HP Wins Defense Verdict in $127 Million Groundwater Contamination Trial

Posted on Monday, 18 May 2009

TRIAL SUMMARY  

City of Modesto, et al. v. The Dow Chemical Company, et al.; San Francisco County Superior Court, Case No. 999643  

Date of Trial:     September 8, 2008 through May 18, 2009  

Judge: Hon. Ernest H. Goldsmith; SFSC Dept. 613  

Trial Firms:  
• Miller, Axline & Sawyer (Sacramento, CA) for Plaintiff: City of Modesto 

• HUGO PARKER for Defendant: Goss Jewett of Northern California, Inc. ("GJNC")  

• Filice, Brown, Eassa & McLeod; Kirkland & Ellis (Chicago, IL) for Defendant: The Dow Chemical Company  

• Beveridge & Diamond (Washington, D.C.) for Defendant: PPG Industries, Inc.

• Hicks Thomas (Houston, TX) for Defendant: R.R. Street & Company.

Pre-Trial Demands:

Plaintiff served C.C.P. § 998 offer of $2,000,000 to GJNC. GJNC served plaintiff with a 998 offer of $22,222.22.

Verdict:

The jury deliberated for 29 days and returned a complete defense verdict for GJNC on May 18, 2009. As to Dow Chemical and PPG, the jury awarded plaintiff a total of $18.32 Million ($320,000 for investigation costs and $18 Million for remediation costs). The jury also returned a defense verdict for defendant RR Street as to one of the sites in question--but hung on several questions relating to its liability at two other sites. The jury also hung on two questions of liability as to Dow Chemical's and PPG's liability at two sites and on the Statute of Limitations defense as to all defendants.

Case Summary:

Certain brands of perchloroethylene ("perc") were manufactured by Dow Chemical, PPG and RR Street, and distributed/sold by Goss-Jewett of Northern California to over 30 dry cleaners in the City of Modesto. Plaintiff City of Modesto contended that perc was a defective product and that, due to actions and inactions of defendants (including an alleged failure to warn of its dangers), it was released from the dry cleaner sites into the environment--which then caused it to leach into groundwater and threaten Modesto public drinking water wells. Based on figures and testimony from its hydro-geological expert witnesses, the City contended it would take over $127 Million to clean up this contamination and sought to recover of that amount of damages from defendants via their lawsuit under theories of negligence and strict products liability. All defendants contended that, while perc was potentially dangerous product, it was not defective. All defendants also contended that, based upon reports of high contamination (and the potential sources of that contamination) which were provided to the City in the early 1990's, the City failed to file its lawsuit in a timely manner and failed to take adequate steps to remediate whatever contamination problem did exist. GJNC individually contended that it always provided adequate warnings to its customers and that any contamination resulting from perc at the sites at which it supplied perc pre-existed the period of time it supplied there. Immediately before trial, GJNC successfully prevailed on motions for nonsuit as to several sites and ultimately limited its potential liability at trial to one site. In his closing argument, plaintiff's counsel asked the jury to award over $26 million dollars in damages as to that one site.

Plaintiff's Trial Witnesses:

Franklin Agardy (Forensic Expert Witness)
Edward Alahverdi (Dry Cleaner Witness)
Maria Baldez (Elwoods Dry Cleaner Witness)
Peter Bakker (Dry Cleaner Witness)
Harold Beard (Dry Cleaner Witness--via deposition transcript)
Ross Beard (Dry Cleaner Witness--via videotape)
Gary Bengston (Dry Cleaner Witness)
Elwood Bowman (Dry Cleaner Witness--via videotape)
Preston Bowman (Dry Cleaner Witness)
Anthony Brown (Hydrogeology/Remediation Expert)
Steven Carlton (Hydrogeology Expert)
Gerald Conger (Dry Cleaner Witness—via deposition)
Bruce E. Dale (Dry Cleaning Equipment Expert)
Macaria de la Rossa (Dry Cleaner Witness)
Wayne K. Freeland (Former R.R. Street employee)
Janet Hickman (Dow Chemical employee--via videotape)
Eunice Holland (Dry Cleaner Witness)
Eric Jones (Dry Cleaner)
Kenneth Lee (Former PPG employee—via videotape)
Gerald Levine (State of the Art Expert)
Malinda McCumber (Dry Cleaner Witness)
James Wayne Mercer, Ph.D. (Hydrogeology Expert)
Mark Nazmi (Dry Cleaner Witness—via deposition)
Thomas Opsahl (Dry Cleaner Witness—via videotape)
William Raines (Dry Cleaner Witness)
Sardoun Solymanbeyk (Dry Cleaner Witness)
Peter Sinsheimer (Alternative Technology Expert)
Alice Tulloch (Former City of Modesto Employee)
Maria Valdez (Dry Cleaner Witness)
B.F. Wooten (Dry Cleaner Witness)


Defendants' Trial Witnesses:

Peter Bailiff (Distributor Witness)
Mohammad Bazargani (Remediation Expert)
Brian Bland (Dry Cleaner Witness)
John Brusca (City of Modesto/Wastewater Collection Superintendent—via videotape)
Megan Cambridge (Dept. of Toxics Substances Control employee—via videotape)
William Chastain (PPG Engineer)
Gaynor Dawson (Chemical Engineer Consultant)
Stanley Feenstra, Ph.D (State of the Art Expert)
Thomas Johnson (Dow’s Hydrogeology/Remediation Expert)
George Linkletter (R.R. Street’s Hydrogeology/Remediation Expert)
John Middaugh (Distributor Witness)
Timothy Racette (R.R. Street Director of Customer & Technical Services)
John Rivera (City of Modesto Employee)
Mark Rockcastle (R.R. Street Employee)
Terry Rowse (Distributor Witness)
Robert Salfi (Distributor Witness)
John Siemak (Dow Employee)
Anthony Souza (City of Modesto Collection System Worker)
Lee Swanger Ph.D (Engineering Expert)
Gail Wax (Former City of Modesto Employee)
Manfred Wentz (Former R.R. Street Employee)


GJNC Trial Witnesses:

Michael Kavanaugh, Ph.D. (GJNC's Hydrogeology Expert)
Michael Lamanet (GJNC President)
Leland Stallings (Former GJNC employee)

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