9th Circuit Revives SoCal City’s Water-Contamination Suit

LOS ANGELES (CN) – The Ninth Circuit has ordered a new trial against a Chilean industrial chemical company that the Southern California city of Pomona says contaminated the its water system with fertilizer chemicals.

In June 2015, a federal jury in Los Angeles delivered a verdict for SQM North America Corp., a subsidiary of SQM Industrial S.A., finding the companies could not be held liable for perchlorate pollution found in Pomona’s groundwater.

Perchlorate can be harmful to children, as it disrupts hormones vital to healthy growth and development, and occurs naturally in sodium nitrate. SQM mined sodium nitrate in the Atacama Desert in Chile for its fertilizers, which it exported to the United States for industrial use.

In a Monday ruling, a three-judge Ninth Circuit panel overturned the verdict. The panel found U.S. District Judge Gary Klausner prejudiced the city by barring geochemist Neil Sturchio from testifying about new isotopic fingerprint science and limiting his testimony to an outdated 2011 report.

“We are sympathetic with the district court’s desire to keep this case on a fast track. A civil action may meander through discovery far too slowly and our system benefits when district judges keep the wheels of justice turning by employing effective case management. But there are limits,” Circuit Judge J. Clifford Wallace wrote in a 25-page opinion. “The record demonstrates that the science of stable isotope analysis evolved significantly during this case’s first journey through the appellate system.”

The city argued Klausner prejudiced them by allowing defense witness Dr. Richard Laton to testify about alternative sources of contamination. Klausner had rejected the city’s request to bar Laton’s testimony because it was unreliable and unscientific.

Wallace agreed both decisions prejudiced the city’s case. The panel vacated the court’s judgment and remanded for a new trial.

“On remand, the district court shall allow Dr. Sturchio to update his expert report and testify to the state of stable isotope research up to the present,” Wallace wrote.

He said that the court should also test the “scientific reliability of Dr. Laton’s proposed opinions.”

Pomona stated in a 2010 lawsuit that it had to spend millions of dollars to build a treatment center to strip the chemicals from its public water system. The city said the chemical came from citrus orchards, which seeped into the groundwater and polluted the city’s wells. The city sought $30 million in damages.

The city argued at trial that the perchlorate in Pomona’s groundwater shared the same isotopic fingerprint as the company’s fertilizer. But the city failed to persuade the jury that only SQM, and no other entities, were responsible for the contamination.

Circuit Judges Morgan Christen and Paul Watford joined Wallace on the panel.

SQM’s attorney Bob Smith of Lewis Brisbois declined to comment. The city’s trial attorney Susannah Weaver could not immediately be reached for comment.

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