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Court Revives Tainted-Groundwater Case

By William Vogeler, Esq. on August 11, 2017 | Last updated on March 21, 2019

Where was Erin Brockovich when this happened?

A Chilean chemical company was contaminating the water in Southern California for years, according to a lawsuit filed in City of Pomona v. SQM North America Corporation. The city said the company was responsible for harmful fertilizer chemicals in its water system.

A jury didn't think so, but the U.S. Ninth Circuit Court of Appeals vacated their judgment. It's not a Brockovich movie, but it has an interesting plot twist and the story is not over.

Perchlorate Update

The case, filed in 2010, turned on a battle of expert geochemists used at trial in 2015. The city wanted to reopen discovery so that its expert, Dr. Neil Sturchio, could update his opinion that a chemical in the city's water system had come from the Atacama Desert in Chile.

Sturchio, who had submitted his opinion years earlier, wanted to testify about a new methodology for collecting and analyzing perchloate isotopes from groundwater. Perchlorate, a chemical that occurs naturally in sodium nitrate, disrupts hormones vital to healthy growth and development in children.

The judge, however, limited the expert's testimony to his prior research. He also denied the city's motion to limit the company's expert, Dr. Richard Laton, who said perchloate might have come from hundreds of alternative sources.

The jury concluded that the city did not prove its case.

Science Evolved

Remanding the case for a new trial, the Ninth Circuit revived a $31 million lawsuit. The appeals court said the trial judge erroneously limited the city's expert and should have scrutinized the company's expert.

"We are sympathetic with the district court's desire to keep this case on a fast track." Judge J. Clifford Wallace wrote for the court. "A civil action may meander through discovery far too slowly and our system benefits when district judges keep the wheels of justice turning by employing effective case management. But there are limits."

The appeals court said the science of stable isotope analysis had evolved between the time Dr. Sturchio first reported and the time of trial. On remand, the judges said, the expert should be allowed to testify about the latest science.

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