The trial against Olin Corp. ended Thursday with the plaintiffs’
lawyer imploring the jury to send a message that the company must
pay for contaminating San Martin’s groundwater with
perchlorate.
San Jose – The trial against Olin Corp. ended Thursday with the plaintiffs’ lawyer imploring the jury to send a message that the company must pay for contaminating San Martin’s groundwater with perchlorate.
“How dare they pollute the groundwater? How dare they tell these people it’s OK to drink the water? How dare they attack families who don’t want to give this water to their children?” attorney Colin Pearce asked the jury. “Set the record straight. Do the right thing.”
Pearce’s statement concluded three weeks of evidence and testimony in a case believed to be the first in the nation to test whether companies can be held financially responsible for dumping perchlorate. His clients are four San Martin residents who contend that the discovery of the contamination damaged their property values and caused irreparable psychological stress.
Pearce asked the jurors to compensate his clients for their losses and award punitive damages. The jury will begin deliberating today.
As he has throughout the proceedings, Olin’s attorney, Tom Carney, belittled their claims Thursday, arguing to the nine-member federal jury that San Martin home values have risen steeply over the last two years and claiming that the plaintiffs have refused to exploit new technology that could clean their drinking water.
“They don’t want to know about new technology,” Carney, of the St. Louis firm Husch and Eppenberger, said. “They want to play the litigation lottery and get a bunch of money.”
After a few days of emotional testimony from the homeowners, the trial was one of competing expert opinions on real estate, the efficacy of systems that scrub perchlorate from water and the contaminant’s health effects.
The plaintiffs presented witnesses who claimed that the San Martin housing market has struggled since the 10-mile plume south and east of Olin’s former Morgan Hill road-flare plant shuttered since 1995 was revealed in 2003.
According to a real estate appraiser who testified on their behalf, the homes of the four plaintiffs all lost at least $150,000 in value after the plume was discovered. Teresa Pereira’s home, for example, should be worth about $996,000, but has been valued at $814,000. The home of Tracy Templeton-Smith, which should be valued at about $1.68 million, is worth only $1.37 million.
“Their investments have been compromised, devalued. They’re suspect,” Pearce said.
But Olin countered with a witness who said the average home in San Martin was worth $96,000 more in 2004 than it was in 2003, and Carney pointed out once more to the jury that the Pereiras themselves listed their home value as $990,000 when they attempted to refinance it earlier this year.
The plaintiffs have not made any health claims – of the four plaintiffs, only Pereira’s well has tested above the state’s health goal of 6 parts per billion – but their emotional distress charges rest heavily on their belief that perchlorate, which has been shown to inhibit thyroid activity, is so dangerous that they can no longer drink their water or use it to raise crops or animals.
“Olin decided to use the drinking water supply as a waste receptacle. Because of the pollution, the families we represent can no longer enjoy their homes,” Pearce said. “Olin has to pay for this damage to our clients.”
But to be successful, the plaintiffs had to convince the jury that Olin was negligent in its treatment of perchlorate. According to testimony, Olin operated the Railroad Avenue plant from 1955 to 1987, and in that time burned, buried and poured perchlorate into an evaporation and seepage pit.
Olin presented a string of experts who testified that the company consistently used “state-of-the-art” disposal techniques and could not have known that perchlorate was invading the groundwater because the chemical didn’t become a so-called contaminant of concern until 1997.
“Olin followed all of the regulations at the time,” Carney told the jury “You can’t prove negligence with hindsight. You have to put yourself back in that time.”
Pearce mocked the testimony of environmental consultant Neil Shifrin and defense witnesses who work primarily for the Perchlorate Study Group, which advises the defense industry. He said their opinions amounted to saying that “you’re not breaking the law if you don’t get caught.”
“I call it the Shifrin Doctrine,” he said. “If you can get away with it, you’re not polluting. But why should our clients be at Olin’s mercy because they made the economic decision to save a few bucks?”
The perchlorate was discovered during a routine environmental analysis at the factory site in 2000, when Olin tried to sell the land. It wasn’t revealed to the public until 2003. Since then, Olin has been cleaning the site and providing bottled water to residents whose well water tests at levels above 4 parts per billion for perchlorate.
Thursday, a panel of scientists convened by the California Environmental Protection Agency, declined to place perchlorate on the state’s Proposition 65 list of toxic chemicals known to cause cancer and birth defects. The panel did not declare perchlorate to be safe, but said that it has not been “clearly shown” that it causes “reproductive toxicity.”
State officials said the decision will not affect the central Coast Regional Water Resources Control Board’s ability to direct Olin’s cleanup efforts. Earlier this year, the regional board gave Olin until next June to develop a plan to clean the groundwater basin. Carney described his client as a “good corporate citizen,” but regional board engineer David Athey testified during the trial that the company has a mixed record of cooperating with the board’s orders.
“Olin is not being a good corporate citizen,” Pearce said. “Everything they’ve done is based on an order or a request from the regional board.”
Pearce, of San Francisco’s Duane Morris, represents about 120 clients in all. Their claims are up in the air pending the outcome of this case. Another 160 San Martin homeowners, represented by Richard Alexander, of Alexander Hawes and Audet in San Jose, are on the verge of settling their claims.
