(CN) - Lockheed Martin did not harm New Jersey children who live beside one of their facilities, but the family may have a shot with their property-value claim, a federal judge ruled.
Michael and Ashley Leese had their first child in 2003 shortly after buying a house across the street in Moorestown, N.J., from a research, development, and manufacturing facility owned by the global aerospace and security giants at Lockheed Martin.
The Leeses say their two daughters refused to eat as infants, putting them in the lower 10th percentile for height and weight in their age groups. While those girls struggle academically, the couple's "small and thin" son was found to be "developmentally delayed."
Although the Leeses concede that no medical opinion to date implies that these and other conditions likely stem from exposure to toxic chemicals, the couple sued Lockheed Martin in July 2011, claiming it contaminated their property, damaging their children's health.
After Lockheed Martin removed the suit to federal court, the Leese's neighbors, Jay and Raquel Winkler, joined as plaintiffs.
The plaintiffs later admitted that, when they bought their homes 10 years ago, they knew that the groundwater underneath contained trichloroethylene (TCE), a volatile organic compound often used metal-cleaning. They claimed that they did not learn until 2008, however, that a similar chemical, perchloroethylene (PCE), had allegedly been found in their soil and groundwater.
The couples allege common-law torts as well as violations of New Jersey's Spill Compensation and Control Act and Water Pollution Control Act; the Resource Conservation and Recovery Act; and Comprehensive Environmental Response, Compensation, and Liability Act.
They seek an injunction to remediate their properties, plus monetary damages for the Leese children's injuries and an alleged loss in property value from $533,600 to $285,000.
Chief U.S. District Judge Jerome Simandle recently granted Lockheed Martin partial summary judgment as to the claims for private nuisance, trespass, strict liability and negligence.
"Evidence that [volatile organic compounds] VOCs, in some quantity, can have harmful effects, and that the Leese children suffered ailments and were, or may have been, exposed to some unspecified quantity of TCE and PCE, is an insufficient basis for a reasonable jury to infer causation," Simandle wrote. "The inferential leap from exposure to VOCs at levels below the current screening levels to the ailments alleged - lack of appetite, lethargy, neurological and behavioral issues - is hardly automatic. The specific cause of the Leese children's ailments 'does not fall within the common knowledge of the reasonable juror.' Expert medical testimony was necessary and not supplied by plaintiffs."
The court deferred ruling on the claim that the Leese's property now has "zero value," pending the plaintiffs' submission of a new expert report within 30 days.
"Despite plaintiffs' assertions, the record does not contain any opinions - expert or otherwise - about the current value of the properties, nor any opinion linking a decrease in value to the contamination as opposed to other market factors," Simandle wrote. "Both realtors unequivocally stated that they have not formed an opinion as to the value of the plaintiffs' properties. There simply is no record evidence as to the current values of the properties."
The judge later added: "A reasonable jury could not infer from this existing record that the properties have diminished in value because of the contamination."
Lockheed Martin, headquartered in Bethesda, Md., reported $47.2 billion in sales last year.
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