A look at one class-action lawsuit that fell short on its promises to residents
As the City of Tucson pursues its lawsuit against 3M for alleged indirect contamination of Tucson groundwater, attributed to 3M’s manufacturing of compounds used in aqueous firefighting foam, and considering Tucson’s history as a site of major groundwater contamination, the question remains whether or not residents’ health has been affected by consumption of per- and polyfluoroalkyl substances, or PFCs, for probably more than 25 years in some cases.
If, in fact, residents’ health has been impacted and they also wish to sue 3M, or whomever, they may have a higher hurdle to jump through in the courts than the city does. This was illustrated in the late 1990’s in Arizona Federal District Court by Tucsonan’s seeking to prove that exposure to trichloroethylene, or TCE, caused, or may in the future cause, their illnesses. The case was called Lanier et al. v. Hughes.
Recently, Tucson Water Director Tim Thomure said at a city council meeting that the water utility has known of PFCs in areas of town for more than a decade. Yet it was only last year they supposedly tested for and discovered high concentrations of two types of PFCs, PFOS and PFOA, near Davis Monthan Air Force Base and a historic southside Superfund site.
Well sampling data obtained by Tucson Del Sur News through a Freedom of Information Act request to the water utility revealed that some of the wells feeding the Tucson Airport Remediation Project, or TARP plant, such as R-003 and R-004, were known to have concentrations of PFOS above the EPA health advisory level as early as 2016.
R-003 was sampled in November of 2016 and had 130 parts per trillion of PFOS, nearly double the 70 parts per trillion advisory set by the federal agency.
A June report from Tony Davis of the Arizona Daily Star revealed a large plume of PFCs below the Air National Guard base on Valencia Road, perhaps the source of PFCs found in the TARP remediation wells.
In May of 1981 a different groundwater contaminant, TCE, emerged from Tucson wells which eventually led to the Environmental Protection Agency’s designation of the Tucson International Airport Area Superfund site.
A major polluter of that solvent was Hughes Aircraft Company, a government contractor who made aircrafts, missiles and electronics at the time, was purchased by Raytheon in 1997 and listed as a potentially responsible party by the EPA long before that. TCE was used in its operations to degrease metal parts and Hughes disposed of it by placing it into unlined ponds and ditches, for decades.
Then Tucson Water director, Gene Cronk, told the city council in 1981 that Tucson residents didn’t receive TCE above 0.5 parts per billion, one-tenth of the state’s health guideline of 5 parts per billion, but that later proved to be false.
Historic contamination at the site eventually resulted in a four-mile long plume that stretched from the Superfund site northwestward towards the intersection of Irvington Road and the Santa Cruz River before supposedly being contained by remediation wells.
A 1985 Daily Star series penned by Jane Kay, and investigated over six months, examined the health of residents within the plume area and found unusually high rates of a variety of illnesses including lupus, heart defects and various cancers including testicular cancer in younger men.
The fallout from that investigation was a slew of lawsuits, the first of which was filed in 1986 and resulted in an $85 million settlement with Hughes in Valenzuela et al. v. Hughes et al., with nearly 1,600 plaintiffs receiving $50.7 million of that money, according to the Star.
The lawyers in the Valenzuela case also sued the city and the Tucson Airport Authority in a separate superior court case, Gallego v. City of Tucson, and settled it for $35 million.
Twenty-plus lawsuits were filed against Hughes in the local superior and federal district courts since TCE was discovered in Tucson’s groundwater, with the city and airport authority involved in most of them either because they were brought in by the defendants or plaintiffs.
Many in the community to this day believe Valenzuela was a class-action lawsuit, but it was not, it was a private toxic-tort claim. And by the time it was settled in 1991 a new wave of lawsuits claiming damages from the polluted water emerged over the next decade.
However, the only class-action lawsuit that made progress in federal court was Lanier et al. v. Hughes, a lawsuit filed in 1992 that sought medical monitoring for residents within specified geographic areas who likely consumed TCE-tainted water.
The Lanier case did not, however, settle for a large amount of money and ultimately did not provide medical monitoring services to as many residents as were likely exposed, not by a longshot.
Perhaps the Lanier case may serve as a cautionary tale, or impetus, for current residents who suspect they have been injured by PFCs in their drinking water and are considering legal action.
A closer look at Lanier will at the very least illustrate the difficulties plaintiffs may face.
The Lanier case
The Lanier medical monitoring lawsuit was filed in 1992 by Sheldon Lazarow, a Tucson attorney, who also represented plaintiffs in Yslava v. Hughes et al., a personal injury/toxic-tort case, filed the year prior, in partnership with an east coast firm. The two cases were consolidated along with a number of others that the same lawyers had filed.
The lead plaintiffs in the case were Joe Ann Lanier, a longtime southside resident and business owner, and Diego Lozano who spent part of his childhood in an area believed to have received contaminated water.
The Lanier complaint detailed 24 different geographic borders and relevant timeframes it was believed TCE-contaminated water was delivered to residents in those areas.
Class certification was approved by District Court Judge John M. Roll in November of 1993 and shortly after that ruling, Hughes and other third-party defendants sought to have a new judge put on the case.
Two years later in August of 1995 the case was reassigned to Judge Roslyn O. Silver. Silver presided over the case and largely ruled in favor of the defendants. The only cause of action that advanced beyond the summary judgment phase was the plaintiff’s negligence claim.
The case never reached a jury.
Lazarow and his colleagues alleged negligence, nuisance, trespass and strict liability on the part of Hughes in Yslava. Which meant they would have to prove the issues of liability, exposure, medical causation and compensatory and punitive damages for Yslava plaintiffs. In Lanier they thought they would have to prove liability, exposure and only the likelihood of risk to the class members health.
With Lanier being a medical monitoring case, the lawyers thought they needed to meet a considerably lower bar than in Yslava.
However, the Lanier and Yslava cases were conflated during the summary judgment phase and Silver took expert testimony the plaintiffs intended to apply only to Yslava and ruled on Lanier based on that testimony as well.
The summary judgment phase in a civil suit is a tool in the federal court system to dispose of cases that do not merit a jury trial.
In effect, Silver’s decisions took away much of the leverage the plaintiffs would have had in the subsequent settlement negotiations, resulting in pared down settlement sums.
Two of the biggest decisions Silver ruled on were the plaintiffs’ medical causation and strict liability causes of action. Tucson Del Sur News obtained transcripts from the summary judgment hearing and it can be read in full here.
Below are the key takeaways from the hearing and subsequent decision by Silver on the issue of causation.
The legal requirement for proving medical causation in Arizona is the ‘but for’ standard. This means that to prove causation the action of the defendant must have contributed to injury, and, that the injury would not have occurred if the action never took place, it’s a ‘two-prong’ test.
“The defendant’s act or omission need not be a large or abundant cause of the injury. If the defendant’s conduct contributes only a little to plaintiff’s damages, liability exists if the damages would not have occurred but for that conduct,” Kevin Neal, legal counsel for McDonnel Douglas, third-party defendant, argued to the court.
Therefore, plaintiffs’ counsel had to show that ‘but for’ the contamination by Hughes they would not have developed the diseases they present to the court.
Neal argued the plaintiffs’ expert witness, Daniel T. Teitelbaum, M.D., did not testify that ‘but for’ the actions of Hughes, illnesses would not have occurred. Neal also claimed Teitelbaum altered his testimony to try and stave off the defendant’s summary judgment motion.
“In his last deposition, which followed our filing of this motion, I believe that testimony was elicited, in fact, manufactured, for the express purpose of defeating this summary judgment motion … [it] directly contradicts four days of prior testimony, I think it’s a sham and should not form as a basis for denying [the motion] because there is no precedent for it,” Neal contended.
“When he was asked if any jury could ever answer the question of whether plaintiffs would have developed their illnesses absent exposure, he said that’s an opinion which is impossible for anyone to offer. Because it assumes that you can take out of a life history some obvious component,” Alex Dimitrief, legal counsel for Hughes further argued.
Dimitrief quoted U.S. Supreme Court Justice Harry A. Blackmun, “Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.”
“This trade-off and the need for difference in standards that are applied to a courtroom as opposed to peer-review journals, as opposed to regulations and as opposed to other nonjudicial conduct, is a time honored and, we submit, appropriate balance under the standard of but for causation to which a federal court sitting in diversity must adhere,” Dimitrief concluded.
Richard Lewis, counsel for plaintiffs, countered that Dr. Teitelbaum’s fifth-day testimony was “entirely consistent” with the first and, overall, his testimony established Hughes’ dumping of TCE as a contributing factor, but not the only factor.
Lewis read from one of the deposition’s transcript, “’Do you have an opinion as to whether TCE exposure would have caused or contributed to the cancers in the test plaintiffs in the absence of these other chemicals?’ … ‘I think it has the capability, yes. I think it would have, yes. But I think it’s likely that it was another significant participating cause.’”
“Your honor, this is a candid admission by an expert who understands the multifactorial nature of cancer. He can’t push it beyond there. That is the state of science … This is the view of cancer today. There is not one cause of cancer,” Lewis argued.
“They’re asking Dr. Teitelbaum a speculative hypothetical which is impossible for him to answer, and he’s being candid. He says, ‘It has the capability by itself to cause the disease. But in this case that’s not what I believe happened.’ He’s picking TCE out of the crowd and saying this [TCE] is one of the [many chemicals in Hughes’ waste stream, and one factor amongst other life-factors] that really did it, but it’s not the only one. That’s the only evidence that science allows him to give,” Lewis continued.
Judge Silver interjected, “It seems to me that if he’s only able to say that it’s a contributing cause, and that he has reason to believe that it’s a contributing cause without being able to say the injury would not have occurred had there not been the alleged violation in this case, that you’re really dealing with speculation. You don’t have anything but speculation.”
“The jury doesn’t have to speculate at all, your honor, because this witness has told them point blank TCE was one of the factors. And that’s where he stops. He can’t say it’s the only factor,” Lewis replied.
“Your honor, I think the idea that an expert has to take the stand and say the words ‘but for’ has never been put forth by an Arizona court,” Lewis argued, “But how is that test applied to expert testimony? Courts do not hunt through transcripts looking for the words but for. Courts do not seize on hypothetical questions that assume facts not in evidence.”
Lewis referred to another Arizona case, “Robertson [the case] tells us what a plaintiff has to do, and how a plaintiff has to do it … In a cause of action for negligence, plaintiff must show some reasonable connection between defendant’s act or omission and plaintiff’s [injury] … Plaintiff need only present probable facts from which the causal relationship reasonably may be inferred.”
“We’re not asking for mere speculation … We’ve identified each and every causative agent. What we can’t speculate about is the what-if question, what if you take away what really happened and pretend something else? The doctor wouldn’t do it. He doesn’t have to do it,” Lewis argued.
“He’s [the doctor] not overreaching. He is not the kind of expert that federal courts are upset about who overreaches and always says that every disease is solely caused by the defendant’s conduct … But at the end of the day he can pick TCE out of the crowd as a factor that contributed to these diseases. And that is sufficient under all of the Arizona cases on proximate cause,” Lewis concluded.
Neal rebutted, “Your honor, everyone is exposed to TCE, just as everyone is exposed to cosmic rays. The question is whether they would have gotten the illness but for the exposure to the extra tenth of a microgram of a drop of TCE in the drinking water over five, 10 or 15 years. And Dr. Teitelbaum can’t say that, he doesn’t say that, and he won’t say that.”
Judge Silver agreed with plaintiff’s counsel on one thing in her final ruling on medical causation, that Dr. Teitelbaum’s testimony was consistent across all five days of depositions. Otherwise, his testimony did not answer the ‘but for’ question Arizona law requires.
She reiterated the defendants’ argument, “that the expert must state that the exposure both contributed to Plaintiffs’ illnesses and that the illnesses would not have occurred but for the exposure,” and found it favorable to the plaintiffs’ argument that they, “need only show that the exposure contributed or caused their illnesses and injuries.”
“Dr.Teitelbaum’s testimony does not meet this standard. At most, the testimony states that development of disease was ‘a result’ after exposure to TCE (significantly, not a cause), that TCE has the ‘capability’ to cause disease, and that TCE might have ‘caused or contributed’ to the formation of Plaintiffs’ injuries.
“These opinions could aid the jury in determining the possibility of causation-in-fact, but do not speak to the question of whether causation-in-fact is probable.
“Combined with Dr.Teitelbaum’s unambiguous testimony that it is ‘impossible’ for someone to opine that Plaintiffs would not have been injured had they not been exposed to TCE, this testimony does not help the jury to determine the existence of causation-in-fact,” Silver determined.
Silver granted the defendants’ summary judgment.
After Silver issued the ruling, plaintiff’s counsel was confused about whether it applied to Yslava only or whether it equally applied to Lanier. They attempted to have the order vacated under Lanier but were unsuccessful.
Plaintiff’s counsel argued that Hughes filed their motions for summary judgment under the Yslava case caption only. However, Silver pointed out in her ruling on this issue that the other defendants filed their motions for summary judgment under Ysalva and Lanier.
Plaintiff’s counsel also argued that they designated a different expert witness to testify in Lanier and Teitelbaum’s causation opinions do not resolve Lanier because, “ … the medical monitoring plaintiff need not prove causation of a personal injury but must prove risk of an injury,” in someone not showing symptoms.
Silver did not agree.
“Dr. Teitelbaum’s testimony on causation is insufficient to demonstrate that plaintiffs are exposed to an appreciable risk of serious illness as a result of their exposure to TCE.
“As Dr. Teitelbaum explained, ‘each of the steps which took place in [the plaintiffs’] life histories’ could be responsible for their illnesses including their genetic background, their childhood exposures, their adult exposures, their occupational exposure, their illnesses, their viral exposures, their exposure to TCE and their exposure to other materials.
“Accordingly, exposure to a single factor, TCE, cannot serve as a basis for imposing liability on defendants,” Silver concluded.
This ruling flew in the face of a report issued by the Agency for Toxic Substances and Disease Registry, a federal agency tasked with addressing the health impacts in communities where exposure to contaminants occurred.
The 1996 ATSDR report does not appear to have been submitted to the court in Lanier and the associated study did not include all of the areas designated as part of the class-action, the report was more limited in scope. Nonetheless, the report determined up to 6,300 people who drank from two particular wells in the plume area were at risk, especially infants and older adults with impaired liver, heart, nerve or kidney functions who were classified at high-risk.
In a recent phone interview Dr.Teitelbaum, who testified in over 500 lawsuits including the infamous Erin Brockovich case against Pacific Gas and Electric Company in 1993, illustrated why he could not say that ‘but for’ exposure to TCE plaintiffs would not have developed, or would in the future develop, certain illnesses.
He said he could say ‘but for’ in an asbestos case where, for instance, a group of people with similar illnesses and exposures had been tracked over a long period of time, their exposure could be proven in-fact, and there was a 99.9 percent consensus in the scientific community a causal link existed.
This was not the case with TCE at the time he testified in Lanier. The 99.9 percent causal link that has been scientifically established between asbestos and mesothelioma, was not, at the time, determined between TCE and the host of illnesses the plaintiffs presented.
He said that most of the time the critical difference between a lawyer getting past summary judgment or not depends on their financial ability to afford the research and expert witnesses to put together a case, and the judge.
“In theory the law is even-handed,” Teitelbaum said, “but judges are not, and legal education doesn’t include science. And so, if we go into court with a sound scientific approach and the judge doesn’t understand epidemiology and he doesn’t understand the subject and has [a full docket], he’s going to get rid of [the case] if he can. The thing he’s going to say is go settle it. And if the parties can’t settle it, he’s going to make a decision, and rarely is it informed.”
Teitelbaum continued that that is not always the case and shared his experience of working for a federal judge in Denver for ten years, helping the judge evaluate what the experts in a variety of cases involving significant medical issues were saying in their testimony.
“When he went in, he actually knew what the science meant,” Teitelbaum reflected, “and he could tell who was blowing smoke and who wasn’t.”
“But more often than not, it’s purely an emotional decision by the judge.”
Teitelbaum shared a favorable opinion of Judge Silver and said that she was largely doing what Arizona law required of her in the TCE cases she presided over.
“It’s a nasty hook,” Teitelbaum said about the requirements of the law in some states.
Medical monitoring clinic
The lone cause of action to make it past the summary judgment phase was the claim of Hughes’ negligence for illicit dumping. This gave the plaintiff’s some, but perhaps not enough, leverage to bring Lanier to a settlement that could provide adequate medical monitoring into the future.
The City of Tucson and Tucson Airport Authority agreed two years prior, in 1996, to settle for $250,000 and Hughes eventually settled for $415,000 to provide medical monitoring funds to the Lanier class.
The settlement released Hughes and third-party defendants from any future medical monitoring claim by anyone part of the defined class in Lanier, forever.
An estimate of the total number of people comprising the class was between 75,000 and 100,000 in a summary report issued by the joint medical surveillance program established in 2001.
As early as 1991 Pima County Supervisor Raul Grijalva was calling for “a fistful of studies, along with a health center and tax relief, for southsiders in the plume of TCE contamination,” according to the Star. The County agreed to put up $250,000 which it called on the city to match.
The city agreed to allocate Community Development Block Grant funds to the establishment of a clinic which Grijalva called “an empty gesture” because that money was already supposed to go to other low-income area causes.
By 1993 El Pueblo Clinic was designated as the site for a TCE clinic with Pima County providing $250,000 to its operations and in 1994 the clinic was fully opened to residents. Eventually the state, under former Governor Fife Symington, also chipped in another $250,000.
However, by 1997 the county and the state reduced their annual contributions by 90 and 80 percent respectively. At the time of the reductions the clinic was serving approximately 800 residents, according to the Star. In 1998 the county re-approved the clinic for $250,000.
By the time Lanier reached settlement and funds were in place to contribute to El Pueblo Clinic’s program the Clinic was recovering from issues that arose in 1999 when its board fired Director Hector Morales resulting in mass resignations and a lawsuit.
It wasn’t until 2001 that the Clinic’s board approved acceptance of the Lanier settlement funds and the court-ordered establishment of a joint-operation with the University of Arizona College of Public Health. The two entities co-operated the clinic between 2001 and 2004 and in 2005 the court approved UA stepping away from the clinic’s operation, leaving El Pueblo to run it until 2007 when it issued a final report.
Court records are not consistent on the total number of class participants that may have received screenings and diagnostic services from the medical monitoring program.
A breakdown of services submitted to the court indicated between 2001 and 2005 the clinic served 350 class members and spent $137,400. But, El Pueblo Clinic’s 2004 petition to the court to continue operating the clinic without university assistance said, “538 eligible individuals were interviewed and referred to Health Center for screening.”
El Pueblo Clinic’s final report issued in 2007 concluded that an additional 283 class members received services in the time since it took over as sole operator.
So, in the end, out of the estimated tens of thousands of individuals likely affected by TCE consumption somewhere between 633 to 821 eligible residents received medical monitoring services, and not for a long period of time.