9th Circuit Revives Decade-Old|Child Poisoning Case Against Navy

     (CN) – A lower court ignored evidence that the U.S. Navy allowed thallium-contaminated soil to blow onto homes and an elementary school at San Diego’s Camp Pendelton, the 9th Circuit ruled Friday, reviving a decade-old lawsuit over the alleged poisoning of a child.

     C. Myers sued the Navy in 2002 on behalf of C.M., a child who lived about 50 feet from a base landfill where workers dumped contaminated soil. C.M. also attended school about 200 feet from the landfill at a base elementary school. In 1999, just after dumping began, the little girl started feeling sick.
     “She suffered, and she continues to suffer, from gastrointestinal distress, peripheral neuropathy (a kind of nerve damage), cognitive deficits, and alopecia (loss of body hair), all of which are known side-effects of exposure to thallium,” according to the ruling. [Parenthesis in original].
     The Navy dumped about 240,000 cubic yards of contaminated soil at the site in 1999, some of which included thallium, a highly toxic substance often employed by murderers in detective fiction.
     According to the ruling, several times during the course of the dumping, nearby residents observed dust blowing off the landfill. However, only one of many samples taken from the site exceeded the safe standard for thallium. Meyers disputed the samples, and argued that the Navy had shirked its duty to control the dust and that it had failed to properly plan and monitor the dumping project.
     After the case “languished” for three years without a decision, U.S. District Court Judge Roger Benitez eventually sided with the Navy, finding that it had acted “reasonably” and that Myers had failed to show that the child’s sickness was caused by the contaminated soil.
      A three-judge panel of the 9th Circuit reversed 2-1 Friday from Pasadena, finding that the lower court had ignored evidence of the Navy’s failures and prematurely considered causation.
      “The district court relied on its findings that the Navy took care to prevent dangerous migration of thallium by having in place adequate safety measures and ensuring that the contractor was actually taking those safety measures, including regular safety meetings and site visits, selecting an experienced remediation contractor, requiring highly qualified people at important positions, and allowing other agencies to participate in the oversight and design of safety precautions,” wrote U.S. District Judge Mark Bennett, sitting on the panel by designation from the Northern District of Iowa. “These findings of lack of foreseeability of harm and reasonableness of the Navy’s conduct, however, are clearly erroneous, in light of evidence of glaring omissions in the Navy’s safety oversight for the … project, which the district court simply ignored.”
     The lower court also considered the wrong question in its ruling, according to Bennett.
     “The proper question in the ‘foreseeability’ inquiry for purposes of determining whether the Navy breached its duty, however, was not whether Myers was exposed to thallium from th … project-a ‘causation’ question that was properly reserved for a later phase of the trial, and on which Myers had not been fully heard at the time that the district court made its findings -but whether it was foreseeable that a person exposed to thallium would suffer the kinds of injury that Myers suffered. Thus, the District Court clearly erred by applying the wrong legal standard in its determination of ‘foreseeability.'”
     Writing in partial dissent, Judge Johnnie Rawlinson accused the majority of considering facts that were not in the record in deciding that the navy had not acted reasonably.
     “The majority opinion translates the District Court’s finding into a histrionic description of the poisonous nature of thallium and a reference to the Navy’s Record of Decision (ROD) to disregard the district court’s finding,” he wrote. “This approach is the antithesis of our charge. Indeed, if there is ‘support in inferences that may be drawn from facts in the record,’ the district court’s finding cannot be clearly erroneous.”

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