At the conclusion of one of the longest jury trials ever held in Kansas, a jury in January left residents in a southeast city stunned. The panel had decided that the city of Neodesha was not entitled to recover the costs of cleanup and damage from contamination caused by an oil refinery. However, the judge who presided over the 17-week trial recently gave the town new hope, when he overturned the jury verdict. The judge concluded that he had given the jury improper instructions.

Allen County District Judge Daniel Creitz said strict liability for the contamination was not a question of fact for the jury to decide, but instead was a question of law and that the city was entitled to judgment in its favor as a matter of law. As a result, the jury should only have been instructed to determine damages to be paid by oil giant BP Corp. North America and its predecessors. Judge Creitz ordered a new trial to consider only on the issue of damages. The original lawsuit was filed in 2004 on behalf of the 2,700 residents as well as government entities and businesses in the southeast Kansas city. The plaintiffs sought nearly $478 million for cleanup costs and damages, plus interest, as well as punitive damages.

The contamination covers almost 70 percent of the town, including underneath City Hall, schools and hundreds of homes. Experts found groundwater pollution under 350 acres after the city spent $1 million to hire its own experts and drill test wells. The refinery, which operated from 1897 until it was dismantled in 1970, generated wastes and byproducts include benzene, toluene, ethel benzene and exylenes, polyaromatic hydrocarbons and metals such as arsenic, chromium, lead and mercury. Although some of the contaminants are known to cause cancer and other diseases, the lawsuit was not a personal injury case but instead sought property damages.

At trial, the Defendants contended they were at least partly responsible for the groundwater contamination, but were actively cleaning up the pollution under the direction of the Kansas Department of Health and Environment. In his ruling, Judge Creitz said the company’s claimed cooperation with state health officials was not a defense to the claims of property owners for damages and other relief. The judge said in his order:

Given the Defendants’ admissions and the evidence here, no rational juror could return a verdict stating that Defendants were not guilty of contaminating the groundwater underneath Neodesha. The contaminants involved in this case are some of the most dangerous known to mankind.

The judge noted that many defense experts conceded at trial that it was the Plaintiffs’ expensive investigation, after the lawsuit was filed, that identified the refinery pollution spreading beyond the plume identified by the company’s engineers and approved by state health officials. On September 22nd, the judge gave BP ten days to appeal his decision.

Source: Insurance Journal