|
In City of Modesto, et. al. v. The Dow Chemical Co., et. al. (Case Nos. 999345 & 999643, San Francisco Superior Court), Plaintiffs brought suit alleging soil, groundwater and well contamination in Modesto, California due to the disposal of the chlorinated cleaning solvent perchloroethylene ("perc"). Plaintiffs sued perc manufacturers, perc distributors, manufacturers of dry cleaning equipment which used perc and various dry cleaning facilities.
Approximately 40 dry cleaning sites in Modesto, California have been put at issue by this litigation, where Plaintiffs' allege soil, groundwater and/or well contamination stemming from site operations. However, the only out of pocket costs which Plaintiffs have incurred as to any of these sites are investigation costs and the costs of filtering two wells, and Plaintiffs have never been ordered to undertake any remediation actions at any site. As to the four "bellwether" sites selected for the first phase of trial, each is currently either being remediated or investigated by a federal or state agency in cooperation with the property owners of the site, at no cost to and with no involvement of Plaintiffs.
Prior to the trial date of January 18, 2005, Defendant Dow Chemical Company filed a motion in limine seeking to exclude Plaintiffs' remediation expert's cost estimates of remediation as impermissibly speculative. Defendant PPG Industries filed a substantial joinder to this motion, seeking to exclude the majority of Plaintiffs' claimed damages based on conflict preemption under the Comprehensive Environmental Response, Compensation & Liability Act ("CERCLA") and its California equivalent, the Hazardous Substance Account Act ("HSAA" or "California Superfund"). The motion was joined by all defendants.
After two rounds of substantial briefing, on April 11, 2005 the Honorable John E. Munter granted the defense motion in limine on both conflict preemption and speculation grounds. The court agreed with the defense position that the damage claims put at issue by the motion stood as an obstacle, in concept and application, to the accomplishment of Congress' objectives in enacting CERCLA and California Superfund. The court cited numerous bases for its rationale, including that Plaintiffs' expert's remediation schemes equated to a prohibited alteration of the remediation plans the statutes would proscribe, and that Plaintiffs' damage claims threatened to frustrate the statutes' cost allocation and settlement incentives, because defendants who paid Plaintiffs via this litigation would face the prospect of having to pay the regulatory agencies again for the same remedial activities if ordered to do so.
The court also found that Plaintiffs' expert's cost estimates for remediation at each of the four phase I sites were based on impermissible speculation, in large part because Plaintiffs could not predict with any certainty what remediation decisions would be made by the environmental agencies as to the sites, and it would be speculative to suggest that the remediation would require a substantial (or any) contribution of funds by Plaintiffs, especially since none has been required to date. The court also held that it was uncertain whether Plaintiffs would even be able to obtain the legal authority necessary to conduct remediation on much of the property included in its expert's reports, including private property and groundwater.
Judge Munter certified his opinion on this motion under Code of Civil Procedure section 166.1, indicating that he believed there to be a controlling question of law as to which there are substantial grounds for difference of opinion, inviting appellate review. Plaintiffs have filed a writ petition with the court of appeal seeking its review of this matter, and the defendant real parties in interest have just filed an opposition to the writ petition at the court of appeal's request.
Should the ruling on this motion in limine remain the law of the case, the damages which Plaintiffs will be able to claim in this litigation will be significantly reduced, if not decimated. Moreover, if affirmed by the court of appeal, this ruling is positioned to become precedential case law with respect to both CERCLA and HSAA preemption.
Gordon & Rees attorneys Gery Zacher and Kristin Reyna are trial counsel for two defendants in the City of Modesto litigation, American Laundry Machinery, Inc. and Cooper Industries, as successor-in-interest to McGraw-Edison Company.
|
