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Court of Appeals takes Jacksonville Exxon cases

Maryland’s top court agreed Wednesday to consider how much money two groups of Jacksonville residents should receive in damages from Exxon Mobil Corp. in their lawsuits over a massive 2006 gasoline leak.

The Court of Appeals granted petitions for writs of certiorari for its September 2012 term for two cases, Exxon Mobil Corporation v. Albright and Exxon Mobil Corporation v. Ford. Hearing dates have not yet been scheduled.

The Albright case involves 160 Jacksonville residents and businesses, which went to trial in 2011. Last June the jury found Exxon had committed intentional misconduct and awarded about $1.5 billion, including $1 billion in punitive damages. Exxon appealed that verdict to the intermediate Court of Special Appeals, but the residents’ attorney successfully petitioned the Court of Appeals to bypass that court.

“We’re pleased that the court has determined to take it,” said the lawyer, Theodore M. Flerlage Jr., of The Law Offices of Peter G. Angelos PC in Baltimore. He declined to comment further, citing the pending appeal.

The Ford case was brought by 88 other Jacksonville families, represented by Stephen L. Snyder’s law firm, and resulted in a 2009 verdict for $150 million. The Court of Special Appeals this year set aside some awards, ordered new trials on others and allowed about $60 million in property damages to stand.

Exxon Mobil said in a statement that both cases present “important issues.”

“As set out in the various briefs we filed, there are multiple reasons why the jury verdicts cannot stand,” the company added. “We have apologized to the Jacksonville community throughout this case and we remain ready to compensate those who were truly damaged by this unfortunate accident.”

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 company reached a $4 million settlement with the Maryland Department of the Environment in September 2008 related to the spill. The company has spent more than ten times that amount on the cleanup effort under the direction of MDE.

The Ford case, also known as the Alban group, went to trial in October 2008 in Baltimore County Circuit Court and the jury returned its verdicts in March 2009.

All but a small fraction of the awards survived post-trial motions, leading Exxon to appeal.

After three recusals and an en banc hearing by the nine remaining judges, the Court of Special Appeals struck down a large part of the awards this February.

The votes and reasons were fractured, though, with a one-page unsigned opinion followed by 320 pages encompassing four separate concurrences and dissents, with shifting majorities on each question.

The bottom line was that the property damage awards of about $60 million remained intact.

A majority of the nine judges found the jury instruction on emotional distress damages was faulty, and ordered a new trial on that count for most plaintiffs. A different majority struck down approximately $14 million in medical monitoring damages.

In March, the Court of Special Appeals denied two motions for reconsideration from the plaintiffs, who argued seven judges of the 12-member court were needed to overturn the verdict. Exxon and the Ford plaintiffs both sought review by the Court of Appeals.

Snyder, the Ford plaintiffs’ lead attorney, declined to comment on the Court of Appeals decision to hear the case. He is with Snyder & Snyder in Pikesville.

In papers filed with the high court, Snyder again argued that the Court of Special Appeals lacked the sufficient number of judges to render a valid decision. He also argued Exxon Mobil waived its right to appeal the compensatory damages award when its trial attorney essentially apologized for the spill at trial and told the jury to award damages it deemed appropriate.

Snyder called James F. Sanders’ statements part of a trial strategy to discourage the jury from awarding punitive damages. Sanders, through an aide, referred all questions to Exxon Mobil. Sanders is with Neal & Harwell PLC in Nashville.

Snyder, in court papers, also defended the trial judge’s jury instruction on “fear of cancer” and the sufficiency of the evidence supporting an award for medical monitoring.

Exxon Mobil’s appellate attorney, Charles P. Scheeler, argued in papers filed with the Court of Appeals that, to recover damages for a fear of cancer, plaintiffs must present evidence that they have cancer or its symptoms or will more likely than not contract cancer due to their exposure to the toxic substance. Scheeler added the plaintiffs could not be compensated for lost property damage because the evidence they produced at trial indicated that their properties retained substantial value.

Scheeler’s partner, John E. Griffith Jr., referred all questions to Exxon Mobil. Scheeler and Griffith are with DLA Piper in Baltimore.