New trial ordered in California water contamination lawsuit

A lawsuit alleging fertilizer contaminated a California city’s groundwater will be retried after the 9th U.S. Circuit Court of Appeals ruled expert testimony was improperly excluded.
Mateusz Perkowski

Capital Press

Published on August 8, 2017 4:08PM

Last changed on August 8, 2017 4:09PM

A new trial has been ordered in a lawsuit that seeks to hold a fertilizer company financially liable for contaminating a California city’s groundwater.

The 9th U.S. Circuit Court of Appeals has ruled the case should be retried because a federal judge’s decision to exclude certain expert testimony was prejudicial to the plaintiff, the City of Pomona.

Pomona’s problems came to light in 2007, after California established “maximum contaminant levels” in water for the chemical perchlorate, which disrupts hormone production.

Perchlorate levels were found to be excessive in 14 of the city’s groundwater wells, which Pomona blamed on applications of sodium nitrate fertilizer imported from Chile by the SQM North America Corp. from the 1920s until the 1960s.

The city filed a complaint in 2010 seeking $32 million from SQM to compensate for investigative and remediation costs. Last year, SQM reported a profit of $278 million on total revenues of $1.9 billion.

The lawsuit claimed that chemical signatures from perchlorate in Pomona’s wells matched the perchlorate found in Chile’s Atacama Desert, where SQM’s fertilizer was mined.

This conclusion was based on studies by Neil Sturchio, who heads the University of Delaware’s geological sciences department.

Before the case originally came up for trial in 2012, though, U.S. District Judge Gary Klausner excluded Sturchio’s testimony for being based on limited data and not being substantiated by other laboratories.

The 9th Circuit reversed that decision in 2014, ordering Sturchio’s testimony to be included in the trial.

However, when the lawsuit ultimately ended up before a jury, the judge did not permit Sturchio to update his testimony with information gathered since the case was originally filed.

After the jury ruled against Pomona in 2015, the city challenged the judge’s decision before the 9th Circuit.

The appeals court has now again overturned Klausner’s decision to exclude Sturchio’s testimony, deeming it “illogical” because the new findings refuted SQM’s attacks on the scientist’s conclusions.

The 9th Circuit said the judge committed an “abuse of discretion” by characterizing the new data as immaterial, since Sturchio was the city’s key witness and the accuracy of his testimony was paramount in the case.

By the time of the new trial, the links between the perchlorate in Pomona’s wells and Chile’s Atacama Desert were supported by more evidence that was corroborated by other laboratories, the 9th Circuit said.

“Had the district court allowed Dr. Sturchio to update his testimony, Pomona could have easily rebutted much of SQM’s criticism of his research during trial,” the ruling said.

The 9th Circuit also decided the judge improperly allowed the jury to hear from SQM’s expert, Richard Laton, an associate hydrogeology professor at California State University-Fullerton.

Laton claimed that perchlorate in the vicinity of Pomona’s wells could have come from multiple sources, such as swimming pools and septic tanks.

Because he didn’t analyze the scientific validity of Laton’s conclusions, however, the judge abdicated his “gatekeeping role” and improperly included that testimony, the 9th Circuit ruled.


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