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Tuesday, October 2, 2001
Dismissal of Contamination Suit Premature, Attorney Tells Ninth Circuit
MetNews Staff
A federal district judge erred in ruling that 52 people seeking damages for alleged groundwater contamination near aerospace facilities in Simi Valley and the San Fernando Valley waited too long to sue, their attorney told a Ninth U.S. Circuit Court of Appeals panel yesterday.
U.S. District Judge Audrey Collins of the Central District of California erred in relying on the existence of extensive publicity concerning health problems allegedly caused by pollution at the Rocketdyne facilities in concluding that the plaintiffs knew or should have known of their causes of action more than a year before they sued, A. Barry Capello argued.
“The truly unfair thing about the court’s decision is that people who have cancer….aren’t reading the newspaper, they are taking care of their cancer or their children’s cancer,” the Santa Barbara lawyer told the judges. While some of his clients acknowledged that they were readers of the newspapers reporting on Rocketdyne, none said they had read the specific articles, he said.
Most of those articles appeared between 1989 and 1991. The suit was filed in 1997, and many of the plaintiffs had no manifestation of illness at the time the limitations period expired according to the district judge’s ruling, Cappello told the panel, which included Judges Richard A. Paez and Diarmuid F. O’Scannlain, along with visiting District Judge Samuel P. King of Hawaii.
Capello’s clients are among hundreds who have sued North American Boeing, Inc., which became the parent company of Rocketdyne, and its predecessor Rockwell International, Inc., concerning alleged pollution of groundwater near the Santa Susana Field Laboratory in Simi Valley, the Atomics International facility in Canoga Park, the Atomics International facility on De Soto Avenue, and the Hughes Aircraft facility on Fallbrook Avenue.
There are several suits still pending before Collins, who has delayed ruling on other limitations defenses pending the outcome of the case argued yesterday. An earlier group of plaintiffs sued in state court, losing on statute-of-limitations grounds under a 1999 ruling of this district’s Court of Appeal.
The plaintiffs claim the defendants polluted the water with various chemicals used in the aerospace industry, such as trichloroethylene, which was long used to flush hardware and rocket engine thrust chambers during rocket engine test-firing at the Santa Susana lab.
The suits were filed after a UCLA study found higher-than-expected cancer death rates among some radiation-exposed Rocketdyne workers. Collins said it wasn’t credible to believe that the study was the event that caused the plaintiffs involved in yesterday’s appeal to realize their potential claims.
Paez appeared to support Capello’s position that the limitations issue has to be tried.
“In all my years as a district court judge…it was always a big factual dispute” as to when a plaintiff discovered or should have discovered the existence of a claim, the jurist said. Using newspaper publicity as the yardstick, Paez said, raises “all sorts of questions” not answered by the appellate record, such as the circulation of the newspapers.
But defense attorney William W. Schofield, of Paul, Hastings, Janofsky & Walker’s San Francisco office, said the problems had plenty of “notoriety” in the communities where the plaintiffs live. And the publicity was quite specific, he told the judges, in dealing with cancer and other health risks and the nature of the apparent contamination.
The case is O’Connor v. Boeing North American, Inc., 00-56141.
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