Colorado Toxic Torts Lawyer & Attorney : Davis Graham & Stubbs Law Firm : Environmental Torts, Property Damage, Class Action

Often Daubert or similar motions are the key pre-trial motions in environmental toxic tort cases because exclusion of an expert, particularly the plaintiff’s causation or damages expert, provides the basis for a summary judgment in favor of the defendant. Player v. Motiva Enterprises, LLC. 240 Fed. Appx. 513 (3^rd Cir. 2007), is such a case. Plaintiffs owned or formerly owned 27 parcels of residential real estate in Gloucester Township, New Jersey. They claimed that leaks at a nearby gas station contaminated groundwater under their properties. Twenty six of the properties depended upon wells for drinking water. Of those properties, the wells on eighteen properties showed no contamination. Wells on the remaining eight properties showed some VOC contamination but the amounts detected were within the permissible range for drinking water under New Jersey’s ground water Quality Standards. 

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Often, plaintiffs in environmental toxic tort cases seek to recover property damages based on a theory that contamination or other environmental conditions have imposed a “stigma” on the property. Sometimes the property is itself contaminated or formerly contaminated. Other times the property is only in proximity to contamination or the other environmental condition.  The latter situation is often a difficult one for plaintiffs to convince courts to allow.

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In Goodstein v. Continental Casualty Co., No. 05-35805, (9^th Cir. December 3, 2007), a property owner sought reimbursement under his Comprehensive General Liability policy for a discount he provided to purchasers of two contaminated Washington properties. The purchasers did not commit to clean up the properties on their own, but they did agree to be responsible for any cleanup that might be required in the future by government agencies or potential purchasers. Under Washington state law, if Mr. Goodstein had actually cleaned up the properties, his CGL policy would have covered the costs of those cleanups. However, the insurers rejected Mr. Goodstein’s assertion that the price discounts were the functional equivalent of cleanup costs and should be reimbursed under the CGL policy. Mr. Goodstein sued, asserting claims for breach of defense and indemnity duties under the policy. The trial court granted the insurers summary judgment on Mr. Goodstein’s claims. 

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On January 7, 2008, following one of the longest jury trials ever held in Kansas, jurors in a class action property damage lawsuit returned a verdict in favor of defendants BP Corp. North America, Inc., BP America Inc., BP Products North America Inc., Atlantic Richfield Company and BP America Production Company. The litigation concerned a former Amoco oil refinery that operated in Neodesha, Kansas from 1897 until it was dismantled in 1970. Defendants had been conducting a cleanup of the site. Plaintiffs included the City of Neodesha, the local school district, several local businesses, and residents. The plaintiffs claimed that most of the town overlies groundwater contamination from the refinery consisting of petroleum hydrocarbons and metals such as arsenic, lead and mercury.   Plaintiffs’ claims included breach of contract and fraud as well as typical property tort claims. Property valuation experts were: Dr. Louis Wilde, LECG, for the defendants and Dr. John A. Kilpatrick, Greenfield Advisors, for the plaintiffs. 

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