Monday, February 24, 2014

PSB: Appellate decision a win and loss for plaintiffs in IBM plume case

Appellate decision a win and loss for plaintiffs in IBM plume case

9:52 PM, Feb 23, 2014
 BGM 0720 Huron
A 2011 file photo of the former IBM Corp. campus in Endicott. In 1979, the company discovered some of the TCE had pooled in groundwater beneath the facility and appeared to be migrating. / FILE PHOTO

Written by Steve Reilly

Following a split decision by a mid-level appeals court late last week, attorneys are expected to ask New York’s highest court to hear arguments in the massive toxic tort lawsuit against IBM Corp.

In an 11-page order issued Thursday, the state Supreme Court Appellate Division partially overturned two of five orders Broome County Supreme Court Judge Ferris D. Lebous issued in November 2012.

Lebous’ orders dealt with whether allegations of negligence, nuisance, trespass, medical monitoring damages and contamination from chemicals other than TCE (trichloroethylene) should be considered at the eventual trial.

Those orders were followed by appeals from both sides, leading to the mid-level court’s decision Thursday to overturn two of the five: one in IBM’s favor; and another in the favor of the plaintiffs.

The eventual trial is expected to be postponed by yet even more appeals.

Stephen Schwarz, a Rochester-based attorney representing plaintiffs in the case, said he plans to file legal paperwork within 30 days asking the state Court of Appeals — New York’s highest court — to hear the case.

“I think that we were partially gratified by the results,” he said of the appeals court’s decision. “There are a few things that we think that the law should be clarified by the Court of Appeals, and I think that’s what we’ll make an attempt to do.”

IBM spokesman Todd Martin said the company was also gratified by Thursday’s order, which he said “serves to define and limit” the claims that will be decided at trial. He declined to say whether IBM would appeal.

Legal history

From 1935 to the mid-1980s, IBM used TCE to clean metal parts in degreasers at its industrial campus in the Village of Endicott. In 1979, the company discovered some of the TCE had pooled in groundwater beneath the facility and appeared to be migrating.

Contamination from soil vapor intrusion was detected by the late 1990s, and by 2002 IBM began testing the air at the request of state health and environmental agencies. Basement ventilation systems were eventually installed in more than 400 homes.

In a series of toxic tort lawsuits filed beginning in January 2008, about 1,000 plaintiffs have argued the contamination has caused illnesses and deaths, damaged property values and hurt business.

In April 2012, the claims of two Endicott families, including seven people, were broken from the class action to be heard first in an effort to simplify the litigation.

IBM filed motions in May 2012 seeking, among other things, to limit the types of claims the plaintiffs could make against the company in the eventual trial.

Lebous’ November 2012 orders, formalized in a January 2013 judgment, ruled allegations of negligence and trespass against IBM could be considered by the jury.

But allegations of nuisance, claims IBM should pay medical monitoring costs, and claims regarding chemicals other than TCE should not come before the jury, Lebous ruled.

Each of Lebous’ orders was appealed.

Appellate decision

The Appellate Division’s decision overturns two pieces of Lebous’ order.

• The trespass claims against IBM should not be part of the trial, the Appellate Division ruled, because vapor intrusion and air emissions are “intangible intrusions” like noise, odor or light and under the law are considered instances of nuisance rather than trespass.

• The Appellate Division ruled that medical monitoring claims — related to costs of continuing medical surveillance following an injury — were valid only in cases involving a property owner. Only two of the seven plaintiffs involved in this stage of the litigation are property owners.

Schwarz, attorney for the plaintiffs, said he will ask the state’s highest court to reconsider the medical monitoring decision.

“Some of the most vulnerable people are children that were exposed,” he said. “And because they weren’t property owners and hadn’t suffered a property damage injury ... under this ruling they aren’t entitled to medical surveillance while people that lived in the same household are.”

Martin, the IBM spokesman, said the company believes the Appellate Division erred in allowing any medical monitoring claims at all.

“In permitting the medical monitoring claims of two plaintiffs to proceed, the appellate court relied on factual arguments that the plaintiffs never asserted and cannot prove at trial,” he said.

The application for the case to be heard by the Court of Appeals, Schwarz said, will also ask the court to reconsider the nuisance claim that was upheld by the Appellate Division.

A legal ruling dating back to the late 1800s prevents non-property owners from making nuisance claims, he said, and is now ripe for appeal. Most states have since changed course, but New York has not.

“Our hope is that it will get to the Court of Appeals now and they will also go with what the rest of the states have done and allow spouses and children to also recover from those types of injuries,” he said.

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

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