(CN) --- A Florida man is asking a three-judge panel of the 11th Circuit to revive his lawsuit claiming that his late wife's kidney cancer was caused by industrial runoff from a Pratt & Whitney aerospace plant nearby their marital home in a rural South Florida community.
More than a decade deep into the litigation, Marcos Pinares took his case back to the Miami division of the federal appellate court. He's fighting to keep his lawsuit alive over Pratt & Whitney's alleged contamination of the Acreage community in Palm Beach County.
The Acreage was the site of a highly publicized pediatric brain cancer cluster that was confirmed by the Florida Department of Health in 2009. After the cluster was identified, a string of toxic tort lawsuits flowed into South Florida courts, alleging that pollution from Pratt & Whitney's plant had migrated into the well water of nearby Acreage homes.
Solvents, heavy metals, fuel byproducts, polychlorinated biphenyls and various other compounds were among the contaminants cited as possible contributors to the high pediatric cancer incidence. There were also theories propounded that soil contaminated by radioactive materials from the company’s operations made its way onto residential land.
Pinares and his wife Magaly filed their case in 2009 against Pratt & Whitney, which is now a subsidiary of Raytheon Technologies. Magaly passed away while the litigation was pending.
In 2019, U.S. District Judge Kenneth Marra granted a motion to exclude key testimony from Pinares' expert witness Lawrence Wylie. He found that Wylie's report on the chemicals at issue was deficient and did not show how they could cause cancer at the levels found on the Pinares property.
The judge granted summary judgment for Pratt & Whitney after excluding Wylie and other experts' testimony.
On appeal, Pinares' counsel Jeffrey Haberman tried to convince the panel that Wylie completed a comprehensive review of Magaly's exposure to the chemicals found in her well water: chloroform, bromodichloromethane and methylene chloride.
His brief to the 11th Circuit suggests that Magaly was exposed to several dangerous chemicals that originated from the plant, including polychlorinated dibenzo-p-dioxins , which are highly carcinogenic substances.
"Dr. Wylie did what was required under the law. And [the case] should go to a jury," Haberman told the panel Friday.
U.S. Circuit Judge Robert Luck, a Donald Trump appointee, questioned whether the expert did ground level work in establishing what levels of chloroform and bromodichloromethane are dangerous. He said it wasn't enough to simply establish that there were elevated levels of those chemicals in her well.
"What is the standard to use? What is the appropriate standard to compare it against?" asked Luck.
As noted in Marra’s order in the lower court, Pinares' well water contained trihalomethanes -- the chemical family to which chloroform and bromodichloromethane belong, but they were found at a concentration far below the safety threshold established by the federal government.
The trihalomethane concentration in the well was higher than the natural background level, but lower than the amount typically found in drinking water for nearby cities that use chlorinated disinfectants, which produce trihalomethane compounds as byproducts.
In responding to Luck's line of questions, Haberman suggested that there were many different toxic compounds found in groundwater around the Acreage, and that exposure to all of these substances --- even at mildly increased levels --- caused Magaly's kidney cancer.
"[They] need to be considered in the aggregate because that's the toxic soup that she was exposed to day in and day out," Haberman said.
Raytheon's counsel Daniel McElroy argued that the trihalomethanes in the Pinares' drinking water were found at "miniscule levels."
U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee, pressed McElroy on the wide range of contaminants that she said have been found around the Acreage.
"We've got multiple chemicals that have been associated with the development [and] promotion of cancer that are present in the water. Why isn't that enough?" asked Rosenbaum.
McElroy argued in turn that the Pinares family only presented results for three chemicals in their litigation. The test results do not include levels for dioxin --- the notorious carcinogen --- at the family's home, he said.
At the end of the hearing, Circuit Judge Beverly Martin, a Barack Obama appointee, urged the parties to enter into mediation. She said both sides of the case have shortcomings in their legal arguments.
"Either of you might have a lot to lose," she said.
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