San Jose – Four plaintiffs suing the Olin Corp. for polluting
the groundwater in San Martin with perchlorate are exaggerating
their claims of emotional distress because they can prove neither
financial or medical damages, a lawyer told a jury Wednesday during
the first case against the company to reach trial.
San Jose – Four plaintiffs suing the Olin Corp. for polluting the groundwater in San Martin with perchlorate are exaggerating their claims of emotional distress because they can prove neither financial or medical damages, a lawyer told a jury Wednesday during the first case against the company to reach trial.
“Since they are not going to make any health claims and can’t prove property damages, [they] will make exaggerated emotional distress claims inconsistent with their actions,” Olin attorney Tom Carney said in his opening statement. “And they will not claim any damage for emotional distress for fears they may experience physical illness or disease.”
The plaintiffs are all San Martin residents. They claim that the revelation in 2003 of a 9.5-mile perchlorate plume flowing south and east of Olin’s former road flare factory in southern Morgan Hill has damaged their idyllic rural lifestyle and caused irrevocable harm to their home values.
“On purpose, knowing what they were doing, intentionally, Olin polluted the groundwater,” plaintiffs’ attorney Colin Pearce told the nine-member federal jury. “They thought they would just dump this waste and maybe nobody would find out about it.”
The plaintiffs are four of about 280 residents who have sued Olin. A group of about 160 claimants are on the verge of settling their cases. The remaining plaintiffs are awaiting the outcome of this trial.
Pearce, of Duane Morris in San Francisco, also accused Olin of shattering his clients’ “American Dream” in his nearly two-hour opening statement.
“Olin has stolen the water from the families we represent. Olin has stolen their ability to raise their families and enjoy their houses and properties,” he said. “We need water to live. It’s something we take for granted. That is the heart of this case. I ask you to make the common sense judgment that pollution deserves compensation.”
Pearce said some of his clients were discouraged when they looked into possibly selling their homes, but realtors said Wednesday that the central claim of the case may be very difficult to prove.
“I don’t think so,” Coldwell Banker Realtor Shanna Boigon said of claims that San Martin home prices are stuck in neutral. “As long as [Olin] provides water and as long as there are solutions for filtering, I think they’re wrong. Perchlorate is no bigger problem than nitrates. It’s just one more thing on the list of things we look for. Of course, there could always be individual properties [that have not appreciated].”
Roger Malech, a realtor with Intero Real Estate in Morgan Hill, said that after a brief stall in the housing market when the contamination was first revealed, homes in San Martin have appreciated much like those in Morgan Hill and Gilroy.
“It’s hard to put a number on anything, but it sure doesn’t seem like there’s been any decrease because of perchlorate,” he said.
Pearce said he will put a number to his clients’ losses in the course of the trial, and detailed at some length the traumatic effects perchlorate has had on their lives. Aside from the inconvenience of having to use bottled water, he said, his clients have grave fears for their children who grew up drinking the polluted water, are afraid to eat fruit growing on their properties, and reluctant to have company.
And Pearce repeatedly stressed the potential adverse health effects of perchlorate, which has been shown to inhibit thyroid activity, particularly in children and women who are pregnant, as one plaintiff, Teresa Pereira, was when the contamination was revealed.
“If there is one thing that’s clear in all of this, is that if anybody’s at risk, it’s a pregnant woman,” Pearce said before he seemed to suggest $13 million as a starting point for the jury to consider in awarding emotional distress damages. “Olin has spent $13 million and still there is no solution. That should give you some idea of the magnitude of this problem.”
Carney, who is with the St. Louis firm of Husch and Eppenberger, stressed that the plaintiffs have not taken simple steps to protect themselves, such as purchasing reverse osmosis systems to filter their tap water. Nor, he said, have they expressed concerns about the high levels of nitrates and other contaminants.
“I think their claims are inconsistent with their actions,” he said. “They weren’t concerned about coliform or nitrates in their wells.”
And Carney showed the jury seemingly contradictory appraisals of the Pereira’s home. One, from the plaintiffs’ expert witness put the value of the home at about $814,000. But a refinancing application from about the same time placed the value of the property at $990,000. In 2003, it was appraised at $800,000.
“They use higher appraisals when they want money from a bank, but different appraisals when they want money from a jury,” Carney said.
Pearce said after the proceedings that the financial information presented by Carney was “selective, out of context, misleading, incomplete.”
“We believe the evidence will show an impact on the value of our clients’ properties, and we think common sense also supports that if you have perchlorate in your water the value of your property is discounted.”
Carney said he was surprised the case had progressed to a trial and expected to renew settlement talks. The St. Louis lawyer is also representing Olin, which is based in Tennessee, in a similar case brought by the San Jose firm of Alexander Hawes and Audet on behalf of 160 homeowners.
Attorney Richard Alexander said this week those cases should be resolved soon and a settlement is a better bet for his clients.
The case that has reached trial, Palmisano V. Olin, is being held in the San Jose courtroom of federal Judge Ronald M. Whyte. Lawyers expect it will last about a month.
