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October 13, 2009
By Henry Gottlieb
New Jersey Law Journal
A federal judge says 15,000 residents of two southern New Jersey towns can pursue a class action aimed at getting DuPont to remove potentially harmful chemicals from water supplies.
U.S. District Judge Renee Bumb in Camden granted class certification to home owners and renters who want to prove that their property values were harmed by the leaking of perfluorooctanoic acid, a byproduct of the production of Teflon, from DuPont's Chambers Works in Salem County.
Last December, Bumb declined to grant class certification for a suit seeking medical monitoring for the residents. There was no dispute that the air and water around the plant have been subject to discharges of the chemical, but there was insufficient evidence to show it had caused bad health effects or would in the future.
So the plaintiffs' re-focused their complaint to allege that pollution had caused a diminution of property values and to seek equitable relief – a cleanup. That satisfied the requirements for class certification, Bumb ruled on Oct. 9 in Rowe v. E.I. DuPont de Nemours and Company , 06-1810.
"We are obviously very pleased that Judge Bumb has allowed our class to proceed and that the residents of our state can still pursue their claim for clean water against DuPont," says plaintiffs' lawyer Shari Blecher, of Lieberman & Blecher in Princeton.
It wasn't a complete victory for the plaintiffs. Bumb denied class certification for negligence damages on grounds that there was insufficient evidence that all the class members suffered legally cognizable injuries from contamination. Blecher says such claims would now have to be pursued by individuals.
Blecher says the eight named plaintiffs in Rowe and a companion case, Scott v. E.I. DuPont de Nemours and Company , 06-3080, get their water from wells or from the Pennsgrove Water Supply, purchased by New Jersey American Water Company in 2007.
The current owner's most recent public report on contaminants, based on 2008 readings, says the range of collected samples for the chemical, also known as PFOA, showed 0.016 to 0.069 parts per billion. The state Department of Environmental Protection guidelines call for readings of 0.04.
While there is no definitive study proving there is a danger from PFOA that requires medical monitoring, the plaintiffs have presented enough evidence to proceed on a nuisance theory, the judge ruled.
Bumb said mere fear of a potentially hazardous pollutant can trigger a serious interference with a resident's use and enjoyment of property, and the plaintiffs had shown sufficient evidence of that fear to allow the suit to continue as a class action. The named plaintiffs, for example, use bottled water for drinking and most of them use it for cooking too, she noted. What's more, a showing of particular fear isn't necessary: It need only be the kind of fear a normal person in the community might have, she said.
Bumb rejected DuPont's argument that a nuisance has to occur on land contiguous to a class of claimants. As long as a resident uses the public water supply or draws drinking water from a well within a two-mile radius of the Chambers Works plant, they can be in the class, she ruled.
Belcher says the plaintiffs are gathering evidence that the water supply and wells are tainted, that the pollution is harmful and that it caused a diminution in property values. She says she doesn't have an estimate of how much a cleanup would cost.
Dan Turner, a spokesman for DuPont, says the company is disappointed by the grant of certification but pleased that the judge denied the other relief sought by the plaintiffs. "We will continue to vigorously defend the case," he says.