(CN) — A federal appeals court in Miami heard arguments Wednesday over whether a group of homeowners should be compensated after their properties dropped in value because of an aerospace company's mishandling of radioactive material.
The plaintiffs claim their properties in Acreage, a semi-rural residential community in western Palm Beach County, have been or could become contaminated, causing them to suffer a loss of both value and enjoyment of their land.
They sued Raytheon Technologies and Pratt & Whitney Group, the owners of the rocket and aerospace testing and manufacturing plant that sits 5 to 15 miles north of their properties, in 2013 — four years after the Florida Department of Health found that brain and central nervous system tumors had occurred at a statistically significant increased rate among children in Acreage. The cancer cluster was associated with ionizing radiation contaminants, the department said.
A jury found that Pratt & Whitney failed to exercise reasonable care in its handling and disposal of radioactive material on its West Palm Beach campus, but they did not find the company liable for the cancer stigma associated with the Acreage properties.
On appeal to the Eleventh Circuit, the homeowners argued that the trial judge erred by including an element of "negligent transport" in the jury instructions that caused confusion.
The homeowners say the the companies released toxic contaminants into the air, water and soil at the site and in the communities surrounding the plant, and that some of the contaminants migrated to the Acreage through groundwater or soil transport.
“Part of confusion for me," U.S. Circuit Judge Robert Luck said at Wednesday's hearing, "is there were different theories for the negligence claim, that somehow dirt being transported to the remediation facility ended up mixed in at the Acreage.”
The Donald Trump appointee said the claim may not require proof that the materials were dumped at the Acreage property if they were already mishandled at the company’s site.
The homeowners say the lower court created the implication that in order to find Pratt & Whitney was liable, the plaintiffs had to prove that the company failed to exercise reasonable care in the handling of its radioactive materials — and then, separately, that the company failed to exercise reasonable care in the transport of such materials.
"This was a particularly troublesome added burden since the transport was not performed by Pratt & Whitney but by third parties and the court struck plaintiffs’ expert opinion regarding Pratt & Whitney’s obligations to supervise their work and to investigate the means and measures they would use before being selected for the work," the group wrote in its brief to the Eleventh Circuit. "The court’s failure to provide the concurring cause instruction plaintiffs requested only aggravated this confusion."
Representing Raytheon, one of the largest U.S. aerospace companies, attorney Sean Gallagher argued that the lower court's verdict form rightfully required the jury to conclude that Pratt & Whitney caused the cancer cluster in order to award the homeowners damages.
The homeowners also argue that they should have won class certification to assure wide relief for the Acreage community’s loss in property value due to the cancer cluster. They sought to represent all past and current property owners of residential lots, including vacant and improved properties, in Acreage within the relevant time frame.
The group seeks to reverse the lower court's judgment and hold a new trial where their experts are admitted, along with their suggested verdict form for the negligence claim.
Attorney Mara Hatfield of the West Palm Beach firm Searcy Denney Scarola Barnhart & Shipley represented the plaintiffs.
Bill Clinton appointee U.S. Circuit Judge Charles Wilson and the Donald Trump-appointed U.S. Circuit Judge Barbara Lagoa rounded out the circuit judge panel. They did not signal when they intend to issue a ruling.
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