Neil S. Witkes

Biography:

Neil Witkes is a partner with Manko, Gold, Katcher & Fox LLP. He has a wide range of civil and administrative environmental litigation experience, including class actions, toxic tort claims, insurance coverage suits, defense of agency enforcement actions, citizen suits, challenges to agency action, contract claims, and cost recovery actions. He has represented industrial and commercial entities, as well as real estate developers and closely-held companies, in a variety of environmental litigation matters.

Neil has served as lead counsel in the defense of numerous toxic tort claims arising from alleged exposures to hazardous substances emitted into the ambient air from manufacturing activities and from the release of hazardous substances into drinking water supplies. Reported or published decisions include the following:

• Pohl v. NGK Metals Corp., 2007 Pa. Super. 306, 936 A.2d 43 (Pa. Super. Ct. 2007) (granting summary judgment against plaintiffs in medical monitoring claim upon showing that scientific evidence showed exposure to beryllium emissions did not create a significantly increased risk of contracting a serious latent disease);
• Vitalo v. Cabot Corp., 399 F.3d 536 (3d Cir. 2005) (granting summary judgment because undisputed facts established that plaintiff failed as a matter of law to exercise reasonable diligence to discover his chronic lung condition, and claim was barred by the statute of limitations);
• Sheridan v. Cabot Corp., No. 02-1212, 2003 WL 22999256 (E.D. Pa. 2003) (granting summary judgment because plaintiff diagnosed with lung disease failed to present evidence of impairment associated with that illness), aff'd, No. 03-1984, 113 F. App'x 444, 2004 WL 2360990 (3d Cir. 2004); and
• Wack v. Farmland Indus., Inc., 1999 Pa. Super. 327, 744 A.2d 265 (Pa. Super. Ct. 1999) (granting summary judgment after plaintiff's toxicologist was precluded from testifying about link between ingestion of benzene and decedent's cancer).

Neil has also served as lead counsel in the prosecution of claims under environmental insurance policies to recover costs incurred to remediate environmental contamination. Reported or published decisions include the following:

• UTI Corp. v. Fireman's Fund Ins. Co., 896 F. Supp. 362 (D.N.J. 1995) (holding that insurance company was estopped by its conduct from relying on "sudden and accidental" exception to exclusion to deny coverage for ongoing leak from underground storage tanks); and
• Frazer Exton Dev., L.P. v. Kemper Envtl., Ltd., 2004 WL 1752580 (S.D.N.Y. 2004) (first reported decision holding that environmental "cost cap" policy applied to cost overruns for remedy change), aff'd, 153 F. App'x 31 (2d Cir. 2005) and 2007 WL 756494 (S.D.N.Y. 2007) (entering partial judgment for $5.6 million as ancillary relief to prior declaratory judgment.

In addition, Neil has served as lead counsel in the defense of numerous environmental class actions, including the following:

• Neil defended a former specialty metals manufacturer against class actions filed in state and federal courts seeking medical monitoring from exposure to airborne emissions from manufacturing activities into the ambient air. See Pohl v. NGK Metals Corp., 2003 WL 24207633 (Ct. Com. Pl. Phila. County July 9, 2003) (denying class certification on grounds that individual issues predominate over any issues common to the class), aff'd, 863 A.2d 1239 (Pa. Super. 2004) (Table), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (Table); Anthony v. Small Tube Mfg. Corp., 535 F. Supp. 2d 506 (E.D. Pa. 2007) (class action complaint properly removed to federal court under Class Action Fairness Act, denying petition to remand action to state court).
• Neil defended a public utility against a class action filed in state court seeking testing and medical monitoring as the result of the "threatened release" of mercury during removal of pressure regulators.
• Neil defended an operator of a landfill against a class action filed in state court seeking damages for nuisance and diminution of property value as a result of landfill operations.

Neil has also served as lead counsel in numerous administrative appeals before the Pennsylvania Environmental Hearing Board. Reported or published opinions include the following:

• Florence Township v. Commonwealth of Pennsylvania Dep't of Envtl. Prot. and Waste Mgmt. of Pa., Inc., No. 95-107-MG (Pa. Envtl. Hearing. Bd. July 22, 1997) (approving issuance of solid waste permit for landfill expansion); and
• Township of Florence v. Commonwealth of Pennsylvania Dep't of Envtl. Prot. and Waste Mgmt. of Pa., Inc., No. 96-045-MG (Pa. Envtl. Hearing. Bd. Aug. 26, 1997) (dismissing appeal of air quality plan approval for landfill expansion, finding no evidence of violation of new source review requirements).

Neil has also served as lead counsel in a variety of other environmental and non-environmental litigation matters. Reported or published opinions include the following:

• Perkasie Borough Auth. v. Hilltown Township Water & Sewer Auth., 819 A.2d 597 (Pa. Commw. Ct. 2003) (dismissing mandamus action seeking preliminary injunction to enjoin construction of municipal wastewater treatment plant).
• Waste Mgmt. of Pa., Inc. v. City of York, 910 F. Supp. 1035 (M.D. Pa. 1995) (limiting government’s authority to provide contribution protection to settling defendants under CERCLA).
• Commonwealth Land Title Ins. Co. v. Doe, 395 Pa. Super. 595, 577 A.2d 1358 (1990) (title company entitled to priority over competing title company disputing claims against commingled funds, having acted to preserve rights and fund).

In law school, Neil was a member of the Boston University Law Review from 1980 to 1982, and an editor from 1981 to 1982.

Education:

• Boston University School of Law, J.D., magna cum laude, 1982
• University of Pennsylvania Wharton School, B.A., cum laude, 1979

Memberships:

• Bar admissions in Pennsylvania, New Jersey, Second Circuit Court of Appeals, Third Circuit Court of Appeals, Eastern District of Pennsylvania, Middle District of Pennsylvania, District of New Jersey
• Admitted to practice pro hac vice in the Southern District of New York, District of Connecticut, Delaware Superior Court
• American Bar Association, Litigation Section
• Pennsylvania Bar Association
• Philadelphia Bar Association, Environmental Law Committee
• International Network of Boutique Law Firms