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Appeals court slashes damages for Jacksonville Exxon leak

A divided Court of Special Appeals has struck down a large part of the $150 million in damages awarded to 88 Jacksonville households in their lawsuits against Exxon Mobil Corp. stemming from a massive 2006 gasoline leak.

The court left intact about $60 million in property damage claims, reversing the award to just one household.

However, a majority of the nine judges found the jury instruction on emotional distress damages was faulty and ordered a new trial on that count in Baltimore County Circuit Court for most plaintiffs.

The judges also struck down the awards for medical monitoring, which had accounted for more than $14 million.

While the majority opinion took just two pages, four separate concurrences and dissents brought the total to 321 pages. It was posted to the court’s website Thursday evening.

Stephen L. Snyder, the plaintiffs’ lead attorney, was reviewing the opinion Thursday night, saying he had just received it at around 5:40 p.m. and had seven lawyers reviewing it.

“I’m not sure what we’re doing yet,” said Snyder, of Snyder & Snyder in Baltimore County. “This case is far from over.”

Claire Hassett, an Exxon Mobil spokeswoman, said Thursday night the company was “reviewing the court’s lengthy and complex ruling” and then consider its legal options.

James F. Sanders, Exxon Mobil’s lead trial lawyer, was traveling Thursday night; his Nashville, Tenn. office referred questions to the company’s public affairs.

Charles P. Scheeler, Exxon Mobil’s appellate attorney, did not return telephone or email messages seeking comment Thursday evening. Scheeler is with DLA Piper in Baltimore.

Residents alleged the company ignored a history of reliability problems with leak detectors such as the one at the Jacksonville station, where a 25,000-plus-gallon leak began Jan. 13, 2006.

The detector alarmed the first day, but the leak was not discovered until 37 days later after an inventory discrepancy was noticed. Exxon maintained technicians responding to the station that first day improperly reset the detector, essentially rendering it incapable of alarming for the leak.

The five-month trial ended in March 2009. Jurors deliberated for seven days before coming back with their verdict, which did not include punitive damages.

In addition to the property damage and medical monitoring awards, the jury in March 2009 awarded the 88 plaintiff households more than $71 million in noneconomic damages — in most cases, $500,000 per adult and $50,000 per child.

Exxon Mobil appealed the verdict, and a three-judge panel on the Court of Special Appeals heard arguments in January 2011. Before an opinion was issued, the case was reargued Sept. 27 in front of a nine-judge panel.

Four of the nine judges would have affirmed the verdict in all respects. The other five split their votes on the issues.

A majority found fault with the jury instruction on emotional distress, specifically as to the fear of cancer claim. The instruction read in part that a plaintiff had to demonstrate “the fear of cancer genuinely exists” and that the fear of contracting it “is objectively reasonable” based on scientific evidence.

“This instruction did not advise the jury that it must find that there was proof of exposure as to each plaintiff, or that it must determine, with respect to each plaintiff, whether, there was a substantial, medically verifiable possibility that each plaintiff would contract cancer,” Judge Kathryn Grill Graeff wrote in a separate opinion. Judge Shirley Watts expressed it as a “more likely than not” standard.

The order for a new trial excludes 53 of the individual plaintiffs — about one-sixth of the total. Their awards were simply reversed, not reversed and remanded, because the court found the evidence of their emotional distress was insufficient to support the verdicts.

Judge James R. Eyler, in his concurrence and dissent, said the cases “illustrated the danger” of trying separate cases in a consolidated manner “presumably for judicial efficiency.”

“The phenomenon is unprecedented in this State,” Eyler wrote. “[T]he mere size of the undertaking and the length of time consumed in arriving at judgments cannot be the basis for treating these cases as if they were a class action and ignoring reversible error. If…the consolidated cases have become too big to reverse, our system has failed.”

In June, a separate group of 160 plaintiff households and business was awarded $1.5 billion in damages in its lawsuit against Exxon Mobil, including $1 billion in punitive damages. Exxon Mobil is also appealing that verdict.

A message left with Theodore M. Flerlage Jr., the lead plaintiffs’ attorney in that case, was not returned Thursday night. Flerlage is with The Law Offices of Peter G. Angelos PC in Baltimore.