Pasadena's Ninth Circuit Orders New Trial in Water Pollution Case

Published : Friday, August 11, 2017 | 2:13 PM

The U.S. Court of Appeals for the Ninth Circuit last Monday ordered a new trial for case filed by the City of Pomona against an industrial chemical company for the alleged contamination of its water supply.

The plaintiff, the city of Pomona in Los Angeles County near the Imperial Valley, is seeking at least $32 million in damages against SQM North America Corp., a Chile-based corporation, for allegedly contributing to the contamination of its groundwater.

In an unpublished four-page opinion, Senior Circuit Judge J. Clifford Wallace said the district court abused its discretion by limiting the testimony of one of Pomona’s experts and failing to make sufficient findings before admitting the testimony of one of SQM’s experts.

“These errors, in combination, were prejudicial. Accordingly, we vacate the district court’s judgment and remand for a new trial,” the opinion read.

The court ordered the new trial after Pomona appealed the 2015 decision a seven-day trial in which the jury found SQM not liable for causing perchlorate contamination in Pomona’s water system.

In 2010, Pomona filed a products-liability action against SQM on the allegation that SQM’s importation of perchlorate-containing fertilizer products from the Atacama Desert in Chile, which were used in citrus areas around Pomona’s wells, caused the contamination in Pomona’s water supply. Pomona said it had to construct a special plant to remove the contamination from the groundwater.

In filing the case, Pomona sought to recover from SQM over $32 million in past and future costs associated with investigating and remediating the perchlorate contamination. Pomona’s case progressed towards its trial date in January 2012 which saw the court appearance of several scientific experts.

In 2015, a federal jury sitting in Los Angeles, delivered its verdict of no causation in favor of SQM, finding that the company could not be held liable for perchlorate pollution in the city’s groundwater.

In the opinion, Judge Wallace said U.S. District Judge R. Gary Klausner of the Central District of California erred when he barred Dr. Neil Sturchio, a geochemist retained by the city from amending his original export report to include new scientific evidence that would have linked the company to the contamination.

In the opinion, Wallace said the evidence given by the geochemist should have been considered.

“Pomona’s motion included a sworn declaration from Dr. Sturchio, in which he described the developments that had taken place. Dr. Sturchio explained that “a number of laboratories, other than [his] own, have continued to engage in perchlorate isotopic analysis,” resulting in “additional interlaboratory comparisons that fully verify the methods used and the results obtained in [his] previous research.” Moreover, by 2015, “the database for natural perchlorate samples [had] become larger, and [included] samples from other locations across the US and around the world,” the opinion read.

“Despite these relevant scientific developments, the district court denied Pomona’s motion to reopen discovery and update Dr. Sturchio’s expert report, thus limiting his trial testimony to the scientific world as it existed in 2011,” the opinion added.

In his 2011 expert report, Dr. Sturchio concluded that a substantial majority of the perchlorate in Pomona’s water system had come from the Atacama Desert in Chile.

Dr. Sturchio’s 2011 report was attacked on grounds that the reference database he used was too small, and, that when the 2011 report was composed, Dr. Sturchio’s specific method had not been tested widely and confirmed by other laboratories.

In 2015, Pomona then moved to update Dr. Sturchio’s expert report to make his testimony reflect the current state of knowledge.

“The record demonstrates that the science of stable isotope analysis evolved significantly during this case’s first journey through the appellate system,” the opinion read.

 

 

 

 

 

 

 

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