Groundwater Contamination Litigation: Proving Groundwater - PowerPoint PPT Presentation

Presenting a live 90 ‐ minute webinar with interactive Q&A Groundwater Contamination Litigation: Proving Groundwater Contamination Litigation: Proving And Defending Against Liability for Clean ‐ Up Costs Demonstrating Nexus, Causation and Injury to Recover Damages TUES DAY, NOVEMBER 15, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f R. Trent Taylor, Partner, McGuireWoods , Richmond, Va. S hawn M. Collins, Partner, The Collins Law Firm , Naperville, Ill. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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Groundw ater Groundw ater Contam ination Litigation: Contam ination Litigation: Contam ination Litigation: Contam ination Litigation: Proving Liability For Proving Liability For Cl Cl Clean Clean- -Up Costs U C U C Up Costs t t Shawn M. Collins Shawn M. Collins Partner – The Collins Law Firm November 2011 Strafford Publications, Inc.

 Who am I?  Why do I do this  Why do I do this type of work? Shawn M Collins Shawn M. Collins Partner The Collins Law Firm smc@collinslaw.com www.collinslaw.com (630) 527-1595 Groundwater Contamination Litigation 6

Federal and State Regulatory Federal and State Regulatory Federal and State Regulatory Federal and State Regulatory Structures Structures  RCRA  Resource Conservation and Recovery Act , 42 U.S.C. §6921 et seq.  RCRA Citizens Suit provision: 42 U.S.C. §6972  CERCLA  Comprehensive Environmental Response Compensation and  Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.  Illinois Groundwater Protection Act  Chapter 415 Environmental Safety:  Chapter 415 Environmental Safety: 415 ILCS 55/ 1 et seq. Groundwater Contamination Litigation 7

I nitial Case Assessm ent: Plaintiff’s I nitial Case Assessm ent: Plaintiff’s Side Side  Are you ready for the risk?  Will there be a fight about source?  Can the source pay for clean-up & damages?  Do you have great experts?  Do you have great lead  Do you have great lead plaintiffs? Groundwater Contamination Litigation 8

The Role of the EPA The Role of the EPA The Role of the EPA The Role of the EPA  Whose side are they on?  Whose side are they on?  Are they doing their job?  Are they doing their job?  Should you pick a fight with  Should you pick a fight with them? Groundwater Contamination Litigation 9

Recent Litigation and Trends Recent Litigation and Trends Recent Litigation and Trends Recent Litigation and Trends  $1.5 Billion verdict 1  D  Don’t let it fool you ’t l t it f l 1. July 2011: Allison, Et Al Vs Exxonmobil Corp, Et Al , Circuit Court for Baltimore County - Civil System, No. 03C07003809 Groundwater Contamination Litigation 10

Strategies for Proving Liability Strategies for Proving Liability Strategies for Proving Liability Strategies for Proving Liability  Ways to prove source (the “of course” test)  Ways to prove source (the of course test)  Getting closest to the truth: documents  What did they do when they found out?  De-mystifying the science Groundwater Contamination Litigation 11

The Most I m portant Lessons I ’ve The Most I m portant Lessons I ’ve p learned learned  “You’ll never regret the case you turn down”  You need to like your client  You need to like your client  Read every document yourself  Get control of the documents  Beware the role of emotions Groundwater Contamination Litigation 12

Groundwater Contamination Litigation: Proving And Defending g g g Against Liability for Clean-Up Costs Shawn M. Collins – The Collins Law Firm R. Trent Taylor – McGuireWoods LLP www.mcguirewoods.com

Who am I? • Trent Taylor focuses on defending complex toxic tort and products liability cases. His experience includes representing clients in p p g class actions, MDL coordinated proceedings, nationwide mass tort litigation, and appellate cases in the substantive areas of toxic torts. He defends cases involving complex scientific and medical issues, and p , has concentrated in the defense of novel claims brought by plaintiffs, including public nuisance, civil conspiracy, unjust enrichment, and deceptive trade practices. He is a frequent commentator on legal q g issues, has been quoted by the New York Times , Wall Street Journal , American Lawyer , the National Law Journal , and numerous influential legal blogs, among R. Trent Taylor others, and was interviewed on NPR's "All , McGuireWoods LLP McGuireWoods LLP Things Considered" on June 8, 2010, to One James Center discuss appellate issues. He is currently 901 East Cary Street authoring a treatise on nuisance and trespass litigation that will be published in 2012. Richmond, VA 23219-4030 http://www.cap- p p 804.775.1182 (Direct Line) press.com/books/isbn/9781594607714/Nuis 804.225.5409 (Direct FAX) ance+and+Trespass+Law rtaylor@mcguirewoods.com McGuireWoods LLP | 14 http://www.mcguirewoods.com CONFIDENTIAL

Common Law McGuireWoods LLP | 15 CONFIDENTIAL

Public Nuisance • “An offense against, or interference with the exercise of rights common to the public.” p McGuireWoods LLP | 16 CONFIDENTIAL

Public Nuisance • “the interference • the interference must be both substantial and unreasonable ” l • “it is ‘substantial ’ if it causes significant causes significant harm and ‘unreasonable’ if its social utility is i l tilit i outweighed by the gravity of the harm g y inflicted” McGuireWoods LLP | 17 CONFIDENTIAL

Private Nuisance Private Nuisance: ate Nu sa ce: “a nontrespassory invasion of another’s interest in the private use and enjoyment of p j y land.” Restatement (Second) of Torts § 821D McGuireWoods LLP | 18 CONFIDENTIAL

Trespass • Trespass is generally defined as Trespass is generally defined as “an invasion of the interest in the exclusive possession of land, as by entry upon it.” • The key distinction between trespass and nuisance is that “[a] claim of trespass contemplates actual physical entry or invasion actual physical entry or invasion, whereas nuisance liability arises merely by virtue of an activity which falls short of tangible, concrete invasion by interferes i i b i f with the use and enjoyment of land.” McGuireWoods LLP | 19 CONFIDENTIAL

Others • Infliction of Emotional Distress • Infliction of Emotional Distress • Failure to Warn • Battery Battery • Fraud • Conspiracy p y • Alien Tort Claims Act McGuireWoods LLP | 20 CONFIDENTIAL

Initial Case Assessment - Defense • Removal? • Removal? • Property damage or personal injury? • Present or future injury? j y • Actual contamination or mere fear of it? • What is the evidence of contamination? • Alternative causes? • Co-defendants – Friend or Foe? McGuireWoods LLP | 21 CONFIDENTIAL

The Role of the EPA McGuireWoods LLP | 22 CONFIDENTIAL

Recent Litigation and Trends McGuireWoods LLP | 23 CONFIDENTIAL

Trend # 1 - Possibility of Big Money McGuireWoods LLP | 24 CONFIDENTIAL