SHB Obtains Defense Verdict in Toxic Tort Trial

At the conclusion of a five-week trial, a jury of eight women and four men delivered a defense verdict in a toxic tort case that involved the claims of four bellwether plaintiffs. Susan Fralick Ball, et al. v. Bayard Pump & Tank Co, et al., in the Court of Common Pleas of Montgomery County, PA, No. 99-06438.

The Shook, Hardy & Bacon team of Partners Dave Erickson and Paul Williams, Of Counsel Joel Mosher, and Associate Seth Miller successfully argued that the claims of four plaintiffs, including cases of autism and acute myelogenous leukemia, were not the result of a 1998 Pennsylvania gas station leak.

The case was brought in 1999 against several defendants on behalf of 49 plaintiffs living in Blue Bell, Pennsylvania. Those original defendants in turn brought several other defendants into the case.

Plaintiffs alleged that constituents of gasoline, especially the BTEX compounds (benzene, toluene, ethyl benzene, and xylene), and MTBE (a gasoline additive), migrated from the Blue Bell Gulf station through the groundwater under their homes, and then fumes from the gasoline entered the homes via soil-vapor intrusion.

Defendants countered that the Pennsylvania Department of Environmental Protection protected human health and the environment. Defendants also contended that no contamination reached the plaintiffs' homes, either directly or through soil-vapor intrusion.

On February 27, 2007, the court adopted the bellwether trial plan, which also involved defendants' reverse bifurcation. The only issues to be tried under the scheduling order were whether the contaminants of concern reached the plaintiffs' property; whether the contaminants of concern entered the plaintiffs' homes/houses; whether exposure to the contaminants of concern caused the personal injuries claimed; whether exposure to the contaminants of concern warranted the plaintiffs' medical monitoring claims; whether exposure to the contaminants of concern caused property damage and property value diminution; and the amount of plaintiffs' damages.

The court informed the jury that at least 13,000 gallons of gasoline were released at the Blue Bell Gulf station. While the release was discovered in May 1998, no one knew exactly when the leak started or how much gasoline leaked.

Plaintiffs' medical expert and toxicologist opined that the plaintiffs' maladies were caused by the BTEX and MTBE exposures and medical monitoring was appropriate. Plaintiffs' real estate appraisal expert opined that their homes lost value. As defendants' experts explained, however, any exposure to gasoline or its constituents was insufficient to cause disease. Defendants also proved that property values in the neighborhood remain strong.