PASADENA, Calif. (CN) — The city of Pomona asked the Ninth Circuit on Wednesday for a new trial against a Chilean industrial chemical company that Pomona insists owes it more than $30 million for contaminating the city’s water system.
In June 2015, a federal jury in Los Angeles ruled for SQM North America Corp., a subsidiary of SQM Industrial S.A., after about an hour of deliberation. The jury found the companies could not be held liable for perchlorate pollution found in Pomona’s groundwater.
Perchlorate is a toxic chemical that can be particularly harmful to children, as it disrupts hormones vital to healthy growth and development. The chemical naturally occurs in sodium nitrate, which SQM mined in the Atacama Desert in Chile for fertilizers, which the company exported to the United States for industrial use.
Pomona said in its initial 2010 complaint that it had to spend millions of dollars to build a treatment center to strip the chemicals from its public water system. It said the source of the pollution was citrus orchards, which polluted city wells and seeped into groundwater.
Though the city argued at trial that the perchlorate in Pomona’s groundwater shared the same isotopic fingerprint as the company’s fertilizer, it could not persuade the jury that only SQM, and not other entities, were responsible for the contamination.
But in an appeal at the Richard H. Chambers Courthouse in Pasadena, the city’s attorney Susannah Weaver asked the panel to vacate the judgment and remand the case for retrial. She said U.S. District Judge Gary Klausner had made several procedural errors.
Weaver said Klausner had prejudiced the city by barring geochemist Neil Sturchio, Ph.D., from testifying about new isotopic fingerprint science.
“That ruling allowed SQM and its experts to present facts and arguments to the jury that simply were not true in 2015,” Weaver said. “Compounding that error, the court permitted SQM’s key expert witness, Dr. [Richard] Laton, to confuse the jury with pure unscientific speculation.”
Klausner had rejected without explanation the city’s attempt to bar the testimony of Laton, who “proffered unreliable litigation-driven theories about alternative sources of the contamination,” the city said in its brief to the Ninth Circuit.
But SQM’s attorney Bob Smith told the court that the jury verdict should stand. In his answering brief, he said the use of sodium nitrate had declined before SQM started importing fertilizer into the area in 1931, and that jurors heard that commercial and industrial uses of sodium nitrate were unrelated to fertilizer use.
The orchards had been “testing clean” for 20 years, Smith told the panel at the morning hearing. A California citrus researcher had testified that he spoke to more than 100 Pomona and Inland Empire growers who said they weren’t using sodium nitrate.
“They used manure. Sodium nitrate was way too expensive and wasn’t particularly good for citrus because they had sodium in the soil. So there was a lot of evidence the jury could use,” Smith said.
Circuit Judge John Wallace voiced concern about the lack of a court hearing to consider the city’s motion to exclude Laton’s testimony and wondered why the court’s one-word denial should not merit reversal.
Smith said Klausner’s order denying the motion was tentative, and that city never made clear to the judge that it wanted to renew its objection.
“There was no request,” Smith said.
During rebuttal, Weaver said the city had asked Klausner if there would be an opportunity for another hearing on the matter, but the judge said he had already decided the issue.
“It wasn’t waived,” Weaver said.
The case has been on appeal at the Ninth Circuit before. Three years ago, the appeals court agreed that Klausner had improperly excluded Sturchio’s expert testimony.
Ninth Circuit Judges Morgan Christen and Paul Watford joined Wallace on the panel.