Ryan Whaley Coldiron Shandy

In pollution cases, such as ones alleging harmful air emissions, landowners may believe they or family members have suffered personal injury as well as property damage. However, it seems to be a growing trend - at least in some pollution cases - for plaintiff lawyers to file suit for property damage only (based on customary negligence, trespass, and nuisance theories). Their reasoning? If the property damage alone could result in a substantial verdict, why file personal injury claims that will be harder to prove and contested more vigorously?[1]

If your company is facing a property-damage toxic tort lawsuit – especially one with many plaintiffs – here are three keys to defending the case. Obviously, these are not the only considerations, but they are factors that RWCS has found important in handling these types of cases. 

1.  Don’t assume your pollutants are responsible. While in some cases it may seem that a pollutant from your facility is likely to be the culprit, you should be careful about accepting liability too quickly. Example: In a recent case RWCS handled, the alleged air pollutant was a specific type of dust alleged to be emitted by a manufacturing plant and deposited on neighboring properties, causing darkening and staining of various surfaces. However, comprehensive investigation showed that a variety of substances other than the alleged pollutant could cause similar staining. For example, it was shown that mold or fungal material growing on a surface like vinyl siding could create an appearance similar to what was being claimed, and that it was actually necessary to perform transmission electron microscopy under an ASTM standard to distinguish the alleged pollutant from other environmental particulate. (Note: even if sampling and testing shows that a pollutant from your facility is on a plaintiff’s property, you still need to determine the quantity or percentage of your pollutant compared to other substances that may also be causing or contributing to the complained-of property damage. If other substances such as mold, fungus, dirt, soot, etc. play a role, then your responsibility may be lessened, or perhaps even superseded.)

2.  Insist on full discovery including depositions. Do not agree to a Lone Pine order, which is a court-ordered questionnaire that is submitted to all plaintiffs requiring them to provide certain basic threshold information about their claims and damages. Plaintiff lawyers usually propose a Lone Pine order to streamline the collection of discoverable information in the case without burdening their clients (and themselves). What you will find if you go this route is that the responses are lawyered-up, incomplete, and not very helpful for defending or evaluating the case. However, a defendant who requires plaintiffs to go through individualized actual discovery will probably be in far better position to determine the real merit of the case. Example: in some mass tort cases there is frequently a smaller core group of more serious, activist plaintiffs and a larger group of plaintiffs who simply joined the lawsuit hoping for a quick payday. The latter group may resist going through full discovery; some of them may drop out, and others, if deposed, may provide answers that undermine their claims or conflict with other plaintiffs. (Note: you can always suspend a multiple-plaintiff deposition campaign at any time depending on results, either because you believe you have obtained sufficient information to defend the case or to participate in settlement discussions.)

3.  Conduct property inspections with photographs, sampling, and testing. The inspections should be done by a team consisting of an attorney who has been involved in the depositions and knows what the plaintiffs have said regarding each property to be inspected, a consultant experienced in forensic sampling, and a photographer. Don’t try to have the sampling consultant also take photos. It may also be helpful to have other experts such as a local contractor who has worked on properties in the area and knows local conditions. After the inspection, send the samples under chain-of-custody to a certified lab for analysis.

To get to the point where property inspections will provide the most value, follow this procedure: (1) early in the case, have a photographer take street photos of the properties at issue, (2) next, obtain basic information for each property from local publicly available property records (e.g., online county tax assessor records, if available), (3) go through the written discovery process (interrogatories, requests for production, and requests for admission), (4) take depositions of individual plaintiffs, and, finally (5) arrange for property inspections to be conducted within a short time after each deposition.

Why do it this way? First, high resolution photos that are taken from a public place where your photographer has a right to be will allow you to quickly understand the basic condition of each property and the overall scope of the case. Use a photographer who can take good photos that you can zoom in on it if needed at deposition or trial and see a high level of detail using electronic presentation. The street photos can also be used in depositions to help get more specific details from plaintiffs about their property than they would otherwise be able to provide with a verbal description. Second, obtaining property records and written discovery will allow you to get the basic information you need to prepare for depositions. (Note: property records usually do not have high quality photos of the property.) Third, depositions are the best way of locking each plaintiff into their version of where the alleged pollutant is present on their property and the extent of the alleged damage. Then, once this groundwork is laid, you can inspect the property and in doing so evaluate the credibility of what you have been told by each plaintiff. Using an air pollution case as an example, here are things you may find by following this recommended procedure:

• The property is in much worse condition than claimed; for example, it is old, deteriorated, not well maintained, etc.
• The alleged property damage is not what has been claimed; for example, it is less visible, less extensive, and/or it does not have the same damaging effect that has been claimed.
• The alleged property damage is found in different places on different properties. This may be good evidence the alleged property damage (to the extent there is any) was not caused by a single pollutant deposited through the air. For example: if certain plaintiffs claim that alleged particles will be found on horizontal surfaces such as parked cars, railings, or windowsills, but other plaintiffs claim they have seen the alleged pollutant’s effects on vertical surfaces, such as vinyl siding, then there may be a serious discrepancy in the plaintiffs’ case. (Note: it is common for dirt, dust, and other airborne particles to accumulate on siding under eaves or similar protected areas where rain does not wash them off.)
• The process of sampling may show the material can be cleaned off more easily than claimed, i.e., it’s not permanent damage.
• All sorts of details about the plaintiff or the property may become more evident or clear, especially the extent to which interiors are affected, if  claimed (street photos would not show anything inside).
• A good set of high-quality photos taken from on site (each plaintiff property) is the best evidence of the true condition of the property, which may be highly relevant to both liability and damages. For example, if photos show the alleged pollutant appears to be dirt or mixed with dirt, a jury may conclude there is no nuisance, even if a few particles from your facility are present.
• Obviously, the results of sampling analysis will be important. Depending on the substance, lab analysis using a scientifically valid procedure (e.g., ASTM standard) may be able to prove that the alleged pollutant from your facility is or is not present, and if present, in what quantity. Caution: you may think the results of scientific sampling and analysis will be dispositive, but that may not be the case, depending on other factors. Never underestimate the opposition's potential ability to create doubts about expert testing, or the jury’s capacity to discount "hired" experts and focus on other evidence.  All the more reason why photos can be crucial.

Again, there can be numerous other important considerations in defending a toxic tort lawsuit, even one involving only property damage. Call Keith Klein for more information if you wish to discuss a current or potential toxic tort lawsuit defense scenario.

[1] The rule against claim-splitting generally provides that personal injury and property damage claims arising out of the same incident must be brought in the same lawsuit, so if there are legitimate and serious medical claims, plaintiffs’ lawyers are unlikely to forego them. However, in more debatable situations, plaintiffs’ lawyers may be able to convince a group of potential clients that the lawsuit is more likely to succeed, with a substantial enough payday, if limited to property damage claims.