Lawsuit Linking Child Cancer to Aerospace Plant Hangs in the Balance


(CN) — The family of a woman who developed a brain tumor as a teenager is fighting in the 11th Circuit to resurrect their claims that the fatal cancer was caused by exposure to radioactive compounds from a Pratt & Whitney plant near her childhood home.​

Cynthia Santiago was diagnosed with brain cancer in 2009 at the age of 13 while living in a South Florida community known as the Acreage. By the time the tumor was found, the community was already in the national spotlight over elevated levels of brain cancer among its youth. ​

Between 2001 and 2009, more than a dozen children purportedly developed brain cancer in the community of less than 40,000 people. A subset of those cases was designated as an official child-cancer cluster by health department officials.​

After the cluster was made public, toxic tort lawsuits flooded Palm Beach County Court, claiming the cancer cases were caused by pollutants that had migrated onto Acreage residential properties from aerospace giant Pratt & Whitney’s plant over the years. Solvents, heavy metals, fuel byproducts, polychlorinated biphenyls and various other chlorinated compounds were among the contaminants fingered as contributors to the cancer cluster.​

Santiago sued Pratt & Whitney in 2014 in the Southern District of Florida, where dozens of Acreage cancer claims have been consolidated. Her lawsuit alleged that in addition to extensive groundwater pollution, the Acreage community was laden with soil contaminated by radioactive materials from the company’s operations. The tainted soil was purportedly used as fill material around her childhood home and other Acreage residences.

Santiago died of complications from her ependymoma cancer at the age of 20. ​

Carrying on her toxic tort claim, her parents Joselyn and Steve were headed towards trial until a federal judge’s 2018 ruling that their case was barred by the Florida statute of limitations. The judge ruled that the Santiago family had only four years from the date of the girl’s cancer diagnosis to pursue the claim. ​

The family’s ability to revive the case is now hinging on a complex legal debate playing out in the 11th Circuit Court of Appeals’ Miami division.​

On Wednesday, the Santiago family’s appellate counsel, Bryan Gowdy from the law firm of Creed & Gowdy, tried to convince the three-judge panel that the lower court applied the wrong statute when determining whether the case was time-barred.​

Gowdy argued that the judge should have applied a federal preemption statute – 42 U.S. Code 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act. ​

The law in part dictates that time-barring rules for a juvenile’s toxic-exposure claim do not start running until the juvenile reaches the age of majority, which is 18 years old in most states including Florida. Under that framework, the filing of Santiago’s lawsuit would have been well within the allowable time period given that she submitted the case right after she turned 18. ​

The law’s wording – including its title phrase “actions under state law” – was one reason the lower court judge balked at applying it, however. The judge determined that the Santiago family’s claims were under federal, not state jurisdiction pursuant to a separate toxic tort law, the Price-Anderson Act, which governs liability in radioactive exposure situations.

In a labyrinthine wrinkle, the Price-Anderson Act directs judges to use state-based statutes of limitations. So the judge’s deeming the lawsuit to be federal led him to apply state time-barring rules.

Among other arguments, Gowdy is claiming the lower court overlooked the context in which the CERCLA section at issue was enacted.​

“Historical context supports our interpretation of these statues. When [the CERCLA section] was enacted, no federal actions existed for injuries caused by hazardous substances, as documented in the 1982 report commissioned by Congress,” Gowdy’s brief states.​

Congress therefore “was not distinguishing between federal and state” lawsuits even though it used the “state action” wording in the law’s text, Gowdy argues.​

Pushing back, Pratt & Whitney’s counsel Andrew MacNally said the plaintiffs’ stance is based on a strained reading of the law. He argues that Gowdy has tried but failed to demonstrate “any ambiguity” in the text.

“Plaintiffs also try to reverse engineer their desired result by arguing that the [Price-Anderson Act] itself incorporates [the CERCLA section]. They do so through two versions of the same argument, both of which rely on flawed, circular logic,” MacNally’s brief argues.​

During a 30-minute stretch of semantic wrangling Wednesday, Gowdy insisted that a lawsuit can “arise under federal law” but still be considered a state-law action subject to the CERCLA section.

“If the substantive rules for decision are governed by state law, if the Florida common law is indistinguishable from the Price-Anderson claim, and if we are looking at the Florida statute of limitations, why then would we exclude a [law] like section 9658 that was expressly adopted to preempt … [state] statute of limitations?” Gowdy reasoned. ​

MacNally countered that the claimants are selectively interpreting federal law to fit their purpose. ​

Chief U.S. Circuit Judge Edward Carnes, a George H.W. Bush appointee, U.S. Circuit Judge Robert Luck, a Donald Trump appointee and Senior U.S. Circuit Judge Stanley Marcus, a Bill Clinton appointee, are fielding the appeal. The Wednesday oral arguments were heard via a teleconference due to a coronavirus-related court closure. ​

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