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Issues narrowed in lawsuit against gas station

Parkton residents’ $3 billion lawsuit against a gas station operator alleging contamination of their water supply will not include a claim for medical monitoring, their lawyers said Tuesday.

The decision negated the immediate need for a scheduled Frye-Reed hearing for the toxicology expert retained by The Law Offices of Peter G. Angelos P.C., which is representing the plaintiffs. Lawyers for Carroll Independent Fuel Co. subsequently requested time to review their motions related to toxicology and medical monitoring experts.

“We need to regroup,” said Dwight W. Stone II, a partner with Whiteford, Taylor & Preston LLP in Baltimore. “There are issues still on the table.”

Bruce C. Hill, one of the plaintiffs’ lawyers, agreed.

“We all have to look at what the issues are now and reframe them,” he said.

Retired Judge J. Norris Byrnes, who has been specially assigned to the case, will hear defense motions for summary judgment Dec. 15 in Baltimore County Circuit Court and said he was “tempted” to rule on whether to allow the more than 100 plaintiffs to seek punitive damages at that time. A mediation session is scheduled for Dec. 18.

Fear of cancer

A Frye-Reed hearing, named for the leading cases in the District of Columbia and Maryland, is used to determine whether scientific expert testimony is admissible. The court will allow the expert’s opinion only if its basis is generally accepted within the expert’s field.

While dropping the medical-monitoring claim forestalled Tuesday’s scheduled Frye-Reed hearing, the issue could soon resurface.

More than 30 households filed suit in 2007 against Baltimore-based Carroll stemming from groundwater contamination found in 2005 around the former Wally’s Citgo, located at the intersection of Middletown and Rayville roads.

Samples from monitoring wells on the station’s property turned up significant concentrations of the gasoline additive methyl tertiary butyl ether (MTBE), in addition to benzene, a known human carcinogen. Subsequent groundwater samples taken from nearby homes also found MTBE, benzene and other chemicals.

Human exposure to MTBE has not been conclusively shown to cause cancer, although some studies have shown it can cause cancer in animals. Byrnes wondered aloud if the toxicology expert was even necessary once the medical monitoring claim was dropped, and indicated he would not allow the expert to “extrapolate” a connection between MTBE and cancer in humans based on animal testing.

“He can’t be a voice crying alone in the wilderness,” Byrnes said.

Hill said the expert, Dr. Myron A. Mehlman, would offer testimony about the “carcinogenicity” of benzene and MTBE as it relates to the general population, not any specific plaintiff.

“I think it takes [the case] toward reasonableness of fear of cancer and away from medical monitoring,” Hill said.

The residents, collectively known as the Beazley plaintiffs, seek $1.5 billion to restore their water supply and $10 million each in compensatory damages, plus an unspecified amount of punitive damages.

Wally’s Citgo was rebranded as a BP station in early 2008 but is still operated by the same entity, R&J Wiser Inc., which is a defendant in the lawsuit along with Carroll Independent, the supplier.

Large pool

On Tuesday, Byrnes asked both sides how large a jury pool they thought would be needed for the trial, which is scheduled to begin in January and last for approximately two months. Defense lawyer Warren N. Weaver, one of Stone’s colleagues, suggested a pool akin to the one used for Jacksonville residents’ gas leak lawsuit against ExxonMobil Corp., which was decided earlier this year.

In the Exxon case, six jurors and eight alternates were chosen from a jury pool of 355 people. The multi-tiered selection process took eight days to complete.