Alabamans Fight 11th Circuit on Water-Contamination Deal

ATLANTA (CN) – Unhappy with the $5 million that Daikin NA will pay to settle contaminated-water claims, 300 Alabamans pushed the 11th Circuit on Thursday to make the fluorochemical company pay for future damages.

“Daikin operates plants right there on the back side of the Tennessee River … as far as I know it’s still releasing chemicals today,” said Will Lattimore, an attorney at Gathings Law who represents customers of the West Morgan East Lawrence Water Authority.

“The people who don’t have cancer yet suffer mental anguish,” Lattimore added. “This is an inherently individual injury.”

Lattimore’s clients brought their appeal to the federal appeals court in Atlanta last year after a federal judge approved Daikin’s settlement.

U.S. Circuit Judge Charles Wilson, one of three jurists on the panel, grilled Lattimore on his argument.

“The District Court said the settlement was fair, reasonable and adequate,” Wilson said. “Clients are getting clean water now and some damages. The District Court said this was a reasonable compromise … you have to prove there was an error of judgment.”

Wilson noted that the class has a new filtration system in place, clean water, and has been compensated for the time when the affected people couldn’t drink the water in Decatur because it was contaminated.

Representing the West Morgan East Water Authority, meanwhile, attorney Lee Patterson, defended the trial court’s approval of the settlement.

“This settlement in no way releases any personal injury claims,” said Patterson,  of the firm Friedman, Dazzio, Zulanas, and Bowling in Birmingham.

“With respect to mental anguish, under Alabama law, there is no right to recover under fear of future injury,” Patterson added.

Patterson also noted that related claims against 3M remain pending. “We have 30 million pages of documents in relation to this case, we’ve done four sampling events at the river, two trips to Minnesota to depose 3M employees,” Patterson said. “In no way has the litigation ended.”

Representing the industrial company, attorney Robert Shaughnessy said that there is no need to redo the settlement for anguish claims since the settlement already includes “an express carveout for future injuries that have a whole range of remedies.”

Shaughnessy also argued that Daikin was responsible only for 5 percent of the water chemicals in the contaminated water.

Wilson pressed Lattimore’s co-counsel, Lloyd Gathings, on rebuttal about the relief they are seeking.

“Is the class saying Daikin needs to cough up more than $5 million?” Wilson asked.

“They didn’t give us any recovery for mental anguish and didn’t give us the procedural protection of an opt-out,” Gathings argued. “We did not get the procedural protections we need.”

Gathings emphasized the stakes at issue in an interview after the hearing. “What they’ve been going through,” Gathings said of his clients, “is they wonder what day they’ll be diagnosed with the cancer from this. They’re always living on the edge of deceit about whether or not they’ll be the next one who comes down with cancer. And they will have to undergo that for a number of years.”

Gathings said he felt the court was “definitely leaning” toward his clients, but it’s “hard to tell from an argument.”

“We were pleased the way the argument went,” Gathings said. “What we’re looking for is procedural protections for our clients. If they think it’s an unfair settlement, then we can opt them out and let them deal with their individual cases.”

Shaughnessy did not respond to request for comment.

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