Presenting a live 90-minute webinar with interactive Q&A Groundwater Contamination Litigation: Proving and Defending Against Liability Demonstrating Nexus, Causation and Injury to Recover Cleanup Costs and Other Damages THURSDAY, OCTOBER 4, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Shawn M. Collins, Partner, The Collins Law Firm , Naperville, Ill. R. Trent Taylor, Partner, McGuireWoods , Richmond, Va. 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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Groundwater Contamination Litigation: Proving And Defending Against Liability Shawn M. Collins Partner – The Collins Law Firm October 2012 Strafford Publications, Inc.
Who am I? Why do I do this type of work? 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 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 Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. Illinois Groundwater Protection Act Chapter 415 Environmental Safety: 415 ILCS 55/1 et seq. Groundwater Contamination Litigation 7
Initial Case Assessment: Plaintiff’s 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 plaintiffs? Groundwater Contamination Litigation 8
The Role of the EPA Whose side are they on? Are they doing their job? Should you pick a fight with them? Groundwater Contamination Litigation 9
Recent Litigation and Trends Recent verdicts and settlements 1 Don’t let it fool you Groundwater Contamination Litigation 10
Strategies for Proving Liability 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 Important Lessons I’ve learned “You’ll never regret the case you turn down” 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 Against Liability 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 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 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 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 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 2013. Richmond, VA 23219-4030 http://www.cap- 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.” McGuireWoods LLP | 16 CONFIDENTIAL
Public Nuisance • “the interference must be both substantial and unreasonable ” • “it is ‘substantial ’ if it causes significant harm and ‘unreasonable’ if its social utility is outweighed by the gravity of the harm inflicted” McGuireWoods LLP | 17 CONFIDENTIAL
Private Nuisance Private Nuisance: “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts § 821D McGuireWoods LLP | 18 CONFIDENTIAL
Trespass • 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, whereas nuisance liability arises merely by virtue of an activity which falls short of tangible, concrete invasion by interferes with the use and enjoyment of land.” McGuireWoods LLP | 19 CONFIDENTIAL
Others • Infliction of Emotional Distress • Failure to Warn • Battery • Fraud • Conspiracy McGuireWoods LLP | 20 CONFIDENTIAL
Recent Litigation and Trends McGuireWoods LLP | 21 CONFIDENTIAL
Targets • Fly/coal ash • Fracking • Uranium/Radioactive • Oil Spills • Arsenic • Mercury • Pesticides McGuireWoods LLP | 22 CONFIDENTIAL
Fly/Coal Ash • Gayle K. Queen v. Constellation Power Source Generation Inc ., Case No. 24C07009389 (Circuit Court for Baltimore City). • A Baltimore City judge approved a $54 million settlement after homeowners in a nearby Maryland county accused Constellation Energy Inc. of contaminating their wells by dumping tons of toxic coal ash into a quarry near their homes. McGuireWoods LLP | 23 CONFIDENTIAL
Fly/Coal Ash • Commonwealth of Penn. Dep’t of Env. Prot. v. FirstEnergy Generation Corp ., Case No. 2:12-cv-01061 (W.D. Pa.) • Settlement in July 2012 where defendant agreed to pay penalties of $800,000 and shut down a coal ash disposal site that allegedly contaminated groundwater McGuireWoods LLP | 24 CONFIDENTIAL
Fracking • Tucker v. Southwestern Energy Co. et al. • Filed on May 26, 2011, in federal court in Arkansas • Sought $6 million for named plaintiffs • Alleged soil, groundwater, and air contamination • Causes of action were: (1) Strict Liability; (2) Nuisance; (3) Trespass; and (4) Negligence. • Sought class certification of all persons in AR who live or own property within 3 miles of a gas well • Sought compensatory and punitive damages, medical monitoring, and air, soil, and groundwater monitoring • Settled in July 2012 McGuireWoods LLP | 25 CONFIDENTIAL
Fracking • Baker v. Anschutz Exploration Corp. • Filed 2/11/11 in NY state court but was removed to federal court • On behalf of nine families in Horseheads, New York near Elmira. • Allege that their residential drinking water wells have become contaminated as a result of drilling activities by defendant Anschutz and its drilling subcontractors and that their properties and families have become exposed to combustible gases, toxic sediments, and hazardous chemicals. • Seeks $150 million in compensatory damages, punitive damages, and future medical monitoring due to fear of contracting cancer. McGuireWoods LLP | 26 CONFIDENTIAL
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