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Exxon’s neighbors ask top court to restore verdicts in gasoline leak cases

Hundreds of Baltimore County residents and businesses who sued Exxon Mobil Corp. over a 2006 gasoline leak have asked the state’s top court to reconsider a decision that stripped them of damages totaling more than $1.6 billion.

Two separate lawsuits were filed against the Irving, Texas-based fuel company by residents and businesses after 26,000 gallons of gas leaked from a Jacksonville station over the course of several weeks.

The Court of Appeals considered the cases simultaneously last November. In February, it eliminated $1 billion in punitive damages and $650 million in compensatory damages awarded in the two sets of cases. The court did allow new trials on property damages for a subset of residents and businesses whose property showed actual contamination from the oil leak.

In the motion for reconsideration filed on Wednesday’s deadline, attorney Stephen L. Snyder contends that the Court of Appeals should have done a better job of separating the issues involved in the two lawsuits. Snyder, of The Snyder Litigation Team in Pikesville, claims the top court overlooked certain facts specific to his clients, 88 households known as the Ford group, who were initially awarded a total of $150 million.

“Both cases arose from the same gasoline leak, but that’s where the similarity ends,” the motion said. “These two cases were presented at the trial and appellate levels in two very different manners with different strategies, trial tactics and evidence.”

In the second case, brought by The Law Offices of Peter G. Angelos on behalf of 160 households and businesses known as the Albright group, a different jury found that ExxonMobil had committed fraud in its handling of the lawsuit. That jury found awarded $1 billion on the fraud count and $500 million in compensatory damages.

“The Jacksonville residents are not victims of random misfortune, but, rather, of repeatedly deceitful and wrongful conduct by Exxon,” the Albright group’s motion said. It was signed by H. Russell Smouse of the Angelos firm as well as Arnold M. Weiner, of the Law Offices of Arnold M. Weiner, which was brought in for purposes of the motion for reconsideration.

The Albright motion claims the Court of Appeals departed from established principles of Maryland law and that its decision rested on facts presented by Exxon that were rejected by juries in lower courts.

“These holdings, in combination, operate to relieve Exxon of most of the consequences of its egregious actions and to deprive the residents of Jacksonville of meaningful relief from prolonged disruptions of their daily lives, a heightened risk of cancer and financial losses that they have suffered through no fault of their own,” the Albright group’s motion said.

Charles P. Scheeler, of DLA Piper U.S. LLP in Baltimore, who represented Exxon in the appellate case, did not return requests for comment.

“The evidence showed that we acted appropriately after the accident and the court has agreed,” Exxon said in a statement Wednesday. “We have apologized to the Jacksonville community and we remain ready to compensate those who were truly damaged by this unfortunate accident. We will continue the cleanup.”

The gasoline leak started at the Jacksonville Exxon station in January 2006 when an employee accidentally drilled a hole in the gas line. A leak detector went off, but was reset. The leak continued for 37 days, until employees noticed an inventory discrepancy.

The two groups then filed civil suits contending the leak contaminated the groundwater in their well-dependent community, ruined property values and denied them the use and enjoyment of their properties. They also sought compensation for medical monitoring, as they feared they would develop cancer from the contamination of their water supply.

The Court of Appeals found that the juries’ awards in the lower courts were not supported by evidence and should not have included damages for loss of use and enjoyment of property. The court also said the plaintiffs cannot collect any damages for emotional distress caused by fear of cancer, or for continued medical monitoring.

Ford group

Snyder’s motion contended that 80 percent of his client’s properties had been contaminated or would become contaminated, while 80 percent of the plaintiffs in the Albright case never had contamination on their properties.

“Quite simply, the Ford case was not a “companion case” to Albright and should not have been treated as such,” the motion said.

An amicus brief was also filed on behalf of the Ford group by the Maryland Association for Justice Inc.

The Ford group also argued that the Court of Appeals should have held Exxon to admissions and concessions it had made during the trial.

For example, Snyder wrote, Exxon admitted liability for negligence, nuisance and strict liability for all 88 households. And Exxon should not have been allowed to challenge the amount of property damage awards on appeal because it had invited the jury to ignore expert testimony about the extent of the damage, Snyder’s motion said.

“It would defy logic to allow Exxon to instruct the jury to ignore the experts and award whatever property damage ‘you think is right’ and then allow Exxon to argue on appeal that the jury’s property damage award should be reversed because it was not based on competent expert testimony,” Snyder wrote.

Also, Snyder argued that the Court of Appeals improperly held the Ford group to an election of damages it never made. While the Albright group elected to pursue damages for diminution of value rather than loss of use and enjoyment of their property, the Ford group never did so and should not be limited to one or the other, he wrote.

The motion also challenged the court’s ruling that the residents’ fears of future disease were not “objectively reasonable.” Even Exxon admitted at trial that such fears were reasonable for a “period of time,” Snyder wrote.

Finally, the Ford group argued that the Court of Appeals usurped the jury’s role by establishing a threshold contamination level, 20 parts per billion, in order to be able to sue for fear of future disease.

Albright group

In its separate motion for reconsideration, the Albright group argued the lower court’s judgment against Exxon for fraud and punitive damages should be reinstated.

“This case … presents a classic example of misrepresentations by a party engaged in extraordinarily dangerous activity for which Maryland law imposes fraud liability without requiring reliance by the parties who were brought in contact with the danger and who were thereby caused to suffer harm,” Smouse and Weiner wrote for the Albright group.

The Albright motion also contended that the court departed from Maryland law in rejecting the group’s fear of disease claims. The residents claim there is a precedent in Maryland of accepting emotional distress claims even when they are not supported by expert medical testimony. It also rejects the Court of Appeals’ contamination threshold to establish fear of disease.

“The Court usurps the role of the jury, as the finder of fact, in evaluating the credibility of expert witnesses and choosing between legitimate but conflicting scientific views,” the motion said.

The Albright group also disagreed with the court’s ruling that awards for use and enjoyment overlap with damages for diminution of property value and asks that awards for loss of use and enjoyment be reinstated.

“Diminution damages are for injury to property, while use and enjoyment damages in cases of discomfort and annoyance are personal,” the motion said.

The motion also took issue with the Court of Appeals’ determination that plaintiffs cannot sue for nuisance when a neighbor’s property is contaminated.

“The science of hydrology dictates that a homeowner or occupant whose property is within the area of contamination, but whose particular well has not yet tested for contamination, cannot simply continue to use his or her well water as if no contamination will appear,” the Albright motion said.

Finally, the group said the Court of Appeals’ opinion deprived the residents of significant property rights, which it contends violates the takings clause and the due process clause of the U.S. Constitution.

The Court of Appeals gave Exxon until May 7 to respond to the motions.