City Wins Pollution Case, Jury Awards No Damages

LOS ANGELES (CN) – A federal jury agreed on Thursday that fertilizer imported to California in the 1930s and 1940s was responsible for contaminants found in groundwater wells in recent years but did not award damages to the city who sued a North American subsidiary of a Chilean chemical company that manufactured the product.

The city of Pomona, approximately 30 miles east of Los Angeles, sought $30 million in damages from the North American subsidiary of SQM, a Chilean chemical company for sodium nitrate fertilizer used on citrus orchards in the 1930s.

The city claimed several tons of the product were used on orchards in Pomona, contaminating its groundwater with the chemical perchlorate. But defendants denied large amounts of fertilizer would have been available during World War II due to strict rationing of nitrate which was used for munitions.

Perchlorate is often used as a propellant in rocket fuel. If consumed in large amounts, the chemical can cause hyperthyroidism in humans, according to the Centers for Disease Control and Prevention.

The city’s expert witness, geochemist Neil Sturchio from the University of Delaware, said contaminants found in Pomona matched samples taken from the Chilean desert, where SQM mined and manufactured its sodium nitrate.

In 2015, a federal jury found that SQM North America could not be held liable for the contaminants in Pomona’s groundwater wells. But Pomona was given a second chance when the city appealed, and a Ninth Circuit panel found that U.S. District Judge Gary Klausner was prejudiced in barring Sturchio’s testimony on unique isotopic signatures.

In his closing argument, defendant’s attorney Bob Smith, with San Diego-based Lewis Brisbois Bisgaard & Smith, said that at the time SQM was manufacturing its product in the 1930s and 1940s, they could not have been aware of future regulations in California. Perchlorate only became recognized by California as a contaminant in 2006.

Deliberating for just under two hours, the jury reached a verdict that SQM’s sodium nitrate fertilizer was the source of perchlorates in Pomona’s groundwater wells, but the benefits of SQM’s product outweighed its risks when it was used in the 1940s. As a result, the jury did not award damages.

Pomona’s attorney Richard Head, with SL Environmental Law Group, said the jury instruction about the benefit of the fertilizer’s design was confusing.

“This was a clear statement from the jury: the fertilizer did cause the contamination. Pomona did not do it itself,” Head said. “After the last appeal we were able to present all the science and the jury agreed with the city of Pomona.”

As a strict product liability case, the court’s instruction to the jury should not have included language on whether or not the manufacturer had knowledge of a product’s defective nature at the time of sale, Head said.

Alexander Leff, managing partner with SL Environmental Law Group, said lawsuits surrounding asbestos do not take into consideration knowledge of the product’s harm at the time of sale or installation.

Head added, “We will sit down with the city, review their options and come up with a decision on what’s the next step in light of the court’s errors.”

 

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