Dave has more than 35 years of experience in litigation and environmental law. He has first-chaired trials in state and federal courts. He has been responsible for directing and handling litigation in state and federal court on a variety of issues including environmental liability and allocation of responsibility, as well as individual, group and class action toxic tort claims that have included allegations of personal injuries, property damage and the need for medical monitoring. In addition to focusing on environmental and toxic tort matters, during the course of his career Dave has also handled bench and jury trials involving commercial and business litigation; construction litigation; insurance coverage disputes; intellectual property issues; product liability; premises liability; and professional liability.
For the last 30 years, Dave has devoted much of his time almost exclusively to environmental litigation, class action and toxic tort litigation, environmental regulatory issues, and environmental transactional issues. He has filed and defended numerous CERCLA allocation actions involving the government and private parties. A few examples of CERCLA litigation include matters pertaining to contaminated sediment sites on rivers and other waterways, former manufactured gas plant locations, landfills, dry cleaning facilities and drum recycling facilities, as well as private lawsuits and class action lawsuits involving regional groundwater contamination allegedly associated with contamination from industrial facilities for contaminants such as chlorinated solvents, PCBs, dioxins and petroleum products.
In addition to handling CERCLA cases instituted by the government or CERCLA allocation litigation among private parties, Dave has also defended citizen suits under federal statutes such as RCRA, the Clean Water Act and the Clean Air Act for personal injuries, medical monitoring and property damage, and that have been instituted by individuals on their own behalf or by individuals who purport to be representing others in class actions.
Dave has also represented and defended clients on many different types of administrative and regulatory compliance and enforcement matters. A few examples include alleged violations of §404 under the Clean Water Act; alleged violations of Toxic Substances Control Act provisions regarding new substance development and notification; administrative CERCLA allocation matters; administrative enforcement of permitting requirements under the Clean Air Act and the Clean Water Act; corrective action under Resource Conservation and Recovery Act and equivalent state statutes; asbestos abatement; investigation and remediation of industrial facilities; voluntary self-audits and self-reporting to federal and state agencies; National Pollutant Discharge Elimination System permitting; and Underground Injection Control Deep Well permitting.
Dave has also represented sellers and purchasers on real estate transactions and corporate or commercial transactions. He has planned and participated in conducting Phase I and Phase II Environmental Site Assessments and advised clients on the potential environmental liabilities and exposure associated with such transactions. He has also participated in the preparation and drafting of stock purchase agreements, asset purchase agreements and real estate contracts.
Representative Matters
Toxic Torts
Representing a government contractor against claims for personal injury and death as a result of alleged exposure to radioactive waste released as part of the Manhattan Project during the 1940s and 1950s.
Representing a food and beverage manufacturer against claims asserted by neighbors that historic aspects of the manufacturing process have resulted in groundwater contamination and allegedly caused property damage and personal injuries.
Represented several industrial manufacturing facilities against claims asserted by employees alleging exposure to chemicals that were manufactured and sold by the employer or its suppliers. The employees have alleged that exposures to these various chemicals have caused personal injuries and damages.
Represented a major defense contractor in the defense of personal injury and property damage litigation instituted against the company by the neighbors. The plaintiffs who claimed that their private wells and groundwater used for public drinking and consumption was contaminated with TCE and other volatile organic compounds which were allegedly emanating from the plant facility.
Represented a product manufacturer who was included in a lawsuit by over 50 residents whose private drinking water wells were allegedly contaminated by MTBE and benzene. Those neighbors have asserted property damage and personal injury claims.
Represented a professional consulting/engineering firm in litigation instituted against the company as a result of claims made by one of their former clients. The former client alleged that the company had failed to properly perform an investigation and cleanup at a gas station facility after leaking underground storage tanks and soil and groundwater contamination were discovered.
Represented a chemical manufacturing company in lawsuits instituted by one customer's employees. Those employees claimed that they suffered from neurological, respiratory and circulatory problems as a result of being exposed to chemicals that were contained in products which the manufacturer sold to the plaintiffs’ employer. The plaintiffs used the chemicals at their job.
Represented a petrochemical manufacturing company in the defense of toxic tort lawsuits that were filed by residents who lived near a landfill. Those residents claimed that chlorinated solvents and other chemicals leached from the landfill into their drinking water supply and also migrated through the air and soil into their homes. The neighbors claimed that they suffered personal injuries, property damages and needed medical monitoring as a result of being exposed to chemicals which had allegedly escaped from the landfill.
Represented a chemical manufacturer in an action instituted by the residents of a city who have claimed that the municipal water supply has been contaminated by chemicals as a result of historic industrial manufacturing operations by many companies who operate in the area. The claimants instituted a class action on behalf of all residents of the city. They asserted claims for medical monitoring.
Represented a chemical manufacturing company in individual lawsuits and an action that was filed after a chemical release into the air at an oil refinery. The plaintiffs were residents of a nearby town who claimed that they suffered personal injuries, property damage and required medical monitoring as a result of being exposed to a cloud of chemicals that was released from the refinery during the operation of the refinery.
Represented a manufacturer of paint products in a lawsuit by a painter who claimed to have been exposed to benzene that were contained in those products. The plaintiff asserted that he contracted leukemia and died as a result of the exposure.
Represented several manufacturers against neighbors who have claimed injuries as a result of releases of dust and odors into the air at the manufacturing facilities. The neighbors asserted personal injury, property damages and also pursued citizen suit claims for injunctive relief and attorneys’ fees under the Clean Air Act.
Represented and defended several clients against indoor air quality claims asserted by employees who claim to have suffered personal injuries, requiring medical care and medical monitoring, allegedly as a result of exposure to toxic fumes and other chemicals at their workplace.
Represented a manufacturer of industrial adhesive compounds against personal injury claims by a worker who used the adhesive at his job. The worker claimed to have suffered severe permanent personal injuries as a result of exposure to the chemicals that were contained in the adhesive.
Environmental Litigation
Passaic River Litigation: Served as common counsel for approximately 100 third-party defendants in state court litigation by the State of New Jersey, and currently serving as common counsel for approximately 75 defendants in CERCLA cost-recovery action by Occidental in federal court.
Fox River Litigation: Served as counsel for Appleton Coated Pipes on case concerning PCB contamination of river sediment.
Metropolitan Sewer District: Served as counsel for the District in matter concerning sewer upgrades to illegal CSOs and SSOs.
Susan Ball et al. v. Marley Pump Co.: Represented defendant Marley in an action by approximately 50 people who claimed personal injuries, property damages, and medical monitoring as the result of alleged exposure to gasoline. Four bellwether plaintiffs' cases were tried to a jury in Montgomery County, Pennsylvania. Obtained a defense verdict.
FAG v. Midcon: Defended Midcon against CERCLA §113 and §107 claims by FAG Bearings. The case was tried in the U.S. District Court for the Western District of Missouri. The district judge ruled against FAG and in favor of client on all statutory and common law claims. Client also obtained a judgment for over $2 million in attorneys’ fees, costs and expenses due to FAG’s bad faith in the cost recovery litigation.
Represented salt mining clients in the defense of subsidence claims. The claims were instituted against solution mining companies and hard rock mining operations by neighbors who alleged that their surface property rights had been injured as a result of a undermining that resulted in subsidence.
Represented public utility companies in actions instituted against the companies as the result of former manufactured gas plants. These matters have included a close examination of the historic coal gas plant operations and have also focused on successor liability issues since such operations were shut down more than 50 years ago and the liability and responsibility for such operations might have been assumed or transferred to other companies.
Represented clients in several lawsuits concerning historic operations and responsibility for old gasoline service stations and old dry cleaning operations. In addition to standard questions regarding liability and damages, several of these cases have also presented unique questions regarding personal liability for individuals and successor liability.
Represented potentially responsible parties in federal and state CERCLA/Superfund actions in Kansas, Missouri, Wisconsin, Iowa, Oklahoma, Vermont, Illinois, Florida, Utah, Texas, Washington, New Jersey and Louisiana.
Represented clients in litigation against state agencies and private parties regarding leaking underground storage tanks.
Represented clients in environmental insurance coverage litigation. These cases have included coverage for current operations, current lawsuits and historic environmental liabilities.
Defended citizen suit actions instituted by neighbors and public interest groups against corporations. In those cases, the plaintiffs have asserted that clients have violated the Clean Water Act and Clean Air Act and the plaintiffs have sought monetary damages, injunctive relief and attorney’s fees.
Regulatory Compliance
Represented clients against state and federal agencies on Clean Air Act permitting issues and in civil and criminal enforcement actions under the Clean Air Act; Clean Water Act permitting matters including NPDES permits; TSCA and FIFRA compliance and enforcement issues; and EPCRA and other spill reporting statutes.
Assisted clients with participation in voluntary cleanup programs administered by state agencies.
Represented and assisted clients on self-audits and regulatory compliance issues. Helped to perform and supervised self-audits by clients. Also employed state audit privilege statutes and federal self-reporting policies to assist clients with environmental compliance.
Represented clients on corrective action cleanup and closure under RCRA and equivalent state statutes.
Represented and counseled clients on environmental investigation, remediation and allocation projects under RCRA, CERCLA and equivalent state statutes in many states including Missouri, Kansas, Wisconsin, Illinois, California, Florida, Georgia, Virginia, Vermont, New Jersey, Ohio, Indiana, Michigan, Louisiana and Utah.
Represented the operator of a golf course in California in an enforcement action for violation of §404 under the Clean Water Act that was instituted by the EPA, the U.S. Army Corps of Engineers and state and local agencies.
Corporate Transactions
Negotiated water rights acquisitions and transfers.
Advised and assisted clients on drafting agreements and evaluating environmental liabilities and exposure in connection with mergers and acquisitions and real estate transactions.
Assisted clients in commercial transactions, mergers and acquisitions and real estate transactions on issues concerning insurance. Negotiated and contracted with insurance companies and other types of environmental companies to assume some or all responsibility for environmental investigation and clean-up costs.
Publications
David R. Erickson, co-author, Successful Partnering Between Inside and Outside Counsel, Chapter 13, "Communications Methods and Skills," Association of Corporate Counsel (2017-2018).
David R. Erickson, contributor, Kansas, chapter of ABA 50-State Survey on Toxic Exposure Claims (2016).
David R. Erickson, co-author, CERCLA Allocation and Apportionment, 8:2 ABA Superfund and Natural Resource Damages Litigation Committee Newsletter, June 2013.
David R. Erickson, lead author, Responding to a Mass Environmental Disaster, FDCC Quarterly, Spring 2011.
David R. Erickson, co-author, Environmental Liabilities, chapter of Kansas Real Estate Practice & Procedure Handbook, 5th Edition (2009).
David R. Erickson and Justin W. Howard, Fighting for a Lone Pine Order in Complex Toxic Tort Litigation, 57 Federation of Defense & Corporate Counsel Quarterly, Summer 2007.
David R. Erickson, An Overview of Environmental Law: A Guide for General Practitioners, Kansas City Metropolitan Bar Association, June 30, 2006.
David R. Erickson, The Use of Class Action Lawsuits in Environmental and Toxic Tort Law, ABA Tort Trial and Insurance Practice Section 2006 Annual Meeting, May 8, 2006.
David R. Erickson, Toxic Substances, chapter of Missouri Environmental Law, 2002 Supplement (August 2002 and subsequent update, 2006).
David R. Erickson, Working Together to Protect the Environment, Inside the Minds: The Art & Science of Environmental Law, 2004.
David R. Erickson, Contributor, Ex Parte Contacts with Former Employees (A State by State analysis of the Rules in the Fifty States and the District of Columbia contrasted with American Bar Association Model Rule 4.2), American Bar Association Section of Litigation, Environmental Litigation Committee, January 2003.
David R. Erickson, Missouri Environmental Committee Annual Meeting at Lake of the Ozarks, General Meeting Organizer and Panel Moderator on (1) The Use of Technology and Experts in the Courtroom; (2) Panel of State and Federal Environmental Agency Representatives—Current Issues; (3) Panel of Missouri Legislators on Missouri’s Environmental Future (July 2000).
David R. Erickson, Lead Based Paint Regulations: A New Concern for Construction Lawyers, Construction Lawyer, Vol. 18, No. 4 (October, 1998).
David R. Erickson, Toxic Substances, chapter of 1997 Missouri Bar CLE Handbook (1997).
David R. Erickson, Environmental Compliance Audits: Analysis of Current Law, Policy, and Practical Considerations to Best Protect Their Confidentiality, UMKC Law Review, Volume 63, No. 4 (Summer 1995).
David R. Erickson, Deviation from the Negligent Product Design Test–Retroactive Application of Upgraded Safety Standards, Iowa Law Review, Volume 66, No. 1 (October 1980).
Presentations
Clear as Mud: EPA's New Take on Transparency in Science to Support New Regulations, Presentation for Air & Waste Management Association - Midwest (October 10, 2018).
Environmental Breakout: Shifting Sands: A Sediment Case Study on CERCLA Divisibility, Moderator at ABA Section of Litigation Environmental, Mass Torts & Products Liability Litigation Committees' Joint CLE Seminar (February 1, 2014).
Responding to a Mass Environmental Disaster, Presentation at Winter 2011 Federation Of Defense & Corporate Counsel Meeting (February 26-March 4, 2011).
Update On Recent Developments & Trends In Environmental & Toxic Tort Litigation, Presentation at Federation Of Defense & Corporate Counsel Annual Meeting (July 2008).
Update on Class Litigation: Hot Topics in Toxic and Environmental Law, Presentation at ABA Meeting (August 2006).
Mass Torts – Managing Tort Crises on Multiple Fronts as a Legal First Responder, Panelist at ABA Environmental Litigation Committee Meeting (January 7, 2006).
Electronic Discovery, Seminar sponsored by ABA Environmental Litigation Committee. (January 17, 2003, Snowmass, Colorado).
Litigation & Administration Update, Presentation at 2001 Missouri Environmental Conference at the Lake (July 26, 2001).
Ethical Issues — Multiple Representation Waiver Requirements; Past and Current Client Issues; Confidential Issues; Contacting Former Employees, (April 4, 2001).
Problem Solving in Complex/Environmental Litigation: Ethical Issues; Use of Experts; and Allocation, Mediation and Settlement, (April 4, 2001).
Missouri Environmental Committee Annual Meeting at Lake of the Ozarks — General Meeting Organizer and Panel Moderator on: (1) The Use of Technology and Experts in the Courtroom; (2) Panel of State and Federal Environmental Agency Representatives—Current Issues; (3) Panel of Missouri Legislators on Missouri’s Environmental Future (July 2000).
The Use of Environmental Consultants and Attorneys, Presentation at Associated Industries of Missouri's Annual Environmental Meeting (June 2000).
Moot Court Appellate Argument Demonstration, Presentation at Annual Meeting of the Environmental Litigation Subcommittee of the ABA Litigation Committee (March 2000, in Steamboat Springs, Colorado).
Environmental Law Seminar, Sponsored by ContiGroup Companies, Inc./Premium Standard Farms, Inc. (December 14, 1999, in Kansas City, Missouri).
Voluntary Audits, Reporting Compliance Violations, Self-Disclosure Immunity and Penalty Negotiations, Presentation at 1999 Air & Waste Management Association Conference (Fall 1999, in Kansas City, Missouri).
Environmental Issues Affecting the Construction Industry, Seminar sponsored by Association of General Contractors (Fall 1999).
Use of Experts in Environmental Litigation, Seminar sponsored by Black & Veatch (June 29, 1999).
Defending Citizen Suits under the Clean Water Act and the Clean Air Act, Seminar sponsored by the Greater Kansas City Claims Managers Association (April 22, 1999).
Use of Experts in Environmental Litigation, Seminar sponsored by the Environmental and Energy Committee of The Missouri Bar (May 7, 1999).
Current Environmental Regulatory Issues for Utilities, (October 1998).
Co-authored presentation titled Technical Experts & Reports in Complex Litigation, Sponsored by UMKC Law School and KU Law School (June 19 and 27, 1997).
The Intersection of Law and Hydrogeology, Seminar sponsored by the Kansas Section of the American Institute of Hydrogeology and the Association of Engineering Geologists (November 22, 1996, in Topeka, Kansas).
Developing ESA Scope of Work, (December 12, 1995 and April 12, 1996, in Overland Park, Kansas).
Lender Liability in Environmental Matters, Seminar sponsored by National Association of Certified Development Companies, Region VII (August 25, 1994, in Kansas City, Missouri).
Environmental Issues Impacting Real Estate Transactions in Kansas, Seminar sponsored by the National Business Institute (May 4, 1993, in Kansas City, Missouri).
Clean Air Act in Kansas, Seminar sponsored by the Kansas Chamber of Commerce and Industry and B&V Waste Science & Technology (January 19, 1993, in Kansas and January 20, 1993, in Wichita, Kansas).
Former Manufactured Gas Plant Technology Transfer Seminar, Joint presentation with B&V Waste Science & Technology Corporation, Black & Veatch and Blackwell Sanders Peper Martin LLP (May 21, 1992).
Risk & RCRA: Minimizing Your Environmental Liabilities, Joint presentation with B&V Waste Science & Technology Corporation and Black & Veatch (April 21, 1992).