Metropolitan News-Enterprise


Friday, January 28, 2011


Page 3


Ninth U.S. Circuit Court of Appeals Revives Claims in Toxic Tort Suit


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday partially revived a class action yesterday for 160 residents of a Northern California town who claim an industrial plant’s pollution severely sickened them.

In a portion of the decision by Judge N. Randy Smith—who was joined by Senior Judge Procter R. Hug Jr.—a majority of the appellate panel concluded U.S. District Judge Susan Illston had erred in dismissing these plaintiffs’ claims against Remco Hydraulics Inc. as time-barred since they were filed more than a year after the first lawsuit against the chrome plating company was initiated.

Donna Avila and 100 other residents of Willits filed a lawsuit in 1999 claiming chemical disposals from Remco Hydraulics Inc. had exposed them to chromium and caused a wide-range of illnesses, from cancer to mental disorders.

The lawsuit ultimately included more than 1,000 residents, many of whom settled with the company, which was sold twice before its successor in interest closed the plant and filed for bankruptcy in 1995.

Hundreds of other plaintiffs rejected the settlement, and litigation spanned 10 years in the district court. Illston eventually dismissed all of the non-settling plaintiffs from the case on various legal grounds.

A total of 323 plaintiffs were removed after they failed to answer questionnaires about what chemicals they might have been exposed to and what injuries they were claiming. Illston dismissed another 51 plaintiffs after ruling the opinion of an expert they were relying on to prove their case was inadmissible.

As for the 160 plaintiffs who had their claims reinstated yesterday, Illston had found they “knew or should have known by August 24, 2000, one year from the date on which Ms. Avila filed her suit, that their alleged injuries were caused by the Remco Facility” and granted summary adjudication as to their causes of action.

Smith noted that Illston’s statement was erroneous as a matter of law, since the one-year statute of limitations for toxic tort claims begins to run on the date by which plaintiffs knew or should have known of their injuries.

“Therefore, summary judgment would only be appropriate for those Plaintiffs filing one year from August 24, 2000—the date the district court found they ‘should have known’ that their alleged injuries were caused by the Remco Facility,” he said.

Holding Aug. 24, 1999 as the date by which the plaintiffs should have known of the date of their injuries also was not supported by the record, Smith added, noting the events and publicity in and around Willits were undisputed.

He reasoned the plaintiffs “should have known that Remco was the likely cause of their injuries no later than August 24, 2000” after the publication of several newspaper articles discussing the residents’ claims and the hazards of chromium exposure gained nationwide attention with the release of the movie Erin Brockovich.

The title character of the movie, a private investigator who discovered chromium poisoning sickening many residents of Hinckley, Calif., was also involved in the Willitts case, and held an information session in the town.

Smith declined to set a precise date by when the statute began to run, but said “as a matter of law, the events leading up to August 24, 1999 were insufficient” to put a reasonable plaintiff on notice.

Judge Pamela Ann Rymer disagreed, contending that a reasonable person in the Willits community “could have been expected to inquire about the cause of injury no later than the immediate aftermath of the Avila lawsuit.”

Rymer authored the remaining sections of the opinion, in which all three judges affirmed Illston’s dismissal of the other plaintiffs.

The case is Avila v. Remco Hydraulics, Inc., 09-16455.


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