Source: http://www.courthousenews.com, October 8, 2014
By: Jack Bouboushian
Property owners in Palm Beach County, Fla., may sue an airplane manufacturer for allegedly contaminating the groundwater with toxic chemicals, the 11th Circuit ruled.
In two consolidated cases, property owners in “The Acreage” in Palm Beach County sued United Technologies Corporation, d/b/a Pratt & Whitney (P&W), alleging that the aircraft and rocket engine maker released toxic chemicals into the soil that contaminated their groundwater.
The Acreage and the P&W plant both sit above the same aquifer, in which water flows from north to south, from the plant towards plaintiffs’ 17,000 parcels of property.
One plaintiff allegedly developed cancer as a result of the toxic contamination, and all claim that their property has lost value since the contamination was discovered.
A federal judge dismissed both cases, finding that plaintiffs had failed to identify the alleged contaminant or that P&W was responsible.
But the 11th Circuit reinstated the suits Monday.
“The district court held that the ‘contamination’ plaintiffs did not sufficiently allege actual contamination of their individual properties. This conclusion constituted error, as it discounted the aggregate plausibility of the plaintiffs’ allegations,” U.S. Circuit Judge Adalberto Jordan said, writing for the three-judge panel.
The court also held that plaintiffs are not each individually required to test their land for contaminants at this stage in the litigation – although it may ultimately be necessary to win their burden of proof.
“The plaintiffs alleged that they tested for and found contaminants on at least some of The Acreage properties, and the plaintiffs’ hydrologists and toxicologists verified the presence of these chemicals in The Acreage and the plaintiffs’ groundwater. These assertions, taken in tandem with the other allegations discussed above, are more than sufficient to ‘raise a right to relief above the speculative level,'” Jordan said.
Plaintiffs estimate that drilling a test well on each of the 17,000 parcels of land in The Acreage, plus conducting a lab analysis of each sample, would cost approximately $382 million.
In addition, under Florida law, “a tort plaintiff seeking to recover for economic harm caused by pollution or contamination need not own property that is itself polluted or contaminated,” Jordan wrote.
Therefore, it is possible for the property owners to pursue their claims for negligence, strict liability, and nuisance, even if their individual parcels test negative for contaminants, the 37-page opinion said.