Down the Drain

Maricopa County Superior Court judge's dismissal of claims that an industrial solvent can cause cancer and other health problems could have a chilling effect on toxic-liability suits across the country.

Judge Steven Sheldon's recent decision to reject contentions by 18 Scottsdale residents as lacking scientific foundation has caught the attention of high-tech industry watchdog groups as well as environmental scientists.

"Essentially, if this opinion were to become the general view of the courts, nobody could bring a toxic tort claim, except for a handful of things, like asbestos or lead," says David Ozonoff of Boston University School of Public Health, the main scientific expert for the plaintiffs.

In the first of many lawsuits against Motorola, Sheldon dismissed allegations two weeks ago that Motorola and other companies caused cancer and other diseases by dumping trichloroethylene (TCE) into the groundwater under Scottsdale and Phoenix..

"[T]he scientific community, with respect to the specific chemical in this case, TCE, does not accept the theory that it is causally linked to any of the specific diseases at issue in this case," Sheldon wrote in his 65-page opinion.

Ozonoff criticized the judge's decision as unscientific and not based on the record.

"His [Sheldon's] rendition of what was said bears no relation to the record or what I said myself," Ozonoff says. "This is mystifying to me that he has said that there is no link between TCE and these diseases. . . . He has just reproduced the defendant's briefs, including their most outrageous claims."

The case, Lofgren v. Motorola, arose out of dozens of claims from people who said that their health had been damaged by drinking water tainted by TCE, an industrial solvent that seeped into the groundwater from a number of sources. Residents who lived in the area of the tainted groundwater sued Motorola and other companies that used the chemical for years. This case only dealt with 18 of the claims from the south Scottsdale area, while many others are still waiting to work their way through the courts.

While TCE has been linked to a number of diseases and is thought to be a probable cause of cancer, the defendants in this case went on a full-court press against the plaintiffs' expert witnesses. They contended in court arguments that the evidence linking TCE to disease is too shaky for a jury to hear.

Sheldon agreed. He said the plaintiffs' experts didn't rely on good science to reach their conclusions, and instead seemed to come up with research tailored to fit their opinions.

Tony Lucia, an attorney for the plaintiffs, says he and the other lawyers on the case will work to overturn the judge's ruling.

"Obviously we're disappointed with the decision and we do plan to appeal, and we feel we'll be successful on appeal," he says.

Lucia declined to comment on the specific issues that the plaintiffs would contest, but referred to two cases in Florida and Tennessee involving TCE where juries were allowed to hear testimony regarding the health effects of the chemical. One of those juries awarded $12 million to the plaintiff in that case.

But Lonnie Hurst, a spokesperson for Motorola, says that good science won out over bad in this case.

"TCE is one of the most widely studied chemicals of the 20th century. And there has never been a case of cancer in humans caused by TCE. We have always followed the data, and thought that the facts would come out," Hurst says.

While Sheldon's ruling can't be used as precedent, it's a bad sign for other plaintiffs suing over toxic chemicals.

Ted Smith of the Silicon Valley Toxics Coalition, a San Jose, California, advocacy group that has campaigned for cleanup of the chemicals associated with the high-tech industry, also says that the judge's decision is troubling.

"I'm concerned about states like Arizona in particular . . . because if the defendants succeed in keeping the plaintiffs' claims out entirely, they're going to win all these cases," Smith says.

Smith admits that the scientific evidence about TCE is still open to debate, but says that's why competing experts should be allowed to testify about it.

"TCE has been listed as a probable carcinogen by every reputable agency that creates lists of toxic chemicals. You don't hear much controversy about whether TCE causes health problems. . . . If a judge in Arizona should decide not to even allow the testimony on the toxic properties of impacts on human health, that would be a travesty," he says.

Smith adds that a decision like this concerns everyone facing a lawsuit concerning the health effects of TCE, which has been implicated in more than half the Superfund toxic-waste sites in the United States.

"The defense bar is certainly very well-organized. Once these things happen, the news travels fast," he says.

Dr. Bruce Fowler, a toxicologist at the University of Maryland, agrees. "The implications are fairly broad," he says of decisions concerning TCE. "Of all the chemicals in Superfund sites, TCE is right up there at the top. It's basically a way of getting grease off of things. In the case of semiconductors . . . they use a lot of it. That's the basis for a whole lot of Superfund sites."

However, Motorola isn't doing any victory laps yet. It still faces other lawsuits based on this same evidence, as well as a separate federal suit.

"Each case will be decided on its own merits and own its evidence. I don't think we can make any kind of judgment on what this means for other cases," Hurst says.

"If you asked me if I was in some other city and state with my own case, I wouldn't breathe easier until I had a judgment in my own case," he adds.

The attorneys in the federal case against Motorola and others also say that there are substantial differences between the two suits.

John O'Quinn, a flamboyant Texas attorney best known for his multimillion-dollar verdicts against companies that manufactured breast implants, is one of the attorneys handling the federal case. John Leach, an associate with O'Quinn's firm, says their case relies on more than just TCE.

"It does not directly impact our lawsuit at all, but it has implications for our case that are not favorable," Leach says. "We feel that our evidence on the specific exposures that our clients received is considerably more specific, and includes chemicals aside from TCE."

Leach also says that judges often overstep their bounds when they decide scientific issues rather than letting the jury decide.

"In my own personal view as a citizen, it's an abrogation of right to trial by jury," Leach says. "You have qualified scientists testifying--and there's no argument over qualifications--and you have a judge, sitting in as a scientist."

But Motorola's Hurst says the judge should act as a gatekeeper to prevent juries from hearing "junk science."

"I think people want to see cases based on science and on the known facts," he says.

"I don't know about junk science," Ozonoff responds, "but to me, this is junk law and junk logic."

Contact Chris Farnsworth at his online address:


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