pennsylvania Court Decision Regarding Forum Non Conveniens

The Supreme Court of Pennsylvania’s decision in Tranter v. Z&D Tour Inc., 343 A.3d 1106 (Pa. 2025), meaningfully eases the burden on defendants in this tort hot spot who are seeking dismissal or transfer based on forum non conveniens, curbing plaintiff forum shopping.

Case Background

Following a multi vehicle collision in Westmoreland County, plaintiffs filed suit in Philadelphia County — almost 300 miles from the accident site. Defendants petitioned to transfer the case under forum non conveniens, submitting affidavits from numerous witnesses explaining that travel to Philadelphia would be expensive and disruptive. The Philadelphia Court of Common Pleas granted the transfer.

The Superior Court reversed, holding that transfer requires a finding that the plaintiff’s chosen venue is oppressive or vexatious, or that the witnesses are “key witnesses” under the Petty v. Suburban General Hospital, 525 A.2d 1230 (Pa. 1987), framework. It found no evidence of harassment, and concluded the trial court had not established “key witness” oppressiveness.

Appeal to the Pennsylvania Supreme Court

Defendants argued that Petty’s “key witness” test imposed an unreasonably high burden — requiring both a general statement of the witness’s testimony and proof that the witness was “key” (i.e., relevant and necessary). The Supreme Court agreed and discarded the “key witness” requirement as an excessively high burden.

The Court adopted a new two factor test:

Relevance: Shown by a general statement of the witness’s expected testimony
Hardship: No bright line rule, but the Court identified 100 miles as a meaningful benchmark for distinguishing oppressiveness from mere inconvenience, while emphasizing distance is one factor among many

Applying this standard, the Court held the trial court acted within its discretion in transferring the case, given that most witnesses were over 300 miles from Philadelphia and defendants had adequately demonstrated both relevance and hardship.

The Court rejected plaintiffs’ argument that the availability of remote testimony eliminates hardship. It emphasized Pennsylvania’s civil rules do not authorize routine virtual appearances, and remote testimony is not an adequate substitute for live in court testimony, except in emergencies. Accepting plaintiffs’ rationale, the Court warned, would effectively eliminate the doctrine of forum non conveniens.

Looking Ahead

Tranter represents a substantial win for defendants in Pennsylvania facing strategic forum selection. The decision replaces the stringent Petty “key witness” test with a more practical relevance and hardship analysis, lowering the burden for venue transfer. The Court’s skepticism of remote testimony further strengthens defendants’ ability to challenge forum choices that are disconnected from the underlying dispute or far from witnesses. Defendants should consider forum non conveniens motions, especially when cases are filed in Pennsylvania counties more than 100 miles from the witnesses.

Defense Considerations for Emerging Talc Exposure Claims

Industrial talc defendants have long faced asbestos related litigation, but recent verdicts show plaintiffs expanding theories beyond traditional workplace exposures. New claims now include alleged environmental exposure and consumer hobbyist exposure, significantly widening potential liability and complicating exposure and causation defenses. These developments underscore the need for early risk assessment, robust causation strategies and proactive challenges to novel exposure pathways.

Environmental Talc Exposure

In August 2025, a St. Lawrence County, New York jury awarded $12.25 million in Weaver (Estate of Bishop), marking the first environmental exposure verdict involving talc mining in the United States. The plaintiff alleged the decedent developed mesothelioma from airborne asbestos contaminated talc fibers drifting from a mine he lived near for 20 years. Although the decedent never used asbestos containing products, plaintiff relied on proximity based exposure, lung tissue talc findings and testimony about minimal travel outside the residential area.

The mining defendant disputed asbestos content under regulatory definitions, denied causation and emphasized regulatory compliance. The verdict — $4.5 million for pain and suffering and $7.75 million in punitive damages — signals a willingness by juries to accept non traditional exposure theories without direct product use.

Consumer Hobbyist Exposure

One month later, in LaPointe, a Boston jury awarded $83 million for mesothelioma allegedly caused by asbestos in talc based clay products used in a home ceramics studio from the 1950s to 1980s. Plaintiffs argued the manufacturer knew of asbestos risks in the 1960s but failed to warn. The company contended its products did not contain asbestos or talc and that it reasonably relied on others in the supply chain.

The verdict included $10 million for pain and suffering, $13 million for loss of consortium, and $60 million in punitive damages — the largest asbestos verdict in Massachusetts — demonstrating jury receptiveness to hobbyist level exposure theories.

Defense Strategies

These verdicts demonstrate the substantial exposure and punitive damages risk posed by atypical talc claims. They highlight the need for defendants to:

Rigorously challenge the reliability of plaintiffs’ exposure evidence and product identification theories
Develop credible alternative exposure defenses
Use strong expert testimony to counter expansive causation models
Assert arguments regarding adequate warnings, where applicable
Challenge punitive damages when conduct cannot recur due to modern product reformulations
Pursue early dismissal strategies, such as summary judgment, and evaluate settlement when strategically appropriate

Conclusion

Recent talc verdicts show plaintiffs increasingly advancing broad, unconventional exposure theories — environmental, proximity based and consumer hobbyist. Defendants should prioritize early risk evaluation, robust causation defenses and strategic motion practice to reduce exposure. As plaintiffs continue testing the boundaries of talc liability, proactive and well developed defense planning remains essential.

NYSDEC Soil Background Study Clarifies Background PFAS Conditions

The New York State Department of Environmental Conservation (“DEC”), through its Division of Environmental Remediation, has released its final Rural Soil Background Study for PFAS, evaluating background concentrations of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) in rural soils distant from known sources. The study will help inform future cleanup standards and distinguish diffuse anthropogenic background from site specific releases — an important distinction for PFAS related litigation and defense.

Study Design and Findings

In 2023, DEC collected 548 soil samples from 116 rural properties, analyzing 40 PFAS compounds using EPA Draft Method 1633 under DEC/EPA quality protocols. Key findings from the study include:

PFOS detected in 97 percent of surface samples and PFOA in 76.5 percent
No geographic clustering, suggesting absence of identifiable point source contributions
Concentrations aligned with background levels in other northeastern states
Environmental forensic analyses showed no signatures of localized industrial or site specific releases
PFAS concentrations varied by soil depth, indicating heterogeneous environmental distribution

Proposed Background Concentrations

Using a 95 95 Upper Tolerance Limit (UTL), DEC proposes the following background thresholds for surface soils (0–2 inches):

PFOS: 3.0 µg/kg (ppb)
PFOA: 1.5 µg/kg (ppb)

These values are statistical background thresholds, not health based criteria. DEC plans to consider these concentrations in upcoming rulemaking to revise 6 NYCRR Part 375.

Litigation and Defense Implications

The study provides several potential defenses for PFAS soil contamination claims:

Widespread PFAS detection in remote soils supports the position that low levels of PFAS can reflect background conditions, not site specific releases
The absence of spatial clustering or point source signatures complicates attribution to any particular facility, product or operation
Because the thresholds are not health based, exceedances do not inherently imply risk
Depth based variability underscores the need for site specific evaluations rather than reliance on isolated sampling or general benchmarks

Importantly, DEC does not frame the study as a health assessment and does not address exposure pathways, causation or liability.

Takeaway for Defendants

The Rural PFAS Soil Background Study provides a data driven basis to differentiate background PFAS presence from site related impacts and will be valuable in litigation and regulatory negotiations. As DEC moves to revise Part 375, defendants should track how background values are incorporated into cleanup standards and be prepared to use the study to challenge attribution, causation and the significance of low level detections in soil based PFAS claims.

Appellate Decision Reaffirms New York’s Searching Causation Standard

The First Department’s decision in Lotrean v. 3M Co., 243 A.D.3d 414 (1st Dep’t 2025), is a significant win for toxic tort defendants. It reinforces the causation framework set by the Court of Appeals in Parker v. Mobil Corp., 7 N.Y.3d 434 (2006), and Nemeth v. Brenntag N. Am., 38 N.Y.3d 336 (2022), confirming plaintiffs must present scientifically accepted, quantifiable exposure evidence tied to the specific substance and specific disease at issue.

Parker/Nemeth Causation Standard

Under Parker, plaintiffs must prove general and specific causation using expert methods generally accepted in the scientific community. General causation requires evidence exposure to the specific substance can cause the specific disease. Specific causation requires proof the plaintiff’s exposure reached levels sufficient to cause the disease.

In Parker, the plaintiff’s acute myeloid leukemia (“AML”) claim failed because his expert’s descriptions of benzene exposure as “frequent” or “excessive” were unquantified and unsupported. The Court stressed that while precise measurement may be difficult, experts must still use scientifically accepted quantification methods — such as analyzing exposure intensity, modeling based on work history or comparing exposure to study subjects. Conclusory descriptors and assumptions are insufficient.

In Nemeth, the Court rejected expert testimony that “brief or low level” asbestos exposure from daily talcum powder use could cause mesothelioma because the expert did not quantify what “low level” meant. Together, Parker and Nemeth make clear that plaintiffs must offer quantifiable, scientifically accepted exposure evidence tied to the actual substance in question.

Application in Lotrean

In Lotrean, the plaintiff alleged he developed myelodysplastic syndrome (“MDS”), like AML, a hematopoietic cancer, after more than a decade working in auto body shops and being exposed to solvents containing benzene. The trial court denied defendants’ summary judgment motions, but the First Department reversed.

The court held plaintiffs failed to establish general causation because their experts addressed the relationship between MDS and benzene, not solvents containing benzene. The causation opinion therefore did not address the actual substance at issue.

Plaintiffs’ specific causation theory assumed that each defendant’s product contained 0.1% benzene, but provided no viable evidence to support that assumption. Because their exposure calculations depended entirely on that unsupported figure, plaintiffs lacked evidence the exposure levels were sufficient to cause MDS.

The First Department’s analysis directly mirrors Parker/Nemeth: expert opinions must quantify exposure and must be tied to the actual product, not merely one of its components.

Strategy Moving Forward

Lotrean strengthens defendants’ ability to defeat toxic tort claims lacking scientifically supported exposure evidence. Plaintiffs must now:

Link the alleged disease to the specific substance, not just a component; and
Provide quantifiable exposure levels based on accepted methodology

Expert opinions built on assumptions, generalizations or non specific literature continue to be inadequate. Defendants should rely on Parker, Nemeth, and now Lotrean, to aggressively challenge causation at the summary judgment stage. By demanding quantification, attacking unsupported assumptions, and scrutinizing expert methods, defendants can position themselves to dismiss weak claims before trial.

California Appellate Court Reinforces Limits on “Reptile Theory” and Golden Rule Tactics

A recent California appellate decision will strengthen efforts by defendants in this tort hot spot who seek to bar plaintiffs from using fear-based arguments to influence juries and secure unjustified and higher verdicts. In Allen v. Patel, 117 Cal.App.5th 432 (2025), the Fourth Appellate District upheld the lower court’s new trial order based on pervasive attorney misconduct during closing arguments. The decision adds to the growing judicial consensus rejecting reptile theory and golden rule tactics.

Decision Overview

In Allen, a jury awarded more than $1 million to a hotel guest who alleged she was assaulted during an eviction dispute. The trial court granted a new trial after finding plaintiff’s counsel repeatedly ignored pretrial orders barring reptile theory themes and golden rule arguments. The appellate court affirmed, concluding the misconduct was pervasive and prejudicial.

The court reiterated that reptile theory misconduct occurs when counsel urges jurors to “protect” the community or prevent future harm — instead of applying the applicable legal standards. Plaintiff’s counsel repeatedly invited jurors to “defend” or “champion” the community, improperly encouraging punishment rather than fact finding.

The court also held that counsel violated the golden rule prohibition by asking jurors to imagine what compensation they would accept for loss of dignity or personal harm, improperly inviting them to place themselves in the plaintiff’s position. Additional misconduct included insinuations that a defense verdict would endorse “rule breaking,” improperly attacking defense counsel’s integrity.

Broader Significance

Although grounded in California law, the opinion aligns with authority nationwide rejecting arguments inviting jurors to rely on fear, emotion or community protection motives rather than legal standards. Courts increasingly scrutinize reptile theory tactics — especially where pretrial orders expressly bar such arguments — and continue to give substantial deference to trial courts’ assessments of attorney misconduct and resulting prejudice.

Practice Implications for Defendants

The decision reinforces several practical considerations for defense counsel:

Pretrial motions in limine targeting reptile theory and golden rule tactics help shape the trial record
Timely objections during openings and closings preserve error and support post trial remedies
Significant verdicts remain reversible where improper advocacy permeates trial proceedings
Improper attacks on opposing counsel risk reversal and should be promptly challenged

Click here for a printable version of this advisory.

Harris Beach Murtha’s Mass Torts and Industry-Wide Litigation Practice Group and its Product Liability and Comprehensive General Liability Practice Group track critical court cases throughout the year to keep clients aware and to be in the best position to litigate cases on their behalf. If you need assistance with defense matters, please reach out to attorney Abbie Eliasberg Fuchs at (212) 313-5408 and afuchs@harrisbeachmurtha.com; attorney Daniel R. Strecker at (212) 912-3513 and dstrecker@harrisbeachmurtha.com; attorney Alessandra G. Ash at (212) 912-3518 and aash@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York state in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains; as well as in Boston, Massachusetts, and Newark, New Jersey.