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Exxon lawyer asks court to throw out verdict

ANNAPOLIS — An attorney for Exxon Mobil Corp. urged a Maryland appeals court Monday to throw out — or at least substantially reduce — a $150 million verdict for the emotional distress, medical monitoring and lost property values endured by 300 nearby residents following a 2006 gasoline leak in Jacksonville.

Attorney Charles P. Scheeler said evidence presented at the five-and-a-half-month trial did not support the jury’s conclusion in March 2009 that the plaintiffs — collectively known as the Alban plaintiffs — live with a reasonable fear of contracting cancer or that their homes have lost all their value.

But Stephen L. Snyder, the plaintiffs’ lawyer, countered that the jurors and the judge who approved the verdict are owed deference because they reviewed the evidence and heard all the witnesses and experts during the long trial.

Appellate courts “give great deference to jury verdicts, which are considered sacrosanct,” Snyder told the Court of Special Appeals.

Snyder also urged the court not to be concerned about the large, $150 million figure. No single plaintiff was awarded more than $2 million, he said.

Scheeler and Snyder argued the case before an appellate panel of three judges, who infrequently interrupted them with questions during the 50-minute session.

Scheeler, when questioned, tried to assure presiding Judge Timothy E. Meredith that precedent exists for a Maryland appeals court to reduce a property valuation award approved by a trial judge. And Snyder told Judge Robert A. Zarnoch that the plaintiffs are still drinking bottled water provided by Exxon Mobil due to contamination from the leak.

The third jurist, retired Court of Special Appeals Judge Raymond G. Thieme Jr., was sitting by special assignment.

By a coincidence of scheduling, the intermediate appellate court heard Exxon Mobil’s appeal as opening statements began in the second mass-action lawsuit against the company stemming from the more than 25,000-gallon leak.

The gas leak began on Jan. 13, 2006, but was not discovered until more than five weeks later when an inventory discrepancy was noticed. Exxon Mobil said a leak detector sounded the first day, but technicians responding to the station improperly reset it, essentially rendering it incapable of sounding an alert again.

The jury’s award of $150 million included $71 million in non-economic damages, $61 million for diminution of property value and more than $14 million in medical monitoring. Jurors did not award punitive damages on the plaintiffs’ claim of fraud by concealment.

Visiting Judge Maurice W. Baldwin Jr., who presided over the Alban plaintiffs’ trial, upheld nearly the entire verdict in September 2009, though he wrote he was “very tempted” to reduce damages awarded for the plaintiffs homes, which essentially amounted to their pre-leak value.

The award for lost property value was a “millimeter shy” of shocking his conscience, wrote Baldwin, a retired Harford County Circuit Court judge.

Scheeler, in pressing Exxon’s appeal, challenged each element of the jury award as violating Maryland case law.

With regard to non-economic damages, he said awards may be made for the plaintiffs’ fear of contracting cancer only when they can prove exposure to a carcinogen made it “reasonably probable” that they would contract the disease.

But Scheeler, citing medical testimony from the trial, said the residents’ increased chance of contracting the disease was “negligible.”

“There are minuscule risks we accept in everyday life,” said Scheeler, of DLA Piper US LLP in Baltimore.

He added that medical monitoring damages can be awarded only if the plaintiffs show a “significant increase” in their risk of contracting disease, not just “any increase.”

Regarding the award for lost property value, Scheeler quoted the trial judge’s concerns about the jury’s verdict and said the jurors improperly extrapolated the award to all 88 homeowners after hearing financial testimony regarding only seven of them. The post-leak loss, if any, in the property value of each home should have to be accounted for at trial to ensure an accurate award of damages, Scheeler said.

But Snyder told the appellate court that deference to the award is owed.

“You have to rely on what the trial judge did,” said Snyder, of Snyder & Snyder in Pikesville. “[The damages award] did not shock his conscience.”

Snyder also argued that Exxon Mobil’s trial attorney, James F. Sanders of Nashville, Tenn., essentially apologized for the spill at trial and told the jury to award damages it deemed appropriate. Snyder called Sanders’ statements part of a trial strategy to discourage the jury from awarding punitive damages.

Nevertheless, Exxon Mobil waived its right to appeal the verdict when Sanders invited the jury to issue an award, Snyder said.

“[Exxon Mobil] sat back and waited” for the jury’s verdict, Snyder said. “You can’t challenge the sufficiency of it once you accept it.”

But Scheeler responded that a stated, pre-verdict willingness to pay compensation does not waive a company’s right to challenge a damages award that conflicts with established precedent.

“‘We will pay’ does not mean ‘we will disregard the law,” Scheeler said.

The Court of Special Appeals did not indicate when it will render a decision in the case, Exxon Mobil Corp. v. Ford et al., No. 01804, September Term 2009.