RE: Ball, et. al. v. Bayard Pump & Tank Co., Inc. et. al. No. 99-06438 (Pa. Ct. Common Pleas., Montgomery County.)

PENNSYLVANIA JURY REACHES A DEFENSE VERDICT IN CASE THAT ALLEGED BENZENE GROUNDWATER CONTAMINATION CAUSED LEUKEMIA AND AUTISM

On May 3, 2007, a jury of the Pennsylvania Court of Common Pleas for Montgomery County reached a verdict for the defense in a trial that involved the claims of four plaintiffs. Archer & Greiner Partner Robert T. Lehman, representing Gulf Oil Limited, successfully argued that the claims of four plaintiffs, including cases of autism and leukemia, were not the result of a Pennsylvania gas station leak in 1998. Lehman is a member of the firm’s Petroleum Industry Practices Group.

The case was overseen by Judge Maurino J. Rossanese Jr. The case was brought in 1999 on behalf of 49 plaintiffs living in Blue Bell, Pennsylvania against several defendants. Those original defendants then in turn added several other defendants into the case (called “additional defendants” under Pennsylvania practice).

On February 27, 2007, the Judge Rossanese adopted the trial plan suggested by defendants, which involved bellwether plaintiffs and reverse bifurcation. Pursuant to the scheduling order, the trial only concerned damages brought by four of the plaintiffs; Jared Glass, Karin Weidenhammer, Susan Fralick Ball and Maryann Wrubel. The following issues were to be tried: whether the contaminants of concern reached the plaintiffs’ property; whether the contaminants of concern entered the plaintiffs’ homes/houses; whether exposure to the contaminants of concern caused the personal injuries claimed; whether the exposure to the contaminants of concern warrant the medical monitoring claims by plaintiffs; whether exposure to the contaminants of concern caused property damage and property value diminution; and the amount of plaintiffs’ damages.

The jury was informed by the court that at least 13,000 gallons of gasoline were released at the Blue Bell Gulf station. The release was discovered in May 1998. No one knew exactly when the leak started or how much gasoline was leaked.

The trial commenced on April 2, 2007. Plaintiffs case in chief consumed 15 days of trial, the defense, 6 days. Closing arguments were heard on May 2, 2007, and a defense verdict was rendered on May 3, 2007 after approximately five hours of deliberation by the jury.

Plaintiffs’ allegations were that constituents of gasoline, especially the BTEX compounds (benzene, toluene, ethyl benzene and xylene), and MTBE (a gasoline additive), migrated from the Blue Bell Gulf station through the groundwater under the homes of the plaintiffs, and then fumes from the gasoline entered the homes through the mechanism of soil vapor intrusion. Plaintiffs’ medical expert and toxicologist then opined that the maladies suffered by plaintiffs were caused by the exposures and medical monitoring was appropriate, and plaintiff's real estate appraisal expert opined the homes suffered diminution in value.

Defendants successfully argued that the Pennsylvania Department of Environmental Protection protected human health and the environment. Defendants also successfully argued that no contamination reached the plaintiffs' homes, either directly or through soil vapor intrusion. As defendants' experts explained, any exposure to gasoline or its constituents was insufficient to cause disease. Defendants also proved that property values in the neighborhood remain strong.

Counsel for the defendants: Gulf Oil Limited - Robert T. Lehman of Archer & Greiner and Robert Connell Pugh of Kane, Pugh, Knoell, Troy & Kramer; Blue Bell Gulf - John Mattioni and Scott Schwartz of Mattioni Ltd.; Bayard Pump and Tank Co. - Jeanine Hillesland of Bayard Pump and Tank; Marley Pump Co. - David Erickson, Paul Williams, Joel Mosher and Seth Miller of Shook, Hardy & Bacon; Veeder Root Co. - Thomas DeLorenzo of Marshall, Dennehy, Warner, Coleman & Goggin; E.O. Habhegger Co, Inc. - Kimberly Woodie of Marshall, Dennehy, Warner, Coleman & Goggin; Titeflex Corp. - Robert Billet, Russell Massey and Alice Marshall of Billet & Conner and David Parsells of Stevens & Lee and George Petersmark of Petersmark Callahan, Bauer & Barbour; and Containment Technologies Corp. - Joseph Cincotta and Stephen Imbriglia of Gibbons, P.C.

Counsel for the plaintiffs: David Pittinsky, Gina Maisto Smith, Brendan Collins and Sabrina Rudmick of Ballard, Spahr, Andrews & Ingersoll.